R-1183 - 06/12/2012 - AGREEMENT - Resolutions Supporting DocumentsnA t
AGENDA ITEM
Regular Board of Trustees Meeting
of
June 12, 2012
ITEM 6.17. 1)
SUBJECT: Automated Meter Reading System - System Monitoring and Hardware, Software
Maintenance Agreement b4
FROM: Blaine Wing, Assistant Village Manager and Mike Hullihan, Public Works Director
BUDGET SOURCE/BUDGET IMPACT: Water Fund Account #351 -72300
RECOMMENDED MOTION: I move that the Village Board waive bidding, due to sole
source, and approve an Annual Services Agreement with Aclara RF Systems, Inc.
Cleveland, Ohio, for the Village's Automated Water Meter Reading System, and approve
resolution R -1183, "a resolution approving the waiver of competitive bidding and
authorizing the execution of an agreement by and between the Village of Oak Brook and
Aclara Technologies, LLC."
Background/History:
The Village of Oak Brook operates an automated water meter reading system that was purchased
from Aclara, Inc. in 2006.
This annual service agreement covers Remote System Monitoring (data collection units and
software) and On -Site Maintenance of the Data Collection Units (DCU). The unit costs for this
maintenance are noted on page 24 of the Agreement. Our total annual cost is $12,080.
The Village Attorney has reviewed the (attached) proposed agreement and recommends approval
by the Board.
Recommendation:
That the Village Board approve the attached 1 -year Services Agreement with Aclara
Technologies LLC.
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RESOLUTION 2012- AG- PW -WA- METR -R -1183
A RESOLUTION APPROVING THE WAIVER OF COMPETITIVE BIDDING AND
AUTHORIZING THE EXECUTION OF AN AGREEMENT BY AND BETWEEN
THE VILLAGE OF OAK BROOK AND ACLARA TECHNOLOGIES, LLC
WHEREAS, the Village of Oak Brook ( "Village') uses a wireless radio network to read and
monitor water meters in the Village ( "Meter Reading Network'j; and
WHEREAS, Aclara Technologies, LLC ( "Aclara ") has provided software and technological
support to the Village's Meter Reading Network for at least five years ( "Support Services "); and
WHEREAS, Aclara has provided Support Services that have met or exceeded the Village's
expectations; and
WHEREAS, the Village and Aclara desire to enter into a maintenance agreement for Aclara to
continue providing the Village Support Services ( "Agreement'), which Agreement is attached to this
Resolution as Exhibit A; and
WHEREAS, the Village's Director of Public Works recommends that the Village waive competitive
bidding for Support Services and approve the Agreement; and
WHEREAS, the President and Board of Trustees, being fully advised in the premises, have
determined that it is in the best interests of the Village and its residents to so waive competitive bidding
for Support Services and to approve the Agreement;
NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF
THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows:
Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part
of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook.
Section 2: Waiver of Competitive Bidding Requirements. The advertising and bidding
requirements for the purchase of Support Services shall be, and they are hereby, waived in accordance
with Section 1 -7-4 of the Village Municipal Code.
Section 3: Approval of the Agreement. The President and Board of Trustees hereby
approve the Agreement by and between the Village and Aclara in substantially the same form as attached
as Exhibit A and in a final form approved by the Village Attorney.
Section 4: Execution of Agreement. The Village President and the Village Clerk shall be,
and are hereby, authorized to execute the final Agreement on behalf of the Village.
Section 5: Effective Date. This Resolution shall be in full force and effect from and after its
passage by two- thirds of the Trustees and its approval in the manner provided by law.
[SIGNATURE PAGE FOLLOWS]
APPROVED THIS 12th day of June, 2012
PASSED THIS 12th day of June, 2012
Ayes:
Gopal G. Lalmalani
Village President
ATTEST:
Charlotte K. Pruss
Village Clerk
Resolution 2012- AG- PW -WA- METR -R -1183
Approving Agmt. with Adara Technologies
Re: Water Meter Reading
Resolution 2012- AG- PW -WA- METR -R -1183
Approving Agmt. with Aclara Technologies
Re: Water Meter Reading
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Aclara - Oak Brook
MAINTENANCE AGREEMENT
This Agreement is made effective as of the 1s' day of January 2012 (the "Effective
Date ") by and between:
Aclara Technologies LLC, an Ohio limited liability company
945 Hornet Drive
Hazelwood, MO 63042
(Referred to herein as "Aclara ")
And Village of Oak Brook, an Illinois municipal corporation
1200 Oak Brook Road
Oak Brook, Illinois 60523
(Referred to herein as "Customer")
Individually, Aclara ®and Customer may be referred to as "Party" and collectively as
"Parties ".
Whereas, Customer and Aclara are parties to a STARC Network Service Agreement,
effective January 1, 2010, under which Aclara provides maintenance and support
services to Customer; and
Whereas, Aclara has recently changed the manner in which it provides maintenance
services to its customers; and
Wtlereas, for the provision of such maintenance services, the Parties desire for this
Maintenance Agreement ( "Agreement ") to replace the aforementioned STARC Network
Service Agreement as of the Effective Date of this Agreement; and
NOW THEREFORE, in consideration of the mutual covenants contained herein, and
intending to be legally bound, the Parties agree as follows:
Definitions. For the purposes of this Agreement, the following definitions shall
apply:
A. "Aclara Holidays" means New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving, the day after Thanksgiving, Christmas
Eve, Christmas Day and New Year's Eve.
B. "Aclara Technology System" (or "System ") means the system comprised
of, in part 1) the Hardware purchased from Aclara by Customer, and 2) the
Software licensed by Aclara to Customer under the terms of the Software
License Agreement.
C. "Additional Services" means services offered by Aclara for improvements
and /or enhancements to the Customer's System that are not covered by
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 1 of 24
Aclara - Oak Brook
this Agreement, but may be offered and provided at the rates set forth on
Schedule B hereto.
