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HomeMy WebLinkAboutSCVWD - MOU Home Water Report ProgramMEMORANDUM OF UNDERSTANDING BETWEEN THE SANTA CLARA VALLEY WATER DISTRICT AND THE CITY OF GILROY FOR THE HOME WATER REPORTS PROGRAM This MEMORANDUM OF UNDERSTANDING (MOU) between the Santa Clara Valley Water District (hereinafter referred to as "WATER DISTRICT "), an independent special district created by the California Legislature, and the City of GILROY (hereinafter referred to as "CITY") sets forth the respective roles of the WATER DISTRICT and the CITY in regard to the CITY's HOME WATER REPORT PROGRAM (hereinafter referred to as "WATER REPORT PROGRAM ") is made and entered into as of August 1. 2016. WATER DISTRICT AND CITY may be referred to in this MOU individually as a "Party" or collectively as the "Parties." RECITALS WHEREAS, the CITY owns and operates a municipal water utility within the City of Gilroy ( "SERVICE AREA"); WHEREAS, the WATER DISTRICT offers programs that involve providing water conservation services and rebates for properties located within the SERVICE AREA; and WHEREAS, the WATER REPORT PROGRAM involves providing home water reports for residents located within the SERVICE AREA; and WHEREAS, the WATER REPORT PROGRAM is an appropriate measure for the goals addressed in the 2015 Urban Water Management Plan and the 2012 Water Supply Master Plan; and WHEREAS, the CITY wishes to implement the WATER REPORT PROGRAM in its SERVICE AREA. NOW, THEREFORE, in consideration of the recitals and mutual obligations of the parties expressed in this MOU, WATER DISTRICT and CITY agree as follows: 1. WATER DISTRICT'S RESPONSIBILITIES FOR THE WATER REPORT PROGRAM a) Share equally in the cost of City of Gilroy Use of the WATER REPORT PROGRAM. WATER DISTRICT'S obligation to pay for the WATER REPORT PROGRAM activities, which are described in Exhibit B, Scope of Services, of the attached Agreement for Services between the CITY and Smart Utility Systems, is capped at a total maximum of $82,500 ($32,500 for year one, $25,000 for year two and $25,000 for year three), based on 50 percent of the costs. Notwithstanding the foregoing, the DISTRICT'S obligation to pay $25,000 for year two and $25,000 for year three for the WATER REPORT PROGRAM activities is contingent on appropriation by the DISTRICT'S Board of Directors ( "District Board ") of funds sufficient to pay those amounts and fulfill the other requirements of this Agreement. If the District Board fails to appropriate sufficient monies in year two or year three to provide for the continuation of this Agreement, this Agreement shall terminate on the date of the beginning of the year for which funds are not appropriated. b) Make payment to the CITY within thirty (30) days of receipt of an invoice from the CITY. When submitting an invoice, the CITY shall provide a copy of the corresponding WATER REPORT PROGRAM vendor (i.e. Smart Utility Systems) invoice to the WATER DISTRCT, including the number of reports sent and the dates the reports were sent. WATER DISTRICT's payment responsibilities to the CITY are without right of set -off or other reduction in pay_ ment based upon matters outside the scope of this MOU. 2. CITY'S RESPONSIBILITIES FOR HOME WATER REPORTS PROGRAM a) Purchase and implement the WATER REPORT PROGRAM in its SERVICE AREA, which shall include coordination with the WATER REPORT PROGRAM vendor Smart Utility Systems to ensure its successful implementation. b) Share equally in the cost of the WATER REPORT PROGRAM. CITY's obligation to pay for the WATER REPORT PROGRAM activities is capped at a total maximum of $82,500 ($32,500 for year one, $25,000 for year two and $25,000 for year three.) It is understood and agreed that any discounts received by the CITY on costs associated with the WATER REPORT PROGRAM shall be allocated between the parties on a 50/50 basis. c) Identification and notification of qualifying properties within the SERVICE AREA. d) Promote the WATER REPORT PROGRAM to the targeted customers. e) Collection and analysis of data to determine water savings. f) Provide WATER DISTRICT with cumulative water usage records and other data necessary to determine savings and cost effectiveness of the WATER REPORT PROGRAM. g) Invoice WATER DISTRCT on a quarterly basis based upon actual invoices of the WATER REPORT PROGRAM vendor that were paid by the CITY for administration of the WATER REPORT PROGRAM. 3. HOLD HARMLESS AND LIABILITY Each Party ( "Indemnifying Party ") agrees to indemnify, defend at its own expense, including attorneys' fees, and hold harmless the other Party ( "Indemnified Party") from and against all claims, costs, penalties, causes of action, demands, losses and liability of any nature whatsoever, including but not limited to liability for bodily injury, sickness, disease or death, property damage (including loss of use) or violation of law, caused by or arising out of or related to the negligence, or willful misconduct of that Indemnifying Party, its officers or employees, or any other agent acting pursuant to this MOU. 4. INSURANCE Each Party shall adhere to the insurance requirements that specified in Appendix A of this MOU. 5. DOCUMENT REVIEW WATER DISTRICT and the CITY will, upon reasonable advance written notice, make available for inspection to the other party records, books and other documents relating to the to the WATER REPORT PROGRAM. 