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HomeMy WebLinkAboutC-6407 - PSA for Customer Engagement and Analytical Servicesr- 13 r AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT V WITH SMART ENERGY SYSTEMS LLC FOR CUSTOMER ENGAGEMENT AND ANALYTICAL SERVICES THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 4th day of September, 2018 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SMART ENERGY SYSTEMS LLC, a Delaware limited liability company ("Consultant'), whose address is 19900 MacArthur Boulevard Suite 370, Irvine, California 92612, and is made with reference to the following: RECITALS A. City and Smart Utility Systems LLC, a California limited liability company ("Original Consultant'), entered into a Professional Services Agreement dated November 24, 2015 ("Agreement') for customer engagement and analytical services ("Project'). B. On September 6, 2017, Original Consultant assigned its rights, title and interest in and obligations under the Agreement to Consultant. C. The parties desire to enter into this Amendment No. One to extend the term of the Agreement to October 31, 2020. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM Section 1 of the Agreement is following: 'The term of this Agreement terminate on October 31, 2020, unless 2. INTEGRATED CONTRACT amended in its entirety and replaced with the shall commence on the Effective Date, and shall erminated earlier as set forth herein." Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: lo - i - 18 . r n m C. Har Attorney ATTEST: Date: .C✓ 0 10.1 I. �. �,�, • I City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: /0-19-18 By: Grac . Leung City M6nager CONSULTANT: SMART ENERGY SYSTEMS LLC, a Delaware Limited Liability Compan Date: $ By:�-- Brad Adamske Senior Vice President Date: /0 — D LY - By: Aman Singh Director of Aerations and Finance. [END OF SIGNATURES] Smart Energy Systems LLC Page 2 O' PROFESSIONAL SERVICES AGREEMENT WITH SMART UTILITY SYSTEMS LLC FOR CUSTOMER ENGAGEMENT AND ANALYTICAL SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement) is made and entered into as of this 24th day of November, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and SMART UTILITY SYSTEMS LLC, a California limited liability company ("Consultant'), whose address is 211 Michelson Drive, Suite 370, Irvine, California 92612, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide customer engagement and analytical services ("Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on October 31, 2018, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand-delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not-to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and shall not exceed Ninety Six Thousand Dollars and 001100 ($96,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Smart Utility Systems, LLC Page 2 Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Brad Adamske to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non-key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. City's Co-Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. Smart Utility Systems, LLC Page 3 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties') from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, subconsultants, suppliers, vendors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Smart Utility Systems, LLC Page 4 Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint-venture or syndicate or co-tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership orjoint-venture. Smart Utility Systems, LLC Page 5 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. Smart Utility Systems, LLC Page 6 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. OWNERSHIP OF INTELLECTUAL PROPERTY Unless otherwise expressly agreed upon by Consultant and City, Consultant does not confer any right, license, interest, or title in, to, or under any patent, trademark, copyright, trade secret, or other proprietary rights ("Intellectual Property') to City under this Agreement, and shall fully retain all rights, interest, and title to such Intellectual Property. City and Consultant further agree to the terms as set forth in the attached End User License Agreement ("EULA"), attached hereto and incorporated herein as Exhibit D. 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall 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 to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. Smart Utility Systems, LLC Page 7 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be bome by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: George Murdoch, Municipal Operations Director Municipal Operations Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Smart Utility Systems, LLC Page 8 Attn: Brad Adamske Smart Utility Systems LLC 2211 Michelson Drive, Suite 370 Irvine, CA 92612 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 28. TERMINATION 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non-defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. STANDARD PROVISIONS 29.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 29.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter Smart Utility Systems, LLC Page 9 enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 29.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 29.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 29.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 29.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 29.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 29.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. Smart Utility Systems, LLC Page 10 29.