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Home My WebLink AboutContract 48301 City Secretary Contract No. �� FORTWORTH, CONTRACT ,�b C PROFESSIONAL SERVICES AGREEMENT (Information Technology) This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City" or"Client"), a Texas home-rule municipal corporation, and Aqua Metric Sales Company,a registered d/b/a of Thirkettle Corporation, a California corporation("Consultant" or"Contractor"). City and Consultant are each individually referred to herein as a"party"and collectively referred to as the"parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A—Statement of Work plus any amendments to the Statement of Work 3. Exhibit B—Payment Schedule 4. Exhibit C—Deliverable Acceptance Form and Major Milestones 5. Exhibit D—Network Access Agreement 6. Exhibit E—Verification of Signature Authority Form 7. Exhibit F—Approved Subcontractors 8. Exhibit G—Technology Subcontract Addendum 9. Exhibit H—Tower Lease or License Agreement Example 10. Exhibit I—Labor Subcontract Addendum 11. Exhibit J—Assignment of Agreements 12. Exhibit K—Example Change Order Form(COF) 13. Exhibit L—Texas Water Development Board—State Programs(TWDB-0140) 14. Exhibit M—Texas Water Development Board—Supplemental Conditions(TWDB-0552) All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. The term"Consultant" or"Contractor" shall include the Consultant or Contractor, and its officers, agents, employees, representatives, servants, contractors or subcontractors. The term "City" shall include its officers, employees,agents,and representatives. 1. Scope of Services. Consultant hereby agrees, with good faith and due diligence, to provide the City with professional consulting services for City's AMI Program. Specifically, Consultant will perform all duties outlined and described in the Statement of Work, which is attached hereto as Exhibit "A" and incorporated herein for all purposes, and further referred to herein as the"Services",which Services shall only be amended pursuant to the terms of a Change Order,the form of which is attached hereto as Exhibit 1110 and incorporated herein for all purposes. Consultant shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Consultant shall perform the Services in accordance with all applicable federal, state, and local laws, rules, and regulations. If there is any conflict between this Agreement and the Statement of Work, the terms and conditions of this Agreement shall control. If either Party needs to request changes to the Statement of Work,the requesting party will submit to the other 1 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. party a request on the Change Order Form. Both Parties must sign the Change Order Form before the change becomes effective. It is contemplated that the scope of services for Phases III, IV,and V will be further developed during Phases I and 11, and those additional detail will become part of the Statement of Work under Phases III, IV, and V upon City's execution of the Milestone Acceptance Form in accordance with Section 26. 2. Term. This Agreement shall commence upon October 14, 2016, ("Effective Date") and shall expire no later than March 31, 2021 ("Expiration Date"), unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. This Agreement will automatically renew for additional one (1)year terms as may be necessary to complete the AMI Program, as defined in Exhibit "A," contingent on City's appropriation of funds, unless terminated by either Party. Upon completion of the AMI Program, the City and Contractor may negotiate additional annual terms ("Renewal Term")for continued maintenance and support services pursuant to the terms and conditions of this Agreement and contingent on City's City Council approval and appropriation of funds. 3. Compensation. 3.1 The City shall pay Consultant an amount not to exceed $11,783,697.00 for Phases I and II of the AMI Program in accordance with the provisions of this Agreement as described in the payment schedule outlined in Exhibit`B,"Payment Schedule,which is attached hereto and incorporated herein. Compensation for Phases 111, IV, and V is anticipated to be approved and appropriated by City's City Council before March 31, 2018. At such time, the Parties will amend this Agreement to increase the not to exceed amount as approved by City's City Council and continue into Phases III, IV, and V as provided in this Agreement and in accordance with Exhibit`B." Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. City agrees to pay all invoices of Consultant within thirty (30) days of receipt of such invoice. Consultant may charge interest on late payments not to exceed one percent(1%). 3.2 Retainage: Generally, a minimum of 5%retainage is required by law on all public loans from the State (Texas Government Code 2252.031). Notwithstanding, the Texas Water Development Board("TWDB") approved no retainage (0%)of invoices during the first two phases of the program identified as Phase I-Planning and Phase II-Design of the program since the work does not carry a risk beyond completion of the work.However,during the programs third and fourth phases identified as Full Deployment, the work does carry a risk of contract work that does not function as intended, so a retainage of 2% of all invoices will be applied during the Full Deployment (Phases III and IV)and during the Final Close-out Phase V. 4. Termination. 4.1. Convenience. Either the City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 120 days' written notice of termination(the"Termination Period"). 4.2 Breach. Subject to Section 29 herein, either party may terminate this Agreement for breach of duty, obligation or warranty upon exhaustion of all remedies set forth in Section 29. 4.3 Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, the City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. The City will use good faith efforts to notify Consultant in advance of an anticipated lack of appropriations. The award of this Agreement is contingent upon release of funds and contract award approval from the TWDB. Any sub-contracts awarded as a result of this Agreement that are expected to be funded in part by the loan from the TWDB is also contingent upon release of funds from the TWDB. Neither the State of Texas, nor any of its departments,agencies,or employees are or will be part of any resulting contracts. 2 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. 4.4 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date,the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement contemporaneously with the City making a final payment to Consultant in the amount consistent with services rendered as of the date of termination, including such subscription services the Consultant has contracted for in fulfillment of the terms of this Agreement. In the event Consultant has received access to City information or data as a requirement to perform services hereunder, Consultant shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City, in the City's reasonable discretion. Upon termination by the City pursuant to Section 4.1 above,the City shall assume the tower leases or license agreements and other agreements entered into by Consultant in fulfillment of this Agreement. The Parties will execute the attached Exhibit "J" (Assignment of Agreements), attached hereto and incorporated herein, to assign the necessary agreements prior to the expiration of the Termination Period. 5. Disclosure of Conflicts and Confidential Information. 5.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential Information. The City acknowledges that Consultant may use products, materials, or methodologies proprietary to Consultant. The City agrees that Consultant's provision of services under this Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products,materials, or methodologies unless the parties have executed a separate written agreement with respect thereto. Consultant, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City ("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Subcontractors and affiliates of Consultant who need to know the Confidential Information to perform the Services shall not be considered third party for purposes of this section 5.2. 5.3 Unauthorized Access. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. Right to Audit. Consultant agrees that the City shall, until the expiration of three (3)years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Consultant involving transactions relating to this Agreement at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant not less than ten (10) days written notice of any intended audits. Consultant further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and 3 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor not less than 10 days written notice of any intended audits. The Consultant further agrees to accept the authority of the State of Texas Auditor's office authority to conduct audits and investigations under the State Water Infrastructure Reserve Fund Texas ("SWIRFT") in connection with state funds received pursuant to this Agreement. The Contractor shall comply with the directives from the City and the Texas State Auditor and shall cooperate in any such audit or investigation. The Consultant agrees to provide the Texas State Auditor with access to any information the City or Texas State Auditor considers relevant to the audit or investigation. The Consultant agrees to include the same provision in any contract or subcontract used in connection with this Agreement. 7. Indeuendent Contractor. It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. . It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor any officers, agents, servants, employees or subcontractors of Consultant shall be entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers,agents,servants,employees or subcontractors. 8. LIABILITY AND INDEMNIFICATION. A. LIABILITY - CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, EXCEPT THAT CONSULTANT WILL NOT BE RESPONSIBLE FOR THE CONTRIBUTORY NEGLIGENCE APPORTIONED TO A LAND OWNER OF PRIVATE PROPERTY NOT OWNED BY CITY. B. INDEMNIFICATION - CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS, AND ANY RESULTING LOST PROFITS) PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, AND DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENCE OR OMISSIONS OF CONSULTANT, ITS OFFICERS, AGENTS, SUBCONTRACTORS,SERVANTS OR EMPLOYEES. C. INTELLECTUAL PROPERTY INFRINGEMENT—(i) The Consultant warrants that all Deliverables, or any part thereof, furnished hereunder, including but not limited to: programs, documentation, software, analyses, applications, methods, ways, and processes (in this Section 8C each individually referred to as a "Deliverable" and collectively as the "Deliverables,") do, to the best of Consultant's knowledge, not infringe upon or violate any patent, copyrights,trademarks, service marks,trade secrets, or any intellectual property rights or other third party proprietary rights,in the performance of services under this Agreement. 4 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. (ii)Consultant shall be liable and responsible for any and all claims made against the City for infringement of any patent, copyright, trademark, service mark, trade secret, or other intellectual property rights by the use of or supplying of any Deliverable(s) in the course of performance or completion of, or in any way connected with providing the services, or the City's continued use of the Deliverable(s) hereunder; provided, however, this liability and responsibility shall terminate upon the expiration of the relationship between the parties with the City assuming all liability and responsibility for its continued use of the Deliverable. (iii)Consultant agrees to indemnify,defend, settle,or pay, at its own cost and expense,including the payment of City's and Consultant's attorney's fees,any claim or action against the City for infringement of any patent, copyright, trade mark,service mark, trade secret,or other intellectual property right arising from City's use of the Deliverable(s), or any part thereof, in accordance with this Agreement, it being understood that this agreement to indemnify,defend,settle or pay shall not apply if the City modifies or misuses the Deliverable(s) or continues the use the Deliverable(s) upon the expiration of the relationship between the parties and without the participation of Consultant.So long as Consultant agrees to bear, at the time of the claim or action, the cost and expense of payment for claims or actions against the City pursuant to this section 8, Consultant shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees to cooperate with Consultant in doing so. Should the City hire additional attorneys beyond those provided by Consultant, the City will be responsible for the additional attorney's fees. In the event City, for whatever reason, whether by its own admission or its modification or misuse of the Deliverable(s), assumes the responsibility for,or is deemed responsible for,payment of costs and expenses for any claim or action brought against the City for infringement arising under this Agreement, the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, Consultant shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Consultant timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of costs or expenses shall not eliminate Consultant's duty to indemnify the City under this Agreement. If the Deliverable(s), or any part thereof,is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Consultant shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Deliverable(s); or(b) modify the Deliverable(s) to make them/it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the Deliverable(s); or(c) replace the Deliverable(s)with equally suitable,compatible, and functionally equivalent non-infringing Deliverable(s) at no additional charge to City; or(d)if none of the foregoing alternatives is reasonably available to Consultant, terminate this Agreement, and refund all amounts related to the infringing Deliverable paid to Consultant by the City, subsequent to which termination City may seek any and all remedies available to City under law. CONSULTANT'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 10 OF THIS AGREEMENT. 9. Assignment and Subcontracting. Consultant shall not assign or subcontract any of its duties, obligations or rights inconsistent with this Agreement to a third party without the prior written consent of the City, which consent shall not be unreasonably withheld. If the City grants consent to an assignment of the entire Agreement, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of set forth in that Agreement. The Consultant and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. Consultant shall be allowed to assign or subcontract its duties, obligations, or rights as contemplated under this Agreement and to those parties included on Exhibit"F," attached hereto and incorporated herein. All technology agreements executed between Consultant and subcontractors will include in the agreement the City-approved addendum terms and conditions of Exhibit "G," attached hereto and incorporated herein. The tower license agreements entered into between Consultant and a third party shall be in a 5 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. form substantially similar to Exhibit"H," attached hereto and incorporated herein. All labor agreements executed between Consultant and subcontractors will include in the agreement the City-approved addendum terms and conditions of Exhibit"I,"attached hereto and incorporated herein. The Consultant shall provide the City with a fully executed copy of the Technology Subcontract Addendum or the Labor Subcontract Addendum, as applicable, attached to any agreement between Consultant and a subcontractor. Exhibits "G," "H," and "I" may be slightly modified as approved by the City's attorney prior to Consultant entering into the subcontracts. The Parties may agree to add approved subcontractors to Exhibit "F" as may be necessary to complete the AMI Program. Consultant will ensure that the additional terms and conditions required by City do not conflict with any terms and conditions contained in any executed subcontracts and in all instances that City's terms and conditions will control. Upon completion of Phase V of the AMI Program, the subcontracts may be assigned to the City. It is anticipated that the tower leases or license agreements will be assigned to the City upon completion of Phase V. The Parties can agree to assign other related subcontracts as may be necessary after the Initial Term of the Agreement. The Parties will execute the attached Exhibit "J," Assignment of Agreements, attached hereto and incorporated herein,to assign the necessary subcontracts. 10. INSURANCE. 10.1 The Consultant shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: (a) Commercial General Liability a. Combined limit of not less than$2,000,000 per occurrence;$4,000,000 aggregate or b. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella Coveraee in the amount of$4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. c.Defense costs shall be outside the limits of liability. (b) Automobile Liability Insurance covering any vehicle used in providing services under this Agreement, including owned, non-owned, or hired vehicles, with a combined limit of not less than $1,000,000 per occurrence. (c) Professional Liability (Errors & Omissions) in the amount of $1,000,000 per claim and $1,000,000 aggregate limit. (d) Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. (e) Technology Liability(Errors&Omissions) a. Combined limit of not less than$1,000,000 per occurrence; $2,000,000 aggregate or b. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of$2,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. The umbrella policy shall cover amounts for any claims not covered by the primary Technology Liability policy. Defense costs shall be outside the limits of liability. 1) Coverage shall include,but not be limited to,the following: (i)Failure to prevent unauthorized access (ii)Unauthorized disclosure of information (iii)Implantation of malicious code or computer virus (iv)Fraud,Dishonest or Intentional Acts with final adjudication language (v) Intellectual Property Infringement coverage, specifically including coverage for intellectual property infringement claims and for indemnification and legal defense of any claims of intellectual property infringement, including infringement of copyright, brought against the City for use of Deliverables,Software or Services provided by Consultant under this Agreement. 6 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. Technology coverage may be provided through an endorsement to the Commercial General Liability(CGL) policy, a separate policy specific to Technology E&O, or an umbrella policy that picks up coverage after primary coverage is exhausted.Either is acceptable if coverage meets all other requirements.Technology coverage shall be written to indicate that legal costs and fees are considered outside of the policy limits and shall not erode limits of liability. Any deductible will be the sole responsibility of the Consultant and may not exceed $25,000 without the written approval of the City. Coverage shall be claims-made, with a retroactive or prior acts date that is on or before the effective date of this Agreement. Coverage shall be maintained for the duration of the contractual agreement and for one (1) year following completion of services provided. An annual certificate of insurance, or a full copy of the policy if requested, shall be submitted to the City to evidence coverage. (f) Any other insurance as reasonably requested by City. 10.2 General Insurance Requirements: A) All applicable policies shall name the City as an additional insured thereon,as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. B) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. C) A minimum of Thirty(30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten(10)days'notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. D) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required,written approval of Risk Management is required. E) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. F) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to and approved by the City's Risk Management Division prior to execution of this Agreement. 11. Compliance with Laws,Ordinances,Rules and Regulations. Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. 12. Non-Discrimination Covenant. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 13. Notices. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission or(3)received by the other party by United States Mail,registered,return receipt requested,addressed as follows: 7 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. TO THE CITY: City of Fort Worth With Copy to the City Attorney Attn: Jesus J.Chapa at same address 1000 Throckmorton Fort Worth TX 76102 Facsimile: (817)392-8195 TO CONSULTANT: Aqua Metric Sales Company Aqua Metric Sales Company Attn: Chris Thirkettle Attn: Michael Cartwright 4050 Flat Rock Drive 6700 Guada Como Drive Riverside,CA 92505 Schertz,Texas Telephone: (951)637-1400 Telephone: (210)967-6300 Facsimile: (951)637- 1500 Facsimile: (210)967-6305 14. Solicitation of Employees. Neither the City nor Consultant shall, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the person's employer. This provision shall not apply to an employee who responds to a general solicitation or advertisement of employment by either party. 15. Governmental Powers. It is understood and agreed that by execution of this Agreement,the City does not waive or surrender any of its governmental powers. 16. No Waiver. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action,whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. Force Majeure. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 8 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. 20. Headings Not Controlling. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. Review of Counsel. The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. Amendments. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument,and duly executed by an authorized representative of each party. 23. Entirety of Agreement. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party.Duplicates are valid and binding even if an original paper document bearing each party's original signature is not delivered. 25. Warranty of Services. Consultant warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty(30)days from the date that the services are completed. In such event, at Consultant's option, Consultant shall either(a) use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty,or(b)refund the fees paid by the City to Consultant for the nonconforming services so long as the nonconforming services are clearly demonstrated and documented by the City. 26. Milestone Acceptance. The Parties agree that the major milestones are outlined on Exhibit "C," attached hereto and incorporated herein. Consultant shall verify the quality of each major milestone before submitting it to the City for review and approval. The City will review all major milestones to determine their acceptability and signify acceptance by execution of the Milestone Acceptance Form,which is included in Exhibit"C." If the City rejects the submission, it will notify the Consultant in writing as soon as the determination is made listing the specific reasons for rejection. The Consultant shall have ten (10) days to correct any deficiencies and resubmit the corrected major milestone except in the case where the deficiency requires more than such ten (10) day period and Consultant diligently pursues correcting the deficiencies, in which case Consultant shall be afforded a reasonable period of time to correct the deficiencies. 9 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. 27. Network Access. 27.1 City Network Access. If Consultant, and/or any of its employees, officers, agents, servants or subcontractors (for purposes of this section"Consultant Personnel"), requires access to the City's computer network in order to provide the services herein, Consultant shall execute and comply with the Network Access Agreement which is attached hereto as Exhibit"D"and incorporated herein for all purposes. 27.2 Federal Law Enforcement Database Access. If Consultant, or any Consultant Personnel, requires access to any federal law enforcement database or any federal criminal history record information system, including but not limited to Fingerprint Identification Records System ("FIRS"), Interstate Identification Index System ("III System"), National Crime Information Center ("NCIC") or National Fingerprint File ("NFF"), that is governed by and/or defined in Title 28, Code of Federal Regulations Part 20 ("CFR Part 20"), for the purpose of providing services for the administration of criminal justice as defined therein on behalf of the City under this Agreement, Consultant shall comply with the Criminal Justice Information Services Security Policy and CFR Part 20, and shall separately execute the Federal Bureau of Investigation Criminal Justice Information Services Security Addendum. 28. Immigration Nationality Act. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Consultant shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Consultant shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Consultant shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Consultant shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Consultant shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Consultant. 29. Informal Dispute Resolution. Except in the event of termination pursuant to Section 4.2, if either City or Consultant has a claim,dispute,or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten(10)business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach or other matter in question that may arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty(60)days of the date of receipt of the notice of the dispute,then the parties may submit the matter to non-binding mediation in Tarrant County, Texas, upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect.The mediator shall be agreed to by the parties.Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation,then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may,before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 10 Aqua Metric Sales Company Professional Services Agreement-Technology City Secretary Contract No. 30. Reuortinu Requirements. For purposes of this section,the words below shall have the following meaning: Child shall mean a person under the age of 18 years of age. Child pornography means an image of a child engaging in sexual conduct or sexual performance as defined by Section 43.25 of the Texas Penal Code. Computer means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input,output,processing,storage,or communication facilities that are connected or related to the device. Computer technician means an individual who, in the course and scope of employment or business, installs,repairs, or otherwise services a computer for a fee. This shall include installation of software, hardware, and maintenance services. If Consultant meets the defmition of Computer Technician as defined herein, and while providing services pursuant to this Agreement, views an image on a computer that is or appears to be child pornography, Consultant shall immediately report the discovery of the image to the City and to a local or state law enforcement agency or the Cyber Tip Line at the National Center for Missing and Exploited Children. The report must include the name and address of the owner or person claiming a right to possession of the computer,if known, and as permitted by law.Failure by Consultant to make the report required herein may result in criminal and/or civil penalties. 31. Sienature Authority. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement, and any amendment(s) hereto, may be executed by any authorized representative of Consultant whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit "E" and incorporate herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. Executed in multiples this thea day of 2C - AGREED: AGREED: CITY OF FORT WORTH: AQUA METRIC SALES COMPANY, A REGISTERED D/B/A OF THIRKETTLE CORPORATION:: By::::: By: Jesus J.Chapa Chris Thirkettle Assistant City Manager Title:President Date: Date: RECOMMEND APPROVAL: ATTEST• By: l By: John bert Carman Leah Thirket Wat r Director Title:Vice President 11 Aqua Metric Sales Company Professional Services Agreement-Technology APPROVED AS TO FORM AND LEGALITY: By: z�4 Jessica svang Assistant ity Attorney Form 1295 Certification N . 106-35997 dated 04/06/2016 Certification; ATTES ®� FO By. Ma Kayse City Secretary S � CONTRACT AUTHORIZATION: 1pli,°®°Qafa�©p6°�' M&C: C-27726 Date Approved: 5/17/2016 12 Aqua Metric Sales Company Professional Services Agreement-Technology EXHIBIT A STATEMENT OF WORK 13 Aqua Metric Sales Company Professional Services Agreement-Technology 1. Introduction This Statement of Work(SOW)describes the Services to be provided by Aqua Metric Sales Company to the City of Fort Worth Water Department(FWWD),and the Aqua Metric responsibilities as well as related FWWD responsibilities needed to complete the FWWD's AMI Program. The AMI Program was intentionally structured to be designed around conceptual operational efficiencies that would be realized, measured and validated through the execution and delivery of this Agreement. The services and responsibilities to be provided under the terms of this Agreement are summarized under the following major work streams: • AMI Program Management • Business Process Design(inclusive of training and audits) • Public Awareness Campaign Support • Benefits Verification Support • AMI Network and Software • Purchasing and Installation Services Further,FWWD has proposed and Aqua Metric has agreed to the following phased approach for the AMI Program: • Phase 1 —Planning and Design • Phase 2—Pilot • Phase 3—Full Deployment • Phase 4—Remaining Full Deployment • Phase 5—AMI Program Cleanup 2. Key Terms 2.1. Business Process Design is the initial work stream of the AMI Program and the foundation on which the technology will be built. Business Process Design refers collectively to the business process workshops and deliverables, business process training and business process audits. The business process workshops include identifying topics, scheduling workshops to discuss and document current state, use cases and future state conditions of the business processes. Workshops will be attended by FWWD staff familiar with the topic business process, project staff and Aqua Metric team members requiring knowledge to complete their tasks. 2.2. AMI Program refers to FWWD's initiative to design and implement FWWD's AMI Solution. As part of the FWWD's AMI Program,Aqua Metric will provide the services and products stated in this Agreement. FWWD,through this AMI Program,seeks to address complex business challenges with technology to improve operational efficiencies. Four major program goals are: • Leverage AMI water demand data to improve water conservation effectiveness and monitoring • Enhance Customer Relations • Provide Revenue Enhancing Opportunities • Improve Metering Services 2.3. AMI Solution Design During Phase 1 and through Business Process Workshops,Aqua Metric and FWWD will develop and agree upon the AMI Solution Design. The AMI Solution Design will define the specifications of the AMI Network and AMI Software and support the results of the Business Process Design. AMI Solution Design is listed as an Exhibit C—Major Milestone.Acceptance of this milestone indicates successful completion of Phase 1—Planning and Design and is the gateway to Phase 2—Pilot. 2.4. AMI Network shall be considered as all meters, registers, radios, repeaters, receivers, base stations,firmware 14 Aqua Metric Sales Company Professional Services Agreement-Technology and any other equipment used to measure,store, manage and transfer customer consumption data and incident occurrences in the field to the AMI Software. 2.5. AMI Software shall be considered the software provided by Aqua Metric to FWWD. Aqua Metric expects that software to be the following; however,the final decision will be determined and agreed to by both parties during the planning and design program phases(Phase I and II). • Sensus F1exNet—AMI head end software will receive and process AMI data from the AMI Network. The system supports on-demand requests and responses to meter end points and identify and troubleshoot communication issues. • Harris SmartWorks MDMS—The Meter Data Management Solution(MDMS)will perform VEE and serve AMI data to FWWD's existing systems. • Harris CustomerConnect—Customer web portal will be used by FWWD's customers to access their AMI data,set alerts and thresholds and access FWWD information concerning leak detection,conservation,etc. • AquaMetric NovusCenter—Software provides capability to manage and report progress of AMI meter installations. • Leak Detection provides the ability to track and record leak detection logger devices. 2.6. AMI Solution refers collectively to the Business Process Design,AMI Network and AMI Software provided through the fulfillment of this Agreement. The AMI Solution for FWWD will be defined through a series of Business Process Design workshops facilitated by Aqua Metric and its subcontractors. Opportunities to improve operational efficiencies,enhance customer relations and achieve the stated goals of the AMI Program will be identified and documented in these workshops by Aqua Metric. The identified opportunities shall be prioritized to realize the greatest number and most cost efficient AMI Solution for FWWD. The AMI Network and AMI Software will be designed based upon the outcomes of the Business Process Design work stream. 2.7. AMI Solution Acceptance Test is an Exhibit C-Major Milestone and will document successful completion of Phase 2—Pilot and is the gateway to Phase 3—Full Deployment. The AMI Solution Acceptance Test Definition will be developed as part of Phase 1. 