D. "Classroom Training" means training offered by Aclara at its facility.
E. "Customer Portal" means an electronic gateway to a secure entry point via
Aclara's website at www.Aclara.com that allows Aclara customers to log in
to an area where they can view and download information or request
assistance regarding Issues with the System.
"On -Site Maintenance Services" means Aclara providing Maintenance
Services at the Customer's facility at the then current rates stated in
Schedule B, Time and Material Rates, attached hereto.
G. "Custom Enhancement" means any improvement, modification or addition
that, when made or added to the Software or Third Party Licensed
Software, changes its utility, efficiency, functional capability or application.
Custom Enhancements are not included as part of this Agreement.
H. "Customer Site Training" means Aclara providing its training at the
Customer's facility at the then current terms and pricing published on the
Aclara Customer Portal. The training may be customized to meet the
Customer's needs.
"Delivery" means, in the case of Software provided hereunder (and as
applicable), (i) the remote installation of the Software by Aclara on the
Customer - provided Designated Equipment; or (ii) delivery of the
Designated Equipment provided by Aclara on which the Software is
installed; or (iii) the loading of the software to an FTP site for Customer's
availability to download. "Delivery" means, in the case of Services
provided hereunder, the periodic performance of such Services as
described herein.
J. "Error' means any failure of Software to conform in all material respects to
the requirements of this Agreement or Aclara's published specifications.
Any nonconformity resulting from Customer's misuse, improper use,
alteration or damage of the Software, the combination of the Software with
any hardware or software not supplied by or authorized by Aclara, or any
other condition beyond the control of Aclara, shall not be considered an
Error.
K. "Error Correction" means either a modification or addition that, when made
or added to the Software, brings the Software into material conformity with
the published specifications, or a procedure or routine that, when
observed in the regular operation of the Software, avoids the practical
adverse effect of such nonconformity.
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 2 of 24
Aclara - Oak Brook
L. "E- Learning" means on -line training offered by Aclara via the Internet.
M. "Hardware' means the equipment supplied by Aclara which may include
the Substation Communication Equipment (SCE), Remote
Communications Equipment (RCE), Test Equipment, Meter Transmission
Unit (MTU), Data Collection Unit (DCU) and MTU programmer.
N. "Issue" means a problem with the System identified by the Customer,
which requires a response by Aclara to resolve.
O. "Maintenance Services" means activities to investigate, resolve Issues and
correct product bugs arising from the use of the Software in a manner
consistent with the published specifications and functional requirements
defined during implementation.
P. "Patch" means a version of the Software that provides an Error
Correction
to address an urgent need that is outside the schedule of regularly
released Software Revisions or Software Versions.
Q. "Renewal Period" means each of one or more consecutive twelve (12)
month periods following the Initial twelve (12) month Term of this
Agreement.
R. "Severity Level' means a designation of the effect of an Issue on the
Customer's use of the System. The Severity of an Issue is initially defined
by the Customer and confirmed by Aclara. Until the Issue has been
resolved, the Severity Level may be raised or lowered based on Aclara
analysis of impact to business. The four Severity Levels are:
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 3 of 24
iJescription
1
Requires immediate attention Critical production functionality is not
available or a large number of users cannot access the system. Causes a
major business impact where service is lost or degraded and no
workaround is available, therefore preventing operation of the business.
2
Requires priority attention - Some important production functionality is not
available, or a small number of users cannot access the system. Causes
significant business impact where service is lost or degraded and no
workaround is available, however the business can continue to operate in
a limited fashion.
3
Requires attention. —There is a problem or inconvenience. Causes a
business impact where there is minimal loss of service and a workaround
is available such that the system can continue to operate fully and users
are able to continue business operations.
4
There is a problem or issue with no loss of service and no business
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 3 of 24
Aclara - Oak Brook
at
impact.
S. "Software" means the software and firmware provided by Aclara, and
listed in Attachment A to the Software License Agreement. All Software,
Software Revisions and Software Versions provided by Aclara shall be
subject to the terms and conditions of the Software License Agreement
entered into by and between Aclara and Customer, including any
amendments thereto.
T. "Software Version" means the base or core version of the Software that
contains significant new features and significant fixes and is available to
the Customer. Software Versions may occur as the Software architecture
changes or as new technologies are developed. Software Versions are not
provided or included as part of this Agreement.
U. "Software Revision" means an update to the released version of the
Software code which consists of minor enhancements to existing features
and code corrections. Software Revisions are provided and included as a
part of this Agreement.
V. "Supplemental Services" means the services set forth on Schedule C
hereto, and offered at the prices set forth on Schedule C hereto.
W. "Target Response" refers to the period of time between a Customer's
initial contact with Aclara to report an issue (by phone, email or through
the Customer Portal, thereby creating a ticket which has been assigned a
number for tracking purposes) and Aclara's initial contact back to
Customer to begin investigation of the reported Issue.
X. "Third Party Licensed Software" shall have the meaning as it is defined in
Attachment A to the Software License Agreement.
Y. "Training Services" means all training provided by Aclara to the Customer,
including but not limited to Classroom Training, E- Learning Training and
Customer -Site Training.
2. Term of Agreement. Subject to the termination provisions set forth below, this
Agreement shall become effective as of the Effective Date. Maintenance
Services shall begin upon Delivery of the Licensed Software; and shall continue
in full force and effect for an initial term of one (1) year ( "Initial Term "). Upon
expiration of the Initial Term, this Agreement shall automatically renew for
successive Renewal Periods, unless sooner terminated by either Aclara or
Customer as provided for in this Agreement.
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 4 of 24
Aclara - Oak Brook
3. Scope
A. Software Maintenance. The Software maintained under this Agreement
shall be the Software set forth in Attachment A to the Software License
Agreement. Any additional Software for which a license is obtained by the
Customer from Aclara shall be automatically incorporated into this
Agreement and the pricing for Maintenance Services adjusted accordingly.
