City of Sacramento
City Council - 5PM Report
915 I Street Sacramento, CA 95814
www.cityofsacramento.org
File ID: 2023-00285 6/27/2023 Consent Item 23.
Contract: Software and Hardware Support [Two-Thirds Vote Required] [Published for 10-Day Review 06/16/2023]
File ID: 2023-000285
Location: Citywide
Recommendation: Pass a Motion authorizing the City Manager or the City Manager’s designee to:
1) suspend competitive bidding, in the best interests of the City, for software licensing, hardware and software support and replacement hardware as needed for the AMI system including Badger’s Beacon AMA, My Water customer portal, and Beacon Mobile Software; and 2) execute an Agreement with Badger Meter for a five year period, for a total amount not to exceed $2,301,977.68.
Contact: Stacy Larkin, Administrative Analyst, (916) 808-6356, [email protected]; Sheri Adams, Program Specialist, (916) 808-1470, [email protected]; Pravani Vandeyar, Director, (916) 808-3765, [email protected]; Department of Utilities Presenter: None
Attachments:
1-Description/Analysis
2-Agreement
Additional Description/Analysis
Issue Detail: In 2009, the City Council approved several related agreements to implement the Water Meter Reading Automation (WMRA) Project and begin installing Automated Meter Infrastructure (AMI) on the City’s water meters. In 2013, City Council approved a Software License agreement (City Agreement No. 2013-1151) with Badger Meter for the operation and ongoing support of the Badger Meter AMI system. In 2018, City Council approved City Agreement C2010-0716 for Software & Hardware support for this program.
The current agreement expires June 30, 2023. City staff is recommending approval of a five-year AMA Managed Solution Master Agreement to replace the existing agreement with Badger Meter for the operation and ongoing support of the Badger Meter AMI system.
File ID: 2023-00285 6/27/2023 Consent Item 23.
Policy Considerations: City Council approval is required for contracts of $250,000 or more.
Additionally, the recommendations in this report are in accordance with the provisions of City Code Section 3.60.170, which states “the restrictions and provisions of City Code requiring the award of contracts by competitive bidding shall not apply when, upon two-thirds vote of the City Council, it is determined that it is in the best interests of the City to suspend competitive bidding for any contract.” In accordance with the Sacramento City Code Section 4.04.020 and Council’s Rules of Procedure (Chapter 7, Section E.2.d) unless waived by a 2/3 vote of the City Council, all labor agreements and all agreements greater than $1,000,000 shall be posted on the City’s website and be made available to the public at least 10 day prior to council action. This item was published for 10-day review on June 16, 2023, in compliance with the City Code.
Economic Impacts: None.
Environmental Considerations:
California Environmental Quality Act (CEQA): The Community Development Department, Environmental Services Manager has determined that the proposed activity is not a project pursuant to the California Environmental Quality Act (CEQA). CEQA Guidelines Section 15378 (b). The activity is a continuing administrative or maintenance activity, such as the purchase of supplies, and is not subject to CEQA. CEQA Guidelines Section 15060(c)(3).
Sustainability: The on-going monitoring and implementation of the WMRA Project together with the installation of water meters promotes sustainability by allowing the City to collect meter reads accurately and charge customers based on water consumption, thereby providing an incentive for City customers to use water more efficiently and enabling the City to enforce water conservation programs. In addition, the AMI technology provides a better means of monitoring water usage and reducing leakage, both for the City and its customers.
Commission/Committee Action: Not applicable.
Rationale for Recommendation: Staff recommends suspending competitive bidding in the best interests of the City and execute a five-year contract with Badger Meter. The infrastructure and software are in place to effectively monitor the AMI system. To replace the system at this point with another brand would be costly. Approving this agreement will keep the WMRA project on track without undue expense. The City is currently very satisfied with the performance of Badger under its current contract and would like to continue the working relationship. This agreement will replace the existing agreement that will expire this year.
The contract terms reflect industry standards for information technology that are generally applicable to automated meter infrastructure hosted software.
File ID: 2023-00285 6/27/2023 Consent Item 23.
Financial Considerations: The proposed Agreement is for a not-to-exceed amount of $2,301,977.68 over the five-year term. There is sufficient funding in the proposed FY2023/24 DOU Operating Budget Water Fund (Fund 6005) for the first year of the agreement. Funding in future fiscal years will be subject to availability of sufficient funds in the applicable fiscal year.
There are no General Funds allocated or planned for this project.
Local Business Enterprise (LBE): Badger Meter is not an LBE. The minimum LBE participation requirement is waived as the City has suspended competitive bidding and utilized an alternative procurement method to select a vendor.
