HomeMy WebLinkAbout12 - Approval of Services Agreement for Sentryx Software and Extended Warranty for Repeaters and CollectorsQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
October 8, 2024
Agenda Item No. 12
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Mark Vukojevic, Utilities Director - 949-644-3011,
mvukojevic@newportbeachca.gov
PREPARED BY: Steffen Catron, Water Operations Superintendent - 949-718-3402,
scatron@newportbeachca.gov
TITLE: Approval of Services Agreement with Mueller Solutions LLC for
Sentryx Software and Extended Warranty for Repeaters and
Collectors
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The Utilities Department recently completed the installation of 26,000 modern, digital
water meters, automating the meter reading process. With this new technology, near real
time water use information can now be made available to water customers. Mueller
Systems LLC (Mueller) was contracted for the purchase and installation of the advanced
water meters, along with the system of collectors and repeaters (antennas). Mueller also
integrated the meters into the City of Newport Beach's network for consumption and
billing data using Sentryx software. The department recommends City Council approval
for a five-year service agreement with Mueller to continue providing Sentryx software
services. The proposed agreement includes an extended warranty for the collectors and
repeaters.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Approve a Services Agreement with Mueller Solutions, LLC for Sentryx software and
extended warranty for repeaters and collectors for a five-year contract term and a total
amount of $350,000, and authorize the Mayor and City Clerk to execute the
Agreement.
DISCUSSION:
On June 9, 2020, the City Council approved the Advanced Meter Infrastructure (AMI)
project (19W12) to replace approximately 26,000 water meters with new, technologically
advanced digital water meters. These digital meters remotely transmit daily water use
information to the City, eliminating the need for manual, in -person water meter readings.
The data is then used for monthly and bimonthly billing.
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Approval of Services Agreement with Mueller Solutions LLC for Sentryx Software
and Extended Warranty for Repeaters and Collectors
October 8, 2024
Page 2
The City entered into a long-term agreement with Mueller, which manufactured and
installed all the meters, collectors and repeaters, and includes communication technology
that uses a low -powered radio frequency (900 MHz). The new water meters are designed
to transmit daily water usage information to the City's database. Also, Mueller uses a
software called Sentryx to collect and gather data for water consumption reporting and
billing.
Over the last few years, the modernized digital water meters significantly enhanced the
City's ability to manage water resources and have become valuable tools for residents
and businesses. Some of the key benefits include providing City staff and water
customers direct access to water usage information and enabling the meters to detect
water leaks in homeowners' systems, which allows for timely identification and repair by
the homeowner. This system also provides the City's customer service staff with real-time
meter reading access, leading to greater efficiency and improved service.
Since the installation of the advanced water meters and modernized communication
technology, the Utilities Department staff has identified and helped residents resolve more
than 1,200 customer leaks using the system. These proactive measures have likely
helped prevent the residents from wasting water and prevented or reduced private
property damage. The digital water meters also provide more accurate accounting of
actual water usage, reducing the amount of water system losses and waste.
To continue reaping the benefits of the advanced water metering technology, the Utilities
Department recommends that the City Council approve a five-year contract term with
Mueller for the continued software service. Additionally, staff recommends purchasing a
five-year extended warranty for the 18 collectors and 36 repeaters in the City's network.
The proposed agreement has a five-year contract term and a total contract amount of
$350,000.
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The adopted budget includes sufficient funding for the agreement. It will be expensed to
the Water Fund Water Conservation Activities account in the Utilities Department,
7019052-841063.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
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Approval of Services Agreement with Mueller Solutions LLC for Sentryx Software
and Extended Warranty for Repeaters and Collectors
October 8, 2024
Page 3
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — Services Agreement with Mueller Systems LLC
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ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH MUELLER SYSTEMS, LLC FOR
SENTRYX SOFTWARE AND EXTENDED ANNUAL WARRANTY FOR
AUTOMATED METER INFRASTRUCTURE
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 8th day of October, 2024 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and MUELLER SYSTEMS, LLC, a Delaware limited liability company ("Consultant"),
whose address is 1200 Abernathy Road NE, Suite 1200, Atlanta, GA 30328, 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. Pursuant to a prior installation and maintenance agreement awarded to
Consultant, Consultant installed Automated Meter Infrastructure ("AMI") in the City.
C. City desires to engage Consultant to provide and annually maintain its Sentryx
software applicable to the monitor and operate the AMI, and additionally, to provide
extended warranty services for the AMI hardware previously installed ("Project").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
E. 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:
TERM
The term of this Agreement shall commence on June 1, 2024, and shall terminate
on June 1, 2026, unless terminated earlier as set forth herein. This Agreement shall
automatically renew for up to three (3) additional one (1) year terms, on the same terms
and conditions set forth herein, unless either party provides written notice to the other
party of its intention not to renew prior to the end of the then -current term.
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"
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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 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 the initial term and all renewal terms, and all
reimbursable items and subconsultant fees, shall not exceed Three Hundred Fifty
Thousand Dollars and 00/100 ($350,000.00), 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 annual invoices to City describing the Work.
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.
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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.
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 Kevin Cornejo 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.
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This Agreement will be administered by the Utilities Department. City's Utilities
Manager 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.
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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 community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. 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 legally
recognized professional standards.
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 third party 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 Consultant negligence.
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.
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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 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
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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 or joint -venture.
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.
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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. 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.
21. 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.
22. ERRORS AND OMISSIONS
Reserved.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
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24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. 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.
25. NOTICES
25.1 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.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Utilities Manager
Utilities Department
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Kevin Cornejo
Mueller Systems, LLC
1200 Abernathy Road NE, Suite 1200
Atlanta, GA 30328
26. 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.
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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.).
27. TERMINATION
27.1 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 five (5) calendar days, or if more than five (5) 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.
27.2 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.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 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
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.
28.3 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.
28.4 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.
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28.5 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.
28.6 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.
28.7 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.
28.8 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.
28.9 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.
28.10 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.
28.11 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.
28.12 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.
29. PREVAILING WAGES
29.1 Pursuant to the applicable provisions of the Labor Code of the State of
California, not less than the general prevailing rate of per diem wages including legal
holidays and overtime Work for each craft or type of workman needed to execute the
Work contemplated under the Agreement shall be paid to all workmen employed on the
Work to be done according to the Agreement by the Consultant and any subcontractor.
In accordance with the California Labor Code (Sections 1770 et seq.), the Director of
Industrial Relations has ascertained the general prevailing rate of per diem wages in the
locality in which the Work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Agreement. A copy of said determination
is available by calling the prevailing wage hotline number (415) 703-4774 and requesting
one from the Department of Industrial Relations. The Consultant is required to obtain the
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wage determinations from the Department of Industrial Relations and post at the job site
the prevailing rate or per diem wages. It shall be the obligation of the Consultant or any
subcontractor under him/her to comply with all State of California labor laws, rules and
regulations, and the parties agree that the City shall not be liable for any violation thereof.
29.2 If both the Davis -Bacon Act and State of California prevailing wage laws
apply and the federal and state prevailing rate of per diem wages differ, Consultant and
subcontractor, if any, shall pay the higher of the two rates. Said prevailing rate of per
diem wages are on file at the City, Office of the City Clerk, 100 Civic Center Drive,
Newport Beach, California 92660, and are available to any interested party on request.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: Z vZ K
.
