Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
Fracta; 2024-02-20;
SOFTWARE AS A SERVICE SUBSCRIPTION Page 1 of 13 Order Form Customer Name: City of Carlsbad, CA Customer Address for Notices: 1635 Faraday Ave., Carlsbad, CA 92008 Customer Primary Contact: Stephanie Harrison Telephone: 442-339-2420 Email: stephanie.harrison@carlsbadca.gov Features Included Subscription Fee Year Likelihood of Failure (LoF) / Consequence of Failure (CoF) / Total Risk (TR) / Job (JP) $20,000 1 *Taxes and similar fees are not included: Price includes Fracta’s standard service to prepare Customer data for the Fracta System. Data preparation that is outside the standard scope, such as digitizing data from paper formats, will require an additional fee. This quote is valid for 90 days. Effective Date: The Effective Date of this Agreement is the ______________ day of _________________________, 2024. This Software as a Subscription Order Form is subject to the terms on this Software as a Subscription Order Form, Attachment A (Master Terms and Conditions of Agreement) and Attachment B (Scope of Work) which, taken together, constitute the “Agreement”, whereby Fracta will provide Customer with online access to one or more modules of the Fracta System on a subscription, Software as a Service (“SaaS”), basis. Fracta objects to and expressly rejects any different or additional terms contained in any purchase order, offer, confirmation or other document submitted by Customer. /// /// /// /// /// /// /// /// /// /// DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6 20th February -· ••• FRACTA SOFTWARE AS A SERVICE SUBSCRIPTION Page 2 of 13 Signatures: FRACTA CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) IT Director (print name/title) ATTEST: By: (sign here) SHERRY FREISINGER City Clerk (print name/title) APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney BY: _____________________________ Assistant City Attorney DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6 CEOYusuke Matoba for -· ••• FRACTA bt!AA fu..n,uro., SOFTWARE AS A SERVICE SUBSCRIPTION Page 3 of 13 Attachment A – Master Terms and Conditions of Agreement These are the Master Terms and Conditions of Agreement are part of the Agreement between Fracta, a California corporation (“Fracta”), and the Customer identified on a Fracta Software as a Service Subscription Order Form. 1. DEFINITIONS 1.1 “Agreement.” The complete Agreement between Fracta and Customer consists of the Software as a Subscription Order Form, these Master Terms and Conditions of Agreement and Attachment B (“Scope of Work”). 1.2 “Software as a Service” or “SaaS” refers to Fracta the hosted service provided by Fracta using the System to provide providing Customer with remote, internet-based access to the System and the results of the processing of the Customer Data by the System on a subscription basis. 1.3 “Normalized Customer Data” is the Customer Data after it has been assessed and cleaned by Fracta to operate properly in the System. 1.4 “System” is Fracta’s proprietary system of software, algorithms, data analysis and machine technology that helps water utilities improve the efficiency of water main pipe management and replacement. 1.5 “Updates” are revisions to correct errors or to improve the existing functionality of the System. Updates do not include modules or products that Fracta sells or licenses separately, but Updates do include products that are offered as replacements for the subscribed modules. 1.6 “User” is an individual whom the Customer has authorized to use the System on its behalf. 1.7 “Customer Data” includes the following information, in machine-readable electronic form: pipe location, age, size, characteristics and installation dates; GIS data; and pipe break data. 2. SUBSCRIPTION SERVICES. 2.1 License. Fracta grants to Customer a nonexclusive, nontransferable, non-sublicensable license to access and use the System, and to authorize Users to use the System, during the term of this Agreement, solely for the benefit of Customer. Customer shall at all time ensure that its and its User’s access to and use of the SaaS shall be in compliance with Fracta’s Software Acceptable Use Agreement available online, as may be updated or amended from time to time. 2.2 Availability. Fracta will use commercially reasonable efforts to make the SaaS available to Customer online 24 hours a day, seven days a week. Fracta may temporarily suspend the SaaS for maintenance, testing, and security purposes. Further, Fracta may be unable to provide access to the SaaS due to actions beyond its reasonable control, such as acts of God, attacks or other interference by third parties, and internet service provider or data center outages. If downtime is planned, Fracta will attempt to inform Users ahead of time, although Fracta is not obligated to do so and will not be liable if it fails to provide advance notice. 2.3 Names and Passwords. Customer is responsible for maintaining the security of all User names and passwords, for the security of its information systems used to access the SaaS, and for its Users’ compliance with the terms of this Agreement. Customer will immediately notify Fracta if it becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords or User names. Fracta DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE SUBSCRIPTION Page 4 of 13 has the right at any time to terminate or suspend access to any User or to Customer if Fracta believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the System. Users must not share passwords or user names. 