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VertexOne Software LLC; 2022-08-30;
General Counsel Approved Version 12/28/2022 1 , a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad and VertexOne Software, LLC, a Delaware public benefit corporation A. B. C. D. E. F. The Agreement, as amended from time to time expired on August 29, 2025 and Contractor continued to work on the services specified therein without the benefit of an agreement G. General Counsel Approved Version 12/28/2022 2 CONTRACTOR CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad By: By: (sign here) Assistant Executive Manager (print name/title) ATTEST: By: SHERRY FREISINGER, Secretary (sign here) By Morgan Fry, Assistant Secretary (print name/title) If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, General Counsel By:_____________________________ Deputy General Counsel INSR ADDLSUBRLTRINSRWVD DATE (MM/DD/YYYY) PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) COMMERCIAL GENERAL LIABILITY AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE INSURER(S) AFFORDING COVERAGE NAIC # Y / N N / A (Mandatory in NH) ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? EACH OCCURRENCE $ DAMAGE TO RENTED $PREMISES (Ea occurrence)CLAIMS-MADE OCCUR MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ $ PRO- OTHER: LOCJECT COMBINED SINGLE LIMIT $(Ea accident) BODILY INJURY (Per person)$ANY AUTO OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS AUTOS ONLYHIRED PROPERTY DAMAGE $AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE $ CLAIMS-MADE AGGREGATE $ DED RETENTION $$ PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below POLICY NON-OWNED SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) ACORDTM CERTIFICATE OF LIABILITY INSURANCE Travelers Indemnity Company Travelers Property Cas. Co. of America Columbia Casualty Company Travelers Indemnity Company of CT 10/08/2025 USI Southwest Dallas /CL 14241 Dallas Pkwy STE 700 Dallas, TX 75254 214 443-3100 Dallas Fierro 214 443-3100 214 443-3900 Dallas.Fierro@usi.com VTX Holdings, Inc 1321 Upland Drive Suite 8389 Houston, TX 77043-1142 25658 25674 31127 25682 A X X X ZLP21P4400125 07/23/2025 07/23/2026 1,000,000 1,000,000 10,000 1,000,000 2,000,000 2,000,000 D X X BA0P76127725 07/23/2025 07/23/2026 1,000,000 B X X X 10,000 CUP0P96004525 07/23/2025 07/23/2026 15,000,000 15,000,000 B N UB0P53248125 07/23/2025 07/23/2026 X 1,000,000 1,000,000 1,000,000 C Errors and Omissions/Cyber 596609670 10/01/2025 07/23/2026 $10,000,000 (Technology & Professional Liability) City of Carlsbad/CMWD c/o EXIGIS is named as Additional Insured as required by written contract, as it relates to General Liability in accordance with the terms & conditions of the policy. Waiver of Subrogation on the Workers Compensation policy in favor of the City of Carlsbad/CMWD as required by written contract, in accordance with the terms & conditions of the policy. City of Carlsbad/CMED c/o EXIGIS PO Box 4668 - ECM #35050 New York, NY 10163-0000 1 of 1 #S51245450/M51065623 VERTEUSClient#: 1635823 DAFZZ 7 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM The following is added to Paragraph c. in A.1., Who Is An Insured, of SECTION II - COVERED AUTOS LIABILITY COVERAGE in the BUSINESS AUTO COVERAGE FORM and Paragraph e. in A.1., Who Is An Insured, of SECTION II - COVERED AUTOS LIABILITY COVERAGE in the MOTOR CARRIER COVERAGE FORM, whichever Coverage Form is part of your policy: This includes any person or organization who you are required under a written contract or agreement between you and that person or organization, that is signed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, to name as an additional insured for Covered Autos Liability Coverage, but only for damages to which this insurance applies and only to the extent of that person's or organization's liability for the conduct of another "insured". CA T4 37 02 16 © 2016 The Travelers Indemnity Company. All rights reserved . Includes copyrighted material of Insurance Services Office, Inc. with its permission. Page 1 of 1 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET WAIVER OF SUBROGATION This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM The following replaces Paragraph A.5., Transfer of Rights Of Recovery Against Others To Us, of the CONDITIONS Section: 5. Transfer Of Rights Of Recovery Against Oth- ers To Us We waive any right of recovery we may have against any person or organization to the extent required of you by a written contract executed prior to any "accident" or "loss", provided that the "accident" or "loss" arises out of the operations contemplated by such contract. The waiver ap- plies only to the person or organization desig- nated in such contract. CA T3 40 0215 02015 The Travelers Indemnity Company. All rights reserved. Includes copyrighted material of Insurance Services Office, Inc. with its permission. Page 1 of 1 ENDORSEMENT WC 00 03 13 (00) - POLICY NUMBER: EMPLOYERS LIABILITY POLICY AND WORKERS COMPENSATION WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT 001 ONE TOWER SQUAREHARTFORD CT 06183 We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule. SCHEDULE DESIGNATED ORGANIZATION: DESIGNATED PERSON: DATE OF ISSUE:PAGEST ASSIGN:OF Any person or organization for which the employer has agreed by written contract, executed prior to loss, may execute a waiver of subrogation. However, for purposes of work performed by the employer in Missouri, this waiver of subrogation does not apply to any construction group of classifications as designated by the waiver of right to recover from others (subrogation) rule in our manual. ANY PERSON OR ORGANIZATION FOR WHICH THE INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. UB-0P532481-25 07-23-25 1 1 1 City Attorney Approved 5/30/2025 ASSIGNMENT AND ASSUMPTION AGREEMENT FOR SOFTWARE SERVICES made and entered into this _______ day of ___________ 2025, by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the CMWD of Carlsbad, ("CMWD"), WaterSmart Software, Inc, a Delaware public benefit corporation , and VertexOne Software, LLC, a Delaware public benefit corporation and is made with reference to the following facts: RECITALS A. On August 30, 2022, the Carlsbad Municipal Water District (CMWD) and Assignor entered into a Professional Services Agreement concerning Software Services B. Section 24 of the Agreement allows Assignor to assign rights and obligations under the Agreement upon written approval of the CMWD. C. VertexOne completed a series of strategic legal entities mergers to align the corporate entities acquired through acquisition the complexity of managing multiple entities. Mergers are effective as of March 31, 2025. D. Assignor desires to assign its interest in the Agreement to Assignee. Further, MWD consents to the assignment of the interest in the Agreement from Assignor to Assignee. NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and obligations set forth in this Assignment Agreement, the Parties agree as follows: 1. Assignment. Assignor assigns, transfers, and conveys to Assignee all of , duties, liabilities, and obligations as set forth in the Agreement. 2. Assumption , duties, liabilities, and obligations as set forth in the Agreement. 3. CMWD Consent. CMWD agrees and consents to the assignment of all of , duties, liabilities, and obligations as set forth in the Agreement to Assignee. 4. General Terms and Conditions. The following general terms and conditions shall apply to this Assignment Agreement. 4.1 Hold Harmless. In addition to the hold harmless provisions contained within the Agreement, and except as to the sole negligence, or willful misconduct of CMWD, Assignee shall defend, indemnify and hold the CMWD, its officials (appointed and elected), officers and employees, harmless from any and all loss, damage, claim for damage, liability, expense or cost, including attorney fees, which arise out of or is in any way connected with this Assignment 2 City Attorney Approved 5/30/2025 Agreement, notwithstanding that CMWD may have benefitted from this Assignment Agreement. The hold harmless provision shall apply to any acts or omissions, willful misconduct or negligent conduct, whether active or passive, on the part of Assignee. The parties expressly agree that this section shall survive the expiration or early termination of this Agreement. 4.2. Counterparts. This Assignment Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 4.3. Successors and Assigns. It is mutually understood and agreed that this Assignment Agreement shall be binding upon CMWD, Assignor and Assignee and their respective successors. Neither this Assignment Agreement or any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of CMWD. 4.4. Governing Law. This Assignment Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of California. 4.5. Venue. Any action at law or in equity brought by the Parties for the purpose of enforcing a right or rights provided for by this Assignment Agreement shalt be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in such proceedings to any other county. 