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HomeMy WebLinkAboutSmart Utility Systems - 2016 AgreementY• AGREEMENT FOR SERVICES (For contracts over $5,000 — NON - DESIGN, NON - ENGINEERING TYPE CONTRACTOR) This AGREEMENT made this 1st day of Ate, 2016, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONTRACTOR: Smart Utility Systems, having a principal place of business at 9900 MacArthur Blvd., Suite 300, Irvine, CA 92612. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on August 1, 2016 and will continue in effect through August 1. 2019 with an extension of two years at City's sole ontion to be exercised by written notice to be given by City not less than thirty (30) days nor more than sixty (60) days prior to July 31, 2019, unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shajl terminate this Agreement regardless of any other provision stated herein.±�� Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONTRACTOR is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR or any employee or agent of CONTRACTOR. Both parties acknowledge that CONTRACTOR is not an employee for state or federal tax purposes. CONTRACTOR shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONTRACTOR shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONTRACTOR A. Specific Services CONTRACTOR agrees to: Perform the services as outlined in Exhibit "A" ( "Specific Provisions ") and Exhibit "B" ( "Scope of Services "), within the time periods described in Exhibit `B ". 4819.9321- 9B92v3 MBRANSONW4706091 B. Method of Performing Services CONTRACTOR shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR'S services. C. Employment of Assistants CONTRACTOR may, at the CONTRACTOR'S own expense, employ such assistants as CONTRACTOR deems necessary to perform the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONTRACTOR'S assistants in the performance of those services. CONTRACTOR assumes full and sole responsibility for the payment of all.compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONTRACTOR shall perform the services required by this Agreement at any place or location and at such times as CONTRACTOR shall determine is necessary to properly and timely perform CONTRACTOR'S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR the amounts set forth in Exhibit `°C" ( "Payment Schedule "). In no event however shall the total compensation paid to CONTRACTOR exceed $65.000 per fiscal year. B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit "C". No payment will be made unless CONTRACTOR has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit "A ", Section M incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. 4819 - 9321.9892x3 -2- MBR4NSON104706091 D. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONTRACTOR, all fees, fines, licenses, bonds or taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR'S costs of doing business. CITY shall not be responsible for any expenses incurred by CONTRACTOR in performing services for CITY, except for those, expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. Tools and Instrumentalities CONTRACTOR shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONTRACTOR agrees to provide workers' compensation insurance for CONTRACTOR'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and. expenses, including without limitation reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONTRACTOR'S employees. C. Indemnification of Liability, Duty to Defend As to all liability, to the fullest extent permitted by law, CONTRACTOR shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission of CONTRACTOR or CONTRATOR'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to CITY'S obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance: policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy .terms. 4819- 9321- 9892v3 _3_ MBRANSONN706091 E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONTRACTOR is not CITY'S employee, CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONTRACTOR'S payments; C CITY will not make state or federal unemployment insurance contributions on CONTRACTOR'S behalf, • CITY will not withhold state or federal income tax from payment to CONTRACTOR; C CITY will not make disability insurance contributions on behalf of CONTRACTOR; • CITY will not obtain workers' compensation insurance on behalf of CONTRACTOR. ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONTRACTOR and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR'S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR's Business/ Death of CONTRACTOR CONTRACTOR shall notify CITY of the proposed sale of CONTRACTOR's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY 4819- 9321- 9892v3 �- MBRANSON104706091 termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONTRACTOR set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONTRACTOR is an individual, this Agreement shalt be deemed automatically terminated upon death of CONTRACTOR. B. Termination by City for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving written notification to CONTRACTOR. