OSIsoft Confidential Execution Copy
OSIsoft Contract no. 1029798
Enterprise Program Agreement
August 31, 2018
("Effective Date")
OSIsoft, LLC ("OSIsoft") City of Santa Clara, dba
Attn: Legal Department Silicon Valley Power ("Licensee") 1600 Alvarado Street
San Leandro, CA 94577 1500 Warburton Ave.
Phone: (510) 297-5800 Santa Clara, CA 95050
Contacts: Contacts:
Business: Business:
Name: Adele Ward Name: Tim Lynch
Email: [email protected] Email: [email protected]
Phone: 1 510 297-5850 Phone: 408-615-6689
Legal: Legal:
Name: Legal Department Name: City of Santa Clara City Attorney's Office Email: [email protected] Email: [email protected] Facsimile: (510) 295-2444 Phone: (408) 615-2230
This Enterprise Program Agreement ("Enterprise Agreement" or "Agreement") effective as of the Effective Date specified above incorporates by this reference the terms and conditions of that certain Software License and Services Agreement with an effective date of April 24, 2017 (OSIsoft Agreement # _ (the "SLA") by and between OSIsoft, LLC ("OSIsoff"), and City of Santa Clara, dba Silicon Valley Power. Unless otherwise specified, all capitalized terms in this Enterprise Agreement have the meaning defined in the SLA.
COMMERCIAL TERMS
Term From Effective Date through April 23, 2022
Enterprise Licensed • Enterprise Infrastructure Version 2.0 further described on Software http://www.osisoft.com/enterprise-agreement-software-services/, OSIsoft software licensed under the Former Agreement (see next row of this table) not replaced or updated by Enterprise Infrastructure Version 2.0.
Annual Enterprise Services Licensee's annual Enterprise Services subscription price shall be equal to Fee ("ESRP") 20.4% ("Enterprise Services Rate") of the License Fee Basis. "License Fee Basis" shall be the License Fees paid under Licensee's Enterprise Program Agreement dated April 24, 2012 (the "Former Agreement," now expired: all licensed OSIsoft software under the Forme Agreement is hereby transferred to the terms and conditions of this Agreement), plus any additional license fees paid hereunder for Enterprise License Licensee shall receive Enterprise Licensed Software for the Assets specified in Exhibit A ("Licensed Assets")
Net Licensee Fee Due: $0
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Net Initial Enterprise Years 1 and 2: $ 195,228
Services Fee Due:
Enterprise Services Fees Year 3: $97,614* due April 23, 2019 following initial Term Year 4: $97,614* due April 23, 2020 year:* Year 5: $97,614* due April 23, 2021
Initial Invoice Total $195,228
* Subject to adjustments to material changes in Licensed Assets or Licensed Asset Capacities, see Section 4.1., and minimum annual ESRP.
Please check one:
• Corresponding PO will be submitted and required for invoicing. • Contract number can be used for invoicing.
2. ENTERPRISE SERVICES ("Enterprise Services")
Remote Monitoring of PI Systems ("Remote Monitoring"). Licensee will permit OSIsoft to remotely monitor certain performance metrics of Licensee's Enterprise Licensed Software in accordance with the mutually agreed Enterprise Roadmap. The software used to provide the Remote Monitoring service is for use only by OSIsoft in providing the Enterprise Services or by Licensee to monitor the performance of the Enterprise Licensed Software, and may not be used by Licensee for any purpose including, without limitation, to monitor other software programs or equipment. Remote Monitoring services are in no way meant to serve as a safety monitoring service and Licensee shall indemnify OSIsoft against any claims resulting from Licensee's failure to operate Licensee's equipment in a safe manner. To be eligible to utilize this service offering, Licensee must grant OSIsoft support staff unattended remote access to the nodes to be monitored. Remote access will be provided via OSIsoft's remote support software that allows our engineers to properly troubleshoot and remediate alerts regarding the PI System. In the event that Licensee ceases to subscribe to Enterprise Services, Licensee will delete this software upon OSIsoft's request. OSIsoft may use data collected by the Remote Monitoring service to issue to Licensee recommendations for hardware and software (Enterprise Licensed Software and OS) upgrades and other measures Licensee may implement to increase Enterprise Licensed Software performance as agreed in the Enterprise Roadmap.
2.1. Software Reliance Program ("SRP"). As part of Enterprise Services, Licensee and its Contractors will receive the benefits of OSIsoft's Software Reliance Program ("SRP") to support the Enterprise Licensed Software. (All references to "OSIsoft Products" within the SRP terms and conditions shall mean the Enterprise Licensed Software.). Contractors will also have facilitated access to OSIsoft's relevant partner program.
2.2. Enterprise Program Manager. A global Enterprise Program Manager ("EPM") will be assigned to Licensee's account to provide a reasonable amount of coordination and assistance for questions pertaining to architecture and deployment of Enterprise Licensed Software (as defined in Section 3 below), as well as project management. Licensee will assign its own Program Manager ("Licensee Program Manager") to manage the relationship with OSIsoft. The Licensee Program Manager is responsible for the identification of potential installations globally and to identify and make available the required resources within Licensee. The EPM will strive to understand the business of Licensee and develop domain knowledge to further facilitate collaboration in utilization of the Enterprise Licensed Software. Additionally, the EPM will coordinate between OSIsoft technical staff and Licensee to create and maintain, as part of the Enterprise Roadmap, a central monitoring philosophy for the Enterprise Licensed Software, including alerts, proactive remedial actions and fixes. OSIsoft reserves the right to change the EPM at any time upon notice to Licensee.
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2.3. Enterprise Roadmap. OSIsoft, in collaboration with Licensee, will develop a roll out and update plan ("Enterprise Roadmap") for the Enterprise Licensed Software.
The Enterprise Roadmap will specify what services OSIsoft will provide on an annual basis during the term of the Enterprise Agreement and for what areas Licensee will have primary responsibility. Areas of consideration to be documented in the annual Enterprise Roadmap may include:
Identification, prioritization and set target timelines for business and technical objectives where OSsoft's products or services will be of assistance Enterprise architecture considerations such as:
0. technical architecture diagram,
1. hardware and software requirements,
2. remote access requirements and plan,
3. selection of interfaces,
4. update and back-up strategy
5. migration strategy
Define the necessary technical prerequisite requirements to deploy the Enterprise Licensed Software
• Site/Asset installation schedule, areas of responsibility and frequency of updates • Identification and scheduling of Learning and Event vouchers, and CoE services Administration items such as annual review expectations, true-up process and T&L budget considerations
Taking into account Licensee's stated business objectives and resources, the Enterprise Roadmap will include a proposed schedule, recommendations on training for Licensee personnel and end users, best practices and other recommendations for operation of the Enterprise Licensed Software.
Prior to providing any services OSIsoft will work jointly with the customer to prioritize the activities defined in the Enterprise Roadmap. This Enterprise Roadmap will be updated annually based on Licensee's updated business objectives and resources and to account for material changes in the Licensed Assets.