4.6. Notices. Service of any notices, bills, invoices or other documents required or permitted under this Assignment Agreement shall be sufficient if sent by one party to the other(s) by United States mail, postage prepaid and addressed as follows: CMWD: Carlsbad Municipal Water District Executive Manager City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Assignor: WaterSmart Software, Inc 1321 Upland Dr, Ste 8389 Houston, TX 77043 Assignee: VertexOne Software, LLC 1321 Upland Dr, Ste 8389 Houston, TX 77043 4.7 Authority. The parties executing this Assignment Agreement on behalf of CMWD, Assignor and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the CMWD, Assignor and Assignee, respectively, to the terms and conditions of the Assignment Agreement. 3 City Attorney Approved 5/30/2025 4.8 Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part of the provision shall be severed from this Assignment Agreement and shall not affect any other provision, term, condition, covenant, and/or restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue in full force and effect. /// /// /// /// /// /// /// /// /// /// /// /// /// 4 City Attorney Approved 5/30/2025 4.9 Effective Date. This Assignment Agreement shall be effective upon the date and year first above written. ASSIGNOR: WaterSmart Software, Inc. CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad *By: (sign here) By: Assistant Executive Manager (print name/title) **By: (sign here) ATTEST: SHERRY FREISINGER, Secretary (print name/title) ASSIGNEE: By VertexOne Software, LLC Morgan Fry, Assistant Secretary *By: (sign here) (print name/title) **By: (sign here) (print name/title) If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups: *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, General Counsel By:_____________________________ Deputy General Counsel General Counsel Approved Version 12/28/2022 1 , a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad and WaterSmart Software, Inc, a Delaware public benefit corporation A. B. C. D. Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 AMENDMENT NO. 2 TO EXTEND THE AGREEMENT FOR SOFTWARE SERVICES WATERSMART SOFTWARE, INC This Amendment No. 2 is entered into and effective as of the 14th day of August 2024, extending the agreement dated August 30, 2022 (the "Agreement") by and between the Carlsbad Municipal Water District ("CMWD"), (collectively, the "Parties"). RECITALS , California ("Contractor'') On August 30, 2022, the Parties executed the Agreement to implement and maintain the WaterSmart software solution platform; and The Agreement is effective for a one-year period, and allows for four (4) additional one (1) year extensions; and The Parties executed Amendment No. 1 on August 9, 2023, to extend the Agreement for a period of one (1) year ending on August 29, 2024. The Parties desire to extend the Agreement for a period of one (1) year starting on August 30, 2024. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on August 29, 2025. 2. The total fee payable under this amendment will be Fifty-Four Thousand, Nine Hundred and Sixty-Eight Dollars and Thirty-Two Cents ($54,968.32). 3. All other provisions of the Agreement, as may have been amended from time to time, shall remain in full force and effect. 4. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, shall include coverage for this Amendment. Ill Ill Ill Ill General Counsel Approved Version 12/28/2022 2 CONTRACTOR CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad By: By: (sign here) Assistant Executive Manager (print name/title) ATTEST: By: (sign here) SHERRY FREISINGER Secretary (print name/title) If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, General Counsel By:_____________________________ Deputy General Counsel Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 4. The individuals executing this Amendment and the instruments referenced on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions hereof of this Amendment. ~ __ bUJ~ff~P_o.ftM_t-___ _ Andrew Jornod CEO for (sign here) SHERRY FREISINGER Keith Foerster CFO INSR ADDL SUBRLTRINSR WVD DATE (MM/DD/YYYY) PRODUCER CONTACTNAME:FAXPHONE(A/C, No):(A/C, No, Ext):E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) COMMERCIAL GENERAL LIABILITY AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE INSURER(S) AFFORDING COVERAGE NAIC # Y / N N / A (Mandatory in NH) ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? EACH OCCURRENCE $ DAMAGE TO RENTED $PREMISES (Ea occurrence)CLAIMS-MADE OCCUR MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ $ PRO- OTHER: LOCJECT COMBINED SINGLE LIMIT $(Ea accident) BODILY INJURY (Per person) $ANY AUTO OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS AUTOS ONLYHIRED PROPERTY DAMAGE $AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE $ CLAIMS-MADE AGGREGATE $ DED RETENTION $$ PER OTH-STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below POLICY NON-OWNED SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) TM CERTIFICATE OF LIABILITY INSURANCE Travelers Indemnity Co of America Travelers Property Casualty Ins. Co Travelers Casualty and Surety Company Columbia Casualty Company Travelers Indemnity Company of CT 7/31/2024 USI Southwest, Inc. 14241 Dallas Pkwy, STE 700 Dallas, TX 75254 214 443-3100 Kari Compton 214 443-3100 214 443-3900 kari.compton@usi.com WaterSmart Software, Inc. 20 California St.# 200 San Francisco, CA 94111 25666 36161 19038 31127 25682 A X X ZLP21P4400124 07/23/2024 07/23/2025 1,000,000 1,000,000 10,000 1,000,000 2,000,000 2,000,000 E X X BA0P76127724 07/23/2024 07/23/2025 1,000,000 B X X X 10,000 CUP0P96004524 07/23/2024 07/23/2025 15,000,000 C N UB0P53248124 07/23/2024 07/23/2025 X 1,000,000 1,000,000 1,000,000 D Errors & Omissions 596609670 12/06/2023 04/01/2025 $10,000,000 (Technology & Professional Liability City of Carlsbad/CMWD c/o EXIGIS is named as Additional Insured as required by written contract, as it relates to General Liability in accordance with the terms & conditions of the policy. Waiver of Subrogation on the Workers Compensation policy in favor of the City of Carlsbad/CMWD as required by written contract, in accordance with the terms & conditions of the policy. City of Carlsbad/CMED c/o EXIGIS PO Box 4668 - ECM #35050 New York, NY 10163 1 of 1#S45738550/M45621297 VERTEUSClient#: 1635823 SACT1 of 1#S45738550/M45621297 Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 ACORD I I f--D □ f-- f-- f-- Fl □ □ f-- f--- f--- f--- f--H I I I I I □ WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT 3 4 Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 ~ TRAVELERSJ , ONE TOWER SQUARE HARTFORD CT 06183 WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 00 03 13 (00) -001 POLICY NUMBER: UB-0P532481-2 -IS-G We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule. SCHEDULE DESIGNATED PERSON: DESIGNATED ORGANIZATION: ANY PERSON OR ORGANIZATION FOR WHICH THE INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. Any person or organization for which the employer has agreed by written contract, executed prior to loss, may execute a waiver of subrogation. However, for purposes of work performed by the employer in Missouri, this waiver of subrogation does not apply to any construction group of classifications as designated by the waiver of right to recover from others (subrogation) rule in our manual. DATE OF ISSUE: 07-28-2 ST ASSIGN: PAGE 1 OFl P76127724Policy #: BA0 Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET WAIVER OF SUBROGATION This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM The following replaces Paragraph A.5., Transfer of Rights Of Recovery Against Others To Us, of the CONDITIONS Section: 5. Transfer Of Rights Of Recovery Against Oth- ers To Us We waive any right of recovery we may have against any person or organization to the extent required of you by a written contract executed prior to any "accident" or "loss", provided that the "accident" or "loss" arises out of the operations contemplated by such contract. The waiver ap- plies only to the person or organization desig- nated in such contract. CA T3 40 0215 © 2015 The Travelers Indemnity Company. All rights reserved. Page 1 of 1 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Policy #: BA0P76127724 Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM The following is added to Paragraph c. in A.1., Who Is An Insured, of SECTION II -COVERED AUTOS LIABILITY COVERAGE in the BUSINESS AUTO COVERAGE FORM and Paragraph e. in A.1., Who Is An Insured, of SECTION II -COVERED AUTOS LIABILITY COVERAGE in the MOTOR CARRIER COVERAGE FORM, whichever Coverage Form is part of your policy: This includes any person or organization who you are required under a written contract or agreement between you and that person or organization, that is signed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, to name as an additional insured for Covered Autos Liability Coverage, but only for damages to which this insurance applies and only to the extent of that person's or organization's liability for the conduct of another "insured". CA T4 37 0216 © 2016 The Travelers Indemnity Company. All rights reserved . Page 1 of 1 Includes copyrighted material of Insurance Services Office, Inc. with its permission. 