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: CONTRACTOR'S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONTRACTOR'S breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C" which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONTRACTOR'S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies CITY may have, CONTRACTOR shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONTRACTOR for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONTRACTOR to CITY. D. Transition after Termination Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incur no further expenses in connection with this Agreement. CONTRACTOR shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to 48195321,9892x3 MBRANSONW4706091 -5- facilitate any the assumption of CONTRACTOR's duties by any new CONTRACTOR hired by the CITY to complete such services. ARTICLE S. GENERAL PROVISIONS A.. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ( "the Act ") in its current form and as it may be amended from time to time. CONTRACTOR shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys' fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONTRACTOR shall keep itself informed of all State and National Paws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the 4819- 9321.9892v3 _6_ MBRANSONID4706091 basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. F. Conflict of Interest CONTRACTOR certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONTRACTOR for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. The Agreement includes this Agreement for Services, Exhibit A (Specific Provisions), Exhibit B (Scope of Services), Exhibit C (Payment Schedule), and Exhibit D (End User License Agreement). H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other shall be in writing, via electronic . mail or first -class mail, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A ", Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. 48193321- 9892v3 -�- MBRANSON104706091 J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K Time of the Essence All dates and times referred to in this Agreement are of the essence. L. Waiver CONTRACTOR agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. M. Execution in Counterparts This Agreement may be executed in one or more counterparts. Each counterpart will be original, but all such counterparts will constitute a single instrument. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: [ I 11 Te By: Name: Brad AO nske Title: Director of Sales M V mcuraH vMUM Yy�rO�.w.nr� Social Security or Taxpayer Identification Number 47- 5384753 Approved as to Form IL City Attorney CITY: CITY OF GILROY By: Name: Gabriel A. Gonzalez Title: City Administrator 4819- 9321 -98920 MBRANSON104706091 -8- EXHIBIT "A" SPECIFIC PROVISIONS I. PROJECT MANAGER CONTRACTOR shall provide the services indicated on the attached Exhibit "B ", Scope of. Services ( "Services "). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign Amit Sharma who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall famish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED /COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written "Notice to Proceed ", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Daniel Aldridge shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. ( "Notices ") of this Exhibit "A ". B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONTRACTOR has not completed all of such Services as required by this Agreement, CITY shall so inform CONTRACTOR within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "B" (Scope of Work). IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. 4819- 9321 -98924 MBRANSON04706091 Direct expenses are charges and fees not included in Exhibit "B ". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONTRACTOR shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONTRACTOR'S representations and warranties regarding its skills, qualifications and licenses. CONTRACTOR shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents famished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well- organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONTRACTOR shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY'S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONTRACTOR shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONTRACTOR'S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR, all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY's request. 4819- 9321 -98920 UnDAMQMIi 7mml -2- D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed or received by or for CONTRACTOR and all other written and oral information submitted to CONTRACTOR in connection with the performance of this Agreement shall be held confidential by CONTRACTOR and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONTRACTOR'S disclosure thereon shall be deemed confidential. CONTRACTOR shall not use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONTRACTOR may retain and use copies thereof subject to Section V.D of this Exhibit "A ". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONTRACTOR shall not be responsible for, and City shall indemnify CONTRACTOR from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. 