HomeMy WebLinkAbout18- Software as a Service Agreement - Dropcountr, Inc. - Water Utility Software G 9x
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SOFTWARE AS A SERVICE AGREEMENT
THIS AGREEMENT is made and entered into this-lam day of _�L , 201�, 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, Dropcountr Inc., 155 Ninth Street, San Francisco, California 94103,
hereinafter referred to as "Contractor."
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 for
an initial service term of three (3) years, subject to earlier termination as set forth herein.
3. Scope of Services: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement and
the Scope of Services,unless specifically provided otherwise, the Agreement governs.
4. Payment:
a. City agrees to pay Contractor the amount specified in accordance with payment terms
in the Scope of Services. Any alteration or deviation from the described services that
involves 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. If City's use of the Services exceeds the Service Capacity set forth in Exhibit A, City
shall be billed for such usage on an annual basis and City agrees to pay the additional
Service Capacity fees in the manner provided herein.
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c. Contractor reserves the right to change the Fees or applicable charges and to institute
new charges and Fees at the end of the Initial Service Term or then current renewal
term, upon thirty (30) days prior notice to City(which may be sent by email). If City
believes that Contractor has billed City incorrectly, City must contact Contractor no
later than sixty(60) days after the closing date on the first billing statement in which
the error or problem appeared, in order to receive an adjustment or credit. Inquiries
should be directed to Contractor's customer support department.
d. Contractor may choose to bill through an invoice, in which case, full payment for
invoices issued in any given month must be received by Contractor thirty (30) days
after the mailing date of the invoice. Unpaid amounts are subject to a finance charge
of 1.5% per month on any outstanding balance, or the maximum permitted by law,
whichever is lower, plus all expenses of collection and may result in immediate
termination of Service. City shall be responsible for all taxes associated with Services
other than U.S. taxes based on Contractor's net income.
5. Representations:
To induce City to enter into this Agreement, 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 represents and warrants to City that it 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 infringe upon or violate the rights of any third party,whether rights of copyright,trademark,
privacy, publicity, libel, slander or any other rights of any nature whatsoever, or 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.
To induce Contractor to enter into this Agreement,City makes the following representations:
C. City will not, directly or indirectly: reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how
or algorithms relevant to the Services or any software, documentation or data related to the Services
("Software"); modify, translate, or create derivative works based on the Services or any Software
(except to the extent expressly permitted by Contractor or authorized within the Services); use the
Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a
third; or remove any proprietary notices or labels.
d. Further, City may not remove or export from the United States or allow the export or
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FY 2018—FY 2019
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re-export of the Services, Software or anything related thereto, or any direct product thereof in
violation of any restrictions, laws or regulations of the United States Department of Commerce, the
United States Department of Treasury Office of Foreign Assets Control, or any other United States
or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation
are"commercial items"and according to DFAR section 252.227 7014(a)(1)and(5) are deemed to be
"commercial computer software" and "commercial computer software documentation." Consistent
with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release,
performance, display, or disclosure of such commercial software or commercial software
documentation by the U.S. Government will be governed solely by the terms of this Agreement and
will be prohibited except to the extent expressly permitted by the terms of this Agreement.
e. City represents, covenants, and warrants that City will use the Services in compliance
with all applicable laws and regulations. Although Contractor has no obligation to monitor City's
use of the Services, Contractor may do so and may prohibit any use of the Services it believes may
be (or alleged to be) in violation of the foregoing.
f. City shall be responsible for obtaining and maintaining any equipment and ancillary
services needed to connect to, access or otherwise use the Services, including, without limitation,
modems, hardware, servers, software, operating systems, networking, web servers and the like
(collectively, "Equipment"). City shall also be responsible for maintaining the security of the
Equipment,City account,passwords (including but not limited to administrative and user passwords)
and files, and for all uses of City account or the Equipment with or without City's knowledge or
consent.
