C2023-89
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into this 27 day of Tune, 2023, by and between the CITY OF MANTECA, a public body, corporate and politic ("City") and Badger Meter, Inc., a Wisconsin corporation ("Vendor").
RECITALS
A. Vendor is specially trained, experienced, and competent to perform the professional services required by this Agreement.
B. Vendor possesses the skill, experience, ability, background, certification, and knowledge to provide the services described in this Agreement on the terms and conditions specified herein.
C. - City desires to retain Vendor to render the professional services set forth in this Agreement.
AGREEMENT
1. Scope of Services. Vendor shall perform the Beacon Advanced Metering Mobile Solutions services described in the attached Attachment 1 that is incorporated by this reference, and pursuant to the Proposal submitted by Vendor on August 17, 2022, and attached hereto as Attachment 2. Vendor shall provide these services at the time, place, and in the manner specified in Attachment 1, subject to the direction of the City through its staff that may be provided from time to time. Performance of the Beacon Advanced Metering Mobile Solutions services is sometimes referred to herein as "the Project."
2. Work Through City Staff. Vendor shall perform its services pursuant to this Agreement solely through City staff. No communications, information or documentations shall be made directly to any applicant to the City without the prior written consent of the City. This shall not apply to the sole request of information or clarification of information by Vendor from the applicant. All requests shall be noted to City in an expeditious manner. • 3. Time of Performance. Vendor's services will commence upon execution of this Agreement and shall be completed in accordance with the Schedule of Activities, attached hereto as Attachment 3. All software set up work shall be completed no later than December 31, 2023, and the agreement shall be for a term of three (3) years, with a three (3) year option to renew subject to written mutual agreement by the Parties at least thirty (30) days prior to the expiration of the initial term. Failure to submit work products in accordance with the Schedule of Activities may result in the City withholding progress payments. Repeated failure to complete work products in accordance with the Schedule of Activities may result in a reduction of the total compensation provided for in Section 4 herein.
4. Compensation. Without additional authorization from the City, compensation to be paid to Vendor shall not exceed Seventy Two Cents ($0.72) per end point per month or $300,000 annually. Payment by City under this Agreement shall not be deemed a waiver of any defects, even if those defects were known to the City at the time of payment.
5. Method of Payment. Vendor shall submit monthly billings to City specifying and describing the work performed during the preceding month. Vendor's bills shall include a brief description of the services performed, the date the services were performed, the number of hours expended and by whom, and a description of any reimbursable expenditures. Full payment of each task will only be made at such time as each task is completed.
City shall pay Vendor no later than 30 days after approval of the monthly invoice by City staff.
Payments may be delayed by City if Vendor fails to provide services in accordance with the Schedule of Activities, unless the City has provided prior written consent to any delay in the schedule.
6. Extra Work. At any time during the term of this Agreement, City may request that Supplier perform Extra Work. As used herein, the term "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the time of execution of this Agreement. Vendor shall not perform, nor be compensated for, Extra Work without the City's prior written authorization.
7. Termination. This Agreement may be terminated by the City immediately for cause, or by either party without cause upon 15 days' prior written notice of termination. Upon termination, Vendor shall be entitled to compensation for services performed up to the effective date of termination upon submittal of an invoice for same.
8. Use of City Name.
Vendor shall not use City's name or insignia, photographs relating to the Project for which Vendor's services are rendered, or any publicity pertaining to the Vendor's services under this Agreement in any magazine, trade paper, newspaper, television or radio
9. Vendor's Books and Records.
A. Vendor shall maintain all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City, for a minimum period of three years, or for any longer period required by law, from the date of final payment to Vendor under this Agreement.
Vendor shall maintain all records that document performance under this Agreement for a minimum period of three years, or for any longer period required by law, from the date of termination or completion of this Agreement.
Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor, or a designated 2 representative of any of these officers. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Vendor's address specified in Section 16 of this Agreement.
Where City has reason to believe that records or documents may be lost or discarded due to the dissolution or termination of Vendor's business, City may, by written request, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to these records and documents shall be granted to any party authorized by Vendor, Vendor's representatives, or Vendor's successor-in-interest.
10. Independent Contractor. In the performance of the work and services required by this Agreement, Vendor shall act as and be an independent contractor and not an agent, or employee of the City. Vendor shall obtain no rights to retirement or other benefits that accrue to City's employees, and Vendor expressly waives any claim it may have to any such rights.
11. Interest of Vendor.
A. Vendor represents that neither it nor any employee has any investment or interest in real property, and shall not acquire any such interest, direct or indirect, within the area covered by this Agreement, or any other source of income, interest in real property, or investment that would be affected in any manner or degree by the performance of Vendor's services hereunder. Vendor further represents that, in the performance of its duties hereunder, no person having any such interest shall perform any services under this Agreement.
B. Vendor is not a designated employee within the meaning of the Political Reform Act because Vendor:
(1) will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation, or counsel independent of the control and direction of the City, or of any City official, other than normal Agreement monitoring; and
(2) possesses no authority with respect to any City decision beyond the rendition of information, advice, recommendation, or counsel. (FPPC Reg. 18700(a)(2).)
12. Professional Ability of Vendor.
A. City is relying upon the professional training and ability of Vendor to perform the services hereunder as a material inducement to enter into this Agreement. Vendor shall therefore provide skilled professional and technical personnel to perform all services under this Agreement. All work performed by Vendor shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Vendor's field of expertise.
The primary provider of the services required by this Agreement shall be Badger Meter, Inc. A list of other individuals assigned to the Project will be provided to City for its review and approval, and these individuals shall not be replaced without the City's prior written consent.
3 13. Compliance with Laws. Vendor shall use the customary standard of care in its profession to comply with all applicable federal, state, and local statutes, codes, ordinances, and regulations.
14. Licenses. Vendor represents and warrants to City that it has all licenses, permits, qualifications, insurance, and approvals that are legally required of Vendor to practice its profession. Vendor represents and warrants to City that Vendor shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance, and approvals that are legally required of Vendor to practice its profession.
15. Indemnification and Hold Harmless. Vendor agrees to defend, indemnify, and hold harmless the City, its officers, officials, agents, employees, and volunteers, from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therewith), arising out of Vendor's active negligence or willful misconduct in its performance of this Agreement, or Vendor's failure to comply with any of its obligations contained in this Agreement; excluding, however, any claim arising out of the active negligence or willful misconduct of the City, its officers, agents, employees, or volunteers.
16. Insurance Requirements.
A. Job specific insurance requirements can be found on the attached Attachment
4. Other insurance provisions can be found below:
B. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing an A.M. Best's rating of no less than A:VII and shall be endorsed with language substantially as follows:
(1) The City, its elected and appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Vendor, including materials, parts, or equipment furnished in connection with such work.
(2) The policy shall be considered primary insurance as respects the City, its elected and appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not contribute with it. (3) The insurance shall apply to each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (4) The insurer waives all rights of subrogation against the City, its elected and appointed officers, officials, employees, and agents. 4 (5) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officers, officials, employees, agents, or volunteers. (6). The insurance provided by the policy shall not be suspended,. voided, canceled, or reduced in coverage or in limits except after 30 days written notice has been received by the City.
(7) The City will not accept any endorsements that were issued in 2004. Acceptable endorsement forms are CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City's option, Vendor shall demonstrate financial capability for payment of those deductibles or self-insured retentions.
D. Certificates of Insurance. Vendor shall provide to City certificates of insurance with original endorsements as evidence of the required insurance coverage.
Certificates of insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement.
17. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City: City of Manteca
1001 W. Center Street
Manteca, CA 95337
Attention: Water Meter Services Supervisor
If to Vendor: Proposals Department_
Badger Meter, Inc.
4545 W Brown Deer Rd_
Milwaukee, WI 53223
Attention: Assistant General Counsel
18. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Vendor for the work specified in Attachment 1.
All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in their entirety by this Agreement.
19. Amendments. This Agreement may be amended only by a written document executed by both Vendor and City and approved as to form by the City Attorney.
Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience, 5 and competence of Vendor. Assignments of any or all rights, duties, or obligations of the Vendor under this Agreement will be permitted only with the express written consent of the City, which consent will not be unreasonably withheld.
21. Waiver. Waiver of any breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach or default of the same or any other provision under this Agreement.
22. Severability. If any provision 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.
23. Controlling Law; Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California, and any legal action relating to this Agreement shall take place in the Superior Court, County of San Joaquin.
24. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
25. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS, and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation.
Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy has been signed by both parties.
27. Authority to Enter Agreement. Vendor warrants that it has all requisite power and authority to conduct its business and to execute, deliver, and perform this Agreement. Each party warrants to the other that the signatories to this Agreement have the legal power, right, and authority to enter into this Agreement and to bind each party.
28. Prohibited Interests.
A. Vendor warrants that it has not employed or retained any person, other than a bona fide employee working solely for Vendor, to solicit or secure this Agreement.
Further, Vendor warrants that it has neither paid nor agreed to pay any person, other than a bona fide employee working solely for Vendor, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement.
For any breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
B. For the term of this Agreement, no member, officer, or employee of City, during the period of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
29. Equal Opportunity Employment. Vendor represents that it is an equal opportunity employer, and it shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, or age.
Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
30: Precedence. In case of conflict between Vendor's Proposal/Vendor's attachments and the City's Agreement/City's attachments, the City's Agreement and City's attachments shall take precedence over Vendor's proposal/Vendor's attachments.
This Space Purposely Left Blank
TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth in the introductory paragraph on page l above.
CITY OF MANTECA: VENDOR:
Kim Stoll (May 24, 2023 13:15 CDT)
Kim Stoll, VP Sales and Marketing,
Interm City Manager Badger Meter, Inc.
ATTEST: By:
(Signature
(Type name and title)
Director of Legislative Services
Address: 4545 W. Brown Deer Road
COUNTERSIGNED: Milwaukee, WI
Telephone: (414) 371 - 5788
Jared Hansen,
Acting Director of Finance
COUNTERSIGNED:
Dawh Cortesi,
Interim Director of Human Resources
APPROVED AS TO FORM:
L. David Nefouse, City Attorney
L. David Nefouse,
City Attorney
8 ATTACHMENT 1
REQUEST FOR PROPOSAL
See Attachment 3
9 ATTACHMENT 2
VENDOR'S PROPOSAL •
See Attachment 3
10 ATTACHMENT 3
This BEACON SAAS MANAGED SOLUTION MASTER AGREEMENT ("Agreement"), as attached as Attachment 3, is entered into as of the day of 2023 (the "Effective Date") by and between Badger Meter, Inc., a Wisconsin corporation with offices located at 4545 W. Brown Deer Road, Milwaukee, Wisconsin 53223 ("Badger Meter"), and City of Manteca, with offices located at 1001 W. Center St., Manteca California 95337 and as applicable its officers, directors, members, board members, governing members, trustees, commissioners, elected and appointed officials, employees, agents, Vendors and other representatives ("Customer" or "City").
(1) SERVICE. Badger Meter and its cellular service aggregator and data-hosting service providers ("Vendors") have developed a hosted, on-demand, web-based service website ("Portal") accessible to its customers to provide metering and water usage service information, communicated through a cellular network, for its customers ("Service"), and documentation to assist customers in using the Portal and the Service ("Documentation").
(2) RIGHT TO ACCESS AND USE THE PORTAL AND SERVICE. In
consideration of the payment of the Service Fees as set forth in Section (5), Badger Meter grants to Customer, its employees and contractors that Customer approves as users of the Service ("Authorized User") and Customer's approved end-user water customers ("Authorized Consumer") the right to remotely access and use the Service from the Portal (as currently configured) for Customer's internal business use and for the benefit of its Authorized Consumers in accordance with this Agreement. Any rights and obligations in this Agreement relative to Customer and its Authorized Consumers will only be in effect when Customer affirmatively enables the EyeOnWater Service.
