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HomeMy WebLinkAbout11-07-16 CC Mtg - C9. PSA with FATHOM for Water Data Management Commission Memorandum Report To: Honorable Mayor and City Commission From: Lain Leoniak, Water Conservation Specialist Craig Woolard, Director of Public Works Subject: Professional Services Contract with FATHOM, Water Management Inc. Meeting Date: November 7, 2016 Agenda Item Type: Consent Item Recommendation: Authorize the City Manager, or his designee, to sign a Professional Services Agreement with FATHOM Water Management Inc., to approve the development and implementation of a customized web-based water customer presentment and software package to empower City of Bozeman water customers to control water usage by providing easy access to individual water usage data in order to achieve the water conservation goals set forth in the Integrated Water Resources Plan (IWRP). Background: The City of Bozeman seeks approval to enter into an agreement with FATHOM Water Management Inc., a firm that has the skills and expertise to educate residential water customers about their individual water usage and how they compare to those in their area in terms of average and efficient usage. It also provides key support for the Water and Sewer Operations and Customer Service Representatives regarding alerting customers of leaks and high flows in real time. Alternatives: As suggested by the Commission. Fiscal Effects: The cost of Year One of the contract is $48,000.00. The cost of Year Two of the contract is $36,000.00. Attachments: Professional Services Agreement with Exhibits. 84 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 1 of 22 OHSUSA:765354058.2 SOFTWARE AS A SERVICE AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 2016, by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, FATHOM Water Management Inc., 21410 N. 19th Avenue, Phoenix, Arizona, 85027, hereinafter referred to as “FATHOM” or “Contractor.” WHEREAS, FATHOM owns and operates certain proprietary software, technology, and infrastructure, known as “FATHOM” for the support and optimization of regulated water and wastewater utility management. WHEREAS, City wishes to access and use the FATHOM Platform (defined in Exhibit B) on a Software as a Service (“SaaS”) basis for its utility services and to receive training from FATHOM on the use of the FATHOM Platform, and FATHOM is willing to grant such access and provide such training subject to the terms and conditions set forth herein. The terms utilized in this Agreement are defined in Exhibit B. In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as “Exhibit A” and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate two (2) years after the date the subscription product and services are available to City’s end users. (“Initial Term”), unless earlier terminated as set forth herein. Notice of the availability of the products and services to City’s end users shall be submitted in writing at least one week before the date of availability. 3. Scope of Work: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services set forth in Exhibit A attached and incorporated herein by reference. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. The Scope of Services will include the provision of access to and use of certain hosted software, which will be made available pursuant to the terms attached hereto as “Exhibit B.” 4. City’s Representations: a. City agrees to pay Contractor the amount specified in the Scope of Services pursuant to Exhibit A. Any alteration or deviation from the described services that involves 85 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 2 of 22 OHSUSA:765354058.2 additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. b. City will be responsible for obtaining and maintaining at its expense all the necessary computer hardware, software, modems, connections to the internet and other items required for Licensee’s access and use of the FATHOM Platform, Website, and User Interface. c. City shall provide the Licensee Content as mutually agreed upon between the parties. 5. Contractor’s Representations: Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor will host and maintain the Service in accordance with the Service Level Agreement attached hereto as “Exhibit C.” i. FATHOM will host and maintain the FATHOM Platform on servers operated and maintained by or at the direction of FATHOM or otherwise. FATHOM may in its sole discretion modify, enhance or otherwise change the FATHOM Software. ii. FATHOM will host and maintain the User Interface, and may provide City access to the User Interface pursuant to a password protected user account. FATHOM reserves the right to periodically change issued passwords. FATHOM will provide prompt notice to Licensee of any such password changes. iii. FATHOM will provide all services and products set forth in this Agreement. c. Contractor has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. d. “City Data” means water meter data and any other data provided by City for purposes of this Agreement. The parties agree that as between them, all rights including all intellectual property rights in and to City Data shall remain the exclusive property of City. Contractor shall have a limited, nonexclusive license to use City Data as provided in this Agreement solely for purposes of performing its obligations hereunder. This Agreement does not give a party any right, implied or otherwise, to the other’s data, content, or intellectual property, except as expressly stated in this Agreement. 