By
lion C. Harp q/,)41a14Dc-
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Bv:
Will O'Neill
Mayor
CONSULTANT: MUELLER SYSTEMS,
LLC, a Delaware Limited Liability
Company
Date:
By:
Adam Donnelly
Vice President, Smart Water
Infrastructure
Date:
in
Stephen Heinrichs
Chief Financial Officer
[END OF SIGNATURES]
Exhibit A — Scope of Services
Master Services Agreement
Appendix A — Pricing
• Appendix B — Product Warranty Statement
• Appendix C — Software as a Service Agreement
• Appendix D — Network as a Service Agreement
Exhibit B — Schedule of Billing Rates
Exhibit C -- Insurance Requirements
Mueller Systems, LLC Page 12
12-15
EXHIBIT
SCOPE OF SERVICES
Pursuant to a prior installation and maintenance agreement between the parties,
Consultant installed Automated Meter Infrastructure ("AMI") in the City. Consultant shall
provide and maintain the Sentryx Software for operation and monitoring of the AMI.
Additionally, Consultant shall provide extended warranties for the previously installed AMI
(approximately 38 repeaters and 18 collectors). Consultant shall also provide its' Network
Operations Center ("NOC"), including but not necessarily limited to, the following support
services:
• Real-time surveillance of enrolled customers' water infrastructure networks that
utilize Consultant's SENTRYX software service, including 24/7 network status and
automated alerts via continuous SENTRYX monitoring.
• Phone and Email:
o Monday — Friday, 8AM to 6PM EST, excluding holidays
0 1-800-423-1323, Option 4 (Mueller Systems). Option 2 (NOC)
o support@muellerwp.com
The above services shall be provided in accordance with Consultant's Master Services
Agreement, Product Warranty Statement, and Software as a Service Agreement,
attached hereto.
Mueller Systems LLC Page A-1 12-16
Page 1 of S
Exhibit A
TM
Mueller SYSTEMS
Agreement Effective Date: See Professional Services Agreement
CUSTOMER NAME & ADDRESS ("Customer"):
NAME: City of Newport Beach
ADDRESS LINE 1: 100 Civic Center Drive
ADDRESS LINE 2:
CITY, STATE, ZIP: Newport Beach, CA 92660
This Master Services Agreement (herein, this "Agreement"), effective as of the date set forth above (the "Effective Date"), is by and
between MUELLER SYSTEMS, LLC, a Delaware limited liability company with offices located at 1200 Abernathy Rd, NE, Suite 1200,
Atlanta, GA 30328 ("Provider"), and you, the customer ("Customer"). Provider and Customer may be referred to herein collectively
as the "Parties" or individually as a "Party."
WHEREAS, Customer purchased or will purchase certain Provider Products through an authorized Distributorof Provider,
separate from this Agreement, or Customer is upgrading its existing Products to include certain Services; and
WHEREAS, Customer desires to purchase Services from Providerto be used in connection with the Products as provided
herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
(a) "Distributor" means the third parry authorized by Provider to sell Provider's Products to customers within a prescribed
territory.
(c) "Network as a Service" ("NaaS") means the subscription -based Provider, or third parry, managed infrastructure and
technology used to connect technology -enabled Products with the Software Services.
(b) "Product" means the components, devices, or equipment supplied by a Distributor pursuant to an agreement between
Customer and Distributor.
(c) "Services" means one or more of the services provided by Provider pursuant to this Agreement such as Automatic Meter
Reading ("AMR") services, or Advanced Metering Infrastructure ("AMI") services such as Software as a Service and/or
Network as a Service.
(d) "Software" means the object code versions of Provider software, together with all updates, replacements, modifications,
or enhancements, including but not limited to software embedded in any Provider Product as firmware, as well as
Software as a Service and any other applications or downloadable versions made available to Customer pursuant to this
Agreement.
(e) "Software as a Service" ("SaaS") means the subscription -based Provider -hosted software accessed online rather than
though Customer's owned server(s).
2. SCOPE.
This Agreement describes the terms and conditions that apply to Customer's purchase of Services from Provider. Provider has no
duty or obligation to Customer in relation to any contract entered into by and between Customer and Distributor.
12-17
Page 2 of 8
3. SERVICES.
(a) This Agreement includes Customer's purchase of the following Services:
® AMI Annual Maintenance
® Software as a Service
❑ Network as a Service
❑ VXsmart Consumer Portal
(b) Pricin . The prices for the Services provided hereunder shall be set forth in APPENDIX A (PRICING) of this Agreement,
attached hereto and incorporated herein.
(c) Support. Provider's Network Operations Center ("NOC") provides the following support options:
(i) Real-time surveillance of enrolled customers' water infrastructure networks that utilize Provider's SENTRYXTM
software service, including 24/7 network status and automated alerts via continuous SENTRYX monitoring.
(ii) Phone and Email:
1. Monday -Friday, 8 AM to 6 PM EST, excluding holidays
2. 1-800-423-1323, Option 4 (Mueller Systems), Option 2 (NOC)
3. support@muellerwp.com
4. LIMITED WARRANTIES.
(a) Products. Products purchased by Customer from Distributor are accompanied by Provider's manufacturer warranty set
forth in APPENDIX B (LIMITED WARRANTY), attached hereto and incorporated herein. Products previously purchased by
Customer from Provider are subject to the Product warranty provided at the time of purchase of such Products, and the
extended warranties as provided.
(b) Services: SaaS and NaaS warranties are governed by the respective Software as a Service Agreement and Network as a
Service Agreement.
(c) TO THE EXTENT PERMITTED BYAPPLICABLE LAW, THE WARRANTIES AND REMEDIES STATED ABOVE ARE EXCLUSIVE AND
NO OTHER WARRANTIES OR REMEDIES EXPRESS, IMPLIED OR STATUTORY, APPLY TO THE PRODUCT DOCUMENTATION,
THE SOFTWARE, THE PRODUCT OR ANY SERVICES TO BE PROVIDED BY PROVIDER UNDER THIS AGREEMENT, INCLUDING
BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF TITLE, NON -INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, QUALITY OR PERFORMANCE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH PROVIDER EXPRESSLY DISCLAIMS.
5. SAAS AND NAAS SERVICES
(a) Applicability. As may be applicable, in the event Customer desires to purchase SaaS and/or NaaS services, the terms and
conditions for such services shall be governed by the Software as a Service Agreement set forth in APPENDIX C
(SOFTWARE AS A SERVICE AGREEMENT), and the Network as a Service Agreement set forth in APPENDIX D (NETWORK
AS A SERVICE AGREEMENT), each of which are attached hereto and incorporated herein.
(b) Survival and Conflict. The terms and conditions of the Software as a Service Agreement and/or Network as a Service
Agreement shall survive any expiration or termination of this Agreement in accordance with the terms as provided in each
of those agreements, and in the event of a conflict such agreements shall govern and take precedence over this
Agreement
6. LIMITED LICENSE.
(a) Firmware. For Product purchased by Customer through Distributor, Provider hereby grants Customer a limited, non-
exclusive, non-sublicensable, non -transferable, perpetual, irrevocable license to use and execute the Software embedded
in the Product as firmware for its internal business purposes in connection with use of such Product.
(b) Restrictions. Except as specifically and expressly permitted in writing by Provider, Customer shall not (i) violate any
restriction set forth in this Agreement; (ii) modify, translate, de -compile, reverse compile, disassemble, or create or
attempt to create, by reverse engineering or otherwise, the source code from the object code of the Software; (iii) adapt
the Software in any way for use to create a derivative work; or (iv) include or combine the Software in or with any other
software.
(c) Ownership. This Agreement does not grant to Customer any ownership interest in the Software or any Product
Documentation. Customer has a license to use the Software and Product Documentation as provided in this Agreement
and hereby agrees and acknowledges that Provider owns all right, title, and interest in the Software and Product
Documentation, and Customer will not contest those rights or engage in any conduct contrary to those rights. Any copy,
modification, revision, enhancement, adaptation, translation, or derivative work of or created from the Software and
Product Documentation made by or at the direction of Customer shall be owned solely and exclusively by Provider, as
shall all patent rights, copyrights, trade secret rights, trademark rights and all other proprietary rights, worldwide.