6. TERM The term of the MOU is from August 1, 2016 to June 30, 2019. The term of the MOU may be extended by mutual written consent of the Parties. This MOU shall be contingent upon approval of program funding each fiscal year by the CITY's City Council and WATER DISTRICT's Board of Directors. In the event such contingency is not met, this MOU terminates on the first day of the fiscal year for which funding is not approved. 7. NOTICE Any notice, payment, credit or instrument required or permitted to be given under this MOU will be in writing and will be mailed postage prepaid and addressed to the respective parties as follows: If to WATER DISTRICT: Santa Clara Valley Water District 5750 Almaden Expressway San Jose, CA 95118 Attn: Jerry De La Piedra If to the CITY: City of Gilroy 613 Old Gilroy St Gilroy, CA 95020 Attn: Dan Aldridge Either party may change such address by notice given to the other party as provided in this Section 6. 8. AMENDMENTS The MOU may only be amended by written agreement executed by both parties. 9. ASSIGNMENT Neither party is allowed to assign, sublet, or transfer this MOU or any of the rights or interests in this MOU without the written consent of the other party. 10. SEVERABILITY The partial or total invalidity of one or more parts of this MOU will not affect the intent or validity or remaining parts of this MOU. 11. GOVERNING LAW This MOU is a contract under the laws of the State of California and for all purposes must be interpreted in accordance with such laws. 12. TERMINATION OF MOU This MOU may be terminated by either party hereto for any reason upon thirty (30) days written notice to the other Party. 13. SIGNATURES The individuals executing this MOU represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. In WITNESS WHEREOF, the parties have executed this MOU as of the effective date. CITY OF GILORY APPROVED AS TO FORM: i`ir►de-Eativrr City Attorney City of Gilroy Gabriel Gonzalez City Alr-n" ; � - City of Gilroy SANTA CLARA VALLEY WATER DISTRICT, a Special District created by the Legislature of the State of California APPROVED AS TO FORM: Anthony Futglier Norma J. Cam ach %s/wV —o41 c .� Sr. Assistant District Counsel Interim Chief Executive Officer, Santa Clara Valley Water District Santa Clara Valley Water District APPENDIX A INSURANCE Each Party represents and warrants that, at its sole cost and expense it will maintain for the duration of the MOU self - insurance against claims for injuries to persons or damages to property that may arise from, or in connection with its (and its agents, representatives', employees' or contractors)' performance of the services and /or operations herein and the indemnity provisions of this MOU. A. Types of Coveraae Coverage provided by said self- insurance programs shall apply to and be in lieu of maintaining General and Auto Liability and Workers' Compensation insurance, as well as Professional Liability Errors and Omissions insurance, when applicable. B. Minimum Limits of Coveraae Coverage for Commercial General and Auto Liability shall be for not less than $1,000,000 per occurrence and aggregate. Coverage for Professional Liability Errors and Omissions shall not be for less than $1,000,000 per claim and aggregate. Coverage for Workers' Compensation coverage shall be as required by the California Labor Code and include Employers Liability limits of not less than $1,000,000 per accident. C. Other Self- Insurance Provisions Each Party's self- insurance coverage applies to the other Party, its officers, employees, agents and contractors as respects: Liability arising out of activities performed by or on behalf of, the insuring Party; products and completed operations of the insuring Party; premises owned, leased or used by the insuring Party; and automobiles owned, hired or borrowed by the insurance Party. Said self- insurance applies fully to any indemnity for the insured Party, its officers, employees, agents and contractors. Each Party's self- insurance coverage shall be primary as respects to insured Party, its officers, employees, agents and contractors. Any insurance or self- insurance maintained by insured Party, its officers, agents, or contractors shall be excess of insuring Party's self- insurance and shall not contribute with it. D. Verification of Coveraae Execution of this MOU shall constitute each Party's representation and warranty as to the coverage required by this MOU, and authority of the person signing the MOU to bind coverage on its behalf. E. Contractors Each Party shall obtain separate evidence of insurance for each contractor /consultant. 