707/23/202424 Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 POLICY NUMBER: ZLP-21P44OO1-ISSUE DATE: THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED PERSON OR ORGANIZATION -NOTICE OF CANCELLATION PROVIDED BY US This endorsement modifies insurance provided under the fol lowing: ALL COVERAGE PARTS INCLUDED IN THE POLICY SCHEDULE Cancellation: Number of Days Notice: 30 Person or organization: ANY PERSON OR ORGANIZATION TO WHOM YOU HAVE AGREED IN A WRITTEN CONTRACT THAT NOTICE OF CANCELLATION OF THIS POLICY WILL BE GIVEN, BUT ONLY IF: 1. YOU SEND US A WRITTEN REQUEST TO PROVIDE SUCH NOTICE, INCLUDING THE NAME AND ADDRESS OF SUCH PERSON OR ORGANIZATION, AFTER THE FIRST NAMED INSURED RECEIVES NOTICE FROM US OF THE CANCELLATION OF THIS POLICY; AND 2. WE RECEIVE SUCH WRITTEN REQUEST AT LEAST 14 DAYS BEFORE THE BEGINNING OF THE APPLICABLE NUMBER OF DAYS SHOWN IN THIS ENDORSEMENT. Address: THE ADDRESS FOR THAT PERSON OR ORGANIZATION INCLUDED IN SUCH WRITTEN REQUEST FROM YOU TO US. PROVISIONS If we cancel this policy for any legally permitted reason other than nonpayment of premium, and a number of days is shown for Cancellation in the Schedule above, we will mail notice of cancellation to the person or organization shown in such Schedule. We will mail such notice to the address shown in the Schedule above at least the number of days shown for Cancellation in such Schedule before the effective date of cancellation. IL T4 05 05 19 © 20 19 The Travelers Indemnity Company. All rights reserved. Page 1 of 1 Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 II -Who Is An Insured, except when Paragraph d. below applies. (b) Any of the other insurance, whether primary, excess, contingent or on any other basis, that is available to the insured when the insured is an additional insured, or is any other insured that does not qualify as a named insured, under such other insurance. (2) When this insurance is excess, we wi 11 have no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we wi 11 undertake to do so, but we wi 11 be entitled to the insured's rights against a 11 those other insurers. (3) When this insurance is excess over other insurance, we wi 11 pay only our share of the amount of the loss, if any, that exceeds the sum of: (a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (b) The total of all deductible and self-insured amounts under al I that other insurance. (4) We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of a 11 insurers. COMMERCIAL GENERAL LIABILITY d. Primary And Non-Contributory Insurance If Required By Written Contract If you specifically agree in a written contract or agreement that the insurance afforded to an insured under this Coverage Part must apply on a primary basis, or a primary and non-contributory basis, this insurance is primary to other insurance that is avai I able to such insured which covers such insured as a named insured, and we will not share with that other insurance, provided that: The "bodily injury" or "property damage" for which coverage is sought occurs; and (2) The "personal and advertising injury" for which coverage is sought is caused by an offense that is committed; subsequent to the signing of that contract or agreement b'y'. you. 5. Premium Audit a. We will compute all premiums for this Coverage Part in accordance with our rules and rates. b. Premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of each audit period we will compute the earned premium for that period and send notice to the first Named Insured. The due date for audit and retrospective premiums is the date shown as the due date on the bill. If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium, we wi 11 return the excess to the first Named Insured. c. The first Named Insured must keep records of the information we need for premium computation, and send us copies at such times as we may request. 6. Representations By accepting this pol icy, you agree: a. The statements in the Declarations are accurate and complete; b. Those statements are based upon representations you made to us; and c. We have issued this policy in reliance upon your representations. CG T1 00 02 19 © 2017 The Travelers Indemnity Company. All rights reserved. Page 17 of 23 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Policy #ZLP21P4400124 Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. XTEND ENDORSEMENT FOR TECHNOLOGY This endorsement modifies insurance provided under the fol lowing: COMMERCIAL GENERAL LIABILITY COVERAGE PART GENERAL DESCRIPTION OF COVERAGE -This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to this Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general coverage description only. Read all the provisions of this endorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered. A. Non-Owned Watercraft -75 Feet Long Or Less B. Who Is An Insured -Unnamed Subsidiaries C. Who Is An Insured -Employees - Supervisory Positions D. Who Is An Insured -Newly Acquired Or Formed Limited Liability Companies E. Who Is An Insured -Liability For Conduct Of Unnamed Partnerships Or Joint Ventures F. Blanket Additional Insured -Persons Or Organizations For Your Ongoing Operations As Required By Written Contract Or Agreement G. Blanket Additional Insured -Broad Form Vendors PROVISIONS A. NON-OWNED WATERCRAFT 75 FEET LONG OR LESS 1. The following replaces Paragraph (2) of Exclusion g., Aircraft, Auto Or Watercraft, in Paragraph 2. of SECTION I -COVERAGES -COVERAGE A -BODILY INJURY AND PROPERTY DAMAGE LIABILITY: (2) A watercraft you do not own that is: (a) 75 feet long or less; and (b) Not being used to carry any person or property for a charge; 2. The fol lowing replaces Paragraph 2.e. of SECTION II -WHO IS AN INSURED: e. Any person or organization that, with your express or implied B. H. Blanket Additional Insured -Controlling Interest I. Blanket Additional Insured -Mortgagees, Assignees, Successors Or Receivers J. Blanket Additional Insured -Governmental Entities Permits Or Authorizations Relating To Premises K. Blanket Additional Insured -Governmental Entities -Permits Or Authorizations Relating To Operations L. Medical Payments -Increased Limit M. Blanket Waiver Of Subrogation N. Contractual Liabi I ity -Rai I roads 0. Damage To Premises Rented To You consent, either uses or responsible for the use of watercraft that you do not own is: (1) 75 feet long or less; and (2) Not being used to carry is a that any person or property for a charge. WHO IS AN INSURED UNNAMED SUBSIDIARIES The following is added to SECTION II WHO IS AN INSURED: Any of your partnership or shown as a Declarations is subsidiaries, other joint venture, that Named Insured a Named Insured if: than a is not in the a. You are the sole owner of, or maintain an ownership interest of more than 50% in, such subsidiary on the first day of the pol icy period; and CG D4 17 02 19 © 2017 The Travelers Indemnity Company. All rights reserved. Page 1 of 5 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 COMMERCIAL GENERAL LIABILITY b. Such subsidiary is not an insured under s i mi I ar other insurance. No such subsidiary is an insured for "bodily injury" or "property damage" that occurred, or "personal and advertising injury" caused by an offense committed: a. Before you maintained an ownership interest of more than 50% in such subsidiary; or b. After the date, if any, during the policy period that you no longer maintain an ownership interest of more than 50% in such subsidiary. For purposes of Paragraph 1. of Section II -Who Is An Insured, each such subsidiary will be deemed to be designated in the Declarations as: a. A limited liability company; b. An organization other than a partnership, joint venture or limited liability company; or c. A trust; as indicated in its name or the documents that govern its structure. C. WHO IS AN INSURED -EMPLOYEES - SUPERVISORY POSITIONS The fol lowing is added to Paragraph 2.a.