2.4 Use Restrictions. Customer and Users may not do any of the following: (i) upload or submit any data that is not Customer Data; (ii) allow, directly or indirectly, any third-party person to view or use the SaaS, or benefit from the use of the SaaS (iii) access or use the SaaS for the benefit of any third party, or share or re-sell its access to the SaaS; (iv) copy or reverse engineer the SaaS; (v) modify, create derivative works based upon, or translate the SaaS; (vi) upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) Customer does not have a right to upload; (iii) contains any code designed to interrupt, destroy or limit the functionality of the SaaS; or (iv) poses or creates a privacy or security risk to any person or entity; or (vii) attempt to compromise the security or integrity of the SaaS. 2.5 Notification. Customer shall immediately notify Fracta if Customer becomes aware of any unauthorized access to or use of all or any of the SaaS. 3. DATA ENTRY 3.1 Data Requirements. Customer will electronically transfer the Customer Data to the Fracta for uploading to the System using an agreed-upon data transfer method and will provide information regarding the available data and database systems and database structures related to the Customer Data. 3.1.1. Customer will provide one pipe data zip file containing one of more the following file extensions: cpg, .dbf, .prj, .shp, .shx. A list of pipe material of construction, year installed and diameter should be included in the data file and the name of the corresponding column of the data clearly denoted. 3.1.2. Customer will provide one pipeline break history data file in either shapefile, CSV, or Excel format. If data is in Excel or CSV format, a column corresponding to address or latitude and longitude must be included (as well as the name of that column). The date of the Break, and the name of the column corresponding to this information. 3.1.3. Customer Data provided by Customer must be in an electronic format; geospatial data must be in an ArcGIS shapefile or similar format. Other data may be in a tabular Excel or similar format. 3.1.4. Fracta will assess and clean the Customer Data as necessary to create the Normalized Customer Data. 3.1.5. Fracta will load the Normalized Customer Data into the System. 3.2 Fracta will provide online access to the Normalized Customer Data, which Customer can view online and download. DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE SUBSCRIPTION Page 5 of 13 3.3 Data Responsibility. Responsibility for ensuring that the data entered into the System is accurate and reflects Customer requirements lies solely with Customer. 3.4 No Sensitive Data; Customer Responsibilities. The System is not intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or personally identifiable information. Customer assumes all risk arising from use of any such sensitive information with the System, including the risk of any inadvertent disclosure or unauthorized access thereto. Customer is responsible for ensuring that Customer’s use of the System is in compliance with all applicable laws and governmental regulations and Customer assumes all risk arising from any such use that is not compliant with applicable laws and regulations. 4. SUPPORT 4.1 System Updates and Changes. Fracta will provide access to the SaaS with all Updates to the System at no additional charge, when they are commercially available. Fracta reserves the right to add new features and functions to the System, and the right to discontinue features. Upon Customer’s reasonable request and on mutually agreeable terms, Fracta may enable Customer to continue to use discontinued features or functions. 4.2 Errors. An Error is a defect in the programming of the System software that causes it to fail to operate properly. Customer acknowledges that the software in general is not error-free and agrees that the existence of errors in the Software shall not constitute a breach of this Agreement. 4.3 Error Correction. Fracta will use commercially reasonable efforts to correct all material Errors reported by Customer, or to provide a reasonable workaround using its reasonable efforts during Fracta's normal business hours. Customer will provide access, information, and assistance as Fracta may reasonably require in the process of resolving any Error. This paragraph is Customer’s sole and exclusive remedy for Errors. 4.4 Support Requests. Customer may email or call Fracta to raise a support issue, using the contact information provided by Fracta. Fracta will provide the customer with a designated Customer Service Representative, as well as a designated Data Engineer (for technical issues). 5. TERM 5.1 Term. The Initial Term of this Agreement shall begin on the Contract Start Date and shall expire the one year following the Contract Start Date. The Agreement will renew, on the same terms and for the same yearly price, for successive Renewal Terms of one (1) year, upon mutual written agreement to renew between Fracta and Customer. If Fracta requests a change of price for the following year, Fracta shall also inform the customer and provide an updated quote at least thirty (60) days before the expiration of the then-current term. Any requested change of price will not exceed 5% of the previous year’s price. 