(3) OWNERSHIP OF PORTAL AND SERVICE.
(a) Badger Meter Service. Badger Meter owns all rights, title and interest in the Portal, Service and Documentation, including all associated intellectual property rights. Neither Customer, nor its Authorized Users or Authorized Consumers will obtain any rights, title or interest in the Portal, Service, or Documentation or any associated intellectual property rights, other than the right to access and use the Portal, Service and Documentation, subject (b) Suggestions. If Customer provides Badger Meter any suggested improvements ("Suggestions") to the Portal, Service or Documentation, Customer agrees that Badger Meter will own all rights, title and interest in and to the Suggestions, even if Customer has designated the Suggestions as confidential. Badger Meter will be entitled to use the Suggestions without restriction. By entering into this Agreement, Customer irrevocably assigns, conveys and transfers to Badger Meter all right, title and interest in and to the 11 Suggestions and agrees to provide Badger Meter with commercially reasonable assistance to document, perfect and maintain Badger Meter's rights in the Suggestions. (4) TERM. The term of this Agreement begins on the Effective Date and continues for a ten (10) year term unless earlier terminated in accordance with Section (16) of the Agreement (the "Term").
(5) FEES.
(a) Service Fees. In consideration for the right to access and use the Portal, Service and Documentation, Customer agrees to pay Badger Meter certain fees ("Service Fees") to obtain enterprise-wide access to the Portal, Service and Documentation, authorizing all of its Authorized Users and Authorized Consumers to use the Portal and Service and Documentation in accordance with the terms of this Agreement, pursuant to the pricing set forth in Exhibit 1 - Fees
(b) Taxes and Surcharges. Customer will be responsible to pay any sales, use, value added or excise taxes or surcharges resulting from use of the Portal, Service and Documentation by Customer, its Authorized Users or Authorized Consumers, excluding taxes due on Badger Meter's income. Customer will not be responsible for payment of taxes or surcharges resulting from its use of the cellular service included as part of the Service, as those charges are included in the Service Fees. (c) Updated Schedule of Fees. At least ninety (90) days prior to the expiration date of the Term ("Anniversary Date"), Badger Meter will provide Customer with an updated Schedule of Fees for the Service for the upcoming contract term. (6) RESTRICTIONS ON RIGHT TO USE. Customer agrees that Customer, its Authorized Users and Authorized Consumers will not use or permit or assist another to use the Portal, Service or Documentation in violation of this Agreement and will not:
(a) Sell, license, resell, sublicense, or otherwise permit any third parties other than Authorized Users or Authorized Consumers to access or use the Portal, Service, or Documentation.
(b) Remove patent, copyright, trademark or other intellectual property markings from the Portal, Service or Documentation.
(c) Modify, alter, tamper with, repair or otherwise create derivatives from the Portal, Service or Documentation.
(d) Copy, reverse engineer, disassemble or decompile the Portal, Service or Documentation or apply any other process or procedure to derive the source code from any software included in the Portal or Service.
12 (e) Use the Portal or Service in a manner that violates any applicable international, federal, state or local laws, rules or regulations.
(f) Assert or authorize, assist or encourage any third party to assert against Badger Meter, its affiliates, customers, vendors, business partners, Servicers or licensors any intellectual property infringement Claim regarding the Portal, Service or Documentation. (g) Transmit content or messages that are illegal, fraudulent, threatening, abusive, defamatory, or obscene.
(h) Make any unauthorized connection to Badger Meter's information technology architecture ("Network")
(i) Communicate any unsolicited commercial, voice, SMS, or other message.
Upload or transmit any "virus," "worm," or malicious code or access, alter, or interfere with the communications of and/or information about another customer. (k) Take actions that could cause damage to or adversely affect Badger Meter, the Service, Portal, Suppliers, Network or the property or reputation of Badger Meter or its Suppliers.
Customer and Badger Meter agree to make good faith efforts to minimize abuse or fraudulent use of the Portal and Service, to promptly report to each other any such abuse or fraudulent use of which they become aware, and to fully cooperate in any investigation or prosecution initiated by Badger Meter, its Suppliers or Customer related to abuse or fraudulent use of the Portal and Service.
(7) CUSTOMER SUPPORT. Badger Meter will provide Customer the support services described in Exhibit 2 - Service Level Agreement.
(8) CUSTOMER DATA.
(a) Customer Data Defined. Customer, its Authorized Users and Authorized Consumers may provide Badger Meter and its Suppliers certain, customer billing information, personally identifiable information or other content ("Customer Data"). (b) Ownership. The Parties agree that the Customer Data is and shall remain the sole and exclusive property of Customer and/or its licensors or Authorized Consumers, including but not limited to any intellectual rights in the Customer Data. (c) Use of Customer Data by Badger Meter. Customer, its Authorized Users and Authorized Consumers consent to Badger Meter and its Suppliers' right to host, access, store, copy and use the Customer Data as reasonably necessary to provide, maintain, repair and enhance the Portal, Service and Documentation. Badger Meter may disclose certain Customer Data only to provide the Service to Customer, its Authorized Users and 13 Authorized Consumers or to comply with the law or request of a governmental or regulatory body (including subpoenas or court orders as described in Section 9) . (d) Customer Responsibilities. Customer is solely responsible for the development, content, operation and maintenance of the Customer Data, including but not limited to the technical operation of the Customer Data, and ensuring that calls made to the Service from Customer's network are compatible with then-current API's for the Service. Customer is responsible to ensure that Customer, its Authorized Users and Authorized Consumers comply with the Badger Meter Terms of Use Policy, the Badger Meter Privacy Policy or any other policies referenced in this Agreement and the law. (9) CONFIDENTIALITY.
(a) Confidential Information Defined. For purposes of this Agreement, Confidential Information means all nonpublic information disclosed by one party to the other that is designated as confidential or that given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential, including but not limited to: (a) nonpublic information related to Badger Meter or its affiliates, Suppliers, business partners, technology, customers, business plans, intellectual property, promotional and marketing activities, finances and other business affairs; (b) third party information Badger Meter is obligated to keep confidential; (c) the content and existence of any discussions or negotiations between the parties; (d) Badger Meter's intellectual property used in providing the Portal, Service or Documentation; (e) Customer Data; and (f) Traffic Data, as defined below. Nothing herein shall override and/or interfere with the City's obligations under the California Public Records Act. (b) Protection of Confidential Information. To the extent permitted by law, the parties agree to hold the other party's Confidential Information in strict confidence and will not copy, reproduce, give, sell, assign, license, market, transfer or otherwise dispose of the Confidential Information of the other party to any third parties or use the Confidential Information for any purposes whatsoever other than as contemplated by this Agreement.
The Parties will take commercially reasonable steps to avoid disclosure, dissemination or unauthorized access to or use of the Confidential Information during the Term and for a period of five (5) years after the end of the Term, except that Confidential Information which is designated as a trade secret which shall continue to be subject to these confidentiality obligations in perpetuity. Customer agrees it will not misrepresent or embellish the relationship between the Parties (including by expressing or implying that Badger Meter supports, sponsors, endorses or contributes to Customer or its business endeavors) or express or imply any relationship or affiliation between Badger Meter and Customer or any other person or entity except as expressly permitted by this Agreement. (c) Traffic Information. All de-identified data (generally, aggregated system data stripped of PI) generated or collected by Badger Meter through operation of the Portal and Service is referred to as the "Traffic Data." All Traffic Data shall be the Confidential Information of and owned exclusively by Badger Meter.
14 (d) Third Party Requests for Confidential Information. Neither party may disclose the other party's Confidential Information except to a Supplier subject to the restrictions in this Agreement or an Authorized User or Authorized Consumer except as otherwise required by law. If a party receives a request for access to the other party's Confidential Information from a third party, the receiving party agrees to inform the disclosing party in writing within three (3) business days of receipt of the request unless prohibited by law. Nothing herein is meant to override and/or interfere with the City's obligations under the California Public Records Act and/or any lawful order.
(e) Exclusions from Confidential Information. Confidential Information of a party shall not include information which: (i) is in or becomes part of the public domain through no fault of the receiving party; (ii) the receiving party can prove was known to it prior to its receipt from the disclosing party without reference to the Confidential Information; (iii) is independently developed by the receiving party outside of this Agreement without use of the disclosing party's Confidential Information; or (iv) is obtained by the receiving party from a third party which had no obligation of confidentiality to the disclosing party. (10) CUSTOMER'S REPRESENTATIONS AND WARRANTIES. Customer represents and warrants to Badger Meter that:
(a) Authority. Customer has the right and authority to enter into this Agreement and to meet its financial and legal obligations under this Agreement. (b) Ownership. Customer, its licensors or its Authorized Consumers, own all rights, title and interest in and to the Customer Data. Customer has all rights in the Customer Data necessary to grant the rights to Badger Meter contemplated under this Agreement. (c) Compliance with Badger Meter Policies. None of the Customer Data or the use of the Customer Data, the Portal or Service by Customer, its Authorized Users or its Authorized Consumers will violate Badger Meter's BEACON Terms of Use https://beaconama.net/termsofuse.html or Privacy Policy https://beaconama.net/privacy/privacy.html.
(d) Compliance with the Law. Neither Customer, the Authorized Users nor the Authorized Consumers will access or use the Portal, Service or Documentation in any manner that violates any applicable international, federal, state or local laws and/or regulations, including but not limited to all applicable data protection; intellectual property and privacy laws.
(11) REPRESENTATIONS AND WARRANTIES OF BADGER METER.
(a) Authority. Badger Meter represents and warrants to Customer that it has the right and authority to enter into this Agreement and to perform its obligations under this Agreement. (b) Service Warranty. Badger Meter represents and warrants to Customer that the Portal and Service will be provided pursuant to Exhibit 2 - Service Level Agreement. In 15 providing the Portal and Service, Badger Meter will maintain sufficient data storage capacity to satisfy the technical requirements and required storage capacity to host the Portal and Service, in its reasonable discretion. If Customer allows unauthorized users to access the Portal, Service or Documentation, this express limited warranty will immediately become null and void.
(c) Remedy for Breach of the Express Limited Warranty. If the Portal, Service or Documentation fail to meet the terms of the express limited warranty set forth in Section 11(b), Customer is required to notify Badger Meter promptly as defined in Exhibit 2 - Service Level Agreement. Customer's exclusive remedy for a breach of the express limited warranty is a Service credit to be calculated in accordance with Exhibit 2 - Service Level Agreement.
(d) DISCLAIMER OF IMPLIED WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 11(b), BADGER METER
MAKES NO OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR
WARRANTIES AS TO THE PORTAL, SERVICE OR DOCUMENTATION.
BADGER METER EXPRESSLY DISCLAIMS ANY OTHER EXPRESS OR
IMPLIED WARRANTIES WITH REGARD TO THE PORTAL, SERVICE OR
DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT,
FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR IMPLIED
WARRANTIES ARISING FROM A COURSE OF DEALING, INDUSTRY
PRACTICE OR USAGE OF TRADE.
BADGER METER EXPRESSLY DISCLAIMS THAT THE PORTAL AND
SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL
COMPONENTS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES AS TO
THE RELIABILITY, QUALITY, SECURITY, CONDITION, DESIGN,
SUITABILITY, INTER-OPERABILITY, AVAILABILITY, COMPLETENESS OF
THE PORTAL OR SERVICE OR THAT ANY DATA, INCLUDING THE
CUSTOMER DATA, WILL BE SECURE OR NOT OTHERWISE LOST OR
DAMAGED.