3. Contract Modifications Either Aqua Metric or FWWD may identify a change to this Exhibit A-Statement of Work. Changes that include a scope,time or cost change require a formal Change Request. Changes that modify previously documented schedules may require a formal Change Request,or may simply require an adjustment of the schedule moving forward with suitable documentation. Procedures and forms used for requesting and processing changes to this SOW are described in Exhibit K—Change Order Form. It is acknowledged that by their very nature,contract changes may affect the program scope,schedule and/or budget. 4. Program Schedule FWWD has proposed and Aqua Metric has agreed to the following phased approach for the AMI Program: (a) Phase 1—Planning and Design (b) Phase 2—Pilot (c) Phase 3—Full Deployment (d) Phase 4—Remaining Full Deployment (e) Phase 5—AMI Program Cleanup In accordance with this phased approach,Aqua Metric has developed the following project schedules for each phase. As part of the AMI Program Management services,Aqua Metric will develop and maintain a detailed project plan. The following projected schedules were created to facilitate planning and discussion. These project timelines are not intended to 15 Aqua Metric Sales Company Professional Services Agreement-Technology replace or supersede the purpose of the AMI Program Schedule that will be built jointly in Phase 1 and managed throughout the AMI Program. 5. Projected Schedule 5.1.Phase 1: Planning and Design Business Process Design Business Process Workshops t Kickoff&Discovery Workshop—Current State Workshop—1"Pass Future � Workshop—2nd Pass Future Synch BPD w/AMI Design Define AMI Goals&Benefits ♦ e pp ► F�MND ManaementA royal AMI Network&Software AMI Pilot Network Installation Tower Leases ' Site Preparation BaseStation Install&Certify AMI Software Initial Setup FlexNet Install Install Web P Web Portals Install NovusCenter Install l� Define Solution Acceptance Test AMI Design AMI Design w/Integrations AMI Network Design(Full) i t Integration Design Doc's i Not PO Meter Installation Plan(Pilot) �♦�♦ Public Awareness Campaign Plan Note:Calendar year depicted in Gantt chart above. 16 Aqua Metric Sales Company Professional Services Agreement-Technology 5.2. Phase 2: Pilot I I I 1 Business Process Design Refine Future State 4o, Final FutureState Business Processes I � I Business Process Training I I I I Business Process Audits i I I I I I I AMI Network&Software aMl Deslgr;Pl;»e 1) AMI Integration MDMS Synch i I I 1 AMI Integration Portal Synch Billing File On-Demand Read TBD Integrations I i I I I I I I I I I I AMI Software Training I I I I I I I I Acceptance Test Acceptance Test Criteria(Phase 1) j j ' I I I 1 Meter Provisioning&Installation ♦Pilot Meter installation Plan(Phase 1) Meter Installation Prep :..........................i................................. I i Meter Installation :-----------------_-----' I................................ Meter Installation Plan I I I I I I I I Public Awareness Campaign ' PACPIan(Phase 1) I i 1 I I I AMI Program Goals&Benefits(Phase 1) i I Benefits Verification ................................. r-----------------------------------r-----------------------------------r ... ---------------------0, I I I I Q3 2017Q4 2017 Q1 2018Q2 2018 Q3 2018 Note:Calendar year depicted in Gantt chart above. 17 Aqua Metric Sales Company Professional Services Agreement-Technology 5.3. Phase 3 and 4: Full Deployment 40 AMI Acceptance Test(Phase 2) AMI Network&Software I ' AMI Network Installation Tower Leases Site Preparation BaseStation Install&Certify Meter Provisioning&Installation Meter Installation Prep I I I Meter Installation I • � I • I Meter Installation Plan I � Public Awareness Campaign i-- Benefits Verification Business Process Design Business Process Audits Q4 2018 Q1 2019 Q2 2019 Q3 2019 •. 2019 Q1 2020Q2 2020 Q3 2020 Note:Calendar year depicted in Gantt chart above. 5.4.Projected Schedule—Phase 5: AMI Program Cleanup 1 1 AMI Cleanup Checklist Cleanup Activities ; Provide Final Documentation Provide Product Warranty Doc's ; ; ■ Reassign Agreements ■ AMI Cleanup Completion � ' I Meter Provisioning&Installation � I Meter Installation Prep Meter Installation Public Awareness Campaign i Final Benefits Measurement I Benefits Verification verification QZ 2020 Q3 2020 Q4 2020Q1 2021 Note:Calendar year depicted in Gantt chart above. 18 Aqua Metric Sales Company Professional Services Agreement-Technology 6. Description of Services Under this Agreement,Aqua Metric will provide the following Services and Deliverables to FWWD. Items listed in bold font indicates a major milestone as defined in Exhibit C—Major Milestones: 6.1. AMI Program Management Ref. Activity Description of Service Phase Deliverables and Milestones(Bold) 6.1.1. AMI Program 1) Provide Aqua Metric's All 1) Onsite Aqua Metric program Manager single point of contact for phases manager FWWD during the AMI Program 6.1.2 AMI Program 1) Collaborate with FWWD All 1) AMI Program Schedule (Microsoft Schedule to establish the AMI phases Project) Program Schedule 2) AMI Program Status Updates (at 2) Maintain AMI Program least monthly) Schedule throughout the AMI Program 6.1.3. AMI Program 1) Collaborate with FWWD All 1) AMI Program Communication Management to establish the AMI phases Plan Communication Program Communication a) Types of communication Plan Plan b) Purpose 2) Execution of the AMI c) Participants/Stakeholders Program Communication d) Frequency Plan 6.1.4. AMI Program 1) Identify issues and risks All 1) AMI Program issue/risk register Risk and Issue related to the AMI phases a) Issue/Risk item Management Program b) Owner 2) Collaborate with FWWD c) Priority to resolve/mitigate d) Mitigation Plan issues/risks e) Status 3) Track progress f) Status Update (at least issues/risks until monthly) resolution 6.1.5. AMI Program 1) Resourcing the Aqua All 1) Aqua Metric Project Team Resource Metric project team phases Structure Management responsible for delivering 2) Aqua Metric Project Team Roster Services described herein a) Team Member b) Organization c) eMail d) Phone 6.1.6. AMI Program (a) Manage AMI Program All 1) Change Request Scope scope in accordance with phases Management this Agreement (b) Facilitate Change Management process in conjunction with FWWD as described within this Agreement 19 Aqua Metric Sales Company Professional Services Agreement-Technology Ref. Activity Description of Service Phase Deliverables and Milestones(Bold) 6.1.7. AMI Program (a) Establish AMI Program All 1) AMI Program budget tracking Budget budget for products and phases 2) Invoices services delivered under this Agreement (b) Invoice FWWD in accordance with Exhibit B of this Agreement (c) Track the AMI Program budget on a regular basis 6.1.8. AMI Program 1) Collaborate with FWWD Phase 1) AMI Program Cleanup Checklist Cleanup and to create AMI Program 5 a) Description of outstanding Close Cleanup Checklist item 2) Work with FWWD to b) Description of plan to develop and execute plan resolve item to resolve items on the c) Target resolution date AMI Program Cleanup d) Owner Checklist e) Status—Pending, In 3) Provide regular updates Progress,Complete for items on the AMI f) Status Update Program Cleanup 2) AMI Program Cleanup Checklist Completion details 4) Once all items are on the AMI Program Cleanup List are complete,Aqua Metric will provide the following: a) Benefits Verification Measurement(Final) b) Transfer of service agreements,tower leases and product warranties to FWWD c) Any training documentation, user guides, etc. not already delivered d) AMI Project Cleanup Completion details 6.2.Business Process Design Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.2.1. AMI Program 1) Conduct Project Kickoff with Phase 1 1) Project Kickoff Presentation Kickoff FWWD 20 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.2.2. Discovery 1) Collaborate with FWWD to Phase 1 1) List of business processes Workshops identify the key stakeholders 2) Business Process Workshop for Business Process Design. Schedule 2) Conduct onsite Discovery 3) Business Process Sessions to identify key areas Stakeholders and business processes that will be impacted by the AMI solution.The Discovery sessions are intended to define the scope and schedule of the Business Process Design workshops. 6.2.3. Current State 1) Conduct the Current State Phase 1 1) Business Process Design Workshops Workshops series of onsite Scope workshops to capture current 2) Current State Process Flows state business processes in Current state process flows are accordance with the Business diagrams that represent Process Workshop Schedule. At FWWD's current technology completion of the onsite and business process. Current State Workshops, both parties will agree to finalize the Business Process Design Scope. 6.2.4. Use Case 1) Incorporate information from Phase 1 1) Use Cases (future state) Development Current State Workshop, discovery sessions and thought leadership to develop future state Use Cases. 2) Review Use Cases with FWWD and document decisions by the team and incorporate into each Use Case 6.2.5. Future State 1) Facilitate 1st pass of Future Phase 1 1) Future State Business Workshops— State Workshops. The basis of Processes (DRAFT) 1st pass these workshops will begin with reviewing the Use Cases and expanding into end-to-end Future State Business Processes.Throughout these workshops,Aqua Metric will document decisions by the teams and incorporate into each Use Case and Future State Business Process. Note:The 111 pass of future state workshops is independent of AMI technology. 21 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.2.6. Future State 1) Facilitate 2nd pass of Future Phase 1 1) Future State Business Workshops— State Workshops. Throughout Processes(Expected) 2nd pass these workshops,Aqua Metric 2) Requirements Document will document decisions by the a) Hardware teams and incorporate into Requirements each Use Case and Future State b) Software Business Process. Requirements Note:Aqua Metric recommends c) Integration scheduling these workshops after Requirements the FlexNet and MDMS solution d) Reporting providers have conducted their Requirements initial orientation and installation. e) Automation Requirements 6.2.7. Synchronize 1) Evaluate Future State Process Phase 1 1) Proposed Synchronization Business Flows and Use Cases of Business Process Design Process Design 2) Collaborate with FWWD to and AMI Solution Design with AMI design and define the AMI a) AMI Solution Design Design Solution Diagram Diagram 3) Collaborate with FWWD to b) Conceptual Integration define Conceptual Integration Diagram Diagram for the AMI Solution c) Future State Business 4) Identify standard technical Process(from Business features that would support Process Design) Future State Process Flows and d) Standard features Use Cases supporting business 5) Identify non-standard process technical features that would e) Non-standard features support Future State Process supporting business Flows and Use Cases and builds process upon the future state process flows. 6.2.8. Future State 1) Facilitate 3rd pass of Future Phase 2 1) Future State Business Workshops— State Workshops for the Processes(Final) 3rd pass purpose of review the Future State Business Processes. 2) Conduct iterative reviews with FWWD to finalize Future State Business Processes. Note:Aqua Metric recommends scheduling these workshops as part of FWWD's Phase 2 Pilot. 22 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.2.9. Business 1) Create training plan. Phase 2 1) Business Process Training Process 2) Create training content for the Plan Training purpose of providing 2) Business Process Training comprehensive view for Future Documentation State Business Processes (Final). 3) Training attendance 3) Conduct training sessions and records train-the-trainer with FWWD. Note:Aqua Metric has estimated 820 hours for Business Process Training. This includes time for planning, developing and delivering content. 6.2.10 Operational 1) Assist FWWD's evaluation Phase 1 1) Assessment of operational Impact of existing operational procedures impacts Support procedures, ordinances and 2) Assessment of ordinance policies and identify impacts. and policy impacts 6.2.11 Business 1) Perform two (2) onsite Business Phase 1) Business Process Audit Process Audit Process Audits on all Future 2, Summary and State Business Processes Phase 3 Recommendations developed and trained upon. 2) Updates to Future State The Business Process Audit will Business Processes consist of observing FWWD documentation staff to ensure process steps 3) Updates to Business are followed as intended and Process Training identifying inherent issues with Documentation the processes themselves. 2) Update Future State Business Processes and Business Process Training Documentation based upon audit findings 23 Aqua Metric Sales Company Professional Services Agreement-Technology 6.3. Public Awareness Campaign Support Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.3.1. Public 1) Outline goals, objectives, and Phase 1 1) Public Awareness Awareness strategy of the program Campaign Plan Campaign Plan 2) Identify topics and the a) Goals,objectives and communication channels that strategy will be leveraged for both b) PAC Evaluation internal and external Process and Metrics communications c) PAC communication 3) Develop PAC Evaluation Process plan and Metrics d) PAC communication 4) Finalize the Public Awareness content Campaign Plan that will serve as e) Define PAC Status the guideline for the project Reports deliverables 5) Work with FWWD to develop bilingual content for a variety of PAC communication content including(but not limited to): a) Press releases b) Brochures c) Bill insert and customer letters d) Web Site content e) Video f) Other formats as needed g) Newsletters Note:Aqua Metric may need to engage additional experts to assist with creating PAC communication content(i.e.—Video,web site content). Aqua Metric has budgeted 624 hours to plan, develop and evaluate effectiveness of the Public Awareness Campaign. 6.3.2. Public 1) Measure the effectiveness of All 1) PAC Evaluation Results Awareness the PAC in accordance with the Phases 2) Updated PAC Plan Evaluation Public Awareness Campaign communication content Plan. Metrics will be defined during the program and may include, but are not limited to: a) Focus groups b) Surveys c) Website traffic metrics d) Customer call information 2) Update PAC communication content based upon PAC Evaluation Results 24 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.3.3. Public 1) Work with FWWD to identify All 1) Organizational Awareness Awareness and the key topics that will drive the phases Content (presentation, e- Organizational content of the FWWD's internal mail newsletter, printed Awareness communications flyers, or other formats as Support 2) Assist FWWD with preparation deemed appropriate by and presentation of AMI FWWD) Program Overview and Benefits to internal and external stakeholders 3) Assist FWWD with preparation and presentation of regularly scheduled AMI Program updates to internal stakeholders 4) Assist FWWD with preparation and presentation of regularly scheduled AMI Program updates for city officials 5) Collaborate with FWWD to create content for key topics. Conduct special sessions as needed with FWWD to address topics of greater sensitivity. Key topics may include, but not limited to: a) AMI project benefits and information sharing b) Transitional change effecting the organization c) Theft Detection and Enforcement Policy d) Green Initiative Concepts developed with AMI e) Areas of concern including—Radio Frequency (RF), Privacy, Cyber Security, etc. 6) Support FWWD's organizational change management with adaption of future state business processes and AMI Solution Note: FWWD will initiate this work through-out the AMI Program. Note:Aqua Metric has budgeted 282 hours for Organizational Awareness Support. 25 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.3.4. Public a. Deliver status reports on a Phase 2) PAC status reports (ongoing) Awareness monthly basis (estimated at 3 2, Campaign years)to formally communicate Phase Reporting the progress made on the 3, Public Awareness Campaign Phase 4 Note:Aqua Metric has budgeted 126 hours for Public Awareness Campaign Reporting. 