2.4. Reviews. Reviews will be conducted on an as-needed basis by the EPM, Licensee Program Manager and appropriate management personnel. These reviews may be conducted in person at a mutually agreed upon location or virtually, using web-based collaboration tools. These reviews shall be based upon a review report prepared by the OSIsoft team and supervised by the EPM, and will address any concerns identified by the EPM or Licensee Program Manager, and be specifically focused on Licensee's opportunities and goals. The Enterprise Roadmap may be adjusted and modified at these meetings.
2.5. Installation of Enterprise Licensed Software. OSIsoft will provide a single installation or upgrade service per Licensee Site per year for Enterprise Licensed Software in accordance with the mutually agreed Enterprise Roadmap. These installation services will be performed remotely from OSIsoft's offices or through an installation manager server installed on Licensee's network and connected to Licensee's deployment locations and computers ("Installation Management System"). On an exception basis as expressly agreed in the Enterprise Roadmap and subject to the SRP conditions for On-Site Assistance, these installations may be performed manually on-site at Licensee's facilities.
Licensee will provide the Datastream Point configuration in electronic format for configuration of
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Interface(s) as set forth in the mutually agreed Enterprise Roadmap.
2.6. Center of Excellence. OSIsoft will provide reasonable assistance and information resources to Licensee in Licensee's application of Enterprise Infrastructure to Licensee's particular needs per the initiatives jointly agreed upon in the annual Enterprise Roadmap. Examples of OIsoft Enterprise Service offerings are described in the Enterprise Support section of osisoft.com [http://www.osisoft.com/Legal/ea-service-offerings.pdf].
The scope of work for each CoE service engagement will be created by the EPM for Licensee's review and approval. The scope of work will include a description of the deliverables, Licensee participation required, and anticipated scheduling. Licensee shall bear complete responsibility for determining whether any concepts, preliminary designs, application recommendations or advice by OSIsoft are appropriate for Licensee's operations. OSIsoft personnel delivering CoE services will strive to understand Licensee's business, but in no event does OSIsoft represent that such personnel are experts in Licensee's particular industry. While Licensee's operational and business data will remain Licensee's Confidential Information, Licensee acknowledges that OSIsoft may utilize deliverables of general applicability which do not include Licensee's Confidential Information, to assist other customers or improve the Enterprise Licensed Software, even if such deliverables are based upon requirements provided by Licensee. These materials may include, but are not limited to, non-confidential application designs, architecture, general engineering or programming methodologies in common use or within a particular industry, algorithms, sample screens or enhancements to the Enterprise Licensed Software.
2.7. Migration of Third Party Historical Data. OSIsoft will provide one-time assistance at the beginning of this Agreement, as agreed in the Enterprise Roadmap, for Licensee in migrating data from third party historian software to the Enterprise Infrastructure. Data from the third-party historian must be provided by Licensee to OSIsoft in a format compatible with an existing OSIsoft interface. OSIsoft will supply Licensee with the technical requirements to prepare such data files.
OSIsoft will convert the data supplied by Licensee into a data file that is compatible with the Enterprise Infrastructure. The data will not be validated by OSIsoft. Data validation is the sole responsibility of the Licensee. The migration scope does not include migration of calculations or applications.
2.8. Vouchers.
Licensee will receive two different types of Vouchers:
(i) Learning Vouchers: Licensee will receive (1) one learning voucher per $5,000 paid to OSIsoft for Enterprise Services per year. These Services Vouchers may be used for standard training courses at OIsoft training locations at a rate of (1) one voucher per (1) one seat per training day. Licensee may request that a standard or custom training course be conducted onsite at one of licensee's facilities. Twelve (12) learning vouchers are required for onsite training, per day, regardless of the number of students. Onsite training is limited to a maximum of (12) twelve students per day. An additional (6) six learning vouchers (not per day; in total) will be required for a custom training course, to cover OSIsoft's additional preparation time. (ii) Event Vouchers: These Services Vouchers may only be redeemed for admission to an OSIsoft user's events at a rate of one (1) seat per $40,000 paid to OSlsoft for Enterprise Services per year.
From time to time OSIsoft may make other services or admission to other events available for purchase with these vouchers. Vouchers are valid for one (1) year from each anniversary date of the Effective Date of this Enterprise Agreement and cannot be carried over to subsequent years. In no event may vouchers be redeemed for anything other than the foregoing including, without limitation, software products, professional services or cash, unless otherwise
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expressly agreed by the parties.
Vouchers cannot be sold, bartered, swapped or exchanged.
2.9. Travel and Living Expenses. Licensee will reimburse OSIsoft for all reasonable out of pocket travel or living expenses incurred in connection with mutually agreed upon services provided by OSIsoft under this Enterprise Agreement, including without limitation onsite installations, onsite training sessions, kickoff meetings, periodic reviews or any other visit to Licensee's premises by OSIsoft services personnel. Travel and living expenses will be charged in addition to any Service Vouchers redeemed or services fees paid for such services. OSIsoft will incur such expenses in compliance with its then-current field services travel policy, which will be provided to Licensee upon request.
2.10. Additional Services. For clarification, any services beyond the scope of Enterprise Services including, without limitation, providing on-site installation services beyond those expressly provided in the Enterprise Roadmap or additional services or time required as a result of Licensee not meeting any Technical Prerequisites (such as not having the appropriate hardware prepared as specified by OSIsoft), will be subject to OSIsoft's then-current field services rate. As of the Effective Date this rate is $2,000/person/day. OSIsoft will provide an estimate using the then-current applicable rates upon request.
3. ENTERPRISE LICENSING
3.1. Enterprise Licensed Software Definitions.
"Licensee's Enterprise" means Licensee's business activities comprised of power trading, power generation and electric transmission and distribution.
"Asser" means Licensee's power trading, generation and distribution assets (including substations), including utility operations devices, utility network infrastructure, Meters, and phasor measurement units (PMUs) concentrators, owned and operated by Silicon Valley Power, all as identified on Exhibit A.
"Meter" means a physical device which measures and analyzes for energy usage in time differentiated registers, including 5 minute reads as required by Licensee's power trading operation or quarter-hourly or such interval as is specified by Licensee's SVP Meter Connect program. Specifically, a Meter is a single device connected to Licensee's owned and operated power trading assets, customers' home devices, including appliances, thermostats, water heaters, pool pumps, etc., which receives data from such devices, and which data is then read from the single Meter by remote access and control, either by Licensee or a third-party service provider for the purpose of customizing and monitoring home energy consumption.
"Licensed Asset Capacity" means the capacity of each Asset measured as specified in Exhibit A. On the Effective Date, there are 54,309 Meters and 534 MWs of generation, transmission and distribution Assets. (Licensed Asset Capacity is not applicable to power trading activities and to substations.) "Operating Data" is (i) data generated directly by operation of the Assets, including all analyses, calculations and derivatives thereof, and (i) market, environmental, meteorological data or other information that is used to operate the Assets.