©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 1of 33 (1) SERVICE. Badger Meter and its cellular service aggregator and data-hosting service providersSuppliersve developed a hosted, on-demand, web-Portalto its customers to provide metering and water usage service information, communicated through aServicecustomers in using theDocumentation(2) RIGHT TO ACCESS AND USE THE PORTAL AND SERVICE. In consideration of thepayment of the Service Fees as set forth in Section (5), Badger Meter grants to Customer, itsemployees and contracAuthorized User-Authorized Consumernal businessuse and for the benefit of its Authorized Consumers in accordance with this Agreement.(3) OWNERSHIP OF PORTAL AND SERVICE.(a) Badger Meter Service. Badger Meter owns all rights, title and interest in the Portal, Serviceand Documentation, including all associated intellectual property rights. Neither Customer, norits Authorized Users or Authorized Consumers will obtain any rights, title or interest in thePortal, Service, or Documentation or any associated intellectual property rights, other than theright to access and use the Portal, Service and Documentation, subject to the terms of thisAgreement.(b) Suggestions. If Customer provides Badger Meter any suggested improvements() to the Portal, Service or Documentation, Customer agrees that Badger Meterwill own all rights, title and interest in and to the Suggestions, even if Customer has designatedthe Suggestions as confidential. Badger Meter will be entitled to use the Suggestions withoutrestriction. By entering into this Agreement, Customer irrevocably assigns, conveys andtransfers to Badger Meter all right, title and interest in and to the Suggestions and agrees toprovide Badger Meter with commercially reasonable assistance to document, perfect andmainta(4) TERM. The term of this Agreement begins on the Effective Date and continues for a five (5) yearand two (2)( month term unless earlier terminated in accordance with Section (16) of the AgreementTerm AgreementEffective DateBadger MeterCustomer
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 2of 33 (5) FEES.(a) Service Fees. In consideration for the right to access and use the Portal, Service and Service Feesenterprise-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 t 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 Datefor 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.(e)Provide Customer Content that infringes on the intellectual rights of any person or entity or use the Portal, Service or Documentation in violation of the intellectual property rights of Badger Meter, its Suppliers or any third party.(f)Use the Portal or Service in a manner that violates any applicable international, federal, state or local laws, rules or regulations.
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 3of 33 (g)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. (h)Transmit content or messages that are illegal, fraudulent, threatening, abusive, defamatory, or obscene.(i)Network(j)Communicate any unsolicited commercial, voice, SMS, or other message.(k)the communications of and/or information about another customer.(l)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 CONTENT. (a) Customer Content Defined. Customer, its Authorized Users and Authorized Consumers will provide Badger Meter and its Suppliers certain text, audio, video, images, Customer Data, Customer Content(b) Ownership.The Parties agree that the Customer Content 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 Content. (c) Use of Customer Content by Badger Meter. Customer, its Authorized Users and copy and use the Customer Content as reasonably necessary to provide, maintain, repair and enhance the Portal, Service and Documentation. Badger Meter may disclose certain Customer Content only to provide the Service to Customer, its Authorized Users and Authorized
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 4of 33 Consumers or to comply with the law or request of a governmental or regulatory body (including subpoenas or court orders.) Badger Meter will give Customer reasonable notice of a request from a governmental entity to allow Customer to seek a protective order or other appropriate remedy (except to the extent such notice would violate a court order or other legal requirement).(d) Customer Responsibilities. Customer is solely responsible for the development, content, operation and maintenance of the Customer Content, including but not limited to the technical operation of the Customer Content, and ensuring that calls madenetwork are compatible with then-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. Customer will respond to any Claims related to the Customer Content and is responsible for properly handling and processing notices sent to Customer by any person claiming tnotices pursuant to the Digital Millennium Copyright Act. (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 Portal, Service or Documentation; (e) the Customer Content, but only to the extent that Customer Content contains proprietary information, billing information or other personally identifiable information (); and (f) Traffic Data. (b) Protection of Confidential Information. To the extent permitted by law, t he parties agree 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. The Parties will not issue any press release or make any other public communication with respect to this
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 5of 33 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) Ownership of Customer Data. All Customer Data pertaining to Customer or its Authorized Consumers is considered Confidential Information of Customer and owned by Customer. Customer grants Badger Meter and its Suppliers the right to host, access, store, copy, and use the Customer Data as is reasonably necessary to provide, maintain, repair and enhance the Portal, Service and Documentation.(d) Traffic Information. All de-identified data generated or collected by Badger Meter through Traffic Datathe Confidential Information of and owned exclusively by Badger Meter.(e) Third Party Requests for Confidential Information.Neither party may disclose the other or an Authorized User or Authorized Consumer except as otherwise required by law. If a party receiving party agrees to inform the disclosing party in writing within three (3) business days of receipt of the request unless prohibited by law.(f) 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 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 represents and warrants to Badger Meter that Customer:(a) Authority. 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 Content, including but not limited to the Customer Data.Customer has all rights in the Customer Content necessary to grant the rights to Badger Meter contemplated under this Agreement.
