Loading...
HomeMy WebLinkAboutWaterSmart Software Inc; 2022-08-30;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