4819 - 9321- 9892v3 _3_ MBRANSON104706091 H. NOTICES. Notices are to be sent as follows: CITY: Daniel Aldridge City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONTRACTOR: Brad Adamske Smart Utility Systems 19900 MacArthur Blvd Irvine, CA 92612 FEDERAL FUNDING REQUIREMENTS. ❑ If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. ® If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. DBE Program CONTRACTOR shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City- adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONTRACTOR warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he /she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 48199321- 9892v3 �- MBRANSON104706091 Exhibit B Scope of Services 1.1. Product/Implementation Scope The functional scope of the implementation will include the following modules and capabilities of the SUS Software: Conservation QUO Connect Me 6j__ My Acco u t IM Usage Compare V - __ Notifncations "1 Administration Portal Investigation Work Management Mobile module that allows customers to view their Water Efficiency Score, See Rebates and Savings Tips, and Enroll in Programs. Allows customers to Report Water Waste and Other Violations to Utility and to connect with them via Phone or email. Utility customers can view and manage service account information including billing, payment, and communication preferences. Graphs and charts illustrating consumption, historical comparisons, and rate plan. Allows customers the ability to compare historical usage rates to current consumption, similar properties, average users, and other characteristics . as defined by Utility. Real time 2 -way communication between customer and utility via messages such as outage updates and service requests from Utility pushed via web portal, email, and push notifications. The Gilroy administration dashboard for reports, and analytics with the capabilities to download and /or export data to PDF and MS Excel. Administrator dashboard to configure messages and to change rules real - time. Receive investigation work order information, capture evidence, and complete work orders conservation Calculate Water Efficiency Score based on customer segment spedfic Analytfcs benchrnarks, identify high value target customers for conservation programs, and track conservation program performance based on usage 6 reduction at customer level. Violations and Reporting Identify and track violations based on customer and utility fieldworker reports, and meter analysis for investigation, and issue notices to customers. 1.2. Home Water Report Mailings 1. Four - color, including return envelope and postage - (quantity 10,000 monthly). 1.3. Installation Support and Integration The SUS team will install all listed software modules in the SUS cloud along with integrations with the Client systems as listed below: 1. Utility Billing System: Daily file transfer using Secure FTP or API access for customer information 2. Meter Data: Monthly File transfer based batch process using secure FTP for monthly meter reads and daily batch process or API access for AM] system reads We will require Client's functional and technical resources on as- needed basis to ensure end- to -end system integration and data mapping. 1.4. Not in Scope Any other modules standard to SUS products that not specifically listed in above scope sections. Any enhancement or change to SUS baseline products. Any integrations for data exchange with Client systems not explicitly listed above. 2. Project Duration and Timeline The estimated timeline for this engagement is 14 calendar weeks (13 week implementation + 1 week training and stabilization). Within two weeks of receiving written authorization, the SUS team will begin scheduling the work sessions associated with the tasks detailed below. 3. Deliverables The following deliverables are anticipated as a result of the implementation activities in scope of this SOW. mapping Applkatlon Walkthrough specifications incorporated into the software package for this Document d. Third -parry APIs SUS will provide weekly updates to the client on the overall status of Weekly Project Status 1. Infrastructure 2. Module Configuration 3. Integration with Setup /Ready a. Configure test data customer data and User Acceptance Test Acceptance Test scripts which the Client personnel can utilize to b. Customer portal and access Configuration SUS will provide user manuals for the in -scope Software projects. These mobile configumbon. user guides will help Client's customers to easily understand the workflow and functionality of each module. c. Utility anali/tics (WiC.?) Platform configuration d. SMW Configuration 1. Functional /integration 2. User Acceptance Test 3. Training Testing complete for all (UAT) a. Application Testing a. UAT Scripts complete walkthrough b. UAT complete session b. Document end user Guides 1. Execute Go -Live plan 2. Production Verification 2. Production ilve and Deployment Test delivery of User Guides 3. Deliverables The following deliverables are anticipated as a result of the implementation activities in scope of this SOW. 4. Escalation SUS will escalate issues in the following order, if they remain unresolved at the previous level: Gilroy Project Manager (TED) 1 Day TBD The Application Walkthrough Doc wlill summarize the standard product Applkatlon Walkthrough specifications incorporated into the software package for this Document implementation. SUS will provide weekly updates to the client on the overall status of Weekly Project Status the project. This report will include the details of the tasks Report accomplished for the current week, planned for next week, any changes to scope and risks involved, if any. SUS will be responsible to provide the Client the detailed User User Acceptance Test Acceptance Test scripts which the Client personnel can utilize to (UAT) Scripts validate the functionality per the requirements. SUS will provide user manuals for the in -scope Software projects. These End User Guide user guides will help Client's customers to easily understand the workflow and functionality of each module. 