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 6of 33 (c) Compliance with Badger Meter Policies. None of the Customer Content or the use of theCustomer content, the Portal or Service by Customer, its Authorized Users or its AuthorizedTerms of Use Policy or Privacy Policy.(d) No Infringementinges theIntellectual Property Rights of any third party or is the subject matter of any pending orthreatened lawsuit, legal proceeding or Claim.(e) Compliance with the Law. Neither Customer, the Authorized Users nor the AuthorizedConsumers will access or use the Portal, Service or Documentation in any manner that violatesany applicable international, federal, state or local laws and/or regulations, including but notlimited 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 andauthority 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 andService will be provided pursuant to Exhibit 2 Service Level Agreement. In providing thePortal and Service, Badger Meter will maintain sufficient data storage capacity to satisfy thetechnical requirements and required storage capacity to host the Portal and Service, in itsreasonable discretion. If Customer allows unauthorized users to access the Portal, Service orDocumentation, this express limited warranty will immediately become null and void.(c) Remedy for Breach of the Express Limited Warranty. If the Portal, Service orDocumentation fail to meet the terms of the express limited warranty set forth in Section 11(b),Customer is required to notify Badger Meter pursuant to Exhibit 2 Service Level Agreement.Service credit tobe calculated in accordance with Exhibit 2Service Level Agreement.(d) DISCLAIMER OF IMPLIED WARRANTIES. EXCEPT FOR THE EXPRESS LIMITEDWARRANTY SET FORTH IN SECTION 11(b), BADGER METER MAKES NO OTHEREXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES AS TO THE PORTAL,SERVICE OR DOCUMENTATION. BADGER METER EXPRESSLY DISCLAIMS ANYOTHER EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE PORTAL,SERVICE OR DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIEDWARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR APARTICULAR PURPOSE, QUIET ENJOYMENT, OR IMPLIED WARRANTIES ARISINGFROM 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
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 7of 33 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 CONTENT, INCLUDING THE CUSTOMER CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. (e) ESSENTIAL TERMS. THE ENFORCEABILITY OF THIS SECTION (11) IS ESSENTIAL 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.(b)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. NOTHING IN THIS SFOR USE OF THE SERVICES PURSUANT TO SECTION 5.(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, T COSTS OR ANY OTHER LIABILITIES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE PORTAL, SERVICE, DOCUMENTATION, OR THE SUBJECT 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 DATA, CUSTOMER CONTENT, 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
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 8of 33 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. NEITHER BADGER METER NOR ANY OF ITS AFFILIATES, SUPPLIERS OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT OR DAMAGES OR SERVICE, INCLUDING AS A RESULT OF ANY: (i) TERMINATION OR SUSPENSION ; 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 ANY UNAUTHORIZED ACCESS TO, ALTERATION OR THE DELETION, CONTENT OR OTHER DATA. (13)(a) Generally. To the extent permitted by law, 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 Badger Meter Partiesagainst 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 access and use of the Portal, Service, or Documentation; (ii) the subject matter of this Agreement ; (iii) violation of applicable law by Customer, its Authorized Users or Authorized Consumers; (iv) the Customer Content or the combination of the Customer Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third party rights related to the Customer Content or by the use, development, design, producing, advertising or marketing of Customer Content; or (v) a dispute between Customer and any Authorized User or Authorized Consumer.(14)(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, consultants and other Customer Partiesed against the
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 9of 33 Customer Parties by a third party based upon the allegations that the Portal, Service or 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 Portal and Service to avoid allegations of infringement, provided the modification does not materially change the functionality of the Portal and Service; (iii) 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 nformity with (2).(15) TERMINATION.(a) Termination for Convenience. Customer may terminate this Agreement for any reason by providing Badger Meter written notice of termination at least sixty (60) days in advance of the effective date of such termination. Badger Meter shall be entitled to receive compensation (per the terms of this Agreement) 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.(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 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 (tCure Noticereceiving 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
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 10of 33 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.(e) 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 (iv) time, up to one hundred twenty (120) days after termination. Within a reasonable time after lly identifiable 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.(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 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, may interrupt or prevent legitimate communications and usage. Such situations may arise: (a) if a device deployed on the
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 11of 33 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 (iii) reinstate Service upon resolution of the issue as soon as practicable and in any case within a reasonable timeframe.(d) Immediate SuspensionAuthorized 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 content 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 ns of the Service or accounts that gave rise to the suspension promptly after Customer has resolved the problem giving rise to the suspension. (f) Effect of Suspensionportion of the Service or the Portal:(i)Customer remains responsible for all Service Fees and charges incurred through the date of suspension.(ii)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)terminate this Agreement.
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 12of 33 (17) COMPLIANCE WITH REGULATIONS; DATA PRIVACY. Each party is responsible forcomplying with industry standards and such applicable laws and regulations, including, but notlimited to, the generally accepted practices in the information technology service managementindustry for providing secure data handling and management, including meeting or exceedingInformation Technology Infrastructure Library (ITIL) standards for logical and physical security andall requirements regarding the protection of data in its possession or under its control. A party willnot be liable for any failure of the other party to comply with this requirement.(18) DATA SECURITY AND RECOVERY.(d) Data Security. In order to protect the Customer Content and prevent unauthorized accessto or use of the Customer Content, Portal or Service, Badger Meter has implementedcommercially reasonable internal procedures and systems designed to protect the privacy andsecurity according to the requirements set forth inExhibit 3 BEACON AMA ManagedSolution Security PolicySecurity Standards, consistent with applicable international,federal, state and local laws. The purpose of the security policy is to identify reasonablyand minimize security risks, including through risk assessment and regular testing. BadgerMeter will designate one or more employees to coordinate and be accountable for the securityprogram.(a) Protection of Customer Content. Badger Meter will implement reasonable and appropriatemeasures for the Badger Meter Network designed to help Customer secure the CustomerContent against accidental or unlawful loss, access or disclosure in accordance with Badgerbut will continue to provide at least the same level of security as described in the SecurityStandards as of the Effective Date. The security and data privacy provisions in this Sectioncontain Badger Meter, and its Suppliers entire obligation regarding the security, privacy andconfidentiality of the Customer Content.(b) Data Storage. Badger Meter will employ commercially reasonable storage (includingbackup, archive and redundant data storage) and commercially reasonable precautions toprevent the loss of or alteration of Customer Content, but does not guarantee against any suchloss or alteration. Badger Meter will will maintain source documents of the Confidential Information (such as billing information)hosted by Badger Meter under this Agreement.(c) Customer Responsibilities. Customer is responsible for properly configuring and usingthe Service and taking steps to maintain appropriate security, protection and backup of theCustomer Content, including but not limited to the use of encryption technology to protectCustomer Content from unauthorized access and will perform routine archiving of the CustomerContent. Further, Customer is responsible for regularly auditing its Authorized Users, and will