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Smart Utility Systems, LLC Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORKEY', OFFICE Date: c j By: l Aaron C. Harp CAM %%hchr City Attorney ATTEST: 'a �� Date: Leilani 1. •wn City Clerk CITY OF NEWPORT BEACH, a California mu icipal corporation Date: 1t2�.Ci I By: Dave i City Manager CONSULTANT: SMART UTILITY SYSTEMS LLC, a California limited liability company Date: 120i`s By: Deepak Garg Chairman and Chief Executive Officer Date: n 1'Z-191,20 IS F�aybwlett \J Ch -16f Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Exhibit D — End User License Agreement Smart Utility Systems, LLC Page 12 EXHIBIT A SCOPE OF SERVICES Smart Utility Systems LLC Page A-1 SCOPE OF SERVICES • PROJECT DESCRIPTION o Furnish all labor, equipment, materials and supervision to create and implement web-based water conservation software services, including but not limited to: ■ Customizable home water reports (electronic and/or print), ■ Resident online portal to review water usage, rebate information and program participation, ■ City utility analytics, • Customer Survey, and ■ On-site training of program to City staff members. • PROGRAM SET-UP o The Consultant shall: • Provide a license for the City of Newport Beach to use its customizable web- based software which promotes, tracks, and reports water use and water- efficiency measures and includes a portal for customers and the City. • Specify in the proposal the data requirements, data format, tools, methodology and technology utilized to securely transfer data to vendor site. • Provide a secure channel to transfer necessary data on accounts, including but not limited to: residence information; consumption history; current consumption; interval data; rebate program participation. • Create a regular transfer schedule of meter reads from the City to Consultant. • Outline as part of their proposal, any additional costs or process changes if the City implements a new data management system after the program set- up and initialization. o Consultant Technical Specifications. • Ability to explain the technology and methodology for achieving fast page loading. ■ Produce a website to be compatible with current versions of major web browsers (Internet Explorer, Chrome, Safari, Firefox and Opera). • Provide site compatibility for mobile devices including but not limited to smart phones and tablets using iOS and Android operating systems. • Specify the platform and programming language used to develop the website. Preferred tools are HTML, HTMLS,ASP.Net, PHP, and XML. ■ Describe hours and method of customer service support, particularly for the web-based application. The City shall be notified of the nature of any customer service requests and resolution. o Consultant shall launch a City-facing web application with visibility into all of the City's customer accounts to provide performance reporting and analytics. • DESIGN OF CUSTOMER PORTAL AND HOME WATER REPORTS o The Consultant shall design a direct mail water use report, email water use report, and web application to increase customer awareness of water use relative to 2013 water use levels, as well as stimulate participation in water use efficiency programs and rebates. o All marketing and evaluation collateral, including the web application shall be branded with the City of Newport Beach's logo. The Program's Customer-facing web application shall provide working links to City sites to be decided in coordination with City staff. o Customer Portal • The Consultant shall customize and host a web-based application with secure registration and login for each residential account. The Consultant shall describe the proposed content for the Customer-facing web application and must provide sample format, design and content of the web-based application and functionality in the proposal. Proposal should also include information on safety and security features of online application. • Access for all accounts receiving Home Water Reports • Customers may set preferences for email or print delivery • The Consultant shall develop methodology for tracking and quantifying the activity, awareness, and water savings this Program generates. The Customer-facing web application shall be developed by the Consultant and contain all the information presented in the home water report. o Home Water Report Content The Consultant will customize Home Water Reports for the City, including the City logo, contact information and programs. At a minimum, the following content shall be present for the end customer as part of the Home Water Report, whether electronic or print: • Water use consumption (gallons per day) • Water use comparisons to 2013 consumption levels. • Future water use projections/goals based on percentage of 2013 water use • Estimated end-uses of water (i.e. irrigation, showers, etc.) for each household. ■ Information, multimedia content, and links to water use efficiency programs and rebates, and other outreach programs. ■ Personalized water savings recommendations based on the customer's household profile and consumption history. • Customer driven pledges to implement specific water conservation actions and estimated water savings from those potential actions. • Household profile updates and estimates of water use changes as a result of changes to household profile. • The Consultant shall develop and send a Welcome Letter to all report recipients, on behalf of the City, in coordination with the City staff that will be branded for the City, to inform residents about the program, the Customer-facing web application, and the Home Water Reports. o The Consultant shall develop an online Customer Survey to capture baseline attitudes and customer satisfaction, occupancy rates, saturation rate of fixtures and appliances, customer