26 Aqua Metric Sales Company Professional Services Agreement-Technology 6.4. Benefits Verification Support Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.4.1. Define AMI 1) Support FWWD to define AMI Phase 1 1) AMI Program Goals and Goals and Program goals and benefits Benefits Benefits 2) Provide a AMI Program a) AMI Program Goals business case model and review b) AMI Business Case assumptions and results with c) Benefits Measurement FWWD Scorecard 3) Support FWWD to define AMI Program metrics and processes to track/report metrics 6.4.2. AMI Program 1) Beginning in Phase 2 Pilot,work Phase 1) Benefits Measurement Metrics with FWWD to capture and 2, Verification (quarterly Tracking report Benefit Measurement Phase update) Verification on a quarterly basis 3, through-out the AMI Program Phase 4, Phase 5 6.4.3. AMI Program 1) Assist FWWD to finalize and Phase 5 1) Benefits Measurement Metrics summarize the benefits Verification (Final) Tracking verification report a) Summary b) Benefits Measurement Scorecard 27 Aqua Metric Sales Company Professional Services Agreement-Technology 6.5. AMI Network and Software Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.5.1. AMI Solution 1) Collaborate with FWWD to Phase 1 1) AMI Solution Design Design with finalize the AMI Solution Design a) AMI Solution Integration with integrations Diagram with 2) Confirm the initial software Integrations installation of the AMI Solution b) AMI Network will meet the AMI Solution Design and Design. Reinstall/reconfigure Propagation Study AMI Solution as needed to meet c) Integration Design the AMI Solution Design. Document(s) 3) Collaborate with FWWD to 2) Process to handle AMI develop and document the AMI Network expansion Network Design and Propagation Study a) Review FWWD growth projections b) Develop plan to incorporate new service areas into the AMI Network 4) Collaborate with FWWD to create detailed Integration Design Documents for the following: a) Meter inventory file b) Meter swap files c) CMEP integration (AMI Headend to MDMS) d) MDMS synchronization (from CIS) e) MDMS weather feed f) CustomerConnect synchronization (from CIS) g) GIS integration h) Cycle billing integration (assuming MVRS file format from MDMS) 5) On-Demand read integration (assuming multi-speak interface) 6.5.2. AMI Network 1) Work with FWWD to evaluate Phase 1 1) AMI Network Design base station site options Propagation Study 2) Confirm FWWD meter locations and service territory 3) Perform site visits with FWWD to evaluate network coverage and site installation requirements 4) Conduct AMI Network Propagation Study 28 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.5.3. AMI Network 1) Confirm location for base Phase 1) Tower leases (as needed) Install station(s)with FWWD 1, 2) Site survey(s) 2) Confirm Pilot base station site(s) Phase 2 3) Installed AMI network with FWWD and equipment including 3) Work with FWWD to establish Phase 3 antennae, base station, tower lease(s) as needed cabling, electrical, etc. 4) Perform base station site 4) Base Station Load Study surveys(s)with FWWD to 5) Base Station determine installation Certification(s) requirements 5) Procure AMI network equipment according to site survey(s) 6) Conduct load study 7) Schedule installation services a) Electrical (including permit) b) Network c) Equipment 8) Prepare site(s) and install AMI network equipment 9) Configure base station(s) 10) Confirm base station(s) communication with AMI software 11) Certify base station(s) 12) Note: Once a base station is certified, Aqua Metric will provide maintenance support under the AMI Network Technical Support Agreement. 6.5.4. AMI Software 1) Provide AMI Software to FWWD Phase 1 1) Access to AMI Software Installation a) FlexNet with initial b) MDMS configurations for c) CustomerConnect FWWD: (HomeConnect and a) FlexNet BizConnect) b) MDMS d) NovusCenter c) CustomerConnect d) NovusCenter 6.5.5. FlexNet 1) Conduct workshops with FWWD Phase 1) Sensus FlexNet setup Configuration to determine FlexNet 1, with FWWD configurations: Phase 2 configurations a) Meter/Radio profiles b) Consumption measurement c) Meter events and alarm d) User ID's and privileges e) Reports 2) Configure FlexNet in accordance with FWWD's decisions and Business Process Design workshops, requirements and future state process flows 29 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.5.6. MDMS 1) Conduct workshops with FWWD Phase 1) MDMS setup with Configuration to determine MDMS 1, FWWD configurations configurations: Phase 2 a) Initial data synchronization (requires at least one manual synchronization with CIS) b) Meter configuration profiles c) Consumption measurements and billing rates d) Meter events and alarm profiles e) VEE configurations f) KPI Dashboard g) Task Manager h) Weather Feed i) Reports j) User ID's and privileges 2) Configure MDMS in accordance with FWWD's decisions and Business Process Design workshops, requirements and future state process flows 30 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.5.7. CustomerConnec 1) Conduct workshop to determine Phase 1) CustomerConnect setup t Configuration CustomerConnect 1, with FWWD configurations: Phase 2 configurations a) Initial data synchronization (requires at least one manual synchronization with CIS) b) User registration process c) Library widget(s) d) Billing Tiers and Rates e) Appearance/Branding f) Customize the General Appearance/Branding to match FWWD's existing H2Online web portal g) Customize the Header h) Customize the Navigation Menu i) Customize the Page Sections j) Customize the Marketing Footer k) Internal FWWD user ID's and privileges 2) Configure CustomerConnect in accordance with FWWD's decisions and Business Process Design workshops, requirements and future state process flows 6.5.8. NovusCenter 1) Conduct workshops with FWWD Phase 1) NovusCenter setup with Configuration to determine NovusCenter 1, FWWD configurations configurations: Phase 2 a) Meter swap file b) Meter installation completion file c) Reports d) Prepopulate valve locations e) Logger profile f) Service order workflow g) User ID's and privileges 31 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.5.9. Meter Swap 1) Support FWWD's processes to Phase 1) Meter Installation Plan: Integration handle meter exchange data 2, a) Meter Inventory File during the Purchasing and Phase Specifications Installation Services: 3, b) Meter Swap File a) FWWD's Meter Inventory Phase 4 Specifications File load process c) Meter Installation b) FWWD's Meter Swap File Completion extract process Specifications c) FWWD's Meter Installation 2) NovusCenter file extracts Completion load process and file load processes: 2) Create NovusCenter data a) Meter Inventory File extracts and file load processes b) Meter Swap Load to support Meter Installation Process Plan: c) Meter Installation a) Meter Inventory File extract Completion File b) Meter Swap File load process c) Meter Swap Completion File extract Note: File specifications for these integrations will be defined as part of the Meter Installation Plan 32 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.5.10 AMI Software 1) Provide the following Phase 2 1) Integrated AMI Solution Integration integrations of the AMI in accordance with Software: FWWD's AMI Solution a) Integration from the AMI Design Meter to FlexNet b) Integration from FlexNet to the MDMS c) Integration from MDMS to the WebPortal d) Integration from MDMS to AMI Meter for on-demand read request and response 2) Collaborate with FWWD to build and deploy the following integrations: a) Access FWWD CIS for MDMS Synchronization process b) Access FWWD CIS for CustomerConnect Synchronization process c) Access FWWD's Billing Request File (generated through CIS) d) Configure MDMS to present FWWD's GIS datavia url live link e) Evaluation of CustomerConnect to FWWD's existing customer portal (assuming LDAP authentication) 6.5.11 AMI Software 1) Support FWWD's effort to build Phase 2 1) MDMS Synchronization Integration and deploy the following system specifications Support integrations: 2) CustomerConnect a) Make CIS Data available for Synchronization daily MDMS Synchronization specifications process 3) MDMS Billing File b) Make CIS Data available for (assume MVRS format) CustomerConnect 4) On-demand Read Synchronization interface specifications c) Testing and updates to (assume multi-speak FWWD's CIS to process interface) MDMS billing file for cycle billing d) Integration from FWWD's existing systems to utilize MDMS OnDemand Read interface 33 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.5.12 FlexNet User 1) Schedule and conduct onsite Phase 2 1) FlexNet User Training Training user training for FlexNet documentation including: 2) Training attendance a) %day session overview of records FlexNet b) 2 day system operator and system administrator training 6.5.13 MDMS User 1) Schedule and conduct onsite Phase 2 1) MDMS User Training Training user training for MDMS documentation including: 2) Training attendance a) %day session overview of records MDMS b) 3 day process and functional training;topics typically include: 2) MDMS Overview 3) Administrator Functions 4) Data Setup 5) Meter Reads &Validating, Estimating, Editing(VEE) 6) Using Maps and Reports 7) Advanced Reporting 8) System Administration 9) Billing&Customer Service Functions 10) Task Manager 11) Process Automation Overview a) 2 day advanced process automation training 6.5.14 CustomerConnec 1) Schedule and conduct onsite Phase 2 1) CustomerConnect user t User Training user training for guides CustomerConnect: 2) Training attendance 2) HomeConnect Solution Overview records Session (2 Hours) 3) BizConnect Solution Overview Session 4) CustomerConnect Administration Training Session (4 Hours) 5) CustomerConnect Platform Solution End-User Training Session (4 Hours) 6.5.15 NovusCenter 1) Schedule and conduct user Phase 2 1) NovusCenter user User Training training for NovusCenter training documentation a) NovusCenter Overview 2) Training attendance b) Meter Services Training records Session (for Meter Installation QA) c) Leak Detection Training Session 34 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.5.16 Define AMI 1) Submit initial AMI Solution Phase 1 1) AMI Solution Solution Acceptance Test plan and test Acceptance Test Acceptance Test cases to FWWD for their review: a) Test Plan a) Provide overall AMI Solution b) Test Cases test cases b) Provide FlexNet test cases c) Provide MDIVIS test cases d) Provide CustomerConnect test cases e) Provide NovusCenter test cases 2) Collaborate with FWWD to review, update and finalize the AMI Solution Acceptance Test plan and test cases 3) Incorporate any changes made during final Business Process Design Workshops 35 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.5.17 AMI Solution 1) Provide subject matter expertise Phase 2 1) AMI Solution Acceptance Test and user support regarding AMI Acceptance Test Results Solution 2) Track progress of the AMI Solution Acceptance Testing against the test plan: 3) Number of test cases pending 4) Number of test cases completed 5) Number of test cases failed or blocked and related issues 6) Detailed list of test issues (or defects) including description, test case,test data attachment, resolution owner,status and expected resolution date 7) Work with FWWD to resolve issues identified during the AMI Solution Acceptance Test: a) Address any training issues or questions that may be impeding the AMI Solution Acceptance Test b) Apply configuration changes as needed to address issues c) Work with 3rd parties AMI Solution providers as needed or FWWD to address issues requiring software patches or updates to AMI Solution and related integrations d) Work with FWWD to address issues for integrations to FWWD's existing systems 36 Aqua Metric Sales Company Professional Services Agreement-Technology 6.6. Purchasing and Installation Services Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.6.1. Meter 1) Collaborating with FWWD to Phase 1) Meter Installation Plan Installation define the following meter 1, a) Meter deployment Plan installation processes: Phase plan a) Meter purchasing and 2, b) Meter purchasing inventory control processes Phase 3 and inventory b) Meter installation preparation and control procedures processes (i.e.—meter box Phase 4 c) Meter install cleanout and meter lid (if checklist drilling) needed) (residential & c) Meter installation processes commercial) and coordination with Public d) Detailed Awareness Campaign procedures for d) Replacement of related meter installation equipment (i.e.—broken and post meter lids) installation e) Meter installation exception e) Detailed processes (i.e.—existing leak, procedures for other utilities in meter box) meter installation including reporting skips/exceptions f) Meter installation checklist f) Definition of meter g) Define data requirements for installation data inventory updates, meter requirements: installation files i) Meter Note:Aqua Metric will work with inventory file FWWD to provide Meter Installation ii) Meter swap file Plan for Phase 2 (Pilot), 3 and 4(Full (from FWWD) Deployment). The Meter Installation iii) Meter Plan will be provided prior to installation completing the previous Phase. For completion file example, Pilot Meter Installation Plan iv) Meter will be provided at the end of Phase 1. installation exception/skip report 6.6.2. Meter 1) Order AMI meters and related Phase 1) Meter inventory file Procurement meter equipment: 2, and Inventory 2) Take delivery of the AMI Meters Phase Services and provide shipping information 3, to FWWD Phase 4 3) Provide inventory control and and secured storage of AMI meters Phase 5 and meter equipment (if needed) 37 Aqua Metric Sales Company Professional Services Agreement-Technology Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.6.3. Meter 1) In accordance with the Meter Phase 1) Installed and configured Installation Installation Plan, perform meter 2, AMI meters/radios Services installation services: Phase 2) Meter install completion 3, data a) Perform meter box cleanout Phase 4 3) Meter exception/skip b) Perform meter lid drilling and and report install radio housing Phase 5 c) Install AMI meters and radios; (if replacement of related needed) equipment d) Install AMI radios for previously installed AMI meters e) Provide meter install completion data to FWWD f) Identify and report meter installation skips/exceptions to FWWD g) Provide onsite coordination and oversight of the installation services h) Coordinate with FWWD to perform quality assurance checks and address installation issues i) Report meter installation progress to FWWD throughout the meter installation phases 2) Manage the meter installation schedule on an ongoing basis and publish adjustments (i.e.—delays due to weather)to FWWD 38 Aqua Metric Sales Company Professional Services Agreement-Technology 6.7. Ongoing Aqua Metric Support Services Ref Activity Description of Service Phase Deliverables and Milestones (Bold) 6.7.1. Aqua Metric 1) Apply base station firmware Phase 1 1) AMI Network incident Support patches and updates and tracking and resolution Services 2) Remote diagnostics and Ongoing (as needed) troubleshooting of operational 2) Base station repair(as issues related to the AMI needed) Network 3) Annual AMI Network 3) Remote diagnostics and health check up troubleshooting for base station issues (includes both hardware and software) 4) Repair or replace defective base station parts or base station units (including labor) 5) Assistance with creating and maintaining meter profiles 6) Annual AMI Network health checkup: a) Base station health check-up b) Analyze FWWD's growth and confirm AMI Network coverage 7) Training and on-going subject matter expertise to support FWWD's responsibilities related to maintaining the AMI Network 8) Ongoing subject matter expertise for the related areas: a) Updates/upgrades of Sensus FlexNet and interfaces b) Sensus products and tools c) Meter and radio end-point installation and configuration processes 39 Aqua Metric Sales Company Professional Services Agreement-Technology 6.8. NovusCenter SaaS Ref Activity Description of Service Phase Deliverables and Milestones(Bold) 6.8.1. NovusCenter 1) Provide NovusCenter software to Phase 1 1) NovusCenter software Software as a FWWD and Service 2) Provide subject matter expertise Ongoing regarding the NovusCenter software to FWWD users 3) Provide incident tracking, troubleshooting and resolution 4) Provide NovusCenter software patches, updates and upgrades to FWWD with training 5) Perform daily backups for NovusCenter 6) Perform hardware maintenance and support 7) .Perform operating system administration and support 8) Perform database administration and support 7. FWWD Responsibilities 7.1. FWWD will be responsible for the following: 1)FWWD will provide a single point of contact for the AMI program management. 2)ldentifying FWWD stakeholders to participate in Business Process Design and AMI Design sessions, workshops, etc. 3)Scheduling of FWWD personnel for meetings,review sessions,workshops, etc. in a reasonable timeframe. 4)Providing facilities for on-site meeting including meeting rooms,printers,video equipment,telephony equipment, intemet access. 5)Providing facilities for Aqua Metric on-site program manager including office space and desk. 6)Providing access to FWWD's facilities for purposes of installing and maintaining the AMI Network. 7)Review and provide feedback/approval of Exhibit C-Major Milestone deliverables within 5 business days. 8)Providing meter swap file(s)to facilitate the Purchasing and Installation services. 9)Providing CIS data for MDMS and CustomerConnect synchronization. 10) Testing and updates to FWWD's cycle billing processes with the MDMS billing file. Both parties assume this will be a component of FWWD's AMI Solution Acceptance Test. 11) Changes to FWWD's existing systems(i.e.—CIS,GIS, etc.)for integration with the AMI Solution. 12) Conducting AMI Solution Acceptance Test. 13) FWWD will need to provide data and information to support AMI Design and Business Process Design. 14) Training for FWWD's existing systems(i.e. -CIS, GIS, etc.)not included in the AMI Solution. 15) Operational procedures and documentation for FWWD's existing systems(i.e. - CIS,GIS, etc.)not included in the AMI Solution. 16) Provide a document repository accessible to key Aqua Metric team members to store project documents, deliverables, artifacts, etc. 17) Provide backhaul communications for base station(s). 