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 13of 33 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.(d) Data Transmission Risks.(i)Cellular Transmissions. Badger Meter cellular endpoints conform to the AES256encryption standards or the latest AES standard in effect. Customer acknowledges thatneither Badger Meter nor its Suppliers can guarantee the privacy or security of any cellulartransmissions as part of the Service. Customer acknowledges that cellular transmissions arecapable of being intercepted by third parties without the knowledge or permission ofBadger Meter or its Suppliers. Badger Meter and its Suppliers shall not be liable toCustomer, the Authorized Users, the Authorized Consumers or any third party forinterception or unauthorized use of any data transmitted through the cellular network, aspart of the Service.(ii)Internet Transmissions. Customer acknowledges that security of transmissions overthe Internet cannot be guaranteed.access to the Internet; (ii) interception, unauthorized use or interruptions ofcommunications 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 protectCustomer Content, Badger MeAuthorized Consumers access to or use of the Badger Meter Portal or Service via theInternet immediately, without prior notice, pending an investigation of any potentialsecurity breach.(e) Coverage Availability. The Service is provided using a wireless network. Actual signalavailability in the Service Area will depend on the device used to access the Service as well ascoverage for the applicable wireless network provided in specific geographic regions. Coveragemay be refused, interrupted or limited by environmental factors such as signal strength,buildings, weather, geography, topography, or by factors affecting the Suppliers, such as usageconcentration or by facilities changes, modifications, updates, relocations, repairs, maintenancefacilities. Any such factors may result in dropped and blocked connections or slower dataspeeds. Neither Badger Meter nor any of its Suppliers will be responsible to Customer or any ofcoverage. The Service Area is subject to change from time to time. Should Badger Meter receivenotice from its Supplier that such Supplier intends to discontinue its support for the BadgerMeter Service in all or part of the Service Area, Badger Meter will provide Customer with asmuch advance notice as practicable under the circumstances.(f) Password Protection.Customer, its Authorized Users and Authorized Consumers will berequired to select and use certain user names, passwords or codes to access and use the Serviceand Portal. Customer assumes sole responsibility for the selection, management and use of any
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 14of 33 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 password or Internet account. Customer will immediately notify Badger Meter of any rd or Internet account or any other breach of security, Badger Meter shall not be liable for any damages incurred by Customer or any third party arising from Custo(g) Third Party Access. To the extent that Customer requests that Badger Meter provide anyCustomer Content 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 requiredto transfer such content or information and that such transfer does not violate any applicableinternational, federal, state or local laws and/or regulations.(h) Security Breach. If Badger Meter becomes aware of a security breach or any other eventIncidentBadger Meter will promptly notify Customer in writing and take appropriate actions to resolvethe Incident. Badger Meter will reasonably cooperate with Customer to investigate the natureand scope of any Incident. In its initial notification to Customer, Badger Meter will provideCustomer with: (i) a description of the Incident; (ii) the estimated impact of the Incident onwill be primarily responsible for resolving the issues for Customer; and (iv) the investigationtaken and the suggested corrective action. Badger Meter will provide commercially reasonablecooperation to Customer in investigating, assisting with notification of the Incident and takingcorrective action as requested by Customer.(i) Notification of Breach. In the event that applicable law requires notification to individualsof an Incident or if requested by Customer, Badger Meter will take additional mitigation stepsfor the benefit of Customer, including, but not limited to, providing reasonable assistance withdrafting and sending of required notifications.(j) Disclosure of Customer Content. Badger Meter will only use the Customer Content toprovide the Service to Customer and its Authorized Users and Authorized Consumers inaccordance with this Agreement or to comply with the law or any governmental or regulatorybody (including subpoenas or court orders). Badger Meter will give Customer reasonable noticeof the request to allow Customer to seek a protective order or seek any other appropriate reliefexcept to the extent required for Badger Meter to comply with a court order or other legalrequirement.
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 15of 33 (19) CHANGES.(e) Right to Make Changes. Badger Meter may from time to time make changes, withoutPrivacy policies, the Portal, Service oraccessing and using the Portal and Service during the Term of this Agreement ; (ii) do notrequire Customer to make any material changes to its systems, software, equipment, policies orprocedures ; (iii) do not have a material adverse impact on the functionality, interoperability,performance, reliability, security or resource efficiency of the Portal and Service ; (iv) do notmaterially reduce the scope of the Portal and Service; and (v) are otherwise consistent with thisAgreement. Badger Meter will publicize any changes by a notice given to Customer or by aprominent announcement on the Portal. Any such changes will not take effect until thirty (30)days after posting of notice on the Portal.(f) Emergency Changes; System Improvement. Notwithstanding the foregoing, Badger Meterand its Suppliers may make temporary changes to the Portal and Service required by anemergency 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 complywith the law or requests of a government entity, as well as take actions deemed reasonablynecessary to protect or optimize the Service. Some of these actions may interrupt or preventlegitimate communications and usage, including, for example, use of message filtering/blockingsoftware 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 associatedBadger Meter will provideanned maintenance by BadgerMeter; and (ii) as much advance notice as reasonably possible of emergency changes ormaintenance by Badger Meter or its Suppliers. Any actions resulting in permanent changes shallonly be made in compliance with Section (20) (a).(20) PRIVACY POLICY. When accessing and using the Service, Customer agrees that Customer, itsAuthorized Users and Authorized Consumers will comply with the Badger Meter Privacy Policylocated at https://beaconama.net/privacy/privacy.html.(21) RIGHT TO SUBCONTRACT. Badger Meter may subcontract the performance of any of itsduties or obligations under this Agreement, and will use commercially reasonable efforts tosubcontract only with subcontractors that have the requisite skills to perform any subcontractedobligations in accordance with the terms of this Agreement.(22) GENERAL.(a) Binding Agreement. This Agreement is binding upon and will inure to the benefit of theparties and their respective successors and assigns.
