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HomeMy WebLinkAboutItron Inc; 2012-09-25; PSA20-1143UTILPSA20-1143UTIL General Counsel Approved Version 9/27/16 1 AMENDMENT NO. 1 TO ITRON SALES AGREEMENT This Amendment No. 1 is entered into and effective as of the _______ day of ______________________________, 2020 (the “Effective Date”), amending the Itron Sales Agreement effective September 25, 2012 (“Sales 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 ("Customer"), and Itron, Inc. (“Itron") (collectively, the “Parties”) for, among other items, 100 W water pit ERT modules (Endpoints). RECITALS A. Between approximately May 2012 and September 2015, Customer purchased and took delivery of 20,551 Endpoints with silicone potting from Itron (Existing Endpoints); and B. The Existing Endpoints experienced a higher than average failure rate; and C. The Parties desire to alter the Sales Agreement’s scope of work to allow Itron to replace the Existing Endpoints with new Endpoints with epoxy potting (Replacement Endpoints) at no additional charge to Customer under the terms and conditions set forth in Exhibit A. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained in this Amendment No. 1, Customer and Itron agree as follows: 1. Itron will replace the Existing Endpoints with Replacement Endpoints at no additional charge to Customer under the terms and conditions set forth in Exhibit A. 2. All other provisions of the Sales Agreement will remain in full force and effect. 3. All requisite insurance policies to be maintained by Itron pursuant to the Sales Agreement will include coverage for this Amendment No. 1. /// /// /// /// /// /// /// /// /// DocuSign Envelope ID: 94149062-CCA7-499E-83E4-21EDDBD9A167 June 16th PSA20-1143UTIL General Counsel Approved Version 9/27/16 2 4. The individuals executing this Amendment No. 1 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 Amendment. ITRON 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) Scott Chadwick, Executive Manager Robert H. A. Farrow, Vice President, Treasury & Strategic Planning (print name/title) ATTEST: By: (sign here) for Barbara Engleson, 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: CELIA A. BREWER, General Counsel By: _____________________________ Assistant General Counsel DocuSign Envelope ID: 94149062-CCA7-499E-83E4-21EDDBD9A167 PSA20-1143UTIL General Counsel Approved Version 9/27/16 3 EXHIBIT “A” TERMS AND CONDITION FOR REPLACEMENT ENDPOINTS 1. Limited Release. As of the Effective Date, Customer, for itself and for any and all of its Affiliates, and their respective successors, assigns, shareholders, members, officers, directors, agents (the “Releasing Parties”), shall be deemed to release and discharge Itron and all of its Affiliates, and their respective successors, assigns, shareholders, members, officers, directors, agents (the “Released Parties”), from any and all claims, demands, causes of action, liabilities, rights, debts, obligations, promises, and charges of whatever nature that any Releasing Party has or may have against any Released Party, whether known or unknown, foreseen or unforeseen, economic or noneconomic, fixed or contingent, that arise or are in any way related to the Existing Endpoints (the “Release”). For the avoidance of doubt, the Release does not impact (i) any claims relating to either Party’s performance under this Amendment No. 1, or (ii) any terms, conditions or warranties of the Sales Agreement relating to any products, software, firmware, hardware or services purchased by Customer other than with respect to Existing Endpoints and Replacement Endpoints. 2. Consideration. In exchange for the Release, Itron will provide new 100W water pit ERT modules with epoxy potting (the “Replacement Endpoints”) to Customer free of charge as replacements for the remaining Existing Endpoint in accordance with this Amendment No. 1. 3. Delivery Schedule. Beginning the first month after the Effective Date, on or before the 10th day of each month, Itron will deliver at least 2,000 Replacement Endpoints to Customer free of charge until all Replacement Endpoints have been delivered to Customer (the “Delivery Schedule”). Customer is responsible for any labor costs associated with removal of Existing Endpoints and installation of Replacement Endpoints. Title and risk of loss to each Replacement Endpoint shall transfer to Customer upon delivery, subject to the Replacement Endpoint Warranties and Remedies, Exclusions, Discounts and Disclaimer set forth in Section 6 (Warranty) of this Exhibit A. 4. Delay in Delivery. Time is of the essence regarding Itron’s obligations to meet the Delivery Schedule. Itron agrees to notify Customer in writing (including via email) of any Delivery Schedule delays and monthly delivery Replacement Endpoint unit shortages no less than seven (7) business days before a scheduled delivery and provide a late delivery update and schedule. If Itron fails to deliver at least the minimum monthly quantities of Replacement Endpoints required by the Delivery Schedule within 60 days of the applicable delivery date, other than as a result of a Customer-caused delay or other circumstances beyond Itron’s reasonable control, and Customer is unable to proceed with any scheduled Replacement Endpoint installation-related activities as a sole and direct result of such failure, thereby rendering Customer’s installation resources idle, as Customer’s sole remedy and Itron’s sole liability for the delay, Itron will pay Customer liquidated damages in the amount of $15 per Replacement Endpoint that was so delayed, not to exceed $100,000 in the total aggregate for all liquidated damages. Itron shall have the right to deliver more than the minimum monthly quantities of Replacement Endpoints required to be delivered pursuant to the Delivery Schedule, so long as Itron does not deliver more than the total quantities of Replacement Endpoints to be provided by Itron under this Amendment No. 1. To the extent Itron elects to deliver quantities of Replacement Endpoints in advance of the dates required by the Delivery Schedule, such quantities shall apply against future minimum monthly delivery requirements under the Delivery Schedule. For example, if Itron elects to deliver 2,500 Replacement Endpoints in one month, even though only 2,000 Replacement Endpoints were DocuSign Envelope ID: 94149062-CCA7-499E-83E4-21EDDBD9A167 PSA20-1143UTIL General Counsel Approved Version 9/27/16 4 required to be delivered under the Delivery Schedule, the 500 additional Replacement Endpoints shall be applied against the minimum monthly delivery requirements for any subsequent delivery month under the Delivery Schedule to the extent required to satisfy Itron’s minimum quantity delivery obligations and avoid liquidated damages with respect to that month, until such additional quantities are fully applied to Itron’s minimum monthly delivery obligations under the Delivery Schedule. The Parties agree that liquidated damages are not a penalty and represent a genuine pre- estimate of the damages that Customer would suffer in the event of a delay in delivering Replacement Endpoints in accordance with the Delivery Schedule. All liquidated damages requested by Customer and recoverable under this section will be applied as credits towards amounts due by Customer to Itron. 