4. Escalation SUS will escalate issues in the following order, if they remain unresolved at the previous level: Gilroy Project Manager (TED) 1 Day TBD Gilroy will escalate issues in the following order, if they remain unresolved at the previous level: — _--------- -- ..__ *. _..__.. Director 1 Days anvt.sharma @smartusys.com Brad Adamske —Sales Director, SUS 3 Days brad.adamske @smartusys.om 5. Change Control 1. The following process will be followed if a change to this Statement of Work or project plan is required: 2. A Project Change Request (PCR) will be the vehicle for communicating change. The PCR must describe the change, the rationale for the change and the effect the change will have on the Project. Additionally, the PCR must also provide a recap of the original estimated resources and costs, revised estimated resources and costs and associated cost savings or expenditures. 3. The designated Project Manager of the requesting party will review the proposed change and determine whether to submit the request to the other party. 4. Both Project Managers will review the proposed change and agree to take steps to implement it, recommend it for further investigation, or reject it. 5. SUS and client will specify any changes to the fees as per agreed rate in this Statement of Work for such investigation. A Change Order must be signed by authorized representatives from both parties in order to revise the Statement of Work. 6. License, Fees, and Payment Terms First Year Fees: SCM *Annual User Licenses (14,000Licenses) i Investigation Work Management (5 Licenses) Smart Water IQAnalyft (5 Licenses) Annual Maintenance Fee Home Water Report Print Fees (Qty approx 10,000 monthly) One -time Implementation Fee Hosting Fee on Cloud Total First Year Fee *Plus applicable printing fees $5,600 Invoiced upon signing of'SOW Included N/A Included N/A Included N/A $0.724 each Invoiced quarterly $4,000 Invoiced upon completion of UAT Included N/A $9,600* Payment Schedule: Gilroy agrees to make all payments to SUS within thirty (30) calendar days after receipt of invoice. Invoices not paid in full within such time shall be subject to a late fee of 1.5% or the maximum allowed under the law— whichever is less Scope Changes: For any items or activities that may cause the fixed fee above to be exceeded for reasons that are beyond SUS's control, SUS will notify Client in advance and obtain written approval in the form of a PCR pursuant to Section 6 above, executed by the Client's authorized signatory. Restrictions: The above fees are for the a core software license, core software implementation, and mailings only and do not include any third party options such as SMS text message notifications, additional language support beyond English, and live online customer support features. 7. Estimated Travel and Expenses: Expenses for travel, room, board, and other direct expenses will be submitted to Client for reimbursement at actual cost as incurred. 8. Risks and Assumptions 1. Client will provide a response to reasonable SUS information needs and any needed review of project- relevant documents within two (2) business days. 2. Key personnel at Client that are designated as such by Client will be made available to SUS as required during the Project Phases. 3. Client will provide onsite workspace for three (3) SUS resources with internet connectivity. 4. All documents will be jointly reviewed with Client staff prior to submission by SUS for formal acceptance by Client. 5. SUS mobile applications will be made available for M and Android. 6. Client data will be provided to SUS for products integration before start of Configuration Phase. The configuration phase requires necessary datasets for module configuration. These data sets will be provided in a flat file format sent and captured through SFTP protocol. 7. The Scope of Work is binding if authorized, and any changes to the Scope of Work must be made and agreed to in writing by SUS and Client. 8. Gilroy agrees to ensure Integration access with its billing, payment, and hardware systems where applicable. Failure to obtain such availability and /or access from any such billing provider shall not affect Gilroy's obligations under this Statement of Work. 9. Client fully acknowledges and understands that any customization to standard features and functionality as described in this Statement of Work will be assessed by SUS and may impact any approved budget and /or schedule. Client will have sole discretion to determine whether to proceed with such customizations. 