B. Hardware Maintenance. The hardware maintained under this Agreement
shall include those items identified in Section 1.M. above, which have
been purchased by Customer from Aclara.
C. Levels of Maintenance Services. Two (2) Levels of Maintenance are
available to Customer under this Agreement. Each level is identified and
described in Schedule A, Levels of Maintenance Services attached hereto
and made a part hereof. Customer may, at its option, change the Level of
Maintenance for any subsequent Renewal Period, provided Customer
gives Aclara written notice of the requested change no less than thirty (30)
days prior to the end of the Initial Term or then current Renewal Period.
D. Maintenance Services Provided. Aclara shall provide Maintenance
Services at the level selected by the Customer as designated in Schedule
D, Level of Maintenance Services Selected. The following are included as
part of this Agreement:
1) Aclara Software Revisions and Patches. Aclara shall provide
Software Revisions and Patches to the Customer as they become
available. In support of such Software Revisions and Patches,
Aclara shall provide updated user technical documentation
reflecting the Software Revisions and Patches as soon as
reasonably practicable after the Software Revisions and Patches
have been released. Updated user technical documentation that
corrects Errors or other minor discrepancies will be provided to
Customers when available.
2) Third Party Software Revisions. At the option of Aclara, periodic
Software Revisions of the Third Party Licensed Software will be
provided by Aclara without further charge provided the following
conditions are met: (i) the Software Revision corrects a malfunction
in the Third Party Software that affects the operation of the
Software; and (ii) the Software Revision has, in the opinion of
Aclara, corrected malfunctions identified in the Aclara Technology
System and has not created any additional malfunctions; and (iii)
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 5 of 24
Aclara - Oak Brook
the Software Revision is available to Aclara. Customer is
responsible for obtaining and installing the Software Revision if the
Third Party Software was not licensed to Customer by or through
Aclara. Software Revisions to Third Party Licensed Software
provided by Aclara are specifically limited to the Third Party
Software identified and set forth in Attachment A to the Software
License Agreement. Any associated Hardware or Hardware
modifications required to support revisions of Third Party Software
are not included under the terms of this Agreement.
E. Response to Issues. Aclara will provide verbal or written responses to
Issues identified by the Customer in an expeditious manner. Such
responses shall be provided in accordance with the Target Response
Times as defined in Schedule A, Level of Maintenance Services.
Service Limitations. The Maintenance Services defined in this Agreement
are applicable only to the Aclara Technology System, excluding third party
equipment, and Third Party Software identified in Attachment A to
Software License Agreement. The following limitations apply to
Maintenance Services under this Agreement.
1) New Software Versions are not included as a part of this
Maintenance Agreement. Such Software Versions will be offered to
Customer for additional fees and costs.
2) Services requested by Customer for assistance with installation or
implementation of Software Revisions and Patches are not included
in this Maintenance Agreement, but are offered to the Customer on
a time and materials basis at the rates stated in Schedule B hereto.
3) System administration, database maintenance and recovery, server
malfunctions, database backup processes, management and
training services, repair of Hardware under warranty or master
station computer equipment repair are not included as part of this
Agreement.
4) Maintenance Services shall be limited to the latest Software
Revision provided to Customer and currently maintained by Aclara.
Aclara has no obligation to maintain Software that is more than two
(2) Software Revisions behind the most recently released Software
Revision. In order to continue Maintenance Services under this
Agreement, Customer must update its System to the latest
Software Revision maintained by Aclara in accordance with Section
4.E. below.
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 6 of 24
Aclara - Oak Brook
5) Maintenance Services do not include costs incurred by Aclara while
investigating problems that are the result of Customer's negligence,
misuse, or unauthorized application, alteration, or modification of
the Software, Hardware, or interfaces to the equipment
configuration, which shall be invoiced to Customer on a time -and-
material basis at Aclara's then current published rates set forth on
Schedule B hereto.
6) Services offered outside of Maintenance Services as noted in
Schedule C, Supplemental Services attached hereto are not
included in this Agreement. Such additional services are available
and may be provided upon Customer's request at the fixed price
established on Schedule C, and if no fixed price is established, in
accordance with the terms and rates provided in Schedule B
hereto.
7) During Renewal Periods, certain follow -up training is provided as
outlined in Schedule A, Levels of Maintenance Services.
Additional training is available and may be purchased. Please
contact Aclara Customer Support at 1- 800 - 892 -9008 for training
requirements and fees.
8) Aclara shall consider and evaluate the development of Custom
Enhancements for the specific use of Customer and shall respond
to Customer's requests for Custom Enhancements or other
additional services pertaining to the Software. Such Custom
Enhancements or additional services shall be subject to a separate
charge in accordance with Aclara's then in effect rates listed on
Schedule B hereto.
9) Maintenance Services do not include any problem arising from the
use of components manufactured or authorized by anyone other
than Aclara as an interface or peripheral to the Software.
10) Maintenance Services do not include any problem resulting from
the combination of the Software with such other programming or
equipment unless such combination has been approved by Aclara.
11) Maintenance Services do not include any problem caused by
changes to other software (including releases and patches),
interfaces or systems connected to the Software including but not
limited to changes of operating systems database servers, web
servers, and communications software.
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 7 of 24
Aclara - Oak Brook
12) Maintenance Services do not include changes in workflow,
practices, procedures, or processes that differ from the Software
approved specifications.
13) Customer specific testing and reimplementation of Custom
Enhancements are not part of this Maintenance Agreement
Customer will be responsible to pay Aclara for time or other resources
provided by Aclara to diagnose or attempt to correct any of the items set
forth above in this Section 3.F., at Aclara's then current time and material
rates. If Aclara incurs expense in servicing claims which are later shown to
result from any of the above activities, Customer shall pay Aclara the costs
associated with the performance of such service. Aciara's time and material
rates are attached hereto as Schedule B. Aclara, in its sole discretion, may
change these rates from time to time with thirty (30) days advance notice to
Customer.