5. Returns. Customer will return all Existing Endpoints to Itron. During the period covered by the Delivery Schedule, Itron will provide Customer with shipping containers to stock with Existing Endpoints free of charge. Customer will adhere to Itron’s instructions regarding the use of such containers. Itron will pick up and replace containers when they contain enough Existing Endpoints and will dispose of them at Itron’s expense. 6. Warranty. The Replacement Endpoints are subject to the following warranty: Warranty and Remedies Itron warrants solely to Customer that, during the 10-year period following shipment (the “Warranty Period”), each Replacement Endpoint will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Replacement Endpoints under warranty after they have been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current Return Merchandise Authorization (RMA) policy and procedures, (ii) provide Customer with a firmware or software fix to correct the nonconformity., or (iii) if Itron reasonably determines that it is unable to provide a remedy specified in item (i) or (ii) of this paragraph, Itron will provide Customer with a refund of the then-current list price for the Replacement Endpoint or its closest equivalent. Customer will pay the cost of returning Replacement Endpoints to the Itron designated repair facility and Itron will pay the cost of returning Replacement Endpoints that are repaired or replaced to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Replacement Endpoints. Each Replacement Endpoint that is repaired or replaced will be warranted for the remainder of the applicable Replacement Endpoint Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Replacement Endpoint, whichever is longer. Exclusions The above warranty does not cover Replacement Endpoints in poor operating condition due to: (a) changes made to Replacement Endpoints without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Replacement Endpoints; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Replacement Endpoints in accordance with its documentation; (d) a force majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under DocuSign Envelope ID: 94149062-CCA7-499E-83E4-21EDDBD9A167 PSA20-1143UTIL General Counsel Approved Version 9/27/16 5 Itron’s control. Customer may request that Itron repair Replacement Endpoints damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees. Discounts If any Replacement Endpoint fails during the ten-year period following expiration of the applicable Warranty Period (the “Discount Period”), subject to applicable warranty exclusions set forth above, Itron will provide Customer with a discount off Itron’s then-current list price for any available Itron water module to replace the failed Replacement Endpoint per the discounts set forth below: Discount Period Discount Years 1 through 5 50% Years 6 through 10 25% Itron does not guarantee that replacement water modules will be backwards compatible. Disclaimer Except for the express warranties provided by Itron under this Section, Itron makes no warranty of any kind relating to the Replacement Endpoints and disclaims all implied warranties, including without limitation, (i) implied warranties of merchantability or fitness for a particular purpose, (ii) warranties of title and against infringement, and (iii) warranties arising from a course of dealing, usage or trade practice. To the extent any implied warranty cannot be excluded, such warranty is limited in duration to the express warranty period. Itron assumes no liability or responsibility for any interruption or cessation of transmission to or from its data centers or data centers of its vendors via Wide Area Network (WAN), cellular or other public communications or broadband systems (including outages, device non-reachability, loss or inaccurate reading) or for any consequences, losses, or damages arising from changes made by Customer to the content or programming of equipment (unless caused by a defective product). These disclaimers will apply notwithstanding any failure of the essential purpose of any limited remedy provided under this Amendment No. 1. 7. Entire Agreement. This Amendment No. 1 contains the entire understanding of the Parties regarding the Replacement Endpoints and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the Parties with respect to the specific subject matter of this Amendment No. 1. This Amendment No. supersedes any ambiguous or conflicting terms, conditions, or warranties of the Sales Agreement regarding the Replacement Endpoints. 8. Binding Effect. This Amendment No. 1will be binding on the Parties and their respective heirs, personal representatives, successors, and permitted assigns, and will inure to their benefit. 9. Advice of Counsel. Each of the Parties has obtained advice of legal counsel prior to and for the execution of this Amendment No. 1 and understands fully the contents hereof. Each Party hereto shall bear its own attorney fees and costs incurred with regard to this Amendment No. 1. 10. Governing Law. This Amendment No. 1 is governed by the laws of the State of California, without giving effect to any conflict-of-law principle that would result in the laws of any DocuSign Envelope ID: 94149062-CCA7-499E-83E4-21EDDBD9A167 PSA20-1143UTIL General Counsel Approved Version 9/27/16 6 other jurisdiction governing this Amendment No. 1. Any litigation related to this Amendment No. 1shall be venued in San Diego County, California. 11. Further Assurances. The Parties will sign other documents and take other actions reasonably necessary to further effectuate and evidence this Amendment No. 1. 12. No Admission of Liability. The purpose of this Amendment No. 1 is to resolve warranty claims which are denied and contested or are potential and this Amendment No. 1 is the result of a compromise. Nothing contained herein shall be deemed to be an admission of liability of any kind as against any Party or in favor of any Party, all such liability being expressly denied. 13. Counterparts. This Amendment No. 1 may be signed in counterparts, each of which will be considered an original and together shall constitute one instrument. Copies of signature by facsimile, email or otherwise shall be treated as original signatures. 14. Succession. Subject to the provisions otherwise contained in this Amendment No. 1, this Amendment No. 1 shall inure to the benefit and be binding on the successors and the assigns of the respective Parties hereto. 15. Authority. The signatories hereto warrant that they have the authority to execute this Amendment No. 1 on behalf of the Parties to this Amendment No. 1 and that any entity on whose behalf they are signing has executed this Amendment No. 1 pursuant to its governing documents or a resolution of those having the power to control its affairs of this nature. 16. Construction. The language in all parts of this Amendment No. 1 shall in all cases be construed according to its fair meaning, and not strictly for or against any of the Parties hereto. Without limitation, there shall be no presumption against any Party on the ground that such Party was responsible for drafting this Amendment No. 1 or any part of it. 17. Disclosure. Each Party shall not disclose this Amendment No. 1 or any part thereof to any third party, except to the extent such disclosure occurs through Customer’s online records management system or is mandated by applicable law, including the California Public Records Act. If Customer receives a California Public Records Act request seeking this Amendment No. 1, Customer will notify Itron of the request before disclosing this Amendment No. 1. 