CITY OF SIMI VALLEY
MEMORANDUM
August 8, 2022
TO: Board of Directors, Ventura County Waterworks District No. 8
FROM: Department of Administrative Services
SUBJECT: APPROVAL OF AGREEMENT BETWEEN THE VENTURA COUNTY WATERWORKS DISTRICT NO. 8 AND DROPCOUNTR, INC. FOR A
WATER USE WEB PORTAL AND APPROVAL OF A SUPPLEMENTAL
BUDGET REQUEST
STAFF RECOMMENDATION
Staff recommends that the Board of Directors of the Ventura County Waterworks District No. 8 (Board):
1. Approve a one-year agreement with Dropcountr to provide a water usage internet portal in the amount of $66,743; authorize the District Manager or his designee to extend the contract for four (4) one- year extension terms each in the amount of $56,743;
2. Authorize the District Manager or his designee to accept a one-time reimbursement, if deemed eligible, from Calleguas and the Metropolitan Water District in the amount of $33,371.50 to offset 50% of the costs for the first year of the system;
3. Approve the Supplemental Budget Request to increase the FY 2022-23 budget in the Waterworks operating fund (7614640-444490) by $27,743.
BACKGROUND AND OVERVIEW
California is immersed in the third year of extreme drought . With just six inches of precipitation occurring in the state during the early winter months of 2022 , California entered the dry summer months with below -average reservoir storage and the state’s largest reservoirs are at critically low levels. Simi Valley's primary water suppliers, Calleguas Municipal Water District (Calleguas) and the Metropolitan Water District (MWD) have declared water shortages due to the extreme drought in California.
Subsequently, the District Board declared a Stage IV Water Suppl y Shortage limiting irrigation to a one-day-per-week watering schedule.
Due to the water shortage, it is imperative District customers save water with every opportunity. To date, the District has attempted to reduce customer water usage through education of the water emergency and informing customers of the need to reduce water usage. In an effort to provide another tool and help residents and businesses reduce use and protect water reserves, staff is recommending the purchase of Dropcountr, a water
AGENDA ITEM NO.
Consent (3)
2 usage internet portal that provides a mobile application, allowing customers to track usage and conserve water. The Dropcountr system has many features that will allow customers to be proactive in monitoring their water usage (both quantity and timing) including:
Conv
enient access to water usage on the devices customers prefer : Apple iOS, Android, or the Web.
Near real time display of water usage in annual, monthly, daily, hourly intervals. Leak, budget, and emergency alerts.
Anonymous comparison to similar homes (social norming). Comparison to a budget or mandate.
Curated water tips and utility rebates.
Support for water billing customers is provided by Dropcountr minimizing staff time required to support the system.
Dropcountr will be free of charge for all Waterworks District No. 8 customers but will not be available to Golden State water customers via this agreement.
FINDINGS AND ALTERNATIVES
The City’s Public Works D epartment and the Information Services Division assessed cloud-based data an alytics and customer engagement platforms created for utility staff and customers from Dropcountr, Tyler , and Neptune (Tyler and Neptune are software platforms the City is currently using in various functions ). After reviewing all three platforms, staff is recommending Dropcountr. The system from Tyler is unable to provide real time information and the Neptune system does not offer an external facing customer portal.
The first-year costs for Dropcountr of $66,743 include setup , configuration, and usage.
Although the current drought conditions justify the acquisition of Dropcountr to assist water customers reduce their water use, staff believes long-term benefits exist to provide water usage data to customers on a permanent basis and to continue providing transparency to the public. Therefore, st aff is recommending that the City Council delegate the authority to the District Manager to extend the contract for four one-year extensions at $56,743 per year; staff will include funding in subsequent annual Budg ets for the Board consideration.
The City may be eligible for a one-time reimbursement of 50% of costs ($33,371.50) for the first year of the system, from the MWD/Calleguas as part of its Member Agency Administered Project program. Although the reimbursement is not guaranteed, given the benefits of the Dropcountr system and the current water supply emergency , staff is recommending approval of the system even if the reimbursement request is denied.
Funding in the amount of $39,000 was approved by the District Board of Directors for a water usage customer web portal as part of the fiscal year 2022- 23 Budget. Acquisition of the system will requir e additional funding in the amount of $27,743; staff has prepared for the Board's consideration a Supplemental Budget Request for thes e funds. The total f ive-year cost of the system is $293,715. 3 The cities of Denver, Austin, Lake Arrowhead, Folsom, Bozeman, along with Pompano Water District in Florida have implemented Dropcountr to address water conservation challenges. Denver Water launched the Dropcountr customer portal in June of 2017 and saw immediate traction. Within four weeks, 19% of the pilot subgroup had registered and within 16 weeks the number increased to 30% . A third -party analysis noted that Dropcountr users, on average, consumed 7.5% less water than non-Dropcountr users.
T
he following alternatives are presented for the Board of Directors’ consideration:
1. A
pprove a one- year agreement with Dropcountr to provide a water usage internet portal in the amount of $66,743; authorize the District Manager or his designee to extend the contract for four (4) one- year extension terms each in the amount of $56,743;
2. Aut
horize the District Manager or his designee to accept a one-time reimbursement, if deemed eligible, from Calleguas and the MWD in the amount of $33,371.50 to offset 50% of the costs for the first year of the system;
3. A
pprove the Supplemental Budget Request to increase the FY 2022-23 budget in the Waterworks operating fund (7614640-444490) by $27,743.