6. Confidentiality; Proprietary Rights:
a. Each party (the "Receiving Party") understands that the other party (the "Disclosing
Party") has disclosed or may disclose business, technical or financial information relating to the
Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing
Party). Proprietary Information of Contractor includes non-public information regarding features,
functionality and performance of the Service. Proprietary Information of City includes non-public
data provided by City to Contractor to enable the provision of the Services ("City Data"). The
Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information,
and(ii)not to use(except in performance of the Services or as otherwise permitted herein)or divulge
to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing
shall not apply with respect to any information after five(5)years following the disclosure thereof or
any information that the Receiving Party can document (a) is or becomes generally available to the
public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c)
was rightfully disclosed to it without restriction by a third party, or(d)was independently developed
without use of any Proprietary Information of the Disclosing Party or(e) is required to be disclosed
by law.
b. City shall own all right,title and interest in and to the City Data. Contractor shall own
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and retain all right, title and interest in and to (a) the Services and Software, all improvements,
enhancements or modifications thereto,(b)any software,applications,inventions or other technology
developed in connection with Implementation Services or support, and (c) all intellectual property
rights related to any of the foregoing.
C. Notwithstanding anything to the contrary,Contractor shall have the right to collect and
analyze data and other information relating to the provision,use and performance of various aspects
of the Services and related systems and technologies (including, without limitation, information
concerning City Data and data derived therefrom), and Contractor will be free (during and after the
term hereof) to (i) use such information and data to improve and enhance the Services and for other
development,diagnostic and corrective purposes in connection with the Services and other Contractor
offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection
with its business.No rights or licenses are granted except as expressly set forth herein.
7. Services and Support:
a. Subject to the terms of this Agreement, Contractor will use commercially reasonable
efforts to provide City the Services in accordance with the Service Level Terms attached hereto as
Exhibit B. As part of the registration process, City will identify an administrative user name and
password for City's Company account. Contractor reserves the right to refuse registration of, or
cancel passwords it deems inappropriate.
b. Subject to the terms hereof, Contractor will provide City with reasonable technical
support services in accordance with the terms set forth in Exhibit C.
8. Warranties and Disclaimer: Contractor shall use reasonable efforts consistent
with prevailing industry standards to maintain the Services in a manner which minimizes errors and
interruptions in the Services and shall perform the Implementation Services in a professional and
workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for
unscheduled emergency maintenance, either by City or by third-party providers, or because of other
causes beyond Contractor's reasonable control,but Contractor shall use reasonable efforts to provide
advance notice in writing or by e-mail of any scheduled service disruption. However, Contractor
does not warrant that the services will be uninterrupted or error free; nor does it make any warranty
as to the results that may be obtained from use of the services. Except as expressly set forth in this
section, the services and implementation services are provided "as is" and Contractor disclaims all
warranties, express or implied including but not limited to,implied warranties of merchantability and
fitness for a particular purpose.
9. 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
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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 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.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time, Contractor
specifically agrees to take immediate steps, at its own expense and without expectation of
reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific
steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that
Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief
to the City so as to permit the services to continue at no additional cost to City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
10. IndemnityMaiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to release, 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 claims, demands, actions, fees
and costs (including attorney's fees and the costs and fees of expert witness and consultants), losses,
expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) 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 or
in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii)
any negligent, reckless, or intentional misconduct of any of the Contractor's agents.
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For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and
expenses,including reasonable defense attorney fees,to the extent caused by the negligence or willful
misconduct of the Contractor or Contractor's agents or employees.
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 the event of an action filed against City resulting from the City's performance under this
Agreement,the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers, agents
or employees, including the right of contribution for loss or damage to person or property arising
from, growing out of,or in any way connected with or incident to the performance of this Agreement
except"responsibility for his own fraud, for willful injury to the person or property of another, or for
violation of law,whether willful or negligent" as per 28-2-702,MCA.
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.
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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:
• Workers' Compensation—statutory;
• Employers' Liability- $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability- $1,000,000 property damage/bodily injury per accident; and
• 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 to City and shall include no less than a sixty
(60) 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.