"Enterprise Licensed Software" is OSIsoft's commercial proprietary software system comprised of certain database, visualization, analytic and interface OSIsoft Products as described in the then-current accompanying documentation and specified in Section 1.
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3.2. Scope of License.
(a) Qualified Assets Only. Licensee may use the Enterprise Licensed Software only for the purpose of processing the Operating Data generated by the Assets identified in Exhibit A as "Licensed Assets"
(b) Additional Licensed Assets. Licensee may add additional Licensed Assets to Exhibit A upon written notification to OSIsoft or in connection with each Annual Review as provided below.
(c) sage by Licensee. Licensee may use unlımited coples and quantities ot Enterprise License oftware (including Datastream Points) for the purpose o (i) processing Operating Data generated by the Assets up to the Licensed Asset Capacity as may be revised in accordance with this Enterprise Agreement; and (ii) redundancy and failover options, development systems, test systems, research and development, pilot plants, analysis of financial data pertaining to the Asset, and operation of a central Enterprise Licensed Software system to monitor other Enterprise Licensed Software systems installed throughout Licensee's organization. (d) Limitations on Scope. Enterprise Licensed Software may not be used to process Operating Data:(i) generated by non-Licensed Assets, even if such Operating Data is stored in equipment located within a Licensed Asset or (ii) in any automated metering initiative or similar customer direct billing or metering initiatives.
3.3. Enterprise Services Maintenance. As a condition to retining its licenses to Enterprise Licensed Software, Licensee agrees to maintain a current Enterprise Services subscription for all Enterprise Licensed Software purchased hereunder.
4. ENTERPRISE PROGRAM PRICING
4.1. Licensing and Enterprise Services Rate Adjustments. (a) Licensed Asset Capacities. Licensed Asset Capacities are measured in megawatts generated by SVP owned & operated assets ("MW") and number of Meters. (b) Material Change in Licensed Asset Capacities: A material change in the Licensed Asset Capacity shall be defined as 2% increase or decrease in; MW, or Meter increments. (c) Annual Review. If the annual review performed in accordance with this Enterprise Agreement reveals that Licensee is using any Enterprise Infrastructure to process data generated by additional Assets or there is a material increase in the Licensed Asset Capacity of an Asset, Licensee shall purchase the required Enterprise Infrastructure licenses at the License fee specified below and OSIsoft will include such new Licensed Assets in the Enterprise Services calculation for the new Review Period:
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Pricing Table
Asset Description Licensing fee Enterprise Services Annual fee • Total Generation • $1,020/MW • 208/MW
Capacity
• Meter • $5.10/Meter • $1.04/Meter
Software containing the Operating Data generated therefrom or there is otherwise a material decrease in the Licensed Asset Capacity, then Licensee's annual Enterprise Services fee will Licensed Assets in and for the new License Year. Notwithstanding the foregoing, in all events if Licensee retains at least one Asset under this Agreement, Licensee will pay a
4.2. Agreement Term. This Enterprise Agreement will remain in effect for a period of five (5) years from the Effective Date ("Initial Term"). OSIsoft and Licensee each has the right to terminate the Enterprise Agreement, for any or no reason and with immediate effect, at the end of the Initial Term or any one-year successive anniversary for which it continues (each year the "Renewal Period"'), by providing thirty days' prior written notice of its intent to terminate. Following the Initial Term, for so long as Licensee renews its Enterprise Services subscription, and this Enterprise Agreement is not otherwise terminated in accordance with its terms, it will renew for successive Renewal Periods. In the event of termination or expiration in accordance with this section, the Enterprise Conversion Procedure in subsection 4.2(b) shall apply.
Pricing Protection. During the Renewal Period, and for so long as Licensee does not allow any lapse in its Enterprise Services subscription fees for the Enterprise Licensed Software, OSIsoft will increase Licensee's Enterprise Services Rate and Enterprise Licensed Software license fees via a one-time step change of 7.5% for the first Renewal Period (year 6) and for each annual subsequent Renewal Period by the percentage increase in the monthly Consumer Price Index for All Items, U.S. City Average, All Urban Consumers (base year 1982-84=100) over the rates and fees applicable from the beginning of the immediately preceding Renewal Period (subject to a minimum increase of 3% and maximum increase of 6% in each Renewal Period).
(a) Licensee's Enterprise Services subscription must remain current to maintain the license rights set forth in this Enterprise Agreement. Should this subscription lapse at any time during the Initial Term or Renewal Period, the Enterprise Conversion Procedure set forth in subsection
4.2(b) shall apply. Additionally, all Enterprise License Fee payments under any payment plan shall be accelerated and become immediately due and payable. All License fees and Enterprise Services fees paid are nonrefundable.
(b) Enterprise Conversion Procedure: After the Initial Term, in the event Licensee does not maintain Enterprise Services or if this Agreement is otherwise terminated in accordance with this Section 4.2, Licensee's usage limits for Enterprise Licensed Software will be inventoried as further described below, and converted to the license levels then-currently in use by Licensee, using the license units as defined in Licensee's SLA and the nearest OSIsoft Product sizes in OSIsoft's then-current applicable price list. Licensee will no longer be eligible to receive any Enterprise Services and all pricing, except as set forth below, shall be canceled.
Licensee shall provide SIsoft an inventory of all OSIsoft Software that has been installed, including the number of PI Servers, number of Datastream Points configured within each
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Server, number of Individual Users and Interface Nodes. OSIsoft will have the opportunity to perform an audit to validate this inventory and Licensee will pay OSIsoft's then-current field service rates for the time required to complete this audit should it reveal that Licensee has underreported by 5% of the final agreed upon audit outcome. For the inventoried OSIsoft Products, Licensee may purchase annual SRP at OSIsoft's then-current applicable list price.
Any future expansions of these systems or any additional OSIsoft Products will be available from OSIsoft at OSIsoft's then-current applicable list price, under the terms of Licensee's SLA.
4.3. Ordering and Delivery.
(a) Annual License Review. OSIsoft and Licensee will perform an OSIsoft Product license review at each successive Review Period. Licensee will provide OSIsoft with all reasonably requested information necessary to determine whether Licensee is using the Enterprise Licensed Software within the purchased license limits. Unless otherwise agreed, the initial Review Period shall commence with the Effective Date.
(b) Additional Licensed Assets Through Review. OIsoft and Licensee have agreed to the Licensed Assets specified in Exhibit A. The Licensed Assets will be modified at the end of each Review Period as necessary. At the end of each Review Period, Licensee will submit an order to OSIsoft for the Enterprise Licensed Software licenses and corresponding Enterprise Services fees required to cover any additional Assets or material increase in the Licensed Asset Capacity at the prices stated in this Enterprise Agreement. (c) Fulfillment. Licensee or Licensee Affiliates may submit requests for additional copies of any Enterprise Licensed Software without payment of additional license fees. Such requests may be submitted in any form mutually agreeable to both parties. Electronically delivered is the default method.