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 16of 33 (b) Affiliates. This Agreement covers only the employees and agents of Customer. IfCustomer wishes to have any entity that directly or indirectly controls, is controlled by or is inmust execute a separate agreement with Badger Meter.(c) Assignment. Either party may assign its rights and obligations under this Agreement withthe express written consent of the other party, which consent will not be unreasonably withheldor delayed. Any purported assignment or transfer in violation of this Section will be null andvoid. Notwithstanding the foregoing, Badger Meter may assign its rights and obligations underthis Agreement without the consent of Customer: (i) upon a sale of a majority of its outstandingcapital stock to an affiliate or third party; (ii) if it sells all or substantially all of its assets; (iii) inthe 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 providedunder this Agreement will not be deemed a waiver of any further right or remedy. All waiversmust be in writing to be effective.(a) Severability. If any portion of this Agreement is held to be invalid or unenforceable, theremaining portions of this Agreement will remain in full force and effect. Any invalid orunenforceable portions of this Agreement will be interpreted to effectuate the intent of theoriginal Agreement. If such construction is not possible, the invalid or unenforceable portion ofthe Agreement will be severed from this Agreement, and the remainder of the Agreement willremain in full force and effect.(b) Independent Contractors. The Parties agree that they are independent contractors and thatneither party nor any of their respective affiliates, is an agent of the other for any purpose or hasthe authority to bind the other.(c) Savings Clause. The invalidity of any provision of this Agreement shall not affect thevalidity and binding effect of the remaining provisions.(d) No Third Party Beneficiaries. Nothing express or implied in this Agreement shall conferany rights, remedies, obligations or liabilities whatsoever to third parties which are notsignatories to this Agreement.(e) Governing Law. To the extent permitted by law, the terms of this Agreement are governedby the laws of the State of California, without reference to its conflict of laws principles. TheUnited Nations Convention for the International Sale of Goods does not apply to thisAgreement.(f) No Claims Against or Liability of Badger Meter Suppliers. Customer acknowledges thatthe Service utilizes services that are furnished to Badger Meter and one or more Supplierspursuant to agreements between Badger Meter and its Suppliers. Neither Customer nor any
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 17of 33 Authorized Users or Authorized Consumers has a contractual relationship with Suppliers and neither Customer nor its Authorized Users or Authorized Consumers is a thirdparty beneficiary of or will have any claim againstin the event any suchagreement expires or is terminated. Customer further acknowledges that the Suppliers disclaimall 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 theuse 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 theService or otherwise. Customer agrees that neither it nor any Authorized Users or Authorized Consumers shall have any Claim against the Supplier of any kind with respect thereto, whetherarising out of breach of contract, warranty, negligence, and tort or otherwise.(g) Dispute Resolution.(i) Initial Resolution Efforts. The parties shall act in good faith and use commerciallyreasonable efforts to promptly resolve any claim, dispute, controversy or disagreementDisputesuccessors and assigns under or related to this Agreement or any document executedpursuant to this Agreement or any of the transactions contemplated hereby.(ii) Mediation. If the parties cannot resolve the Dispute within ten (10) days after initialnotice of the Dispute, the Dispute shall be submitted for resolution to the JudicialJAMSMediationIllinois. If the mediator is unable to amicably resolve the Dispute, then the mediator willrefer the matter to a JAMS arbitrator to resolve the Dispute. Neither party shall seek, norshall be entitled to seek, binding outside resolution of the Dispute unless and until theparties have been unable to amicably resolve the dispute as set forth in this Section, andthen only in compliance with the procedures set forth in this Section. Except for Disputesrelating to issues of (i) proprietary rights, including, but not limited to, intellectual propertyand confidentiality, and (ii) any provision of this Agreement which expressly or implicitlyprovides for the parties to reach mutual agreement as to certain terms, any Dispute notresolved by amicable resolution as set forth in this Section shall be governed exclusivelyand finally by arbitration described below.(iii) Arbitration. Either party may initiate arbitration with respect to a Dispute bysubmitting a written demand at any time following Mediation.Arbitration shall be administered by JAMS, or its successor, pursuant to theComprehensive Arbitration Rules and Procedures.Either party may commence arbitration by notifying the other in writing thatarbitration is desired and setting forth the topics to be arbitrated. Within thirty(30) days of mailing a notice of arbitration, the party receiving the notice may
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 18of 33 specify additional topics of arbitration in writing to the other party. Within forty-five (45) days of the mailing of the notice of arbitration, the parties will confirm and attempt to identify an arbitrator associated with JAMS to resolve the Dispute. If the parties cannot agree, JAMS will appoint an arbitrator who is a lawyer familiar with software as a service and information technology support services agreements.Except to the extent, if any, that law applicable to the dispute requires thatarbitrators retain authority to award punitive damages, the arbitrators shall nothave such authority.Each party will bear its own costs of the arbitration. The resulting award may beconfirmed and reduced to judgment in any court of competent jurisdiction. Withrespect to any such post-arbitral judicial proceedings, the parties consent to theexercise of personal jurisdiction over them by the state and federal courts sitting inSacramento, California and waive any objection that they would otherwise have tovenue in such courts.The duty to arbitrate does not preclude either party from pursuing interlocutoryor provisional relief pending arbitration in any court of competent jurisdiction ifsuch relief is necessary in order to preserve the practical ability of the arbitrator tomake an effective award or to avoid a genuine and substantial risk of injury thatcannot be adequately remedied by an eventual arbitral award. Neither the pursuitof nor the failure to provide any such interlocutory or provisional remedy in court,however, shall relieve either party of the duty to pursue ultimate resolution of thedispute through arbitration as provided for herein.The arbitration shall be governed by and construed and interpreted in accordancewith the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.(23) INJUNCTIVE RELIEF: Notwithstanding the provisions of Section 23, to the extent permitted bylaw, Badger Meter shall have the right to pursue injunctive, declaratory or other relief by the stateand federal courts sitting in Sacramento, California and waive any objection that they wouldotherwise have to venue in such courts.(24) NOTICES. All notices shall be in writing and delivered to the other party by means of: (a)personal delivery set forth below; (b) posting a notirequired upon delivery); (d) recognized overnight courier, at the following address; (e) fax with proofof delivery; or (f) via electronic mail with proof of delivery: Notices sent by email will be effectivewhen sent and notices postmust be provided in the English language.