86 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 3 of 22 OHSUSA:765354058.2 e. During the term of this Agreement, Contractor shall maintain a formal security program materially in accordance with industry standards that is designed to: i. ensure the security and integrity of the Data; ii. protect against threats or hazards to the security or integrity of the Data; and iii. prevent unauthorized access to the Data. Such security program will conform to industry standards, and will be no less materially protective than the security measures described in Contractor’s most recently completed SSAE 16 Type II Service Organization Control 1 (SOC1) audit reports or industry-standard successor reports. Upon request, Contractor will provide the City a copy of the most current audit report. f. Contractor will use City Data only for the purpose of fulfilling its obligations under this Agreement, and will not share such data with or disclose it to any third party without the prior written consent of the City or as otherwise required by law. g. Contractor will take commercially reasonable methods, including regular data integrity audits, to protect the City Data against deterioration or degradation of data quality. h. Contractor may process and store the City Data only in the United States. Contractor shall provide City with prior written notice of any proposed changes to the locations where the City Data is processed or stored, and such changes shall be subject to City’s prior written approval. i. Contractor will (i) immediately notify the City of any subpoenas, warrants, or other legal orders, demands or requests seeking the City Data; (ii) consult with the City regarding Contractor’s response; (iii) reasonably cooperate with the City in connection with efforts by the City to contest the legal order, demand or request, at the City’s expense; and (iv) upon the City’s request, provide the City with a copy of Contractor’s response. j. Immediately upon becoming aware of a data breach, or of circumstances that may have resulted in unauthorized access to the City Data, Contractor will notify City, fully investigate the incident, and report to the City with a plan to mitigate any damage caused by the incident. k. At all times during the term of this Agreement, Contractor will maintain a disaster recovery plan for the FATHOM Platform (as defined in Exhibit B) and its operations (the “Disaster Recovery Plan”). The Disaster Recovery Plan shall be tested and reviewed by Contractor on at least an annual basis and Contractor shall remedy the cause of any failures revealed by such tests promptly in light of the severity of the failure. The Contractor will notify the City upon any material modification to the Disaster Recovery Plan. In the event Contractor moves the City’s production environment of the FATHOM Platform from a production data center to a disaster recovery data center, Contractor will promptly (and in all cases within 24 hours) inform the City of such move, and will provide the City with reasonable support to confirm that the City and Contractor are able to establish appropriate connectivity to the disaster recovery data center. 87 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 4 of 22 OHSUSA:765354058.2 6. Warranties FATHOM warrants that: (i) the software will perform according to Contractor’s documentation and this Agreement; (ii) that the software documentation is complete and accurate; (iii) the FATHOM Platform will substantially conform to all applicable documentation and agreements; and (iv) the Services will be performed in a professional and workmanlike manner in accordance with industry best practices.(v) Contractor will perform work in accordance with applicable law; (vi) Contractor will not share or disclose City data in any manner to a third party without first obtaining the City’s prior written consent; the software will be free from viruses and other destructive code; (vii) Neither the software nor the use of Contractor’s services will infringe the patents, copyrights or other intellectual property rights of any third party. 7. Disclaimers. Except as provided in this Section and the Agreement, and to the maximum extent permitted by applicable law, the FATHOM Platform and all related information, technology, and services provided by or on behalf of FATHOM are provided “as is,” “as available,” and without any representations or warranties of any kind, express or implied, and FATHOM expressly disclaims any implied warranties of merchantability, fitness for a particular purpose In addition, FATHOM does not warrant that access to the FATHOM Platform will be uninterrupted or error free, that the FATHOM Platform will meet City’s or Customers’ needs, or that data will not be lost. Any content downloaded or otherwise obtained through the use of the FATHOM Platform is downloaded at City’s and Customers’ own risk 8. Ownership. a. FATHOM’s Ownership Rights. Subject only to the limited license expressly granted under these Terms, FATHOM shall retain all right, title, and interest in and to the FATHOM Platform (and all parts thereof, excluding City Content) and FATHOM Data, and all Intellectual Property Rights therein. Nothing in these Terms will confer on City or Customers any right of ownership or interest therein. To the extent City has or obtains any right, title, or interest in the FATHOM Platform (or any part thereof, excluding City Content) or the FATHOM Data, City hereby assigns, and agrees to assign, without further consideration, to FATHOM all such right, title, and interest City may have or obtain. b. City’s Ownership Rights. Subject only to the limited license expressly granted hereunder, as between City and FATHOM, City shall retain all right, title and interest in and to the City Content, and all Intellectual Property Rights therein. Nothing in these Terms will confer on FATHOM any right of ownership or interest in the City Content, or the Intellectual Property Rights therein. 