(d) Availability. Enterprise Licensed Software is only available from OSIsoft directly and not through any third party distributor or sales channel.
5. GENERAL CONDITIONS
5.1. Affiliate Eligibility. "Licensee Affiliate" means any entity that controls, is controlled by, or is under common control with Licensee. For purposes of this Enterprise Agreement, "control" of an entity means having ownership of at least fifty percent (50%) of the voting equity or beneficial interest of such entity. Licensee Affiliates that Licensee would like to add to this Enterprise Agreement are listed in the attached Exhibit A. Licensee may add Licensee Affiliates to this Enterprise Agreement by providing OSIsoft with written or electronic notice containing the contact information for each relevant Licensee Affiliate specified in Exhibit A. Upon OSIsoft's consent, not to be unreasonably Notwithstanding the foregoing, any such Licensee Affiliate shall remain eligible to receive the benefits of this Enterprise Agreement only so long as it continues to qualify as a Licensee Affiliate as defined in this Section. Should a Licensee Affiliate no longer qualify as such under this Enterprise Agreement, then Licensee will notify OSIsoft and such change of ownership or control shall be considered an assignment, subject to subsection 5.2 below, of the OSIsoft Products then being used by such Licensee Affiliate for purposes of this Enterprise Agreement, and such Licensee Affiliate will no longer be eligible to order any Enterprise Licensed Software or receive Enterprise Services under this Enterprise Agreement. Licensee and any Licensee Affiliate that purchases OSIsoft Product
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licenses shall be jointly and severally liable for any breach of this Enterprise Agreement by any Licensee Affiliate.
5.2. Assignment. Licensee may assign Enterprise Licensed Software licensed under this Enterprise Agreement provided that Licensee provides prior written notice to OSIsoft. The usage limits for any assigned Enterprise Licensed Software will be converted to the license levels then-currently in use by Licensee, using the license units as defined in OSIsoft's then-current standard Software License and Services Agreement and the nearest Server sizes in OSIsoft's then-current applicable price list ("Converted Software"). Licensee will provide OSIsoft with all information reasonably necessary to determine the appropriate license sizes for the Converted Software. Licensee hereby acknowledges that as a condition to any assignment OSIsoft may require the assignee to: (i) purchase up to one year of support and maintenance services at OSIsoft's then-current rate; (i) pay OSIsoft's then-current license fees for the software assigned; and (iii) execute OSIsoft's then-current standard Software License and Services Agreement. Except as otherwise specified in writing by OSIsoft, Orders submitted by the assignee will be in accordance with OSIsoft's then current list price. Any attempted assignment or transfer of the Enterprise Licensed Software or this Enterprise Agreement, whether by operation of law, as a result of any change in control (as defined in paragraph 5.1) of Licensee or otherwise without complying with this Section shall be null and void.
5.3. Scope of Enterprise Agreement. Unless otherwise specified, this Enterprise Agreement supersedes all prior agreements, understandings or arrangements with respect to the subject matter hereof and any existing OSIsoft software products within Licensee's possession or control shall be subject to the terms and conditions of the SLA and this Enterprise Agreement, as applicable. Any pricing provided herein cannot be combined with any other discounts including, without limitation, any discounts for volume purchases. OSIsoft may refuse any Orders submitted by Licensee or a Licensee Affiliate pursuant to any other pricing agreement, understanding or arrangement.
5.4. Marketing Participation. Licensee agrees to send a management representative to an OSIsoft User's Conference occurring within twelve (12) months following the Effective Date, or a subsequent User's Conference as mutually agreed, to present Licensee's use of the Enterprise Licensed Software.
Licensee will provide reasonable information and cooperation to OSIsoft to provide OSIsoft with an understanding of Licensee's application of the Enterprise Licensed Software. Olsoft may use Licensee's non-stylized name in its customer lists.
IN WITNESS WHEREOF, the parties have executed this Enterprise Agreement as of the Effective Date through their duly authorized representatives. Each individual signatory below hereby represents and warrants that they have full corporate power and authority to execute this agreement and bind the respective parties to the terms and conditions of this Enterprise Agreement.
OSIsoft, LLC Licensee City of Santa Clara, dba
Silicon Valley Power
Signature: Manher Signature:
Roberi Guilbault Name: Deanna J, Santana
Name:
COO
Title: Title: City Manager
6/20/18 8/31//8
Date: Date: APPROVED AS TO FORM:
SANTA CLARA CITY ATTORNEY'S OFFICE
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Exhibit A
Initial Licensee Affiliates, Licensed Assets and Asset Capacities Power Generation and Distribution Assets:
1) Site Name: Fiber Central Office (FCO) 2) Site Name: Trading Central Office Licensee Legal Name: City of Santa Clara dba Licensee Affiliate Legal City of Santa Clara db Silicon Valley Power Name: ilicon Valley Powe
Contact Name, phone & Tim Lynch, 408-615-6689 Contact Name, phone & Tim Lynch, 408-615-6689 email: [email protected] email: [email protected]
Physical Street Address: 1705 Martin Avenue Physical Street Address: 1601 Civic Center Drive City, State, Zip Code: Santa Clara, CA 95050 City, State, Zip Code: Santa Clara, CA 95050 USA
Baseline No of Licensed 52,377 Electric Meters Licensed Asser Capanty. Energy Trading Acivis (maximum of 10 Data
treams per meter
3) Site Name: Donald Von Raesfel 4) Site Name: Stony Creek Hydroelectric Power Plant (DVR) System
Licensee Affiliate Legal City of Santa Clara dba Licensee Affiliate Legal City of Santa Clara dba Name: Silicon Valley Power Name: Silicon Valley Power
Contact Name, phone & Tim Lynch, 408-615-6689 Contact Name, phone & Tim Lynch, 408-615-6689 email: [email protected] email: [email protected]
Physical Street Address: 850 Duane Avenue Physical Street Address: Various City, State, Zip Code: Santa Clara, CA City, State, Zip Code: Santa Clara, CA Country: USA Country: USA
Licensed Asset Capacity: 147 MW Licensed Asset Capacity: 11.63 MW 5) Site Name: Cogeneration Plant #1 6) Site Name: Gianera Generating Station Licensee Affiliate Legal City of Santa Clara dba Licensee Affiliate Legal City of Santa Clara dba Name: Silicon Valley Power Name: Silicon Valley Power
Contact Name, phone & Tim Lynch, 408-615-6689 Contact Name, phone & Tim Lynch, 408-615-6689 email: [email protected] email: [email protected]
Physical Street Address: 560 Robert Ave Physical Street Address: 2339 Gianera Street City, State, Zip Code: Santa Clara, CA City, State, Zip Code: Santa Clara, CA Country: USA Country: USA
Licensed Asset Capacity: 7 MW Licensed Asset Capacity: 49.5 MW (Exhibit A continued next page)
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Eligible Silicon Valley Power Substation Assets
TRANSMISSION SUBSTATIONS
Operating Company
"SVP"=Silicon
Name
Valley Power
(Licensee) Location (City of Santa Clara, CA)
SVP Kifer Receiving Station 2970 Layfayette
SVP Northern Receiving Station 4857 Centennial Blvd.