(e) ESSENTIAL TERMS. THE ENFORCEABILITY OF THIS SECTION (11) IS
ESSENTIAL TO BADGER METER'S WILLINGNESS TO ENTER INTO THIS AGREEMENT WITH CUSTOMER.
(12) LIMITATION OF LIABILITY
(a) DIRECT DAMAGES. IF ANY PARTY DEFAULTS IN ITS OBLIGATIONS
UNDER THIS AGREEMENT, THE NON-BREACHING PARTY WILL BE
ENTITLED TO RECOVER FROM THE BREACHING PARTY ONLY THE
ACTUAL AND DIRECT DAMAGES THAT THE NON-BREACHING PARTY MAY
INCUR AS A RESULT OF SUCH BREACH, UNLESS SUCH DAMAGES ARISE FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. 16 (b) CAP ON DAMAGES. NEITHER PARTY'S NOR ANY OF ITS RESPECTIVE
AFFILIATES ANNUAL LIABILITY UNDER THIS AGREEMENT WILL EXCEED
THE LESSER OF (A) THE AMOUNTS THE CUSTOMER ACTUALLY PAYS
BADGER METER UNDER THIS AGREEMENT FOR THE SERVICE THAT
GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM, OR (B) US $250,000, UNLESS SUCH DAMAGES ARE THE RESULT OF
OR ATTRIBUTED TO THE SOLE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF BADGER METER, INC. BADGER METER INC. SHALL NOT
BE RESPONSIBLE FOR ANY LOST PROFITS OR OTHER DAMAGES,
INCLUDING INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY
OTHER DAMAGES, HOWEVER CAUSED, UNLESS SUCH DAMAGES ARE THE
RESULT OF OR ATTRIBUTED TO THE SOLE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BADGER METER INC. NOTHING IN THIS SECTION 12 WILL LIMIT CUSTOMER'S OBLIGATION TO PAY BADGER METER FOR USE OF THE SERVICES PURSUANT TO SECTION 5, UNLESS SUCH SPECIFIC MATTERS ARE IN DISPUTE BETWEEN THE PARTIES. (c) LIMITS ON DAMAGES. EXCEPT FOR PAYMENT OBLIGATIONS
ARISING UNDER SECTIONS (13) AND (14) (INDEMNIFICATION), NEITHER
PARTY NOR ANY OF ITS RESPECTIVE AFFILIATES, SUPPLIERS OR
LICENSORS WILL BE LIABLE TO THE OTHER PARTY, AN AUTHORIZED
USER, AUTHORIZED CONSUMER OR ANY THIRD PARTY FOR ANY CLAIMS,
DEMANDS, ACTIONS, LOSSES, DAMAGES, FINES, JUDGMENTS
SETTLEMENTS, COSTS, EXPENSES, ATTORNEY'S FEES, AND COURT
COSTS OR ANY OTHER LIABILITIES OF ANY NATURE WHATSOEVER,
INCLUDING BUT NOT LIMITED TO THE PORTAL, SERVICE,
DOCUMENTATION, OR THE SUBJECT MATTER OF THIS AGREEMENT
("CLAIM"), UNLESS SUCH DAMAGES ARISE FROM THE GROSS
NEGLIGENCE AND/OR WILLFUL MISCONDUCT OF A PARTY.
FURTHER, NEITHER PARTY NOR ANY OF EITHER PARTY'S RESPECTIVE
AFFILIATES, SUPPLIERS OR LICENSORS SHALL BE LIABLE TO THE
OTHER PARTY, AN AUTHORIZED CONSUMER OR ANY THIRD PARTY FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY,
PUNITIVE OR ENHANCED DAMAGES, LOST REVENUE OR PROFITS OR
DIMINUTION OF VALUE, OR OTHER ECONOMIC ADVERSITY, CLAIMS
RESULTING FROM LOSS OF CUSTOMER DATA, OR BREACH OF
CONFIDENTIALITY, ARISING OUT OF, OR RELATING TO, AND/OR IN
CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS
OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT
THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE)
UPON WHICH THE CLAIM IS BASED, UNLESS SUCH DAMAGES ARISE
FROM THE GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT OF A PARTY.
17 NEITHER BADGER METER NOR ANY OF ITS AFFILIATES, SUPPLIERS OR
LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION,
REIMBURSEMENT OR DAMAGES ARISING IN CONNECTION WITH: (A)
CUSTOMER'S INABILITY TO USE THE PORTAL OR SERVICE, INCLUDING AS A RESULT OF ANY: (i) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER'S USE OF OR ACCESS TO THE SERVICE ; OR (ii) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL
AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF
ALL OR A PORTION OF THE SERVICE FOR ANY REASON, INCLUDING BUT
NOT LIMITED TO AS A RESULT OF A POWER OUTAGE, SYSTEM FAILURE OR OTHER INTERRUPTION; (B) THE COST OF PROCUREMENT OF
SUBSTITUTE SERVICES; (C) ANY INVESTMENTS, EXPENDITURES OR
COMMITMENTS MADE BY CUSTOMER IN CONNECTION WITH THIS
AGREEMENT OR CUSTOMER'S USE OF OR ACCESS TO THE SERVICE OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OR THE DELETION,
DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF
CUSTOMER'S DATA.
(13) CUSTOMER'S INDEMNIFICATION OBLIGATIONS.
(a) Generally. Customer agrees to defend, indemnify, and hold harmless Badger Meter as well as its parents, subsidiaries, affiliates, officers, employees, agents, licensors, Suppliers, representatives and customers and each of their respective employees, officers, directors, members and representatives (the "Badger Meter Parties"), against any and all Claims made against the Badger Meter Parties by any third party arising out of or related to:
(i) Customers, Authorized Users or Authorized Consumers improper and/or illegal access and/or use of the Portal, Service or Documentation. (ii) violation of applicable law by Customer, its Authorized Users or Authorized Consumers; or (iii) a dispute between Customer and any Authorized User or Authorized Consumer. (14) BADGER METER'S INDEMNIFICATION OBLIGATIONS.
(a) Generally. Subject to the limitations of liability provisions set forth in Section (12) of this Agreement, Badger Meter agrees to indemnify, defend and hold harmless Customer, and as applicable its officers, directors, members, board members, governing members, trustees, commissioners, elected and appointed officials, employees, agents, Vendors and other representatives ("Customer Parties") from and against any legal proceedings filed against the Customer Parties by a third party based upon the allegations that the Portal, Service or Documentation infringes or violates a third party's patent, copyright or other intellectual property rights ("Intellectual Property Dispute"). (b) Mitigation. If the Portal, Service or Documentation becomes the subject of an Intellectual Property Dispute and is enjoined, Badger Meter will have the right to (i) procure for Customer the right to continue using the Portal and Service; (ii) modify the 18 Portal and Service to avoid allegations of infringement, provided the modification does not materially change the functionality of the Portal and Service; (il) replace the Portal and Service with an equally suitable, functionally equivalent, non-infringing Portal and Service; or (iv) immediately terminate this Agreement and provide Customer with a refund of any unused pre-paid portion of the Service Fees.
(c) Exclusions. Badger Meter assumes no liability for and Customer will not be entitled to receive indemnification from Badger Meter for any Intellectual Property Dispute which results directly and solely from (i) Customer's failure to use the Portal or Service in conformity with the Documentation; (ii) Customer's actions in combining the Service with any third party software, technology, hardware or data; or (iii) Customer's violation of access granted in Section (2).
(d) Procedure for Indemnification. Upon receipt of an Intellectual Property Dispute, Customer will provide prompt written notice to Badger Meter of the Intellectual Property Dispute for which the Customer Parties seek indemnification. Customer's failure to promptly notify Badger Meter will only affect Badger Meter's obligation to indemnify the Customer Parties to the extent such failure causes actual prejudice to Badger Meter's ability to defend the Claim. The notice must include a description of the Intellectual Property Dispute with reasonable detail of the facts giving rise to the Intellectual Property Dispute.
Upon receipt of notice of an Intellectual Property Dispute, Badger Meter shall be obligated to assume and control the defense of such Intellectual Property Dispute at its own expense:
Customer may retain its own counsel to cooperate in defending the Intellectual Property Dispute, at its own expense. Customer agrees to cooperate with Badger Meter in defending the Intellectual Property Dispute and in making available to Badger Meter all witnesses, records, materials and information in Customer's possession or control to assist in the defense of the Intellectual Property Dispute as is reasonably requested by Badger Meter.
Badger Meter may not settle or compromise any Intellectual Property Dispute or consent to the entry of any judgment unless Customer provides prior written consent and the Customer is given an unconditional written release from Badger Meter with respect to the Intellectual Property Dispute. In the event Badger Meter fails to defend, indemnify, and hold the Customer Parties harmless, after notice of a request for indemnification, Customer shall be entitled to assume the defense and seek reimbursement from Badger Meter for all losses with regard to the Intellectual Property Dispute and all attorneys' fees and litigation costs expended by Customer in defending the Intellectual Property Dispute. (15) TERMINATION.
(a) Termination for Convenience. Customer may terminate this Agreement for any reason by providing Badger Meter written notice of termination at least ninety (90) days in advance of the effective date of such termination. Badger Meter shall be entitled to receive just and equitable compensation for any services performed hereunder through the date of the termination. After receipt of a notice of termination for convenience, Badger Meter will exercise reasonable diligence to accomplish the cancellation or diversion of related services and settle all outstanding liabilities associated with the cancellation of such commitments. 19 (b) Termination for Cause. A party is in default under this Agreement if it materially breaches or materially fails to perform its obligations under this Agreement, which includes any failure to make undisputed payments pursuant to Section (5) ("Event of Default"). (c) Opportunity to Cure. Upon the occurrence of an Event of Default, the non- defaulting party shall deliver a written notice describing the Event of Default (the "Cure Notice"). If the receiving party has not cured the Event of Default within thirty (30) days after receipt of the Cure Notice, then the non-defaulting party shall have the right to terminate this Agreement, at its option, by delivering to the defaulting party a written notice of termination (the "Termination Notice").
(d) Immediate Right to Terminate. Badger Meter shall have the right to immediately terminate this Agreement: (i) in order to protect its Confidential Information, or its Intellectual Property Rights in the Portal or Service; (ii) in order to comply with applicable law (iii) if Customer makes any representation or warranty which is materially untrue as of the Effective Date or at any time during the Term; or (iv) upon an assignment for the benefit of creditors, if Customer suffers or permits the appointment of a receiver for its business or assets, or avails itself of, or becomes subject to, any proceeding under any statute relating to insolvency or for the protection of creditor rights or if a party becomes insolvent or technically bankrupt.
Termination. Upon delivery of the Termination Notice to Customer by Badger Meter: (i) Badger Meter may cease providing Services to Customer, its Authorized Users and Authorized Consumers; (ii) Customer, its Authorized Users and Authorized Consumers will have no further right to use the Portal, Service or Documentation, will immediately cease using the Portal, Service and Documentation, and will receive no further Service; (iii) Customer will deliver to Badger Meter any Confidential Information of Badger Meter's in its possession or control, and (iv) Badger Meter may cease gathering data from Customer's endpoints, within a reasonable time, up to one hundred twenty (120) days after termination.
Within a reasonable time after termination, at Badger Meter's discretion, Badger Meter will scrub the personally identifiable information from the Customer Data. Customer must immediately return, or at Badger Meter's option, destroy all Documentation provided to Customer by Badger Meter. Customer will remain liable for any Service Fees incurred prior to termination.
(f) Post - Termination Assistance. At either the expiration of the Term without renewal, or upon a default by Customer and subsequent termination, Badger Meter will provide post-termination data retrieval assistance to Customer for an additional fee, which shall be invoiced at the rate of $200/hour, with the number of hours required determined by the amount of data Customer wishes to extract from the Service. Any additional post- termination assistance from Badger Meter is subject to mutual agreement by the parties. (g) Reinstatement Fee. If Customer desires to reinstate access to the Portal and Service after termination, a reinstatement fee of $7.50 per endpoint reinstated will apply. 20 (16) SUSPENSION OF SERVICES.