4. D
o not approve the A greement, Supplemental Budget Request , and District Manager delegation at this time and provide staff with an alternate direction.
S
taff recommends Alternatives No. 1, 2 and 3.
SUGGESTED BOARD MOTION
I
move to:
1. A
pprove a one-year agreement with Dropcountr to provide a water usage internet portal in the amount of $66,743; authorize the District Manager or his designee to extend the contract for four (4) one- year extension terms each in the amount of $56,743;
2. Aut
horize the District Manager or his designee to accept a one- time reimbursement, if deemed eligible, from Calleguas and the Metropolitan Water District in the amount of $33,371.50 to offset 50% of the costs for the first year of the system;
3. A
pprove the Supplemental Budget Request to increase the FY 2022-23 budget in the Waterworks operating fund (7614640-444490) by $27,743.
SUMMARY
T
he Board of Directors of the Ventura County Waterworks District No. 8 has declared a Stage IV Water Supply Shortage. Beginning in June of 2022, watering of non-functional turf is prohibited until further notice. The water district does not offer a system that enables 4 residential or business customers to view water usage. S taff is recommending the implementation of Dropcountr , a water usage internet portal that provides a mobile application, allowing Waterworks District No. 8 customers to track usage and conserve water, along with related recommended actions.
.
____________________________________
Carolyn Johnson
Administrative Services Director
Prepared by: Garry E. Boswell, Deputy AS Director/(Information Services)
INDEX Page
Dropcountr, Inc. Platform Services Agreement ........................................ ….5 1 4837-9934-8919\5
DROPCOUNTR, INC.
PLATFORM SERVICES AGREEMENT
Order Form
Utility:
Address:
Water Works District #8
2929 Tapo Canyon Rd.
Simi Valley, CA. 93065
Primary Contact:
Phone / Email:
Billing Contact:
Phone / Email:
Garry E. Boswell
(805)583‐6330
[email protected]
(8
05)583‐6785
[email protected]
S
t a r t D a t e : 9 / 1 / 2 0 2 2 I
n i t i a l S u b s c r i p t i o n T e r m : 1 Y e a r Optional Extension of Agreement: 4 Terms/ each term, 1‐Year.
Implementation Services One‐time Fee
Base Platform Implementation (Exhibit D Phases 1‐2) $10,000 Platform Services Subscription Plan Fee Per‐
Metered
Connection
Metered
Connections
Annual Fee
Base Platform: Subscription (Exhibit D Phase 3) $1.75 25,830 $4 5,203 Base Platform: Annual Maintenance AMI API (Neptune 360) NA NA $ 2,500 Irrigation INSIGHT (Annual) – OPTIONAL MODULE 25,830 $9,041 Initial Term $66,743
Base Platform: 1 year Term Extension (1) $56,743
Base Platform: 1 year Term Extension (2) $56,743
Base Platform: 1 year Term Extension (3) $56,743
Base Platform: 1 year Term Extension (4) $56,743
The
compensation payable to Dropcountr by City for services and subscription shall not exceed the sum of: $66,743 (the Not‐to‐Exceed Amount) for the initial term of this Agreement. Should City desire to exercise its option to extend the term of the Agreement, for four additional 1 year periods, the total not to exceed amount of this Agreement shall be $293,715.
This Order Form, together with the attached Dropcountr, Inc. Te rms of Service and other attachments listed below, form the Platform Services Agreement (“Agreement”) between Dropcountr, Inc., with an address of 40 E Rio Salado Parkway #535, Tempe, AZ 85281 (“Dropcountr”), and the customer identified above (“Utility”). This Agreement contains, among other things, warranty disclaimers, liability limitations and use limitations. This Agreement is effective upon signature of the parties. Utility’s subscription will begin on the sta rt date indicate d above or, i f later, on the date of signature. Any conflicting or additiona l terms in any purchase order or similar form not expressly incorporated into this Agreement will be without effect.
Attachments Made Part of Agreement
Exhibit A: Dropcountr, Inc. Terms of Service
E
xhibit B: Service Level Agreement
E
xhibit C: Support Terms
E
xhibit D: Statement of Work
Exhibit E: Insurance
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Dropcountr
By: __________________________________
Print Name: Rick Watkin
Title: President & Chief Executive Officer
Date:
By: __________________________________
Print Name: Lida Sadrazodi
Title: Chief Financial Officer
Date:
City of Simi Valley, A Municipal Corporation
Attest:
By: ___________________________________
Print Name: Keith L. Mashburn
Title: Chair of the Ventura County Waterworks
District #8
Date:
By: __________________________________
Print Name: Lucy Blanco
Title: District Secretary
Date:
Approved as to Form:
By: _________________________________
Print Name: David L. Caceres
Title: District Counsel
Date:
Approved as to Content:
By: _________________________________
Print Name: Brian Paul Gabler
Title: District Manager
Date:
By: _________________________________
Print Name: Carolyn Johnson
Title: Administrative Services Director
Date:
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EXHIBIT A
DROPCOUNTR, INC.