4. Customer Responsibilities
A. Backups. Customer shall maintain a current backup copy of all Software
and databases. Customer shall perform regular backups of its data, and
backups of its entire system maintained under this Agreement.
B. Notification of Issues
During the hours between 6:30 a.m. and 6:00 p.m. Central Time on
Monday through Friday, excluding Aclara Holidays:
1) Customer shall provide Aclara with timely notification of any new
System issues by one of three methods:
a. By entering the problem on the Aclara Customer Portal (See
Note 1 below);
b. Contacting Aclara Customer Support at 1-800 -892 -9008; or
C. Emailing the problem to support( aclara.com
Note 1: Customer's utilization of the Aclara Customer Portal is
the preferred method for Issue notifications.
2) Premier Level. Selection of the Premier level of services provides
technical support for Severity 1 and 2 issues, 24 hours per day;
seven (7) days per week; 365 days per year. All Severity 1 and 2
notifications submitted between the hours of 6:00 p.m. and 6:30
a.m. Central Time (Monday through Friday, Weekends and Aclara
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 8 of 24
Aclara- Oak Brook
Holidays) must be submitted through the Aclara Customer Portal. If
Customer cannot readily access the Aclara Customer Portal,
Customer may contact Aclara at the "600" number listed above.
Premier Level Customers will receive priority treatment over Base
Level Customer when resources are allocated to competing, same -
priority issues.
3) Base Level, Selection of the Base level of services ensures tickets
will be processed on the next business day within the normal
business hours (6:00 p.m. and 6:30 a.m. Central Time) noted on
Schedule A, Levels of Maintenance Service. If an emergency
arises, Aclara does offer support for Issues arising during other
than normal business hours at the Time and Material Rates set
forth in Schedule B hereto.
C. Technical Staff. Customer shall be responsible for maintaining sufficient
suitably trained technical staff to operate and maintain the System on a
day -to -day basis, including backing up the Software and report handling.
Aclara training for designated contacts shall be made available to
Customer.
D. Support for Problem Investigation. Customer shall support all reasonable
requests by Aclara as may be required in problem investigation and
resolution. For troubleshooting purposes, Aclara may need remote
system access to Customer's system.
E. Maintain Current Software Revision. Customer shall install new revisions
of defined Software in the production environment within six (6) months of
receipt of the Software Revision unless installation of such software
revisions adversely affects Customer's system. Customer shall maintain
the required version of the Third Party Licensed Software, if applicable,
specified by Aclara for each released Software Revision provided so long
as maintaining the required version of the Third Party Licensed Software
does not adversely affect Customer's system. Aclara Error Corrections
will be provided on Aclara's latest release of the Software Revision or
patch.
F. Additional Requirements. Customer is responsible for procuring, installing
and maintaining all equipment, telephone lines, communications
interfaces, and other hardware necessary to operate the Software and
obtain Maintenance Services from Aclara.
G. Designation of Point of Contact. Customer shall assign an individual or
individuals to serve as the designated contact(s) for all communication
with Aclara during Issue investigation and resolution.
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 9 of 24
Aclara - Oak Brook
H. Discovery of Errors. Upon discovery of an Error, Customer agrees, if
requested by Aclara, to submit to Aclara a listing of output and any other
data that Aclara may require in order to reproduce the Error and the
operating conditions under which the Error occurred or was discovered.
I. Test Environment. Customer should, but is not required to, maintain a test
copy of the Program and a separate test data base (other than Customer's
production database) and shall test all new Software Revisions, Patches,
Custom Enhancements, hotfixes and Error Corrections before integrating
them into system productions.
J. Technical Infrastructure Management. Customer shall manage hardware,
software, network, storage, database, and peripheral devices for optimal
operating performance and availability as required by end users.
K. Proactive Monitoring. Customer shall regularly monitor the hardware,
software and infrastructure that support the Software application.
Customer shall define system (OS /Oracle) level event logging, notification
and escalation procedures, and detect and react to events. Customer shall
regularly monitor event logs, server logs, and other debug information
generated by the application to proactively identify problems.
L: Acceptance. On or before thirty (30) business days after Aclara's release
of a new Custom Enhancement, hotfix or Error Correction that Aclara
issues in response to an Error Report, Customer shall test and notify
Aclara if there are any problems that need further resolution, or if
Customer accepts the solution, Customer shall send such notification to
Aclara's e-mail support address. If Aclara receives neither a request for
further assistance nor an acceptance of the solution, the solution will be
deemed accepted by Customer, and Aclara will have no further obligation
to maintain the Software in its earlier form or version. Problems arising
from the aforementioned items requiring further resolution will be included
as part of this Agreement.
M. Routine System Management. Customer shall monitor the system logs
and database and perform routine system and database management to
ensure proper system operation.
5. Payment and Charges
A. Basis of Support Service Fee. Pricing for Maintenance Services is
calculated based on the cumulative Software License Fee paid by the
Customer. The cumulative Fee is identified on Attachment A to the Aclara
Software License Agreement as amended during the term of this
Agreement. Pricing for each Support Level during the Initial Term is
detailed in Schedule D, Level of Maintenance Services Selected hereto.
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 10 of 24
Aclara - Oak Brook
B. Billing Rate. The charge for the Service Level selected by the Customer
and defined herein shall be at the annual Fee as identified in Schedule D,
Level of Maintenance Services Selected hereof during the Initial Term of
this Agreement. The annual Fee shall not be subject to adjustment during
the Initial Term. Thereafter, during any subsequent Renewal Period, upon
receipt of a 30 day notice, the Fee shall be subject to adjustment [not to
exceed five percent (5 %)] at the commencement of each Renewal Period.