11. Termination
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 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 of its receipt of a
written notice describing the breach or default in reasonable detail and demanding
a cure.
b. Termination for City's Convenience:
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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. The termination shall
be effective in the manner specified in the termination notice and shall be without
prejudice to any claims that the City may otherwise have against Contractor.
c. Upon receipt of the termination notice, 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
d. In the event of a termination pursuant to this Section 11, Contractor shall be entitled to
payment only for those services Contractor actually rendered on or before the receipt of
the termination notice. Contractor shall, within thirty (30) days of the effective date of
termination, refund to the City all pre-paid fees for services Contractor has not yet
rendered:
i. For one-time fees for Implementation Services as described in Exhibit A, Scope of
Services, Contractor will refund fees for any Implementation Phase not yet
commenced.
ii. For annual Services Fees payable in advance as described in Exhibit A, Scope of
Services, Contractor will refund a prorated amount calculated based on the
remaining full months of the year in which this Agreement is terminated.
e. Any termination provided for by this Section 11 shall be in addition to any other remedies
to which the Parties may be entitled under the law or at equity.
L The compensation described in Section 11(d) 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.
g. Upon any termination, Contractor will make all City Data available to City for electronic
retrieval for a period of thirty(30)days. Thereafter Contractor agrees to delete stored City
Data. All sections of this Agreement which by their nature should survive termination
will survive termination, including, without limitation, accrued rights to payment,
confidentiality obligations, warranty disclaimers, and limitations of liability
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FY 2018—FY 2019
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12. Data Security
a. 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;
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 SSAB 16 Type II Service Organization Control 1 (SOCl) audit
reports or industry-standard successor reports. Upon request, Contractor will provide
the City a copy of the most current audit report.
b. 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.
C. Contractor will take commercially reasonable methods, including regular data
integrity audits, to protect the City Data against deterioration or degradation of data quality.
d. 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.
e. 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.
f. 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.
g. At all times during the term of this Agreement, Contractor will maintain a
disaster recovery plan for the Dropcountr Platform 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 Dropcountr 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
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and Contractor are able to establish appropriate connectivity to the disaster recovery data
center.
13. Limitation on Contractor's Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor's damages shall be limited to contract damages and Contractor hereby expressly
waives 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. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
to assert such claim.
14. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be Jessica Ahlstrom,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 Jessica Ahlstrom 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 Robb Barnitt,CEO,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.
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15. 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.
16. 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.
17. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. 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
its subcontractors providing services under this agreement.
18. Intoxicants;DOT 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 acknowledges it is aware of
and shall comply with its responsibilities and obligations under the U.S.Department of Transportation
(DOT)regulations governing anti-drug and alcohol misuse prevention plans and related testing. City
shall have the right to request proof of such compliance and Contractor shall be obligated to furnish
such proof.
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
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f
instructing his employees and agents in safe work practices.
19. Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor's rights, including the right to compensation or duties arising
hereunder,without the prior written consent of City. Any subcontractor or assignee will be bound by
all of the terms and conditions of this Agreement.
20. Reports/AccountabilityMublic Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor's compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy 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 this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
21. Non-Waiver: A waiver by either party any default or breach by the other parry 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.
22. Attorney's Fees and Costs: In the event it becomes necessary for either Party 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.
23. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
24. 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.
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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.
25. Survival: Contractor's indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
26. 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.
27. Severability: If any portion of this Agreement is held to be void or unenforceable,the
balance thereof shall continue in effect.
28. Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
29. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
30. 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.
31. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
32. 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 made a part of this
Agreement by reference.
If any provision of this Agreement is found to be unenforceable or invalid,that provision will
be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise
remain in full force and effect and enforceable. This Agreement is not assignable, transferable or
sublicensable by City except with Contractor's prior written consent. Contractor may transfer and
assign any of its rights and obligations under this Agreement without consent.
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FY 2018—FY 2019
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No agency,partnership,joint venture, or employment is created as a result of this Agreement
and City does not have any authority of any kind to bind Contractor in any respect whatsoever. All
notices under this Agreement will be in writing and will be deemed to have been duly given when
received,if personally delivered;when receipt is electronically confirmed,if transmitted by facsimile
or e-mail;the day after it is sent,if sent for next day delivery by recognized overnight delivery service;
and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement
shall be governed by the laws of the State of California and State of Montana without regard to its
conflict of laws and provisions. The parties shall work together in good faith to issue at least one
mutually agreed upon press release within 90 days of the Effective Date, and City otherwise agrees
to reasonably cooperate with Contractor to serve as a reference account upon request.