(1) of SECTION II -WHO IS AN INSURED: Paragraphs (1)(a), (b) and (cl above do not apply to "bodily injury" to a co- "employee" while in the course of the co-"employee's" employment by you arising out of work by any of your "employees" who hold a supervisory position. D. WHO IS AN INSURED -NEWLY ACQUIRED OR FORMED LIMITED LIABILITY COMPANIES The fol lowing replaces Paragraph 3. of SECTION II -WHO IS AN INSURED: 3. Any organization you newly acquire or form, other than a partnership or joint venture, and of which you are the sole owner or in which you maintain an ownership interest of more than 50%, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only: (1) Unt i I the 180th day after you acquire or form the organization or the end of the pol icy period, whichever is earlier, if you do not report such organization in writing to us within 180 days after you acquire or form it; or (2) Unt i I the end of the po Ii cy period, when that date is later than 180 days after you acquire or form such organization, if you report such organization in writing to us within 180 days after you acquire or form it; b. Coverage A does not "bodily injury" or damage" that occurred acquired or formed ization; and apply to "property before you the organ- c. Coverage B does not apply to "personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. For the purposes of Paragraph 1. of Section II -Who Is An Insured, each such organization will be deemed to be designated in the Declarations as: a. A limited liability company; b. An organization, other than a partnership, joint venture or limited liability company; or c. A trust; as indicated in its name or the documents that govern its structure. E. WHO IS AN INSURED LIABILITY FOR CONDUCT OF UNNAMED PARTNERSHIPS OR JOINT VENTURES The fo 11 owing rep I aces the I ast paragraph of SECTION II -WHO IS AN INSURED: No person or organization is an insured with respect to the conduct of any current or past partnership or joint venture that is not shown as a Named Insured in the Declarations. This paragraph does not apply to any such partnership or joint venture that otherwise qua Ii fies as an insured under Section II -Who Is An Insured. F. BLANKET ADDITIONAL INSURED -PERSONS OR ORGANIZATIONS FOR YOUR ONGOING OPERATIONS AS REQUIRED BY WRITTEN CONTRACT OR AGREEMENT The fo 11 owing is added to SECTION II - WHO IS AN INSURED: Any person or organization that is not otherwise an insured under this Coverage Part and that you have agreed in a written Page 2 of 5 © 2017 The Travelers Indemnity Company. All rights reserved. CG D4 17 02 19 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 contract or agreement to include as an additional insured on this Coverage Part is an insured, but only with respect to I iabi I ity for "bodily injury" or "property damage" that: a. Occurs subsequent to the signing of that contract or agreement; and b. Is caused, in whole or in part, by your acts or omissions in the performance of your ongoing operations to which that contract or agreement applies or the acts or omissions of any person or organization performing such operations on your behalf. The limits of insurance provided to such insured will be the minimum limits that you agreed to provide in the written contract or agreement, or the limits shown in the Declarations, whichever are less. G. BLANKET ADDITIONAL INSURED -BROAD FORM VENDORS The fo 11 owing is added to SECTION II - WHO IS AN INSURED: Any person or organization that is a vendor and that you have agreed in a written contract or agreement to include as an additional insured on this Coverage Part is an insured, but only with respect to liability for "bodily injury" or "property damage" that: a. Occurs subsequent to the signing of that contract or agreement; and b. Arises out of "your products" that are distributed or sold in the regular course of such vendor's business. The insurance provided to such vendor is subject to the fol lowing provisions: a. The limits of insurance provided to such vendor will be the minimum limits that you agreed to provide in the written contract or agreement, or the limits shown in the Declarations, whichever are less. b. The insurance provided to such vendor does not apply to: (1) Any express warranty not authorized by you or any distribution or sale for a purpose not authorized by you; (2) Any change in "your products" made by such vendo~ (3) Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the COMMERCIAL GENERAL LIABILITY manufacturer, and then repackaged in the original container; (4) Any failure to make such inspections, adjustments, tests or servicing as vendors agree to perform or normally undertake to perform in the regular course of business, in connection with the distribution or sale of "your products"; (5) Demonstration, installation, servicing or repair operations, except such operations performed at such vendor's premises in connection with the sale of "your products"; or (6) "Your products" that, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or on behalf of such vendor. Coverage under this provision does not apply to: a. Any person or organization from whom you have acquired "your products", or any ingredient, part or container entering into, accompanying or containing such products; or b. Any vendor for which coverage as an additional insured specifically is scheduled by endorsement. H. BLANKET ADDITIONAL INSURED -CONTROLLING INTEREST 1. The fo 11 owing is added to SECTION II - WHO IS AN INSURED: Any person or organization that has financial control of you is an insured with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" that arises out of: a. Such financial control; or b. Such person's or organization's ownership, maintenance or use of premises leased to or occupied by you. The insurance provided to such person or organization does not apply to structural alterations, new construction or demo I it ion operations performed by or on behalf of such person or organization. 2. The following is added to Paragraph 4. of SECTION II -WHO IS AN INSURED: This paragraph does not apply to any premises owner, manager or lessor that has financial control of you. CG D4 17 02 19 © 2017 The Travelers Indemnity Company. All rights reserved. Page 3 of 5 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 COMMERCIAL GENERAL LIABILITY I. BLANKET ADDITIONAL INSURED MORTGAGEES, ASSIGNEES, SUCCESSORS OR RECEIVERS The fo 11 owing is added to SECTION II - WHO IS AN INSURED: Any person or organization that is a mortgagee, assignee, successor or receiver and that you have agreed in a written contract or agreement to include as an additional insured on this Coverage Part is an insured, but only with respect to its liability as mortgagee, assignee, successor or receiver for "bodily injury", "property damage" or "personal and advertising injury" that: a. Is "bodily injury" or "property damage" that occurs, or is "personal and advertising injury" caused by an offense that is committed, subsequent to the signing of that contract or agreement; and b. Arises out of the ownership, maintenance or use of the premises for which that mortgagee, assignee, successor or receiver is required under that contract or agreement to be included as an additional insured on this Coverage Part. The insurance provided to such mortgagee, assignee, successor or receiver is subject to the fol lowing provisions: a. The limits of insurance provided to such mortgagee, assignee, successor or receiver will be the minimum limits that you agreed to provide in the written contract or agreement, or the limits shown in the Declarations, whichever are less. b. The insurance provided to such person or organization does not apply to: (1) Any "bodily injury" or "property damage" that occurs, or any "personal and advertising injury" caused by an offense that is committed, after such contract or agreement is no longer in effect; or (2) Any "bodily injury", "property damage" or "personal and advertising injury" arising out of any structural alterations, new construction or demo I it ion operations performed by or on behalf of such mortgagee, assignee, successor or receiver. J. BLANKET ADDITIONAL INSURED -GOVERNMENTAL ENTITIES PERMITS OR AUTHORIZATIONS RELATING TO PREMISES The fo 11 owing is added to SECTION II - WHO IS AN INSURED: Any governmental entity that has issued a permit or authorization with respect to premises owned or occupied by, or rented or loaned to, you and that you are required by any ordinance, law, bui I ding code or written contract or agreement to include as an additional insured on this Coverage Part is an insured, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of the existence, ownership, use, maintenance, repair, construction, erection or removal of any of the following for which that governmental entity has issued such permit or authorization: advertising signs, awnings, canopies, ce 11 ar entrances, coa I holes, driveways, manholes, marquees, hoist away openings, sidewalk vaults, elevators, street banners or decorations. K. BLANKET ADDITIONAL INSURED GOVERNMENTAL ENTITIES PERMITS OR AUTHORIZATIONS RELATING TO OPERATIONS The fo 11 owing is added to SECTION II - WHO IS AN INSURED: Any governmental entity that has issued a permit or authorization with respect to operations performed by you or on your behalf and that you are required by any ordinance, law, bui I ding code or written contract or agreement to include as an additional insured on this Coverage Part is an insured, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of such operations. The insurance provided to such governmental entity does not apply to: a. Any "bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the governmental entity; or b. Any "bodily injury" or "property damage" included in the "products- completed operations hazard". L. MEDICAL PAYMENTS -INCREASED LIMIT The fol lowing replaces Paragraph 7. of SECTION Ill -LIMITS OF INSURANCE: 7. Subject to Paragraph 5. above, the Medical Expense Limit is the most we wi 11 pay under Coverage C for a 11 medical expenses because of "bodily injury" sustained by any one person, Page 4 of 5 © 2017 The Travelers Indemnity Company. All rights reserved. CG D4 17 02 19 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Docusign Envelope ID: AD8CFFA9-3A82-450C-8EBB-AB027D83A522 and wi 11 be the higher of: a. $10,000; or b. The amount shown in the Declarations of this Coverage Part for Medical Expense Limit. M. BLANKET WAIVER OF SUBROGATION The fol lowing is added to Paragraph 8., Tran sf er Of Rights Of Recovery Against Others To Us, of SECTION IV COMMERCIAL GENERAL LIABILITY CONDITIONS: If the insured has agreed in a contract or agreement to waive that insured's right of recovery against any person or organization, we waive our right of recovery against such person or organization, but only for payments we make because of: a. "Bodily injury" or "property damage" that occurs; or b. "Personal and advertising injury" caused by an offense that is committed; subsequent to the execution of the contract or agreement. COMMERCIAL GENERAL LIABILITY N. CONTRACTUAL LIABILITY -RAILROADS 1. The following replaces Paragraph c. of the definition of "insured contract" in the DEFINITIONS Section: c. Any easement or I icense agreement; 2. Paragraph f.