9. CitherTerms Subject to the restrictions in this Agreement, SUS shall own any general skills, know -how, expertise, ideas, concepts, methods, techniques, processes, software, materials or other information which may have been discovered, created, developed or derived by SUS either prior to or as a result of its provision of Services under this Agreement. SUS' Confidential information (as defined below) belongs exclusively to SUS. Client will have a non - exclusive, nontransferable license to use SUS' Confidential information for Client's own internal use and only for the purposes for which they are delivered to the extent that they form part of the Deliverables. All Deliverables are solely for Client's internal use and benefit. Client shall not authorize any third party ( "Third Party) to rely upon any of the Deliverables without SUS' prior written consent. SUS accepts no liability or responsibility to any Third Party who benefits from or uses the Software or the Deliverables. Because SUS accepts no liability to third parties with respect to the Services and Deliverables, Client agrees to indemnify and hold SUS harmless from and against any and all Third Party claims, suits and actions, and all associated damages, settlements, losses, liabilities, costs, and expenses, including without limitation reasonable attorney's fees, arising from or relating to the Software implementation Services and /or Deliverables under this Agreement, except to the extent finally determined to have resulted from the gross negligence or intentional misconduct of SUS relating to such Services and /or Deliverables. 10. Software Licensing All licensing terms for end users shall be governed by the attached End User License Agreement which is hereby incorporated by reference as Exhibit D below. EXHIBIT "C" PAYMENT SCHEDULE Each payment to be invoiced and paid upon completion of specific job through the end of the fiscal year, First Year Fees: SCMO Annual User Licenses (14,000 Licenses) Investigation Work Management (S Licenses) Smart Water iQ Analytics (S Licenses) Annual Maintenance Fee Invoiced upon signing Included N/A Included N/A Included N/A Home Water Report Print Fees (Qty. approx. 10,000 monthly) $0.724 each Invoiced quarterly One -time Implementation Fee $4,000 Invoiced upon completion of UAT Hosting Fee on Cloud Included N/A Total First Year Fee $9,600* *Plus applicable printing fees Payment Schedule: Gilroy agrees to make all payments to SUS within thirty (30) calendar days after receipt of invoice. Scope Changes: For any items or activities that may cause the fixed fee above to be exceeded for reasons that are beyond SUS's control, SUS will notify Client in advance and obtain written approval in the form of a PCR pursuant to Section 6 above, executed by the Client's authorized signatory. Restrictions: The above fees are for the a core software license, core software implementation, and mailings only and do not include any third party options such as SMS text message notifications, additional language support beyond English, and live online customer support features. 4819- 9321- 9892v3 -5- MBRANSONT4706091 Exhibit D END -USER LICENSE AGREEMENT (°EULA ") This End -User License Agreement (this "Agreement") is entered into as of August 1, 2016 (the "Effective Date ") by and between Smart Energy Systems, LLC, a California limited liability company and parent company of Smart Utility Systems, Inc. with offices at 19900 MacArthur Blvd., Suite 370, Irvine, CA 92612 ( "Licensor "), and the City of Gilroy ("Customer"). RECITALS Licensor provides a software application known as SWiQT" (the "Software "), and the parties have agreed that Licensor will provide the Software to Customer and also provide the Customer with maintenance services related to the Software. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below and in any relevant exhibits or documents, the adequacy of which is hereby acknowledged, the parties agree as follows: TERMS AND CONDITIONS 1. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement. 1.1. "Documentation" means the Software's standard user manuals and any other accompanying documents related to the Software delivered to Customer during Implementation. 1.2. "Implementation" means the process for gathering requirements, configuring, testing, training, and integrating the Software for Customer's use, as set forth in a Statement of Work. 1.3. "Initial Term" means three (3) years from the date the Software is made available for use, with such a date otherwise defined as "Go Live /Launch" in an applicable Statement of Work. 1.4. "Software" means Licensor's SWi(X' software in source code and object code format. 1.5. "Specifications" means Licensor's Software functionality, as set forth in an applicable Statement of Work. 1.6. "Term" means the Initial Term (as defined above) and any applicable renewal term(s). 1.7. "Upgrades" is defined in Section 3.1 below. 2. LICENSES & DELIVERY. 4- 2.1. License. Licensor hereby grants Customer a nonexclusive license to use and make available the Software to Customer's utility users and /or employees during the Term, subject to Section 2.2 below. 2.2. Restrictions on Software Rights. Software transferred pursuant to this Agreement is licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself. Furthermore, Customer receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) allow third parties to exploit the Software; or (c) reverse engineer, decompile, or attempt to derive any of the Software's source code. 3. MAINTENANCE. 3.1. Provision of Maintenance: Licensor shall maintain the Software as follows during the Term: (a) Licensor will routinely update the Software to address any security updates, bug fixes, or responsiveness matters quarterly or as is required pursuant to Section 3.2 below. Licensor will update the Software to add any new features or functions, incorporate any improved process changes, and /or implement any performance- enhancing modifications annually, if applicable ( "Upgrades "). (b) Should an Upgrade be required pursuant to Section 3.2 below, Licensor will promptly notify the Customer of any downtime and provide confirmation once functionality is restored pursuant to the terms therein. (c) Upon delivery to Customer, each Upgrade will constitute an element of the Software and will be subject to this Agreement's terms regarding Software, including, without limitation license, warranty, and indemnity terms. 