(a) Nonpayment. Badger Meter may suspend the Service and access to the Portal and shall not be obligated to provide access to the Portal and Service to Customer, its Authorized Users or Authorized Consumers until all outstanding undisputed invoices for the Service have been paid in full, including any fees associated with suspension of the Service.
(b) Network Protection. Customer acknowledges that Badger Meter (and any of its Suppliers) may restrict, or suspend all or a portion of the Service or limit the Service as may be reasonably necessary to prevent or limit suspected fraud or any problem that materially and adversely affects the performance of the Service and/or is likely to do substantial damage to Badger Meter, Badger Meter's customers or Suppliers. Some of these actions may interrupt or prevent legitimate communications and usage. Such situations may arise:
(a) if a device deployed on the Service is materially out of compliance with the technical requirements; (b) in case of actual or suspected fraudulent use; or (c) in case of disruptive or damaging operation.
(c) Notification. In the event that Badger Meter or one of its Suppliers restricts, suspends or cancels any portion of the Service or limits the operation of the Service, Badger Meter shall use reasonable efforts to (i) promptly notify Customer in advance; (ii) provide reasonable information regarding its identification of the issue that resulted in the actions taken; and (il) reinstate Service upon resolution of the issue as soon as practicable and in any case within a reasonable timeframe.
(d) Immediate Suspension. Badger Meter may suspend Customer's or an Authorized Users or Authorized Consumers right to access or use the Service immediately upon notice to Customer if Badger Meter determines:
(i) Use of the Service poses a security risk to the Service, the Network or any third party, adversely impacts the Service, the Network or data of any other Badger Meter customer, or subjects Badger Meter or any third party to liability or fraud. (ii) Customer or one of its Authorized Users or Authorized Customers is in breach of this Agreement or is delinquent on its payments for more than fifteen (15) days. (iii) Badger Meter ceases to operate in the ordinary course, has an assignment for the benefit of creditors or similar disposition of its assets or becomes the subject of any bankruptcy, reorganization, liquidation dissolution or similar proceeding. (e) Reinstatement. Badger Meter will use commercially reasonable efforts to restore Customer's rights to use and access those portions of the Service or accounts that gave rise to the suspension promptly after Customer has resolved the problem giving rise to the suspension.
21 (f) Effect of Suspension. If Badger Meter suspends Customer's right to access or use all or any portion of the Service or the Portal:
(i) Customer remains responsible for all Service Fees and undisputed charges incurred through the date of suspension.
(i) Customer remains responsible for any applicable Service Fees and charges for any Services to which Customer has continued access as well as applicable fees and charges.
(iii) Customer will not be entitled to any service credits under the Service Level Agreement for any period of suspension.
(iv) Badger Meter's right to suspend the Services is in addition to Badger Meter's right to terminate this Agreement.
(17) COMPLIANCE WITH REGULATIONS; DATA PRIVACY. Each party is responsible for complying with industry standards and such applicable laws and regulations, including, but not limited to, the generally accepted practices in the information technology service management industry for providing secure data handling and management, including meeting or exceeding Information Technology Infrastructure Library (ITIL) standards for logical and physical security and all requirements regarding the protection of data in its possession or under its control. A party will not be liable for any failure of the other party to comply with this requirement.
(18) DATA SECURITY AND RECOVERY.
(a) Data Security. In order to protect the Customer Data and prevent unauthorized access to or use of the Customer Data, Portal or Service, Badger Meter has implemented commercially reasonable internal procedures and systems designed to protect the privacy and security according to the requirements set forth in Exhibit 3 - BEACON SaaS Managed Solution Security Policy ("Security Standards"), consistent with applicable international, federal, state and local laws. The purpose of the security policy is to identify reasonably foreseeable and internal risks to security and unauthorized access to Badger Meter's Network and minimize security risks, including through risk assessment and regular testing. Badger Meter will designate one or more employees to coordinate and be accountable for the security program.
(b) Protection of Customer Data. Badger Meter will implement reasonable and appropriate measures for the Badger Meter Network designed to help Customer secure the Customer Data against accidental or unlawful loss, access or disclosure in accordance with Badger Meter's Security Standards. Badger Meter may modify its Security Standards from time to time but will continue to provide at least the same level of security as described in the Security Standards as of the Effective Date. The security and data privacy provisions in this Section contain Badger Meter, and its Suppliers entire obligation regarding the security, privacy and confidentiality of the Customer Data.
22 (c) Data Storage. Badger Meter will employ commercially reasonable storage (including backup, archive and redundant data storage) and commercially reasonable precautions to prevent the loss of or alteration of Customer Data, but does not guarantee against any such loss or alteration. Badger Meter will not serve as Customer's official record keeper. Customer will maintain source documents of the Confidential Information (such as billing information) hosted by Badger Meter under this Agreement. (d) Customer Responsibilities. Customer is responsible for properly configuring and using the Service and taking steps to maintain appropriate security, protection and backup of the Customer Data, including but not limited to the use of encryption technology to protect Customer Data from unauthorized access and will perform routine archiving of the Customer Data. Further, Customer is responsible for regularly auditing its Authorized Users, and will enact internal procedures to remove Authorized Users from the Service if their job duties change and access is no longer appropriate, or if an Authorized User separates from Customer.
(e) Data Transmission Risks.
(i) Cellular Transmissions. Badger Meter cellular endpoints conform to the AES256 encryption standards or the latest AES standard in effect. Customer acknowledges that neither Badger Meter nor its Suppliers can guarantee the privacy or security of any cellular transmissions as part of the Service. Customer acknowledges that cellular transmissions are capable of being intercepted by third parties without the knowledge or permission of Badger Meter or its Suppliers. Badger Meter and its Suppliers shall not be liable to Customer, the Authorized Users, the Authorized Consumers or any third party for interception or unauthorized use of any data transmitted through the cellular network, as part of the Service. (ii) Internet Transmissions. Customer acknowledges that security of transmissions over the Internet cannot be guaranteed. Badger Meter is not responsible for: (i) Customer's access to the Internet; (i) interception, unauthorized use or interruptions of communications through the Internet; or (iii) changes or losses of data through the Internet, in each case other than to the extent caused solely by Badger Meter. In order to protect Customer Data, Badger Meter may suspend Customer, Customer's Authorized Users or Authorized Consumers access to or use of the Badger Meter Portal or Service via the Internet immediately, without prior notice, pending an investigation of any potential security breach.
(f) Coverage Availability. The Service is provided using a wireless network. Actual signal availability in the Service Area will depend on the device used to access the Service as well as coverage for the applicable wireless network provided in specific geographic regions. Coverage may be refused, interrupted or limited by environmental factors such as signal strength, buildings, weather, geography, topography, or by factors affecting the Suppliers, such as usage concentration or by facilities changes, modifications, updates, relocations, repairs, maintenance or other similar activities necessary for the proper or 23 improved operation of the Supplier's facilities. Any such factors may result in dropped and blocked connections or slower data speeds. Neither Badger Meter nor any of its Suppliers will be responsible to Customer or any of Customer's Authorized Users or Authorized Consumers for any such lapses in or obstructions to coverage. The Service Area is subject to change from time to time. Should Badger Meter receive notice from its Supplier that such Supplier intends to discontinue its support for the Badger Meter Service in all or part of the Service Area, Badger Meter will provide Customer with as much advance notice as practicable under the circumstances.
(g) Password Protection. Customer, its Authorized Users and Authorized Consumers will be required to select and use certain user names, passwords or codes to access and use the Service and Portal. Customer assumes sole responsibility for the selection, management and use of any codes or passwords as may be permitted or required for the access to and use of the Portal and Service by Customer, its Authorized Users and its Authorized Consumers.
Customer agrees to maintain the privacy of usernames and passwords associated with the Badger Meter Portal and Service. Customer shall remain responsible for all activities that occur under Customer's password or Internet account. Customer will immediately notify Badger Meter of any unauthorized use of Customer's password or Internet account or any other breach of security, and ensure that Customer exits from Customer's Internet account at the end of each session. Badger Meter shall not be liable for any damages incurred by Customer or any third party arising from Customer's failure to comply with this Section. (h) Third Party Access. To the extent that Customer requests that Badger Meter provide any Customer Data to Authorized Users, Authorized Consumers or third parties or any non- U.S. location, Customer represents that it has acquired any consents or provided any notices required to transfer such content or information and that such transfer does not violate any applicable international, federal, state or local laws and/or regulations. (i) Security Breach. If Badger Meter becomes aware of a security breach or that compromises the security, confidentiality or integrity of the Customer Data ("Breach"), Badger Meter will promptly notify Customer in writing and take appropriate actions to resolve the Breach. Badger Meter will reasonably cooperate with Customer to investigate the nature and scope of any Breach. In its initial notification to Customer, Badger Meter will provide Customer with: (i) a description of the Breach; (ii) the estimated impact of the Breach on Customer's Data; (iii) the name and contact information of the person at Badger Meter who will be primarily responsible for resolving the issues for Customer; and (iv) the investigation taken and the suggested corrective action. Badger Meter will provide commercially reasonable cooperation to Customer in investigating, assisting with notification of the Breach and taking corrective action as requested by Customer. (i) Notification of Breach. In the event that applicable law requires notification to individuals of an Breach or if requested by Customer, Badger Meter will take additional mitigation steps for the benefit of Customer, including, but not limited to, providing reasonable assistance with drafting and sending of required notifications. 24 (19) CHANGES.
(a) Right to Make Changes. Badger Meter may from time to time make changes, without Customer's approval, to the Terms of Use, the Privacy policies, the Portal, Service or Documentation, provided that such changes: (i) do not increase Customer's total costs of accessing and using the Portal and Service during the Term of this Agreement; (ii) do not require Customer to make any material changes to its systems, software, equipment, policies or procedures ; (i11) do not have a material adverse impact on the functionality, interoperability, performance, reliability, security or resource efficiency of the Portal and Service ; (iv) do not materially reduce the scope of the Portal and Service; and (v) are otherwise consistent with this Agreement. Badger Meter will publicize any changes by a notice given to Customer or by a prominent announcement on the Portal. Any such changes will not take effect until thirty (30) days after posting of notice on the Portal. By continuing to use the Service after the effective date of the modification to a policy, Customer agrees to be bound by the modified policies. It is Customer's responsibility to check the Badger Meter site regularly for modifications to the policies. (b) Emergency Changes; System Improvement. Notwithstanding the foregoing, Badger Meter and its Suppliers may make temporary changes to the Portal and Service required by an emergency or threat to the security or integrity of the Portal or Service, to respond to Claims, litigation or loss of license rights related to third party intellectual property rights or to comply with the law or requests of a government entity, as well as take actions deemed reasonably necessary to protect or optimize the Service. Some of these actions may interrupt or prevent legitimate communications and usage, including, for example, use of message filtering/blocking software to prevent SPAM or viruses, limitations on throughput, and scheduled maintenance. Badger Meter will provide notice by sending a message to the email address then associated with Customer's account and by posting it on Badger Meter's Portal. Badger Meter will provide Customer with: (i) at least thirty (30) days' advance notice of planned maintenance by Badger Meter; and (i) as much advance notice as reasonably possible of emergency changes or maintenance by Badger Meter or its Suppliers. Any actions resulting in permanent changes shall only be made in compliance with Section (19) (a).
(20) RIGHT TO SUBCONTRACT. Badger Meter may subcontract the performance of any of its cellular or web-services duties or obligations under this Agreement, and will use commercially reasonable efforts to subcontract only with subcontractors that have the requisite skills to perform any subcontracted obligations in accordance with the terms of this Agreement. (21) GENERAL.