4 APPENDIX A INSURANCE Each Party represents and warrants that, at its sole cost and expense it will maintain for the duration of the MOU self- insurance against claims for injuries to persons or damages to property that may arise from, or in connection with its (and its agents, representatives', employees' or contractors)' performance of the services and /or operations herein and the indemnity provisions of this MOU. A. Types of Coverage Coverage provided by said self- insurance programs shall apply to and be in lieu of maintaining General and Auto Liability and Workers' Compensation insurance, as well as Professional Liability Errors and Omissions insurance, when applicable. B. Minimum Limits of Coveraae Coverage for Commercial General and Auto Liability shall be for not less than $1,000,000 per occurrence and aggregate. Coverage for Professional Liability Errors and Omissions shall not be for less than $1,000,000 per claim and aggregate. Coverage for Workers' Compensation coverage shall be as required by the California Labor Code and include Employers Liability limits of not less than $1,000,000 per accident. C. Other Self- Insurance Provisions Each Party's self- insurance coverage applies to the other Party, its officers, employees, agents and contractors as respects: Liability arising out of activities performed by or on behalf of, the insuring Party; products and completed operations of the insuring Party; premises owned, leased or used by the insuring Party; and automobiles owned, hired or borrowed by the insurance Party. Said self- insurance applies fully to any indemnity for the insured Party, its officers, employees, agents and contractors. Each Party's self- insurance coverage shall be primary as respects to insured -Party, its officers, employees, agents and contractors. Any insurance or self- insurance maintained by insured Party, its officers, agents, or contractors shall be excess of insuring Party's self- insurance and shall not contribute with it. D. Verification of Coverage Execution of this MOU shall constitute each Party's representation and warranty as to the coverage required by this MOU, and authority of the person signing the MOU to bind coverage on its behalf. E. Contractors Each Party shall obtain separate evidence of insurance for each contractor /consultant. AGREEMENT FOR SERVICES (For contracts over $5,000 — NON - DESIGN, NON - ENGINEERING TYPE CONTRACTOR) This AGREEMENT made this 1 st day of August, 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 ovtion to be exercised by written notice to be given by City not less than thirty (30) days nor more than sixty (60) days-ph" 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 shall 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- 9892v3 MBRANSON104706091 -1- 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 Artticle.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 KC" ( "Payment Schedule'). In no event however shall the total compensation paid to CONTRACTOR exceed $65.000 per fiscal year. & 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 IV) 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. 4e19,M -9ash -2- M RANSOM047 MI 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 InstrumentaUties 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 Iimitation 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 fio_ m 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) Conimercial 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 aft 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 fiunish 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 -M-9M3 3 -3- MMANSOM0470MOI 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 b. 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 OFAGREEMENT 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 4879,4321 -9M3 mmmsomoami -4- 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 shall 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. 1. 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 temps 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:tfie;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 MMURSONOMM 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 CTTY, 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 forthat 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 laws and all municipal ordinances and regulations. of the C= 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 4819.9341.9M3 MM MSOM047=1 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 far 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. 4619=1-9M3 MSMSON 04706M -7- 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: Smart Utili By. Name: Brad A ke Title: Direct6r of Sales LML.J ,... L% wr.. Social Security or Taxpayer Identification Number 47- 5384753 Approved as to Form City Attorney CITY: CITY OF GILROY By. Name: Gabriel A. Gonzalez Title: City Administrator 4819. 9321- 9892v3 MBRMSON1047OW91 -8- EXHIBIT "A" SPECIFIC PROVISIONS 1. 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 finish 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. 