33. Extensions: This agreement shall be automatically renewed(3)years after the date
the subscription product and services are available to City's end users (initial service term) for an
additional three (3) year term, unless either party requests termination at least thirty (30) days prior
to the end of the then-current term.
**** 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 DROPCOUNTR,INC.
B Y �'11�.__J�-- B
Y
Andrea Surratt, City Manager Robb Barnitt, CEO
APPROVED AS TO FORM:
AA/
B
reg S 1 ' an,Bozeman City Attorney
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FY 2018—FY 2019
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EXHIBIT A
Scope of Services
This scope of services includes three key phases: (1) Program Launch, (2) Program
Implementation and (3) Program Management.
1.0 Program Launch (Phase 1)
1.1 City Customer and Usage Data Transfer
Contractor will engage City staff to establish a secure data transfer protocol using representative
files exported from City. Contractor anticipates daily receipt of an updated flat file in CSV format via
secure FTP, the content to include City customer information and climate metrics to include daily
evapotranspiration.
Contractor will receive usage data via API from Neptune Technology Group, Inc. (Neptune),
facilitated by a standalone single site license agreement specific to City of Bozeman.
Contractor will work with City staff to exchange all appropriate and accessible City customer
account and historical water usage data, as well as other relevant account-specific data (e.g. type
of account, record of conservation program participation, etc). These initial City data form the
starting point for profile development; historical usage data contributes to the development of
historical trends; and a broad regional dataset supports a robust spatial comparison of water
usage.
1.2 Staff Training and Internal Testing
Using the data ingested from City and Neptune, Contractor will coordinate City staff training on
CLEAR.
City staff will have unlimited access to create accounts in CLEAR. The Contractor's project
manager will provide CLEAR and HOME training sessions with City staff as requested online, and
at zero cost. Several City test accounts will also be accessible in HOME to facilitate internal testing
before a public launch.
1.3 Marketing Outreach Consultation
City may choose to conduct supplemental marketing of the program, outside of Contractor
outreach activities. Contractor will provide recommendations and examples of marketing outreach
campaigns used by other Contractor partners. We will share lessons learned, as well as key image
assets and copy.
2.0 Program Implementation (Phase 2)
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FY 2018—FY 2019
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2.1 Email Marketing Engagement
Using email and other contact information provided by City, Contractor will conduct three (3) email
campaigns at a time agreed upon by City and Contractor.
These campaigns will consist of account-specific emails that summarize monthly water use,
provide a social norms-based comparison, present a call to action to sign up for the program, and
legitimize the City partnership with Dropcountr. Each email will include account name and account
number, and a direct link to the Dropcountr sign up page.
2.2 Leak Detecting Alerts and Water Use Email Reports
City customer leak detection algorithms will be developed collaboratively with City. When flagged,
leak alerts will automatically be sent to City customers.
2.3 Daily Water Budget Development
City staff has requested that a daily water budget (aggregate of indoor and outdoor) be calculated
and presented to Dropcountr users at a daily time scale in HOME, which will scale according to the
timeframe displayed in HOME. Contractor will utilize data inputs from City in developing an outdoor
budget algorithm defined below:
Outdoor Budget = ETO * TCW * QF * D * 0.623 * irrigated area
Where:
• ETO is the evapotranspiration in inches per day[supplied by City via data transfer]
• TCW is the crop coefficient, configurable as a single value or monthly [selected by City]
• OF is the quality factor, used to adjust all goals up or down, configurable as a single
value, defaults to 1.0 (no adjustment) [selected by City]
• D is an optional seasonal dampening parameter, configurable monthly[selected by City]
• 0.623 is a constant [gallons water in 1.0 foot-inch]
• Irrigated area is the irrigable portion of the property parcel in sqft, based on the formula
Irrigated Area = Parcel size * % Irrigated
Where:
• Parcel size is received from City
• % irrigated is received from City but defaults to 66%
Engineering cost: $9,125
3.0 Program Management (Phase 3)
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FY 2018—FY 2019
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3.1 Status Meetings
In order to ensure that the project remains on track, and to provide ample opportunity for feedback
and insight from the City, Contractor anticipates conducting bi-monthly status meetings. These
meetings may be held by phone or webinar.