9. License Grants; Restrictions. a. License from FATHOM. Subject to the terms and conditions of these Terms, FATHOM hereby grants City a limited, personal, non-transferable license during the Term to grant to it and its Customers and end users the rights to: (i) access and use the Software and FATHOM Content via the FATHOM Platform solely in the manner contemplated by these Terms; (ii) use the FATHOM Data solely as necessary to use the features and functionality of the FATHOM Platform; (iii) access and use the User Interface as may be required to use the Software and FATHOM Content via the 88 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 5 of 22 OHSUSA:765354058.2 FATHOM Platform; and (iv) permit Customers to exercise the rights set forth above in subsections (i) through (iii) (inclusive). b. License to FATHOM. City hereby grants FATHOM a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, electronically distribute, transmit, have transmitted, display, store, archive, and make derivative works of the City Content in order to provide the FATHOM Platform to the City and its Customers. FATHOM may not sublicense or resell the City Content or any component thereof. c. License Restrictions. City shall not, and shall not permit any third party, including without limitation any Customer, to: (i) use the FATHOM Data or the FATHOM Platform (or any part thereof) except to the extent permitted in Section 9(A); (ii) modify or create any derivative work of any part of the FATHOM Data or the FATHOM Platform without written approval; (iii) market, sublicense, publish, distribute, reproduce, resell, assign, transfer, rent, lease, or loan the FATHOM Data or the FATHOM Platform (or any part thereof); (iv) reverse engineer, disassemble, or otherwise attempt to gain access to the source code of all or any portion of the FATHOM Platform; or (v) use the FATHOM Data or the FATHOM Platform (or any part thereof) for commercial time-sharing or service-bureau use. d. Use of City Data. Notwithstanding anything to the contrary in these Terms, FATHOM may use City Data for the purposes of: (i) providing the FATHOM Platform and the Services to City and its Customers; (ii) for FATHOM’s internal research and development purposes; (iii) enforcing its rights under these Terms; and (iv) on an aggregated and anonymized basis, create FATHOM Data provided that FATHOM explains how the data will be used and receives written permission City prior to the use of all said aggregated and anonymized data. e. Reservation of Rights. FATHOM reserves all rights to the FATHOM Data and the FATHOM Platform (and all parts thereof) not otherwise expressly granted in this Section 9. 10. Support and Training Services. a. Implementation Support. FATHOM will provide the implementation support services set forth in Exhibit A. b. General Support. FATHOM will provide the general support services set forth in Exhibit A. 11. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and 89 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 6 of 22 OHSUSA:765354058.2 employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 12. Indemnity/Waiver of Claims/Insurance: To the fullest extent permitted by law, Contractor agrees to defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all third-party claims, demands, actions, fees and costs (including reasonable attorney’s fees and court costs), losses, expenses, liabilities or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from a third-party suit, proceeding, or action arising from: (i) the negligent, reckless, or intentional misconduct of the Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. Contractor shall defend, indemnify, and hold harmless the City from and against any third- party claims, demands, actions, fees and costs (including reasonable attorney’s fees and court costs), losses, expenses, liabilities or damages of whatever kind alleging that the authorized use of the FATHOM Platform under this Agreement infringes, misappropriates or violates any intellectual property right of a third party. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In connection with the indemnification obligations set forth herein, the indemnifying party’s indemnification obligations will be conditioned upon the indemnified party providing the indemnifying party: (a) written notice of any claim for which indemnification is sought within thirty (30) days; (b) sole control over the defense and settlement of the claim (provided that any settlement that places any material obligation on the indemnified party or requires an admission of liability from such indemnified party shall require such indemnified party’s prior written approval, not to be unreasonably withheld, conditioned, or delayed); and (c) reasonable cooperation, at the indemnifying party’s request and expense, in such defense and settlement. 