12-18
Page 3 of 8
7. PAYMENT TERMS.
Customer will pay Provider net thirty (30) days from the date of invoice, according to the payment instructions provided in the
invoice.
8. TERM AND TERMINATION.
(a) Term.
(i) Agreement: The term of this Agreement shall beset forth in the Professional Services Agreement.
(ii) SaaS and NaaS Agreements: As maybe applicable, the term length of SaaS and/or NaaS services shall beset forth
in the respective Software as a Service Agreement and Network as a Service Agreement.
(b) Termination for Breach. This Agreement may be terminated immediately by either Party upon written notice as follows:
(i) if the other Parry breaches any of the material provisions of this Agreement and the breach is not capable of being
cured or after providing thirty (30) days written notice to the breaching Party if the breaching Party fails to cure such
breach within such period.
(ii) if the other Party: (1) ceases to carry on business as a going concern; or (2) becomes or may become the object of
the institution of voluntary or involuntary proceedings in bankruptcy or liquidation; or (3) a receiver or similar officer
is appointed with respect to the whole or a substantial part of its assets; or (4) an event similar to any of the foregoing
occurs under applicable law.
(c) Nonpayment. If any fees are not paid when due and payment has not been received within thirty (30) days after notice
from Provider of such past due payment, Provider may withhold the provision of Services until all amounts past due are
paid in full, and/or immediately terminate this Agreement.
(d) Effect of Termination. Upon termination of this Agreement, Provider will cease providing any further Services, and all
licenses granted hereunder shall terminate. Customer shall pay Providerfor all Products and Services provided hereunder
up to the date of termination. In the event Customer is in possession of additional equipment or software provided by
Provider in relation to the Services, Customer shall, at Customer's cost, return the equipment and software to Provider
no later than sixty (60) days after expiration or termination of this Agreement in good repair, condition and working order,
ordinary wear and tear excepted.
9. INDEMNIFICATION.
(a) By Provider. Except to the extent owing to Customer's negligence, Provider will indemnify and defend
Customer from any third -party claim relating to the gross negligence or willful misconduct in
Provider's, or Provider's subcontractor, performance of the Services, or that the Software and
Product infringe on another person's or company's patent, copyright or other Intellectual Property
right as specified in this Section. This indemnity does not cover and specifically excludes claims
relating to infringement of intellectual property rights by a third party's products and software
incorporated within or related to Provider's Product and/or Software. Provider has no obligation
under this Section for any claim to the extent it results from or arises out of Customer's modification
of the Product or Software or from any combination, operation or use of the Product or Software
with other third party products or services. Provider's duty to indemnify under this Section is
contingent upon Provider receiving prompt notice of a claim and Provider's right to solely control
resolution of a claim. Customer's sole remedy for an indemnified claim under this Section is as
follows: Provider will, at its expense and in its discretion either (a) resolve the claim in a way that
permits Customer's continued ownership and use of the affected Software and Product, (b) provide
a comparable, non -infringing replacement at no cost to Customer, or (c) accept return of the
Software and Product, provide a reasonable depreciated refund and terminate this Master
Agreement and all licenses herein. This Section is the exclusive statement of Provider's liability and
responsibility for indemnifying Customer for infringement of Intellectual Property rights.
(b) By Customer. Customer agrees to indemnify and defend Provider, including its affiliates, officers,
employees, agents, subcontractors, suppliers, and representatives, from any and all judgments,
losses, damages, expenses, costs, including defense costs and legal fees, arising from any and all
lawsuits, demands, or claims for personal injury, death, property damage, or other liability arising
or claimed to arise from any act or omission of Customer in anyway related to this Agreement or its
use of the Products which conflict with the Product documentation, whether such claims are based
upon contract, warranty, tort (including but not limited to active or passive negligence), strict liability,
failure to comply with any applicable law, or other allegation of fault. To the extent the aforesaid
obligation of the Customer to so indemnify Provider is prohibited by the laws and statutes of the
state(s) or province(s) where this Agreement is in effect, then the obligation created under this
provision will, but only to the extent of such prohibition, be null and void. The remainder of the
Customer's indemnity obligations will remain in effect and be binding upon the parties.
12-19
Page 4 of 8
10. LIMITATION OF LIABILITY; CONSEQUENTIAL DAMAGES.
(a) Limitation of Liabilitv. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE, AND THE TOTAL
LIABILITY OF PROVIDER, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
SUPPLIERS COLLECTIVELY, WITH RESPECT TO THIS AGREEMENT OR ANY BREACH THEREOF,
WHETHER BASED ON CONTRACT WARRANTY, TORT, INDEMNITY, STRICT LIABILITY OR OTHERWISE
HOWSOEVER ARISING SHALL BE LIMITED TO THE EXTENT OF THE APPLICABLE INSURANCE POLICY,
IF ANY APPLIES, AND WITHOUT LIMITING THE FOREGOING, THE AFOREMENTIONED PARTIES TOTAL
LIABILITY IN THE ABSENCE OR EXCESS OF INSURANCE COVERAGE SHALL NOT EXCEED THE
AMOUNT PAID TO PROIVDER DURING THE PRIOR TWELVE MONTHS GIVINE RISE TO SUCH LIABILITY.
THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER -INCIDENT.
(b) Consequential Damages. IN NO EVENT, WHETHER ARISING BEFORE OR AFTER COMPLETION OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, WILL PROVIDER BE LIABLE FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED
TO LOSS OF USE, REVENUE OR PROFITS, INVENTORY OR USE CHARGES, COST OF CAPITAL OR
CLAIMS OF CUSTOMERS) INCURRED BY CUSTOMER OR ANY THIRD PARTY.
(c) Disclaimer. Some jurisdictions do not allow the limitation and/or exclusion of liability for incidental
or consequential damages, in which case the above limitation may not apply. In all cases where
Customer claims damages allegedly arising out of defective or nonconforming Products, Customer's
exclusive remedies and Provider's sole liability will be those specifically provided for under the
Limited Warranty set forth in APPENDIX B, or as provided in the applicable SaaS and NaaS
Agreement(s). The provisions of this Agreement allocate the risks between Customer and Provider.
Provider's pricing for the Products and Services reflects this allocation of risk and the limitations of
liability specified herein.
11. FORCE MAJEURE.
Except for the obligation to pay fees due and owing, neither Party shall be liable for any delay or failure in performance due to
events outside the defaulting Party's reasonable control, including without limitation acts of God, earthquake, labor disputes,
industry wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common
carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting Party will be extended
for a period equal to the time during which the event prevented the Party's performance.
12. MISCELLANEOUS.
(a) Governing Law: Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal
laws of the State of California, United States, without giving effect to any choice or conflict of law provision or rule that
would require or permit the application of the laws of any jurisdiction other than those of the State of California. In the
event of a dispute the Parties may mutually agree to resolve the dispute by direct negotiation, mediation, or non -binding
arbitration. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted in the state
or federal courts of the State of California, and each Party irrevocably submits to the exclusive jurisdiction of such courts
in any such suit, action, or proceeding. The Parties agree that neither the United Nations Convention on Contracts for the
International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement,
regardless of where the Parties do business or are incorporated. No suit or cause of action or other proceeding will be
brought against either party more than one (1) year after accrual of the cause of action or one (1) year after the claim
arises, whichever is shorter, whether known or unknown when the claim arises or whether based on tort, contract or any
other legal theory.
(b) Notices. All notices required or permitted under this Agreement will be in writing and shall be given in accordance with the
terms of the Professional Services Agreement
(c) Survival: The following sections will survive any expiration or termination of this Agreement 4, 5, 6, 8, 9, 10, Appendix A,
B, C, and D.