willingness to implement water use efficiency behaviors and upgrades, and to gather email addresses. The online Customer Survey link is to be included in the Welcome Letter sent to all report recipients. The Consultant shall share all of the results of the surveys with the City. o The Consultant shall develop a process and schedule whereby the City can request additional customized messaging for the Home Water Reports, and revisions to existing messages. o The Consultant shall provide the City the opportunity at the start of the program to customize water savings recommendations, including the content of the recommendations, the title of the recommendations, links or videos provided with the recommendation, and photos shown with the recommendation. o The Consultant shall generate usage comparison for households without 2013 data, based on median usage of similar households. • UTILITY ANALYTICS DASHBOARD o The Consultant shall customize a City-facing web dashboard which should provide the City staff with an understanding of the program metrics, progress and results. The dashboard should be viewable only by the City staff and should include at a minimum the features below. • Unlimited number of utility logins • Summary of program statistics, including: activity reports, frequency of portal use, rebate participation, etc. • Ability to view every customer's web application and account • Interactive map displaying residences ■ Top 200 water usage consumers per billing period and other reports • Water savings consumers per billing period and other reports • Ability to identify when customer makes changes to their profile • Number of people per household • Tracking of customer requests and inquiries o Consultant must provide sample format, design and content of the web-based application and functionality in proposal. Consultant shall also provide information on safety and security features of the City-facing dashboard. o Functionality should include the ability for the City to download data for analysis in a convenient format (e.g. Excel). • HOSTING, MAINTENANCE, &SECURITY o The Consultant shall provide a secure hosting site, approved by the City, for data collected. o The Consultant shall provide maintenance of the licensed web-based software, including customer support. The Consultant shall include maintenance protocol in the proposal. o The Consultant shall provide a description of security and privacy controls for all personally identifiable information provided to Consultant in service of project, including procedures for data protection, cyber security and security breaches. • The water use reports and website shall present and maintain confidentiality of information such as customer specific water use data, account information, and other identifiable customer characteristics. o The Consultant shall host a coordination meeting with the City staff to cover data demands and security. • PROGRAM IMPLEMENTATION o Implement the Program based on the finalized Program design. o Reports will be disseminated once a month, ability to increase/decrease frequency in order to optimize the effectiveness of the Program. o Launch the Web-Based Application, the Customer-facing web based applications, the City-facing web based dashboard, analytics and reports. o Produce, print and mail Home Water Use Reports to designated customers in the Program at the agreed upon schedule. o Produce and disseminate web-based reports to designated customers in the Program at the agreed upon schedule. • STAFF TRAINING o The Consultant shall provide, at a minimum, two training sessions for the City staff involved in the Program with the Consultant's web application functions and data requirements. • PROJECT MANAGEMENT o The Consultant shall coordinate with City staff to ensure adherence to the schedule and budget, communicate with staff, and provide regular project status report updates. The Consultant shall organize and attend meetings and workshops, in person or by webinar, as required. Web-based meetings are practical where appropriate.The Consultant shall prepare agendas for prior review and shall conduct and/or assist in conducting the meetings and workshops as needed. A proposed list of the meetings and workshops is provided below: ■ Kick-off meeting, goal setting, & Program Design • Coordination meeting with staff to review data transfer & security, content, marketing collateral &web application design • Pre-launch web application & customer service training workshop/webinar for staff • First year Program wrap-up meeting o Both the Consultant and the City shall designate a single person as Program Manager for the program. All the City decisions shall be channeled through the City Program Manager. The City shall also designate a Data Contact who will be responsible for providing the data needed for the Program. • PROGRAM QUALITY ASSURANCE o At a minimum, the Consultant shall provide detailed information on how the Program will be measured and verified. Relevant details should include the methodology for the evaluation, measurement, and verification of water savings attributable to the Program, and the information/specific metrics that will be available to the City (as related to water savings, customer satisfaction, cost effectiveness, program participation, staff efficiency, etc.), time frames for availability and frequency of reporting, and information on staff experience and expertise as it relates to program measurement and verification. At the conclusion of the first year, a report verifying the water savings shall be provided along with recommendations on how to improve and possibly expand the Program. If the City chooses to evaluate the performance of the Program