90 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 7 of 22 OHSUSA:765354058.2 a. Remedies. In the event any portion of the FATHOM Platform is held or believed by FATHOM, or any portion of the City Content is held or believed by the City, to infringe intellectual property rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the FATHOM Platform is used or accessed, then in addition to any other rights in this Section 12, FATHOM (where the Infringing Materials are the FATHOM Platform) or City (where the Infringing Materials are the City Content) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate these Terms. b. Sole Remedy for Intellectual Property Violations. This Section 12 contains each party’s sole and exclusive remedy, and each party’s entire liability, with respect to infringement or alleged infringement of third party Intellectual Property Rights relating to the FATHOM Platform and the subject matter of these Terms. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City and Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: i. Workers’ Compensation – statutory; ii. Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; iii. Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; iv. Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate; and v. Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable 91 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 8 of 22 OHSUSA:765354058.2 to City and shall include no less than a thirty (30) day notice of cancellation or non- renewal. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 13. Confidentiality. a. During the Term each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in these Terms, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. b. Notwithstanding the foregoing, the obligations set forth in this Section 13 shall not apply with respect to any information to the extent that it is: (A) (B) is already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (C) is approved in writing by the disclosing party; (D) is required to be disclosed by applicable legal authority provided that, if practicable, adequate notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure; or (E) is independently developed by either party without use of the Confidential Information from the other party. 14. Force Majeure. Other than for payment of money, a party shall be excused from any delay or failure in performance hereunder due to any labor dispute, government requirement, internet congestion or breakdown, or any other cause beyond its reasonable control. Such party shall use commercially reasonable efforts to cure any such failure or delay in performance arising from such a condition, and shall timely advise the other party of such efforts. 15. a. Termination for Cause: i. If a party refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise materially breaches any terms or conditions of this Agreement, the other party may, by written notice, terminate this Agreement, effective immediately, if the other party has failed to cure such material breach or default within thirty (30) days 92 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 9 of 22 OHSUSA:765354058.2 of its receipt of a written notice describing the breach or default in reasonable detail and demanding a cure. ii. In the event of a termination pursuant to this Section 15, Contractor shall be entitled to payment only for those services Contractor actually rendered. iii. Any termination provided for by this Section 15 shall be in addition to any other remedies to which the terminating party may be entitled under the law or at equity. b. Termination for City’s Convenience: i. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. ii. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. iii. In the event of a termination pursuant to this Section 15, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. iv. The compensation described in Section 15.b(iii) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. v. Upon termination or expiration of this Agreement, Contractor will ensure that all City Data is transferred to the City or a third party designated by the City securely, within a reasonable period of time, and without significant interruption in service, in the format specified by the City at the time of termination or expiration of this Agreement. Contractor will ensure that the City will have reasonable access to the City Data during the transition. 16. Limitation on Damages: a. In the event of a claim for damages by a party under this Agreement, each party’s damages shall be limited to contract damages and each party hereby expressly waives 93 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 10 of 22 OHSUSA:765354058.2 any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. Each party’s aggregate liability under this Agreement shall in no event exceed the amounts paid by City to Contractor hereunder in the twelve (12) months preceding the event that gave rise to the liability. c. The foregoing limitations set forth in this Section 16 shall not apply to the following: (i) a party’s breach of its confidentiality obligations; or (ii) a party’s negligence, gross negligence, willful misconduct, or fraud or (iii) a party’s indemnification obligations under Section 12. 17. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Lain Leoniak (Water Conservation Specialist) or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to Lain Leoniak as the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as listed above and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Jason Bethke for contractual items and Craig Dowell for any project-related items, or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 18. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 19. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations, in each case in its performance of its obligations under this Agreement. 94 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 11 of 22 OHSUSA:765354058.2 20. Nondiscrimination: The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Contractor shall require these nondiscrimination terms of any sub-Contractors providing services under this agreement. 21. Intoxicants; Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor shall comply with its responsibilities and obligations under Contractor’s drug and alcohol policies and related testing. City shall have the right to request proof of such policies and compliance and Contractor shall be obligated to furnish such proof upon request. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing his employees and agents in safe work practices. 22. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. Neither party may assign, transfer, or delegate this Agreement (in whole or in part) or any of its rights or obligations hereunder without the prior written consent of the other party; provided that Contractor may assign this Agreement without such consent to a successor-in-interest in connection with a change of control (whether by merger, sale of stock or assets, consolidation, reorganization, or otherwise). Any non-permitted assignment will be void and of no effect. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 23. Reports/Accountability/Public Information: Contractor agrees to provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. During the Term and for one (1) year thereafter, Contractor shall, upon reasonable advance notice and no more than one (1) time per calendar year, allow the City, its auditors, and other persons authorized by the City to inspect its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with all applicable provisions of federal, state, and local law. Each Party shall not issue any statements, releases or information for public dissemination without prior approval of the other Party. 24. Non-Waiver: A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 95 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 12 of 22 OHSUSA:765354058.2 25. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 26. Taxes: City is exempt from all taxes, excises, and duties of any kind or nature arising under or in connection with this Agreement and the services provided hereunder. Each party shall make all appropriate employee withholdings. 27. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 28. Survival: All provisions which, by their terms or nature, should survive the termination or expiration of this Agreement, shall survive any such termination or expiration for the maximum period allowed under applicable law. Upon termination or expiration of this Agreement, all licenses granted hereunder shall terminate. 29. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 30. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 31. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 32. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 33. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 34. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 35. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically 96 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 13 of 22 OHSUSA:765354058.2 made a part of this Agreement by reference. 36. Extensions: At the conclusion of the Initial Term (or any subsequent Renewal Term), the Agreement shall automatically renew for additional renewal terms of one year at the then-current price FATHOM charges for access to and use of the FATHOM Platform (each a "Renewal Term"), unless either Party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. The Initial Term and any Renewal Terms are collectively referred to herein as the "Term." In no case, however, may this Agreement run longer than three years. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA FATHOM WATER MANAGEMENT, INC. By________________________________ By__________________________________ Chris Kukulski, City Manager Print Name: Jason Bethke Print Title: President and Chief Growth Officer APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 97 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 14 of 22 OHSUSA:765354058.2 EXHIBIT A SCOPE OF SERVICES I. Introduction This document outlines the tasks to be completed by FATHOM Water Management, Inc., (hereinafter “Contractor”) to develop and implement a customized web based water customer presentment and software package for the City of Bozeman’s Water customers for the City of Bozeman, Department of Public Works (hereinafter “City”), 20 East Olive Street Bozeman, Montana 59715 during the Term of the Agreement. II. Description The City requires a firm with the skills and expertise to educate residential water customers about their individual water usage and how they compare to those in their area in terms of average and efficient usage. It also provides key support for the Water and Sewer Operations and Customer Service Representatives regarding alerting customers of leaks and high flows