(d) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which
together are deemed to be one and the same agreement.
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Page 5 of 8
APPENDIXA- PRICING
1. Pricing for Services:
Part #
Description
Units
Unit Price
Extended
Net
MSW-S-PH-ALL-
30K
sENTRYxSOFTWARE
26958
$1.38
$37,200.00
MS-G-M-YR
COLLECTOR EXTENDED WARRANTY
18
$575.00
$10,350.00
MS-R-M-YR
REPEATER EXTENDED WARRANTY
38
$475.00
$18,050.00
Total
$65,600.00
*Based upon active endpoints as of June 1, 2024 and includes backhaul charges.
The above fees will be due as of June 1, 2025. The renewal fees beginning June 1, 2026 will be
subject to index -based price changes as provided in Section 2 below. Provider shall provide
written notice of adjusted fees at least sixty (60) days prior to the adjusted fees becoming
effective.
1. Price Adjustments:
(a) Hardware Extended Warranty:
Provider's fee for an extended warranty is subject to Provider's then -current
pricing at the time of renewal. Provider will use best efforts to base any escalation
according to the U. S. Bureau of Labor Statistics Producer Price Index for
commercial machinery repair and maintenance, Series ID: PCU8113108113106,
12-month percent change.
(b) SaaS Services.
Provider's Fee for any Renewal Term shall escalate annually by the amount of the
prior Term's Fee plus the increase as based upon the U. S. Bureau of Labor
Statistics Producer Price Index for Data Processing and Related Services, Hosting,
ASP and Other IT Infrastructure Provisioning Services, Series ID:
PCU5182105182105, 12-month percent change. The Renewal Fee is based upon
the number of active endpoints at the time of Renewal. For any Initial Term longer
than one (1) year, the Renewal Fee pricing shall be subject to then -current pricing
after conclusion of the Initial Term, followed by application of the index- based
escalation as provided above.
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Page 6 of 8
APPENDIX B
See the Mueller Systems Limited Warranty attached hereto.
12-22
MUELLER
PRODUCT WARRANTY STATE
1. Limited Warranty. Mueller Systems, LLC ("Mueller") warrants that, for the duration of the Warranty Period (defined below);
(a) each product purchased from Mueller ("Product") will be free from defects in materials and workmanship under normal use,
installation and service conditions; (b) the media on which any Software is furnished will be free of defects in materials and
workmanship under normal use; and (c) any such Software will substantially conform to the applicable published Mueller functional
specifications for such Software. Products will have a warranty period of the greater of (i) one (1) year from date of shipment or (ii)
the applicable warranty period for a specific Product stated below in Section 6 ("Warranty Period").This Warranty does not apply
to products that have defects or failures resulting from (a) Buyer's design; (b) accident, disaster, neglect, abuse, misuse, improper
handling, testing, storage or installation by any party other than Seller; (c) external forces, such as, but not limited to, acts of
God or the elements, vandalism, accident, vehicular or other impact, societal disruption (for example, war, terrorism, riot, civil
unrest), application of excessive torque to the operating mechanism, presence of foreign matter, or frost heave; (d) the products
not being installed or maintained as required by Seller's instructions, common practice, and/or applicable laws; (e) the defect
arises, in whole or part, because Buyer failed to follow Seller's instructions or local codes as to the storage, installation,
commissioning, use or maintenance of the products; (f) Buyer makes any further use of such products after giving such notice and
(g) unauthorized alterations, modifications or repairs byany parry otherthan Seller. Sellerdoes not warrantwater-operated metallic
cylinders against damage caused by corrosion, electrolysis or mineral deposits.
2. Exclusive Remedy. Mueller will, at its option, either repair or replace with an equivalent substitute (as long as the Product
is conformance with the requirements of the specifications and do not exceed the prices quoted) a Product that is in breach of the
foregoing warranty during the Warranty Period if purchaser reports the breach to Mueller within sixty (60) days after purchaser
discovers the breach. At Mueller's request, purchaser will ship the allegedly defective Product to a repair facility designated by
Mueller at purchaser's expense and risk. If Mueller, in its sole discretion, determines that the Product breached the applicable
warranty, Mueller will ship the repaired or replaced Product to purchaser at Mueller's expense and risk. If Mueller determines that
it is unable to repair or replace such Product, it will, at Mueller's sole discretion provide a cash or credit refund to purchaser. If
Mueller repairs or replaces any such defective Product, the Warranty Period for the repaired or replaced Product will continue for
the longer of (y) thirty (30) days, or (z) the remainder of the original Warranty Period. Mueller's warranty is subject to exclusions, as
set forth in Section 3. This Section 2 sets forth Mueller's entire liability, and the purchaser's exclusive remedy, for any alleged
breach of warranty for any Products.
3. Exclusions. Mueller has no obligation under this Product Warranty Statement if (a) a Product has been subjectto misuse,
neglect or accident or has been damaged through abuse, alternation, installation orapplication inconsistent with AWWA guidelines
or Mueller specifications, including but not limited to Mueller propagation studies, failure to follow Mueller's operation or
maintenance instructions or negligence in transportation, handling, or storage, or repaired by anyone other than Mueller or its
authorized personnel, (b) with respect to software, there has been a change to the software's operating environment not made or
authorized by Mueller or if purchaser fails to install any correction or enhancement provided by Mueller, or if a virus is introduced
through no fault of Mueller, or (c) if any Product fails to satisfy the applicable warranty as a result of any force majeure event
Mueller's Product Return process can be found at www_muellers stemsreturns.com. Actual Product life may vary depending on
various factors, including but not limited to, unit settings, installation, environmental conditions, and usage.
4. Im ortant Disclaimers. MUELLER DOES NOT WARRANT THE COMMUNICATION NETWORK THAT SUPPORTS MUELLER
CELLULAR PRODUCTS IN THE CUSTOMER'S SERVICE AREA ("NETWORK"). IF THE NETWORK IS DISCONTINUED OR NO LONGER
SUPPORTED BY THE NETWORK PROVIDER DURING THE WARRANTY PERIOD, THEREBY RENDERING ANY ENDPOINT OR OTHER
EQUIPMENT UNABLE TO SUCCESSFFULLY TRANSMIT METER READING DATA ("OBSOLETE PRODUCT"), MUELLER HEREBY
DISCLAIMSANY WARRANTY COVERAGE FOR SUCH OBSOLETE PRODUCT TO THE EXTENT THE PRODUCT HAS CEASED TO FUNCTION
DUE TO THE DISCONTINUATION OF THE NETWORK, AND MUELLER SHALL NOT BE LIABLE TO THE CUSTOMER FOR COSTS
ASSOCIATED WITH THE REPAIR, REPLACEMENT, OR UPGRADE OF THEMUELLER EQUIPMENT TO FUNCTION WITH ANOTHER
NETWORK.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, MUELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON -INFRINGEMENT AND
WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY
CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD,
F#17715 6/24
12-23
5. Limitation on Liability. Mueller is not liable for any indirect, special, incidental, liquidated, consequential or punitive damages
or penalties of any nature, whether based on contract, tort or other legal theory including but not limited to, business interruption costs,
loss of profit or revenue, loss of data, loss of use of services, cost of capital, cost of substitute services or facilities, downtime costs or
damages and expenses arising out of purchaser or third -party claims, even if Mueller has been advised of the possibility of such
damages. Mueller has no liability with respect to damage or destruction of property or the personal injury or death of persons resulting
from improper installation, use, maintenance or operation of any Products. In all cases, Mueller's total liability, including that of its
affiliates, officers, employees, agents, subcontractors, suppliers and representatives shall not exceed the amount of Mueller's
insurance policy limits (as defined by Mueller Systems Terms of Sale).