SVP Duane Electric Substation 901 Comstock St.
SVP Scott Receiving Substation 1205 Space Park Drive
SVP Northern Receiving 230K v Station 4857 Centennial Blyd.
SVP Silicon Valley Power Switching
Station 810 Thomas Foon Chew Way
Total:
DISTRIBUTION SUBSTATIONS
Operating Company Name Location (City of Santa Clara, CA) SVP Agnew Electric Substation 2375 Agnew Road
SVP Brokaw Electric Substation 349 Brokaw Road
SVP CCA Electric Substation 2700 De La Cruz Blvd
SVP Central Electric Substation 3370 Bowers Ave.
SVP De La Cruz Junction Substation 510 Mathew Street
SVP Fiberglas Electric Substation 2850 Lafayette St.
SVP Homestead Electric Substation 2831 Homestead Road
SVP Juliette Electric Substation 3750 Juliette Lane
SVP Kenneth Substation 1234 Space Park Drive
SVP Lafayette Electric Substation 2960 Lafayette St.
SVP Mathew Electric Substation 600 Mathew Ave.
SVP Mission Electric Substation 2929 Mission College Boulevard SVP Norman Avenue Junction Substation 1515 Norman Ave.
SVP Northwestern Electric Substation 2690 Condensa Street SVP Orland Junction Substation 4585 County Road 99W
SVP Palm Substation 4211 North Lafayette Street
SVP Raymond Substation 1255 Space Park Drive
SVP Serra Electric Substation 5301 Stevens Creek Blvd.
SVP Fairview Substation 2930 Coronado Way
SVP Uranium Electric Substation 2705 Bowers Ave.
SVP Walsh Electric Substation 1600 Walsh Ave.
SVP Zeno Electric Substation 3050 Semiconductor Drive
Total:
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GENERATION
SUBSTATIONS (City of Santa Clara, CA)
SVP Cogeneration Plant No. 1 524 Robert Ave.
SVP Don Von Raesfeld Power Plant 850 Duane Ave
SVP Gianera Power Plant 2339 Gianera St.
SVP Stony Gorge Hydroelectric Plant 2550 County Road 306 SVP Black Butte Hydroelectric Plant 19227 Newville Road SVP High Line Hydroelectric Plant 5640 County Road 200
SVP
Total:
Initial Number of Meters: 54,309 by City of Santa Clara dba Silicon Valley Power on Effective Date
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Exhibit B
INSURANCE COVERAGE REQUIREMENTS
ithout limiting the Contractor's indemnification of the City, and prior to commencing any of the Service equired under this Agreement, the Contractor shall purchase and maintain in full force and effect, at its sol cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 each occurrence
$1,000,000 general aggregate
$1,000,000 products/completed operations aggregate
$1,000,000 personal injury
Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a "pay on behalf" basis with defense costs payable in addition to policy limits;
There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and
Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01, with minimum policy limits of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.
C. WORKERS' COMPENSATION
Workers' Compensation Insurance Policy as required by statute and employer's liability with the following limits: at least one million dollars ($1,000,000) policy limit Illness/Injury by disease, and one million dollars ($1,000,000) for each Accident/Bodily Injury.
The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage,
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compensation or benefit payable by or for Contractor or any subcontractor under any Workers' Compensation Acts), Disability Benefits Acts) or other employee benefits acts).
This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor's work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85 or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor's insurance.
Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non-renewal.
Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through D of this Exhibit C, above.
E. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements
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of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
F. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, purchase and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement.
Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City's approval as to adequacy of the insurance protection.
G. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement. Upon City's request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements.
Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara [*insert City department name here] P.O. 12010-S2 Or 151 North Lyon Avenue
Hemet, CA 92546-8010 Hemet, CA 92543
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
H. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
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PDF
PDF -
Cert of Insurance for Cert of Insurance for
OSlsoft LLC 2017-201 oSlsoft LLC 2018-201
Encl: Certificate of Insurance (embedded PDF document)
(current year's certificate of insurance is also available at https://osisoft.com/legal-notices) OSI
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Osisoft Agreement # 1029798
Corporate Family Software License and Services Agreement August 31,2018 .
("Effective Date")
OSIsoft, LLC ("OSIsoft") City of Santa Clara, dba Silicon Valley Power ("Licensee") Legal Department 1500 Warburton Ave.
1600 Alvarado Street Santa Clara, CA 95050
San Leandro, CA 94577 USA
Phone: +1 (510) 297-5800
Contacts: Contacts:
Business: Business:
Name: Adele Ward Name: Tim Lynch
Email: [email protected] Email: [email protected].
Phone: 510297-5850 Phone: 408-615-6689
Legal: Legal:
Name: Legal Department Name: City of Santa Clara City Attorney's Office Email: [email protected] Email: [email protected]_ Facsimile: +1 (510) 295-2444 Phone: 408-615-2230
OSsoft and Licensee hereby agree as follows:
1. License services to any third party that is not a Licensee Affiliate. Any OSsoft Products ordered by Licensee and licensed by OSsoft as a License Grant. Subject to the terms and bundled unit must be used by Licensee as a bundled unit. Licensee conditions of this Agreement, OSlsoft grants to Licensee a acknowledges that OSsoft Products contain trade secrets of perpetual nonexclusive, nontransferable (except as specified in OSsoft, and in order to protect such trade secrets, Licensee agrees Section 10.1) license to use in accordance with the Product Usage not to disassemble, decompile or reverse engineer the OSlsoft Terms as specified at www.osisoft.com that correspond to the Products, nor permit any third party to do so, except to the extent OSsoft products and related documentation ordered by Licensee such restrictions are prohibited by applicable law. Licensee may only (the "OSIsoft Products"). Licensee may make a reasonable number write programs that make calls to OSsoft's Data Access Software of copies of any OSsoft Product documentation for internal business under the following circumstances: (i) pursuant to an appropriate use. Any OSisoft Software received by Licensee via FP or other development license from OSIsoft; (i) to extend the functionality of electronic delivery method will be governed by this Agreement even an OSsoft Product that is designated by OSisoft as including if no reference to this Agreement is made in connection with such "Programmatic Extensions", or a similar designation, and only as electronic delivery, unless OSsoft states another agreement expressly permitted by the accompanying documentation; or (i) as applies. Any OSisoft online services that Licensee purchases or expressly permitted by a previously purchased OSsoft Product uses will be governed by the agreement presented to you when you license. register for the applicable service.