5.2 Termination. Either party may terminate this Agreement upon written notice for a material breach by the other party that is not cured within thirty (30) days after written notice of breach. Either Party may immediately terminate this Agreement upon written notice if the other Party: (a) becomes insolvent and becomes unwilling or unable to meet its obligations under this Agreement; (b) files a petition in bankruptcy; or (c) is subject to the filing of an involuntary petition for bankruptcy that is not rescinded within a period of sixty (60) days. 5.3 Obligations Upon Termination. Upon termination of this Agreement: (i) Fracta may immediately terminate Customer’s access to the SaaS and the System; (ii) Upon written request from Customer DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE SUBSCRIPTION Page 6 of 13 received within 30 days of termination, Fracta will provide access to the SaaS for a period of 10 days for the limited purpose of exporting Customer Data. If Customer makes a timely request to export Customer Data, then once Fracta has reasonable evidence of delivery to the Customer, Fracta shall have no obligation to maintain or provide any Customer data and shall thereafter, unless legally prohibited, delete all Customer data in its systems or otherwise in its possession or under its control. 5.4 Survival. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. 6. CONFIDENTIAL INFORMATION 6.1 “Receiving” and “Disclosing” Parties. Careful protection and non-disclosure of Confidential Information (as defined below) by the Party receiving Confidential Information (“Receiving Party”) from the Party disclosing Confidential Information (“Disclosing Party”) is of importance to both Parties. The terms “Receiving Party” and “Disclosing Party” includes each Party’s officers, directors, employees and representatives. As to Customer, the terms “Receiving Party” and “Disclosing Party” also includes all entities controlling, controlled by and under common control with, Customer (each, an “Affiliate”) and such Affiliate’s representatives. 6.2 “Confidential Information.” For purposes of this Agreement, “Confidential Information” means all non-public information that a Disclosing Party designates as being confidential, or which, under the circumstance of disclosure, ought to be treated as confidential. Confidential Information includes, without limitation, Fracta’s algorithms, Fracta’s software system, Customer’s pipeline deployment data, and each Party’s research, development, trade secrets, product development plans, inventions, and technical data. Confidential Information does not include information which can be shown by the Receiving Party to be: (i) already known or in its possession without an obligation of confidentiality to the Disclosing Party prior to the execution of this Agreement; (ii) rightfully furnished to the Receiving Party by a third party; (iii) publicly available without breach of this Agreement; or (iv) independently developed by the Receiving Party without reliance on the Confidential Information as evidenced by written records of the Receiving Party. 6.3 Protection of Confidential Information. During the term of this Agreement, Receiving Party agrees to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information including, without limitation, all precautions that Receiving Party uses for to its own confidential information, but in no event less than reasonable care. Fracta acknowledges and agrees that Customer is a California charter city, which limits the Customer’s ability to withhold information from the public contrary to the requirements of the California Public Records Act (CA Government Code § 6250 et seq.) and the California Civil Discovery Act (California Code of Civil Procedure § 2016.010 et seq.)(collectively “California Disclosure Laws”). 6.4 Required Disclosures. If a Receiving Party is legally compelled by a court or governmental body to make any disclosure of Confidential Information, the Receiving Party shall (i) promptly notify the Disclosing Party, unless such notice is prohibited by law; and (ii) consult with and assist the Disclosing Party, at the Disclosing Party’s expense, in obtaining an injunction or other appropriate remedy to prevent such disclosure. 6.5 Unauthorized Disclosure. If a Receiving Party discovers that the Disclosing Party’s Confidential Information has been used or disclosed in violation of this Agreement, the Receiving Party will DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE SUBSCRIPTION Page 7 of 13 immediately: (i) notify Disclosing Party; (ii) take reasonable action to minimize the impact of the use or disclosure; and (iii) take necessary steps to prevent a further disclosure of any Confidential Information. Return of Confidential Information. A Receiving Party will return or destroy all Confidential Information and all copies received from the Disclosing Party within 15 days of the Disclosing Party’s request. If the Confidential Information is destroyed by Receiving Party, that Receiving Party must certify such destruction in writing. Notwithstanding the foregoing, the Receiving Party may retain one copy of any of Disclosing Party’s Confidential Information to comply with Receiving Party’s legal or regulatory requirements. 