1I. 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 terns 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- M- 9892v3 MB WSM 047MI 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 fumished 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, timecards, 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. 4819-821a8924 -2_ SOMMMI D. CONFIDENTIALITY OF MATERIAL AT 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 fivaished 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 thereof) 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 fiom; 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. mma ssomm7mi -3- 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 I. 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. 1. ' 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. 4819-W-9024 MBRANSON104706091 -4- 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 0000` QtrMobile module that allows customers to view their Water Efficiency Score, See Rebates and Savings Tips, and Enroll in Programs. Connect Me Allows customers to Report Water Waste and Other Violations to Utility a� and to connect with them via Phone or email. My Account • Utility customers can view and manage service account information including billing, payment, and communication preferences. Usage `�� Graphs and charts illustrating consumption, historical comparisons, and ����t� 9 rate plan. Compare Allows customers the ability to compare historical usage rates to current consumption, similar properties, average users, and other characteristics as defined by Utility. Notifications 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 Administration Portal capabilities to download and /or export data to POF and MS Excel. Administrator dashboard to configure messages and to change rules real - time. Investigation Work Management Receive investigation work order information, capture evidence, and complete work orders Conservation Calculate Water Efficiency Score based on customer segment specific Analytics benchmarks, identify high value target customers for conservation • programs, and track conservation program performance based on usage stakeholders 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 Q 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: 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 AMI 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. I. Project Kick -Off 2. Application Fit Gap 3. Deliver: Planning a. Kick -Off Meeting a. Application a. Application b. ID customer Walkthrough Walkthrough Doc stakeholders b. Integration Planning 1. Integration Design 2. Configuration and Design a. Integration design administrative setup b. Access to test data a. Data request delivered c. Database /table data 3. Deliverables The following deliverables are anticipated as a result of the implementation activities in scope of this SOW. mapping Application Walkthrough specifications incorporated into the software package for this Document d. Third -party 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 configuration. user guides will help Client's customers to easily understand the workflow and functionality of each module. c. Utility analytics (WiQ) 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 live 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 (TBD) 1 Day TBD The Application Walkthrough Doc will summarize the standard product Application 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 Gient 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 (TBD) 1 Day TBD Gilroy will escalate issues in the following order, if they remain unresolved at the previous level: Amit Sharma — Delivery/Implementation Director 1 Days amitsharma@smartusys.com Brad Adamske — Sales Director, SUS 3 Days brad. adamske @smartusys.om S. Change Control I. 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 parry. 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• Annval User Licenses (14,000 Ucenses) $5,600 Invoiced upon signing of SOW Investigation Work Management (5 Licenses) Included N/A Smart Water IQAnalytics (5 Licenses) Included N/A Annual Maintenance Fee Included N/A Home Water Report Print Fees (City 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. 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 l, 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. S. SUS mobile applications will be made available for i0S 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. B. 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. Other Terms 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 in.temal 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. Y.... . 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: SCM9 Annual User Licenses (14,000 Licenses) Investigation Work Management (5 Licenses) Smart Water iQ Analytics (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 $9,500' 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 M NO76091 -5- Exhibit D END -USER LICENSE AGREEMENT ( "EULA") This End -User License Agreement (this "Agreement") is entered into as of Au ust 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. 