Terms of Service
(last updated March 26, 2020)
1. DEFINITIONS. A n y c a p i t a l i z e d t e r m s u s e d b u t n o t defined in these Dropcountr, Inc. Terms of Service (“Terms of Service” ) will have the meanings (if any) s p e c i f i e d i n t h e O r d e r F o r m o r S O W ( e a c h a s d e f i n e d below). In addition, the following definitions apply.
1.1. “Authorized User” means an individual employee of
Utility who has been assigned unique credentials to access and use the Platform Services, whether or not that individual is accessing or using the Platform Services at any particular time.
1.2. “CLEAR Platform ” means the Dropcountr water
analytics software platform designed for commercial use by water utilities.
1.3. “Customer” means a customer that has a water utility account serviced by Utility.
1.4. “Customer Data” means any data associated with
a Customer, including as may be inputted or uploaded to the Platform Services.
1.5. “Fees” means the Set‐up Fee and Subscription Fee.
1.6. “HOME Application” means Dropcountr’s end‐user
facing application that provides water usage and other information to customers of a water utility.
1.7. “Order Form” means the order form executed by Utility and Dropcountr that specifies the subscription plan being purchased by the Utility and incorporates these Terms of Service.
1.8. “Platform Services” means the CLEAR Platform and
HOME Application included in the Utility’s subscription plan, as specified in the Order Form and any SOW.
1.9. “SOW” means a statement of work or other service
addendum that may be agreed upon by the parties in reference to this Agreement, including as may be attached hereto as Exhibit D.
1.10. “Utility” means the water utility identified on the Order Form.
1.11. “Utility Data” means (i) Utility’s proprietary data, if any, that its Authorized Users upload or input into the CLEAR Platform or HOME Application, and (ii) as
applicable, Customer Data and other data obtained by Utility from third parties in connection with this Agreement.
2. PLAT
FORM SERVICES SUBSCRIPTION
2.1. Authorization. Subject to Utility’s compliance with the terms and conditions of this Agreement, including Utility’s obligation to pay all applicable Fees, Dropcountr will (i) permit Utility to access and use the CLEAR Platform, solely for Utility’s internal business purposes, and (ii) permit Utility to access and use the HOME Application, and to offer and make available the HOME Application to its Customers, in accordance w i t h a n y S O W o r r e l e v a n t Dropcountr end‐user documentation.
2.2. A u t h o r i z e d U s e r s . A u t h o r i z e d U s e r s m a y e x e r c i s e the rights granted to Utility hereunder on Utility’s behalf; provided, however, that Utility will ensure that all A u t h o r i z e d U s e r s c o m p l y w i t h t h e a p p l i c a b l e t e r m s a n d conditions of these Terms of Service, and Utility will be responsible for the Authorized Users’ acts or omissions in relation to the Platform Services as if they were Utility’s own acts or omissions. Authorized Users may not share their access credentials with any other individuals.
2.3. Service Capacity. Utility’s and its Authorized Users’ use of the Platform Services, and Utility’s right to offer and make available the HOME Application to its Customers, is limited to that number of metered connections indicated on the Order Form (the “Service Capacity”), and is subject to such other usage limitations as may be set forth therein or in the SOW.
2.4. Utility Responsibilities. Utility is responsible for (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with Utility’s account, (ii) all activities that occur with respect to Utility’s account, and (iii) its and its Authorized Users’ use of the Platform Services and compliance with this Agreement, SOW, Dropcountr’s relevant end user documentation, and all applicable laws, regulations, and rights of third parties.
Except for resources that Dropcountr expressly agrees to provide under the Order Form or SOW, Utility is responsible for procuring and maintaining all computer hardware and software, equipment, internet connectivity, and other ancillary services and resources necessary for it and its Aut hor ized Users to con nect to a n d make use of 7 4
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the Platform Services, and for ensuring the security of the foregoing.
2.5. Restrictions. Utility will not, and shall ensure that its A u t h o r i z e d U s e r s d o n o t : ( i ) c o p y , r e p r o d u c e , m o d i f y , decompile, disassemble, or reverse engineer the Platform Services or a n y associate d s oftware or ma terials (excep t t o t h e e x t e n t t h a t a p p l i c a b l e l a w p r o h i b i t s o r r e s t r i c t s reverse engineering restriction s ) ; ( i i ) e x c e p t a s e x p r e s s l y authorized herein with respect to making the HOME Application available to Customers, provide any third parties with access to any of the Platform Services, lease, distribute, sublicense, sell or otherwise commercially exploit the Platform Services, or use any of the Platform Services for time sharing or similar purposes for the b e n e f i t o f a n y t h i r d p a r t y; ( i i i ) r e m o v e a n y co p yr i gh t o r proprietary notices contained in the Platform Services or any output thereof; (iv) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security or authentication m easures provided or used by the Platform Services; (v) access the Platform Services via any bot, web crawler or non‐human user; (vi) access or use (or permit a third party to access or use) the Platform Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Platform Services or for any other benchmarking or competitive purposes; or (vii) upload or process any data or content that infringes the intellectual property rights, rights of privacy or publicity, or other proprietary rights of any third party, or that contains any malware, viruses, T r o j a n h o r s e s , s p y w a r e , w o r m s , o r o t h e r m a l i c i o u s o r harmful code.