7. FEES and PAYMENT 7.1 Advance payment for each upcoming full year is due on the first day of service of that year. If Customer orders additional subscriptions or an upgraded Plan during the Term of this Agreement, the first-year subscription fee and first-year term for the additional subscriptions or upgraded Plan will be prorated to cover the remaining portion of the current year. If Fracta issues an invoice, it will be due and payable net thirty (30) days. 7.2 After the term of this contract, Fracta may increase the subscription fees for the coming year(s) by an amount not to exceed five (5) percent of the previous year’s subscription fee. Fracta will provide a quote for future years of service to the customer for joint discussions and agreement. 7.3 For any Data Normalization services that are outside the standard scope, the Customer will be provided a separate quote for specific services on a case-by-case basis. 7.4 All fees quoted to Customer for the provision of the Services by Fracta are exclusive of any sales tax or similar tax or fee. 8. NOTICES. All written notices required by this Agreement must be delivered to the addresses shown on Software as a Subscription form by certified mail, and will be effective upon receipt. Either party may change its address for notices by giving written notice of the change to the other party. 9. OWNERSHIP 9.1 The SaaS and System. Fracta owns all right, title and interest and all intellectual property rights in the System and the SaaS. Fracta will also own any suggestions, enhancement requests, feedback or recommendations relating to the System or the SaaS that are provided by Customer or User (“Feedback”). Customer agrees to assign, and hereby assigns, all right, title and interest worldwide in the Feedback, and the related intellectual properties rights to Fracta. 9.2 Customer Data. Customer warrants that it either owns all right, title and interest in the Customer Data, or has a license or other legal right to use the Customer Data in the System, including the right to license the use of the Customer Data to Fracta as provided in this Agreement. All Customer Data obtained by Fracta in the performance of this contract shall become and remain property of the Customer. Fracta shall implement and maintain appropriate administrative, technical, and organizational security measures to safeguard against unauthorized access, disclosure or theft of 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 nonpublic data of DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE SUBSCRIPTION Page 8 of 13 similar kind. 9.3 Fracta Use of Customer Data. Customer grants to Fracta a nonexclusive, nontransferable (except in connection with a permitted assignment as set forth below), non-sublicensable license to store, use, copy, transmit, modify and display the Customer Data solely (1) to process the data on Customer’s behalf, (2) to improve the System, and (3) to improve Fracta’s analytical model or algorithms. Customer understands that due to the nature of the machine learning process, exposure to the Customer Data will inherently improve the System and Fracta’s analytical model and algorithms. 10. DISCLAIMERS 10.1 All forms of non-destructive testing involve an inherent and unavoidable level of uncertainty. The results provided by Fracta are therefore not guaranteed. The methods used for leak detection and pipe condition assessment are highly dependent on input parameters. As a result, Fracta is not responsible for any actions taken by Customer based on the System or on Fracta’s recommendations. 10.2 EXCEPT FOR THE LIMITED ERROR CORRECTION WARRANTY PROVIDED IN THIS AGREEMENT, FRACTA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO THE SYSTEM, OR TO FRACTA’S SERVICES. FRACTA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. FRACTA DOES NOT WARRANT OR REPRESENT THAT THE SYSTEM WILL BE FREE FROM ERRORS OR THAT ITS USE WILL BE UNINTERRUPTED, OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SYSTEM IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THESE DISCLAIMERS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. 11. Exclusion of Certain Damages FRACTA WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR RELIANCE DAMAGES, INCLUDING ANY DAMAGES DUE TO LOST OR CORRUPTED DATA, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SYSTEM, EVEN IF FRACTA KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES. WITH THE EXCEPTION OF CUSTOMER’S OBLIGATION TO PAY FEES, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SYSTEM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED TWICE THE AMOUNT OF FEES PAID OR PAYABLE TO FRACTA BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY. THIS LIMITATION OF DAMAGES SHALL BE GIVEN FULL EFFECT EVEN IF THE WARRANTIES PROVIDED IN THIS AGREEMENT ARE DEEMED BY AN ARBITRATOR OR COURT TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. This Section does not limit either party’s liability for bodily injury, gross negligence or willful misconduct. 12. DISPUTE RESOLUTION 12.1 Negotiation. The Parties will make good faith efforts to resolve disputes through informal discussions between the appropriate representatives of the parties. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of laws principles. DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE SUBSCRIPTION Page 9 of 13 13. INDEMNIFICATION Indemnification of Customer. Fracta agrees to defend Customer and its directors, officers and employees from and against any and all claims, demands, suits or proceedings made or brought against Customer by third parties, and agrees to pay or reimburse Customer for any and all damages, costs and expenses payable by Customer to such third party to the extent that they are awarded in a final judgment or agreed to in settlement, as a result of a claim against Customer, based upon or arising out of: (i) any dishonest, fraudulent, criminal, or negligent acts committed by Fracta, or any agent or employee of Fracta, acting pursuant to, or in connection with, the Agreement; or (ii) a claim that the use of the Software as a Service or the System as permitted hereunder infringes the intellectual property rights of a third party, privacy rights or publicity rights of a third party. As a condition of Fracta’s indemnification obligation, Customer must (i) promptly give written notice of the claim to Fracta, (ii) give Fracta sole control of the defense and settlement of the claim (provided that Fracta may not settle or defend any claim unless it unconditionally releases Customer of all liability), (iii) provide to Fracta all reasonable and available information and assistance, and (iv) not have compromise or settled such claim. 13.1 Indemnification of Fracta. Customer agrees to defend Fracta and its directors, officers and employees from and against any and all claims, demands, suits or proceedings made or brought against Fracta by third parties, and agrees to pay or reimburse Fracta for any and all damages, costs and expenses payable by Fracta to such third party to the extent that they are awarded in a final judgment or agreed to in settlement, as a result of a claim against Fracta, based upon or arising out of: (i) any dishonest, fraudulent, criminal, or negligent acts committed by Customer, or any agent or employee of Customer, acting pursuant to, or in connection with, the Agreement; or (ii) a claim the Customer Data infringes the intellectual property rights, privacy rights or publicity rights of a third party. As a condition of Customer’s indemnification obligation, Fracta must (i) promptly give written notice of the claim to Fracta, (ii) give Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless it unconditionally releases Fracta of all liability), (iii) provide to Customer all reasonable and available information and assistance, and (iv) not have compromise or settled such claim. 14. GENERAL 14.1 Non-Solicitation. Neither party shall, directly or indirectly, induce or entice any employee of the other to leave such employment, or induce or entice any of the other party’s sub-contractors to provide any services other than by an agreement with, and through, such other party. Employees responding to a generally published notice or advertisement shall not fall under this provision. 14.2 Assignment. It is mutually understood and agreed that this Agreement will be binding upon Customer and Fracta 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 Fracta without the prior consent of Customer, which shall not be unreasonably withheld; provided, however, that no such consent shall be required for Fracta to assign this Agreement to a corporate affiliate or to a successor as a result of merger, consolidation, acquisition or sale of all or substantially all of such party’s assets so long as the assignee agrees in writing to assume all obligations and liabilities of the assigning party hereunder . 14.3 California Law and Venue. The laws of the State of California (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement. Any claims or DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE SUBSCRIPTION Page 10 of 13 actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in San Diego County, California, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all claims and actions arising out of or relating to this Agreement. 14.4 Force Majeure. Neither Party shall be liable for any failure or delay of performance due any unforeseeable event, such as, but not limited to, fire, strike, inevitable accidents, war, terrorism or any other cause outside the reasonable control of the defaulting Party, and occurring without its fault or negligence. 14.5 Entire Agreement. This Agreement constitutes the final, complete and exclusive agreement between the parties as to the subject matter hereof, and supersede any prior or contemporaneous agreement, proposal, warranties and representations. 14.6 Conflicting Terms; Amendments. This Agreement prevails over any conflicting or additional terms of any quote, purchase order, invoice or other communication. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. 15. 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. 15.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City 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. City, 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 City as an additional insured. (i) 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 and in the aggregate. (ii) 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 DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE SUBSCRIPTION Page 11 of 13 employees and provides, to City's satisfaction, a declaration stating this. (iii) Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,000 per claim and $2,000,000 in the aggregate. Coverage must be maintained for a period of five years following the date of completion of the work. 15.