6. Product Warranties. The following provisions in this Section 6 modify the limited warranty in Section 1 with respect to the
specific Products identified below:
Automated Meter Reading (AMR)/ Advanced Metering Infrastructure (AMI) Products
Product
Description
Warranty Period
AMR / AMI Software
These items of Software will
One (1) year from date of shipment to purchaser.
perform in accordance with
Mueller's published specifications
for the duration of the Warranty
Period.
AMR / AMI Hardware -
During the Warranty Period, these
One (1) year from date of shipment to purchaser.
Products will be free from defects
unless otherwise
in materials and workmanship.
expressly specified
herein
AMR / AMI Modules -
During the Warranty Period, these
Ten (10) years from date of shipment to purchaser.
AMI water module
Products will be free from defects
in materials and workmanship.
Additionally, the unit is covered by a prorated warranty
endpoints and AMR
for years eleven (11) through fifteen (15) at a fifty -
water module
percent (50%) discount, and years sixteen (16) through
endpoints
twenty(20) at a twenty -five -percent (25%) discount from
the date of shipment to purchaser. All discounts will be
calculated on the then current published price of the
original product. All prorated warranty discounts are to be
used towards the purchase of replacement units.
Encoder Register
During the Warranty Period, these
Ten (10) years from date of shipment to purchaser.
Products, Wall Pads
Products will be free from defects
Additionally, the unit is covered by a prorated warranty
and Pit Pads.
in materials and workmanship.
for years eleven (11) through fifteen (15) at a fifty -
percent (50%) discount, and years sixteen (16) through
twenty (20) at a twenty -five -percent (25%) discount from
the date of shipment to purchaser. All discounts will be
calculated on the then current published price of the
original product. All prorated warranty discounts are to be
used towards the purchase of replacement units.
Water Metering Products
Product
Description
Warranty Period
All Meter Products not
During the Warranty Period, these
One (1) year from date of shipment to purchaser.
otherwise specified
Products will be free from defects
herein
in materials and workmanship.
Fk17715 6/24
12-24
Water Metering Products
Product
Description
Warranty Period
Remote Disconnect
During the Warranty Period,
Five (5) year warranty or two -thousand (2,000) actuations
Meters (RDM) valve
these Products will be free from
of the valve, whichever comes first, from the date of
and solenoid assembly
defects in materials and
shipment to purchaser.
workmanship.
Bronze Maincases
During the Warranty Period,
Twenty -Five (25) years from date of shipment to
these Products will be free from
purchaser.
defects in materials and
workmanship.
Composite Maincases
During the Warranty Period,
Fifteen (15) years from date of shipment to purchaser.
these Products will be free from
defects in materials and
workmanship.
Standard registers for
During the Warranty Period,
Ten (10) years from date of shipment to purchaser.
the above listed
these Products will be free from
mechanical meters
defects in materials and
workmanship.
5/8" - Five (5) years from the date of shipment to
purchaser or the registration of 500,000 U.S. gallons,
whichever comes first;
3/4" - Five (5) years from the date of shipment to
purchaser or the registration of 750,000 U.S. gallons,
whichever comes first;
AWWA-1 New Meter Accuracy
1" -Five (5) years from the date of shipment to
purchaser or the registration of 1,000,000 U.S. gallons,
whichever comes first;
1-1/2" - Two (2) years from the date of shipment to
purchaser or the registration of 1,600,000 U.S. gallons,
whichever comes first;
2" - Two (2) years from the date of shipment to
Models 400 and 500
purchaser or the registration of 2,700,000 U.S. gallons,
Series Meters
whichever comes first.
5/8" - Fifteen (15) years from the date of shipment to
purchaser or the registration of 1,500,000 U.S. gallons,
whichever comes first;
3/4" - Fifteen (15) years from the date of shipment to
purchaser or the registration of 2,250,000 U.S. gallons,
whichever comes first;
AWWA Repaired Meter
Accuracy (AWWA M6 Manual)
1" - Fifteen (15) years from the date of shipment to
purchaser or the registration of 3,000,000 U.S. gallons,
whichever comes first;
1-1/2" - Ten (10) years from the date of shipment to
purchaser or the registration of 5,000,000 U.S. gallons,
whichever comes first;
2" - Ten (10) years from the date of shipment to
purchaser or the registration of 8,000,000 U.S. gallons,
whichever comes first.
1 American Water Works Association ("AWWA")
Fa17715 6/24
12-25
Water Metering Products
Product
Description
Warranty Period
Model HbMAG
During the Warranty Period,
Two (2) years from date of shipment to purchaser.
electromagnetic cold
these Products will be free from
water meters
defects in materials and
workmanship.
Solid State Meters
Duringthe Warranty Period (ten (10) years from date of shipmentto purchaser) these Products
will meet or exceed accuracy of +/- 1.5% between the specified minimum flow rate to the
specified maximum. Additionally, the unit is covered by a prorated warranty for years eleven
(11) through fifteen
(15) at a fifty -percent (50%) discount, and years sixteen (16) through twenty (20) at a twenty-
five -percent (25%) discount from the date of shipment to purchaser. All discounts will be
calculated on the then current published price of the original product. All prorated warranty
discounts are to be used towards the purchase of replacement units for the following sizes:
5/8" Meter 0.1 gpm to 20 gpm
5/8" x 3/4", 3/4" Short, and 3/4" Long Meter 0.1 to 30 gpm
1" Meter 0.4 to 55 gpm
1 1/2" Meter 0.25 to 100 gpm
2" Meter 1.5 to 160 gpm
Water Pressure Monitoring and Control Products
Product
Description
Warranty Period
Advanced Pilot Valve
During the Warranty Period,
Two (2) years from date ofshipmentto purchaser.
these Products will be free from
defects in materials and
workmanship.
Controller
During the Warranty Period,
Three (3) years from date of shipment to purchaser.
these Products will be free from
defects in materials and
workmanship.
Data Loggers
During the Warranty Period,
Three (3) years from date of shipment to purchaser.
these Products will be free from
defects in materials and
workmanship.
For more information about Mueller or to viewour full line of water products, please visit muellersystems.com or call Mueller customer service at LSM.423.1323.
Mueller refers to one or more of Mueller Water Products. Inc. a Delaware corporation ('MWP'), and Its subsidiaries. MWP and each of its subs#diaries are legally separate and independent
entities when providing products and services. MWP does not provide products or services to third parties. MWP and each of its subsidiaries are liable only for their own acts and omissions
and not those of each other.
® 2024 Mueller Systems, LLC. All Rights Reserved. The trademarks, logos and Service marks displayed in this document are the property of Mueller Systems, LLC., its affiliates or other
third parties. Products above marked with a section symbol (§) are subject to patents or patent applications. For details, visit www.mwppat.com. These products are intended for use in
potable water applications. Ptease contact your Mueller Sales or Customer Service Representative concerning arty other application(sl.
F R17715 6/24
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APPENDIX C
SOFTWARE AS A SERVICE AGREEMENT
See the SaaS Agreement attached hereto and fully incorporated herein.
12-27
TM
Mueller SYSTEMS
SOFTWARE AS A SERVICE AGREEMENT
Agreement Effective Date: See Professional Services Agreement
CUSTOMER NAME & ADDRESS ("Customer"):
NAME: City of Newport Beach
ADDRESS LINE 1: 100 Civic Center Drive
ADDRESS LINE 2:
CITY, STATE, ZIP: Newport Bach 92660
This Software as a Service Agreement (herein, this "Agreement"), effective as of the date set forth above (the "Effective Date"), is by and
between MUELLER SYSTEMS, LLC, a Delaware limited liability company with offices located at 1200 Abernathy Rd, NE, Suite 1200, Atlanta,
GA 30328 ("Provider"), and you, the customer ("Customer"). Provider and Customer may be referred to herein collectively as the "Parties"
or individually as a "Party."