C. Currency and Taxes. Prices and charges stated herein are in U.S. dollars
and are exclusive of Import Duties, Tariffs, Provincial, Federal, State,
Municipal or other Government Excise, Sales, Use or like Taxes, all of
which shall be Customer's responsibility.
D. Suspension of Services due to Unpaid Invoices. In the event that any of
the Charges remain unpaid for more than thirty (30) days after becoming
due for payment, Aclara shall be entitled to withdraw the Maintenance
Services.
E. Billing Frequency. Charges for the services provided under this
Agreement shall be invoiced annually in advance. Payment of all such
invoices shall be due and payable within thirty (30) days of the date of
invoice.
F. Partial Services. Aclara reserves the right to invoice the Customer for any
partial month services which may result from the Effective Date or date of
termination of this Agreement, at a prorated charge.
G. Reinstatement Fee. In the event that Customer terminates or elects not to
renew this Agreement and subsequently wishes to reinstate it, in addition
to paying Aclara's then current fees and charges. Customer shall also pay
Aclara, a reinstatement charge. The reinstatement charge shall include a
lump sum equal to the total fees and charges which would have been paid
for the period of lapse had the lapse not occurred: provided, however that
if the lapse period is three (3) years or longer, Aclara shall have the option
at its sole discretion to refuse to reinstate said Agreement
6. Termination
A. This Agreement may be terminated by either party at any time by not less
than thirty (90) days prior written notice.
Aclara shall have the right to terminate this Agreement at any time in the
event of Customer's bankruptcy, insolvency, or any continuing non-
payment for services in excess of thirty (30) days.
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 11 of 24
Aclara . Oak Brook
C. If either party shall at any time commit any breach of any covenant or
agreement herein contained, and shall fail to remedy any such breach
within thirty (30) days after the other party provides written notice
specifying in reasonable detail such breach, the other party may, at its
option, terminate this Agreement by prior notice in writing to such effect.
D. Aclara shall have the right to terminate or refuse Maintenance Services if
conditions at the equipment location represents a hazard to the safety or
health of Aclara's personnel.
7. Warranties
A. With respect to Services to be performed by Aclara under this Agreement,
Aclara warrants that it will use reasonable care and skill in the provision of
the Services. The Services shall be performed in a professional,
competent and timely manner by Aclara Personnel appropriately qualified
and trained to perform such Services. In the event of a breach of the
foregoing warranty relating to Services occurs within twelve months from
the date of the providing of such Services, Aclara shall, at its sole cost and
expense, re- perform such Services. Re- performance of such Services
shall be Aclara's sole liability and Customer's sole remedy for a breach of
warranty.
B. Except as expressly set out herein, all conditions and warranties, express
or implied, statutory or otherwise (including but not limited to any
concerning merchantability or fitness for a particular purpose) are hereby
excluded to the extent permitted by law.
8. Limitation of Liability
A. Aclara shall carry, at a minimum, the following casualty and liability
insurance:
Coverage Limit of Liability
Workers Compensation Statutory
Comprehensive General Liability: $1,000,000/$2,000,000
Products, Completed Operations $2,000,000
Personal and Advertising Injury $1,000,000
Comprehensive Automobile Liability:
Combined Single Limit $1,000,000
(including hired and non -owned autos)
Excess Liability Umbrella $6,000,000
B. Such insurance shall be issued by a good, solvent, responsible
company or companies authorized to do business in the State of Missouri
and in the jurisdiction(s) in which Services are to be performed under the
Maintenance Agmt— Renewals 5.30.2012— Rev. 2.2 Page 12 of 24
Aclara - Oak Brook
terms of this agreement. Aclara will, upon request, provide evidence of
such insurance coverage.
C. Aclara's total liability in connection with this agreement for losses not
covered by its casualty or liability insurance will not exceed the total
amounts paid to Aclara by Customer under this agreement during the
calendar year in which such event or alleged event of liability occurred.
D. In no case shall Aclara be liable to Customer or any third party for loss
of profits or revenue, loss of data, damage to business or business
relations, loss of use of equipment, down -time costs, cost of substituted
facilities, goods and /or services, claims by customers of Customer or for
any special, indirect, consequential, incidental or exemplary damages,
arising out of or related to the Services to be provided under this
agreement, however caused, whether arising under contract, tort
(including negligence), or any other theory of liability even if Aclara has
been advised of the possibility of such damages.
9. Indemnification.
For the purpose of this Section 9 only, "Customer Parties" shall mean Customer,
its directors, officers, agents and employees, contractors and subcontractors
(other than Aclara), assignees, subsidiaries and affiliates, and each of them;
"Aclara Parties" shall mean Aclara, its directors, officers, agents and employees,
contractors and subcontractors at any tier, and the subcontractor's directors,
officers, agents and employees, and each of them; and "Claims" shall mean
claims, demands, suits or causes of action. The Parties obligations under this
Section 9 shall not be limited to their respective insurance coverage.
A. Aclara shall indemnify Customer Parties for any and all loss or liability,
including the costs of settlements, judgments, damages and direct
expense including reasonable attorney's fees, costs and expenses arising
from Claims, whether based on statute or regulation or on theories of
contract, tort, strict liability, or otherwise, which are brought against one or
more Customer Parties by or on behalf of persons other than Customer
Parties involving injuries or damages to persons or property arising from
or in any manner relating to negligent acts or omissions of Aclara Parties
under this Maintenance Agreement provided that:
1) Customer promptly notifies Aclara in writing of such claims;
2) Customer fully cooperates with Aclara in assisting in the defense or
settlement of such claims; and
3) Aclara has the sole right to conduct the defense of such claim or to
settle such claim. Aclara shall defend at its own expense, with
counsel of its choosing, but reasonably acceptable to Customer,
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 13 of 24
Aclara - Oak Brook
any suit or action brought against Customer Parties based upon
such Claims.