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: (i) The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. (ii) Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. (iii) 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 City sent by certified mail pursuant to the Notice provisions of this Agreement. 15.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 15.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City 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 City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 15.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 16. BUSINESS LICENSE Fracta will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE MASTER AGREEMENT Attachment B – Scope of Work 1. SERVICES Fracta will perform the following services under this Agreement: ● Project Management: Fracta will assign a project manager to oversee the delivery of the Services. The project manager will perform project management functions for the project. Fracta will communicate the status of the project with Customer on a biweekly basis until the Customer has received access to Fracta system. ● Kick-Off Meeting: Fracta will coordinate and set up a kick-off meeting with Customer to introduce the team members, review the project tasks, discuss roles and responsibilities, review the scope and schedule for the project, and any other relevant project information. ● Data Request: Fracta will meet with Customer to identify available data and formats. Fracta or Customer will upload the requested data to the data exchange portal. ● Data Review: Fracta will review the data that Customer provides. ● Data Clean-Up, Normalization, and Import into Software: Fracta will analyze the pipe asset and historical break data to identify data gaps and outliers. Fracta will coordinate a discussion with the Customer if it identifies any data anomalies that must be addressed by the Customer. Fracta will perform data clean-up and normalization to include formatting data for proper use in the Fracta model. Clean-up of data that is significantly outside the requirements is out of scope: this may include, for example, filling data gaps for pipe asset information with parcel data, geo-coding break history to align to pipe assets and other more manual data manipulation. If applicable, Fracta will provide an estimate of the cost for the out-of-scope work prior to proceeding. ● Review of Results: Fracta will coordinate and set up a meeting with the Customer to review the results of Fracta system. ● Access to Online Tool: Fracta will provide the Customer with on-going access to Fracta system for the Term of the Agreement. On-going access will be provided in the form of user accounts. ● Additional Services. For any services that are outside the scope of this Agreement, Customer will be billed on a time-and-materials basis. Fracta will charge $1,200 per day, in minimum billing increments of two hours, plus reasonable and necessary out-of-pocket expenses, provided that Customer must pre-approve such services as a written amendment to this Agreement. 2. DELIVERABLES Fracta will provide the following Deliverables: ● Cleaned, digital data files of pipe assets and main break data in GIS shape and .csv file formats ● One (1) hour remote meeting at Customer to present results in the Fracta Likelihood of Failure system ● Software Access to the Fracta system that provides: o Statistics and performance indicators ▪ Graphs include, e.g., Total # of breaks per year, Break rate per year, Total # of breaks and break rate per material, per install year and per install decade ▪ Mapped analytical visualization about historical break data o LoF, CoF, TR ▪ Mapped visualizations o Downloadable data files ▪ Cleaned data files (GIS shape, .csv file formats) DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA SOFTWARE AS A SERVICE MASTER AGREEMENT ▪ LoF, CoF, and TR (GIS shape, .csv file formats) 3. CUSTOMER RESPONSIBILITIES Customer will provide the following resources to enable Fracta to complete the work per the Section Schedule: ● Pipe asset file in a GIS format to at least include: o Unique pipe segment ID o Pipe Material Type (AC, DI, CI, PVC, etc.) o Pipe Length o Pipe Diameter ● Hydraulic Pressure (Nodes) o GEO Information (WKT) o Pressure Minimum o Pressure Maximum o Pressure Average ● Break history file in GIS format or other geocodable format to at least include: o Unique pipe segment ID o Break date ● Designated point of contact who can facilitate bi-weekly status meetings and provide answers to data questions that might arise during the project 4. SCHEDULE Total project length is estimated at 8-12 weeks from receipt of the Customer data. Fracta will provide a final schedule after Customer data has been received and reviewed. PROJECT MANAGER FRACTA: Name: Ardyn Allessie CUSTOMER: Name: Stephanie Harrison Phone: 650-272-7683 Phone: 442-339-2420 Email: ardyn@fracta.ai Email:stephanie.harrison@carlsbadca.gov 5. ASSUMPTIONS ● Data provided by Customer will be in an electronic format; geospatial data will be in an ArcGIS