40 Aqua Metric Sales Company Professional Services Agreement-Technology 8. Out of Scope 8.1. For purposes of clarification,the following items are specifically listed as not included in this Agreement: 1) System integration of NovusCenter to support leak detection business processes. For example,NovusCenter automatically generating a service order in FWWD's service order system upon an alert/event generated by a leak detection device(i.e.—PermaNet device). Aqua Metric can provide level of effort for these integrations per FWWD's request. 2) Loading historical data into the AMI Software(i.e.—MDMS or CustomerConnect). Aqua Metric can provide level of effort for these one-time effort(s)per FWWD's request. 3) Applying AMI Meter firmware updates are not included. Aqua Metric can provide level of effort per FWWD's request. Aqua Metric recommends limiting meter firmware updates to preserve the AMI meter's battery life. 4) Base station repairs(parts and labor)resulting from force majeure events(i.e.—weather)are not covered in the Base Station Support Services. Aqua Metric can provide level of effort as needed. 41 Aqua Metric Sales Company Professional Services Agreement-Technology EXHIBIT B PAYMENT SCHEDULE 42 Aqua Metric Sales Company Professional Services Agreement-Technology 30/5/2016(rebbsed) City of Fort WorthAMI Cowl Proposal-Pliases,I&R-Not to Exceed Category Description Quantities Unit Price Extended Price INF M400 Basestaticum(Inclucling Test Enviroramet) 29 $15.000.00 $435,000.00 INF Basestation Antenre Installation(Labor). 29 $11,54791 $334,744.39 INF Basestatlon Installation(Materials Up To 200 ft). 15 $8457.09 $66,856,35 INF Basestation Installation(Materials 200 ft,-300ft). 14 $7,289.19 $102,048.66 INF Backhaul Communications(Cellular) 29 $1,00000 $29,000.00 INF Tower Site tease„ 2 $12,00(100 $48,000.00 INF Load Sbidy(As Required/Per Site) 23 $3.00(100 $69,000.00 - INF Antenna Magnetic Mount Hardware(as required) 4 $4,091.50 $16,390.00 - INF Lattice Tower(Estimated,variable on site requirements) 4 $50.000.00 $200,000.00 INF FL6501-GB Hand Held 10 $0.375.00 $43,750.00 INF Single EthernetDock 10 $500.00 $5,000.00 INF Command Link 10 $437.50 $4,375.00 INF AUtoBead/Fleld Logic Software 1 $125.00 $125.00 INF llniPro Communication Tool 10 $24334 $2,433.40 INF ProjectManagement(Annual) 1.25 $200.000.00 $250,000.00 INF lAnnual Support(A-M Annual Maintenance Agreement),: 2 $100,000.00 $200,000.00 Subtotal $180 722.80 Category Description Quantities Unit Price Eitended Price RNI MetetSense CustomerConnectPortal Managed ServiceModel(FY2D16/2D17)aa 2 $22,222.22 $44,444.44 RNI MeterSense MDMSManaged Service Model(FY2016/2017),a 2 $6666667 $133,333.3 RNI RNI SaaSSetup Fee Phase 11 1 $7,629.63 $7,629.63 RNI Annaal RNl SaaSFea(FY2016/2D17)ar 2 $23,24333 $46,486.66 RNI RNI Core Education-Onsite, 1 $9,444.44 $9,444.44 RNI Solutlan Deslgn&Business Process Workshops 1 $40.000.00 $40,000.00 RNI RNI wMeter9erueMDMSStandardinl ration 1 $12,000.00 $12000.00 Subtotal $293,33&71 C.e,.N Do Option Eatended Price RNI JCMIPS,1,p&Installetlon 1 $1,777.78 $1,777.78 RNI MuleSpeak Setup,Integration,and Testing 1 $5,777.78 $5,777.78 RNI Application Engineering Manager(FullUme Per Month). 1 $22,22222 $22,222.22 RNI Advanced Hands-OnEducation&TraWng(Pat Day), 3 52,055.56 $6,166.68 Subtotal $35,944.46 HM Meter9ense MDM and Compass 1 $409,500.00 $409,500.00 HAR HomeCorvsect&arrc.nectWeb Portal. 1 $166500.00 $166,500.00 HAR Implementation Services. 1 $596,400.00 $596,400.00 HAR Harris MeterS-w Software Amual Support,: 2 $144,000.00 $288,000.00 Sub-total $1460400.00 UWC JAMIA1111mant 100X, $144,200.00 $144,200.00 UWC Business Process,Development 95% $709,700.00 $677,440.91 UWC Public Awareness Campaign 7996 $239,925.00 $189,940.63 UW C Benefits VerlRcatfon 5895 1 $124,640.00 $72,706.67 Subtotal _ $10 28&21 MTR 5/8'x3/4"WI TR/PL CF. 7089 $75.29 $533,730.81 MTR 3/4'SSRII TR/PLCF. 8 $10610 $848.80 MTR 1'Sill TR/PL C.F. 3850 $17317 $668,436.20 MTR 11/2'OMNI R2 TR/PL C.F. 104 $340.95 $35,458.80 MTR 2'OMNI R2TR/PL CF. 366 $473.38 $175,067.08 MTR 3'OMNI C2TR/PL CF. 39 $1,13682 $44,335.98 MTR 4'OMNI CZTR/PL CF. 36 $1,974.47 $71,080.92 MTR 6"OMNI C2TR/PL C.F. 44 $3.330.20 $146,528.80 MTR 8"OMNI C2TR/PLCP. 13 $5,645.36 $73,389.68 MTR 30'OMNI C2TR/PLC.F. 1 $7,37539 $7,375.39 MTR MXU 520M SnartPoint Single Port M260 $84.81 $870.150.60 MTR IMXU520PA SmartPulnt Oual Por[ I SS0 1 5104.48 $67,912.00 Subtotal $2,694,335.06 43 Aqua Metric Sales Company Professional Services Agreement-Technology INS Meter Bar Lids(seedatack) 11000 $31.72 $348,920.00 INS 5/8'&3/4"Meter&SmartPolntinstallaticn and Activation(Approximately 20 Minutes)°ao 7097 $35.00 $249,395.00 INS I"Meter&SmartPorntInstallation and Activation(Approximately 20 Minutes)x" 3860 $35.00 $135,100.00 INS Residential Meter Bores Vac(Approximately 5 Minutes) 228673 $3.06 $699,739.38 INS Drill Holes In Cast Iron Meter Box Uds(ApproxLmately 5 Minutes) 237905 $9.33 $2,219,65365 INS 11/2'Meta&SnartPolnt Installation and Activation(Approximately 45 Minutes)'' 104 $19292 $29,063.68 INS 2'Meter&SnartPolntlnstallatron and Activation(Approximately 45 Minutes)4" 366 $216.45 $79,220.70 INS 3'Meter&SmartP0lntinstallation and Activation(Approximately 75 Minutes)41° 39 $43384 $16,919.76 INS 4"Meter&SnartPoInt Installation and Activation(Approximately 75 Minutes)Alt 36 $541.41 $19,490.76 INS 6"Meter&SmartPo(nt Installation and Activation(Approximately 75 Minutes)Art 44 $770.34 $33,894.96 INS 8"Meter&SmartPolnt Installation and Active Ion(Approximately 75 Minutes)A't 13 $1,063.61 $13,826.93 INS 10"Meter&SmartPdnt install atron and Activation(Approximately 75 Minutes)°'f0 1 $1,579.55 $1,579.55 INS SnartPoint Installation&Activation Only 181 $43.75 $7,918.75 INS ScraPMeta Valuer 6% -$945.701.20 -$53,42380 INS Product Segirg(Monddy) 12 $4,705.88 $56,470.56 Subtotal $3 847 769. �7 INC Replace or Remove Meter Box(5B'-1")(Approximately 20 Minutes) INC Replace Curb Stop(5/8"-I')(Approximately 30 Minutes) INC Replace Meter Tail(5/8'-1")(Approxrmatdy 10 Minutes) INC 5/8'-3/4"Direct Connect(Approximately 45 Minutes) INC I"Drrect Connect(Approxrmately 45 Minutes) INC 1.5'&2"Meta Box Reset(Approxrma tely 20 Mimtes) INC 1.5"Meter Re-Pipe INC 2"Meter Refrpe INC Pull Meter Only INC Meter Resetter/Rlser installation INC Additional Pictures-Price Pa Picture INC Remove Meter and Plug Line(3"and above Meters) INC Special Job Hourly Rate(Priced pa Person/per Hour) INC DFW 16%11"C"Black Rebar Piddiole AMR Knockout tLorghorn'UdType'B"Ud INC DFW16X14'Cm Blade Rebar Pidd,ole AMR Knockout•Longhorn'UdType'F"Lid INC 3/47Ccupl1ng Set(lmIudes2 Couplkgs and Gaskets) INC I'Coupling Set(Includes 2 Cou dings and Gaskets) INC 3/4'P-24350 R N CrS P1 X MN Straight Ball Curb Stop W/LW Low Lead INC 1'P-24350 R N LTSPIXMN STR Ball Meter Stop W/LW Low Lead INC 5/8x3/4x7B-24118 R N Resetta Bal Metaw Satter Lav Lead INC 1'x10"B-24118 R N Resetter Ball Meter Resetta Low Lead INC 3/4"MU P15403 N PJ X PJ CTS StraightCoupltrg Low Lead INC I-MUP15403 PJ X PI CTS Straight Coupling Low Lead INC 3/4'P14258 N PJXMN Argle Stop W/LW 5/8'x3/47x3/4"No Lead INC 1'PI 4258N PJXMN Angie Stop GTS W/LW No Lead INC 3/4"P-25146 R N PJXPJ Sr Ball Curb Stop CTS W/LW Low Lead INC 1'P-25146 RN PJXPJ Sr Ball Curb Stop CrSYV/LW Low Lead INC 3/4"MU P15403 N P1 X PJ CTSStraightGouplIng Low Lead INC 1"MU P15403 N PJ X PI CTSStrarghtCoupling Low Lead INC 3/4'PI5451 N PJXHP Coupling CTS Low Lead INC 1"P15451 N PJXFIP Coupling CTS Lay Lead INC 3/4"P15428 N PJWs41P Coupling CrS Low Lead INC 1'PI 5428 N PJXMIP Ccuplirg CTS Low Lead INC 3/4'SO-i40 PVC SXS Coupling 429-007 INC 1"SCH40 PVC SXS Coup8ng 429-010 INC 3/4'SCH40 PVC SXFIP Adapter 435-007 INC 1'SCH40 PVCSXFIP Adapter 435-010 INC 3/4"SCH40 PVC SXMIP Adapter 436-007 INC 1'SCH40 PVC SXMIP Adapter 436010 INC 3/47XI00'TYPE K SOFT COPPER(Per 100 Ft) INC 1"XIOVTYPIE K SOFT COPPER(Per 100 Ft) INC 3/4"X 20'BE SCH40PVC RPE(Pel20Ft) INC 1'X20'BE SCH40PVCPIPE(Per 20Ft) INC 1-1/2'3-20200 N RP)RP Ball Valve W/LW Low Lead INC 2"8-20200 NRPXFIP8.11 V.tve WA.WLow L.�d INC 2-1/230455 FLG Soft&Nut Set W/Blue Coated Nut INC 11/2"FLGDrop4n GaeketNeoprene INC 2'R-G Drop-fn Gasket Neoprene INC 1-1/2 UP6458R THRD GVW/BR HWW/Brass Handaheof No Lead INC 2"UP6458RZTHRD GV W/BR HW No Lead INC 1-1/2 P35428 N PIXMIP Coupikg CTSLcw Lead INC PMUPI5428NPJXMIPCouplirg CrSLav Lead INC 1-1/2 P15451 N PJXHP Coupling CTS Low Lead INC 2'P35451NPJXFIPCoupllrg CTSLav Lead INC 1-12"MUP35403NPJXPJCrSStrarght Coup)Ilrg Low Lead INC 27MUP15403NPJXPI CTSStrelSht Coup(Ilrg Low Lead INC 1-12'50H40 PVC SXS Coupling 429-015 INC 1-1/2"50440 PVC SXFIP Adapter 435-015 INC 1-12"SCH40 PVC SXMIP Adapter 436015 INC 2-12"SCH40 PVC SXS Coupling 429-025 INC 2-12"`-a40 PVC SKAP Adapter 435.025 INC 2-12"SCH40 PVC SKMIP Adapter 436-025 Subtotal $243,609.55 44 Aqua Metric Sales Company Professional Services Agreement-Technology LDS Leak Detection Equipment -- 1 5IQt%472.00 LDS pressure Monitoring stem 1 5107,860.23 51 07.1360.24 Sub-total $714,337.24 INF FrowrementolMete,&Smartt-bintlns llatlon 1806722.80 RNI 5encis O tlonal Services As R utred Re nested 329282.97 HAR Harris So[ware License-Pro ectMan anent-Annual5o are 5r ort ]46 400.00 UWC Utiilwarks-Assessmen Business Process Dmal Public Awareness Campaign and Benefits Verification 1084288.21 MTR Metas&SmarIPOlnn 694335.06 INSProwrementofMetw&SmartPofntInsMitation 847769.88 INC AMI Components Not Otherwise edliad&Installation Labor 24 609.55 LDS Leak Detection Pre sure Monitorl stem-Field Unit Software anclTrarring 5ZI4,33Z.Z4 Sub-Total $11,6130,740.71 Parfcrrrum.&Pa ant Bond $10;955.80 Deployment Total $11,7W,69&51 1.All qu0ta5 are vend for 90 days from date of quotation. Z No Freeht costs on orders exceeding$5,000.00. 3.Payme t.Net 30 after receipt of verifiable Im olce. A Basesmtiwr and Basestation Insta0aIlan quantities are estimated and subject to charge pendirg final resiew and completion of propagation analysis. 5.Trairing Induces 1/2-Day System Overview Series,2-Day Role Based RNI instruction(1-Day System Operator&1-0ay System Administrator). &No onsite travel required,If onsite travel requested,T&E would be billed at actual rates based on City approval. 7.Travel and expense included in price. 8.Solu dons and servtces v411 be delfwred as described In&NbitA,Statement of Work 9.Meter instaIlations;include Ike for like meta installation and SnartPoint activation only.Additional materials which may be required to complete the installation,such as Barges,couplings,etc,are not included. 10.Any alterations required during Installation of the mete will be covered under the appropriate listed Incidental price or billed by the Special Job Hourly rate. 11.Scrap Meter Value based on cunentmarket values Value shown is estimated and will be conlingenton current marketvalue at time of scrap. 12.Costproposal amounts for future recurring operational costs will be based on actual program start date.Thew recurring costs revert to Operational Budgetitens atend of project 13.Prices for meter Installation incidental equipment are provided for budgetary purposes.Aqua Metricvvill Invoice the actual costs incurred(including shipping)for these line(tans 45 Aqua Metric Sales Company Professional Services Agreement-Technology EXHIBIT C DELIVERABLE ACCEPTANCE FORM AND MAJOR MILESTONES DELIVERABLE ACCEPTANCE FORM Services Delivered: Milestone/Deliverable Ref.#: Milestone/Deliverable Name: Unit Testing Completion Date: Milestone/Deliverable Target Completion Date: Milestone/Deliverable Actual Completion Date: Approval Date: Comments(if needed): Approved by Consultant: Approved by City's Program Manager: Signature: Signature: Printed Name: Printed Name: Title: Title: Date: Date: For Director Use Only Contracted Payment Amount: Adjustments, including penalties: Approved Payment Amount: 46 Aqua Metric Sales Company Professional Services Agreement-Technology • Phos' - _ vereNe Timing Ztifiation for each Base Station site(Pilot).Possible estatlon sites for pilot include: Base station -AT_309299 Blue Mound Rd. Certification 1 -Bradley EST -North Beath Radio Tower Certification report for each de Io ed be se station. -AT 3749128eah&Basswood Q12017 Contentsindude: Future State Business Aqua Metric wllI del Iver Future State Business Processes -Future State Business Process Flows(expected) Processes(Expected) 1 (expected).Note:The 3rd pass of Future State Business -Requirements Document Q22017 Processes will occur In Phase 2 Use Cases Using the Business Process Design,synchronize the Conte ntsInd ude: design of the ANSolution with Business Process Design -Proposed AMI Solution Design Synchronize Business whereby the proposed design supports and builds upon -Conceptual Integration Design supporting Business Process Design and 1 the future state process Rows.The deliverable will Process Design Q22017 AN Solution Design delineate between standard and non-standard tedinical -Future State Business Pro—(from Business Process features with plans to address non-standard technical Design) features. •Standard Feature su rin business r AN Goals and Benefits Define AM Goals and -AMI Program Goals Benefits 1 -AM Business Case 022017 -Benefits Verification Scorecard After3rd series of workshops the proposed AMI Options Seleded will be memorialized Ina document for review AM Options 1 bystaffand to be presented to Assistant Water Director Support FWWD'sa I process. Selection and Water Diredorand possibly Assipprova pstant City Manager for Design Acceptance Milestone(Thisshould kids other Q22017 Presentation to Exectutive Team,approval of propsoed Design Accaptance AN Options Selection Design and exeduted Acceptance Milestone 1 Form(I may have some terminology and timingmixed up SupportFWWD'sapproval process. here)(Same as above) Q22017 Define AM Solution •AM Solution Acceptance Test Acceptance Test 1 -Te st t Plan -TesUses Q22017 •AM Solution Design -AMI Solution Diagram with Integrations AM Solution Design 1 -AMI Network Design and Propagation Study -Integration Design Document(s) -Processtc handle AMI Network expansion Q32017 -Meter dept oyment plan -Meter purchasing and Inventory control procedures -Meter Install checklist(residential&commercial) -Detailed procedures for meter installation and post Meter installation Installation Plan(Pllot) 1 -Detailed procedures for meter installation skips/exceptlens -Definition of meter Installation data requirements: 'Meter inventory file 'Meter swap file(from FW WD) 432017 •Pub llcAwareness Campaign Plan -Goals,objectives and strategy PublicAwareness 1 -PAC Evaluation Process and Metria Campaign Plan -PAC communication plan -PAC communication content -Define PAC Status Re penis Q32017 Future State Business 2 Future State Business Processes(Final) Processes(Final) 462017 Contentsindude: Business Process2 •Business Process Training Plan Training •Business ProcessTralning Documentation •Training attendance records Q12018 AM System 2 AN Solution Acceptance Test Results Acne tanceTest 432018 Benefits Verification This is a ongoing quarterly deliverable that begins in Pi lot Q32018 Scorecard(quarterly 2 once both parties agree that we have deployed enough Benefits Verification Score card and update) meters to begin Benefits Verification. on oin • Meter tnstallatlon Plan -Meter deployment plan -Meterpurhasing and Inventory control procedures -Meter Install checklist(residential&commercial) -Detailed procedures for meter installation and post Meter Installation Installation Plan(Phase 3) 2 -Detailed procedures formeterinstallation skips/exceptions -Definition of meter installation data requirements: •Meter Inventory file 'Meter swap file(from FW WD) •MeterInstallatice on completion file •Meterinstallattonezon/skip report Q32018 Base Station 3 Base Station Certification(s) Q1and Q2 Certification Certification report foreach deployed base station. 2019 •Meter Installation Plan -Meter deployment plan -Meter purdcasing and Inventory control procedures -Meter install checklist(residential&commercial) -Detailed procedures for meter installation and post Meter Installation Installation Plan(Phase 4) 3 -Detailed procedures for meter Installatton skips/exceptions -Defi Mnition of meter Installation data requirements: ' eter Inventory file •Meter swap file(from FW WD) •Meter Installation completion file •Meter installation exce tion/ski report Q32019 •AM Program Cleanup Checklist -D escription of outstanding Item -Description of plan to resolve item AM Program Cleanup 4 -Target resolution date Checklist -Owner -Status—Pending.In Progress,Complete -Status Update Q22020 AM Program Cleanup 5 AM Program Cleanup Checklist Details Um letion Q12021 Benefits Verification Measurement Final 5 Benefits VerifiicationScorecard(Final) 412021 47 Aqua Metric Sales Company Professional Services Agreement-Technology EXHIBIT D NETWORK ACCESS AGREEMENT 1. The Network. The City owns and operates a computing environment and network(collectively the "Network"). Contractor wishes to access the City's network in order to provide the services related to the City's AMI Program. In order to provide the necessary support, Contractor needs access to Internet, Intranet, Maximo, GIS, and the Sunguard public sector utility billing system. 