in real time. Goal: To empower customers to control their water usage by providing easy access to water usage data to achieve the water conservation goal set forth in the Integrated Water Resources Plan and to support Water Operations to alert customers of potential leaks in real time. III. Proposed Scope of Work Task One: Project Management Contractor shall, in coordination with the City, develop a Project Plan and prepare a Communications Plan. The Communication Plan will include but not be limited to weekly status report from Contractor to City and phone calls on an as-needed basis. This Task shall be completed and approved by City occur within thirty (30) days from the date of execution of the contract. Task Two: Information Gathering City is to provide Contractor with data including:  Current meter read collection method(s) and manufacturers  Sample Read Order Files for all cycles, including file format and specifications  Sample EBP File, including file format and specifications  Sample Kiosk File, including file format and specifications  Customer/premise data export from CIS  Historical data extract (if available)  Unique identifier across interfaces  Utility specific information, including logos, colors, contact information  User lists and roles 98 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 15 of 22 OHSUSA:765354058.2 Task Three: Configuring of FATHOM PRIME After receipt of the information outlined above, Contractor shall:  Establish FATHOM Prime instance  Geocode customer/premise data (if needed)  Configure third party interfaces/APIs  Load City data including historical data  Brand FATHOM Prime with City logo, colors and contact information  Setup users and role security Task Four: Configure of FATHOM U2You After FATHOM Prime is configured, Contractor shall:  Establish FATHOM U2You instance o Hardware and instance installation o Operating system installation o Software installation o Networking and storage configuration o System management integration and configuration  Apply utility specific information including logos, contact information, websites and additional links and all City specific assumptions and methodologies for customer to customer water usage data comparison and to reconcile said methodologies with existing City data and processes for customer water usage data comparison.  Setup login and CSR accounts Task Five: Testing In consultation with City, and concurrent with configuring FATHOM Prime and FATHOM U2You, Contractor shall:  Confirm successful and accurate transfer of AMI data from head end system (if applicable)  Confirm successful and accurate transfer of manual/AMR data (if applicable)  Confirm successful and accurate generation of bill file  Confirm accurate consumption displayed in U2You Task Six: Trainings In coordination with City, over the course of two to three business days, Contractor shall: 99 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 16 of 22 OHSUSA:765354058.2  Provide user training for City  Provide training documentation to City for reference The trainings shall be held on site at location selected by City and facilitated by a member of Contractor’s implementation and support staff. Contractor shall engage their City Success Team to facilitate communication and how to documentation for customers. FATHOM will provide additional training upon request of the City. Any training related to changes, modification and updates to any product elements that materially impact City’s interface will be provided via web conferencing tools to the City at no charge for the first year of the Initial Term. Any additional training either in terms of scope, term or location will be considered an additional service and may be subject to additional fees. Task Seven: Trials Agenda and User Acceptance In consultation with the City, for one week, Contractor shall provide client user acceptance testing and documentation for completion and signoff. All Tasks set forth above shall be completed on or before April 1, 2017. Year One Costs shall not exceed $48,000.00 Year Two Costs shall not exceed $36,000.00 FEE SCHEDULE This schedule defines the fees to be paid by City to FATHOM under this Agreement. All payments shall be made in U.S. dollars in immediately available funds, and are non-refundable. 1. Implementation Fee. The Implementation Fee is a one-time fee based and will be invoiced upon execution of the Agreement. Payment due from City within thirty (30) days of City’s receipt of the invoice from FATHOM. FATHOM MODULE LIST PRICE, PER METER SPECIAL DISCOUNT TOTAL ONE-TIME IMPLEMENTATION FEE* FATHOM Prime $1.00 50% $6,000 FATHOM U2You—Account Management, Presentment & Mobile $1.00 50% $6,000 TOTAL $2.00 50% $12,000 *Based on 12,000 meters 2. Software as a Service Fees. 100 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 17 of 22 OHSUSA:765354058.2 The Software as a Service Fees will be billed annually. Payment for the first year of the term will be invoiced upon execution of the Agreement, with payments for subsequent years of the Term invoiced annually thereafter. FATHOM MODULE LIST PRICE, PER METER PER YEAR TOTAL ANNUAL SAAS FEE* FATHOM Prime $1.50 $18,000 FATHOM U2You—Account Management, Presentment & Mobile $1.50 $18,000 TOTAL $3.00 $36,000 *Based on 12,000 meters 101 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 18 of 22 OHSUSA:765354058.2 EXHIBIT B SOFTWARE AS A SERVICE LICENSE TERMS The terms utilized in this Agreement are