(1) of "insured contract" Section is deleted. the definition of in the DEFINITIONS 0. DAMAGE TO PREMISES RENTED TO YOU The fol lowing replaces the definition of "premises damage" in the DEFINITIONS Section: "Premises damage" means "property damage" to: a. Any premises while rented to you or temporarily occupied by you with permission of the owner; or b. The contents of any premises while such premises is rented to you, if you rent such premises for a period of seven or fewer consecutive days. CG D4 17 02 19 © 2017 The Travelers Indemnity Company. All rights reserved. Page 5 of 5 Includes copyrighted material of Insurance Services Office, Inc. with its permission. General Counsel Approved Version 12/28/2022 1 AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR SOFTWARE SERVICES WATERSMART SOFTWARE, INC This Amendment No. 1 is entered into and effective as of the _______ day of __________________, 2023, extending the agreement dated August 30, 2022 (the “Agreement”) by and between the Carlsbad Municipal Water District, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, California ("CMWD"), and WaterSmart Software, Inc, a Delaware public benefit corporation (“Contractor") (collectively, the “Parties”). RECITALS A. On August 30, 2022, the Parties executed the Agreement to implement and maintain the WaterSmart software solution platform; and B. The Agreement is effective for a one-year period, and allows for four (4) additional one (1) year extensions; and C. The Parties desire to extend the Agreement for a period of one (1) year starting on August 30, 2023. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on August 29, 2024. 2. The total fee payable under this amendment will be Fifty-Three Thousand, Four Hundred and Six Dollars and Seventy-Two Cents ($53,406.72). 3. All other provisions of the Agreement, as may have been amended from time to time, shall remain in full force and effect. 4. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, shall include coverage for this Amendment. /// /// /// /// /// /// DocuSign Envelope ID: 5779D3E3-52C0-4983-B69A-4FA6F4D7B0EADocuSign Envelope ID: 7B1E0DB6-42AC-4171-B60D-7D3573C7C1A5 9th August General Counsel Approved Version 12/28/2022 2 4. The individuals executing this Amendment and the instruments referenced on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions hereof of this Amendment. CONTRACTOR CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad By: By: (sign here) Assistant Executive Manager (print name/title) ATTEST: By: (sign here) SHERRY FREISINGER Secretary (print name/title) If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, General Counsel By:_____________________________ Deputy General Counsel DocuSign Envelope ID: 5779D3E3-52C0-4983-B69A-4FA6F4D7B0EA CEOAndrew Jornod Keith Foerster CFO DocuSign Envelope ID: 7B1E0DB6-42AC-4171-B60D-7D3573C7C1A5 for Administrative Services Information Technology 1635 Faraday Ave. Carlsbad, CA ZIP code 760-602-2450 t Memorandum August 1, 2023 To: Geoff Patnoe, Assistant Executive Manager From: Doug Kappel, IT Enterprise Applications Manager Via: Maria Callander, Director of IT Zach Korach, Acting Deputy City Manager, Administrative Services Re: Agreement for Software Services with WaterSmart Software This memorandum provides an explanation of an extension to the agreement between WaterSmart Software and the Carlsbad Municipal Water Department (CMWD) for software services for a water usage analytics platform. Purpose of Agreement On August 28, 2018, CMWD initially contracted with WaterSmart to implement and maintain the WaterSmart software solution platform. This solution provides CMWD staff with a tool that includes analytics related to water consumption and advanced leak detection. On August 30, 2022, CMWD renegotiated and contracted with WaterSmart for the maintenance of the WaterSmart software solution platform. This agreement was for one (1) initial year with four (4) annual extensions. The Amendment No. 1 to the agreement will be the first allowable extensions for the same maintenance services as provided in the agreement. Budget Impact The extension for agreement is $53,406.72 and funding is available in the Information Technology Department Operating budget. The extension includes an annual escalator and the amounts are included in Exhibit “A” of the Agreement. Attachment 1: Amendment No. 1 to the Agreement with WaterSmart for Software Services DocuSign Envelope ID: 7B1E0DB6-42AC-4171-B60D-7D3573C7C1A5 General Counsel Approved Version 8/2/2022 1 AGREEMENT FOR SOFTWARE SERVICES WATERSMART SOFTWARE, INC THIS AGREEMENT is made and entered into as of the ______________ day of _________________________, 2022, by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the CMWD of Carlsbad, ("CMWD")CMWDCMWD, and WaterSmart Software, Inc, a Delaware public benefit corporation (Contractor"). RECITALS A. CMWD requires the software services of a water engagement platform that is experienced in communication with customer water use. B. Contractor has the necessary experience in providing software, professional services and advice related to customer water use and communications. C. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. SCOPE OF WORK CMWD retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement’s terms and conditions. To the extent any of the terms in the Exhibit A to this Agreement conflict, in whole or part, with the terms of this Agreement, the terms of Exhibit A shall prevail. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of 1 year starting on the 28th of August 2022. The CMWD Manager may amend the Agreement to extend it for four (4) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, CMWD needs, and appropriation of funds by the CMWD Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. /// /// /// /// DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F 30th August General Counsel Approved Version 8/2/2022 2 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be fifty-one thousand eight hundred forty-five dollars and twelve cents dollars ($51,845.12). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the CMWD elects to extend the Agreement, the annual amount will not exceed the annual amounts listed on Exhibit “A” for each applicable optional Agreement year. The CMWD reserves the right to withhold a ten percent (10%) retention until CMWD has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify CMWD within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the CMWD’s election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and CMWD. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by CMWD. 8. OTHER CONTRACTORS The CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the CMWD and the City of Carlsbad, their officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F General Counsel Approved Version 8/2/2022 3 The parties expressly agree that any payment, attorney’s fee, costs or expense CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under their self- administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the CMWD as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for CMWD). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The CMWD will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the CMWD. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F General Counsel Approved Version 8/2/2022 4 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by CMWD to obtain or maintain insurance and CMWD may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of CMWD. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to CMWD. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. /// /// /// /// /// DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F General Counsel Approved Version 8/2/2022 5 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD For Contractor Name Maria Callander Name Eric Thompson Title IT Director Title Account Manager Department IT Address 1321 Upland Dr. Ste. 8389 City of Carlsbad Houston, TX 77043 Address 1635 Faraday Ave Phone No. 314-401-0808 Carlsbad, CA 92008 Email Eric.Thompson@vertexone.net Phone No. 442-336-2454 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City of Carlsbad City Clerk’s Office in accordance with the requirements of the CMWD of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes No 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F □ General Counsel Approved Version 8/2/2022 6 is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD will determine the final payment of the Agreement. CMWD may terminate this Agreement by tendering thirty (30) days written notice to Contractor. Contractor may terminate this Agreement by tendering (30) days written notice to CMWD. In the event of termination of this Agreement by either party and upon request of CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. CMWD will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor 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 making of this Agreement. For breach or violation of this warranty, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to CMWD must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If CMWD seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for CMWD to terminate this Agreement. DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F General Counsel Approved Version 8/2/2022 7 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon CMWD and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of CMWD, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F General Counsel Approved Version 8/2/2022 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad By: By: (sign here) Assistant Executive Manager (print name/title) ATTEST: By: (sign here) FAVIOLA MEDINA City Clerk Services Manager (print name/title) If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, General Counsel BY: _____________________________ Assistant General Counsel DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F Andrew Jornod President & CEO Keith Foerster CFO for Exhibit “A” WaterSmart Software, Inc. 1321 Upland Dr., Ste. 8389 Houston, TX 77043 SOFTWARE-AS-A-SERVICE PROVISIONS BACKGROUND: CONTRACTOR’s customer engagement and data analytics services are to be provided primarily by utilization of CONTRACTOR’s proprietary software hosted on CONTRACTOR’s computer systems and accessed by authorized users over the Internet. This is a shared cost software utilization model which enables customers to achieve substantial cost savings versus commissioning custom development of software or licensing software for installation and maintenance on customers’ computer systems. Companies like CONTRACTOR are commonly referred to as “SaaS” or “software-as-a-service” providers. Certain supplemental provisions which are customary within the SaaS sector and essential to enabling CONTRACTOR’s SaaS service model and providing substantial cost savings for CMWD, are set forth below and incorporated by reference in the Agreement. A. CONTRACTOR’s reservation of intellectual property rights CONTRACTOR has created, acquired or otherwise currently has rights in, and may, in connection with the performance of this Agreement or otherwise develop, create, employ, provide, modify, acquire or otherwise obtain rights in various inventions, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, software, applications, documentation, user interfaces, screen and print designs, source code, object code, databases, algorithms, development framework repositories, system designs, processing techniques, tools, utilities, routines and other property or materials, including without limitation any and all subject matter protected or which may be protected under patent, copyright, mask work, trademark, trade secret, or other laws relating to intellectual property, whether existing now or in the future, whether statutory or common law, in any jurisdiction in the world (“CONTRACTOR IP”). CMWD acknowledges that CONTRACTOR owns and shall own all intellectual property rights in and to deliverables hereunder, the CONTRACTOR IP and derivative works of CONTRACTOR IP (whether independently or jointly conceived), regardless of whether or not incorporated in any print or electronic Water Reports, Customer Portal, Dashboard, or other software or deliverable provided to CMWD by CONTRACTOR, and that CMWD shall acquire no right or interest in the same. CMWD agrees to assign, and hereby does assign, any right, title and interest in any suggestions, enhancement requests, or other feedback provided by CMWD relating to services offered by CONTRACTOR. If and to the extent any such assignment is ineffective, CMWD hereby grants to CONTRACTOR a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into its services any such suggestions, enhancement requests, or other feedback provided by CMWD. Subject to the foregoing, authorized employees and customers of CMWD may during the term of the Agreement access and use the CONTRACTOR SaaS services, print and electronic Water Reports, Customer Portal, Dashboard, and other deliverables provided to CMWD by CONTRACTOR, and applicable bill presentment and payment services for purposes of CMWD’s customer engagement program, customer billing, and for CMWD’s internal purposes, so long as CMWD is current with respect to its financial and other obligations under the Agreement. Such authorization is limited to CMWD’s service territory and is non-exclusive, non-transferable, and non-sublicenseable. If CMWD enters into an agreement with a third party contractor of CONTRACTOR related to bill payment services, the intellectual property provisions of such agreement shall apply with respect to intellectual property owned or controlled by such third party. Any rights not expressly granted herein are reserved by CONTRACTOR and its licensors. B. CMWD’s cooperation in providing necessary inputs Deliverables to be provided by CONTRACTOR via its proprietary software require certain data from CMWD. CMWD shall provide CONTRACTOR with those data, records, reports, approvals and other inputs identified for CMWD to provide to CONTRACTOR. CMWD shall ensure that such inputs are accurate and within CMWD’s legal rights to share with CONTRACTOR subject to the confidentiality and other applicable provisions of the Agreement. Time is of the essence, and CMWD shall provide its inputs within the timeframes specified for CMWD. If bill payment services are included, CMWD shall cooperate with CONTRACTOR and its applicable third party partner(s) in timely providing the data, records, reports, approvals and other inputs requested for such services. CONTRACTOR shall not be responsible for DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F Exhibit “A” WaterSmart Software, Inc. 1321 Upland Dr., Ste. 8389 Houston, TX 77043 delays outside CONTRACTOR’s control, and deadlines for CONTRACTOR’s performance shall be adjusted, if necessary, to accommodate delays by CMWD. C. Confidentiality and CONTRACTOR’s use of aggregated data All data, documents and other information received or accessed by one party (“Receiver”) from the other party or its end users (collectively, “Discloser”) for performance of this Agreement, including without limitation personally identifiable information and financial information, are deemed confidential. Such information shall not be used or disclosed by the Receiver without the prior written consent of the Discloser or owner (which may include without limitation consent by end users to share any information with additional users they authorize), except to the Receiver’s employees and contractors on a need-to- know basis for performance of this Agreement with appropriate confidentiality protections. For this purpose, protected confidential information shall not include (i) information that, at the time of disclosure, is publicly available or generally known or available to third parties, or information that later becomes publicly available or generally known or available to third parties through no act or omission by the Receiver; (ii) information that the Receiver can demonstrate was in its possession prior to receipt from the Discloser; (iii) information received by the Receiver from a third party who, to the Receiver’s knowledge and reasonable belief, did not acquire such information on a confidential basis from the Discloser; (iv) information the Receiver can demonstrate was independently developed by it or a third party; or (v) information that the Receiver is legally required or compelled by a court to disclose. Protected confidential information also shall not include information that CMWD determines is required to be disclosed under the California Public Records Act, the Civil Discovery Act, or other applicable law. The foregoing confidentiality obligations are subject to the following clarification of the parties’ rights and obligations with respect to aggregated and anonymous data. CMWD