2.6. Monitoring. Although Dropcountr has no obligation to monitor Utility’s or any Customer’s use of the Platform Services or any portion thereof, Dropcountr may do so and m a y p r o h i b i t a n y u s e o f t h e P l a t f o r m S e r v i c e s t h a t i t believes may be, or is reasonable likely to be, in violation of the provisions of Section 2.5.
2.7. Technical Support. Subject to the terms and conditions of this Agreement, Dropcountr will provide Utility with technical support services in accordance with the terms set forth in Exhibit C.
3. PLATFORM AND DATA SECURITY
3.1. Security Measures. Dropcountr will employ
commercially reasonable data security procedures and other safeguards to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of the Platform Services and any Utility Data or Customer Data stored on Dropcountr’s servers.
3.2. Notification. Dropcountr will use commercially reasonable efforts to promptly notify Utility of any material breach of security with respect to any Utility Data or Customer Data within 48 hours of such breach
4. IMPLEMENTATION
4.1. Implementation of Platform Services. Subject to Utility’s compliance with the te rms and conditions of this Agreement, including its obligations under this Section 4, Dropcountr shall use commercially reasonable efforts to promptly implement and make available the Platform Services to Utility and to provide such implementation services as may be set forth in any SOW (collectively, the “Implementation Services”).
4.2. Utility Obligations. To facilitate Dropcountr’s performance of the Implementation Services, Utility shall promptly provide to Dropcountr all information, resources and access as set forth on the Order Form or an applicable SOW, or as may be otherwise requested by Dropcountr in
its reasonable discretion. Additionally, Utility agrees to provide such further cooperation and assistance as Dropcountr may reasonably request from time to time.
Utility shall designate in writing an individual who will be Dropcountr’s primary point of contact for matters relating to the implementation of the Platform Services. The parties agree that Dropcountr shall not be liable for any failure to perform its obligations under this Agreement to the extent it is caused by a breach of this Section 4.2.
4.3. End User License Agreement. Utility acknowledges
t h a t a n y u s e o f o r a c c e s s t o t h e H O M E A p p l i c a t i o n , including by Utility and its Customers, is subject to the terms of Dropcountr’s then ‐current HOME End User License Agreement (the “EULA”), which must be accepted
by users prior to access.
5. TERM AND TERMINATION
5.1. D u r a t i o n a n d R e n e w a l . U n l e s s t e r m i n a t e d a s provided below, this Agreement will remain in effect throughout the initial subscription term specified in the Order Form (the “Initial Term).
5.2. Termination. A party may terminate this Agreement
for a material breach by the other party, which remains uncured more than 30 days aft er receiving written notice of the breach, except that, where such material breach is the nonpayment of Fees by Utility, Dropcountr may terminate upon 30 day notice. Either party may also terminate this Agreement immediately upon notice to the other party in the event that that Utility’s governing body does not appropriate funds to make the payments
hereunder in a Utility’s fiscal year budget.
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5.3. Effect of Termination. Upon the expiration or termination of this Agreement: (i) all rights and platform subscriptions granted to Utility under this Agreement will terminate and Utility will cease using any and all components of the Platform S ervices; (ii) Dropcountr will cease making the HOME Application accessible to
Customers; (iii) each party will, upon request, promptly return to the other party all Confidential Information of the other party in its possession or control; and (iv) Utility will, within thirty (30) days after receipt of Dropcountr’s invoice, pay all accrued and unpaid fees and expenses.
Upon any termination of this Agreement, Dropcountr will make all Utility Data and Customer Data on Dropcountr’s servers available to Utility for electronic retrieval for a period of thirty (30) days, but thereafter Dropcountr may, but is not obligated to, delete all such stored Utility Data or Customer Data.
5.4. Survival. The following provisions will survive expiration or termination of this Agreement: Sections 2.2,
2.4, 2.5, 4.2 (last sentence only), 5.4, 5.4, 6 (to the extent of any outstanding payments), 7, 8, 10, 11, 12, and 13.
6. FEES AND PAYMENT
6.1. Fees. In consideration for Dropcountr providing the Implementation Services and Platform Services, Utility shall pay to Dropcountr the corresponding fees set forth i n t h e O r d e r F o r m , w h i c h shall include a one‐time implementation fee (the “ Set‐up Fee”) and an annual subscription fee (the “Subscription Fee”). In the event Utility use of the Platform Services is in excess of the Service Capacity, Utility shall be billed for such additional usage and agrees to pay, upon invoice by Dropcountr and in the manner provided herein, such additional charges.
The total compensation payable to CONSULTANT by CITY
for services under this CONTRACT shall not exceed the sum of $293,715 (the “Not‐To‐Exceed Amount”), for the
initial Term and shall be earned as the work progresses.
Dropcountr acknowledges that Dropcountr is not
guaranteed to receive the Not‐To‐Exceed Amount.
6.2. Invoices; Payment. All Fees accruing hereunder will be billed in advance. The one‐time Set‐Up Fee will be billed on the Effective Date. The Subscription Fee will be first billed on the Effective Date, and thereafter will be billed annually on each annive rsary of the Effective Date occurring in the term of this Agreement. Dropcountr may choose to bill through invoices, in which case full payment for any invoice must be received by Dropcountr within thirty (30) days after the mailing date of such invoice.