(a) Binding Agreement. This Agreement is binding upon and will inure to the benefit of the parties and their respective successors and assigns. (b) Affiliates. This Agreement covers only the employees and agents of Customer. If Customer wishes to have any entity that directly or indirectly controls, is controlled by or is 25 in common control with Customer to access the Portal and use the Service, Customer's Affiliate must execute a separate agreement with Badger Meter. (C) Assignment. Either party may assign its rights and obligations under this Agreement with the express written consent of the other party, which consent will not be unreasonably withheld or delayed. Any purported assignment or transfer in violation of this Section will be null and void. Notwithstanding the foregoing, Badger Meter may assign its rights and obligations under this Agreement without the consent of Customer: (i) upon a sale of a majority of its outstanding capital stock to an affiliate or third party; (ii) if it sells all or substantially all of its assets; (iii) in the event of a merger; or (iv) in the event of a similar change of control.
(d) No Waiver. The waiver or failure of either party to exercise any right or remedy provided under this Agreement will not be deemed a waiver of any further right or remedy.
All waivers must be in writing to be effective.
Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions of this Agreement will be interpreted to effectuate the intent of the original Agreement. If such construction is not possible, the invalid or unenforceable portion of the Agreement will be severed from this Agreement, and the remainder of the Agreement will remain in full force and effect.
(1) Independent Contractors. The Parties agree that they are independent contractors and that neither party nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
(g) Savings Clause. The invalidity of any provision of this Agreement shall not affect the validity and binding effect of the remaining provisions. (h) No Third Party Beneficiaries. Nothing express or implied in this Agreement shall confer any rights, remedies, obligations or liabilities whatsoever to third parties which are not signatories to this Agreement.
(i) No Claims Against or Liability of Badger Meter Suppliers. Customer acknowledges that the Service utilizes services that are furnished to Badger Meter and one or more Suppliers pursuant to agreements between Badger Meter and its Suppliers. Neither Customer nor any Authorized Users or Authorized Consumers has a contractual relationship with Badger Meter's Suppliers and neither Customer nor its Authorized Users or Authorized Consumers is a third party beneficiary of or will have any claim against Badger Meter's Suppliers in the event any such agreement expires or is terminated. Customer further acknowledges that the Suppliers disclaim all liability of any nature, whether legal or equitable, to Customer, its Authorized Users or Authorized Consumers, whether direct, indirect, incidental or consequential, arising out of the use of Badger Meter Portal or Service by Customer, its Authorized Users or Authorized Consumers, including any liability for personal injury or death, failure to be able to use the Service or otherwise. Customer agrees 26 that neither it nor any Authorized Users or Authorized Consumers shall have any Claim against the Supplier of any kind with respect thereto, whether arising out of breach of contract, warranty, negligence, and tort or otherwise.
() Dispute Resolution.
(i) Initial Resolution Efforts. 'The parties shall act in good faith and use commercially reasonable efforts to promptly resolve any claim, dispute, controversy or disagreement (each a "Dispute") between the parties or any of their respective subsidiaries, affiliates, successors and assigns under or related to this Agreement or any document executed pursuant to this Agreement or any of the transactions contemplated hereby.
22) NOTICES. All notices shall be in writing and delivered to the other party by means of:
(a) personal delivery set forth below; (b) courier (signature required upon delivery; (c) recognized overnight courier, at the following address; (d) fax with proof of delivery; or (e) via electronic mail with proof of delivery: Notices sent by email will be effective when sent and notices posted on Badger Meter's Portal will be effective upon posting. All notices must be provided in the English language.
If to Badger Meter:
Legal Department, Attn: Assistant General Counsel
4545 W. Brown Deer Road_
Milwaukee, WI 53223
If to Customer:
1001 W. Center St.
Manteca California 95337
(23) SURVIVABILITY. Any provision of this Agreement which by its nature should survive termination or expiration of this Agreement shall survive its expiration or termination. (24) FORCE MAJEURE. Neither party shall be liable to the other or any third party by reason of any failure or delay of its obligations under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, fires, storms, floods or other acts of nature, explosions, systemic electrical telecommunications or other utility failures, earthquakes, hurricanes, tornados, natural disasters, strikes, shortage of materials, work stoppage or other labor dispute, embargoes, riots, insurrections, acts of war or terrorism, or any action or restraint by court order or public or governmental authority ("Force Majeure Event"). The party subject to the Force Majeure Event agrees to use commercially reasonable efforts to minimize the impact of the Force Majeure Event on the other party. 27 (25) AMENDMENT. This Agreement may only be amended by a written document signed by both parties. Badger Meter will not be bound by and specifically objects to any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by Customer in any receipt, acceptance, confirmation, agreement, purchase order, correspondence or other documentation. If the terms of this Agreement are not consistent with the terms contained in any policy, the terms contained in this Agreement will control, except that the Service Terms will control over this Agreement.
(26) ENTIRE AGREEMENT. This Agreement, including all applicable Exhibits and policies, constitutes the entire agreement between the parties with regard to its subject matter. This Agreement supersedes all prior or contemporaneous agreements, discussions, negotiations, undertakings, communications, representations or proposals, whether written or oral. (27) ORIGINALS, COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which together will be deemed to constitute one and the same document. This Agreement may be executed and delivered by facsimile signature or portable document format (pdf) by electronic mail.
IN WITNESS WHEREOF, the authorized representatives of the parties hereby bind the parties to this BEACON SaaS Managed Solution Master Agreement by signing below:
BADGER METER, INC CITY OF MANTECA
Kim Stoll (May 24, 2023 13:15 CDT)
Signature Signature
Kim K. Stoll
Printed Name Printed Name
V.P. - Sales & Marketing
Title Title
5/24/2023
Date Date
28 EXHIBIT 1
FEES
Service Fees. Customer agrees to pay the following Service Fees, as consideration for the right to access and use the Portal, Service and Documentation during the Term, as well as applicable Taxes.
Invoicing. Badger Meter shall issue invoices to Customer for Service and Support Fees on a monthly basis. Undisputed payments are due within thirty (30) days of the date of the invoice.
Interest and Costs. Customer agrees that it will be responsible to pay Badger Meter for any collection expenses incurred by Badger Meter, including interest at the highest interest rate permitted by law, and reasonable attorneys' fees and court costs incurred by Badger Meter in enforcing its rights under this Agreement.
BEACON Monthly Endpoint Subscription Fee
Hourly Data, Once Daily Call-in: $0.72 per endpoint per month Invoicing for monthly endpoint subscription fee starts at time of endpoint activation or 6 months from date of shipment, whichever comes first.
29 EXHIBIT 2
SERVICE LEVEL AGREEMENT
This Service Level Agreement ("SLA") will go into effect upon completion of Endpoin rovisioning, which is the point during meter installation when the endpoint is installed an verified to provide data to the BEACON SaaS Managed Solution.
CUSTOMER SUPPORT.
Service Levels. Within one (1) hour after a request for Customer Support Services from Customer, Badger Meter will respond to such request in accordance with the procedures set forth below. Customer may report the problem by phone, email or website provided by Badger Meter to Customer. Badger Meter will use commercially reasonable efforts to meet the response and resolution times set forth below:
Severity Level Response Time Resolution Time
Level 1 - Service is one (1) hour six (6) hours
unavailable
Level 2 - certain twenty-four (24) hours twenty-four (24) hours interruptions but service
is still available
Level 3 - minor twenty-four (24) hours three (3) days
intermittent malfunction
Level 4 - suggestions for twenty-four (24) hours Evaluated, scheduled and new features or orioritized for potential
enhancements to nclusion in upcomin
BEACON Portal and releases.
Service
2. BEACON PORTAL AND SERVICE AVAILABILITY PROMISE.
Badger Meter will use commercially reasonable efforts to fulfill the following Service Promise:
• BEACON Portal and Service Availability of 99% within each calendar month, excluding any Emergency Downtime, Scheduled Downtime, any unavailability of the Portal and 30 Service due to any Force Majeure Event and any unavailability of the Portal and Service less than fifteen (15) minutes in duration following written notice thereof.
Definitions
"Availability" is the monthly uptime percentage with normal functionality of the Portal and the Service, calculated as described below.
"Emergency Downtime" means any unavailability of the Portal or Service due to a temporary suspension by Badger Meter to perform maintenance to address any, urgent and unexpected issue with the Portal or Service.
"Scheduled Downtime" means any unavailability of the Portal or Service due to scheduled maintenance. Scheduled maintenance may occur between 10:00 p.m. on Saturday to 4:00 a.m. on Sunday (Pacific Time) every week. Badger Meter shall have the right to change the scheduled maintenance times upon notice to Customer posted on the BEACON Portal.
CALCULATION of BEACON Portal and Service Availability:
Availability is measured by Badger Meter through standard monitoring software that tests the application availability at least every five (5) minutes and logs unavailability incidents (date and UTC time) for each monitored component.
Availability is calculated as the percentage of uptime in the applicable calendar month, excluding scheduled downtime:
Total Unavailability Minutes
Total Minutes of Service Month - Total Minutes of Approved Downtime Where:
"Total Unavailability Minutes" is the cumulative unavailability time in minutes in the applicable month where the Portal and Service are not available due to unplanned outages or from systematic errors on the part of Badger Meter,
"Total Minutes of Service Month" is the cumulative time in minutes in the month in question, calculated by taking the number of days in month x 24 hours/day x 60 minutes/hour, and
"Total Minutes of Approved Downtime" is the cumulative time in minutes in the applicable month where the Supplier applications are not available due to scheduled downtime; other planned scheduled outages, or approved exclusion conditions as defined in this Agreement.
In order to be included within the Total Unavailability Minutes: (a) Customer shall notify Badger Meter, in writing, via email([email protected]) of the unavailability of the Portal or the Service; (b) such unavailability shall be greater than fifteen (15) minutes in duration following Badger Meter's receipt of such notice; and (c) Customer shall notify Badger Meter, in 31 writing, via email within twenty-four (24) hours of such unavailability that it should be included within the Total Unavailability Minutes unless such unavailability is due to any Emergency Downtime, Scheduled Downtime, or any unavailability of the Services due to any Force Majeure Event.
Service Credits
If Badger Meter fails to meet the BEACON Portal and Service Availability Promise, the following Service Credits will be calculated as follows:
Service Credit = Endpoint Service Units Consumed in the Month * (1 - Availability) rounded to the next whole number
For example;
Availability Service Credit (Service Units per 1,000 Service Units consumed in the month
95% 50
90% 100
80% 200
70% 300
60% 400
50% 500
Service Credit will be added to Customer's account in the form of pre-paid Service Units for the same endpoint type(s).
32 3. MONTHLY BILLING DATA SERVICE PROMISE.
Badger Meter will use commercially reasonable efforts to fulfill the following Service Promise:
• The BEACON SaaS Managed Solution will successfully provide Monthly Billing Data for at least 98:5% of provisioned accounts at the time of billing request to the BEACON Saas Managed Solution.
Definitions
"Managed Solution" is a system that consists of a network deployment using fixed network and/or cellular endpoints, where Badger Meter maintains the responsibility for managing the reading hardware and software for system operation over the Term of the Agreement. "Provisioned Accounts" are accounts with cellular or fixed network endpoints that are discovered by the network, fully able to communicate with the network, and completely entered correctly in the BEACON SaaS Managed Solution.
"Monthly Billing Data" is a valid meter reading obtained within three (3) days of the billing as performed through the BEACON SaaS Managed Solution to provisioned accounts.