WHEREAS, Provider and its Affiliates provide advanced water network monitoring, measurement, and control systems through
its Software Services platform;
WHEREAS, Customer has entered or may enter into a separate agreement with Provider and/or its Affiliate(s), or Provider's
authorized distributor, for certain technology products and/or services which also require the use of Software Services made
available by Provider ("Prime Agreement"); and
WHEREAS, Customer's access and use of the Software Services is subject to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
(a) "Affiliate(s)" means any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or
is under common control with, a party.
(b) "Affiliate Product(s)" means Provider Affiliate product(s) which may work in combination with the Software Services.
(c) "Aggregated Statistics" means data and information related to Customer's use of the Software Services that is used by Provider
in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision
and operation of the Software Services.
(d) "Application Programming Interface" or "API" means a set of defined rules that enable different applications to communicate
with each other for the purpose of processing data.
(e) "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to
access and use the Software Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access
to the Software Services has been purchased hereunder.
(0 "Customer Data" means information and data that is submitted, posted, or otherwise transmitted by or on behalf of Customer
or an Authorized User through the Software Services.
(g) 'Documentation" means Provider's user manuals, handbooks, and guides relatingto the Software Services provided to Customer
upon its access to the Software Services.
(h) "Fees" means the fees paid in relation to the Software Services as set forth in the Prime Agreement.
(i) "Provider IP" means the Software Services, the Documentation, and any and all intellectual property provided to Customer or
any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics,
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algorithmic tools and analysis outputs, and any information, data, or other content derived from Provider's monitoring of
Customer's access to or use of the Software Services, but does not include Customer Data.
(j) "Software Services" means any application within the online SENTRYXTm software -as -a -service offering for use by Customer and
its Authorized User(s). For avoidance of doubt, the Software Services do not include any Provider -managed services.
(k) "Third -Party Products" means third -party products which may work in combination with the Software Services.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all other terms and
conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non -transferable right to access and use the
Software Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such
use is limited to Customer's internal use. Provider shall provide to Customer the necessary passwords and network links, mobile
device application download links, or connections to allow Customer to access the Software Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer
a non-exclusive, non-sublicensable, non -transferable license to use the Documentation during the Term solely for Customer's
internal business purposes in connection with its use of the Software Services.
(c) API. Provider shall make available certain standard APIs for Customer's use with its systems or services. Customer agrees to not
abuse, misuse or exceed the reasonable limitations of the API access. Provider reserves the right to monitor Customer's API
usage and enforce rate limits or other restrictions, such as but not limited to queries, to ensure the stability and optimal
performance of the API and the Software Services. Customer acknowledges that the API usage is provided "as -is" and does not
come with any warranties, express or implied, including but not limited to warranties of merchantability or fitness fora particular
purpose. Provider shall not be liable for any damages, losses, or liabilities arising from Customer's use of the API. In the event of
any breach of the API uses permitted by this provision, Provider reserves the right to suspend or terminate Customer's API
access. By utilizing any API, Customer agrees to comply with all applicable laws, regulations, and industry standards related to
data protection, privacy, and security. Any API customization and/or integration support beyond Provider's standard API offering
shall be subject to Provider approval and associated consulting and development fees.
(d) Use Restrictions. Customer shall not use the Software Services for any purposes beyond the scope of the access granted in this
Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify,
or create derivative works of the Software Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license,
sublicense, assign, distribute, publish, transfer, or otherwise make available the Software Services or Documentation; (iii)
reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software
component of the Software Services, in whole or in part; (iv) remove any proprietary notices from the Software Services or
Documentation; or (v) use the Software Services or Documentation in any manner or for any purpose that infringes,
misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable
law.
(e) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited
rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel,
or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(f) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any
Authorized User's access to any portion or all of the Software Services if: (i) Provider reasonably determines that (A) there is a
threat or attack on any of the Provider IP; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a
security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the
Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the
ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of
any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Software Services
to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated
Provider's access to or use of any third -party services or products required to enable Customer to access the Software Services;
or (iii) in accordance with Section 5(a) (a "Service Suspension"). Provider shall use commercially reasonable efforts to provide
written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software
Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to
the Software Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will
have no liability forany damage, liabilities, losses (includingany loss of data or profits), orany other consequences that Customer
or any Authorized User may incur as a result of a Service Suspension.
(g) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the
Software Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest
in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer
acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Software Services.
Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii)
use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated
Statistics do not identify Customer or Customer's Confidential Information unless otherwise approved in writing by Customer.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Software Services and Documentation resulting by Customer,
directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality
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of the foregoing, Customer is responsible for aII acts and omissions of Authorized Users, and any actor omission by an Authorized
User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by
Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable
to such Authorized User's use of the Software Services, and shall cause Authorized Users to comply with such provisions.
(b) Customer Systems. Customer is responsible for (i) the acquisition, set-up and maintenance of its own mobile device and/or
desktop computer equipment, as applicable, and the competent operation thereof in accordance with the Documentation; (ii)
providing Provider with such access to its computer systems as is necessary for Provider to provide the Software Services; and
(iii) providing all cooperation and assistance as Provider may reasonably request to enable Provider to provide the Software
Services in connection with this Agreement.
(c) Third -Party Products and Affiliate Products. Provider may from time to time allow Third -Party Products or Affiliate Products to
work in combination with or to be supported by the Software Services. For purposes of this Agreement, such Third -Party Products
and/or Affiliate Products are subject to their own terms and conditions and must be procured by Customer separately from this
Agreement.
4. Service Levels and Updates.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to
make the Software Services available in accordance with the service levels set forth below:
Provider shall ensure that, in each calendar month from the start date of the Software Services ("Availability Period"), the
Software Services will have an average availability of 99.5% of the Availability Period as measured from within Provider's
infrastructure environment (the "Availability Target"), as calculated in accordance with the following formula:
Software Services Availability = (System Time - Disregarded Downtime) * 100 / System Time
"System Time" means the number of hours in the relevant Availability Period. "Disregarded Downtime" means the number of
hours of non -availability of the Software Services as measured from within Provider's infrastructure environment, excluding non -
availability caused by:
(i) Planned maintenance or outages for which Provider has provided the Customer at least five (5) days' prior notice;
(ii) Any device failure including, without limitation, non -availability or reduced availability of mobile network cover;
(iii) Any problem with the internet or the Customer's internet connection (including any Wi-Fi connection where one is being
used);
(iv) Any act or omission by the Customer, or any person acting on behalf of the Customer, which prevents or delays the
availability of the hosted services; and/or
(v) Any Force Majeure event, including any failure of the internet or an occurrence of another major circumstance or event
outside of Provider's control.
Provider reserves the right to take the Software Services offline in order to carry out emergency maintenance, but shall use
commercially reasonable efforts to provide the Customer with as much notice as is reasonably possible. Provider cannot
guarantee the availability of the cellular, LoRa or other third party -maintained networks on which data communications depend.
(b) Updates. Customer acknowledges that the Software Services may from time to time include updates, upgrades and other
enhancements which Provider in its sole discretion will make available. All upgrades and testing of the Software Services will be
performed at Provider's discretion. Customer will have no right hereunder to require specific customization of the Software
Services, such as access to a prior version level or unique user interface.
5. Fees and Payment.
(a) Fees. Customer shall pay Provider the Fees as provided in the Prime Agreement. The applicable purchase order, invoice,
schedule, exhibit, attachment, task order, or other ordering document included in the Prime Agreement ("Order") will establish
the original order date for the Software Services ("Order Date"). If Customer fails to pay the Fees when due, without limiting
Provider's other rights and remedies, Provider may suspend Customer's and its Authorized Users' access to any portion or all of
the Software Services until such amounts are paid in full.