1.3 Limited Rights. Licensee's rights in the OSsoft
1.2 License Restrictions. Except as expressly Products will be limited to those expressly granted in this Section 1, provided in this Agreement, Licensee agrees that it has no right to: and OSlsoft reserves all other rights, title, interest and licenses (i) modify the OSIsoft Products or to permit any third party to do so; therein. All OSisoft Products provided to the U.S. Government are (ii) copy the OSsoft Products, except as strictly required to install provided with the commercial license rights and restrictions the OSsoft Software and make a reasonable number of copies for described in this Agreement. Further, all OSsoft Products provided archival or backup purposes, or (iii) use the OSsoft Products to to the U.S. Government are provided with Restricted Rights as provide service-bureau, software rental, time-sharing or any data
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provided for in FAR 52.227-19 (DE 2007) and DFARS227-7202 or Licensee Affiliate. Licensee and Licensee Affiliates may be their successors, as applicable. collectively referred to as Licensee.
1.4. Audit Rights. Upon OSsoft's written request, 2.3 Contractor. Licensee may designate one or Licensee shall furnish OSsoft with a certification signed by an officer more contractors that may interact with OSlsoft on its behalf for of Licensee verifying that the OSsoft Products are being used purposes of accessing Licensee's OSlsoft technical support pursuant to the terms of this Agreement. In addition, upon prior account, ("Contractors"). Licensee may add or subtract written notice, OSlsoft may audit Licensee's use of the OSlsoft Contractors from this Agreement by providing OSsoft with written or Products to ensure that Licensee is in compliance with the terms of electronic notice containing the contact information for each this Agreement. Any such audit shall be conducted during regular Contractor and Licensee Affiliates with which the Contractor is business hours at Licensee's facilites and shall not unreasonably working. Licensee may permit Contractors to access and use the interfere with Licensee's business activities. Licensee shall provide OSIsoft Products, without notice to OSlsoft, in accordance with this OSIsoft access to the relevant Licensee records and facilities. If an Agreement and so long as the Contractor is subject to confidentiality audit reveals that Licensee has underpaid fees to OSsoft, Licensee obligations no less protective than this Agreement. All Contractors shall be invoiced for such underpaid fees based on OSsoft's price shall be bound by this Agreement, and shall only have the right to list in effect at the time the audit is completed. Licensee shall act for the sole benefit of the Licensee. Licensee is obligated to promptly deliver to OSlsoft any unpaid fee for any errors or promptly notify OSlsoft of any change in status of Contractors. omissions disclosed by such audit. Licensee shall pay OSlsoft an Licensee and any Licensee Affiliate who benefits from a Contractor additional fee of twenty-five percent (25%) of the applicable unpaid hereunder shall be jointly and severally liable for any breach of this fee disclosed by the audit to compensate for Licensee's over use of Agreement by the Contractor. the OSsoft Products. If the underpaid fees exceed five percent (5%) of the license fees previously paid by Licensee, then Licensee shall 2.4 Order Submission and Acceptance. Orders also pay OSIsoft's reasonable costs of conducting the audit. submitted directly to OSsoft will not be deemed binding on OSsoft until an authorized representative of OSsoft expressly accepts such
2. Ordering and Delivery. Order in writing or until Licensee receives the OSsoft Products, whichever first occurs. Licensee must notify OSsoft prior to using
2.1 Order Process. Licensee or a Licensee Affiliate any OSsoft Product at a location other than the one specified in the may submit written orders containing the information and in the applicable Order. Except for information necessary to place an format reasonably requested by OSlsoft ("Orders) to OSlsoft or Order, such as identification of the OSsoft Product, quantity and OSIsoft's authorized distributor for the purchase of new or additional other similar information, any terms and conditions of any Order that licenses of OSsoft Products or for Software Reliance Program are inconsistent with or in addition to the terms and conditions of this services (as described in Section 4). All OSsoft Products will be Agreement will be deemed stricken from such Order, and OSsoft delivered DAP Licensee location. hereby expressly rejects such terms and conditions even if OSsoft fulfills such Order. Licensee will be responsible for any contractors
2.2 Licensee Affiliate. "Licensee Affiliate" means submitting Orders to OSsoft on Licensee's behalf. OSsoft reserves any entity that controls, is controlled by, or is under common control the right to refuse, cancel or delay shipment to Licensee if Licensee with Licensee. For purposes of this Agreement, "control" of an entity (i) fails to make any payment as provided herein or under the terms means having ownership of more than fifty percent (50%) of the of payment set forth in any invoice or otherwise agreed to by OSsoft voting equity or beneficial interest of such entity. Licensee Affiliates and Licensee, (i) fails to meet the credit or financial requirements that Licensee would like to add to this Agreement can be added by established by OSisoft, or (i) otherwise fails to comply with the a form provided on osisoft.com. Licensee may add or subtract terms and conditions of this Agreement. Without interference with Licensee Affliates from this Agreement by providing OSisoft with the licenses to OSsoft Products previously ordered by and delivered written or electronic notice containing the contact information for to Licensee under this Agreement, OSsoft, reserves the right to each relevant Licensee Affiliate. Authorized Licensee Affiliates are discontinue the distribution of any or all OSIsoft Products at any time entitled to use and order OSsoft Products and shall be bound by and to cancel any orders therefor without liability of any kind to this Agreement. Licensee is obligated to promptly notify OSIsoft of Licensee or any other person. No such cancellation, refusal or delay the change in status of any Licensee Affiliate. Licensee and any will be deemed a termination (unless OSsoft so advises Licensee) Licensee Affiliate that purchases OSsoft Product licenses shall be or breach of this Agreement by OSIsoft. jointly and separately liable for any breach of this Agreement by any
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Payment of OSlsoft Invoices. Provided that Licensee
meets OSsoft's then-current credit standards and policies, payment 5. Warranties. of all fees and expenses pursuant to OSsoft's invoices will be due and payable within thirty (30) days of the date of invoice, otherwise 5.1 Limited Warranty. OSlsoft warrants that, for a invoices will be due upon receipt. All fees are non-cancelable, non- period of one (1) year after delivery of the OSlsoft Products, the contingent and non-refundable except as expressly stated in this OSIsoft Products will function in accordance with OSlsoft's Agreement. Licensee will pay all amounts due under OSsoft's accompanying documentation in all material respects. As Licensee's invoices in U.S. currency, free of any and all currency controls or sole and exclusive remedy and OSsoft's entire liability for any other restrictions. All past due amounts under OSsoft's invoices will breach of the foregoing warranty, OSlsoft will repair or replace, at no incur interest at a rate equal to the lower of 1.5% per month or the additional charge to Licensee, any OSsoft Products that fail to meet highest rate permitted by law, beginning as of forty (40) days after this limited warranty. The limited warranty set forth herein shall the applicable due date. Except for taxes paid by OSsoft on its net automatically become null and void if a party other than OSsoft income, all amounts due pursuant to OSsoft's invoices are net of, modifies the OSsoft Products in any way. EXCEPT AS and Licensee will be solely responsible for, any shipping charges, EXPRESSLY SET FORTH IN THIS SECTION, OSIsoft MAKES NO withholding, use, sales, value-added, import and any other taxes, WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED fees, tariffs or duties associated with this Agreement or Licensee's AND OSIsoft EXPRESSLY DISCLAIMS ANY AND ALL SUCH use of the OSsoft Products and Software Reliance Program. This OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION THE section will not apply when an authorized OSsoft distributor invoices IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR Licensee for Orders submitted to such distributor. However, A PARTICULAR PURPOSE, QUIET ENJOYMENT AND Licensee will comply with any payment terms agreement Licensee NONINFRINGEMENT. may have with such distributor.