3.2. Service Levels: Licensor shall exercise reasonable efforts to achieve the following service performance targets: (a) Severity Classification (i) Severity 1— Critical business impact with no alternative (ii) Severity 2 — High business impact with complicated alternative (iii) Severity 3 —Minimal business impact with alternatives (iv) Severity 4— Cosmetic Issues or documentation issues -2- (b) Service performance targets are set against system availability, problem resolution times, and follow up. Performance and reporting against such targets shall be as follows: (i) System Availability: Normal Business Hours 99.95% (ii) Problem Resolution Time: Severity 1- within 4 Normal Business hours 95% Severity 2 - within 8 Normal Business hours 90% Severity 3 - within 40 Normal Business', hours 80% Severity 4 —within 80 Normal Business hours 70% (iii) Follow—Up: Severity 1- hourly update 99% Severity 2 - daily update 99% Severity 3 - monthly update 99% Severity 3 — monthly update 99% (c) SUS will measure and report on the Service performance targets on a monthly basis. 4. FEES. 4.1. All implementation fees, software licensing fees, and other applicable fees are set out in the Agreement for Services between Licensor Smart Utility Systems and Customer City of Gilroy and the accompanying Exhibit B (Scope of Services). S. IP & FEEDBACK. 5.1. IP Rights in the Software. Licensor retains all right, title, and interest in and to the Documentation and Software, including without (limitation Upgrades, except to the extent of the limited licenses specifically set forth in Section 2.1 (Licenses). Customer recognizes that the Software and its components are protected by copyright and other laws. Customer shall not (and shall not allow or cause any third party to) reverse engineer, disassemble, alter, or otherwise translate the Software, Documentation, or Upgrades. 5.2. Feedback. Customer hereby grants Licensor a perpetual, irrevocable, unrestricted, worldwide license to use any Feedback (as defined below) Customer communicates to Licensor during the Term, without compensation or any obligation to report on such use. Such rights shall include, without limitation, the right to exploit Feedback in any way and the right to grant sublicenses. Notwithstanding the provisions of Article 6 (Confidential Information) below, Feedback will not be considered Customer's Confidential Information. ( "Feedback" refers to any suggestion or idea for modifying any of Licensor's products or -3- services, including all intellectual property rights therein.) 6. CONFIDENTIAL INFORMATION. 6.1. Confidential Information. Defined. "Confidential Information" refers to the following types of material or content one party to this Agreement ( "Discloser') discloses to the other ( "Recipient "): (a) any information Discloser marks or designates as "Confidential" at the time of disclosure; and (b) any other nonpublic, sensitive information disclosed by Discloser including, but not limited to code, inventions, know -how, business, technical, and financial information, or other information which should reasonably be known by the Recipient to be confidential at the time it is disclosed, due to the nature of the information and the circumstances surrounding such disclosure. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient's possession at the time of disclosure; (ii) is independently developed by 'Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction; or (iv) is rightfully obtained by Recipient from a third party without breach of any confidentiality obligations. 6.2. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate this Agreement (the "Purpose "). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 6; and (b) shall not disclose Confidential Information to any third party without Disclosers prior written consent. Notwithstanding the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information, but with no 'less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient's attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser, prompt notice of any such ilegal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser's expense. 6.3. Iniunction. Recipient agrees that breach of this Article 6 would cause Discloser irreparable injury, for which monetary damages would be inadequate, and in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage. 6.4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 6.2 above (Nondisclosure) will terminate three (3) years from the expiration of this Agreement. Upon such termination, Recipient shall return all copies (excepting one (1) copy archived for purposes of Recipient's back -up processes) of Confidential Information to Discloser or certify, in writing, the destruction thereof. lis 6.5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information. 7. REPRESENTATIONS & WARRANTIES. 