Overdue payments will accrue interest at the rate of 1.5% per month or the highest rate of interest allowed by law, whichever is lower. Utility w ill further be liable for, and shall to pay to Dropcountr promptly upon demand, all expenses of collection. Failure to timely pay any amounts due hereunder may result in immediate termination of the Agreement.
6.3. Taxes. The Fees and any other charges specified in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “ Taxes”). Utility shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on
Dropcountr’s net income.
7. OWNERSHIP
7.1. Dropcountr IP. As between Dropcountr and Utility,
Dropcountr shall own all right, title and interest in and to (i) the Platform Services and all software and other technologies embodied in or used to provide the Platform Services, including all improvements, enhancements, or modifications thereto, (ii) any updates, improvements, enhancements, derivative works, other materials,
p r o c e s s e s , o r k n o w ‐ h o w b a s e d o n o r r e l a t i n g t o t h e Platform Services, or as otherwise may be utilized or created by Dropcountr in performance of its obligations hereunder, and (iii) all intellectual property rights relating to any of the foregoing. If Dropcountr performs any development work in relation to the Platform Services, w h e t h e r o r n o t p u r s u a n t t o a S O W , a n d i n c l u d i n g a n y customizations or modifications that Dropcountr may make in response to Utility’s requests or suggestions, Dropcountr solely retains all intellectual property rights arising from such development work.
7.2. Utility Data. As between Dropcountr and Utility, the Utility Data, and all intellectua l property rights therein or relating thereto, are and sh all remain the exclusive property of Utility.
7.3. Customer Data. Utility agrees to (i) obtain all third‐ party consents or approvals that may be necessary for the collection, use and transmission of the data, including Customer Data and Utility Data, sent to or used in the operation of the Platform Services and for all of Dropcountr’s activities contemplated by this Agreement in relation to such data; and (ii) comply with all applicable laws and regulations with respect to Utility’s use of the Platform Services and provision of data with respect thereto, including without limitation those pertaining to privacy, data security, and publicity. As between Utility and Dropcountr, Utility will be solely responsible for the foregoing matters, and Utility will indemnify Dropcountr for any liability arising from its failure to comply with this Section 7.3.
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7.4. Use of Utility Data. Notwithstanding anything herein or in the Order Form or any SOW to the contrary, Utility grants to Dropcountr the perpetual right to, among other things, examine, use, extract, model, manipulate, collate, analyze, create analysis using, reproduce and otherwise use any data ( including Utility Data and Customer Data) or other information which it learns, acquires or obtains in connection with the performance of its obligations hereunder, with in the scope of its regular business operations, including developing or operating data sets, algorithms or other analytical tools, or testing, implementing, integrating, developing or improving its products and services, and distributing or otherwise making available Dropcountr products and services to its customers.
7.5. Feedback. To the extent that Utility provides Dropcountr with any sugges tions, feature requests, evaluation results, feedback, or other input in relation to any aspect of the Platform Services (collectively, “Feedback”), Utility hereby assigns and agrees to assign to D r o p c o u n t r a l l r i g h t , t i t l e a n d i n t e r e s t i n a n d t o s u c h Feedback, including any intellectual property rights therein, and agrees that Dropcountr will be free to use such Feedback in any manner, including by implementing
such Feedback in the Platform Services and/or
Dropcountr’s other technologies, products and services, without compensation or other obligations to Utility.
8. CONFIDENTIALITY
8.1. Obligations. “Confidential Information ” means
(subject to the exclusions below) any non‐public
information relating to or disclosed in the course of the Agreement that should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly granted under this Agreement. Except as otherwise provided herein, including with respect to Dropcountr’s use of Utility Data and Customer Data consistent with Section
7.4, the receiving party will promptly return or destroy the other party’s Confidential Information upon request.
8.2. Exclusions. Confidential Information does not
include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of th e receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without
violation of this Section 8; or (iv) information that is subject to disclosure pursuant to California Public Records Act (Gov’t Code Section 6250 et.seq) and Federal law. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protec t the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
9. SERVICE LEVEL AGREEMENT. If Utility’s subscription includes service‐level commitments, and the Order Form
or SOW accordingly specifies that Dropcountr’s Service Level Agreement is part of this Agreement, Utility will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached hereto as Exhibit B. The remedies expressly provided in the Service Level Agreement are Utility’s sole and exclusive remedy, and Dropcountr’s entire obligation, with respect to any service‐level violation.
10. DISCLAIMER.
10.1. Data Accuracy. The parties acknowledge and agree that the quality, accuracy and completeness of results o b t a i n e d f r o m t h e u s e o f t h e P l a t f o r m S e r v i c e s i s dependent upon the quality, accuracy and completeness
of available data, including Utility Data and Customer Data and other data that may be provided by third parties.
U n l e s s o t h e r w i s e a g r e e d t o i n t h e O r d e r F o r m o r S O W , Utility shall be solely responsible for providing or otherwise securing from third parties (including AMI Vendors, as defined in Exhibit D) all data necessary for the proper operation of the Platform Services.
Notwithstanding the foregoing or anything herein to the contrary, Dropcountr shall have no obligation or liability whatsoever with respect to any error, incompleteness or other deficiencies with respect to such data obtained from Utility or any third party, or any results generated by the Platform Services on the basis thereof.