3.2 Customer and User Support
Contractor will support City and City customers for the duration of the project. Contractor will
provide "monthly roll up" HOME usage analytics to City upon request.
In the table below, "customer" is City staff and the "user" is a City of Bozeman customer.
Service Plan Customer User Comments
Component
Telephone /online/ Yes Yes A single point of contact and project manager available by
on-site support phone or email at any time.
Support request functionality via website, web app and
mobile app. Support requests are logged as tickets before
being triaged and resolved by customer and technical
support.
Remote software Yes Yes Dropcountr uses New Relic for application health monitoring
diagnostics and and real-time alerting, when resource thresholds have been
updates exceeded, and/or exceptions are detected.
Updates are seamlessly deployed on a rolling basis to the
cloud by Dropcountr.There are no plugins or third party
scripts that customers or users need to install or update.
Update and Yes Yes Minor feature updates and enhancements are implemented
enhancement monthly and noted in our monthly newsletter to utility
partners.
Input to product Yes Yes The Dropcountr product suite has evolved based upon utility
enhancements partner input. Feature requests and enhancements will be
actively solicited during weekly status calls and periodic
meetings with City staff.
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FY 2018—FY 2019
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Service Plan Customer User Comments
Component
Service/support Yes Yes In the event of a missed call or customer service request,
response time utility partners can expect an average call back within the
hour, and a maximum call back period of four hours.
Due to the intuitive nature of our products, Dropcountr
experiences a daily ticket volume of<0.0001% of our user
base. We are committed to a 24-hour response time, but
often resolve questions within a few hours.
Status meetings Yes No Status meetings to review performance, user metrics and
discuss feature development. Meetings are conducted
weekly.
3.3 Fee Schedule
Services: Use of the Dropcountr HOME and CLEAR products and their access by up to 13,050 accounts served
by the City (the "Service(s)").
Services Fees: $17,617 per year, payable in advance, Initial Service Term: 36 months, starting when Item
subject to the terms of this agreement. 1.0 activities are complete and approval received
from COB.
Service Capacity: Up to 13,050 accounts served by the City. Accounts exceeding 13,050 will be billed to City
on an annual basis at$1.35 per account (meter).
Implementation Services: Contractor will use commercially reasonable efforts to provide City the services
described in this Scope of Services and City shall pay Contractor the Implementation Fee in accordance with
the terms herein.
Implementation Fee(one-time): $10,000 (comprised of$8,000 for Item 1.1; $1,000 each Items 1.2 and 1.3)
Daily Water Budget Development(one-time): $9,125
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FY 2018—FY 2019
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EXHIBIT B
Service Level Terms
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends
and scheduled maintenance. If City requests maintenance during these hours, any uptime or
downtime calculation will exclude periods affected by such maintenance. Further, any
downtime resulting from outages of third party connections or utilities or other reasons beyond
Contractor's control will also be excluded from any such calculation. City's sole and exclusive
remedy, and Contractor's entire liability, in connection with Service availability shall be that for
each period of downtime lasting longer than one hour, Contractor will credit City 5% of Service
fees for each period of 30 or more consecutive minutes of downtime; provided that no more
than one such credit will accrue per day. Downtime shall begin to accrue as soon as City (with
notice to Contractor) recognizes that downtime is taking place, and continues until the
availability of the Services is restored. In order to receive downtime credit, City must notify
Contractor in writing within 24 hours from the time of downtime, and failure to provide such
notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for
cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in
any one (1) calendar month in any event. Contractor will only apply a credit to the month in
which the incident occurred. Contractor's blocking of data communications or other Service in
accordance with its policies shall not be deemed to be a failure of Contractor to provide
adequate service levels under this Agreement.
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EXHIBIT C
Support Terms
Contractor will provide technical support to City and City Customers via email during weekdays
between 9:00am and 5:00pm Pacific time, with the exclusion of Federal Holidays ("Support
Hours").
City and City Customers may initiate a helpdesk ticket during Support Hours by emailing
support@dropcountr.com.
Contractor will use commercially reasonable efforts to"respond to all Helpdesk tickets within two (2)
business days.
Contractor will offer training to City on an as needed basis throughout the term of this agreement.
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FY 2018—FY 2019
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