with a third party,the Consultant shall provide all necessary information to that third party to facilitate the verification of results. EXHIBIT B SCHEDULE OF BILLING RATES Smart Utility Systems LLC Page B-1 COST FILE MG --_ S01v1cas – 1= Annual Cost for Customer Facing User Portal $16,302.00 Annual Cost for Five City-Facing Portal Users $1,662.50 Im lementation Cost one-time fee $2,500.00 Cost to print and mail water reports per address Up to$0.78 per re port Cost to prepare individual PDF reports for City toprint) $0.14 per report Additional City-Facing Portal users $350.00 per user ;i_Fsu ort: — Business/Technical Analyst $55.00 per hour Business Manager $65.00 per hour Technical Manager $85.00 per hour Business SME $120.00 per hour Attachment to Cost File �L.JS 8M/.T UTILITY SYSTEMS SUS will provide follow additional volume discount on 3 year/5 Year contracts. .. Annual License Annual License Annual License Discount Discount 5% Discount 10% • '• • $17,160.00 $16,302.00 $15,444.00 • . : •• $1,750 $1,662.50 $1;575.00 • • Up-to.78 Up-to .78 Up-to.78 • $2500.00 $2500.00 $2500.00 Note: 1- There will be no additional cost for the email reports and the City will have ability to send unlimited emails to its customers. 2- Maintenance and support cost is included in the software license. 3- The initial implementation,set up and configuration fees for cloud installation will be at$2,500. 4- Cost to print and mail reports per address listed above at 0.78 per report assumes a four color page report.The cost can be further reduced after more discussion with city on#page and postage. SUS CONFIDENTIAL 1 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Smart Utility Systems LLC Page C-1 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Smart Utility Systems LLC Page C-2 Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non-Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Smart Utility Systems LLC Page C-3 EXHIBIT D END USER LICENSE AGREEMENT Smart Utility Systems LLC Page D-1 END USER LKENSE AGREEMENT!"EUW) This End User License Agreement("EULA")Is a binding legal agreement between The City of Newport Beach,as an entity("Newport"or"You"), and Smart Energy Systems,LLC,the parent company of Smart Utility Systems,LLC("SUS").By downloading,Installing,or using this appIicatlon(s) for Android,Windows, IOS or other mobile or desktop platform("Software"),as applicable and identified in the Statement of Work or other relevant document or agreement("Service Agreement"),you agree to be bound by the terms of this EULA.If you do not agree to the EULA,do not download,install,or use the Software.The Software Is provided to you under this EULA solely for your use and the use of your utility customers,field workers,or both.You agree that Installation or use of the Software signifies that you have read,understood,and agree to be bound bythe EULA. 1.License. SUS grants you,subject to the terms and conditions of this EULA and the Service Agreement, non-sublicensable(except where otherwise permitted),non-exduslve,non-transferable license to make the Software available to your utility users and/or employees up to the number of authorized users on the platforms and configurations specified in the relevant invoice or Service Agreement.For desktop or web-based users,an Authorized User is one:(a)for whom the applicable license fees have been paid,and(b)who are properly and uniquely Identified as users of the Software,and,(c)who are properly authorized to install and/or use the functionality In the Software.For mobile or core-based users,an Authorized User is one(a)for whom the applicable license fees have been paid and(b)who is properly authorized to Install and/or use the Software.You may use the Software in a technical environment and on the platforms and configurations specified In the Service Agreement, solely for Internal development and testing In connection with your licensed Software,or for backup purposes ("Non-Production Environment°).Your installation or use of a copy of the Software In a Non-Production Environment Is limited to thesame number of Authorized Users and/or number of cores as provided In the Service Agreement.Your use of the Software in a Non-Productlon Environment may be concurrentwith your use of the licensed Software.Such use is conditioned on you having an authorized license for the Software.As it relatesto the desktop Software,your commercial use of the Software is considered use within a production environment and you are entitled to one(1)production environment for each Software license you purchase under this Agreement.Your use of the Software In a Production Environment allows for a single Production Environment per license regardless of the fact that a single Production Environment may consume all the cores identified on your invoice or at the time of purchase. 2. Third Parties. You may permit third parties("Permitted Subllcensees")to access the Software as authorized users from your servers and/or equipment on your behalf, provided that,(a)you shall remain responsible for the acts and omissions of such Permitted Sublicensees as if such were your acts and omissions,(b)such use is only for your benefit,and(c)upon request by SUS you will identify each such Permitted Sublicensee.Any use of the Software by Permitted Sublicensees shall be within the usage restrictions In the applicable Invoice or specified at the time of purchase.Notwithsta riding the prohl bition against sub-licensing In this Section 2,you may be permitted to provide access or use of the Server Software to any third parties for such third party's own benefit("Third Party Sublicensees"),provided that(a)You require the Third Party Sublicensees to agree to terms at least as restrictive as than those contained in this Agreement("Sublicensee Terms"),(b) the Sublicensee Terms will provide that SUS Is a third-party beneficiary of such Sublicensee Terms and be as protective of SUS as this Agreement;and,(c) you shall not sell, sublicense,rent,or lease the Sever Software to a Third Party Sublicensee for time sharing,hosting, service provider or like purposes.Any use of the Server Software by Third Party Sublicensees shall be within the usage restrictions in the applicable Invoice or specified at the time of purchase.The warranty In Section 10 and the Support and Maintenance Services In Section 4 shall not apply to any use of the Senrer Softwa re by Third Party Sublicensees. 