10.2. E X C E P T A S E X P R E S S L Y P R O V I D E D F O R I N T H I S AGREEMENT (AND WITHOUT LIMITING REMEDIES TO
WHICH UTILITY MAY BE ENTITLED UNDER THE SERVICE
LEVEL AGREEMENT, IF A PPLICABLE), DROPCOUNTR
H E R E B Y D I S C L A I M S , T O T H E M A X I M U M E X T E N T PERMISSIBLE UNDER APPLICABLE LAW, ANY AND ALL
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE
PLATFORM SERVICES AND IMPLEMENTATION SERVICES,
INCLUDING WITHOUT LIMITATION THOSE OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON‐INFRINGEMENT AND THOSE ARISING FROM
C O U R S E O F D E A L I N G , C O U R S E O F P E R F O R M A N C E A N D 10 7
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TRADE USAGE. DROPCOUNTR DOES NOT REPRESENT
THAT UTILITY’S OR ANY CUSTOMER’S USE OF THE
PLATFORM SERVICES WILL BE SECURE, TIMELY,
UNINTERRUPTED OR ERROR‐FREE, OR THAT THE
PLATFORM SERVICES WILL MEET UTILITY’S OR ANY
C U S T O M E R ’ S R E Q U I R E M E N T S , O R T H A T A L L E R R O R S I N THE PLATFORM SERVICES WILL BE CORRECTED OR THAT
THE SYSTEM THAT MAKES THE PLATFORM SERVICES
AVAILABLE WILL BE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY
P R O V I D E D F O R I N T H I S A G R E E M E N T ( A N D W I T H O U T LIMITING REMEDIES TO WHICH UTILITY MAY BE ENTITLED
UNDER THE SERVICE LEVEL AGREEMENT, IF APPLICABLE),
THE PLATFORM SERVICES AND IMPLEMENTATION
SERVICES ARE PROVIDED TO UTILITY ON AN “AS IS” AND
“ A S A V A I L A B L E ” B A S I S A N D A R E F O R I N T E R N A L COMMERCIAL USE ONLY. UTILITY ASSUMES ALL
R E S P O N S I B I L I T Y F O R D E T E R M I N I N G W H E T H E R T H E PLATFORM SERVICES ARE ACCURATE OR SUFFICIENT FOR
UTILITY’S PURPOSES.
11. INDEMNIFICATION. Utility will indemnify, defend and hold harmless Dropcountr, its affiliates, managers, directors, employees, representatives, and agents, against any damages awarded by a court in connection with claims, demands, suits or proceedings made or brought by a third party arising from or r e l a t e d t o ( i ) a n y m a t e r i a l breach by Utility of this Agreement, (ii) the Utility Data, Customer Data, or any other data provided or made available by Utility hereunder, (iii) Utility’s or any Customer’s use of the Platform Services in violation of this Agreement, EULA, or any applicable Dropcountr end‐user
documentation, or (iv) any failure by Utility to comply with any applicable laws, regulations, or rights of third parties, t h a t a r i s e o u t o f p e r t a i n t o , o r r e l a t e t o t h e n e g l i g e n c e , recklessness, or willful misconduct of Utility, affiliates, managers, directors, employees, representatives, and agents
12. LIMITATION OF LIABILITY
12.1. Wavier of Certain Damages. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, BUT EXCEPT WITH RESPECT
T O A N Y B R E A C H O F T H E P A R T I E S ’ O B L I G A T I O N S U N D E R SECTION 8 OR BREACH OF UTILITY’S OBLIGATIONS UNDER
SECTION 2.5, AND WITHOUT LIMITING UTILITY’S
OBLIGATIONS UNDER SECTION 11, NEITHER PARTY SHALL
BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT,
S P E C I A L , P U N I T I V E O R O T H E R D A M A G E S , O R F O R L O S T PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR
INFORMATION, OR COSTS OF PROCURING SUBSTITUTE
GOODS OR SERVICES, ARISING OUT OF THIS AGREEMENT
O R T H E U S E O F O R I N A B I L I T Y T O U S E T H E P L A T F O R M SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. Liability Cap. EXCEPT FOR INJURY OR DEATH, THE TOTAL LIABILITY OF Dropcountr FOR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT
EXCEED THE AMOUNT OF FEES PAID BY UTILITY TO
D r o p c o u n t r U N D E R T H I S A G R E E M E N T I N T H E T W E L V E MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING
RISE TO SUCH LIABILITY.
13. MISCELLANEOUS
13.1. Assignment. Utility may not assign this Agreement without Dropcountr’s prior written consent, which will not be unreasonably withheld. Any attempt by Utility to assign this Agreement, without such consent, will be null and of n o e f f e c t . S u b j e ct t o t h e f o r e go i n g , t h i s A gr e e m e n t w i l l bind and inure to the benefit of each party’s successors and permitted assigns.
13.2. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non‐payment of amounts owing) due to causes beyond its reasonable control.
13.3. Export Compliance. Utility agrees to comply fully with all relevant export laws and regulations of the United S t a t e s a n d o t h e r a p p l i c a b l e j u r i s d i c t i o n s t o e n s u r e t h a t neither the Platform Services, nor any direct product thereof, are: (i) exported or re‐exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations.