18. Limit of Liability. Neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Amendment No. 1 or products provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Neither Party’s liability to the other Party arising out of or related to this Amendment No. 1 or any products or services provided hereunder shall exceed the total Effective Date list price value of 20,551 Replacement Endpoints, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise. DocuSign Envelope ID: 94149062-CCA7-499E-83E4-21EDDBD9A167 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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 rights to the certificate holder in lieu of such endorsement(s). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBRWVDADDLINSD 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 THISCERTIFICATE 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?(Mandatory in NH) DESCRIPTION OF OPERATIONS belowIf yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2016 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIREDAUTOS ONLY C 2,000,000 10/01/2020 660 8N120669-19 Peggy Boren X SEA-003180827-38 1,000,000 2,000,000 UB-8N033212 (WI, MA, NE) X 25658 2,000,000 SIR: of Marsh USA Inc. Attn: Seattle.CertRequest@marsh.com / FAX 212-948-4326 N X Comp/Coll Deductible 10/01/2019 National Union Fire Insurance Company of Pittsburgh, 15 08/31/2020 08/31/2019 25623 08/31/2020 CAP 1J668762-19 Errors & Omissions D 4,000,000 2,000,000 37885 The Travelers Indemnity Company 1,000,000 X E X AGGREGATE. 1,500 09/18/2019 1,000,000 08/31/2019 1,000,000 CERTIFICATE HOLDER AND THE CITY OF CARLSBAD, THEIR OFFICIALS, EMPLOYEES AND VOLUNTEERS ARE ADDITIONAL INSURED (EXCEPT WORK COMP AND E&O) AS REQUIRED BY WRITTEN CONTRACT. ITRON'S GENERAL LIABILITY COVERAGE IS PRIMARY AND NON CONTRIBUTORY AS REQUIRED BY WRITTEN CONTRACT. WAIVER OF SUBROGATION IS INCLUDED IN THE GENERAL X 10/01/2019 5950 EL CAMINO REAL CARLSBAD, CA 92008 City of Carlsbad/CMWD The Phoenix Insurance Company 10,000 LIABILITY AND WORKERS COMPENSATION POLICIES EVIDENCED, AS REQUIRED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS. ERRORS & OMISSIONS LIMIT $1M EACH CLAIM / $1M A XL Specialty Insurance Company CN102835048-stn4-GAWUE-19-20 Limit: 10,000 10/01/2020 2,000,000 US00086273LI19A A 4,000,000 25674 1,000,000 1,000,000 08/31/2020 UB-8N023175 (AOS) 1301 5th Avenue, Suite 1900 Marsh USA, Inc. X Seattle, WA 98101 Attn: Yvonne Tanak Itron, Inc. Liberty Lake, WA 99019-9469 2111 N. Molter Road X X 01-701-38-56 08/31/2019 ATTN. MARIO REMILLARD 08/31/2019 B 08/31/2020 Travelers Property Casualty Company Of America a. B A A TL N NR M A T RbAUNT RZ ISC AN R a. b a. b L M C DT M 7.N L F 7.5. CB A A TL N NR M A T R AU N N IST RZ T R M a.ISC bANR M B AL F R 8.n R Uo IV CC M L AB DN le D io 2. D a.R R T b a. N DT L R 1.c.b D c. D le io T T T If R N IS ANC R a. b c. a. b D 4. IV D c. M d h a.o g b c. d y u e n n u o B ounC n 7.o n upn a. b 8.h onRgR n h U 5.u d 9.n D No o Ra. b N D FNTC N 1. c.a. b 6.n no 1 T TRAVELERS]WORKERS COMPENSATION HARTFORD CT 06183 EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 00 03 13 (00)-001 POLICY NUMBER:UB-8N023175-19-13-K WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT 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:10-23-19 STASSIGN:PAGE 1 OF1 ITRON SALES AGREEMENT This Itron Sales Agreement (the "Agreement') is entered into as of the last date of execution on the signature page hereto (the "Effective Date") by and between Itron, Inc. {"Itron") and Carlsbad Municipal Water District, a Public Agency organized under the Municipal Water Act of 1911 and a Subsidiary District of the City of Carlsbad ("Casto/ner"). Itron and Customer may each be referred to as a "Party and together as the "Parties." The Parties agree as follows: 1. Equipment Terms a. Equipment Purchase. Customer agrees to purchase the equipment, if any, identified on Attachment A (the "Equipment') from Itron at the price(s) and in the quantities set forth thereon pursuant to the terms of this Agreement. Prices set forth on Attachment A are valid for one year from the date of this Agreement and are contingent upon Customer purchasing the quantities set forth on Attachment A. b. Ordering During the temi of this Agreement, Customer shall order quantities of Equipment by issuing a purchase order, change order or release (each an "Order") to Itron, in each case specifying the type and quantity of Equipment, the shipment destination and the requested delivery date. Unless otherwise agreed in a separate writing signed by an authorized representative of each Party, the requested delivery date in an Order must be no earlier than ninety days following Itron's receipt of such Order. c. Firmware The purchase of Equipment manufactured by Itron will include a perpetual, irrevocable license to use and execute any software embedded in the Equipment. The license to any software embedded in third party Equipment provided by Itron shall be between Customer and the manufacturer of such third party Equipment. d. Invoicing. Itron will invoice Customer for the Equipment upon shipment. e. Delivery, Title and Risk of Loss. Unless otherwise agreed by the Parties, Itron will make arrangements with its carrier to deliver Equipment to Customer's location at Customer's expense. Title to the Equipment and risk of loss shall pass to Customer upon delivery to the Customer. f Limited Equipment Warranty i. Warranty and Remedy. Except to the extent otherwise provided in Attachment A, Itron warrants to Customer that the Equipment that is manufactured by Itron will be free from defects in materials and workmanship and will conform to the applicable published Itron specifications for a period of one year from the date of shipment. Except to the extent otherwise provided in Attachment A, Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section or under Attachment A shall be for Itron to repair non-conforming Equipment or provide Customer with replacement Equipment after Customer has returned non-conforming Equipment properly packaged and prepaid to a repair facility designated by Itron in accordance with Itron's then-current RMA procedures. If Itron, in its sole discretion, determines that it is unable to repair or replace such non-conforming Equipment, Itron will refund to Customer the amount paid for such Equipment. Equipment that is repaired or replaced pursuant to this Section will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. Customer will pay the cost of returning non-conforming Equipment to the place of repair designated by Itron and Itron will pay the cost of delivering repaired or replacement Equipment to Customer. ii. Exclusions. The warranty provided herein does not cover damage due to external causes, including accident, abuse, misuse, inadequate maintenance, problems with electrical power, acts of God; service (including installation or de-installation) not performed or authorized by Itron; usage not in accordance with product instructions or in a configuration not approved by Itron; normal wear and tear; and problems caused by use of parts and components not supplied by Itron. The warranty provided herein shall be void if the Equipment is modified in a 1 PSA20-1143UTIL way not authorized in writing by Itron. The above warranty does not cover any third party equipment provided by Itron. Any warranty for such equipment will be between Customer and the third party manufacturer. 