HomeMy WebLinkAboutCity of Tamarac Resolution R-98-183Temp. Reso #8260
May 11, 1998
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CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-98-_L'93
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO EXECUTE AN END
USER LICENSE AND WARRANTY AGREEMENT BETWEEN
THE CITY OF TAMARAC AND ITRON, INC., FOR END USER
SOFTWARE LICENSE AND WARRANTY; PROVIDING FOR
CONFLICTS; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the purchase of hand held meter reading devices and related
equipment from Itron, Inc. was approved by the City Commission on January 14, 1998
by Resolution R-98-7; and
WHEREAS, the purchase of the hand held reading devices includes software
and hardware; and
WHEREAS, it is necessary for the City to sign an End User License and
Warranty Agreement (Attached as "Exhibit A") for the software license and warranty for
the equipment to be purchased under R-98-7; and
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Temp. Reso #8260
May 11, 1998
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WHEREAS, it is the recommendation of the Director of Utilities and
Purchasing/Contracts Manager that the City enter into an End User License and
Warranty Agreement with Itron, Inc.; and
WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be
in the best interest of the citizens and residents of the City of Tamarac to authorize the
appropriate City officials to execute an End User License and Warranty Agreement
between the City of Tamarac and Itron, Inc. for the end user software license and
warranty.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA:
SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this
Resolution.
SECTION 2: The appropriate City Officials are authorized to execute the End
User License and Warranty Agreement (attached as Exhibit "A") with Itron, Inc. for
software license and equipment warranty.
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Temp. Reso #8260
May 11, 1998
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SECTION 3: All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 4: If any clause, section, other part or application of this Resolution is
held by any court of competent jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining portions or applications of this
Resolution.
SECTION 5: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this --?4day of tc-uf-_ , 1998.
JOE SCHREIBER
MAYOR
ATTEST
cc�L_ez —
CAROL GOLD, MC/AAE
CITY CLERK
WER'BY CERTIFY that I have I4ppro a this I N - to form.
ir
'
rtjvlottrHELL K
CITY ATTORNE
PurchasinglF
RECORD OF COMMISSION VOTE
MAYOR—_SCHREIBER /Y11d, _
DIST 1: _ COMM. McKAYE
DIST 2• V/M MISHKIN
DIST 3: COMM. SULTANOF
DIST *
ITRQN, INC,
END USER LICENSE AND WARRANTY AGREEMENT
This Agreement, is made this 671( day of
corporation, hereinafter 'Itron', and
ztyvot 'Tamarac
191?' , by and between Itron, Inc., a Washington
hereinafter "End User'.
WHEREAS, Itron is in the business of designing, manufacturing, licensing and selling electronic and computer products which are distributed to end users
by SoIns-led , hereinafter *Distributor';
WHEREAS, Distributor intends to provide such electronic and computer products to End User; and
WHEREAS, Itron requires End User to execute this End User License and Warranty Agreement prior to delivery of the electronic and computer products to
End User.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, Itron and End User hereby agree as follows:
SECTION 1. DEFINITIONS
When used herein, the following terms, whether plural or singular, shall
have the meaning set forth below:
1.1 'Fguioment'. The components and devices manufactured and/or
marketed by Itron and provided to End User by Distributor.
1.2 'Licensqd Software '. The program products in machine-readable
form and all other programs recorded on the media to be licensed
to End User, including, but not limited to:
(a) any form of Itron written programming language source code
and machine-readable code derived from the source code or
otherwise licensed to End User and
(b) any subsequent modifications, corrections or revisions to the
program products licensed to End User by Itron.
1.3'.Plpted Documentation'. Any human -readable program listings,
flow charts, input and output forms, manuals, specifications,
instructions, and other materials, and any copies of any of the
foregoing, in any medium, related to the Equipment and/or
Licensed Software and delivered to the End User.
SECTIO . THE LICENSED SOFMRE
2.1 License. Itron hereby grants to End User a nonexclusive,
nontransferable, perpetual license to use the Licensed Software,
including the Related Documentation.
2.2 Itron's Property. The Licensed Software, including without
limitation, programs, Related Documentation and methods of
processing, shall remain the sole and exclusive property of Itron
and shall not be sold, revealed, disclosed or otherwise
communicated, directly or indirectly, by End User to any person,
company or institution whatsoever except as set forth herein.