B. Further, provided that Customer promptly notifies Aclara in writing of any
alleged violations described below, Aclara shall also indemnify Customer
Parties for any and all loss or liability for fines, fees or penalties for
violations of any statutes, regulations, rules, ordinances, codes or
standards applicable to the Work arising from or relating to acts or
omissions of Aclara Parties.
Aclara's obligations under this Section 9.A. and B. shall be reduced to the
extent of the negligence, gross negligence or willful misconduct of
Customer Parties.
10. Excusable Delays.
Neither Party shall be liable to the other for failure or delay in performance of a
required obligation if such failure or delay is caused by delays in shipment,
delivery or taking receipt of any items sold hereunder, or loss or damage thereto,
acts of God, ads of the other Party, acts of civil, regulatory or military authority, U.S.
Governmental restrictions or embargoes, war, terrorism, riot, fires, strikes, flood,
epidemics, quarantine, restrictions, default or delay by supplier, breakdown in
manufacturing facilities, machinery or equipment, delays in transportation or
difficulties in obtaining necessary materials, labor or manufacturing facilities due to
such causes, or any other cause beyond a Party's reasonable control. In the event
of such occurrence, performance shall be suspended to the extent made necessary
by such forces, and the time for performance shall be extended by a period equal to
the time of delay. Upon the occurrence of such an event the Party whose
performance is adversely affected shall promptly notify the other Party of the nature
and extent of the occurrence and the anticipated period of delay in performance.
Any Party so adversely affected shall use all Commercially Reasonable Efforts to
minimize the extent of the delay in performance. No event of Force Majeure shall
apply to any obligation by either Party to pay money.
11. Assignment.
Neither Party may assign its rights or obligations under this Agreement without
the prior written consent of the other Party, provided however, that Aclara may
assign this Agreement to an Affiliate, or to an entity acquiring all or substantially
all of the assets of Aclara if the acquiring entity is an Affiliate, or, by operation of
law, to an entity into which Aclara is merged if the surviving entity is an Affiliate,
in each such case without prior approval of the other Party. In any such event,
Aclara shall provide the other Party with prompt written notice of such
assignment. As used herein, "Affiliate" means a company which either owns or
controls Aclara or which Aclara owns or controls directly or indirectly, or is under
Maintenance Agmt — Renewals 5.30.2012— Rev. 2.2 Page 14 of 24
Aclara - Oak Brook
common control directly or indirectly with Aclara through a common parent
company.
12. Waiver.
No waiver of any term of this Agreement by either party shall be deemed to be a
further or continuing waiver of any other term of this Agreement.
13. Governing Law.
This Agreement shall be governed by the laws of the State of Illinois, U.S.A.
14. Severabilitv.
In the event that any one or more of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable, in any
respect, such invalidity, illegality, or unenforceability shall not affect any other
provision of this Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
15. Notices.
Any notices required or permitted hereunder shall be in writing and shall be
deemed to be given sent by United States registered or certified mail, postage
prepaid, to the respective Parties at the addresses shown below. Notices so
given shall be deemed received three business days from the date of deposit in
the U.S. mails.
If to Aclara:
Aclara Technologies LLC
Attention: Contracts Administration
945 Hornet Drive
Hazelwood, MO 63042
With a copy to:
ESCO Technologies Inc.
Attn: General Counsel
9900A Clayton Road
St. Louis, MO 63124 -1186
If to Customer:
Village of Oak Brook
Attn: Jim Fox, Information Technology Manager
1200 Oak Brook Road
Oak Brook, IL 60523
Maintenance Agmt— Renewals 5.30.2012— Rev. 2.2 Page 15 of 24
Aclara - Oak Brook
1 16. Confidentiality.
The Parties understand that they may exchange information which they deem to
be confidential. Customer agrees that the Licensed Software, Maintenance, the
Documentation and all related information (collectively, the "Information ")
constitutes confidential and proprietary information of Aclara and as such, such
information is deemed to be Company Private and Confidential. Customer
agrees as a condition of this agreement to keep the Information confidential and
not to disclose any of the Information in any manner whatsoever except that the
Information may be disclosed to those of its officers, employees and agents who
have a business need to know the Information for the sole purpose of operation
of the Aclara Technology System. Customer agrees to ensure that all persons
who have access to the Information are informed of the confidential nature of the
Information and directed to comply with the terms of this provision Customer's
obligations with respect to non - disclosure of the Information will survive the
termination of this Agreement.
Notwithstanding the foregoing, Customer may disclose the information if such
information is required to be disclosed pursuant law or to a legal, regulatory or
judicial order or requirement provided the Customer shall promptly give Aclara
notice of such order or requirement so that Aclara may seek reversal, rescission
or modification of such order or requirement. If Aclara is successful in having
such order or requirement reversed, rescinded or modified prior to the
Customer's required compliance, no disclosure shall be made if the order or
requirement is reversed or rescinded and, if such order or requirement is
modified, disclosure shall be made only in accordance with such modified order
or requirement. Any Information disclosed by the Customer pursuant to this
paragraph shall, as between Aclara and Customer, remain subject to the duties
and obligations.
17. Entire Agreement.
This Agreement, including Schedules A, B. C and D hereof, contains the entire
agreement between the parties hereto relating to the subject matter hereof and
may not be changed or modified in any manner, orally or otherwise, except by a
written amendment signed by a duly authorized officer of each of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the respective dates set forth below.
Aclara Technologies LLC Village of Oak Brook
�- - --- -- Formatted: Indent: Left: 0 ", Tabs:
0.5 ", List tab + No[ at 1.5"
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 16 of 24
Aclara - Oak Brook
By:
Name: Terry M. Messmer
Title: Sr. VP Operations & and Finance
By:
Name: David Niemeyer
Title: Village Manager
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 17 of 24
Aclara - Oak Brook
SCHEDULE A
LEVELS OF MAINTENANCE SERVICES
Maintenance Agmt - Renewals 5.30.2012 - Rev. 2.2 Page 18 of 24
Base
Premier
Technical Support: Technical Support is available during the hours of 6:30am- 6.0opm
X
Monday -Friday US Central Time, excluding Ac /are Holidays and weekends, toll -free at 800 -892-
9008.