2. Software Terms a. Definitions. "Delivery" with respect to Software, means that Itron has either made the Software available to Customer via electronic means or has provided the Software to a carrier on physical media for delivery to Customer. "Documentation" means all printed or electronic materials published or otherwise that are provided to Customer and that describe or relate to the functional, operational or performance capabilities of the Software. "Endpoint' means (i) a physical device (e.g., a meter, encoder-transmitter-receiver or other measuring or monitoring device) that is the source of data used in the Software application or (ii) a virtual device created in the Software application to simulate the existence of a physical device. An example of a virtual device that is an Endpoint would include a single electricity meter that serves 10 apartment units. If the consumption data from that electricity meter was divided between the 10 units (e.g., on the basis of square footage) and used in the Software application as if that single electricity meter was actually 10 electricity meters, it would count as 10 Endpoints. Further, each account, whether active or inactive, in the application that is associated with a single physical device counts as a separate Endpoint. "Object Code" means the binary, machine-readable version of the Software. "Production Environment' means a single instance of the Software used in an environment other than a Test Environment. "Software" means software identified on Attachment A that is owned by Itron and any modifications, corrections, improvements or enhancements thereto provided by Itron. "Source Code" means human-readable computer programming code, associated procedural code and related documentation. "Specifications" means the applicable published Itron functional specifications for an item of Software. "Test Environment' means a single instance of the Software used solely for test purposes. Such installation can only be used to verify the correct installation, operation, and integration of the Software and/or components. "Third Party Software" means software that is not owned by Itron but is identified on Attachment A as being provided by Itron. "Use" means the ability to run, execute, display and, subject to the restrictions described below, duplicate and distribute internally. "Warranty Period," with respect to a particular item of Software, means the warranty term beginning on the warranty start date, as set forth on Attachment A. If no such period is identified on Attachment A, the Warranty Period shall be 90 days from the date of Delivery. b. License Grant. Subject to the terms of this Agreement and for the license fee set forth on Attachment A, Itron grants to Customer a nonexclusive, nontransferable, perpetual Object Code license to Use the Software and Documentation for its internal business purposes only in connection with the number of [Endpoints] set forth in Attachment A. c. Restrictions. As a condition to the foregoing license grant. Customer shall not (i) violate any restriction set forth on Attachment A, (ii) modify or create any derivative work from the Software, (iii) include the Software in any other software, (iv) use the Software to provide processing services to third parties or on a service bureau basis, (v) reverse assemble, decompile, reverse engineer or otherwise attempt to derive Source Code (of the underlying ideas, algorithms, structure or organization) from Software, or (vi) use the Software to process business information concerning customers derived through merger, asset acquisition or other entity combination. Except as expressly permitted in this Agreement, (i) the Software may not be installed on a computer that is not part of the Customer's computer network, (ii) Customer may not copy the Software other than to make one machine readable copy for disaster recovery or archival purposes, and (iii) installation of the Software shall be limited to one Production Environment and one Test Environment. Customer may only make copies of 2 7 Documentation as reasonably necessary for the use contemplated herein. The Software and Documentation shall be considered the confidential information of Itron and, as such, shall be subject to the confidentiality provisions of this Agreement. d. Invoicing. Itron will invoice Customer for the Software and any Third Party Software upon Delivery. e. Limited Software Warranty i. Warranty and Remedy. For the Warranty Period, Itron warrants to Customer that the Software will perform substantially in accordance with the Specifications. Itron does not warrant that the Software will operate uninterrupted or error-free. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron to repair or replace the non-conforming Software. If Itron, in its sole discretion, is unable to repair or replace non-conforming Software, Itron will refund to Customer the amount paid for such Software. Software that is repaired or replaced pursuant to this Section will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. Customer's license to Software for which it has received a refund hereunder shall terminate upon its receipt of a refund. ii. Exclusions. The warranty provided in this Section shall not apply to the extent that non-compliance relates to or is the result of (i) use of the Software in combination with software, equipment or communications networks not provided by Itron, (ii) a change to the Software's operating environment not made or authorized by Itron, (iii) Customer's failure to install any correction or enhancement provided by Itron, (iv) viruses introduced through no fault of Itron, (v) any use of the Software not authorized by this Agreement. The warranty provided in this Section is valid only if Customer has complied with the terms of this Agreement (including paying the applicable Software license fees) and shall be void to the extent of any modification to the Software not authorized by Itron. f. Third Party Software and Documentation. Itron shall provide the Third Party Software, if any, identified on Attachment A and any related documentation. Any Third Party Software and related documentation provided by Itron in connection with this Agreement shall be subject to a separate license agreement between the Customer and the third party software provider and will be subject to separate third party warranties, if any. Customer agrees that it will be bound by and will abide by all such third party software licensing arrangements. Customer is solely responsible for acquiring any software that is required to use the Software or Third Party Software. g. Audit. Customer will maintain accurate and detailed records as necessary to verify compliance with this Agreement. Itron may audit these records to verify compliance at any time during Customer's regular business hours after giving notice 5 business days in advance of the audit. Except as described below, Itron