2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's Network for the sole purpose of providing fulfilling the terms of the Agreement. Such access is granted subject to the terms and conditions forth in this Agreement and applicable provisions of the City's Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are available upon request. 3. Network Credentials. The City will provide Contractor with Network Credentials consisting of user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor. Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being granted for purposes of completing services for the City pursuant to a separate contract, then this Agreement will expire at the completion of the contracted services, or upon termination of the contracted services, whichever occurs first. This Agreement will be associated with the Services designated below. ❑ Services are being provided in accordance with City Secretary Contract No. ❑ Services are being provided in accordance with City of Fort Worth Purchase Order No. X Services are being provided in accordance with the Agreement to which this Access Agreement is attached. ❑ No services are being provided pursuant to this Agreement. 4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed annually if the following conditions are met: 4.1 Contracted services have not been completed. 4.2 Contracted services have not been terminated. 4.3 Within the thirty(30)days prior to the scheduled annual expiration of this Agreement,the Contractor has provided the City with a current list of its officers, agents, servants, employees or representatives requiring Network credentials. Notwithstanding the scheduled contract expiration or the status of completion of services, Contractor shall provide the City with a current list of officers, agents, servants, employees or representatives that require Network credentials on an annual basis. Failure to adhere to this requirement may result in denial of access to the Network and/or termination of this Agreement. 5. Network Restrictions. Contractor officers, agents, servants, employees or representatives may not share the City-assigned user IDs and passwords. Contractor acknowledges, agrees and hereby gives its authorization to the City to monitor Contractor's use of the City's Network in order to ensure Contractor's compliance with this Agreement.A breach by Contractor, its officers, agents, servants, employees or representatives, of this Agreement and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data,terminate the Agreement, and pursue any other remedies that the City may have under this Agreement or at law or in equity. 5.1 Notice to Contractor Personnel — For purposes of this section, Contractor Personnel shall include all officers, agents, servants, employees, or representatives of Contractor. Contractor shall be responsible for specifically notifying all Contractor Personnel who will provide services to the City under this agreement of the following City requirements and restrictions regarding access to the City's Network: (a) Contractor shall be responsible for any City-owned equipment assigned to Contractor Personnel, and will immediately report the loss or theft of such equipment to the City (b) Contractor, and/or Contractor Personnel, shall be prohibited from connecting personally-owned computer equipment to the City's Network 48 Aqua Metric Sales Company Professional Services Agreement-Technology (c) Contractor Personnel shall protect City-issued passwords and shall not allow any third parry to utilize their password and/or user ID to gain access to the City's Network (d) Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic Communications Resources as described in the City's Administrative Regulation D7 (e) Any document created by Contractor Personnel in accordance with this Agreement is considered the property of the City and is subject to applicable state regulations regarding public information (f) Contractor Personnel shall not copy or duplicate electronic information for use on any non-City computer except as necessary to provide services pursuant to this Agreement (g) All network activity may be monitored for any reason deemed necessary by the City (h) A Network user ID may be deactivated when the responsibilities of the Contractor Personnel no longer require Network access 6. Termination. In addition to the other rights of termination set forth herein,the City may terminate this Agreement at any time and for any reason with or without notice, and without penalty to the City. Upon termination of this Agreement, Contractor agrees to remove entirely any client or communications software provided by the City from all computing equipment used and owned by the Contractor, its officers, agents, servants, employees and/or representatives to access the City's Network. 7. Information Security. Contractor agrees to make every reasonable effort in accordance with accepted security practices to protect the Network credentials and access methods provided by the City from unauthorized disclosure and use. Contractor agrees to notify the City immediately upon discovery of a breach or threat of breach which could compromise the integrity of the City's Network, including but not limited to, theft of Contractor-owned equipment that contains City- provided access software, termination or resignation of officers, agents, servants, employees or representatives with access to City-provided Network credentials, and unauthorized use or sharing of Network credentials. ACCEPTED AND AGREED: CITY OF FORT WORTH: AQUA METRIC SALES COMPANY, A REGISTERED D/B/A OF THIRKETTLE CORPORATION: By: By: (� e� - Jesus J.Chapa Name:Chris Thirkettle Assistant City Manager V 01? itle: President Date: '49 pO°°°° te: 10/18/2016 V ATTES3 - _ R e o , By: ary ay i ecr ry ame: r t l e Title: Vice President APPRO AS TO FORM AND LEGALITY: By: mw� Jessica an ang Assistant City Attorney II M&C: None Required 49 Aqua Metric Sales Company Professional Services Agreement-Technology EXHIBIT E VERIFICATION OF SIGNATURE AUTHORITY Full Legal Name of Company: Legal Address: Services to be provided: Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Company and to execute any agreement, amendment or change order on behalf of Company. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Company. Company will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Company. 1. Name: Chris Thirkettle Position: President Signature l 2. Name: Lea Thirkett-le Position: Vice Presdiden` Signature 3. Name: Position: Signature Name: Signature of President/CEO Other Title: Date: k O l 1201 50 Aqua Metric Sales Company Professional Services Agreement-Technology EXHIBIT F APPROVEDSUBCONTRACTORS Technology Subcontractors: Sensus USA Inc. UtiliWorks Consulting LLC N.Harris Computer Corporation Fluid Conservation Systems Inc. (FCS) Labor Subcontractors: Compass Metering Solutions American Utility Services Great Southwest Meters XACT Communications LLC. Advanced Electric Solutions American Tower Asset Sub,LLC 51 Aqua Metric Sales Company Professional Services Agreement-Technology EXHIBIT G TECHNOLOGY SUBCONTRACT ADDENDUM BETWEEN AND Title of Agreement: ("the Agreement") Vendor: Term of Agreement: [months/years] from effective date Notwithstanding any language to the contrary in the attached Agreement by and between ("Contractor") and Aqua Metric Sales Company ("AM") and (collectively the "parties") for services ("services"), the parties hereby stipulate by evidence of execution of this Addendum ("Addendum") below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement. The parties agree that Contractor will provide the services to AM as part of the City of Forth (the "City") AMI Program, as outlined in the attached Agreement, or as agreed to upon extension or renegotiation. This Agreement and Addendum replaces all prior agreements in place between the parties and is a condition precedent,as determined by the City of Fort Worth,to the effectives of the Agreement. 1. Term: The initial term of this Agreement shall begin and remain in effect for _ [months/years], unless extended or renegotiated by the parties. Upon assignment of this Agreement by AM to the City,the City will have the right to terminate this Agreement for any reason and at any time by providing Contractor thirty(30)day's written notice. 2. Services and Costs: [insert brief description of services and costs] 3. Insurance by City: The City is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by Governmental Units," is self-insured and therefore is not required to purchase insurance. To the extent the Agreement requires the City to purchase insurance,the City objects to this provision and will provide a letter of self-insured status as requested by Contractor. 4. Insurance by Contractor: The Contractor shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: (a) Commercial General Liability a.Combined limit of not less than$2,000,000 per occurrence;$4million aggregate or b. Combined limit of not less than$1,000,000 per occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. (b) Automobile Liability Insurance covering any vehicle used in providing services under this Agreement, including owned,non-owned, or hired vehicles,with a combined limit of not less than$1,000,000 per occurrence. (c) Professional Liability(Errors&Omissions)in the amount of$1,000,000 per claim and$1,000,000 aggregate limit. (d) Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. (e) Technology Liability(Errors&Omissions) a. Combined limit of not less than$1,000,000 per claim$2,000,000 aggregate or b. Coverage shall include,but not be limited to,the following: (i)Failure to prevent unauthorized access 52 Aqua Metric Sales Company Professional Services Agreement-Technology (ii)Unauthorized disclosure of information (iii)Implantation of malicious code or computer virus (v) Intellectual Property Infringement coverage, specifically including coverage for intellectual property infiingement claims and for indemnification and legal defense of any claims of intellectual property infringement, including infringement of copyright, or trade mark, brought against the City for use of Deliverables, Software or Services provided by Contractor under this Agreement. Technology coverage may be provided through an endorsement to the Commercial General Liability(CGL)policy, a separate policy specific to Technology E&O,or an umbrella policy that picks up coverage after primary coverage is exhausted.Either is acceptable if coverage meets all other requirements. Any deductible will be the sole responsibility of the Contractor Coverage shall be claims-made, with a retroactive or prior acts date that is on or before the effective date of this Agreement. Coverage shall be maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. (fl Any other insurance as reasonably requested by City. General Insurance Requirements: A) All applicable policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees,officers,officials, agents,and volunteers in respect to the contracted services. B) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. C) Insurers will endeavor to provide Thirty(30) days' notice of cancellation of coverage to the City. Ten (10) days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. D) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A-VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required,written approval of Risk Management is required. E) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. F) Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be delivered to and approved by the City's Risk Management Division prior to execution of this Agreement. 5. Indemnity: To the extent the attached Agreement requires the City to indemnify or hold Contractor or any third party harmless from damages of any kind or character,the City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 6. Attorneys' Fees, Penalties, and Liquidated Damages: To the extent the attached Agreement requires the City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, the City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 7.Law and Venue: This Agreement and the rights and obligations of the parties hereto shall be governed by,and construed in accordance with the laws of the United States and state of Texas, exclusive of conflicts of law's provisions. Venue for any suit brought under this Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent this Agreement is required to be governed by any state law other than Texas or venue in Tarrant County,the City objects to such terms and any such terms are hereby deleted from this Agreement and shall have no force or effect. 8. Sovereign Immunity: Nothing herein constitutes a waiver of the City's sovereign immunity. To the extent this Agreement requires the City to waive its rights or immunities as a government entity,such provisions are hereby deleted and 53 Aqua Metric Sales Company Professional Services Agreement-Technology shall have no force or effect. 9. No Debt: In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all obligations of the City hereunder are subject to the availability of funds.If such funds are not appropriated or become unavailable,the City shall have the right to terminate this Agreement except for those portions of funds which have been appropriated prior to termination. 10. Assignment: To the extent the Agreement addresses the right to assign any rights or interest in the Agreement to another party, such right of assignment shall be reciprocal, and neither party shall have the right to assign or transfer any of its rights or interests in the Agreement without the express prior written consent of the other party. However,the Contractor shall have the right to assign the Agreement to any entity in which it is a recognized legal affiliate or subsidiary or which such entity obtains a majority interest without the consent of the City.However,Contractor shall give the City at least thirty (30)days written notice of any such assignment or transfer of interest. 11.Confidential Information: The City is a government entity under the laws of the State of Texas and all documents held or maintained by the City are subject to disclosure under the Texas Public Information Act. To the extent the Agreement requires that the City maintain records in violation of the Act,the City hereby objects to such provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect. 12.Addendum Controlling: If any provisions of the attached Agreement, conflict with the terms herein,are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance of the City, the terms in this Addendum shall control. 13. Fiscal Funding Limitation: In the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable by any means whatsoever in any fiscal period for payments due under this Agreement, then the City will immediately notify Contractor of such occurrence and this Agreement shall be terminated on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have been appropriated. 14. Right to Audit: Contractor agrees that the City shall, until the expiration of three (3)years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Contractor involving transactions relating to this Agreement. Contractor agrees that City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits. Contractor further agrees to include in all its subcontracts hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor, involving transactions to the subcontract, and further, that City shall have access during normal working hours to all subcontractor facilities, and shall be provided adequate and appropriate work space,in order to conduct audits in compliance with the provisions of this article. City shall give subcontractor reasonable advance notice of intended audits. Contractor further agrees to accept the authority of the State of Texas Auditor's office authority to conduct audits and investigations under the State Water Infrastructure Reserve Fund Texas ("SWIRFT") in connection with state funds received pursuant to this Agreement. The Contractor shall comply with the directives from AM, the City and the Texas State Auditor and shall cooperate in any such audit or investigation. The Consultant agrees to provide the Texas State Auditor with access to any information AM,the City or Texas State Auditor considers relevant to the audit or investigation. The Consultant agrees to include the same provision in any contract or subcontract used in connection with this Agreement. 