defined in Exhibit B. 1. Definitions. A. “Confidential Information” means any information disclosed by either party pursuant to these Terms that is (i) is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or (ii) in the case of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential, and provided to the receiving party within a reasonable time not to exceed thirty days, or (iii) under the circumstances should in good faith be considered to be confidential. Confidential Information includes, without limitation, information related to: research, product plans, products, developments, inventions, processes, designs, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, and pricing. Notwithstanding the foregoing, all technology or proprietary information underlying the FATHOM Data and the FATHOM Platform, including without limitation any and all scripts, programming code, and algorithms related thereto, shall be deemed Confidential Information of FATHOM, and all City Data and City Content shall be deemed Confidential Information of City, without any need for designating the same as confidential or proprietary. B. “City Content” means any content uploaded or made available by City (or Customers) via the FATHOM Platform, which may include City Data. C. “Customer” means a customer of City who is also an end-user of the FATHOM Platform. D. “City Data” has the meaning set forth in the Agreement. E. “Developments” means the collective ideas, know-how, or techniques developed or conceived by FATHOM as a result of providing the FATHOM Platform to City, including without limitation any derivative works, improvements, enhancements and/or extensions made to the Fathom Data and/or the FATHOM Platform, as well as all suggestions, comments, or other feedback provided by City or Customers related thereto or any other Confidential Information of FATHOM, and all Intellectual Property Rights therein and thereto throughout the world. F. “FATHOM Content” means all content, including without limitation data, information, structural hierarchies, processes, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text, contained in the FATHOM Platform (except for City Content). G. “FATHOM Data” means all data generated by the FATHOM Platform, including without limitation, service and usage data, and aggregated, anonymized summaries of City Data. H. “FATHOM Platform” means the Software operated on FATHOM’s hosting servers or those of its hosting service provider intended to enable City and/or Customers to interact with the same via 102 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 19 of 22 OHSUSA:765354058.2 the internet. Without limiting the foregoing, the FATHOM Platform shall include, individually and collectively, the Software, the FATHOM Content, and the User Interface. I. “Intellectual Property Rights” means all rights of the following types, under the laws of any jurisdiction worldwide: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (ii) trade secret rights; (iii) patent and industrial property rights; (iv) other proprietary rights of every kind and nature; and (v) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the above J. “Licensee Content” means any content uploaded or made available by Licensee via the FATHOM Platform, which may include City Data. K. “Service Levels” means the target service levels as set forth in Exhibit C attached to this contract and incorporated herein. “Services” means, collectively, the standard services that has been agreed to in writing by the parties and set forth herein. L. L. “Software” means the software and mobile application(s) set forth in Exhibit A, any accompanying documentation, and all updates, upgrades, and enhancements thereof that may be provided by FATHOM hereunder. “User Interface” means: (i) the web-based interface located at http://www.gwfathom.com/, and all subdomains, subpages, and successors sites thereof, hosted by FATHOM by which City and/or Customers may access the FATHOM Platform; and/or (ii) the mobile application interface provided by FATHOM by which City and/or Customers may access the FATHOM Platform. 103 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 20 of 22 OHSUSA:765354058.2 EXHIBIT C SERVICE LEVEL AGREEMENT 1.0 General This Exhibit sets out the maintenance and support that FATHOM will provide to the City for the FATHOM Platform. 2.0 Software Service Level Objective 2.1 Uptime. Uptime is defined as the amount of time during a calendar month that FATHOM is not experiencing Downtime. During the Term, FATHOM will use commercially reasonable efforts to provide a Monthly Uptime Percentage of at least 99.7% (the “Service Level Objective” or “SLO”). 2.2 Downtime. Downtime is defined as loss of external connectivity and/or access for all running FATHOM modules combined with the City’s inability to connect to their FATHOM sites. FATHOM sites that are down for a period of five consecutive minutes or more, will immediately be counted towards Downtime. Intermittent downtime for a period of less than five minutes will not be counted towards Downtime. 2.3 Exclusions. The following events are not included in Downtime: 2.3.1 Scheduled FATHOM Maintenance Windows. Includes upgrades or repairs to shared infrastructure, such as core routing or switching infrastructure that FATHOM scheduled at least 72 hours in advance and that occurs during off peak hours in the time zone where the data center is located. 