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 19of 33 If to Badger Meter:Legal Department, Attn: Assistant General Counsel4545 W. Brown Deer RoadMilwaukee, WI 53223If to Customer:City of Sacramento1395 35thAvenueSacramento, CA 95822(25) SURVIVABILITY. Any provision of this Agreement which by its nature should survivetermination or expiration of this Agreement shall survive its expiration or termination.(26) LIMITATION OF CLAIMS. No action arising under or in connection with this Agreement,regardless of the form, may be brought by Customer more than one (1) year after Customer becomesaware of or should reasonably have become aware of the occurrence of events giving rise to theClaim.(27) FORCE MAJEURE. Neither party shall be liable to the other or any third party by reason of anyfailure or delay of its obligations under this Agreement where the delay or failure results from anycause beyond its reasonable control, including, but not limited to, acts of God, fires, storms, floods orother acts of nature, explosions, systemic electrical telecommunications or other utility failures,earthquakes, hurricanes, tornados, natural disasters, strikes, shortage of materials, work stoppage orother labor dispute, embargoes, riots, insurrections, acts of war or terrorism, or any action or restraintForce Majeure Eventthe Force Majeure Event agrees to use commercially reasonable efforts to minimize the impact of theForce Majeure Event on the other party.(28) AMENDMENT. This Agreement may only be amended by a written document signed by bothparties. Badger Meter will not be bound by and specifically objects to any term, condition or otherprovision which is different from or in addition to the provisions of this Agreement (whether or not itwould materially alter this Agreement) and which is submitted by Customer in any receipt,acceptance, confirmation, agreement, purchase order, correspondence or other documentation. If theterms of this Agreement are not consistent with the terms contained in any policy, the termscontained in this Agreement will control, except that the Service Terms will control over thisAgreement.(29) POLICIES. Badger Meter reserves the right to modify the Terms of Use and Privacy policies atany time by posting a revised version on the Portal or otherwise providing notice to Customer. Themodified terms will become effective upon posting or notice. By continuing to use the Service afterthe effective date of the modification to a policy, Customer agrees to be bound by the modified
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 20of 33 the policies. (30) ENTIRE AGREEMENT. This Agreement, including all applicable Exhibits and policies,constitutes the entire agreement between the parties with regard to its subject matter. ThisAgreement supersedes all prior or contemporaneous agreements, discussions, negotiations,undertakings, communications, representations or proposals, whether written or oral.(31) 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 oneand the same document. This Agreement may be executed and delivered by facsimile signature orportable document format (.pdf) by electronic mail.IN WITNESS WHEREOF, the authorized representatives of the parties hereby bind the parties to this BEACON AMA Managed Solution Master Agreement by signing below:BADGER METER, INC CITY OF SACRAMENTOSignature SignatureKimberly K. StollPrinted Name Printed NameVice President Sales & MarketingTitle Title12/29/2022Date Date
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 21of 33 EXHIBIT 1 FEES1. Service Fees. Customer agrees to pay the following Service Fees, as consideration for the rightto access and use the Portal, Service and Documentation during the Term, as well as applicableTaxes.2. Invoicing.Badger Meter shall issue invoices to Customer for Service and Support Fees on amonthly basis. Payment is due within thirty (30) days of the date of the invoice.3. Interest and Costs. Customer agrees that it will be responsible to pay Badger Meter for anycollection expenses incurred by Badger Meter, including interest at the highest interest rateenforcing its rights under this Agreement.YEAR 1 -2023/2024Product Dates Quantity Pricing each Annually TotalBEACON Fixed Network Service Unit2023 -20241,680,000$0.12/mo.$1.44/ea.Endpoint (140,000)$201,600.00BEACON Mobile Hosting Service Unit 7,200 $0.06/mo.$0.72/ea.Endpoint (600)$432.00ORION Cellular LTE Service Unit12,000$0.81/mo.$9.72/ea.Endpoint (1,000)$9,720.00Mobile Read Module Service Unit 12 $166.50/ea. $166.50/ea $1998.00 User Login Annual License Service Unit36$25.00/ea.$25.00/ea.$900.00 GW Cellular Backhaul LTE Service Unit 3,240 $45.00/mo.$540.00/ea.Endpoint (270)$145,800.00 Mobile Data Collect, Mobile Kit, ORION ME Mobile Trans Kit1$3,478.00$3,478.00/ea.$3,478.00 Fixed Network ORION SE-2 Gateway, Line, LTE/LAN Gateway, Std Mtg Kit, 100ft, BMI Supp SIM10 $6,010.00 $6,010.00/ea.$60,100.00 Mobile Data Collect, Ranger 7 HH, ORION ME Module1$9,600.00$9,600.00/ea.$9,600.00 EP Only, For Enc, ORION CELL C, Thru Ld Instl Kit, Nicor-8in, Grnd/Ocean-Pause, BMI STD500 $97.53 $97.53/ea. $48,765.00GRAND TOTAL YEAR 1: $48.00