24x7 Technical Support: Technical Support is available between the business hours of
X
6:30am to 6pm US Central Time by accessing the Aclara Customer Portal (or Toll -free at 800-
892 -9008, if access to the Customer Portal is not readily available to Customer). On -call
technical support is available after 6pm and before 6:30am Central Time 24 -hours a day17 days
a week/365 days a year, including Achim Holidays and weekends. Such after hours support is
provided for Severity 1 and 2 issues only. Non Severity 1 or 2 items will be addressed during
the standard business hours of 6:30am- 6:00pm US Central Time,
Target Response Time - Severity 1: Requires immediate attention- Critical production
<4 hours
<2 hours
functionality is not available or a large number of users cannot access the system. Causes a
major business impact where service is lost or degraded and no workaround is available,
therefore preventing operation of the business.
Target Response Time- Severity 2: Requires priority attention - Some important production
41 day
<4 hours
functionality is not available, or a small number of users cannot access the system. Causes
significant business impact where service is lost or degraded and no workaround is available,
however the business can continue to operate in a limited fashion.
Target Response Time - Severity 3: Requires attention -There is a problem or
<2 days
<6 hours
inconvenience. Causes a business impact where there is minimal loss of service and a
workaround is available such that the system can continue to operate fully and users are able to
continue business operations.
Target Response Time - Severity 4: There is a problem or issue with no loss of service and
<3
<1
no business impact.
business
business
days
day
Access to Aclara Customer Portal (www.aclara.com): Customer will receive individual user
X
X
names/passwords to the Aclara Customer Portal, as well as have access to Issue Management
Reports for each case generated by Customer.
Follow -up Aclara Classroom Training. Training is available at Aclam's facilities as listed on
Aclara
No
the Aclara Customer Portal. The maximum number of Customer's employees attending any
List Price
Maximum
Classroom Training session is three (3).
Number
Of
Classes
Aclara Web based E- Leaming classes. Certain E- Leaming classes are available as listed on
Aclara
I No Cost
the Aclara Customer Portal to an unlimited number of Customer employees per course at the
List Price
prices listed on the Aclara Customer Portal.
Maintenance Agmt - Renewals 5.30.2012 - Rev. 2.2 Page 18 of 24
Aclara - Oak Brook
SCHEDULE B
TIME AND MATERIAL RATES
Additional Services may be provided at the Customer's request in accordance with the
following Time and Material Rates (hereinafter referred to as "Rates "').
Rates:
The following Rate categories have been defined for Aclara technical staff:
Aclara Technical Staff
Standard Hourly Rate
Off -Hours Hourly Rate
On -Call Hourly Rate
Sr. Technical Advisor
$250
$375
$120
Product Manager
$200
$300
$120
Project/Account Manager
$195
$290
$120
Deployment Manager
$195
$290
$120
Sr. Engineer
$185
$270
$120
Sr. Business Analyst
$185
$270
$120
DBA
$185
$270
$120
Trainer
$185
$270
$120
Engineer /Support
Engineer
$165
$240
$120
Business Analyst
$165
$240
$120
Equipment
Service/Installation
$125
$200
N/A
Administrative Support
$125
N/A
N/A
2. Rate Adjustments.
The above hourly rates are in U.S. Dollars and are subject to adjustment upon
thirty (30) days notice.
3. Service Charges.
A. Services will be charged at the applicable Rates as follows:
1) Standard Hourly Rates will apply to all service hours expended that
do not exceed eight (8) consecutive hours during Aclara's normal
business hours of 6:30 a.m. - 6:00 p.m. Central Time, Monday
through Friday, excluding Aclara Holidays.
'Rates exclude any applicable taxes and the like.
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 19 of 24
Aclara- Oak Brook
2) Off -Hours Hourly Rates will apply to all service -hours expended
beyond eight (8) consecutive hours during Aclara's normal business
hours of 6:30 a.m. — 6:00 p.m. Central Time, Monday through Friday
excluding Aclara Holidays.
3) If Aclara is requested to travel to the Customers site to provide
Services, the costs and expenses associated with such travel will be
borne by Customer and invoiced as set forth below.
a. Travel Expenses: Unless otherwise mutually agreed, Aclara's
travel expenses for On -Site Services shall include, but are not
limited to airfare, lodging, meals, automobile rental, fuel,
parking and associated administration fees, and will be
charged to Customer on an actual basis.
b. Portal to Portal Invoices: Travel time for On -Site Maintenance
Services will be invoiced to Customer on a portal -to -portal
basis at Aclara's On -Call Hourly Rates.
4. On -Call Maintenance Service
On -Call Maintenance Service is a pre- arranged service by which
Customer places a request to have Aclara technical staff accessible
remotely for a specified time period. During the period for which Aclara
technical staff is accessible, On -Call Hourly Rates will be charged. If
Aclara technical staff must actually perform services during such period,
the services will be billed at the appropriate Standard Hourly Rate or Off -
Hours Hourly Rate, instead of the On -Call Hourly Rate. This service will
be provided remotely via a telecommunications link.
5. Pre - Purchased Support Hours
A. Pre - purchased software support hours are a block of hours
intended to cover Software issues that are not covered under this
Agreement, thereby allowing the Customer added flexibility to
utilize Aclara's services without generating a Change Order.
Should Customer request services which are not included in this
Agreement and desire to utilize the pre - purchased hours, Aclara
shall provide the Customer with an estimated number of hours
required to resolve such request. The Customer may then advise
Aclara either to stop working, sign and fund a Change Order, or use
the pre - purchased support hours to resolve the request. Aclara
reserves the right to decline the Customer's request, depending on
the nature of the request.