12. "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 SWiQ7m 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. -1- 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 NO Severity 3 — Minimal :business impact with alternatives (iv) Severity 4 — Cosmetic Issues or documentation issues -2- M 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 959/ 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 (Confideritra! 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 Discloser's 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 llegal 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. It's 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. Licensor's 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 will, 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. Cianfications & 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 51 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 Domages) 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 parry in any action. 10. TERMINATION. 10A.. 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- X 115.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. 11.6.5everability. 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 wii.l 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 ONLY BE AMENDED IN WRrFING BY AUTHORIZED REPRESENTATIVES OFEACH PARTY. -8- oAU rwuj TI MB CERWICATiON IB'ISSUIED AS A BEBOtICoaetineuivIm ONLY AND CONFERS NO RIO M 29SpierAveSle.Q NOW - ER..THIS CERTIFICATE DOES NOT AAAEND, EXTEND -OR Herrltoma Betrah . CA 9025.0 ALTER TM COVERAGE APPOROED INY THE POUCE:S BELOW. .310- 11*1666.f -3104II&I860. Chds®beachc*Wmretm=n _ ;INSURERS .AFFORQAyG.COVERAGE NAICA INISUF =m :iNvimA. Travetera :Cam Co.dAmmloa, Srllart l7t>4ty ajeterrat Ina INaUR6R m . _ Travelers Co: of Airteiles 1990D tdtrcArtliltt Blvd '91e 370 us3u6ea� 1YarleRre Pr�erty CO. of Atnerba a. IrvUe..CA.92812 OMMR Am Trumt'NwbAmerft - INs mR Et _ a Of'LblidOn inalamrlDe SyraL ANY REOLVAMENT, TM OR :COtV !TIM OR ANY COAT R= OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE b1AY W 0- SUER OR' MAY PERTAIN,'DE INWJRANCE: AFFORDED BY. THE POWFS DESCRIBED HEREIN IS 8U&= TO ALL THE TUOA E=LUSIM AND CONDITIONS OF SUCH POLICIES. AWRBGATE G611176 SHOWN MAY HAVE BEEN REDUCED BY PAID CU M& py L TYPa0PaV8101AN0E'. POLtDYNYrA6pt gym= 08101/2017 uwn A . Y 06WALUANLRY X•. CCMIbtlAgllLOeNERA1 lUlalltTY CLAIMS MADE ®COCUR ZLP- 91MOOZOA 05/0112016 i t:ncNO=IJ s _ 1000.000 i 30D000 MD ERP � . q s 1 D.®00 PEPSONALaAwimm s 1AMWD X Gen 'A .ParPOR gsmaLAamgmATE s 2:000.000 06M+4TELamTAVPUaet X PoacY m FiLoc - COMPr0PAe9 S RuMnems PrOpeKyt $ . 800 IS Y I AWT==IlR X X R UW LnY ANYAJrO AuowMAUros aoNtllxx.EO Auras ►sasoauras NW0A EDAUr08 BA-2HS91568 06J0!lT016 ' .00/01/201 i comaMb emrm-e UAW ' te.eo s 1,OQO,OOD �eoal ROAM a. hro moalLy PhKw tPlra Mny a lo, Ina, a Ina eARAa9ltA60.lry AWAM AM0WY- "AC00W 6 CTf1ER TWW EAA06 Ago ONLY: AOD 6 e C Y eltcBaealM>,geLCA 7X. 00= Q t.1 CLAW MADE ' OEDUCSm3l,E m ZUP 41 N582 0610112.016 0}2017 RACH 0=AU NCE 700000 AOOREMTE a 7,000.0m s m I D RSOOa>PeNauroNANO. Ymas•za�eerr 0MCNAIIIIINIM LWULUDW ' m tlowAmwMr TM -368M 08!0112018 O81D112017 X E.L EARN ACCIO W m 1,000.000 LL-CW Aae.aA m 1.000,000' LL ulmeASa -KLW UMIT• s 1 000 0DD tc anlert PrOfesmlorrei E&O. Cyber & Privacy OW 6 EPU ESE -01!6269.0 090-16643142 1211=015 12/1012096 $10.00DJW Agprmts 85,000.006 AQg. Eff DeWull 1ISM6-04/161i7l �molaPrwa�ovaaATaxtmrlocxnopalvaraocesr >!>vnuro A �rEe> rr�eraa.PROVACM RlalcSOthaate . Addlaotlal !neared Zr Of G IIAW.. its Ott MM. eqgoyaes. and repreaental m: WmWe m of Subropatlon.lnduded for Woftm COmperisallon. General LIB My . Umbrella and Auto comep. GC forms Wuded.' Ln�w:er:w � wn • eNaa,OAar�tiR�ovsvolamsee e�oae�maTafA7rox CRY of G9roy. b ofllcerm. cAl ElNarOW .TMtSWA90INBMltWLLENOEA"R MMRL 3Q CAn, YRlrTalo Wdels and emplayeem 7351 Roaanne Sb eet K0=0MTN GER7WWAlBWW aRWA M0 TO TWLWT IlUT.9lm =*1000 900O LL Mvy. CA 96020 m E NO a�taAll aR t tnmurrorArt+r Nm>D Upo» 1Htr atsta+ER, lls pomp rs oR 'nvM. ••J POLICY NUMBER: ZLP- 91MG029 A Date: 0811612016 COMMERCIAL. GENERAL LIABIUTY Smart Utility Systems Inc. CPkCGA 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 hum- ed(s): The City of Gtiroy, Its officers, agents and employees, are named as additional. inmveds (if no entry appears above, the Information required to complete this endorsement will be shown In applicable to this endorsement) A. Section ;ll - Who Is An Insured Is amended to Include as an.addittonal Insured the person(s) or organization(s) shown In. the Schedule, but only with respect to ilability 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 malntalned by the City of Gilroy shall be excess and not coWbuft with the insurance provided by this policy. Said policy shall not terintnate nor shall It be cancelled or reduced until thirty (30) days after written notice to the city. CPA CGA 2410 07 as