2.3 scope of License. End User may use the Licensed Software on
hardware used or owned by End User. The Licensed Software
shail be used only for the processing of End Users own business,
which shall include servicing and maintaining records on behalf of
its customers. End User shall not: (a) permit any third party to
use the Licensed Software, (b) use the Licensed Software in the
operation of a service bureau, or (c) reverse engineer,
disassemble, modify, prepare derivative works or otherwise alter
the Licensed Software.
End User may, at its own expense, copy all or part of the Related
Documentation for its internal use. End User shall reproduce and
include any copyright or trade secret notices on any such copies.
2.4 PrQgramming Language. The Licensed Software is written in a
specific programming language for use with operating system
software. Itron shall not be responsible for the performance of the
Licensed Software in any other programming language and
operating system combination not approved by Itron.
2.5 Proprietary Information. In addition to the rights and obligations
set forth in paragraph 5.4 herein, End User acknowledges and
agrees that the information contained in the Licensed Software
and Related Documentation is proprietary or confidential
information and is the property of Itron (or another party who has
licensed to Itron), and that the proprietary information is being
made available to End User by Itron in confidence and solely on
the basis of End Users confidential relationship with Itron. The
proprietary information is considered by Itron to be a trade secret
of Itron. End User will not provide or otherwise make available
any Licensed Software or Related Documentation, in any form,
except as required by law or judicial or governmental order,
without Itron's prior written consent, except to employees or
consultants of End User whose access to the information is
necessary to enable End User to exercise its rights under this
License.
SECTION 3. PAYMENT
End User acknowledges that Distributor will provide payment to Itron on
End User's behalf to provide consideration of this Agreement and that
End User is the beneficiary of such payment. End User further
understands that End User is reimbursing Distributor for such payment
as part of End Users agreement for obtaining the Equipment and
Licensed Software.
SECTION 4. WARRANTY AND WARRANTY EXCLUSIONS
4.1 yVarranty. Itron warrants that, for the periods set forth below from
the date of shipment from Itron, each item of Equipment will be
free from defects in material and workmanship and the Licensed
Software shall perform substantially in accordance with the then
current specifications:
Warranty
Product
Period
Upgraded Equipment
90 days
All new Equipment
and Licensed Software
14 months
Itron shall repair or provide an equivalent replacement of any item
of Equipment and Licensed Software deemed defective at no
charge to End User during this warranty period after properly
packaged and returned prepaid to Itron's designated service
center. End User agrees to furnish Itron reasonable access to
said Equipment and Licensed Software.
End User agrees that the above remedies are End Users
exclusive remedies in the event of breach of warranty.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OF TRADE.
4.2 Warranty, Exclusions. The warranties provided by Itron under this
Agreement do not include the following services, but if such
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services are available, they can be provided by Itron under this
5.2
_Limitation of Liability. ITRON'S TOTAL LIABILITY FOR
Agreement at Itron's then applicable time and material charges
DAMAGES TO END USER SHALL NOT EXCEED THE
and travel expenses.
.
AMOUNTS PAID BY END USER FOR THE EQUIPMENT AND
(a) Repair of damage or increase in service time caused by
LICENSED SOFTWARE. IN NO EVENT SHALL ITRON BE
failure to continually provide a suitable installation
LIABLE, WHETHER IN CONTRACT, NEGLIGENCE, TORT, OR
environment.
ON ANY OTHER BASIS, FOR COVER OR FOR INCIDENTAL,
(b) Repair of damage or increase in service time caused by the
CONSEQUENTIAL (INCLUDING LOSS OF REVENUE,
use of the Equipment or Licensed Software for other than
SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES ARISING
data processing purposes for which designed; or neglect or
OUT OF OR IN CONNECTION WITH THE SALE,
misuse.
(c) Repair of damage caused by accident or disaster, which
MAINTENANCE, USE, PERFORMANCE, FAILURE OR
INTERRUPTION IN THE OPERATION OF THE EQUIPMENT OR
includes, but is not limited to fire, flood, submersion in water,
LICENSED SOFTWARE.
wind, lightning, transportation subsequent to delivery, or
5.3
Service -After Warranty. Itron warrants that the Equipment and
force majeure.