13.4. Government Rights. If Utility is the U.S. government or any agency or other division thereof, Dropcountr’s services are furnished under this Agreement as a "commercial item," as that term is defined and used in the U.S. Code of F ederal Regulat ions (48 C.F.R. § 2.101) a nd other applicable regulations, and the government’s rights w i t h r e s p e c t t o t h e s e r v i c e s ( a n d t o a n y a s s o c i a t e d software, technical data or other materials) are limited to those expressly granted in this Agreement.
13.5. Severability. If any part of this Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
13.6. Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
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13.7. Notices. All notices permitted or required under this Agreement shall be in wr iting, will reference this Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified ma i l , p o s t a g e p r e p a i d , o r b y confirmed email delivery, to the address of the party specified on the Order Form or such other address as e i t h e r p a r t y m a y s p e c i f y i n w r i t i n g . S u c h n o t i c e s h a l l b e deemed to have been given upon receipt.
13.8. Governing Law. Jurisdiction is in an appropriate court in the State of California and venue lies in Ventura County, and the parties do not consent to arbitration. In the event of any dispute, each party shall bear its own fees and costs (including attorneys’ fees). This CONTRACT shall be governed by California law, without regard to conflict of law principles.
13.9. Entire Agreement. Any amendment or modification
to the Agreement must be in writing signed by both parties. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.
13.10. Counterparts. This Agreement may be executed
in counterparts, including by electronic transmission, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
13.11. Insurance. . Dropcountr shall, at CONSULTANT’S
sole cost and expense, provide insurance as contained in Exhibit “E”, incorporated herein. CONSULTANT shall not commence work on the Services to be performed, until it submits proof of all insurance coverage as required.
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EXHIBIT B
Service Level Agreement
This Service Level Agreement (“SLA”) pertains to the Platform Services Agreement to which it is a ttached between Dropcountr and Utility. All capitalized terms not defined herein shall have the meanings given to them in the Platform Services Agreement.
Scheduled Maintenance
Dropcountr may conduct maintenance and upgrades at any time upon forty‐eight (48) hours’ notice to Utility (“Scheduled Maintenance”), which may cause the Platform Services to be temporarily unavailable. If Dropcountr anticipates that downtime will occur during any Scheduled Maintenance, Dropcountr will use commercially reasonable efforts to notify Utility in advance. Dropcountr will use commercially reasonable efforts to perform all Scheduled Maintenance during non‐peak hours in an effort to limit disruption to Utility. Notwithstanding the foregoing, Dropcountr shall not be required to give advance notice of, or delay to non‐peak hours, any maintenance required to address critical time‐ sensitive issues, where waiting to perform maintenance may pose a risk to Dropcountr’s platforms, systems, or data.
Service Availability
Dropcountr will use commercially reasonable efforts to make the Platform Services available 99.9% of the time as measured on a monthly basis, excluding downtime for Scheduled Maintenance.
Service Credits
For any month in which the service availability (calculated as described above) falls below the commitment of 99.9%, Dropcountr will owe Utility an availability credit in accordance with the schedule below:
Service Availability % of Imputed Monthly Fee to be
Credited Against Next Monthly Fee**
99.9% or greater 0%
99.5% up to 99.9% 5%
99.0% up to 99.5% 10%
98.0% up to 99.0% 20%
97.0% up to 98.0% 30%
95.0% up to 97.0% 40%
Less than 95.0% 50%
** Credit will be calculated by (a) dividing the annual Subscription Fee paid by 12 months; and (b) applying the indicated percentage to the resulting imputed monthly fee.
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EXHIBIT C
Support Terms
These Support Terms pertain to the Platform Services Agreement to which it is attached between Dropcountr and Utility. All capitalized terms not defined herein shall have the meanings given to them in the Platform Services Agreement.
Technical Support
Dropcountr will provide technical support to Utility via email during weekdays between 8:00am and 5:00pm Pacific Time, with the exclusion of Federal Holidays (“Support Hours”).
Utility may initiate a helpdesk ticket during Support Hours by emailing [email protected].
Dropcountr will use commercially reasonable efforts to respond to all helpdesk tickets within two (2) business days.
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EXHIBIT D
Statement of Work
This Statement of Work (“SOW”) pertains to the Platform Services Agreement to which it is attached between Dropcountr and Utility. All capitalized terms not defined herein shall have the meanings given to them in the Platform Services Agreement.
This SOW includes three key phases: (1) Program Setup, (2) Program Implementation and (3) Program Management.
Program Setup (Phase 1)
Data Transfer
Dropcountr will engage with Utility staff to review and select from among Dropcountr’s preferred data specification, format, transfer interval, and transfer options.
Dropcountr will ingest up to two (2) years of Customer Data, including hourly usage data, to develop historical trends and spatial comparisons for water usage. Dropcountr will ingest up to five (5) years of Customer Data, if the usage data interval is monthly or less. Customer Data shall include, but may not be limited to, account information, account type, and rebate program participation.
If Utility has contracted with an Advanced Meter Infrastructure vendor which can provide Dropcountr with secure access to Customer usage data via API (“AMI Vendor”), Dropcountr will coordinate with the AMI Vendor to receive hourly usage data, leak flags, and other relevant data that supports the SOW.