hereby gives its permission to CONTRACTOR to use and disclose on an anonymous and/or aggregated basis (excluding any personally identifiable information) any data pertaining to CMWD end customers and their water consumption, including without limitation derivative data and data combined with the data of other utilities, for purposes of project evaluation and any research, product development, marketing, or other legitimate business purposes. This Section C shall survive any termination or expiration of the Agreement. Each party shall post and comply with its applicable privacy policy. All data obtained by the CONTRACTOR in the performance of this agreement shall become and remain property of the CMWD. All personal data shall be encrypted at rest and in transit with controlled access. D. Software corrections and third party acts; limitation of liability for SaaS services In the event that CONTRACTOR’s services fail to meet specifications or other requirements, CMWD shall promptly notify CONTRACTOR and CONTRACTOR shall promptly correct any defect or substitute services, software, or products to achieve the functionality and benefits originally specified. If CONTRACTOR promptly makes such correction or substitution, CONTRACTOR shall have no further liability with respect to said defect(s), notwithstanding any other provision of the Agreement. All warranties not expressly stated in the Agreement are disclaimed. CMWD understands that CMWD’s use of CONTRACTOR’s services provided online may be interrupted by circumstances beyond CONTRACTOR’s control involving third parties, including without limitation computer, telecommunications, network, Internet service provider or hosting facility failures or delays involving hardware, software, networks, or power systems not within CONTRACTOR’s possession or direct control, and network intrusions or denial of service attacks (collectively, “Third Party Acts”). CONTRACTOR shall not be responsible or otherwise liable for any Third Party Acts, including, without limitation, any delays, failures, or security breaches and damages resulting from or due to any Third Party Acts, provided that CONTRACTOR has exercised due care. However, in the case of any Third Party Act which will delay or prevent CONTRACTOR from providing online services to CMWD, CONTRACTOR will promptly notify CMWD and assist in mitigating any impact. NEITHER PARTY WILL BE LIABLE TO THE OTHER, UNDER ANY CLAIM RELATING TO THIS AGREEMENT, FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE or CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. Under no circumstances or event shall CONTRACTOR’s total cumulative liability for losses DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F Exhibit “A” WaterSmart Software, Inc. 1321 Upland Dr., Ste. 8389 Houston, TX 77043 or damages of any kind arising under or relating to this Agreement and under any theory (contract, tort, defense and indemnity, or otherwise), exceed the fees received by CONTRACTOR for the services that give rise to the liability in the twelve months preceding the accrual of such liability. If CMWD enters into an agreement with a third party contractor of CONTRACTOR related to bill payment services which specifies a lower limit of liability with respect to such services, the same limit shall apply to CONTRACTOR’s liability (if any) with respect to such services. The foregoing limited remedy and limitation of liability provisions shall apply notwithstanding any conflicting provisions or any failure of essential purpose with respect to a limited remedy or limitation of liability, and shall survive any termination or expiration of the Agreement. CMWD acknowledges that pricing for CONTRACTOR’s services would be substantially higher without the aforementioned limitations. E. Technology and services infrastructure vendors CONTRACTOR as a SaaS provider utilizes the secure cloud hosting platform of a third party industry leader in cloud computing with state-of-the art security to host the data of all CONTRACTOR customers. CONTRACTOR utilizes a reputable third party vendor to perform printing and mailing services when included within the scope of CONTRACTOR’s work. For bill payment services, including credit card, debit card, and ACH payments and authentication, CONTRACTOR works with leading edge, reputable third party vendors specializing in such functions. Since the referenced cloud hosting platform, printing and mailing vendors, bill payment services providers, and certain other vendors performing similar or related functions, are integral components of CONTRACTOR’s technology and services infrastructure used across its pertinent customer base and are not specific to CMWD and services under this Agreement, CMWD acknowledges that such utilization or collaboration is not considered subcontracting of CONTRACTOR’s services under this Agreement. If CMWD elects to make bill payment services available to its end customers, the pertinent end users and CMWD assume all risks associated with such services, and no indemnity provisions in favor of CMWD shall apply to such services, except in the event of CONTRACTOR’s willful misconduct. In the absence of willful misconduct by CONTRACTOR, CMWD’s sole remedies related to bill payment services shall be from the independent third party provider of such services in accordance with any contract between CMWD and such provider. If CMWD enters into an agreement with any third party contractor of CONTRACTOR for any other services ancillary or related to the services provided by CONTRACTOR during the term of this Agreement, CMWD shall first seek and exhaust all remedies from such third party contractor prior to seeking any remedy from CONTRACTOR with respect to such services. With respect to all bill payment services, as well as any services provided by independent third party contractors not in contract with CONTRACTOR, including without limitation any such services which at CMWD’s request or direction are integrated by CONTRACTOR into its electronic interfaces for CMWD, CONTRACTOR shall not be responsible for services provided by such third parties. In furtherance of the foregoing, CMWD shall hold harmless, defend and indemnify CONTRACTOR and its officers, directors, employees, contractors, representatives and volunteers from and against all claims, damages, losses and expenses, including without limitation any statutory damages, penalties, and attorney’s fees, arising out of or relating to such third party services, except in the event of CONTRACTOR’s willful misconduct. CONTRACTOR and any third party vendors utilized to provide the services in this agreement shall implement and maintain appropriate administrative, technical and organizational security measures to safeguard against unauthorized access, disclosure or theft of personal data and non-public data. Such security measures shall be in accordance with recognized industry practice and not less stringent than the measures the service provider applies to its own personal data and nonpublic data of similar kind. CONTRACTOR shall provide its services to the CMWD and its end users solely from data centers in the U.S. Storage of CMWD data at rest shall be located solely in data centers in the U.S. CONTRACTOR shall not allow its personnel or contractors to store CMWD data on portable devices, including personal computers, except for devices that are used and kept only at its U.S. data centers. CONTRACTOR shall permit its personnel and contractors to access CMWD data remotely only as required to provide technical support. F. Compliance With Laws CONTRACTOR shall comply with all federal, state and local laws, regulations, regulatory rulings, and ordinances as may be applicable to the performance of its services under this Agreement. CMWD shall comply with all federal, state and local laws, regulations, regulatory rulings, and ordinances related to this Agreement, and shall have sole responsibility for securing any necessary regulatory approvals, if any, for this Agreement and/or the services hereunder. DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F Exhibit “A” WaterSmart Software, Inc. 1321 Upland Dr., Ste. 8389 Houston, TX 77043 CMWD shall be responsible for obtaining from its end customers any consents and providing any notices, if any are legally required, for the services to be provided by CONTRACTOR hereunder, as well as any bill payment or other third party services elected by CMWD. G. Extended Messaging Services If CMWD elects to utilize CONTRACTOR’s leak alert or group messenger services, certain supplemental legal terms shall apply. These supplemental terms (“Extended Messaging Terms”) are set forth below and shall prevail in the event of any conflict or inconsistency. For avoidance of doubt, the Extended Messaging Terms apply to all CONTRACTOR services involving automated phone calls (conventional and mobile), pre-recorded messages, text messages, and other such bulk communications (including emails outside of CONTRACTOR’s core customer engagement offerings) (collectively, “Extended Messaging Services”). 