(b) Fee Increase. Unless otherwise provided, the Fee for any Renewal Terms(s) (as defined below) shall escalate annually as of each
annual anniversary of the Software Services original Order Date by the amount of the prior term's Fee plus the increase as based
upon the U. S. Bureau of Labor Statistics Producer Price Index for Data Processing and Related Services, Hosting, ASP and Other
IT Infrastructure Provisioning Services, Series ID: PCU5182105182105, 12-month percent change. The Renewal Fee is based
upon the number of active endpoints at the time of Renewal. For any Initial Term longer than one (1) year, the Renewal Fee
pricing shall be subject to then -current pricing after conclusion of the Initial Term, followed by application of the index -based
escalation as provided above.
6. Confidential Information and Data Privacy.
(a) From time to time during the Term, either Party may disclose or make available to the other Party non-public, proprietary
information about its business affairs, products, services, confidential intellectual property, trade secrets, third -party confidential
information, and other sensitive or proprietary information, whether orally or in written, electronic, or other tangible form, that is
reasonably understood from the context of the disclosure, or is affirmatively marked, designated, or otherwise identified as
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"confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of
disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the
receiving Party on a non -confidential basis from a third party; (d) independently developed by the receiving Party; or (e) disclosed
under legal compulsion. The receiving Party shall use the Confidential Information solely for the performance of this Agreement
and shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's
employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its
obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent
required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with
applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the
other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement,
including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly
return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's
Confidential Information, or destroy all such copies and certify in writingto the disclosing Party that such Confidential Information
has been destroyed. Each Party's obligations of non -disclosure with regard to Confidential Information are effective as of the
Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect
to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-
disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains
subject to trade secret protection under applicable law.
(b) Data Privacy and Security.
(i) By Provider. Without limiting Provider's obligation of confidentiality as further described herein, Provider will use
commercially reasonable efforts to establish and maintain a data privacy and information security program, including
physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and
confidentiality of the Customer Data; (b) protect against any anticipated threats or hazards to the security or integrity of the
Customer Data; (c) protect against unauthorized disclosure, access to, or use of the Customer Data; (d) ensure the proper
disposal of Customer Data; and, (e) ensure that all employees, agents, and subcontractors of Provider, if any, comply with
all of the foregoing.
(i i) Data Protection. Each Party shall comply with all laws and regulations applicable to the processing of personal data in
connection with any transactions related to this Agreement which may be applicable, including any other legal requirements
related to (a) privacy and data security, and (b) the use, collection, retention, storage, security, disclosure, transfer, disposal
and other processing of personal data ("Privacy Laws"). Unless otherwise agreed in the Prime Agreement, Customer
consents to the storage of Customer Data on a Provider server located in the United States or Ireland. Customer is
responsible for obtaining any necessary authorizations and consents prior to disclosing Customer Data to Provider or to
any third party. The terms "controller", "personal data" and "processing" used in this section shall have the meaning set
out in the applicable Privacy Laws. Either Party may use personal data consisting of ordinary business contact data (e.g.,
name, phone number, email address, etc.) in its capacity as a controller or processor strictly in accordance with applicable
Privacy Laws in the normal course of business but only for the purpose of administration of the Party's business relationship
and performance of their obligations under this Agreement.
7. Intellectual Property Ownership: Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including
all intellectual property rights, in and to the Provider IP, and with respect to Third -Party Products or Affiliate Products, the
applicable third -party or Affiliate owns all right, title, and interest, including all intellectual property rights, in and to the Third -
Party Products or Affiliate Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest n
and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty -free, worldwide license to reproduce,
distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be
necessary for Provider to provide the Software Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty -free,
worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider
by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation,
new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free
to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer
hereby assigns to Provider on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and
interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts,
techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not
required to use any Feedback.
8. Limited Warranty.
(a) Provider warrants that the Software Services will conform in all material respects to the service levels set forth in Section 4(a)
when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees
regarding uptime or availability of third party networks such as but not limited to datacenter hosting or cellular or other
connectivity. Any failure by Provider to meet the Availability Period shall entitle Customer to a term extension of Software
Services for the period of time the Availability Period was not achieved. The remedy set forth in in this Section 8(a) is Customer's
sole remedy and Provider's sole liability, and no Provider failure to maintain the Availability Period at any time shall be deemed
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a breach of this Agreement. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL
WARRANTIES, WITH RESPECT TO ANY THIRD -PARTY PRODUCTS OR AFFILIATE PRODUCTS.
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), THE SOFTWARE SERVICES ARE PROVIDED "AS IS" AND ON A
"AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON -INFRINGEMENT, ACCURACY OF INFORMATIONAL
CONTENT AND SYSTEM INTEGRATION, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE
PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), PROVIDER MAKES NO WARRANTY OF ANY KIND
THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER
PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK
WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR
ERROR FREE. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE SERVICES IS AT
CUSTOMER'S RISK. PROVIDER DOES NOT WARRANTAND IS NOT RESPONSIBLE FOR ANYTHIRD-PARTY PRODUCTS OR SERVICES
OR AFFILIATE PRODUCTS OR SERVICES.
9. Indemnification.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities,
costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third -party claim, suit,
action, or proceeding ("Third -Party Claim") that the Software Services, or any use of the Software Services in accordance
with this Agreement, infringes or misappropriates such third party's intellectual property rights, patents, copyrights, or trade
secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows
Provider sole authority to control the defense and settlement of such claim.
(ii) If such a Third -Party Claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion,
to (A) modify or replace the Software Services, or component or part thereof, to make it non -infringing, or (B) obtain the
right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may
terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written
notice to Customer, and refund Customer any pre -paid Fees on a pro rata basis as of the time of termination.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Software Services in
combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in
writing; (B) modifications to the Software Services not made by Provider; (C) Customer Data; or (D) Third -Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against
any Losses resulting from any Third -Party Claim that the Customer Data, or any use of the Customer Data in accordance with
this Agreement, infringes or misappropriates such third party's intellectual property rights, and any Third -Party Claims based on
Customer's or any Authorized User's (i) failure to obtain any necessary consents in accordance with the Privacy Laws; (ii)
negligence or willful misconduct; (iii) use of the Software Services in a manner not authorized by this Agreement; (iv) use of the
Software Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized
by Provider in writing; or (v) modifications to the Software Services not made by Provider, provided that Customer may not settle
any Third -Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have
the right, at its option, to defend itself against any such Third -Party Claim or to participate in the defense thereof by counsel of
its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION
FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE SERVICES INFRINGE, MISAPPROPRIATE, OR
OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY
LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND
OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, LIQUIDATED, OR PUNITIVE
DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF
GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF
DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER EITHER
PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE
FORESEEABLE.
11. Term and Termination.
12. Term. See Professional Services Agreement.
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13. Termination. In addition to any other express termination right set forth in this Agreement:
Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due
hereunder, and such failure continues more than thirty (30) days after Provider's delivery of written notice thereof; or (B) breaches any of
its obligations under Section 2(c) or Section 6;
(i) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially
breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty
(30) days after the non -breaching Party provides the breaching Party with written notice of such breach; or
(i i) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party:
(A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against
it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any
proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment
for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed
by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(b) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately
discontinue use of the Provider IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy,
or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No
expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or
termination or entitle Customer to any refund.
(c) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement.
No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
14. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Orders,
constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes
all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with
respect to such subject matter.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must
be in writing and addressed to the Parties at the addresses set forth in the Professional Services Agreement.