3.Third Party Content. The software may contain maps or other third party content.The Software license granted under this Agreement includes the right to use SUS-provided third party content solely with the Software for which SUS has granted a license to you under this Agreement.For the avoidance of doubt,you may not sell,license, or distribute such copies by themselves or as part of any collection or product.All third party Content is provided "AS IS",and SUS makes no warranties of any kind with respect to such content. 4.Delivery,Payment,and Maintenance. All Software shall be delivered by electronic means unless otherwise specified on the applicable invoice or Service Agreement or at the time of purchase.The Software shall be deemed delivered when it is made available for download by you ("Delivery').You shall pay all fees associated with the Software licensed and anyservices purchased hereunder asset forth In the applicable Invoice or Service Agreement at the time of purchase. Unless otherwise stated,all payments shall be made In the currency noted on the applicable ordering document within thirty (30) days of the Delivery of the Software to you. You shall be responsible for all taxes, withholdings,duties and levies arising from the order(excluding taxes based on the net income of SUS).Subject to the terms and conditions of this EULA and the applicable Service Agreement,support and maintenance services maybe included or purchased asset forth in SUS's Maintenance and Technical Support Agreement, 5.Title. Notwithstanding anything to the contrary contained herein,except forthe limited license rights expressly provided herein,SUS has and will retain all rights,title and interest(including,without limitation,all patent,copyright,trademark,trade secret and other intellectual property rights) in and to the software, code, and all copies, modifications and derivative works thereof(including any changes which incorporate any of your ideas,feedback or suggestions).You acknowledge that you are obtaining only a limited license right to the software and that no ownership rights are being conveyed toyou under this Agreement or otherwise. 6.1testrlcdons. You understand and agree that you shall only use the Software in a manner that complies with any and all applicable laws in the jurisdictions in which you use the Software. Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights. You shall not(and shall not allow any third party to): decomplle, alter,translate, disassemble, or otherwise 1 V 9.28.2015 reverse engineer the Software or Media Elements or attempt to reconstruct or discover any source code,underlying ideas,algorithms,file formats or programming Interfaces of the Software or Media Elements by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); Create derivative works based on the Software;Use the Software for any purpose other than as described herein;Copy or reproduce the Software except as described in this ELLA;Sell,assign,license,disclose, distribute or otherwise transfer or make availablethe Software or any copies of the Software in any form to any third parties or otherwise unauthorized Individuals; Remove or alter any proprietary notices or marks on the Software. use the Software to develop a product which is competitive with any SUS product offerings; use the Software to develop a product that converts any SUS file format to an alternative report file format used by any general-purpose report writing,data analysis or report delivery product that is not the property of SUS. 7.Personal Information and Privacy. SUS may ask you or your customers to provide certain Information while using the Software.All personal information provided to SUS will be governed by SUS's Privacy Policy,which Is avaliable upon request. By choosing to use the Software and/or SUS's services,you indicate your understanding and acceptance ofthis ELLA and SUS's Privacy Policy.You understand and agree that SUS may disclose information If required to do so by law or In the belief that such disclosure Is reasonably necessary to comply with legal process,enforce the terms of this EU LA,or protect the rights,property,or safety of SUS,Its users,or the public. 8.Right to Terminate or Modify Software. SUS may modify the Software with notice to you in writing of any material change the Software's functionality or appearance. If any such change necessitates a correlating change In the ELLA, both parties shall promptly endeavor to executive a new ELLA reflecting such changes.SUS may terminate your use of the Software if you fail to adhere to the terms of this EULA and any other applicable documentation. 