15. INTELLECTUAL PROPERTY INFRINGEMENT: (i) The Contractor warrants that all Deliverables, or any part thereof, furnished hereunder, including but not limited to: programs, documentation, software, analyses, applications, methods, ways, and processes (in this Section 8C each individually referred to as a "Deliverable" and collectively as the "Deliverables,") do not infringe upon or violate any patent, copyrights, trademarks, service marks, trade secrets, or any intellectual property rights or other third party proprietary rights, in the performance of services under this Agreement. (ii) Contractor shall be liable and responsible for any and all claims made against the City for infringement of any patent, copyright, trademark, service mark, trade secret, or other intellectual property rights by the use of or 54 Aqua Metric Sales Company Professional Services Agreement-Technology supplying of any Deliverable(s) in the course of performance or completion of, or in any way connected with providing the services,or the City's continued use of the Deliverable(s)hereunder. (iii) Contractor agrees to indemnify, defend, settle, or pay, at its own cost and expense, including the payment of attorney's fees, any claim or action against the City for infringement of any patent, copyright, trade mark, service mark, trade secret, or other intellectual property right arising from City's use of the Deliverable(s), or any part thereof, in accordance with this Agreement, it being understood that this agreement to indemnify,defend, settle or pay shall not apply if the City modifies or misuses the Deliverable(s). So long as Contractor bears the cost and expense of payment for claims or actions against the City pursuant to this section 15,Contractor shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however,City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees to cooperate with Contractor in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against the City for infringement arising under this Agreement, the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however,Contractor shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Contractor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of costs or expenses shall not eliminate Contractor's duty to indemnify the City under this Agreement. If the Deliverable(s), or any part thereof,is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise,such use is materially adversely restricted,Contractor shall,at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the Deliverable(s) to make them/it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the Deliverable(s); or(c) replace the Deliverable(s) with equally suitable, compatible, and functionally equivalent non-infringing Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Contractor,terminate this Agreement,and refund all amounts paid to Contractor by the City, subsequent to which termination City may seek any and all remedies available to City under law. CONTRACTOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 10 OF THIS AGREEMENT. 16. City Access to Information: All data contained within or generated by the services shall be considered the property of the City, and shall remain directly accessible to the City at all times with no additional charge. At minimum, read-only accounts to all system databases shall be provided to the City, and the Contractor shall maintain firewall rules to allow for direct external connection to the databases via the host addresses and network ports defined by the City and Contractor. Support for whitelisting of IP addresses shall be optional, and at the discretion of the City. Remote database connections shall not be subject to record limits or overly restrictive timeouts that would render such connections ineffective. The City shall have the right to any and all database table structure information from the Contractor that would allow the utilization of data owned by the City including items above. Executed this the day of ,20 CONTRACTOR: AM: By: By: Name: Name: Title: Title: Date: Date: 55 Aqua Metric Sales Company Professional Services Agreement-Technology EXHIBIT H TOWER LICENSE AGREEMENT EXAMPLE LICENSE AGREEMENT Contract No: This LICENSE AGREEMENT ("Agreement") entered into as of the latter signature date hereof("Effective Date") by and between , a [corporation/limited partnership], with a place of business at ("Licensor") and a [corporation/limited liability company/limited partnership],with a place of business at ("Licensee"). I. TOWER FACILITY INFORMATION: Site Name: Site Number: Address and/or location of Tower Facility: Tower Facility Coordinates: Lat. Long. II. NOTICE&EMERGENCY CONTACTS: • Licensee's local emergency contact(name and number): • Licensor's local emergency contact:Network Operations Communications Center(800)830-3365. • Notices to Licensee shall be sent to the address above to the attention of • Notices to Licensor shall be sent to the address above to the attention of Contracts Manager. • Licensor's Remittance Address: • Licensor's Remittance Address: III.PERMITTED USE OF TOWER FACILITY BY LICENSEE: Transmitting and Receiving frequencies: See Exhibit A for specific frequencies Antenna mount height on tower: See Exhibit A for specific location All other permitted uses of the Tower Facility including Licensee's Approved Equipment, and the Licensed Space are further described in section 4 of this Agreement and Exhibits A and B attached hereto. IV.FEES&TERM Monthly License Fee: ($ increased by the Annual Escalator on the first anniversary of the Commencement Date of this Agreement and each anniversary of the Commencement Date thereafter during the Term (as defined in Appendix I). The Annual Escalator is Application Fee: $ . The parties hereby acknowledge that the Application Fee became due and payable upon submission of Licensee's Application,is nonrefundable and was earned in full by Licensor upon receipt of such Application (all references to"Application"made herein are to the then-current application form issued by Licensor). Relocation Application Fee: $ per Application submitted pursuant to section 10(c), subject to increases at the Annual Escalator,compounded on each anniversary of the Effective Date. Site Inspection Fee: $ , increased annually on each anniversary of the Commencement Date of this Agreement by a percentage rate increase equal to the Annual Escalator. Initial Term: A period of 10 years beginning on the Commencement Date. The"Commencement Date"shall be the earlier of: (i)the date of Licensor's issuance of a NTP or(ii) 2 Renewal Terms: additional periods of 5 years each. Termination: Regardless of anything else contrary contained in this Agreement, Licensee or, after assignment, its assignee City of Fort Worth, may terminate this Agreement for any reason and at any time by providing Licensor thirty (30) day's written notice of cancellation. Connection Fee(as described in section 5(b)): $ 56 Aqua Metric Sales Company Professional Services Agreement-Technology Electricity for operation of Approved Equipment is to be provided by(check one): ❑ Licensor, with the cost of such electricity to be paid by Licensee at the initial rate of$ per month("Utility Fee") subject adjustment pursuant to Section 5(b),OR ❑Licensee,at its sole expense. V. TERMS&CONDITIONS The attached terms and conditions are incorporated herein by this reference. VI.OTHER PROVISIONS: Other provisions: (check one): ❑None®As listed below 1) PCN/PCN Retention Fee/Cross-Default. Licensee, an Affiliate of Licensee or any entity or individual acting on behalf Licensee or an Affiliate of Licensee shall only issue Prior Coordination Notices ("PCNs") for the Permitted Frequencies set forth in Exhibit A and shall not issue PCNs for any other frequencies at this Tower Facility or at any other tower facility owned and/or operated by Licensor unless Licensee has submitted an Application for use of the subject frequencies to Licensor for which a partially executed License Agreement shall be signed by Licensee and returned to Licensor within sixty(60) days of the submittal of the Application. Licensee shall withdraw PCNs filed for any frequencies which are not licensed to Licensee by Licensor,no more than ten(10)days from the date of Licensee's withdrawal of an Application or Licensor's election to not process a Licensee-submitted Application. Failure to comply with the terms of this Section shall constitute an event of default pursuant to Section 21 herein for which the cure period is set forth in Section 21. In the event Licensee fails to cure a default of this Section as provided in Section 21, Licensee shall pay Licensor Twenty Five Thousand and 00/100 Dollars ($25,000.00) per month as liquidated damages for each tower facility wherein Licensee maintains an active PCN in breach of this Section("PCN Retention Fee"). Licensor and Licensee acknowledge that holding PCNs in violation of this Section reduces Licensor's opportunity to license space at Licensor's tower facilities and since the actual amount of such lost revenue is difficult to determine, Licensor and Licensee agree that the PCN Retention Fee is a reasonable estimate of the damages that would accrue if a breach occurred. Licensor and Licensee agree that the PCN Retention Fee is fair and reasonable and would not act as a penalty to the breaching party. The PCN Retention Fee shall be remitted by Licensee within ten(10) days of Licensor's written notice to Licensee of Licensee's uncured default of this Section and Licensee shall continue to remit payment of the PCN Retention Fee on a monthly basis on or before the first day of each calendar month while such default of this Section remains uncured. In the event that Licensor does not receive the PCN Retention Fee on or before the first day of each month, then Licensor may, at its option, declare a default of this Agreement and all agreements between Licensor and Licensee and the PCN Retention Fee shall continue to be due and payable as set forth herein until the time Licensee withdraws the subject PCNs. [Signatures appear on next page] 57 Aqua Metric Sales Company Professional Services Agreement-Technology IN WITNESS WHEREOF, each Party in consideration of the mutual covenants contained herein, and for other good and valuable consideration, intending to be legally bound, has caused this Agreement to be executed by its duly authorized representative as of the date and year written below;provided, however, that this Agreement shall not become effective as to either Party until executed by both Parties. LICENSOR LICENSEE By: By: Print Name: Print Name: Its: Its: Date: Date: 58 Aqua Metric Sales Company Professional Services Agreement-Technology TERMS AND CONDITIONS 1. DEFINITIONS. Capitalized terms defined in the body of this Agreement are indexed by location on Appendix I attached hereto. Capitalized terms used in Agreement but not defined herein are defined in Appendix I. 2. GRANT OF LICENSE. Subject to the terms of this Agreement, Licensor hereby grants Licensee a non-exclusive license to install,maintain and operate the Approved Equipment at the Licensed Space. All Approved Equipment shall be and remain Licensee's personal property throughout the Term of this Agreement. Licensor shall maintain the Tower Facility in good order and repair, wear and tear, damage by fire, the elements or other casualty excepted. In no event shall Licensee's license as granted herein include rights to use the air space above the Approved Equipment, and Licensor reserves the right to install, construct and/or operate additional improvements or equipment of Licensor or others above Licensee's Approved Equipment, including Licensee's shelter (commonly referred to as "stacking"), provided that such additional improvements or equipment do not materially and adversely interfere with the access to or operation of the Approved Equipment, including Licensee's shelter. Licensee is not required to utilize a stackable shelter, provided that, if Licensee opts to install a shelter that is not stackable and if Licensor receives an offer to license the air space above Licensee's non-stackable shelter by a proposed subsequent user, Licensor may, at its election, upon 30 days prior written notice require Licensee to replace such non-stackable shelter with a stackable shelter of a comparable size, provided that the proposed subsequent user agrees in writing to be wholly responsible for the cost of Licensee's shelter replacement. Subject to any limitations contained in the Ground Lease, Licensor grants Licensee a right of access to the Tower Facility 24 hours per day, 7 days per week during the Term. Licensor grants Licensee a designated location for the installation of Licensee's utilities over, under or across the Tower Facility (collectively, "Easement"). Licensee shall be responsible for any and all Damage or loss that results from the installation of any cables or utility wires by Licensee or any company or person retained by Licensee (including a public utility company),including,without limitation,any damage or loss that results from the accidental cutting of utility wires or cables of any other party operating at the Tower Facility. Licensor shall provide Licensee with one set of keys and/or codes to access the Tower Facility. Licensee shall be responsible for ensuring that Licensor has, at all times, a complete and accurate written list of all employees and agents of Licensee who have been provided the keys or access codes to the Tower Facility. Licensor shall have the right to continue to occupy the Tower Facility and to grant rights to others to the Tower Facility in its sole discretion. Licensee shall have no property rights or interest in the Tower Facility or the Easement by virtue of this Agreement. If Licensor's right to license space on the Tower Facility to Licensee is subject to a right of first refusal for the benefit of a third party and if such third party exercises its right of first refusal prior to the Commencement Date,Licensor may terminate this Agreement upon written notice to Licensee. 3. EXHIBITS. Within 45 days following the commencement of the installation of the Approved Equipment, Licensee shall provide Licensor with as-built or construction drawings showing the Approved Equipment as installed [in both hard copy and electronic form] ("Construction Drawings"); such Construction Drawings shall include the location of any shelters, cabinets, grounding rings, cables, and utility lines associated with Licensee's use of the Tower Facility. Upon receipt, Licensor shall attach hereto the Construction Drawings as Exhibit C hereto. In the event that Licensee fails to deliver the Construction Drawings as required by this section, Licensor may cause such Construction Drawings to be prepared on behalf of Licensee and Licensor shall assess a fee for such Construction Drawings in an amount equal to 120% of the actual cost of obtaining the Construction Drawings including in-house labor, which upon invoicing shall become immediately due and payable by Licensee. In the event of inconsistency or discrepancy between(a)Exhibit A and Exhibit B hereto, Exhibit A shall govern, and(b)between Exhibit A (with respect to Approved Equipment and antenna locations) together with Exhibit B (with respect to Ground Space installation locations) and Exhibit C hereto, Exhibits A and B shall govern,notwithstanding any approval or signature by Licensor or its agents. Licensee hereby acknowledges and agrees that installation of the Approved Equipment must be in strict accordance with the approved Construction Drawings and Exhibit A and B. Notwithstanding the forgoing, Licensee shall not infer nor shall acceptance of the Construction Drawings by Licensor be deemed to be a representation by Licensor that(i) such Construction Drawings or the plans and specifications described therein are in compliance with federal, state or local laws, ordinances, rules or regulations, (ii) that such installation shall not cause impermissible or unlawful interference, or(iii)that such installation is consistent with Licensee's permitted installation as specifically set forth in Exhibits A and B hereto. Licensee shall not commence installation until Licensor has approved in writing said drawings of Exhibits B and C. 4. USE. Subject to the terms of the Ground Lease,Licensee shall be permitted the non-exclusive right to install,maintain, operate, service, modify and/or replace its Approved Equipment at the Licensed Space, which Approved Equipment shall be utilized for the transmission and reception of wireless voice and data communications signals (such 59 Aqua Metric Sales Company Professional Services Agreement-Technology transmission and reception to be solely within the Permitted Frequencies, and, if the Permitted Frequencies include licensed spectrum, within the spectrum licensed to Licensee by the FCC). If as of the Effective Date, Licensee's wireless business consists of a one-way network which requires only that signals be transmitted from the Tower Facility, then notwithstanding the foregoing sentence, Licensee's use of Tower Facility under this Agreement shall be limited to the transmission of wireless voice and data communications signals. Licensee's permitted use with respect to the Licensed Space shall be limited solely to that enumerated in this section,and,except pursuant to separate agreement with Licensor, no person or entity other than Licensee shall have the right to install, maintain or operate its equipment or transmit or receive communications at,or otherwise use,the Licensed Space. 