(c) Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure
or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any
circumstances beyond Provider's reasonable control, including but not limited to acts of God, any natural disaster, epidemic,
pandemic (including, but not limited to, COVID-19), explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor
stoppages or slowdowns or other industrial disturbances such as but not limited to failures or fluctuations in electrical power,
telecommunications equipment or hosting services, or passage of law, order, regulation or any action taken by a governmental
or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. This Agreement may not be amended or modified orally but only through a written
amendment that is signed by each Party. No waiver of any right or duty under this Agreement will be effective, and no course of
dealing will be binding on either Party, unless set forth in writing and signed by both Parties.
(e) Severability. If any provision of this Agreement is void or unenforceable: (i) the Parties agree to replace such void or
unenforceable provision with a replacement provision that most nearly approximates the outcome intended by the void or
unenforceable provision, and (ii) such invalidity or enforceability will not affect the validity or enforceability of any other provision
hereof.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws
of the State of California, United States, without giving effect to any choice or conflict of law provision or rule that would require
or permit the application of the laws of any jurisdiction other than those of the State of California. In the event of a dispute the
Parties may mutually agree to resolve the dispute by direct negotiation, mediation, or non -binding arbitration. Any legal suit,
action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the state
or federal courts of the State of California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any
such suit, action, or proceeding. The Parties agree that neither the United Nations Convention on Contracts for the International
Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of where
the Parties do business or are incorporated.
(g) Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written
consent of Provider provided, however, that each Party may assign its rights and obligations hereunder to an Affiliate. Any
purported assignment or delegation in violation of this Section will be null and void. This Agreement is binding upon and inures
to the benefit of the Parties and their respective permitted successors and assigns.
(h) Compliance with Laws/Export Regulation. The Parties will comply with all applicable laws, regulations and codes, including
procurement of permits and licenses, when needed, of their respective states, territories, provinces, and/or countries in the
performance of this Agreement, provided such is not in violation of the U.S. Government's Export and Anti -boycott Rules and
Regulations. The Software Services and related technical information, documents and materials are subject to export controls
under the U.S. Export Administration Regulations and other applicable laws. Customer will (a) comply strictly with all legal
requirements established under these controls; (b) cooperate fully with Provider in any audit or inspection that relates to these
controls; and (c) not export, re-export, divert or transfer, directly or indirectly, any such item to any country or person who or
which is embargoed by Executive Order or any applicable law, including any rules, regulations or policies promulgated thereunder.
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(i) US Government Rights. Each of the Documentation and the software components that constitute the Software Services is a
"commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and
"commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an
agency of the US Government or any contractor thereof, Customer only receives those rights with respect to the Software
Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48
C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to
all other US Government users and their contractors.
0) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations
under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary
damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party
will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may
be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that
monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that
may be available at law, in equity, or otherwise.
(k) Publicity. Neither Party may release any information to third parties, make any public statements about this Agreement or
otherwise use the other Party's name, logo or trademarks without the other Party's express written consent.
(1) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together
are deemed to be one and the same agreement.
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Page 8 of 8
APPENDIX D
NETWORK AS A SERVICE AGREEMENT WITH LORAWAN
Not applicable.
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EXHIBIT B
SCHEDULE OF BILLING RATES
(See Scope of Services, Exhibit A, Appendix A — Pricing)
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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 Contract, 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 providing statutory benefits and Employer's
Liability Insurance with limits of at least one million dollars ($1,000,000)
each employee for bodily injury by accident and each employee for bodily
injury by disease in accordance with the laws of the State of California.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees.
General Liability Insurance. Consultant shall maintain commercial
general liability insurance, and if necessary excess/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 two million
dollars ($2,000,000) per occurrence, four million dollars ($4,000,000)
general aggregate. The policy shall cover liability arising from premises,
operations, personal and advertising injury, and liability assumed under
an insured contract for bodily injury and property damage (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
Contract, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
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combined single limit for each accident.
D. Cyber/Technology Errors and Omissions (E&O) Insurance. Consultant
shall maintain a liability policy combining cyber and technology
professional E&O insurance in an amount not less than two million dollars
($2,000,000) per occurrence and four million dollars ($4,000,000) in the
aggregate. Coverage shall be sufficiently broad to respond to the duties
and obligations as is undertaken by the Consultant in this agreement and
shall include, but not be limited to, claims involving security breach,
system failure, data recovery, business interruption, cyber extortion,
social engineering, infringement of intellectual property, including but not
limited to infringement of copyright, trademark, trade dress, invasion of
privacy violations, information theft, damage to or destruction of
electronic information, release of private information, and alteration of
electronic information. The policy shall provide coverage for breach
response costs, regulatory fines and penalties as well as credit
monitoring expenses or remediation services.
E. Excess/Umbrella Liability Insurance. If any Excess or Umbrella Liability
policies are used to meet the limits of liability required by this contract,
then said policies shall be "following form" of the underlying policy
coverage, terms, conditions, and provisions and shall meet all of the
insurance requirements stated in this contract, including, but not limited
to, the additional insured and primary & non-contributory insurance
requirements stated herein. No insurance policies maintained by the City,
whether primary or excess, and which also apply to a loss covered
hereunder, shall be called upon to contribute to a loss until the
Consultant's primary and excess/umbrella liability policies are exhausted.
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 Contract shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents,
volunteers and employees, 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 and insurance clauses from each of its subcontsultants.
B. Additional Insured Status. Liability policies including general liability,
products and completed operations, excess/umbrella liability, cyber, and
automobile liability, if required, shall provide or be endorsed to provide
that City, its City Council, boards and commissions, officers, agents,
volunteers and employees shall be included as additional insureds under
such policies.
C. Primary and Non -Contributory. Consultant's liability policies including
general liability, products and completed operations, and
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excess/umbrella liability insurance coverage shall be primary insurance
and/or the primary source of recovery with respect to the City, its City
Council, boards and commissions, officers, agents, volunteers and
employees. All general liability, products and completed operations, and
excess/umbrella 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. Consultant shall provide City with thirty (30)
calendar days' notice of cancellation or nonrenewal of coverage (except
for nonpayment for which ten (10) calendar days' notice is required) 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. All of
the executed documents referenced in this Contract must be returned
to City within ten (10) regular City business days after the date on the
"Notification of Award". Insurance certificates and endorsements 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 Contract. The certificates and
endorsements for each insurance policy shall be signed by a person
authorized by that insurer to bind coverage on its behalf. At least five
(5) days prior to the expiration of any such policy, evidence of insurance
showing that such insurance coverage has been renewed or extended
shall be filed with the City. If such coverage is cancelled or reduced,
Consultant shall, within ten (10) days after receipt of written notice of
such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or
has been provided through another insurance company or companies.
City reserves the right to require declaration pages of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. The City reserves the right at any
time during the term of the Contract to change the amounts and types of
insurance required by giving Consultant ninety (90) 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. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subconsultants or others with whom Consultant enters
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into contracts with on behalf of City will be submitted to City for review.
Failure of City to request copies of such agreements will not impose any
liability on City, or its employees. Consultant shall require and verify that
all subconsultants maintain insurance meeting all the requirements
stated herein, and Consultant shall ensure that City is an additional
insured on insurance required from subconsultants. For CGL coverage,
subconsultants shall provide coverage with a format at least as broad as
CG 20 38 04 13.
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no
additional obligations on City nor does it waive any rights hereunder.
E. 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 proceeds in excess of specified
minimum limits of insurance and coverage shall be available to the City.
F. Self -Insured Retentions. Any self -insured retentions must be declared to
and approved by City. Self-insurance will not be considered to comply
with these requirements unless approved by City.
G. 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.
H. 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.
I. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
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judgment may be necessary for its proper protection and prosecution of
the Work.
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