(d) Inspection of altered Equipment, repair of damage or
Licensed Software are eligible for service under Itron's standard
increase in service time caused by alterations not authorized
service agreement. The fee for service shall be at Itron's then
prevailing rates. At End User's option, the service agreement may
by Itron, which alterations include, but are not limited to, any
commence on the date of expiration of the initial warranty period
deviation from Itron's physical, mechanical or electrical
for the Equipment and/or Licensed Software.
Equipment design.
(e) Repair of damage or increase in service time caused by the
5.4
Q2nfidentialitv_. Except as required by law or judicial or
conversion from one Itron model to another or the
governmental order, Itron and End User agree to hold in strictest
confidence all information and material which is related to either
installation or removal of an Itron feature whenever any of
party's business, which is designated as proprietary and
the foregoing was performed by other than Itron or its
confidential herein, or which is related to the performance, by the
authorized agents,
parties of their obligations under this Agreement. Proprietary and
(f) Service time and materials associated with the
confidential information includes, but is not limited to the terms of
rearrangement or relocation of Equipment.
this Agreement, information related to research, development,
ACTION 5. RIGHTS AND OBLIGATIONS
pricing, trade secrets, customer lists, salaries or business affairs
5.1 Infringe.Lnent Ind mn' . Itron will defend End User against a
of the parties to this Agreement. The parties' obligations of
confidentiality under this Agreement shall survive termination of
claim that Equipment or Licensed Software supplied hereunder
this Agreement,
infringes a U.S. patent, copyright, trade secret or other proprietary
5.5
Eguipment or Licensed Software Modification, Itron's obligations
property right or that the Equipment's operation pursuant to a
hereunder may be adversely affected in the event End User
current Itron release and modification level of any Licensed
modifies the Equipment or Licensed Software or uses any
Software supplied by Itron infringes a U.S. patent, copyright, trade
attachment, feature, or device on the Equipment, without first
secret or other proprietary property right, and Itron will pay
obtaining Itron's written approval.
resulting costs, damages and attorney fees finally awarded,
5.6
Layv Compliance. Itron shall comply with provisions of the Federal
provided that:
Fair Labor Standards Act in the manufacture of the Equipment
(a) End User promptly notifies Itron in writing of the claim; and
and Licensed Software, including all laws prohibiting
(b) Itron has sole control of the defense and all related
discrimination in employment, to the extent that such laws pertain
settlement negotiations,
to Itron.
Itron's obligation under this Section is conditioned on End User's
5.7
Term and Termination.
agreement that if the Equipment, or the operation thereof, or the
(a) Termination, This End User License and Warranty
Licensed Software, becomes, or in Itron's opinion is likely to
Agreement shall become effective upon execution by Itron
become the subject of such a claim, End User will permit Itron, at
and End User and may terminate:
Itron's option and expense, either to procure the right for End User
(1) Thirty (30) days after a party gives the other party
to continue using the Equipment or Licensed Software or to
written notice of that party's material breach of this
replace or modify the same so that they become noninfringing;
Agreement, unless the other party has made progress
such replacements or modifications shall be functionally
in curing the breach to an extent satisfactory to the
equivalent to the Equipment and Licensed Software; and if the
nonbreaching party;
foregoing alternatives are not available on terms which are
(2) At a parry's option, upon ten (10) days written notice of
reasonable in Itron's judgement, End User will return the
termination, upon any attempt by a party to assign,
Equipment or Licensed Software on written request to Itron. Itron
delegate, sublicense or otherwise transfer this
shall refund to End User the End User's then book value of such
Agreement, the Licensed Software, the Related
returned Equipment and Licensed Software as depreciated.
Documentation, or any of its rights or obligations under
Itron has no liability for any claim based upon the combination,
this Agreement without the prior written consent of the
operation or use of any Equipment or Licensed Software supplied
other party; or
hereunder with equipment or software not approved by Itron, or
(3) At a party's option, upon ten (10) days written notice of
based upon End User's alteration of the Equipment or modification
termination, if the other party becomes insolvent,
of any Licensed Software supplied hereunder.
executes an assignment for the benefit of creditors, or
The foregoing states the entire obligation of Itron with respect to
becomes subject to bankruptcy or receivership
infringement of patents, copyrights, trade secrets or other
proceedings.
proprietary property.
(b) Rights and Obligatioo§ Upon Termination.