9.Term of Agreement. This Agreement Is effective as of the Delivery of the Software and expires at such time as all license and service subscriptions hereunder have expired in accordance with their own terms(the'Term°).For clarification,the term of your license under this Agreement may be perpetual, or designated as a fixed-term license In the Service Agreement or by an authorized partner, and shall be specified at your time of purchase.Either party may terminate this Agreement(Including all related invoices)if the other parry:(a)fails to cure any material breach of this Agreement within thirty(30)days afterwritten notice of such breach,provided that SUS may terminate this Agreement immediately upon any breach of Section 6 or If you exceed any other restrictions contained in herein); (b)ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding,or if any such proceeding Is Instituted against such party(and not dismissed within sixty(60)days).Termination Is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement,by law,or otherwise.Termination:Upon any expiration or termination of this Agreement,you shall cease any and all use of any Software and destroy all copies thereof and so certify to SUS in writing.SUS may audit the copies of the Software purchased by you to assure compliance with this Agreement.If such audit discloses that you have not ceased using the Software,then you shall be liable for the reasonable costs of the audit in addition to any other fees,damages and penalties SUS may be entitled to under this Agreement and applicable law. 10.Limited Warranty and Disclaimer. SUS warrants to you that for the license period ("Warranty Period") the Software shall operate in substantive conformity with the relevant documents or agreements. SUS does not warrant that your use of the Software will be uninterrupted or error-free or that any security mechanisms Implemented by the Software will not have inherent limitations.SUS's sole liability(and your exclusive remedy)for any breach of this warranty shall be to use commercially reasonable efforts In compliance with the - relevant Service Agreement governing the Software to provide you with an error-correction or work-around which corrects the reported non-conformity.SUS shall have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period. OTHER THAN AS PREVIOUSLY STATED THIS A LIMITED WARRANTY AND,EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION,THE SOFTWARE AND ALL SERVICES ARE PROVIDED"AS IS"NEITHER SUS NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES OR CONDITIONS,EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.YOU MAY HAVE OTHER STATUTORY RIGHTS.HOWEVER,TO THE FULL EXTENT PERMITTED BY LAW,THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY,SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.The above warranty shall not apply: (i) If the Software Is used with hardware or Software not specked in the Service Agreement; (ii) If any modifications are made to the Software by you or a third party;or(Iii)to defects In the Software due to accident or improper use by you. 11.Limitation of Remedies and Damages. BUT FOR:(1)INDEMNIFICATION OBLIGATIONS UNDER SECTION 12,(2)EITHER PARTY'S BREACH OF SECTION 14,OR(3)YOUR BREACH OF SECTION 6,NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE,LOST DATA,FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR COSTS OF COVER), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. BUT FOR:(1) INDEMNIFICATION OBLIGATIONS UNDER SECTION 12,(2) EITHER PARTY'S BREACH OF SECTION 14, OR(3)YOUR BREACH OF SECTION 6, BOTH PARTIES' ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE SOFTWARE LICENSE FEES PAID BY YOU FOR THE SOFTWARE OR THE FEES PAID OR OWED BYYOU FOR THE SERVICE DIRECTLYCAUSING THE DAMAGES.The parties agree that the limitations specified in this section will applyeven if any limited remedy specified herein is found to have failed of its essential purpose. 12.Indemnification: Newport shall indemnify and hold harmless SUS and its officers, directors, employees and agents from and against all claims,arising out of any claim by a third party tothe extent such claim alleges that the Software(In each case as provided by SUS)infringes any copyright,US patent right,trade secret right, or other intellectual property right in the event that the Software Is,or in SUS's sole i 2 V 9.28.2015 opinion is likely to be, enjoined or subject to a Claim, SUS, at its option and expense, may (a) replace the Software with functionally equivalent non-Infringing Software or (b) obtain a license for your continued use of the Software, or, if the foregoing alternatives are not reasonably available to SUS (c) terminate this Agreement and refund any sums prepaid for the unused Term, if any. Notwithstanding the above, SUS shall have no liability for any Claim which: (1) pertains to any Software that has been altered or modified without SUS's prior written approval; (ii) is based on use of the Software in conjunction with any item not provided by SUS, unless such use is shown to constitute the infringement when not used In conjunction with the item not provided by SUS; (111) pertains to any unauthorized use of the Software; (iv); or, pertains to an unsupported release of the Software or (v) pertains to any Open Source Software or other third party code provided with the Software. SUS further agrees to fully defend, indemnify and hold harmless Newport and its officers, directors, and employees from any third party infringement Claim, action or suit provided that: (i) upon becoming aware of the Claim, Newport provides to SUS prompt written notice of the Claim; (ii) Newport gives to SUS sole authority and control of the defense and/or settlement of any such claim; and (ill) and Newport provides all reasonable information and assistance requested by SUS to handle the defense and/or settlement of the Claim. Newport, at Its expense, may hire legal counsel of Its choice to participate in an advisory capacity related to discussions, negotiations, or proceedings of the Claim, but such legal counsel shall not, without the prior written consent of SUS participate in any other capacity with respect to the Claim. THIS SECTION SETS FORTH SUS's SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. 