CALCULATION of Monthly Billing Data Service Promise for Provisioned Accounts:
Monthly Billing Data success rate is calculated by the count of accounts in the billing cycle with meter read data within three (3) days ("Count of Billing Reads") divided by the number of active and Provisioned Accounts in the billing cycle ("Count of Total Billing Cycle").
Count of Billing Reads
Count of Total Billing Cycle
Where:
"Count of Billing Reads" is the total number of accounts in the billing file with valid data that a billing quality reading is supplied for managed solution endpoints. "Count of Total Billing Cycle" is the total number of accounts with valid data in the billing file being processed for managed solution endpoints. 33 If Customer suspects that the Monthly Billing Data Service Promise has not been met for a particular Billing Cycle, (a) Customer shall notify Badger Meter, in writing, within twenty-four (24) hours of the occurrence, via email ([email protected]) of the Count of Billing Reads and Count of Total Billing Cycle of managed solution endpoints; (b) the specific time and date when the billing read file was generated.
Service Credits •
If Badger Meter fails to meet the Monthly Billing Data Service Promise, Service Credits will be calculated as follows:
Service Credit = Managed Solution Endpoint Service Units Consumed in the Month * (1 - Monthly Billing Data Success Rate) rounded to the next whole number For example;
Monthly Billing Data Success Rate Service Credit (Service Units per 1,000 Service Units consumed in the month
95% 50
90% 100
80% 200
70% 300
60% 400
50% 500
Service Credit will be added to Customer's account in the form of pre-paid Service Units for the same endpoint types).
34 4. MISCELLANEOUS.
Exclusions
The BEACON Portal and Service Availability Promise and Monthly Billing Data Service Promise do not apply to any of the following performance issues, in addition to other exclusions herein:
(1) Resulting from any actions or inactions of Customer, its Authorized Users or Authorized Consumers in accordance with the restrictions and requirements of this Agreement; (I1) Resulting from Customer or its suppliers equipment, software, or other technology and/or Customer's third party equipment, software, or other technology outside of Badger Meter's control;
(111) Caused by failures, including, but not limited to, internet connectivity, port availability, firewall configuration, or cellular networks at Customer's location; (iv) Resulting from Customer's breach of any term or condition under the Agreement; (V) Caused by unexpected or unintentional RF interference or signal obstruction caused by sources not present or not in use during endpoint installation; (VI) Caused by intentional RF interference or signal obstruction not present during endpoint installation, caused by third parties;
(vil) Caused by Customer, an Authorized User's or an Authorized Consumer's misuse or abuse of the Portal or Service;
(vili) During an event triggering a disaster recovery and for a twenty-four (24) hour period after the resumption of the Service following such an event to allow for the system to return to normal operating ranges;
(ix) Arising from Badger Meter's suspension or termination of Customer's right to use the BEACON Managed Solution in accordance with the Agreement; (x) Arising from failure of Customer to follow Badger Meter's published installation, operation and maintenance instructions and Clarifications from Badger Meter's Preliminary Network Design;
(xi) When outdoor temperatures either exceed or are below the endpoint operating temperature range as described in the applicable product data sheet. (хії) Accounts read using manual, touch read, handheld and mobile technology are not included as part of the Monthly Billing Data Service Promise, as these reading technologies are outside of Badger Meter's control.
In the event Badger Meter does not meet a Service Promise hereunder, Badger Meter will conduct a commercially reasonable root cause analysis of the Service promise failure. If Badger Meter's analysis is inconclusive, or if Badger Meter concludes that circumstances outside of Badger Meter's control caused the Service promise failure, or if Badger Meter concludes that a failure falls under any other exclusions described hereunder, Customer will not be entitled to a Service Credit. If Badger Meter's analysis is conclusive and that circumstances within Badger Meter's control caused the Service failure, Customer will be eligible to receive a Service Credit as described above.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SLA, THE SERVICE CREDITS SPECIFIED
IN THIS SLA WILL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR BADGER METER'S FAILURE TO MEET THE SERVICE PROMISE SPECIFIED IN THIS SLA. 35 Badger Meter will report Service Promises and applicable Service Credits upon request and upon a commercially reasonable frequency. Following each report, upon Customer request, the parties will discuss such performance and the extent to which any Service Credits either are appropriate or should be modified due to circumstances not captured by the reporting methodology.
Upon agreement concerning the Service Credits due, such Service Credits will be applied against Badger Meter's charges in the months following the month in which the credits were incurred.
EXHIBIT 3
BEACON SaaS MANAGED SOLUTION SECURITY POLICY
1. BEACON SaaS Portal and Service Information Security Program. Badger Meter maintains an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) support the BEACON SaaS Managed Solution, (b) identify reasonably foreseeable and internal risks to the BEACON Portal and Service security and unauthorized access to the Badger Meter Network, and (c) minimize security risks. The BEACON Portal and Service information security program includes the following measures:
1.1 Network Security. The Badger Meter Network is electronically accessible to employees, and contractors necessary to provide the Portal and Service. Badger Meter maintains access controls and policies to manage what access is allowed to the Badger Meter Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. Badger Meter maintains corrective action and incident response plans to respond to potential security threats.
1.2 Physical Security.
1.2.1 Physical Access Controls. Physical components of the Badger Meter Network are housed in nondescript facilities (the "Facilities"). Physical barrier controls are used to prevent unauthorized entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in- house security guard service, receptionist, etc.).. Employees and contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors are required to sign in with designated personnel, must show appropriate identification, and are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorized employees or contractors while visiting the Facilities.
1.2.2 Limited Employee and Contractor Access. Badger Meter provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for access privileges, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of Badger Meter or its affiliates.
Physical Security Protections. All major access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. All physical access to the Facilities by employees and contractors is logged and routinely audited. 37 1.2.4 Pre-Employment Screening. Badger Meter conducts criminal background checks, as permitted by applicable law, as part of pre-employment screening practices for employees commensurate with the employee's position and level of access to the Facilities. Badger Meter will not permit an employee to have access to the non-public Customer Data or perform material aspects of the Service if such employee has failed to pass such background check.
2. Continued Evaluation. Badger Meter will conduct periodic reviews of the security of its Badger Meter Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. Badger Meter will continually evaluate the security of its Badger Meter Network and associated Service to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
3. Customer Responsibilities. System security is a shared responsibility between Badger Meter and Customer. Customer shall assign a systems service administrator to be responsible for establishing access and usage policies. Customer shall develop commercially reasonable policies and procedures to insure physical security, establishing account access approvals and procedures, conduct regular reviews of access rights, and provide security awareness training for staff using the Service. The administrator shall also be responsible for policies and procedures related to Authorized Consumers access to their individual data resident on the Network.
24549447_7.DOCX 032016
38 ATTACHMENT 3
SCHEDULE OF ACTIVITIES
December 31, 2023 - Beacon Software as a Service to be installed and fully operational.
The agreement term is 3 years from execution date.
39 Attachment 1 - Professional Services
• Agreement
Final Audit Report 2023-05-24
Created: 2023-05-24
By: David Miller ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAAfyXftc-54jJoL_waZT3HseqthS8HF3y "Attachment 1 - Professional Services Agreement" History D Document created by David Miller ([email protected]) 2023-05-24 - 5:22:39 PM GMT- IP address: 66.162.230.244 Document emailed to Kim Stoll ([email protected]) for signature 2023-05-24 - 5:23:24 PM GMT
S Email viewed by Kim Stoll ([email protected])
2023-05-24 - 6:15:17 PM GMT- IP address: 107.77.206.12
Do Document e-signed by Kim Stoll ([email protected]) Signature Date: 2023-05-24 - 6:15:39 PM GMT - Time Source: server- IP address: 107.77.206.12 Agreement completed.
2023-05-24 - 6:15:39 PM GMT
Adobe Acrobat Sign
ACORD® TE (MM/DD/YY)
CERTIFICATE OF LIABILITY INSURANCE 5/25/201
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURERS), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
Hays Companies, Inc.
(A/C, No. Ext):
E-MAIL
1200 North Mayfair Road, Suite 100 ADDRESS:
INSURERS) AFFORDING COVERAGE NAIC #
Milwaukee, WI 53226 INSURER A: PHOENIX INS CO 25623
INSURED INSURER B: TRAVELERS PROP CAS CO OF AMER 25674
Badger Meter, Inc. INSURER C: CONTINENTAL INS CO. 35289 INSURER D: ACCIDENT FUND INS CO OF AMER 10166
4545 West Brown Deer Road
INSURER E: UNDERWRITERS AT LLOYDS LONDON 15792
Milwaukee, WI 53223 INSURER F:
COVERAGES CERTIFICATE NUMBER: 68831199 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR ADDL SUBR LICY B
LTR TYPE OF INSURANCE INSO WVD POLICY NUMBER LIMITS
A x COMMERCIAL GENERAL LIABILITY x X Y660 268J2023 01/01/23 01/01/24 EACH OCCURRENCE $ 1,000,000
DAMAGE TO RENTED
CLAIMS-MADE OCCUR PREMISES (Ea occurrence) $ 300,000
MED EXP (Any one person) $ 10,000
PERSONAL & ADV INJURY § 1,000,000
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 PRO-
* POLICY JECT LOC PRODUCTS - COMPIOP AGG $ 2, 000, 000
OTHER:
AUTOMOBILE LIABILITY x x 810 2L694073 01/01/23 01/01/24 COMBINED SINGLE LIMIT $ 1,000,000 (Ea accident)]
* ANY AUTO BODILY INJURY (Per person)
OWNED SCHEDULED
AUTOS ONLY AUTOS BODILY INJURY (Per accident) $
HIRED NON-OWNED PROPERTY DAMAGE
AUTOS ONLY _ AUTOS ONLY (Per accident)
UMBRELLA LIAB OCCUR 6076540927 01/01/23 01/01/24 EACH OCCURRENCE $ 5,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $ 5,000,000
DED * RETENTIONS 10,000 $
WORKERS COMPENSATION X UH WCP 100074452 01 TOTH
AND EMPLOYERS' LIABILITY 01/01/23 01/01/24 * STATUTE
Y/ N
ANYPROPRIETOR/PARTNER/EXECuTIvE E.L. EACH ACCIDENT $ 1,000,000 OFFICER/MEMBEREXCLUDED?
Mandatory in NH) •E.L. DISEASE • EA EMPLOYEE $ 1, 000, 000 escribe und
ESCRIPTION OF OPERATIONS belo E.L. DISEASE - POLICY LIMIT $ 1,000, 000 E Cyber/Tech E&O C- 4LWN- 137183-CYBER-2023 01/01/23 01/01/24 Limit 2,000,000 Professional Liability
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Manteca, its officers, officials, employees, agents, and volunteers are included as Additional Insured on the General and Automobile Liability polices and a Waiver of Subrogation applies on the General, Automobile and Workers Compensation when required by written contract. General and Automobile Liability are Primary and Non-Contributory when required by written contract.
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Manteca THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
tn: Water Meter Services Supervis
01 West Center Stre
AUTHORIZED REPRESENTATIVE
Manteca, CA 95337 Dall Spis
USA
© 1988-2015 ACORD CORPORATION. All rights reserved.
ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD diannewandel
68831199
Policy #810 2L694073 COMMERCIAL AUTO
Badger Meter, Inc.
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BUSINESS AUTO EXTENSION ENDORSEMENT
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
GENERAL DESCRIPTION OF COVERAGE - This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general cover- age description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this en- dorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered.