7.1. From Licensor. (a) Re: Function. Licensor represents and warrants that, during the Term, the Software will perform materially in accordance with its Specifications and pursuant to the service level targets in Section 3.2 above. (b) Re: IP Rights in the Software. Subject to the next sentence, Licensor represents and warrants that it owns the Software, and has the power and authority to grant the rights in this Agreement without the further consent of any third party. Licensor's representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Subsections 8.1(a) through 8,1(e) below. In the event of a breach of the warranty in this Subsection 7.1(b), Licensor, at its own expense, will promptly take the following actions: (i) secure for Customer the right to continue using the Software; (ii) replace or modify the Software to make it non - infringing, provided such modification or replacement will not materially degrade any functionality listed in the Specifications; or (iii) refund the prorated Licensee Fee paid for the Software for every month remaining in the Term, following the date after which Customer is required to cease use of the Software. In conjunction with Customer's right to terminate for breach where applicable and the provisions of Section 8.1 below (Indemnified Claims), the preceding sentence states Licensor's sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Subsection 7.1(b) and for potential or actual infringement by the Software. 7.2. From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required hereunder. 7.3. Warranty Disclaimers. Except for the express warranties in Sections 7.1 and 7.2 above, LICENSOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Licensor does not warrant that the Software will perform without error or that it will run without immaterial interruption. Licensor provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than Licensor, unless Licensor approves such modification in writing; or (b) use of the Software in combination with any operating -5- system not authorized or specifically forbidden in the Specifications or Documentation or with hardware or software. Notwithstanding this disclaimer, LICENSOR warrants the standard of its workmanship as provided in Exhibit A, Section V -A. 8. INDEMNIFICATION. 8.1. Indemnified Claims. Licensor shall defend and indemnify Customer and its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns against any "Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of, related to, or alleging infringement of any patent, copyright, trade secret, or other intellectual property right by the Software. Licensors obligations set forth in this Section 8.1 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer's breach of this Agreement; (b) revisions to the Software made without Licensor's written consent; (c) Customer's failure to incorporate Upgrades that would have avoided the alleged infringement, provided Licensor offered such Upgrades without charges not otherwise required pursuant to this Agreement; (d) Licensor's modification, of Software in compliance with Customer's specifications; (e) unauthorized use of the software by third parties; or (f) use of the Software with hardware or software not provided by or approved of by Licensor. 8.2. Litigation & Additional Terms. Licensor's obligations pursuant to Section 8.1 above will be excused to the extent that Customer's or any of Customer's Associates' failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Licensor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof, provided Customer wile have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. 9. LIMITATION OF LIABILITY. 9.1. Liability Cap. Licensor's liability arising out of or related to this Agreement shall in no event exceed the 'Licensing Fee paid by Customer within the twelve (12) months preceding the claim. 9.2. Exclusion of Consequential Damages. IN NO EVENT WILL LICENSOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. 9.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; EVEN IF LICENSOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the M2 application of the provisions of this Section 9, Licensor's liability will be limited to the maximum, extent permissible by law. For the avoidance of doubt, Licensor's liability limits apply to Licensor's affiliates, licensors, agents, sponsors, directors, officers, employees, consultants, and other representatives. 9.4. Exceptions to Limitation of Liability. Sections 9.1 (Liability Cap) and 9.2 (Exclusion of Consequential Damages) above do not apply to: (a) claims pursuant to Article 8 above (Indemnification); or (b) claims for attorneys' fees and other litigation costs recoverable by the prevailing party in any action. 10. TERMINATION. 10.1. Termination for Cause. Either party may terminate this Agreement if the other party (a) fails to cure any material breach within thirty (30) days after written notice of such breach; or (b) ceases operation without a successor. 10.2. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination, or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 2.2 (Restrictions on Software Rights) 5 (IP & Feedback), 6 (Confidential Information), 7.2 (Warranty Disclaimers), 8 (Indemnification), and 9 (Limitation of Liability); and (c) any other provision herein that must survive to fulfill its essential purpose. 11. MISCELLANEOUS. 11.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf. 11.2.Taxes. Fees in Section 4.1 above do not include any applicable taxes. Customer shall be solely responsible in the event any authority imposes a duty, tax, levy, or fee (excluding those based on Licensor's net income) upon the Software as supplied by Licensor under this Agreement. 