B. Pre - purchased support hours may be purchased at any time during
the term of this Agreement. Pre - purchased support hours expire
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 20 of 24
Aclara - Oak Brook
upon termination of this Agreement or within one year after
purchase (regardless of use), whichever occurs first.
C. Pre - purchased software support hours are offered in the following
increments and volume discounts:
40 hours Hourly Rates listed in Section 1 above.
80 hours 5% discount
120 hours 10% discount
Maintenance Agmt — Renewals 5.30.2012 — Rev. 2.2 Page 21 of 24
Aclara- Oak Brook
SCHEDULE C
SUPPLEMENTAL SERVICES OFFERED
The following Supplemental Services are offered under the terms of this Maintenance
Agreement (Customer shall be under no obligation to purchase any Supplemental
Services):
STAR
STAR System Monitoring Service
Tier 1 (Less than
10,000 MTUs)
Tier 2 (10,001 to
25,000 MTUs)
Tier 3 (25,001 to
50,000 MTUs)
Tier 4 (50,001 to
100,000 MTUs)
Tier 5 (Greater than100,000 MTUs)
$ 4,000.00
$ 6,000.00
$ 8,000.00
$10,000.00
Please contact Aclara for pricing
Aclara's STAR System Monitoring service is designed to monitor end to end data
transfer from meter /MTU's to and from DCU's to the NCC, and provide health status of
your AMI system to minimize system downtime. Aclara will deliver a weekly diagnostic
report that will identify issues which could affect the successful operation of the STAR
system. The major components of the system that will be analyzed include:
• Network Control Computer
• Data Collector Units
• Meter Transmitting Units
• Handheld programmers.
Aclara's proactive approach is to look for any condition out of the ordinary and will result
in an immediate issue of a troubleshooting ticket and /or field work order based on the
nature and severity of the condition, Example diagnostics include:
Battery voltage loss
• Reading reception loss
File processing errors
Customers will be notified about the issues found, the steps to be completed to solve
the problem, and the escalation path. Aclara will provide:
• A snapshot of the STAR system's health
• Generation of incident tickets, investigation and if needed, scheduling of work
orders
• Notification that the issue has been resolved and confirmation that the STAR
system is operating within established normal parameters.
The STAR System Monitoring Service requires that Aclara have reliable remote
connectivity to Customer's System.
Maintenance Agmt— Renewals 5.30.2012 —Rev. 2.2 Page 22 of 24
Aclara - Oak Brook
STAR® DCU Maintenance Service
Tier 1 (Less than 15 DCUs)
Tier 2 (16 to 30 DCUs)
Tier 3 (31 to 50 DCUs)
Tier 4 (Greater than 50 DCUs)
$ 500.00 per DCU per year
$ 450.00 per DCU per year
$ 400.00 per DCU per year
Please contact Aclara for pricing
In addition to the above unit prices, Customer shall also be responsible for any
associated rental equipment and delivery costs to access the DCU.
Aclara's STAR® DCU Maintenance service is designed to provide for the on -site repair
of any DCU that fails under normal operation after expiration of the standard DCU
Warranty. The Service covers all electronics, the Aclara provided WAN module and
solar cell, but excludes the mounting frame and mounting hardware.
The Service does not include maintenance or repairs attributable to the unauthorized
attempt by Customer or any unauthorized person other than an authorized Aclara
representative to repair or maintain a DCU. Maintenance or repairs resulting from
casualty, catastrophe, extreme weather conditions or natural disaster (including
lightening damage), accident, vandalism, civil unrest, war, misuse, neglect or
negligence of Customer, or causes external to the DCU such as, but not limited to,
failed or faulty electrical power, communication failure resulting from cell or other WAN
network service interruption or any causes other than ordinary use. Maintenance or
repairs to attachments or to any other devices not originally a part of the DCU and
added without the prior written approval of Aclara. Repairs resulting from unauthorized
changes, modifications or alterations of or to the DCU are not covered under this
Agreement.
Upon notification from Customer of DCU failure, Aclara will diagnose the DCU. If a
failure occurs to a DCU covered under the Agreement, the unit will be repaired or
replaced, at Aclara's option, at no additional cost to Customer. If the Customer has
entered into a System Monitoring agreement with Aclara, Aclara will normally identify
the problem as part of its System Monitoring and will take the necessary actions to
correct the problem. The Customer is responsible for arranging access to DCU sites
before Aclara can take action.
Customer's electing the STAR® DCU Maintenance Service must purchase the service
for all DCUs purchased by Customer; STAR® DCU Maintenance Service may not be
purchased on an individual, case -by -case basis.
Maintenance Agmt— Renewals 5.30.2012 — Rev. 2.2 Page 23 of 24
Aclara- Oak Brook
SCHEDULE D
LEVEL OF MAINTENANCE SERVICES SELECTED
Customer: Village of Oak Brook
Address: 1200 Oak Brook Road, Oak Brook, IL 60523
Billing frequency is annually in advance.
Selected Maintenance Level (check one) (Annual First Term Price shown)
❑ Base @ 20% $ 2.080
❑ Premier @ 30% $
❑ Supplemental Services:
❑ STAR System Monitoring Service $ 4.000
❑ STAR DCU Maintenance Service $ 6.000
Designated Contact Information
Name
Title
Address
Address
Telephone
Fax
Cellular Phone
Email Address
Designated Contact Information
Name
Title
Address
Telephone
Cellular
Email Address
Designated Contact Information
Name
Address
Fax
Cellular Phone
Email Address
Designated Contact Information
Name
Title
Address
Address
Telephone
Fax
Cellular Phone
Email Address
Maintenance Agmt - Renewals 5.30.2012 - Rev. 2.2 Page 24 of 24