Upon termination of this Agreement:
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(1) End User's obligations under paragraph 2.5
('Proprietary Information') and the parties' obligations
under paragraph 5.4 ('Confidentiality') shall survive the
termination;
(2) End User's Software License rights under Section 2
shall immediately cease; End User shall delete the
Licensed Software from all other software into which it
has been merged; and End User shall immediately
deliver to Itron or destroy all copies of the Licensed
Software and Related Documentation; however, End
User may, upon Itron's prior written consent, retain one
(1) copy of the Licensed Software and Related
Documentation for archive purposes only; and
(3) End User shall, within one (1) month after the
termination of this Agreement, certify in writing to Itron
that, to the best of End User's knowledge, all copies of
the Licensed Software and Related Documentation
have been returned or destroyed, except for any
archive copy permitted under paragraph 51(b)(2).
(c) Other Rights. Each party's right to terminate as expressed
in this Agreement shall be in addition to any other rights,
legal or equitable, provided by law.
WO -OH 6. GENERAL
6.1 Force MA'egre. Neither party hereto shall be responsible for any
failure or delay in the performance of any obligation hereunder if
such failure or delay is due to a cause beyond the party's control,
including, but not limited to acts of God, flood, fire, volcano, war,
third -party suppliers, labor disputes or governmental acts.
106.2 Sublease and A§signment. Neither party may sublease or assign
its rights or obligations under this Agreement without the written
consent of the other party.
6.3 Qoveming Law. This Agreement and performance hereunder
shall be governed by and construed In accordance with the
laws of the State of Washington.
6.4 Enforceability anLAMmey Fees. If any provision in this
Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall in no way be affected or impaired thereby. In the event of
litigation to enforce the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney fees, both at the time
of trial and on appeal.
6.5 Concurrent Remedies. No right or remedy herein conferred upon
or reserved to either party is exclusive of any other right or
remedy herein or by law or equity provided or permitted; but each
shall be cumulative of every other right or remedy given
hereunder or now or hereafter existing at law or in equity or by
statute or otherwise and may be enforced concurrently therewith
or from time to time.
6.6 Noticgs and Reguests. Notices hereunder shall be in writing and
shall be given by either party to the other by delivery or by mailing
the same by prepaid registered mail addressed as specified
herein or to such other address as may be substituted by written
notice by either party to the other:
End User: Notices to End User at
address provided below.
Itron: ITRON, INC,
2818 N. Sullivan Road
Spokane, WA 99216
Attn: Contract Administrator
Any such notice so given shall be deemed to have been received
by the party to whom addressed on the day of delivery thereof.
6.7 EntmAoe_ment. Each party acknowiedges that it has read this
Agreement, understands it, and agrees to be bound by its terms
and further agrees that it is the complete and exclusive statement
of the agreement between the parties. Any terms and conditions
appearing on End User's authorizations shall not apply to or
become a part of this Agreement; this Agreement may be
modified or altered only by a written instrument that refers to this
Agreement and is duly executed by an authorized representative
of each party.
6.8 Heading§ Not Controlling. Headings used in this Agreement are
intended for convenience or reference only and shall not control or
affect the meaning or construction of any provision of this
Agreement.
IN WITNESS WHEREOF the parties hereto have signed this Agreement the day and year first above written by their duly authorized representative,
END USER: rC�KY OF TAMARAC ITRON, INC.
By: By:
Name: Rc)hc�,rt-_ S_ Nnp, jr. Name: 4' "X_4 I/I
itle:
__Cli t Y Ma n a g,� r Title:
___ Tamarac, FL 33321
If a corporation, name the State in which incorporated
Dun and Bradstreet Number
0
4122197
•
•
Exhibit A
Amendment I
to the
End User License and Warranty Agreement
between
City of Tamarac and Itron, Inc.
WHEREAS, the parties desire to implement a process whereby changes can be
incorporated into this Agreement:
NOW THEREFORE, the parties hereby agree to amend the Agreement as
follows:
Section 6.3 Governing Law. The last line of this section shall be amended
to read as follows:
"...laws of the State of Florida and any legal actions arising out of this
Agreement shall be fixed in Broward County, Florida."
All other terms and conditions not amended herein remain in full force and effect.
IN WITNESS WHEREOF, the parties have agreed to this Amendment on the
2_ day of June , 1998.
CITY OF TAMARAC
B--s-��.
Y\�
Na e: Robert S.Noe�, j r _
title: City manager
ITRON, INC.
By: _�R_ LA_-� 7,LLf2 41��
Name:6�55e_ILE.v5
Title: wt