2.3.2 Scheduled Customer Maintenance. Includes maintenance of the City’s configuration that the City requests and that FATHOM schedules with the City in advance (either on a case by case basis, or based on standing instructions), such as hardware or software upgrades. 2.3.3 Emergency Maintenance. Includes critical unforeseen maintenance needed for the security or performance of your configuration or the FATHOM network. 2.3.4 Extraordinary Events. Includes downtime or outages resulting from denial of service attacks, virus attacks, hacking attempts, or any other circumstances that are not within our control. 2.4 Remedy. If FATHOM does not meet the SLO stated, the City will be eligible to receive a Service Credit as described below. This Exhibit C states the sole and exclusive remedy for any failure by FATHOM to meet the SLO. 3.0 Software Support and Maintenance FATHOM shall offer on-going maintenance and support for the provided software-as-a-service for the Term and shall include the following: 3.1 Types of Support. Support for the City will be provided by the FATHOM Technical Support Help Desk which utilizes a collaboration support model (non-tiered) which provides the agents the ability to resolve any issues in the most efficient way possible. 104 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 21 of 22 OHSUSA:765354058.2 3.1.1 The Support Desk can be reached through the FATHOM Support website, via email or by phone depending on the requestor’s preference. 3.1.2 The Support Desk is staffed by live agents from 7 AM to 9 PM Eastern (4 AM to 6 PM Pacific). 3.1.3 The City will be able to submit tickets 24 hours a day if needed and will be addressed during business hours the following day. 3.2 Response Times. FATHOM will respond to the City request for support via support ticket, telephone call, or both depending upon the severity of the situation and consistent with any procedures we have established with the City for the City’s account. FATHOM will respond to your support requests made via ticket or telephone within the following time frames during normal business hours: Severity Level Example Response Time Emergency: Site, switch, or server down City cannot access site from the public Internet. Within 15 minutes Urgent: Site or server functioning improperly or at less than optimal performance City site is accessible but in a reduced state (timeouts or slow response) Within 1 hour Standard: Non-critical; site or server is functioning normally, but requires information or assistance on services, wish to schedule maintenance outages, or any other non-immediate tasks City site is functioning with acceptable parameters, but you require assistance on the software or have a help desk- type question Within 4 hours Response Time applies to the initial contact from FATHOM regarding the request and is not a guarantee for resolution. 3.3 Remedy. If FATHOM does not meet the Response Time guarantees stated, the City will be eligible to receive a Service Credit as described below. This Exhibit C states the sole and exclusive remedy for any failure by FATHOM to meet the Response Time guaranties. 4.0 Service Credit 4.1 Service Credit 4.1.1 Software Service Level Objective. If FATHOM does not meet the SLO, the City will be eligible to receive the Service Credit described below. MONTHLY UPTIME PERCENTAGE ELIGIBLE SERVICE CREDIT, PERCENTAGE OF EQUIVALENT 105 Software as a Service Agreement for Customer Water Usage Data Presentment Services FY 2016 – FY 2018 Page 22 of 22 OHSUSA:765354058.2 MONTHLY RECURRING FEE FOR SAAS SERVICES 99.0% - < 99.7% 10% 95.0% - < 99.0% 25% < 95.0% 50% For avoidance of doubt, at no time are the fees associated with managed services eligible for Service Credit as described in this Exhibit C. 4.1.2 Support. If FATHOM does not meet the Response Time guarantees stated above, the City will be eligible to receive a Service Credit of 5% of the equivalent monthly recurring fee for SaaS Services per event for the affected software module. For avoidance of doubt, at no time are the fees associated with managed services eligible for Service Credit as described in this Exhibit C. 4.2 Limitations on Service Credit 4.2.1 Cumulative Dollar Amount. Notwithstanding anything to the contrary, the maximum total Service Credit for any calendar month, including all guaranties, shall not exceed 50% of the City’s equivalent monthly recurring fee for the affected configuration for any given month. Service Credits that would be available but for this limitation will not be carried forward to future months. 4.2.2 City Breach of Agreement. The City is not eligible to receive a Service Credit if the City is in breach of the Agreement (including payment obligations to FATHOM) at the time of the occurrence of the event giving rise to the Service Credit until the breach has been cured. In addition, the City is not eligible to receive a Service Credit if the event giving rise to the Service Credit would not have occurred but for the City’s breach of the Agreement. 4.3 Service Credit Request 4.3.1 The City must request a Service Credit in writing either via a support ticket or by postal mail no later than seven (7) days following the occurrence of the event giving rise to the Service Credit. 4.3.2 FATHOM will contact the City within 30 days to approve or reject the claim or to request more information. 4.3.3 If the Service Credit claim is approved, the Service Credit will be applied to the next monthly invoice following approval. 106