will bear all costs and expenses associated with the exercise of its audit rights. Any errors in payments identified will be corrected by Customer by appropriate adjustment. In the event of an underpayment of more than 5 percent, Customer will reimburse Itron the amount of the underpayment, reasonable costs associated with the audit, and interest on the overdue amount at the maximum allowable interest rate from the date the obligation accrued. h. Obligations Upon Termination for Cause. Upon a termination by Itron for cause, Customer's license to any Software and right to receive maintenance and support for such Software shall immediately terminate and Customer shall (i) delete any Software from all of its computers, (ii) immediately deliver to Itron or destroy all copies of such Software and any related Documentation and (iii) certify in writing to Itron within 10 days of any such termination that, to the best of Customer's knowledge, Customer has complied with this Section. /. Other Provisions. Customer shall not, directly or indirectly, export or transmit the Software to any country to which such export or transmission is prohibited by any applicable regulation or statute. The Parties agree that Software provided under this Agreement shall be deemed to be "goods" within the meaning of Article 2 of the Uniform Commercial Code, except when such a practice would cause an unreasonable result. The Parties agree that the Uniform Computer Information Transaction Act (or a version thereof or substantially similar law) shall not govern this Agreement. 3. Professional Services Terms a. Definitions. "Change Order" means a written confirmation of a change in the Professional Services, Deliverables or cost thereof that is executed by both Parties. "Deliverable" means any software, reports, results, studies or other documentation identified as a "Deliverable" to be provided by Itron in a SOW. "Professional Services" means the services to be provided by Itron pursuant to a SOW. "SOW means a written statement of work describing the activities, tasks and responsibilities of Itron and Customer that, at the time of execution, is attached hereto as Attachment B or that, subsequent to execution, references this Agreement and is executed by authorized representatives of the Parties. ib. Purchase of Professional Services; License. During the term of this Agreement, Itron will make commercially reasonable efforts to provide to Customer the Professional Services and Deliverables, if any, described in the applicable SOW within the fime periods set forth in such SOW. Changes to the Professional Services or Deliverables may only be made through a Change Order. Itron hereby grants to Customer a non-exclusive, perpetual license to use the Deliverables solely for Customer's internal purposes. c. Fees and Expenses. Customer agrees to pay for Professional Services in the manner set forth in the applicable SOW (e.g., on a time and materials basis or on a fixed-fee basis) and at the rates set forth on Attachment A or in the applicable SOW. Itron reserves the right to adjust rates for Professional Services performed on a time-and-materials basis no more than once each year. Customer shall also reimburse Itron for reasonable and documented travel, lodging and related expenses incurred in connecfion with the Professional Services, except as otherwise set forth on Attachment A-1. d. Invoicing. Professional Services will be performed either on a time-and-materials basis or a fixed-fee basis, as set forth on Attachment A or the applicable SOW, provided that Attachment A will supersede the SOW to the extent of any conflict. Professional Services performed on a time and materials basis will be invoiced at the end of the calendar month in which they are performed. Professional Services that are performed on a fixed fee basis will be invoiced as set forth on the applicable SOW or, if not set forth on a SOW, upon completion. e. Limited Professional Services Warranty. Itron warrants to Customer that it shall perform the Professional Services with reasonable care and in a diligent and competent manner. Itron's sole obligation and Customer's exclusive remedy in connection with a breach of the foregoing warranty shall be to correct or re-perform the non-conforming Professional Services. If Itron, in its sole discretion, is unable to correct or re-perform non-conforming Professional Services, its sole obligation will be to refund to Customer the amount paid for such Professional Services. Customer must report any deficiencies in the Professional Services to Itron in writing within 60 days of performance to receive the warranty remedies described herein. f Access to Facilities and Personnel. Customer agrees to provide Itron with access to its facilities and personnel as reasonably required for Itron to provide the Professional Services and Deliverables. All employees and representatives of Itron that perform Professional Services on Customer's premises shall comply with reasonable guidelines pertaining to employee conduct, including Customer safety procedures and policies, provided to Itron by Customer. Neither Party shall require releases or waivers of any personal rights from representatives of the other in connection with visits to its premises, and the Parties agree not to plead any such releases or waivers in any action or proceeding. g. Insurance. Itron will obtain and maintain for the durafion 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 connecfion with performance of the Professional Services by Itron or Itron's agents, representatives, employees. Itron will pass through to its subcontractors the insurance requirements set forth herein. 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 Rafing of not less than "A-iVII", OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". i. Coverages and Limits. Itron will maintain the types of coverages and minimum limits indicated below, unless Customer's Risk Manager or Executive Manager approves a lower amount. Customer, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Itron pursuant to this Agreement are adequate to protect Itron. If Itron believes that any required insurance coverage is inadequate, Itron will obtain such addifional insurance coverage, as Itron deems adequate, at Itron's sole expense. i.a. Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. i.b. Automobile Liabilitv (if the use of an automobile is involved for Itron's work for CUSTOMER). $1,000,000 combined single-limit per accident for bodily injury and property damage. i. e. Workers' Compensation and Emplover's Liabilitv. Workers' Compensafion limits as required by the California Labor Code. Workers' Compensation will not be required if Itron has no employees and provides, to Customer's satisfaction, a declaration stating this. ii. Additional Provisions. Itron will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: ii. a. Customer will be named as an addifional insured on Commercial General Liability which shall provide primary coverage to Customer. ii.b. Itron will obtain occurrence coverage. jiL Providing Certificates of Insurance and Endorsements. Prior to Customer's execution of this Agreement, Itron will furnish certificates of insurance and endorsements to Customer. iv^ Failure to Maintain Coverage. If Itron fails to maintain any of these insurance coverages, then Customer will have the option to declare Itron in breach or pay the premiums that are due on exisfing policies in order to maintain the required coverages. Itron is responsible for any payments made by Customer to obtain or maintain insurance and Customer may collect these payments from Itron or deduct the amount paid from any sums due Itron under this Agreement. 