4. Support, Maintenance and Services 6. Indemnity
4.1 Software Reliance Program. Subject to OSsoft Indemnity Obligation. OSlsoft will Licensee's advance payment of the applicable Software Reliance defend any action brought against Licensee to the extent that it is Program subscription fees, Licensee will be enrolled in OSsoft's based upon a claim that the OSsoft Products infringe any U.S then-current Software Reliance Program ("Software Reliance patent, copyright or trade secret, and will pay any costs, damages Program"). OSsoft's current terms of Software Reliance Program and reasonable attorneys' fees attributable to such claim that are will be provided on request and are also available through OSsoft's finally awarded or paid in settlement in any such action, provided description of services section at http://www.osisoft.com. that: (i) Licensee promptly notifies OSlsoft in writing of the claim; (ii) Licensee grants OSlsoft sole control of the defense and
4.2 Replacement Software. Promptly settlement of the claim; and i) Licensee provides OSsoft with all following its use of any Updates, Bug Fixes or other replacement assistance, information and authority reasonably required for the software as designated by OSsoft and accepted by Licensee defense and settlement of the claim, at OSsoft's expense. ("Replacement Software"), except for archival copies, Licensee will return or destroy the OSsoft Software replaced by the Replacement 6.2 Injunction. If Licensee's use of any of the Software. Licensee will not receive any credit for software replaced OSsoft Products hereunder is, or in OSisoft's opinion is likely to be, by Replacement Software. subject to the type of infringement claim specified in Section 6.1, OSIsoft may, at its sole option and expense: (i) procure for Licensee
4.3 Services. If Licensee purchases OSisoft's the right to continue using such OSsoft Products, as applicable services, OSlsoft warrants that the results of such services will under the terms of this Agreement; (i) replace or modify such comply with mutually agreed upon specifications for a period of 90- OSIsoft Products so that it is non-infringing, but retains substantially days following delivery of the services by OSsoft. Licensee agrees the same functionality; or (i) if options (i) and (i) above cannot be to supply OSlsoft with access to and use of all information and accomplished despite OSsoft's reasonable efforts, then OSIsoft facilities reasonably necessary for OSlsoft to render any on-site may terminate Licensee's rights and OSIsofts obligations hereunder services pursuant to this Agreement. OSisoft will comply with all with respect to such OSsoft Products and refund to Licensee the reasonable safety rules and procedures provided by Licensee to unamortized portion of the fees paid for such OSisoft Products, OSsoft personnel in advance.
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based upon a straight-line three (3) year depreciation commencing Upon request or demand of any third person or entity not a party to as of the date Licensee received such OSsoft Products. this Agreement ("Requestor") for production, inspection and/or copying of information designated by a Disclosing Party as OSIsoft Indemnity Exclusions. OSlsoft will Confidential Information, the Receiving Party as soon practical but have no liability for infringement claims of any kind arising from: within three (3) business days of receipt of the request, shall notify (i) any use of the OSlsoft Products beyond the scope of this the Disclosing Party that such request has been made, by telephone Agreement; (i) Licensee's use of the OSlsoft Products in call, letter sent via facsimile, email and/or by US Mail to the legal combination with any products not developed by OSsoft, if the basis address and/or facsimile number listed at the beginning of the for the claim is such combined use; (i) Licensee's failure to use Agreement. The Disclosing Party shall be solely responsible for updated or modified versions of the OSsoft Products provided or taking whatever legal steps are necessary to protect information made available by OSlsoft without additional charge; or deemed by it to be Confidential Information and to prevent release (iv) OSlsoft's compliance with designs or specifications of a of information to the Requestor by the Receiving Party. If the published standard or as provided by Licensee. THE PROVISIONS Disclosing Party takes no such action within ten (10) days after OF THIS SECTION 6 SET FORTH OSsoft's SOLE AND receiving the foregoing notice from the Receiving Party, or sooner if EXCLUSIVE OBLIGATIONS AND LICENSEE'S SOLE AND the Requestor's demand is for sooner disclosure by governmental, EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT OF administrative or judicial order or decree, the Receiving Party shall INTELLECTUAL PROPERTY RIGHTS. be permitted to comply with the Requestor's demand and is not required to defend against it.
Limitations of Liability. EVEN IF ANY REMEDY SET
FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR Notwithstanding the foregoing, if the Requestor is an individual OTHERWISE AND REGARDLESS OF WHETHER A CLAIM and/or an entity who has a written confidentiality agreement with the ARISES UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), Receiving Party containing confidentiality obligations at least as BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, protective of the Disclosing Party's Confidential Information as are AND WHETHER OR NOT OSIsoft HAS BEEN ADVISED OF THE the Parties' obligations in this Agreement, and if such Requestor has POSSIBILITY OF SUCH LOSS OR DAMAGES, IN NO EVENT a need to know the Confidential Information in order for the SHALL OSIsoft BE LIABLE FOR ANY SPECIAL, INCIDENTAL, Receiving Party to perform its rights and obligations under this INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY Agreement in a commercially reasonable and timely manner, then KIND (INCLUDING LOSS OF USE, DATA, BUSINESS OR the preceding paragraph shall not apply to the disclosure of PROFITS) NOR SHALL OSISOFT's TOTAL CUMULATIVE Confidential Information to the Requestor.
LIABILITY HEREUNDER EXCEED THE TOTAL LICENSE FEES
PAID BY LICENSEE TO OSIsoft UNDER THIS AGREEMENT Confidential Information will not include information which: (i) is or DURING THE TRAILING 12 MONTH PERIOD OR TWO HUNDRED becomes publicly available without fault of the receiving party; (i) is FIFTY THOUSAND DOLLARS ($250,000), WHICHEVER IS independently developed by the receiving party without use or GREATER. The parties expressly agree that the allocation of risk access to the Confidential Information; or (i) was known to the contained in this Section is an essential basis of this Agreement. receiving party prior to its receipt of the Confidential Information from the disclosing party and is not subject to other restrictions on
8. Confidential Information. "Confidential Information" disclosure or use. means the OSIsoft Products and any business including any pricing information provided by OSisoft or technical information that is 9. Term and Termination. This Agreement will remain in marked by a disclosing party as "confidential" or "proprietary" at the effect perpetually unless and until terminated pursuant to this time of disclosure. Licensee's Confidential Information shall also Section. Either party may terminate this Agreement if the other party include information related to Licensee's operations that Licensee breaches any material term, and such breach remains uncured for discloses to OSsoft in connection with this Agreement in whatever thirty (30) days after receiving notice thereof. In the event of any form. Ossoft's Confidential Information shall also include, without termination of this Agreement, the parties agree to return or at the limitation, any interfaces developed using OSsoft's Software. The other party's request destroy all of the other party's Confidential receiving party will not use or disclose any Confidential Information Information within three (3) business days, and without limiting the of the other party except as expressly permitted herein or as required foregoing, Licensee will return or at OSsoft's request destroy all by California state law. copies of the OSisoft Products within its possession or control.