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 22of 33 YEAR 2 -2024/2025Product Dates Quantity Pricing each Annual TotalBEACON Fixed Network Service Unit2024 -20251,674,000$0.12/mo.$1.44/ea.Endpoint (139,500)$200,880.00BEACON Mobile Hosting Service Unit 7,200 $0.06/mo.$0.72/ea.Endpoint (600)$432.00 ORION Cellular LTE Service Unit18,000$0.81/mo.$9.72/ea.Endpoint (1,500)$14,580.00 Mobile Read Module Service Unit 12 $166.50/ea. $166.50/ea$1998.00 User Login Annual License Service Unit36$25.00/ea.$25.00/ea.$900.00 GW Cellular Backhaul LTE Service Unit 3,240 $45.00/mo.$540.00/ea.Endpoint (270)$145,800.00 Mobile Data Collect, Mobile Kit, ORION ME Mobile Trans Kit1$3,478.00$3,478.00/ea.$3,478.00 Fixed Network ORION SE-2 Gateway, Line, LTE/LAN Gateway, Std Mtg Kit, 100ft, BMI Supp SIM10 $6,010.00 $6,010.00/ea.$60,100.00 Mobile Data Collect, Ranger 7 HH, ORION ME Module1$9,600.00$9,600.00/ea.$9,600.00 EP Only, For Enc, ORION CELL C, Thru Ld Instl Kit, Nicor-8in, Grnd/Ocean-Pause, BMI STD500 $97.53 $97.53/ea. $48,765.00GRAND TOTAL YEAR 2:$48,53.00 YEAR 3 - 2025/2026Product Dates Quantity Pricing each Annual TotalBEACON Fixed Network Service Unit2025 -20261,668,000$0.14/mo.$1.44/ea.Endpoint (139,000)$233,520.00 BEACON Mobile Hosting Service Unit 7,200 $0.06/mo.$0.72/ea.Endpoint (600)$432.00 ORION Cellular LTE Service Unit24,000$0.81/mo.$9.72/ea.Endpoint (2,000)$19,440.00 Mobile Read Module Service Unit 12 $166.50/ea. $166.50/ea$1998.00 User Login Annual License Service Unit36$25.00/ea.$25.00/ea.$900.00 GW Cellular Backhaul LTE Service Unit 3,240 $47.00/mo.$564.00/ea.Endpoint (270)$152,280.00 Mobile Data Collect, Mobile Kit, ORION ME Mobile Trans Kit1$3,651.90$/ea. $3,0
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 23of 33 Fixed Network ORION SE-2 Gateway, Line, LTE/LAN Gateway, Std Mtg Kit, 100ft, BMI Supp SIM1 $6,310.50 $6,310.50/ea. $6,310.50 Mobile Data Collect, Ranger 7 HH, ORION ME Module1$10,080.00$10,080.00/ea.$10,080.00 EP Only, For Enc, ORION CELL C, Thru Ld Instl Kit, Nicor-8in, Grnd/Ocean-Pause, BMI STD1 $102.41 $102.41/ea. $102.41GRAND TOTAL YEAR 3:$42YEAR 4 -2026/2027Product Dates Quantity Pricing each Annual TotalBEACON Fixed Network Service Unit2026 -20271,662,000$0.14/mo.$1.68/ea.Endpoint (138,500)$232,680.00 BEACON Mobile Hosting Service Unit 7,200 $0.06/mo.$0.72/ea.Endpoint (600)$432.00 ORION Cellular LTE Service Unit30,000$0.81/mo.$9.72/ea.Endpoint (2,500)$24,300.00 Mobile Read Module Service Unit 12 $166.50/ea. $166.50/ea$1998.00 User Login Annual License Service Unit36$25.00/ea.$25.00/ea.$900.00 GW Cellular Backhaul LTE Service Unit 3,240 $47.00/mo.$564.00/ea.Endpoint (270)$152,280.00 Mobile Data Collect, Mobile Kit, ORION ME Mobile Trans Kit1$3,651.90$3,651.90/ea.$3,651.90 Fixed Network ORION SE-2 Gateway, Line, LTE/LAN Gateway, Std Mtg Kit, 100ft, BMI Supp SIM1 $6,310.50 $6,310.50/ea.$6,310.50 Mobile Data Collect, Ranger 7 HH, ORION ME Module1$10,080.00$10,080.00/ea.$10,080.00 EP Only, For Enc, ORION CELL C, Thru Ld Instl Kit, Nicor-8in, Grnd/Ocean-Pause, BMI STD1 $102.41 $102.41/ea. $102.41GRAND TOTAL YEAR 4:$4
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 24of 33 YEAR 5 -2027/2028Product Dates Quantity Pricing each Annual TotalBEACON Fixed Network Service Unit2027 -20281,656,000$0.16/mo.$1.92/ea.Endpoint (138,000)$264,960.00 BEACON Mobile Hosting Service Unit 7,200 $0.06/mo.$0.72/ea.Endpoint (600)$432.00 ORION Cellular LTE Service Unit36,000$0.81/mo.$9.72/ea.Endpoint (3,000)$29,160.00 Mobile Read Module Service Unit 12 $166.50/ea. $166.50/ea$1998.00 User Login Annual License Service Unit36$25.00/ea.$25.00/ea.$900.00 GW Cellular Backhaul LTE Service Unit 3,240 $50.00/mo.$600.00/ea.Endpoint (270)$162,000.00 Mobile Data Collect, Mobile Kit, ORION ME Mobile Trans Kit1$3,834.50$3,834.50/ea.$3,834.50 Fixed Network ORION SE-2 Gateway, Line, LTE/LAN Gateway, Std Mtg Kit, 100ft, BMI Supp SIM1 $6,626.03 $6,626.03/ea.$6,626.03 Mobile Data Collect, Ranger 7 HH, ORION ME Module1$10,584.00$10,584.00/ea.$10,584.00 EP Only, For Enc, ORION CELL C, Thru Ld Instl Kit, Nicor-8in, Grnd/Ocean-Pause, BMI STD1 $107.53 $107.53/ea. $107.53GRAND TOTAL YEAR 5:$4,60.06
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by lawPage 25of 33 EXHIBIT 2SERVICE LEVEL AGREEMENTwhich is the point during meter installation when the endpoint is installed and verified to provide data to the BEACON AMA Managed Solution. 1.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 TimeLevel 1 Service is unavailableone (1) hour six (6) hoursLevel 2 certain interruptions but service is still availabletwenty-four (24) hours twenty-four (24) hoursLevel 3 minor intermittent malfunctiontwenty-four (24) hours three (3) daysLevel 4 suggestions for new features or enhancements to BEACON Portal and Servicetwenty-four (24) hours Evaluated, scheduled and prioritized for potential inclusion in upcoming releases.