4. Payment Terms and Taxes. For invoices not paid within 30 days of the invoice date, in addition to other remedies to which Itron may be entitled, Itron may charge Customer a late fee of one percent per month applied against overdue amounts. Customer shall also be responsible for collection costs associated with late payment, if any, including reasonable attorneys' fees. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Unless otherwise indicated on Attachment A, Customer shall pay all amounts owing under this Agreement in U.S. Dollars. The prices set forth on Attachment A do not include taxes. Customer will be responsible for and pay all applicable sales, use, excise, value-added and other taxes associated with the provision of products or services by Itron, excluding taxes on Itron's income generally. If Customer is a tax exempt entity, or pays taxes directly to the state. Customer will provide Itron with a copy of its Tax Exemption Certificate or Direct Pay Permit, as applicable, upon execufion of this Agreement. 5. Changes. Changes to the products or services ordered by Customer pursuant to this Agreement, including the purchase of additional quantities or entirely new products or services, may be made at Itron's then-current pricing by 16 purchase order or Change Order (in a form acceptable to Itron), provided that any such purchase order must first be accepted by Itron. 6. Confidentiality. With respect to any information supplied in connection with this Agreement and designated by either Party as confidenfial, or which the recipient should reasonably believe to be confidential based on its subject matter or the circumstances, the recipient agrees to protect the confidential information in a reasonable and appropriate manner, and to use and reproduce the confidential information only as necessary to realize the benefits of or perform its obligafions under this Agreement and for no other purpose. The obligafions in this Section will not apply to informafion that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party; (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order. The recipient may disclose the confidential information on a need-to-know basis to its contractor's, agents and affiliates who agree to confidentiality and non-use terms that are substantially similar to these terms. Itron understands that Customer is a California public entity subject to the California Public Records Act and may have the legal obligation to disclose information upon request by a third party. Customer will notify Itron before disclosing any confidential information and give Itron the opportunity review the request. In the event Itron requests that Customer not produce such records under the California Public Records Act, Itron agrees to reimburse any costs incurred by Customer in defending the withholding of the records . 7. IP Ownership. Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related to any product, software or deliverable provided by Itron pursuant to this Agreement are and will remain the exclusive property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the exclusive property of Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product, software or deliverable or Itron's confidential informafion other than rights granted in this Agreement. 8. Indemnification a. General Indemnity. Itron will defend Customer from any claim for (i) death of or bodily injury to a Customer employee or third party to the extent caused by Itron's negligence or intentional torts, or (ii) physical damage to tangible personal property owned by Customer or a third party to the extent caused by Itron's negligence or intentional torts and will pay costs and damages awarded against Customer (or settled) in any such action that are specifically attributable to Itron's negligence or intentional torts. b. Infringement Indemnity. Itron will, at its own expense, defend any claim or action brought against Customer by an unaffiliated third party to the extent that the action is based upon a claim that any product manufactured, software licensed or service provided by Itron hereunder directly infringes any U.S. patent (issued as of the Effective Date) or any copyright or trademark and Itron will pay those costs and damages awarded against Customer (or settled) in any such action that are specifically attributable to such claim. The foregoing indemnity does not apply to products not manufactured by Itron or software licensed by third parties. c. Conditions to Infringement Indemnity. Itron's infringement indemnity obligations under this Secfion are conditioned on Customer's agreement that if the applicable product or service becomes, or in Itron's opinion is likely to become, the subject of such a claim. Customer will permit Itron, at Itron's option and expense, either to procure the right for Customer to continue using the affected product or service or to replace or modify the same so that it becomes non-infringing. Such replacements or modifications will be functionally equivalent to the replaced product or service. If the foregoing alternatives are not available on terms that are reasonable in Itron's judgment, Itron shall have the right to require Customer to cease using the affected product or service in which case Itron will refund to Customer the depreciated value of the affected product or service. d. Exclusions. Itron shall have no obligation under this Agreement to the extent any claim of infringement or misappropriation results from: (i) use of a product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred but for such use; (ii) use of any product or service in combination with any other product, equipment, software or data, if the infringement would not have occurred but for such combinafion; (iii) any use of any release of a software or any firmware other than the most current release made available to Customer, (iv) any claim based on Customer's use of a product after Itron has informed Customer of modifications or changes to the product required to avoid such claims and offered to implement those modificafion or changes, if such claim would have been avoided or mitigated by the implementation of Itron's suggestions, (v) any modification to a product made by a person other than Itron or an authorized representafive of Itron, or (vi) compliance by Itron with specifications or instructions supplied by Customer. Itron shall not be liable hereunder for enhanced or punitive damages that could have been avoided or reduced by acfions within the control of Customer. e. Right to Defend. As a condition to Itron's indemnity obligations under this Agreement, Customer will provide Itron with prompt written notice of the claim, permit Itron to control the defense, settlement, adjustment or compromise of the claim and provide Itron with reasonable assistance in connection with such defense. Customer may employ counsel at its own expense to assist it with respect to any such claim. f Indemnity Disclaimer THIS SECTION CONSTITUTES ITRON'S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER. 9. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ITRON DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. 10. WAIVER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 11. CAPON LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR A BREACH BY CUSTOMER OF (I) ANY INTELLECTUAL PROPERTY RIGHT OF ITRON OR (II) ANY LICENSE GRANTED BY ITRON HEREUNDER, THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT—WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE—SHALL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE HEREUNDER. ITRON SHALL NOT BE LIABLE FOR ANY CLAIM MADE THE SUBJECT OF A LEGAL PROCEEDING MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION ASSERTED IN SUCH CLAIM AROSE. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 12. Term and Termination a. Term of Agreement. Unless terminated earlier as provided herein, the term of this Agreement shall be from the Effective Date through December 31st of the year in which any products or services to be provided hereunder have been provided. The term of this Agreement shall thereafter automafically renew for successive one year periods unless either Party provides the other with written notice of its intent not to renew at least 90 days prior to such termination; provided, however, that Customer shall be obligated to purchase and Itron shall be obligated to Z provide any product or service that is the subject of an unfulfilled order accepted by Itron prior to the fime of any such terminafion. Notwithstanding the foregoing, the term of any license provided by Itron hereunder shall be as set forth in the provision granting such license. b. Termination for Cause. Other than Customer's nonpayment which shall constitute a breach of this Agreement if full payment is not received within five (5) days of written nofice, either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings; (ii) breaches its obligations related to the other Party's confidential informafion; or (iii) commits a material breach of this Agreement that remains uncured for 30 days following delivery of written nofice of such breach (including, but not necessarily limited to, a statement of the facts relafing to the breach or default, the provisions of this Agreement that are in breach or default and the acfion required to cure the breach or default). c. Survival. Any provision of this Agreement that contemplates performance or observance subsequent to terminafion or expirafion of this Agreement shall survive terminafion or expiration and continue in full force and effect for the period so contemplated including, but not limited to, provisions relating to warranties and warranty disclaimers, intellectual property ownership, payment terms, confidentiality, waiver of consequenfial damages, and cap on liability. 13. Miscellaneous a. Entire Agreement. This Agreement and any attachments hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous agreements pertaining to such subject matter. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are superseded hereby and Customer represents and acknowledges that it has not relied on any representation or warranty other than those explicifiy set forth in this Agreement in connection with its execution of this Agreement. Neither Party shall be bound by terms and conditions imprinted on or embedded in purchase orders, order acknowledgments, statements of work not attached hereto or other communications between the Parties subsequent to the execution of this Agreement. b. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospecfively), only by a writing signed by an authorized representative of each Party and declared to be an amendment hereto. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived. c. Governing Law; Jurisdiction; Venue; Jury Trial;. This Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State of California without reference to California conflicts of law principles or the United Nations Convention on Contracts for the Sale of Goods. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT. d. Assignment. Customer may not assign or transfer its interests, rights or obligations under this Agreement by written agreement, merger, consolidafion, operation of law or otherwise without the prior written consent of an authorized executive officer of Itron. Any attempt to assign this Agreement by Customer shall be null and void. For purposes of this Agreement, the acquisition of an equity interest in Customer of greater than 25 percent by any third party shall be considered an assignment. e. Publicity. Unless otherwise provided in a separate confidentiality agreement between the Parties, each Party may issue a press release following the execution of this Agreement, subject to the other Party's written approval, which 8 '3 shall not be unreasonably withheld. Each Party hereby consents to the other Party's use of its name, URL and logo on its website and in its customer and partner lists for corporate and financial presentations. f Force Majeure. Neither Party will be responsible for any failure or delay in performing any obligation hereunder if such failure or delay is due to a cause beyond the Party's reasonable control, including, but not limited to acts of God, flood, fire, volcano, war, third-party suppliers, labor disputes or governmental acts. Notwithstanding the foregoing, Itron shall have no obligafion to deliver Equipment or provide Services to the extent that Customer is unable to pay as a result of a force majeure event. g. Notices. Any nofice required or permitted under this Agreement or required by law must be in writing and must be delivered in person, by facsimile, by certified mail (return receipt requested), or by a nationally recognized overnight service with all freight charges prepaid, to the address set forth below. Notices will be deemed to have been given at the time of actual delivery, if in person, or upon receipt (as evidenced by facsimile confirmation, return receipt or overnight delivery verification). Either Party may change its address for notices by written notice to the other Party in accordance with this Section. Itron: Attn: General Counsel Customer: Carlsbad Municipal Water Itron, Inc. District 2111 North Molter Road Liberty Lake, WA 99019 /?. Miscellaneous. Headings used in this Agreement are intended for convenience or reference only and will not control or affect the meaning or construcfion of any provision of this Agreement. If any provision in this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby and such provision shall be interpreted so as to best accomplish the intent of the Parties within the limits of applicable law. Any principle of construcfion or rule of law that provides that an agreement shall be construed against the drafter of the agreement shall not apply to the terms and conditions of this Agreement. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and all of which together shall constitute one and the same agreement. If available, maintenance and support for products will be provided pursuant to a separate maintenance agreement. Itron shall perform all work to be performed in connection with this Agreement as an independent contractor and not as the agent or employee of Customer. All persons furnished by Itron shall be for all purposes solely Itron's employees or agents and shall not be deemed to be employees of Customer for any purpose whatsoever. This Agreement is entered into only for the benefit of Customer and Itron. No other person or entity shall have the right to make any claim or assert any right hereunder, and no other person or entity shall be deemed a beneficiary of this Agreement. [Signature Page Follows] Agreed to and accepted: Itron, Inc. Signature Print Name: Tifie: ^'^esklent-Finance Itroni inc. Date: 1 Customer Signature: Print Name: Matt Hall Tifie: Mayor Date: September 25, 2012 Tax Exempt: Yes / No (if yes, attach copy of Tax Exemption Certificate) APPROVED AS TO FORM: RONALD R. BALL, CITY ATTORNEY Ronald Kemp, Assistant City Attorney [Signature Page to Sales Agreement] Attachment A-1 Pricing Summary Electric / Gas / Water Information collection, analysis and application 2111 N. Molter Rd. Pricing Summary for Upgrade Offer to City of Carlsbad, CA Liberty Lake, WA 99019 fax: 866-787-6910 www.itron.com ATTACHMENT A-1 Based upon BMR# 1552-12 Ver2 May Dated May 23,2012 Item Part Number Description Qty Unit Price Extended Price City of Carlsbad Price Notes Equipment 1 ERW-1300-202 100W ERT, Encoder with Integral Connector and Antenna Connector 5,842 $65.00 $379,730.00 No Charge (1) 2 MC3M OEM-0476-001 PWR-0033-001 SWK-0080-011 DCU-5310-011 DCU-5302-511 Mobile Collection 3 w/ 3-Year Warranty (Laptop) Includes: Toughbook CF-53 Laptop w/DVD (3-year warranty) Power Adapter, DC Automotive, CF-31 MC Software version 3.4.1 (Laptop Independent Install) MC3 RF Unit (3-year warranty) MC3, Portable Wiring, no mounting kit 2 2 2 2 2 $9,999.00 $19,998.00 No Charge (2-4) 3 ERW-1300-202 4 ERW-1300-202 100W ERT, Encoder with Integral Connector and Antenna Connector 100W ERT, Encoder with Integral Connector and Antenna Connector 8,000 14,000 $65.00 $65.00 $520,000.00 $910,000.00 $520,000.00 $910,000.00 (V (1) Professional Services 5 Project management 232 $190.00 $44,080.00 No Charge (5) Travel and Expenses $3,150.00 No Charge (5) 6 Installation Services- Retrofit up to 7,000 Meters 7,000 No Charge (1) Equipment and Professional Services Total $1,430,000.00 Notes and Assumptions (1) This pricing offer is for the replacement of the current Water SaveSource/200W Installed system. 8,000 of the 22,000 ERT's must be purchased by June 30, 2013 with remainder to follow. Itron will provide 5,842 - 100W ERT's and labor to install 7,000 ERT's upon receipt of non- cancelable Purchase Orders totaling 8,000 ERTs. Any interface wori< required to process radio reads thru MVRS to billing is the responsibility of Customer or their billing vendor. (2) Annual Maintenance for the RF unit and MC Software is available after the warranty period, starting at $2520/yr and $996/yr, respectively, based on Itron's current pricing. (3) The Panasonic Toughbook Laptop comes with a 5 year warranty. Panasonic does not offer Annual Maintenance after the warranty period so all Laptop hardware support will be handled under Panasonic Time and Materials process. (4) To pedestal mount the MC3's Laptop Customer must separately purchase a vehicle mount kit that is specific to Customer's vehicle. Gamber Johnson and Ram Mount both manufacture pedestals and other mounts for various vehicle types. www.aamberjohnson.com www.ram-mount.com (5) Professional Services are based on an 4 month project duration and assumptions that may require confirmation with Customer. A detailed discussion of project requirements will (6) Freight, taxes, duties, and tariffs are not included. Prices are in US dollars. Prices are valid until June 30, 2015. Confidential Attachment A-2 Warranty Terms Product Warranty Terms Mobile Collector 3 years from shipment 100W series water encJpoints (including battery) Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. For the first 10 years from the Effective Date of this Agreement and subject to the conditions set forth below, if during any calendar year more than 2 percent of Covered Endpoints, as defined below, fail to satisfy the warranties set forth in Section 1.f., then in addition to the remedies set forth in that Section, Itron shall provide Customer with a credit of $10 dollars for each Covered Endpoint that fails to satisfy the warranties set forth in Section 1.f. in excess of the aforementioned 2 percent threshold. If during any calendar year more than 4 percent of the Covered Endpoints fail to satisfy the warranties set forth in Section 1.f., then in addition to the remedies set forth in that Section, Itron shall at its expense, remove each Covered Endpoint that fails to satisfy the warranties set forth in Section 1.f. in excess of the aforementioned 4 percent threshold and install repaired or replacement Endpoints. The term "Covered Endpoints" means Endpoints that are identified on Attachment A-1 and are (i) covered by the warranfies provided Section 1.f. and (ii) installed within Customer's service territory. The foregoing remedies will only be available if Customer promptly (i) investigates all potentially defecfive Endpoints identified on Customer's most recent system performance and maintenance reports, (ii) timely returns to Itron all known Covered Endpoints that fail to satisfy the warranties set forth in Section 1.f. below the aforementioned 2 percent threshold in accordance with Itron's then-current return materials authorization procedures, (iii) notifies Itron in writing once more than 2 percent of the Covered Endpoints fail to satisfy the warranties set forth in Section 1.f, (iv) maintains all system performance and maintenance reports for a period of no less than 24 months, and (v) provides Itron with access to such reports and other Customer records as reasonably necessary for Itron to confirm Customer's compliance with the investigation, return and reporting requirements of this Section. Attachment B Statement of Work ITRON, INC Officer Certificate The undersigned, being the duly elected and qualified Assistant Corporate Secretary of Itron, Inc., a corporation organized under the laws of the state of Washington, USA (the "Company"), does hereby certify on behalf of the Company, the following: 1) Craig Hiteshew is the duly elected, qualified, and acting Vice President of Finance for the Company, who is authorized and qualified to enter into contracts, agreements, and other documents in the name of, and on behalf of, the Company. 2) Attached are the resolutions of the Board of Directors of the Company authorizing the Company's officers to execute and enter into contracts on behalf of the Company, which were duly adopted on February 14, 2008, and are current and in effect as of the date hereof IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the^%y of September, 2012. ITRON, INC Assistant Corporate Secretary Acknowledgement I, C^fj^dH-^fM^ Notary Public in and for the State of Washington, U.S.A., hereby certify that I know the person appearing before me as MariLyn R. Hill, who I know to be the Assistant Corporate Secretary of the Company and who I believe is legally qualified to perform this act. Subscribed to and sworn before me this^'^ay of September, 2012. Signa Name: Cjh^C^. ^l/f?37eX^nJ Notary Public residi^ coimty of Spokane. [Seal of the Notary Public] ngton. 26