shapefile or similar format. Other data will be in a tabular Excel or similar format. ● Timeline is dependent on the availability of Customer resources to answer questions about the submitted data and for the review and comments on the results and final report. DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6-· ••• FRACTA 2/9/2024 OnePoint Business & Insurance Services 1038 Leigh Ave 100B San Jose CA 95126 Jeff Tatro (408)280-2100 (408)280-2110 jeff.tatro@onepointbusinessinsurance.com Fracta 490 S California Ave. Suite 310 Palo Alto CA 94306 Underwriters at Lloyd's London 15792 GL/UM/PL 23-24 A X X X X Tech / Cyber Liability X CSIEL00391-00 4/23/2023 4/23/2024 1,000,000 100,000 10,000 1,000,000 2,000,000 2,000,000 Tech / Cyber Liability 2,000,000 A X CSIXEL00187-00 4/23/2023 4/23/2024 3,000,000 3,000,000 A Professional Liability CSIEL00391-00 4/23/2023 4/23/2024 Per Occurrence $1,000,000 Errors & Omissions Aggregate $2,000,000 Project: All California Operations Certificate of Insurance naming City of Carlsbad as an Additional Insured as required by written contract with respect to work performed by insured. *30 Day Notice of Cancellation for Non-Payment of Premium City of Carlsbad 1635 Faraday Ave. Carlsbad, CA 92008 Jeff Tatro/CF The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER ©1988-2014 ACORD CORPORATION.All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person)$ PERSONAL &ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L.EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE Ifyes,describe underDESCRIPTION OF OPERATIONS below (Mandatory in NH)OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNEDAUTOSAUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ 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. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: 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 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S)AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INS025 (201401) DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6 ~ I ACORD® ~ I L--tJ □ L-- ~ R □ □ - -- '---'--- ~ ~ L--H I I I I I □ tb " ~ '--:/ C. /, / I CG 20 10 07 04 GENERAL LIABILITY CG 20 10 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s)Or Organization(s): Location(s) Of Covered Operations Any person(s) or organization(s) whom the NamedInsured agrees, in a written contract, to name as an Additional insured. However, this status exists only for the project specified in that contract. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Policy Number:CSIEL00391-00 COMMERCIAL DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6 GENERAL LIABILITY CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Location And Description Of Completed Operations Any person(s) or organization(s) whom the Named Insured agrees, in a written contract, to name as an additional insured. However, this status exists only for the project specified in that contract. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the schedule of this endorsement performed for that additional insured and included in the "products-completed operations hazard". CG 20 37 07 04 © ISO Properties, Inc., 2004 Policy number:CSIEL00391-00 COMMERCIAL DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6 CG 24 04 10 93 Insurance Services Office, Inc., 1992 POLICY NUMBER:CSIEL00391-00 COMMERCIALGENERALLIABILITY CG 24 04 10 93 THIS ENDORSEMENT CHANGES THE POLICY.PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERYAGAINSTOTHERSTOUS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: Any person(s)or organization(s)whom the Named Insured agrees,in a written contract,toprovideawaiverofsubrogation. However,this status exists only for the project specified in that contract. (If no entry appears above,information required to complete this endorsement will be shownintheDeclarationsasapplicabletothisendorsement). The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition(Section IV –COMMERCIAL GENERAL LIABILITY CONDITIONS)is amended by theadditionofthefollowing: We waive any right of recovery we may have against the person or organization shown in theScheduleabovebecauseofpaymentswemakeforinjuryordamagearisingoutofyourongoingoperationsor"your work"done under a contract with that person or organization andincludedinthe"products-completed operations hazard".This waiver applies only to thepersonororganizationshownintheScheduleabove. DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6 PGI EL 020 0210 Page 1 of 1 PRIMARY AND NON-CONTRIBUTORY ENDORSEMENT This endorsement changes the Policy. Please read it carefully. SCHEDULE Name of Person or Organization: Any person(s) or organization(s) whom the Named Insured agrees, in a written contract, to provide Primary and/or Non-contributory status of this insurance. However, this status exists only for the project specified in that contract. In consideration of the premium charged, it is hereby agreed that this policy shall be considered primary to any similar insurance held by third parties in respect to work performed by you under any written contractual agreement with such third party. It is further agreed that any other insurance which the person(s) or organization(s) named in the schedule may have is excess and non-contributory to this insurance. DocuSign Envelope ID: 0D841070-72DF-4B24-8979-9CF79DD5CAF6