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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 anyEmergency Downtime, Scheduled Downtime, any unavailability of the Portal and Service dueto any Force Majeure Event and any unavailability of the Portal and Service less than fifteen(15) minutes in duration following written notice thereof.DefinitionsAvailabilityService, calculated as described below.Emergency Downtimesuspension by Badger Meter to perform maintenance to address any, urgent and unexpected issue with the Portal or Service.Scheduled Downtimens 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:Where:Total Unavailability Minutesapplicable 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 Monthcalculated by taking the number of days in month x 24 hours/day x 60 minutes/hour, and
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 27of 33 Total Minutes of Approved Downtimeicable 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 such notice; and (c) Customer shall notify Badger Meter, in 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 CreditsIf Badger Meter fails to meet the BEACON Portal and Service Availability Promise, the following Service Credits apply:% of Availability in the MonthService Credit(% of monthly recurring fees)0%5%10%15%<95.0% 25%
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3.MONTHLY BILLING DATA SERVICE PROMISE.Badger Meter will use commercially reasonable efforts to fulfill the following Service Promise:The BEACON AMA Managed Solution will successfully provide Monthly Billing Data for at least 97.0% of provisioned accounts at the time of billing request to the BEACON AMA Managed Solution.DefinitionsManaged Solutioncellular endpoints, where Badger Meter maintains the responsibility for managing the reading hardware and software for system operation over the Term of the Agreement.Provisioned Accountsare 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 AMA Managed Solution.Monthly Billing Dataperformed through the BEACON AMA 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 Count of Billing ReadsProvisioned ACount of Total Billing CycleWhere:in the billing file with valid data that a billing quality reading is supplied for managed solution endpoints.being processed for managed solution endpoints.
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 29of 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 CreditsIf Badger Meter fails to meet the Monthly Billing Data Service Promise, the following Service Credits apply:% of Successful Billing Reads in the Applicable Billing CycleService Credit(% of monthly recurring fees)0%5%<95.0% 10%25%
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4.MISCELLANEOUS.ExclusionsThe 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:(i) Resulting from any actions or inactions of Customer, its Authorized Users or Authorized Consumers;(ii) Resulting from Customer or its suppliers equipment, software, or other technology and/or control;(iii) Caused by failures, including, but not limited to, internet connectivity, port availability, (iv)(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;(vii) Caused by Customer, an Authorized Users or an Authorized Consumers misuse or abuse of the Portal or Service; (viii) 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)use the BEACON Managed Solution in accordance with the Agreement;(x)and maintenance instructionsDesign;(xi) When outdoor temperatures either exceed or are below the endpoint operating temperature range as described in the applicable product data sheet.(xii) 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 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 pcontrol 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 Service failure, Customer will be eligible to receive a Service Credit as described above.
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 31of 33 EXCEPT AS EXPRESSLY PROVIDED IN THIS SLA, THE SERVICE CREDITS SPECIFIED IN THIS TO MEET THE SERVICE PROMISE SPECIFIED IN THIS SLA.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 orshould 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 its were incurred..
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 32of 33 EXHIBIT 3BEACON AMA MANAGED SOLUTION SECURITY POLICY1. BEACON AMA 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 AMA 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 Facilitiesprevent 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.1.2.3 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.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
BADGER METERBEACON AMA MANAGED SOLUTIONMASTER AGREEMENT ©2018 Badger Meter, Inc. Confidential and Proprietary to the extent permitted by law Page 33of 33 Facilities. Badger Meter will not permit an employee to have access to the non-public Customer Content 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