A. BROAD FORM NAMED INSURED H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF
USE - INCREASED LIMIT
B. BLANKET ADDITIONAL INSURED
I. PHYSICAL DAMAGE - TRANSPORTATION
C. EMPLOYEE HIRED AUTO
EXPENSES - INCREASED LIMIT
D. EMPLOYEES AS INSURED J. PERSONAL PROPERTY
E. SUPPLEMENTARY PAYMENTS - INCREASED K. AIRBAGS
LIMITS
L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
F. HIRED AUTO - LIMITED WORLDWIDE COV- LOSS
ERAGE - INDEMNITY BASIS
M. BLANKET WAIVER OF SUBROGATION
G. WAIVER OF DEDUCTIBLE - GLASS N. UNINTENTIONAL ERRORS OR OMISSIONS
PROVISIONS
A. BROAD FORM NAMED INSURED this insurance applies and only to the extent that person or organization qualifies as an "insured"
The following is added to Paragraph A.1., Who Is under the Who Is An Insured provision contained An Insured, of SECTION II - COVERED AUTOS in Section II.
LIABILITY COVERAGE:
C. EMPLOYEE HIRED AUTO
Any organization you newly acquire or form dur-
ing the policy period over which you maintain 1. The following is added to Paragraph A.1., Who Is An Insured, of SECTION II - COV-
50% or more ownership interest and that is not
separately insured for Business Auto Coverage. ERED AUTOS LIABILITY COVERAGE:
Coverage under this. provision is afforded only un- An "employee" of yours is an "insured" while til the 180th day after you acquire or form the or- operating an "auto" hired or rented under a ganization or the end of the policy period, which- contract or agreement in an "employee's" ever is earlier. name, with your permission, while performing duties related to the conduct of your busi-
B. BLANKET ADDITIONAL INSURED ness.
The following is added to Paragraph c. in A.1., 2. The following replaces Paragraph b. in B.5., Who Is An Insured, of SECTION II - COVERED Other Insurance, of SECTION IV - BUSI- AUTOS LIABILITY COVERAGE: NESS AUTO CONDITIONS:
Any person or organization who is required under b. For Hired Auto Physical Damage Cover- a written contract or agreement between you and age, the following are deemed to be cov- that person or organization, that is signed and ered "autos" you own:
executed by you before the "bodily injury" or (1) Any covered "auto" you lease, hire, "property damage" occurs and that is in effect rent or borrow; and during the policy period, to be named as an addi-
(2) Any covered "auto" hired or rented by
tional insured is an "insured" for Covered Autos
your "employee" under a contract in
Liability Coverage, but only for damages to which an "employee's" name, with your CA T3 53 02 15 © 2015 The Travelers Indemnity Company. All rights reserved. Page 1 of 4 Includes copyrighted material of Insurance Services Office, Inc. with its permission.
Badger Meter, Inc.
Policy #Y660 268J2023
COMMERCIAL GENERAL LIABILITY
liability as mortgagee, assignee, successor construction, erection or removal of any of the receiver for "bodily injury", "property damage" or following for which that governmental entity has "personal and advertising injury" that: issued such permit or authorization: advertising a. Is "bodily injury" or "property damage" that signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoist
occurs, or is "personal and advertising injury"
caused by an offense that is committed, away openings, sidewalk vaults, elevators, street subsequent to the signing of that contract or banners or decorations. agreement; and K. BLANKET ADDITIONAL INSURED -
b. Arises out of the ownership, maintenance or GOVERNMENTAL ENTITIES - PERMITS OR use of the premises for which that mortgagee, AUTHORIZATIONS RELATING TO OPER- assignee, successor or receiver is required ATIONS
under that contract or agreement to be The following is added to SECTION II - WHO IS included as an additional insured on this AN INSURED:
Coverage Part. Any governmental entity that has issued a permit The insurance provided to such mortgagee, or authorization with respect to operations assignee, successor or receiver is subject to the performed by you or on your behalf and that you following provisions: are required by any ordinance, law, building code a. The limits of insurance provided to such or written contract or agreement to include as an mortgagee, assignee, successor or receiver additional insured on this Coverage Part is an will be the minimum limits that you agreed to insured, but only with respect to liabi lity for "bodily provide in the written contract or agreement, injury", "property damage" or "personal or the limits shown in the Declarations, advertising injury" arising out of such operations. whichever are less. The insurance provided to such governmental b. The insurance provided to such person or entity does not apply to:
organization does not apply to: a. Any "bodily injury", "property damage" or (1) Any "bodily injury" or "property damage" "personal and advertising injury" arising out of that occurs, "personal operations performed for the governmental advertising injury" caused by an offense entity; or
that is committed, after such contract or b. Any "bodily injury" or "property damage" agreement is no longer in effect; or included "products-completed (2) Any "bodily injury", "property damage" or operations hazard". "personal and advertising injury" arising L. MEDICAL PAYMENTS - INCREASED LIMIT out of any structural alterations, new The following replaces Paragraph 7. of SECTION construction. or demolition operations
demolitar or in I|I - LIMITS OF INSURANCE:
performed by or on behalf of such
mortgagee, assignee, successor or 7. Subject to Paragraph 5. above, the Medical receiver. Expense Limit is the most we will pay under
Coverage C for all medical expenses
J. BLANKET ADDITIONAL INSURED - because of "bodily injury" sustained by any
GOVERNMENTAL ENTITIES - PERMITS OR
one person, and will be the higher of:
AUTHORIZATIONS RELATING TO PREMISES
a. $10,000; or
The following is added to SECTION II - WHO IS
AN INSURED: b. The amount shown in the Declarations of
this Coverage Part for Medical Expense
Any govermental entity that has issued a permit Limit.
or authorization with respect to premises owned
or occupied by, or rented or loaned to, you and M. BLANKET WAIVER OF SUBROGATION that you are required by any ordinance, law, The following is added to Paragraph 8., Transfer building code or written contract or agreement to Of Rights Of Recovery Against Others To Us, include as an additional insured on this Coverage of SECTION IV - COMMERCIAL GENERAL Part is an insured, but only with respect to liability LIABILITY CONDITIONS:
for "bodily injury", "property damage" or "personal If the insured has agreed in a contract or and, advertising injury" arising out of the
agreement to waive that insured's right of
existence, ownership, use, maintenance, repair, recovery against any person or organization, we
Includes copyrighted material of Insurance Services Office, Inc. with its permission.
COMMERCIAL GENERAL LIABILITY
waive our right of recovery against such person or 2. Paragraph f.(1) of the definition of "insured organization, but only for payments we make contract" in the DEFINITIONS Section is because of: deleted.
a. "Bodily injury" or "property damage" that O. DAMAGE TO PREMISES RENTED TO YOU occurs; or
The following replaces the definition of "premises
b. "Personal and advertising injury" caused by damage" in the DEFINITIONS Section:
an offense that is committed;
"Premises damage" means "property damage" to:
subsequent to the execution of the contract or
a. Any premises while rented to you or
agreement.
temporarily occupied by you with permission
N. CONTRACTUAL LIABILITY - RAILROADS of the owner; or
1. The following replaces Paragraph c. of the b. The contents of any premises while such definition of "insured contract" in
premises is rented to you, if you rent such
DEFINITIONS Section:
premises for a period of seven or fewer
c. Any easement or license agreement; consecutive days.
CG D4 17 02 19 © 2017 The Travelers Indemnity Company. All rights reserved. Page 5 of 5 Includes copyrighted material of Insurance Services Office, Inc. with its permission.
Badger Meter, Inc.
Primary & Non-Contributory Clause
Policy # Y660 268J2023
COMMERCIAL GENERAL LIABILITY
c. Method Of Sharing a. The statements in the Declarations are If all of the other insurance permits contribution accurate and complete; by equal shares, we will follow this method also! b. Those statements are based upon Under this approach each insurer contributes representations you made to us; and equal amounts until it has paid its applicable c. We have issued this policy in reliance upon limit of insurance or none of the loss remains, your representations. whichever comes first.
The unintentional omission of, or unintentional error
If any of the other insurance does not permit in, any information provided by you which we relied contribution by equal shares, we will contribute
upon in issuing this policy will not prejudice your
by limits. Under this method, each insurer's rights under this insurance. However, this provision share is based on the ratio of its applicable limit does not affect our right to collect additional of insurance to the total applicable limits of premium or to exercise our rights of cancellation or insurance of all insurers. nonrenewal in accordance with applicable insurance d. Primary And Non-Contributory Insurance If laws or regulations.
Required By Written Contract 7. Separation Of Insureds
If you specifically agree in a written contract or Except with respect to the Limits of Insurance, and agreement that the insurance afforded to an any rights or duties specifically assigned in this insured under this Coverage Part must apply on Coverage Part to the first Named Insured, this a primary basis, or a primary and non- insurance applies:
contributory basis, this insurance is primary to
a. As if each Named Insured were the only
other insurance that is available to such insured
Named Insured; and
which covers such insured as a named insured
and we will not share with that other insurance, b. Separately to each insured against whom claim provided that: is made or "suit" is brought.
(1) The "bodily injury" or "property damage" for 8. Transfer Of Rights Of Recovery Against Others which coverage is sought occurs; and To Us
(2) The "personal and advertising injury" for If the insured has rights to recover all or part of any which coverage is sought is caused by an payment we have made under this Coverage Part, offense that is committed; those rights are transferred to us. The insured must do nothing after loss to impair them. At our request,
subsequent to the signing of that contract or
the insured will bring "suit" or transfer those rights
agreement by you.
to us and help us enforce them.
5. Premium Audit
9. When We Do Not Renew
a. We will compute all premiums for this Coverage
If we decide not to renew this Coverage Part, we will
Part in accordance with our rules and rates.
mail or deliver to the first Named Insured shown in
b. Premium shown in this Coverage Part as the Declarations written notice of the nonrenewal advance premium is a deposit premium only. At not less than 30 days before the expiration date. the close of each audit period we will compute
the earned premium for that period and send If notice is mailed, proof of mailing will be sufficient proof of notice.
notice to the first Named Insured. The due date
for audit and retrospective premiums is the date SECTION V - DEFINITIONS shown as the due date on the bill. If the sum of 1. "Advertisement" means a notice that is broadcast or the advance and audit premiums paid for the published to the general public or specific market policy period is greater than the earned segments about your goods, products or services premium, we will return the excess to the first for the purpose of attracting customers or Named Insured. supporters. For the purposes of this definition:
c. The first Named Insured must keep records of • a. Notices that are published include material the information we need for premium placed on the Internet or on similar electronic computation, and send us copies at such times means of communication; and as we may request. b. Regarding websites, only that part of a website
6. Representations that is about your goods, products or services By accepting this policy, you agree: for the purposes of attracting customers or supporters is considered an advertisement.
Includes copyrighted material of Insurance Services Office, Inc. with its permission.
COMMERCIAL AUTO
permission, while performing duties (a) With respect to any claim made or "suit" related to the conduct of your busi- brought outside the United States of ness. America, the territories and possessions
However, any "auto" that is leased, hired, of the United States of America, Puerto Rico and Canada:
rented or borrowed with a driver is not a
covered "auto". (i) You must arrange to defend the "in- D. EMPLOYEES AS INSURED sured" against, and investigate or set- tle any such claim or "suit" and keep
The following is added to Paragraph A.1., Who Is us advised of all proceedings and ac- An Insured, of SECTION II - COVERED AUTOS tions.
LIABILITY COVERAGE:
Any "employee" of yours is an "insured" while us- (ii) Neither you nor any other involved ing a covered "auto" you don't own, hire or borrow "insured" will make any settlement without our consent.
in your business or your personal affairs.
E. SUPPLEMENTARY PAYMENTS - INCREASED (iii) We may, at our discretion, participate in defending the "insured" against, or
LIMITS
in the settlement of, any claim or
1. The following replaces Paragraph A.2.a.(2), "suit".
of SECTION I| - COVERED AUTOS LIABIL-
(iv) We will reimburse the "insured" for
ITY COVERAGE:
sums that the "insured" legally must
(2) Up to $3,000 for cost of bail bonds (in- pay as damages because of "bodily cluding bonds for related traffic law viola- injury" or "property damage" to which tions) required because of an "accident" this insurance applies, that the "in- we cover. We do not have to furnish sured" pays with our consent, but these bonds. only up to the limit described in Para-
2. The following replaces Paragraph A.2.a.(4), graph C., Limits Of Insurance,
SECTION II - COVERED AUTOS
of SECTION I| - COVERED AUTOS LIABIL-
LIABILITY COVERAGE.