1. CMWD shall be solely responsible for the content of any messages or communications to end customers which CMWD initiates or authorizes in connection with the Extended Messaging Services, as well as CMWD’s selection of any vehicle (ie., conventional phone, mobile phone, text, email) for such messages or communications. CONTRACTOR shall have no responsibility or liability of any kind with respect to messages or communications initiated or authorized by CMWD or its representatives. In furtherance of the foregoing, CMWD shall hold harmless, defend and indemnify CONTRACTOR and its officers, directors, employees, contractors, representatives and volunteers from and against all claims, damages, losses and expenses including without limitation any statutory damages, penalties, and attorney’s fees, arising out of or relating to the Extended Messaging Services or any breach by CMWD of the Agreement including without limitation these Extended Messaging Terms, except in the event of CONTRACTOR’s willful misconduct. For avoidance of doubt, if the Agreement has other indemnity provisions in favor of CMWD such provisions shall not apply to the Extended Messaging Services, except in the event of CONTRACTOR’s willful misconduct. 2. If CMWD elects to make available to its end customers Extended Messaging Services offered by CONTRACTOR to alert end users of potential leaks or high water usage, the pertinent end users and CMWD assume all risks associated with such alerts, and no indemnity provisions in favor of CMWD shall apply to such risks (including without limitation any liability claims for failure to alert or inaccurate alerts), except in the event of CONTRACTOR’s willful misconduct. 3. With respect to Extended Messaging Services, CONTRACTOR’s role is limited to delivering via its technology platform CMWD’s communications through vehicles selected by CMWD; accordingly, compliance with applicable laws (which may vary by state and locale) is strictly CMWD’s responsibility with respect to Extended Messaging Services notwithstanding any provision to the contrary. 4. CMWD is encouraged to consult legal counsel of its own with respect to this Agreement and in reference to Federal Communications Commission Declaratory Ruling FCC 16-88 (released August 4, 2016), any Extended Messaging Services, and compliance with applicable federal, state and local laws, regulations and regulatory rulings, and ordinances. CMWD shall not rely on CONTRACTOR or CONTRACTOR’s representatives for legal advice or guidance concerning the content or appropriate vehicles (ie., conventional phone, mobile phone, text, email) for communications with CMWD end customers. 5. In order to provide the Extended Messaging Services at efficient cost and with optimal levels of security and reliability, CONTRACTOR may utilize one or more third party communications technology and communications services providers. Since such providers are utilized across CONTRACTOR’s pertinent customer base and are not specific to CMWD and service choices by CMWD under the Agreement, CMWD acknowledges that such utilization is not considered subcontracting of CONTRACTOR’s services under the Agreement H. Security Incident or Data Breach Notification: CONTRACTOR shall inform the CMWD of any security incident or data breach. If CONTRACTOR has actual knowledge of a confirmed data breach that affects the security of any CMWD content that is subject to applicable data breach notification law, CONTRACTOR shall (1) promptly notify the appropriate CMWD identified contact within 24 hours or DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F Exhibit “A” WaterSmart Software, Inc. 1321 Upland Dr., Ste. 8389 Houston, TX 77043 sooner, unless shorter time is required by applicable law, and (2) take commercially reasonable measures to address the data breach in a timely manner. DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F Exhibit “A” WaterSmart Software, Inc. 1321 Upland Dr., Ste. 8389 Houston, TX 77043 Services Year Quantity Sales Price Total Price WaterSmart Platform 1 31,232 $1.66 $51,845.12 WaterSmart Platform – Optional Year 2 2 31,232 $1.71 $53,406.72 WaterSmart Platform – Optional Year 3 3 31,232 $1.76 $54,968.32 WaterSmart Platform – Optional Year 4 4 31,232 $1.81 $56,529.92 WaterSmart Platform – Optional Year 5 5 31,232 $1.86 $58,091.52 Program at a Glance Program Overview Dashboard and Portal Program Length 12 months CMWD Analytics Dashboard Yes Total Meters 31,232 Customer Portal No Meter Data Alert and Notifications AMR/Manual Read Yes Print Leak Alerts No AMI Yes Water Reports Electronic Bill Presentment and Payments Water Reports No Bill Display Bill Amount Due and History Paperless Billing No Additional Services Payment Website Integration None On-site Training No Premium Integration Description Customer Letter Customer Letter No Special Circumstances Customer Portal is available for public use upon request DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F Administrative Services Information Technology 1635 Faraday Ave. Carlsbad, CA ZIP code 442-339-2450 t Memorandum August 24, 2022 To: Geoff Patnoe, Assistant Executive Manager From: Doug Kappel, IT Enterprise Applications Manager Via: Maria Callander, Director of IT Laura Rocha, Deputy City Manager, Administrative Services Re: Agreement for Software Services with WaterSmart Software This memorandum provides an explanation of a new agreement between WaterSmart Software and the Carlsbad Municipal Water Department (CMWD) for software services for a water usage analytics platform. Purpose of Agreement On August 28, 2018, CMWD initially contracted with WaterSmart to implement and maintain the WaterSmart software solution platform. This solution provides CMWD staff with a tool that includes analytics related to water consumption and advanced leak detection. The initial agreement was for 1 year with 3 annual extensions, the extensions have all been executed and a new agreement is required. The new agreement will be for the same maintenance services as provided in the initial agreement. The new agreement will be for 1 year with 4 one-year possible extensions. Budget Impact The first year of the new agreement is $51,845.12 and funding is available in the Information Technology Department Operating budget. The possible extensions if executed include an annual escalator and the amounts are included in Exhibit “A” of the agreement. These amounts will be included in the appropriate fiscal year budget request process if executed. Attachment 1: Agreement with WaterSmart for Software Services DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F {city of Carlsbad INSR ADDLSUBRLTRINSR WVD DATE (MM/DD/YYYY) PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) COMMERCIAL GENERAL LIABILITY AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE INSURER(S) AFFORDING COVERAGE NAIC # Y / N N / A (Mandatory in NH) ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? EACH OCCURRENCE $ DAMAGE TO RENTED $PREMISES (Ea occurrence)CLAIMS-MADE OCCUR MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ $ PRO- OTHER: LOCJECT COMBINED SINGLE LIMIT $(Ea accident) BODILY INJURY (Per person) $ANY AUTO OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS AUTOS ONLYHIRED PROPERTY DAMAGE $AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE $ CLAIMS-MADE AGGREGATE $ DED RETENTION $$ PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below POLICY NON-OWNED SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) ACORDTM CERTIFICATE OF LIABILITY INSURANCE Travelers Indemnity Co of America Travelers Property Casualty Ins. Co Standard Fire Insurance Company Continental Casualty Company 7/22/2022 USI Southwest, Inc. 14241 Dallas Pkwy, STE 700 Dallas, TX 75254 214 443-3100 Kari Compton 214.443.3100 214.443.3900 kari.compton@usi.com Vertex US Holdings, Inc. 1321 Upland Drive Suite 8389 Houston, TX 77043-1142 25666 36161 19070 20443 A X X ZLP21P4400122 07/23/2022 07/23/2023 1,000,000 10,000 1,000,000 2,000,000 2,000,000 A X X BA0P76127722 07/23/2022 07/23/2023 1,000,000 B CUP0P96004522 07/23/2022 07/23/2023 15,000,000 C N UB0P53248122 07/23/2022 07/23/2023 1,000,000 1,000,000 1,000,000 D Errors & Omissions 596609670 11/06/2021 11/06/2022 $10,000,000 (Technology & Professional Liability) City of Carlsbad/CMWD are named as Additional Insured as required by written contract, as it relates to General Liability in Accordance with the Terms & Conditions of the policy. Waiver of Subrogation on the Workers Compensation policy in favor of the City of Carlsbad/CMWD as required by written contract, in Accordance with the Terms & Conditions of the policy. City of Carlsbad/CMWD c/o EXIGIS Insurance Compliance PO Box 4668 - ECM #35050 New York, NY 10163 1 of 1 #S36796362/M36795326 VERTEUSClient#: 1635823 HKYZP 1 of 1 #S36796362/M36795326 DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F I I f--D □ f-- f-- f-- Fl □ □ f-- f--- f--- f--- f--H I I I I I □ This page has been left blank intentionally. DocuSign Envelope ID: D02ED5DA-55C3-467E-BC70-37136EC6FF9F