Training and Pre‐Launch Testing
Dropcountr will create Authorized User accounts for Utility’s access and use of the Platform Services.
Utility is entitled to an unlimited number of Authorized User a ccounts, and each account may have different administrative privileges due to differences in Authorized User roles and authority.
Using actual Customer Data, Dropcountr will conduct initial Authorized User training on the Platform Services using Zoom or a similar online webinar application. Training conducted using relevant Customer Data increases the efficacy of training, and also allows for QA/QC of data prior to public launch.
Detailed training materials will be provided to Utility, and are accessible online at any time. These materials include product guides, GIF tutorials, answers to frequently asked questions, and project manager contact information.
Marketing Outreach Consultation
Where permitted to do so, Dropcountr will provide recommendatio ns and examples of marketing outreach campaigns used by other Dropcountr utility accounts. Dropcountr also grants to Utility, during the term of the Platform Services Agreement and for the sole and exclusive purpose of supporting Utility’s internal outreach efforts, a limited, revocable, non‐transferable (except as otherwise expressly agreed to in writing by Dropcountr), non‐exclusive licenses to use, modify and display such key 15 12
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Dropcountr image assets and copy (e.g. event brochures, bill stuffers, webpage placement) as Dropcountr may provide to Utility from time to time, including as the same may include Dropcountr trademarks, trade names, services marks and logos (collectively, “Dropcountr Materials”). All use of Dropcountr Materials by Utility shall be in accordance with such trademark use and other policies as may be provided to Utility by Dropcountr from time to time, and subject to Dropcountr review and approval.
Program Implementation (Phase 2)
Email Marketing Engagement
Using Customer email and other contact information provided by Utility, Dropcountr will conduct three (3) Customer email campaigns.
These campaigns will consist of unique, account‐specific emails which summarize monthly water use, provide a social norms‐based comparison, present a call to action to sign up for the Dropcountr HOME program, and legitimize the relationship between Utility and Dropcountr. Each email will include the account name and account number for Customer convenience, and a direct link to the Dropcountr sign‐ up page.
Program Management (Phase 3)
Status Meetings
In order to ensure that the project remains on track, and to provide ample opportunity for feedback and insight from Utility, Dropcountr anticipates conducting bi‐mont hly status meetings. These meetings may be held by phone or webinar.
Supplemental Training
The Dropcountr project manager will provide supplemental traini ng to Utility as reasonably requested, or when material updates to Platform Services are developed and deployed.
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1. Exhibit E - Insurance Requirements
Dropcountr shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Dropcountr, its agents, representatives, or employees. Dropcountr shall procure and maintain for the duration of the contract insurance claims arising out of their professional services and including, but not limited to loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data.
Minimum Scope and Limit of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Offic e Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injur y with limits no less than $2,000,000 per occurrence. If a general aggregate limit ap plies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insuranc e Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Dropcountr has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insuranc e as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Dropcount r hereby certifies that it is aware of the provisions of Section 3700 et seq., of the L abor Code which require every employer to be insured against liability for Workers' Compensation.
4. Technology Professional Liability Errors and Omissions Insur ance appropriate to the Dropcountr’s profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Dropcountr in this agreemen t and shall include, but not be limited to, claims inv olving infringement of intelle ctual property, copyright, trademark, invasion of privacy violations, information theft, r elease of private information, extortion and network security. The policy shall p rovide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. a. The Policy shall include, or be endorsed to include, propert y damage liability coverage for damage to, alterati on of, loss of, or destruction of electronic data and/or information “property” of the City in the care, custody, or control of the Dropcountr. If not covered under the Dropcountr’s liability pol icy, such “property” coverage of the City may be endorsed onto the Dropcountr’s Cyber Liability Policy as covered property as follows:
b. Cyber Liability coverage in an amount sufficient to cover the full replacement value of damage to, alteration of, loss of, or destruction of electronic data and/or 17 14
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information “property” of the City that will be in the care, cu stody, or control of Dropcountr.
c. No representation is made that the minimum Insurance requir ements of this agreement are sufficient to cover the indemnity or other obliga tions of the Dropcountr under this agreement.
Other Insurance Provisions - The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City of Simi Valley, its Boards, Officers, Agents, Officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Dropcountr including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Dropcountr’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this project/contract, the Dropcountr’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City of Simi Valley, its Boards, Officers, Agents, Officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its Boards, Officers, Agents, Officials, employees, and volunteers shall be excess of the Dropcountr’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide 30 days prior written notice to the City for any reason other than non-payment of premium in which a ten day notice shall apply.
Waiver of Subrogation
Dropcountr hereby grants to City a waiver of any right to subrogation which any insurer of said Dropcountr may acquire against City by virtue of the payment of any loss under such insurance. Dropcountr agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Dropcountr, its employees, agents and sub contractors.
Cyber Liability Insurance
Limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
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undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
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Self-Insured Retentions
Self-insured retentions must be declared to the City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced wit h another claims-made policy form with a Retroactive Date prior to the contract effective, or start of work date, the Dropcountr must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work.
Verification of Coverage
Dropcountr shall furnish the City with original Certificates of Insurance including all blanket endorsements before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Dropcountr’s obligation to provide them. The City reserves the right to review endorsements required by these specifications, at the Dropcountr’s most proximate place of business.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
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