ITY COVERAGE:
(v) We will reimburse the "insured" for
(4) All reasonable expenses incurred by the
"insured" at our request, including actual the reasonable expenses incurred loss of earnings up to $500 a day be- with our consent for your investiga- cause of time off from work. tion of such claims and your defense of the "insured" against any such
F. HIRED AUTO - LIMITED WORLDWIDE COV- "suit", but only up to and included ERAGE - INDEMNITY BASIS within the limit described in Para- The following replaces Subparagraph (5) in Para- graph C., Limits Of Insurance, of graph B.7., Policy Period, Coverage Territory, SECTION II - COVERED AUTOS of SECTION IV - BUSINESS AUTO CONDI- LIABILITY COVERAGE, and not in TIONS: addition to such limit. Our duty to
make such payments ends when we
(5) Anywhere in the world, except any country or have used up the applicable limit of jurisdiction while any trade sanction, em-
insurance in payments for damages,
bargo, or similar regulation imposed by the settlements or defense expenses.
United States of America applies to and pro-
hibits the transaction of business with or (b) This insurance is excess over any valid within such country or jurisdiction, for Cov- and collectible other insurance available ered Autos Liability Coverage for any covered to the "insured" whether primary, excess, "auto" that you lease, hire, rent or borrow contingent or on any other basis. without a driver for a period of 30 days or less (c) This insurance is not a substitute for re- and that is not an "auto" you lease, hire, rent quired or compulsory insurance in any or borrow from any of your "employees", country outside the United States, its ter- partners (if you are a partnership), members ritories and possessions, Puerto Rico and (if you are a limited liability company or Canada.
members of their households.
Includes copyrighted material of Insurance Services Office, Inc. with its permission.
COMMERCIAL AUTO
You agree to maintain all required or (2) In or on your covered "auto". compulsory insurance in any such coun This coverage applies only in the event of a total try up to the minimum limits required by theft of your covered "auto". local law. Your failure to comply with
compulsory insurance requirements will No deductibles apply to this Personal Property not invalidate the coverage afforded by coverage.
this policy, but we will only be liable to the K. AIRBAGS same extent we would have been liable
The following is added to Paragraph B.3., Exclu-
had you complied with the compulsory in- sions, of SECTION III - PHYSICAL DAMAGE surance requirements. COVERAGE:
(d) It is understood that we are not an admit- Exclusion 3.a. does not apply to "loss" to one or ted or authorized insurer outside the more airbags in a covered "auto" you own that in- United States of America, its territories flate due to a cause other than a cause of "loss" and possessions, Puerto Rico and Can- set forth in Paragraphs A.1.b. and A.1.c., but ada. We assume no responsibility for the only:
furnishing of certificates of insurance, or a. If that "auto" is a covered "auto" for Compre- for compliance in any way with the laws hensive Coverage under this policy; of other countries relating to insurance.
. b. The airbags are not covered under any war-
G. WAIVER OF DEDUCTIBLE - GLASS ranty; and
The following is added to Paragraph D., Deducti- c. The airbags were not intentionally inflated. ble, of SECTION III - PHYSICAL DAMAGE We will pay up to a maximum of $1,000 for any COVERAGE: one "loss".
No deductible for a covered "auto" will apply to L. NOTICE AND KNOWLEDGE OF ACCIDENT OR glass damage if the glass is repaired rather than
LOSS
replaced.
The following is added to Paragraph A.2.a., of
H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF SECTION IV - BUSINESS AUTO CONDITIONS:
USE - INCREASED LIMIT
Your duty to give us or our authorized representa-
The following replaces the last sentence of Para- tive prompt notice of the "accident" or "loss" ap- graph A.4.b., Loss Of Use Expenses, of SEC- plies only when the "accident" or "loss" is known TION III - PHYSICAL DAMAGE COVERAGE: to:
However, the most we will pay for any expenses (a) You (if you are an individual); for loss of use is $65 per day, to a maximum of (b) A partner (if you are a partnership); $750 for any one "accident".
(c) A member (if you are a limited liability com-
PHYSICAL DAMAGE - TRANSPORTATION pany;
EXPENSES - INCREASED LIMIT (d) An executive officer, director or insurance The following replaces the first sentence in Para- manager (if you are a corporation or other or- graph A.4.a., Transportation Expenses, of ganization); or SECTION III - PHYSICAL DAMAGE COVER- (e) Any "employee" authorized by you to give no- AGE: tice of the "accident" or "loss"
We will pay up to $50 per day to a maximum of M. BLANKET WAIVER OF SUBROGATION $1,500 for temporary transportation expense in-
curred by you because of the total theft of a cov- The following replaces Paragraph A.5., Transfer Of Rights Of Recovery Against Others To Us;
ered "auto" of the private passenger type.
of SECTION IV - BUSINESS AUTO CONDI-
J. PERSONAL PROPERTY TIONS :
The following is added to Paragraph A.4., Cover- 5. Transfer Of Rights Of Recovery Against age Extensions, of SECTION III - PHYSICAL Others To Us
DAMAGE COVERAGE: We waive any right of recovery we may have against any person or organization to the ex-
Personal Property
tent required of you by a written contract
We will pay up to $400 for "loss" to wearing ap- signed and executed prior to any "accident" parel and other personal property which is: or "loss", provided that the "accident" or "loss" (1) Owned by an "insured"; and arises out of operations contemplated by CA T3 53 02 15 © 2015 The Travelers Indemnity Company, All rights reserved. Page 3 of 4 Includes copyrighted material of Insurance Services Office, Inc. with its permission.
COMMERCIAL AUTO
such contract. The waiver applies only to the The unintentional omission of, or unintentional person or organization designated in such error in, any information given by you shall not contract. prejudice. your rights under this insurance. How- N. UNINTENTIONAL ERRORS OR OMISSIONS ever this provision does not affect our right to col- The following is added to Paragraph B.2., Con- lect additional premium or exercise our right of cealment, Misrepresentation, Or Fraud, cancellation or non-renewal.
SECTION IV - BUSINESS AUTO CONDITIONS:
Includes copyrighted material of Insurance Services Office, Inc. with its permission.
Policy #810 2L694073 COMMERCIAL AUTO
Badger Meter, Inc.
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BLANKET ADDITIONAL INSURED - PRIMARY AND
•NON-CONTRIBUTORY WITH OTHER INSURANCE
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
PROVISIONS 2. The following is added to Paragraph B.5., Other
1. The following is added to Paragraph A.1.c., Who Insurance of SECTION IV - BUSINESS AUTO Is An Insured, of SECTION II - COVERED CONDITIONS:
AUTOS LIABILITY COVERAGE: Regardless of the provisions of paragraph a. and This includes any person or organization who you paragraph d. of this part 5. Other Insurance, this insurance is primary to and non-contributory with
agreement between you and that person or applicable other insurance under which an organization, that is signed by you before the additional insured person or organization is the "bodily injury" or "property damage" occurs and first named insured when the written contract or that is in effect during the policy period, to name agreement. between you and that person or an additional insured for Covered Autos organization, that is signed by you before the Liability Coverage, but only for damages to which "bodily injury" or "property damage" occurs and this insurance applies and only to the extent of that is in effect during the policy period, requires that person's or organization's liability for the this insurance to be primary and non-contributory. conduct of another "insured".
CA T4 74 02 16 © 2016 The Travelers Indemnity Company. All rights reserved. Page 1 of 1 Includes copyrighted material of Insurance Services Office, Inc. with its permission.
Policy #Y660 268J2023
1/1/2023-2024
COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BLANKET ADDITIONAL INSURED
(Includes Products-Completed Operations If Required By Contract) This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PROVISIONS (1) Any "bodily injury", "property damage" or The following is added to SECTION II - WHO IS AN "personal injury" arising out of the providing INSURED: or failure to provide, any professiona
architectural, engineering or surveying
Any person or organization that you agree in a
written contract or agreement to include as an services, including:
additional insured on this Coverage Part is an (a) The preparing, approving, or failing to insured, but only: prepare or approve, maps, shop
a. With respect to liability for "bodily injury" or drawings, opinions, reports, surveys, "property damage" that occurs, or for "personal field orders or change orders, or the injury" caused by an offense that is committed, preparing, approving, or failing to subsequent to the signing of that contract or prepare approve, drawings and agreement and while that part of the contract or specifications; and agreement is in effect; and
(b) Supervisory, inspection, architectural or
b. If, and only to the extent that, such injury or engineering activities. damage is caused by acts or omissions of you or
your subcontractor in the performance of "your (2) Any "bodily injury" or "property damage" work" to which the written contract or agreement caused by "your work" and included in the applies. Such person or organization does not "products-completed operations hazard" qualify as an additional insured with respect to unless the written contract or agreement the independent acts or omissions of such specifically requires you to provide such person or organization. coverage for that additional insured during The insurance provided to such additional insured is the policy period. subject to the following provisions: c. The additional insured must comply with the a. If the Limits of Insurance of this Coverage Part following duties:
shown in the Declarations exceed the minimum
limits required by the written contract or (1) Give us written notice as soon as practicable agreement, the insurance provided to the of an "occurrence" or an offense which may result in a claim. To the extent possible, such
additional insured will be limited to such
minimum required limits. For the purposes of notice should include:
determining whether this limitation applies, the (a) How, when and where the "occurrence". minimum limits required by the written contract or or offense took place; agreement will be considered to include the
minimum limits of any Umbrella or Excess (b) The names and addresses of any injured liability coverage required for the additional persons and witnesses; and insured by that written contract or agreement.
(c) The nature and location of any injury or
This provision will not increase the limits of
insurance described in Section Ill - Limits Of damage arising out of the "occurrence" or offense.
Insurance.
b. The insurance provided to such additional (2) If a claim is made or "suit" is brought against insured does not apply to: the additional insured:
CG D2 46 04 19 © 2018 The Travelers Indemnity Company. All rights reserved. Page 1 of 2
COMMERCIAL GENERAL LIABILITY
(a) Immediately record the specifics of the (4) Tender the defense and indemnity of any claim or "suit" and the date received; and claim or "suit" to any provider of other insurance which would cover such additional
(b) Notify us as soon as practicable and see
to it that we receive written notice of the insured for a loss we cover. However, this claim or "suit" as soon as practicable. condition does not affect whether the insurance provided to such additional
(3) Immediately send us copies of all legal insured is primary to other insurance papers received in connection with the claim available to such additional insured which cooperate with us in covers that person or organization as a investigation or settlement of the claim or named insured as described in Paragraph 4., defense against the "suit", and otherwise Other Insurance, of Section IV - Commercial comply with all policy conditions. General Liability Conditions.
WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 99 03 13 C (Ed. 7-09)
WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT-CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.)
You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule.
The additional premium for this endorsement shall be $ See Below Schedule
Person or Organization Job Description
Any person or organization for which the employer
las agreed by written contract, executed prior to loss. nay execute a waiver of subrogation. However, for
purposes of work performed by the employer in
Missouri, this waiver of subrogation does not apply to
any construction group as
designated by the waiver of right to recover from
others (subrogation) rule in our manual.
This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: 1/1/2023 Policy No. UH WCP 100074452 01 Endorsement No.
Insured: Badger Meter, Inc.
Insurance Company: Accident Fund Insurance Company of America Countersigned by WC 99 03 13 C
(Ed. 7-09)