Licensee may terminate its license to the OSisoft Products under
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this Agreement at any time, with or without cause, by destroying all parties cannot agree upon selection of an arbitrator, then the AAA copies of the OSsoft Products and Confidential Information shall appoint the arbitrator. The place of the arbitration will be San associated with the OSsoft Products within its possession or control, Francisco, California. The arbitration will be conducted in English. and in such event as it elects to terminate all licenses hereunder, The arbitrator shall apply the substantive law of California. The Licensee shall notify OSsoft in writing that the Agreement is arbitrator shall provide detailed written findings of fact and terminated. Termination of this Agreement by either party will be a conclusions of law in support of any award. Judgment upon any such nonexclusive remedy for breach without prejudice to any other right award may be enforced in any court of competent jurisdiction. or remedy of such party. The rights and obligations of the parties Notwithstanding the foregoing, OSsoft may file an action in any contained in Sections 3, and 6 through 10 will survive the termination court of competent jurisdiction to enforce its intellectual property of this Agreement. rights in the OSsoft Products without first submitting its claim to arbitration, Licensee hereby submits to the jurisdiction and venue of
10. General the federal or state courts located in San Francisco, California for this purpose. This Agreement will be governed by and construed in
10.1 Assignment, Independent Contractors, accordance with the laws of the State of California, excluding that Notices and Force Majeure. Licensee must obtain OSsoft's body of law pertaining to conflicts of law and the United Nations written consent prior to: (i) moving the OSsoft Software from the Convention on Contracts for the International Sale of Goods. The location designated in the corresponding Order or (i) assigning this prevailing party in any action arising from or relating to this Agreement or any licenses to OSsoft Products granted hereunder Agreement shall be entitled to recover all attorneys' fees and costs to any third party or Licensee Affiliate. Licensee hereby including, without limitation, arbitration fees and fees of experts. acknowledges that as a condition to such consent OSsoft may require Licensee or the proposed assignee, if applicable, to agree to 10.3 Compliance with Laws; Government update the OSsoft Software to the then-current version, pay Approvals and Severability. Licensee's use of the OSlsoft OSIsoft's then-current license fees and purchase a one year Products will comply with all laws, rules, and regulations of the subscription of Software Reliance Program services at OSsoft's United States and other countries that may be applicable to the then-current rate. In the case of an assignment or transfer to a third OSIsoft Products. Without limiting the generality of the foregoing, party or a Licensee Affiliate, OSsoft may require the assignee to Licensee acknowledges that the distribution and use of OSsoft execute its then-current Software License and Services Agreement. Products and any technical data related thereto (collectively Except as otherwise specified in writing by OSlsoft in its consent, "OSsoft Technology") may be subject to U.S. export control laws Orders submitted by any assignee will be in accordance with and regulations including, but not limited to, the U.S. Export OSsoft's then-current list price. Any attempted assignment, Administration Act of 1979, as amended, and the regulations whether by operation of law, as a result of any change in control (as promulgated there under. Licensee will not export or re-export, control is defined in Section 2) of Licensee or otherwise without directly or indirectly, any OSsoft Technology, to any destination for complying with this Section shall be null and void. The parties to this any use that is restricted by U.S. export control laws and regulations Agreement are independent contractors and neither party will have including, without limitation, to any party that is involved in sensitive the power to bind the other or incur obligations on the other's behalf or unguarded nuclear activities, or activities related to chemical or without the other's prior written consent. All notices required or biological weapons or missiles, unless Licensee first obtains the permitted under this Agreement will be sent to the address specified required authorizations from the U.S. Department of Commerce or above (or such other address specified by the receiving party) in other appropriate governmental agencies. Licensee may not use the writing and will be deemed effective upon receipt. OSIsoft will not be OSIsoft Products to operate or control any inherently dangerous responsible for any failure or delay in its performance under this application. Notwithstanding the preceding sentence, Licensee may Agreement due to causes beyond its reasonable control. use the OSisoft Products in a commercial nuclear power facility so long as Licensee does not use the OSsoft Products: (i) in any Disputes and Governing Law. Any dispute manner where failure of the OSsoft Products would affect the arising out of or relating to this Agreement, including without operability of Licensee's facility or affect Licensee's ability to safely limitation its existence, validity or termination, shall be referred to cease all operations of the facility; i) to control any safety related and finally resolved by arbitration under the Commercial Rules of the system or in any safety related application; or (i) in any manner that American Arbitration Association (the "AAA"). The arbitration panel would violate applicable laws or regulations. Licensee shall shall consist of a single arbitrator experienced in the enterprise indemnify and hold OSisoft harmless from any and all claims, software industry, selected and agreed to by the parties. If the liability, costs, damages and losses arising out of or related use of
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the OSIsoft Products in violation of this section. OSlsoft shall have in its marketing literature and customer lists. Licensee may withdraw no responsibility to test, certify, validate or to take any other action such consent at any time with reasonable notice. regarding the OSlsoft Products with the Nuclear Regulatory Commission or any other governmental agency. Obtaining such 10.5 Entire Agreement, Waiver and Language. This approvals, if any, will be the sole responsibility of Licensee. Within Agreement is the entire agreement between OSsoft and Licensee ninety (90) days of the Effective Date, Licensee must, at Licensee's with respect to all OSsoft products and services and their use, expense, obtain and arrange for the maintenance of all government superseding any prior agreements or understandings related to any approvals, if any OSsoft products or services, except for such other agreements that may be necessary to make this Agreement effective in the OSsoft expressly specifies. The Agreement contains the entire locations where the OSsoft Products are used by Licensee. If for agreement between the parties with respect to the OSsoft Products any reason any part of this Agreement is found unenforceable, the and services Ordered and delivered hereunder, and supersedes any remainder of this Agreement will be enforced to the maximum extent prior or contemporaneous agreements, understandings, permissible. representations or warranties relating thereto. Except for the online Product Usage Terms and Software Reliance Program terms and
10.4 Use of Name in Customer List. Licensee conditions, this Agreement cannot be amended except by a writing consents to OSlsoft's use of Licensee's non-stylized corporate name which specifically references this Agreement and is signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date through their duly authorized representatives. Each individual signatory below hereby represents and warrants that they have full corporate power and authority to execute this agreement and bind the respective parties to the terms and conditions of this Agreement.
OSIsoft, LLC Licensee: City of Santa Clara dba Silicon Valley Power Signature: 'Paris Signature:
Robertl
Name: Name: Deanna J. Santana
COO
Title: Title: City Manager
Date: 6/20/18 Date: 8/311/8
APPROVED AS TO FORM:
SANTA CLARA CITY ATTORNEY'S OFFICE
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