13. Export Restrictions This EL LA Is expressly made subject to any laws, regulations, orders or other restrictions on the export from the United States of America of the Software or information about such Software which may be Imposed from time to time by the government of the United States of America. You shall not export the Software or information about the Software without consent of SUS and compliance with such laws, regulations, orders or other restrictions. 14. Confidential Information Each party agrees that all code, inventions, know -how, business, technical and financial information it obtains ("Receiving Party") from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it Is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Software, documentation or technical information provided by SUS (or its agents), performance Information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of SUS without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not applyto information which the Receiving Party can document: (a) was rightfully In Its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained bythe Receiving Party from a third party without breach of any confidentiality obligation; (d) is Independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party), The Receiving Party acknowledges that disclosure of Confidential information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief In addition to whatever other remedies it might have at law. 15. General, This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. SUS may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of SUS's assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without SUS's written consent. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain In effect. This Agreement Is governed by the laws of The State of California and the United States without regard to conflicts of laws provisions thereof. The jurisdiction and venue for actions related to the subject matter hereof shall be California state and United States federal courts located in Orange County, California, and both parties hereby submit to the personal jurisdiction of such courts. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs In connection with such action. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement is the complete and exclusive statement of the mutual understanding of the parties with regards to licensing the Software. Notwithstanding the foregoing, if you have entered Into a separate written license agreement signed by SUS for use of the Software, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost, aEW Pp'Q YOU (AUTHORIZED USER) SMART ENERGY SYSTEMS, LLC The Parent Company SMART UTILrTYSYSTEMS, LLC Name: �•i Name:+i u Signature: ROVED AS TO FORM: Signature: cq�'"` �P Date: �� ATT N 'S FF1 :Date: 1 u 16 FORS Dater. � � Attest: 3 V 9.28,2015 I I City Clerk gy: , Aaron C. Harp, City Attorney (AM 0 kw►\ CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 11/30/15 Dept./Contact Received From: Joan Date Completed: 12/10/15 Sent to: Joan By: Renee/Alicia Company/Person required to have certificate: Smart Utility Systems,LLC Type of contract: All Other I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 9/1/15-9/1/16 A. INSURANCE COMPANY: State Faun General Insurance Company B. AM BEST RATING (A- : VII or greater): A:XV C. ADMITTED Company(Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be$1M or greater): What is limit provided? 2,000,000/4,000,000 E. ADDITIONAL INSURED ENDORSEMENT—please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS(Must include): Is it included? (completed Operations status does not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND COMPLETED OPERATIONS ENDORSEMENT(completed Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY& NON-CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include"solely by negligence"wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE(RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No H. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 2/20/15-2/20/16 A. INSURANCE COMPANY: State Farm Mutual Automobile Insurance Company B. AM BEST RATING(A- : VII or greater) A++: XV C. ADMITTED COMPANY(Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS- If Employees(Must be$1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 1,000,000 E LIMITS Waiver of Auto Insurance/ Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY& NON-CONTRIBUTORY WORDING(For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON-OWNED AUTO ONLY: ❑ NIA ❑ Yes ® No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 1/17/15-1/17/16 A. INSURANCE COMPANY: State Farm General Insurance Company B. AM BEST RATING(A- : VII or greater): A: XV C. ADMITTED Company(Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ❑ Yes ® No E. EMPLOYERS' LIABILITY LIMIT(Must be$1M or greater) 1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY ® N/A ❑ Yes ❑ No V POLLUTION LIABILITY ® N/A ❑ Yes ❑ No V BUILDERS RISK ® NIA ❑ Yes ❑ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? ® Yes ❑ No IF NO,WHICH ITEMS NEED TO BE COMPLETED? Approved: (i 12/10/15 Agent of Alliant Insurance Services Date Broker of record for the City of Newport Beach ------------------------------------------------------------------------------------------------------------------------------------ RISK MANAGEMENT APPROVAL REQUIRED (Non-admitted carrier rated less than ; Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Approved: Risk Management Date * Subject to the terms of the contract.