11.3. Notices. Notices ,pursuant to this Agreement shall be made in writing and sent to the addresses in the preamble of this Agreement. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by electronic delivery to an authorized representative, or by certified mail return receipt requested. 11.4. Force Maieure. No delay, failure, or default, other than a failure to pay fees, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, earthquakes, other acts of God or of nature, strikes or labor disputes, embargoes, or other causes beyond the performing party's reasonable control. -7- 11.5-Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Licensor's written consent. Except to the extent forbidden in this Section 11.5, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns. 11.6.Severability. To the extent permitted by law, the parties waive any provision of law that would render any clause of this Agreement invalid or unenforceable. In the event that a provision herein is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by law, and the remaining provisions of this Agreement will continue in full force and effect. 11.7.No Waiver. Neither party will be deemed to 'have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach hereof will constitute a waiver of any other breach of this Agreement. 11.8. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship. AMENDMENT. THIS AGREEMENT MAY ONLYBE AMENDED IN WRITING BY AUTHORIZED REPRESENTATIVES OF EACH PARTY. am -7 CERTIFICATE OF LIABILITY INSURANCE I DATE PRODUCER THIS CERTIFICATION 15 ISSUED AS A MAWrR OF INFORMATION Such Coast Insurance ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 215 Pier Ave SteD HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Hermosa Beach, CA 90264 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 310 - 318.1655 F- 310. 318.1660. CMs ®beachcoestlnsurence.cam ',INSURERS AFFORDING. COVERAGE I NAIC- Smart Utility Systems Inc 19900 MacArthur Elvd Ste 370 Irvine,.CA. 92512 THE POLICIES OF INSURANCE LISTED BELOW HAVE BFXN ISSUED TO THE INSURED NAMED ABOVE FOR THE 'POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT; TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. N L TV TYPOOPINBUANCIE POLIOYNUM89R aUq W Rvc P040Y EINMTNH! � A Y OPNHRMA JAM ITY COMMERCIAL GENERAL LIABILITY CLAIMS MADE M OCCUR ZLP- 91MWZOA OGM112016 0=112017 EACH OCCURRENCE s 1,000,000 PREMISES nnw s 300,000 M90 EXP(Any One il" 8 10,000 PERBON4LSADVIN PY 6 1,000,000 X OBIT Agg.Per Polley GENERILLAOGREGATE 8 2,000,000 _ GETL AGGREGATE UMITAPPUES PER: X POLICY PM'- LOC PRODUCTS• COMPXW AGO 3 2,000.600 BUSIITess Properlyt s 500,000 B Y AUTOMOBILE LIABILITY ANY AUTO BA- 21-1891668 06/01/2016 .00101/2017 COMBINED SINGLE LIMIT s 1,000,000 ARLOVaueD AUroe SCHFJXILEDAUTOS BODILY INJURY ,(per Pawl) $ Inc. X X HIRED AVTOS NON-0MNEDAUTCS ODDLY I JU 'WVAWNAIRY 9 Inc, PROPERTY DAMAGE '., (Par accidwo s Inc. GARAGE UUWRUTY AUTO ONLY• EA ACCIDENT 6 ANY AUTO HAN EAACC 6 8 ALITOO AUTO OILY: .AGO C Y OfCESSAIMBRRUA X LIABILITY OCCUR 7 MAIMS MACE ZUP41M58728 0610112016 06 2017 6ACII OCCURRENCE a 7,000.000 AGGREGATE 6 7,000 000. 8 a 'DEDUCTIBLE RETENrION a 9 D WWORMIYggO IMADD ANY TWC-3662250 OW12016 081012017 X T 6 Ei EL EACH ACODEW s 1,D001000� AL DISEASE. SA EMPLOYE s 1,000,000 . OFNCERAIEMBER 6XCLUDPDT p tlMNNbeOlBer EL. 178PA8E- POLICY LIMIT i 1,000,000 I PR N) E man Professional E &O, Cyber & Privacy D &O & EPU CFG-16643142 12/102016 12110/2010 $6000,000 Aggregate DESCRIPTION OF OPERATIONS/ LOMATIONSIVEHICURISIOXOLUBIONS AD= BYDMDRMENT/ BPEDIALPROMSIONS RlsicSoflware Additional Iraured :CIty of Gllroy,.its OBloem. employees, and representatives; Waivers of Subregatlon Included ax Workers Compensation, Gonaml Liability, Umbrella and Auto coverage. GC forms hLduded, City of Gilroy, ea Dlflcere, SHOULD ANY OFTNEASOVE ONOCRa®PDLNaES RE CANOBLLOD BEFOPE TNU P.XFIRSM DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TOMML 30 DAYS WRRIRN Officials " employees 7351 Rosanne Street NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, HUTFALURE 7000 00 SHAD Gilroy, CA 95020 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER ITS AOMN79 OR POLICY NUMBER: ZLP- 91M6029 -A Smart Utility Systems Inc. Date: 0 811 612 01 6 COMMERCIAL GENERAL LIABILITY CPA CGA 2410 07 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL-LIABILITY COVERAGE PART SCHEDULE Additional Insured(s): The City of Gilroy, Its officers, agents and employees, are named as additional Insureds (If no entry appears above, the Information required to complete this endorsement will be shown In the Declara0ons as ayynaauin w unb unuumemerrL) A. Section II - Who Is An Insured is amended to Include as an additional Insured the person(s) or organizations) shown in the Schedule, but only with respect to liability for "bodily Injury," "property damage" or "personal and advertising Injury" caused, in whole or in part, by. 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf In the performance of your ongoing operations for the additional Insured(s) at the location(s) designated above. Any other Insurance maintained by the City of Gilroy shall be excess and not contributing with the insurance provided by this policy. Said policy shall not terminate nor shall it be cancelled or reduced until thirty (30) days after written notice to the city. CPA cGA2410 07