5. LICENSE FEES; TAXES; ASSESSMENTS. (a) Monthly License Fee. The Monthly License Fee as adjusted by the Annual Escalator, shall be payable in advance on the first day of each calendar month during the Term beginning upon the Commencement Date. If the Commencement Date is not the first day of a calendar month,the Monthly License Fee for any partial month shall be prorated on a daily basis. (b) Utilities. All utility services installed on the Tower Facility for the use or benefit of Licensee shall be made at the sole cost and expense of Licensee and shall be separately metered from Licensor's utilities. Licensee shall be solely responsible for extending utilities to the Tower Facility as necessary for the operation of the Approved Equipment and for the payment of utility charges including connection charges and security deposits incurred by Licensee. Licensee shall obtain and pay the cost of telephone connections, the installation of which shall be in compliance with the procedures for installation and maintenance of Approved Equipment set forth herein. Licensee agrees to install a sub-meter and/or connect to Licensor's power on or before the Commencement Date. Licensee shall pay the cost of all utility service necessary, including the Utility Fee and Connection Fee,to install, maintain and operate the Approved Equipment. The Utility Fee shall be payable in advance on the first day of each calendar month during the Term beginning upon the Commencement Date Licensee agrees to enter into a monitoring agreement with a third party to monitor Licensee's utility usage at the Tower Facility. Licensee shall provide to Licensor an annual report of its utility usage at the Tower Facility during the Term of this Agreement prepared by the third party monitoring company. Licensor shall review the annual usage report, and, if Licensor determines, in its sole discretion, that Licensee's utility usage increased over Licensee's utility usage as of the Commencement Date, or as of the date of the last Utility Fee increase resulting from increased utility usage, Licensor may,but is not required,to modify the Utility Fee by an amount equal to Licensor's actual increased costs incurred due to Licensee's increased utility usage increased utility rates. If such a modification in the Utility Fee is imposed, Licensor shall notify Licensee in writing of such increase in the Utility Fee. Any such change in the Utility Fee resulting from an increase in Licensee's utility usage will take effect with the next payment of the Utility Fee coming due after Licensee's receipt of such notice. Licensee shall obtain and pay the cost of telephone connections, the installation of which shall be in compliance with the procedures for installation and maintenance of Approved Equipment set forth herein. Licensee acknowledges that Licensor shall not provide backup power in the event of an interruption in utility service. In the event that(i)Licensee elects to change its utility service to be separately metered from Licensor's utilities, or(ii)Licensee powers down its use of Approved Equipment(each a "Utility Change Event"), Licensee shall provide a 30 day prior written notice to Licensor with supporting information relating to its electric use status for such Utility Change Event. Notwithstanding the above, Licensee shall pay to Licensor the cost of all utility services drawn from Licensor's meter until Licensee terminates all of its electric use at the Tower Facility, except that utility costs will be abated for the period of Licensee's powering down period provided Licensee's submits prior written notice to Licensor, as provided above. Licensee acknowledges that it shall remain responsible for any utility charges provided herein prior to Licensor's receipt of a notice a Utility Change Event including those incurred following the expiration of this Agreement but prior to the removal of Licensee's Approved Equipment. (c) Taxes. (i) Property Taxes. Licensee shall be responsible for the reporting and payment when due of any tax directly related to Licensee's ownership or operation of the Approved Equipment and such reporting and payment shall be made directly to the appropriate tax authorities. Licensee shall reimburse Licensor in full for any taxes assessed against Licensor but attributed to the Approved Equipment within 30 days of Licensor's request for 60 Aqua Metric Sales Company Professional Services Agreement-Technology such reimbursement. Licensor shall pay all property taxes directly assessed against Licensor's property or for which Licensor is obligated to pay under the Ground Lease, provided, however, Licensee shall reimburse Licensee's pro rata share of such taxes.Licensee's pro rata share shall be determined by dividing such taxes evenly among all users Licensor has permitted to utilize any portion of the Tower Facility. Licensee shall reimburse Licensor for such taxes within 30 days of Licensor's request for such reimbursement. (ii) Sales; Use and Other Taxes. Licensor shall be responsible for billing, collecting,reporting, and remitting sales, use and other taxes directly related to any License Fee or other payments received pursuant to this Agreement. Licensee shall be responsible for reimbursing Licensor for all such sales, use and other taxes billed related to any payments received pursuant to this Agreement. Licensor shall add to the License Fee or any other payment then due and payable any associated sales, use or other tax, which shall be paid by Licensee at the same time and in the same manner as License Fee or other payment due and payable under this Agreement. (d) Federal Use Fees& Assessments. In the event that a particular Licensed Space is at a Tower Facility located on property which is owned by the Bureau of Land Management ("BLM") or the United States Forest Service ("USFS"), Licensee shall reimburse Licensor for any and all fees or assessments attributable to this Agreement or Licensee's use of the Licensed Space paid by Licensor to the BLM or USFS related to such Tower Facility within 30 days of Licensor's request for such reimbursement. (e) Restrictions on Reimbursement. Solely for the purposes of determining Licensee's portion of such taxes, fees, assessments or similar expenses as contemplated in this Section 5 or anywhere else in this Agreement, if any such amounts are determined in whole or in part on the income or profits (aside from gross revenues)of any person or entity, Licensor and Licensee shall agree on a fixed amount (subject to the Annual Escalator, which shall be applied in the same manner as it is applied to the License Fee), that shall be treated as such tax, fee, assessment or similar expense in lieu of the actual amount, which agreed to amount shall be set forth in an amendment to this Agreement. (f) Payment Address. All payments due under this Agreement shall be made to Licensor at Licensor's Remittance Address shown on page 1 of this Agreement or such other address as Licensor may notify Licensee of in writing. (g) No Set-Off. All payments due under this Agreement shall be due without set-off,notice, counterclaim or demand from Licensor to Licensee. (h) Effect of Partial Payment. No endorsement or statement on any check or letter accompanying a check for payment of any monies due and payable under the terms of this Agreement shall be deemed an accord and satisfaction,and Licensor may accept such check or payment without prejudice to its right to recover the balance of such monies or to pursue any other remedy provided by law or in this Agreement. 6. TERM. (a) Initial Term. The Initial Term of this Agreement shall be as specified on page 1. (b) Renewal Term. The Term of this Agreement may be extended for each of the Renewal Terms as specified on page 1 of this Agreement,provided that at the time of each such renewal, (i)the Ground Lease remains in effect and has not expired or been terminated, (ii) Licensee is not in default hereunder and no condition exists which if left uncured would with the passage of time or the giving of notice result in a default by Licensee hereunder and(iii) the original Licensee identified on page 1 of this Agreement has not assigned, sublicensed, subleased or otherwise transferred any of its rights hereunder. Provided that the foregoing conditions are satisfied, this Agreement shall automatically renew for each successive Renewal Term unless either Party notifies the other in writing of its intention not to renew this Agreement at least 180 days prior to the end of the then existing Term. (c) Holdover Term. If Licensee fails to remove the Approved Equipment at the expiration of the Term, such failure shall be deemed to extend the terms of this Agreement on a month-to-month basis under the same terms and conditions herein except that (i)a Monthly License Fee shall be due on or before the first day of every calendar month during such month-to-month term in an amount equal to 150%of the Monthly License Fee in effect for the last month of the Term ("Holdover Fee"), such Holdover Fee to escalate annually on the anniversary of the Commencement Date by an amount equal to 6% of the Holdover Fee in effect for the month immediately prior to the month in which escalation takes place,and(ii)the month-to-month extension shall be terminable upon 15 days' 61 Aqua Metric Sales Company Professional Services Agreement-Technology prior written notice from either Licensor or Licensee to the other; provided, however, nothing contained herein shall grant Licensee the unilateral right to extend the Term of this Agreement after the expiration of the Term. In addition to the Monthly License Fee payable to Licensor in the event of an extension under this subsection 6(c),to the extent allowed by law, Licensee agrees to indemnify and hold Licensor harmless from any Damages arising out of or in connection with the extension, the operation of the Approved Equipment at the Tower Facility and Licensee's failure to perform all of its obligations under this Agreement at the termination or earlier expiration of this Agreement. 7. LIMITED COMMON EXPENSES. Licensee shall reimburse Licensor for Licensee's pro-rata share of all common expenses (the "Common Expenses") incurred by Licensor in the installation, operation,maintenance and repair of the Tower Facility, including, but not limited to, the construction, maintenance and repair of a common septic system and field, insurance, common utilities and any and all other costs of operating and maintaining the Tower Facility. Notwithstanding the foregoing, the cost and expenses associated with any Damage which is directly attributable to the acts or omissions of Licensee or Licensee's contractors shall be borne solely by Licensee. Licensee shall not be required to pay any share of costs or expenses incurred to replace the Tower. In the event that Licensee also licenses space within a building or shelter owned by Licensor on the Toer Facility,Licensee shall also reimburse Licensor for its pro-rata share of all Common Expenses incurred for the operation,maintenance,repair and replacement associated with such building or shelter, including, without limitation, the physical structure of the building, HVAC system, and common utility expenses. In the event that Licensee is connected to a generator or back-up power supply owned by Licensor, Licensee shall also reimburse Licensor for its pro-rata share of all expenses incurred for the operation, maintenance, repair and replacement associated with such generator, including, without limitation, fuel expenses. For the purposes of this section, a "pro-rata share" of costs and expenses shall be determined based on the number of licensees using the Tower Facility (or with respect to a shared shelter or building, the number of licensees using Licensor's shelter or building) on the first day of the month in which an invoice is mailed to Licensee. Licensee shall reimburse Licensor for Common Expenses within 30 days following receipt of an invoice from Licensor. . 8. SITE INSPECTION. Concurrent with Licensee's delivery of a fully executed Agreement to Licensor, and before the date of any subsequent modifications to or installation of additional Approved Equipment,Licensee shall pay Licensor the Site Inspection Fee as defined on page I of this Agreement. Licensee acknowledges that any site inspection performed by Licensor of Licensee's installation is for the sole purpose and benefit of Licensor and its affiliates, and Licensee shall not infer from or rely on any inspection by Licensor as assuring Licensee's installation complies with any Applicable Laws, that the installation was performed in a good, workmanlike manner or that such installation will not cause impermissible or unlawful interference. 9. LABELING. Licensee shall identify its Approved Equipment,including its equipment cabinets and coaxial cable(at the top and bottom of the Tower)(unless such cabinet is located in a building or cabinet owned by Licensee)by labels with Licensee's name,contact phone number and date of installation. In the event that Licensee fails to comply with this provision and fails to cure such deficiency within 10 days of Licensor's written notice of such failure,Licensor may,but is not obligated to,in addition to any other rights it may have hereunder,label the Approved Equipment and assess against Licensee a fee of$1,500 which shall be payable to Licensor upon receipt of an invoice therefor. Licensor shall not be responsible to Licensee for any expenses or Damages incurred by Licensee arising from the interruption of Licensee's service caused by Licensor,if Licensor is unable to identify the Approved Equipment as belonging to Licensee as a result of Licensee's failure to label such Approved Equipment. 10. IMPROVEMENTS BY LICENSEE. (a) Installation and Approved Vendors. Prior to the commencement of any Work on the Tower Facility, Licensee shall submit to Licensor for review and approval, which approval shall not be unreasonably withheld, detailed plans and specifications accurately describing all aspects of the proposed Work. Licensee shall provide notice to Licensor no less than 5 days prior to the date upon which Licensee intends to commence Work at the Tower Facility, together with a construction schedule, so Licensor has the opportunity to be present during any such Work. Licensee shall not commence Work on the Tower Facility until Licensor issues to Licensee a NTP. Licensor shall issue a NTP only upon request from Licensee and receipt of the following complete and accurate documentation: (1) evidence that any contingencies set forth in the approval of Licensee's Application have been satisfied; (2) evidence that Licensee has obtained all required governmental approvals including,but not limited to, zoning approvals,building permits, and any applicable environmental approvals including copies of the same; (3) a copy of the plans and specifications that have been approved by Licensor for the proposed equipment installation;(4)evidence that any party, other than the Licensor but including the Licensee, that will be performing the Work are on Licensor's approved vendor list, with valid and 62 Aqua Metric Sales Company Professional Services Agreement-Technology current worker's compensation and general liability insurance certificates on file with Licensor naming Licensor as an additional insured and which otherwise satisfy the insurance coverage requirements set forth in section 15(d) of this Agreement; and(5) a construction schedule. In no event will a NTP be issued prior to the payment by Licensee of a Relocation Application Fee when required pursuant to section 10(c) of this Agreement. Notwithstanding anything to the contrary in this Agreement, Licensor reserves the right, in its sole discretion, to refuse to permit any person or company to climb the Tower. (b) Structural Analysis/Interference Analysis. Prior to the commencement of any Work on the Tower Facility by or for the benefit of Licensee, Licensor may, in its reasonable discretion, perform or cause to be performed a structural analysis or require a professional engineer's certified letter to determine the availability of capacity at the Tower Facility for the installation or modification of any Approved Equipment and/or additional equipment at the Licensed Space by Licensee. Licensee agrees to remit payment to Licensor for all reasonable costs and expenses incurred by Licensor for such structural analysis or professional engineer's certified letter ("Structural Analysis Fee") within 30 days following receipt of an invoice from Licensor. The foregoing charge shall be at Licensor's prevailing rates for the performance of same or the amount Licensor's vendor is then charging Licensor, as applicable. In the event a structural analysis is performed after the execution of this Agreement but prior to the initial installation of the Approved Equipment, and such analysis indicates that the existing Tower cannot accommodate the proposed installation of Licensee's Approved Equipment thereon, Licensor shall notify Licensee that modification of the Tower is required and inform Licensee of the fee Licensor will charge Licensee to complete such modification (which fee shall be a reasonable estimate of Licensor's actual cost of making such modifications). Such modification shall become part of the Tower Facility and be Licensor's sole property. If Licensee elects not to pay such fee, and Licensee and Licensor do not otherwise reach an agreement regarding the costs of such modification, Licensee may terminate this Agreement upon written notice to Licensor. Prior to the commencement of any initial or subsequent construction or installation on the Tower Facility by or for the benefit of Licensee and/or the modification of Licensee's Permitted Frequencies propagated from the Licensed Space, Licensor may elect to perform a shared site interference study ("SSIS") and Licensee shall pay Licensor a fee of$1,600.00 per study("SSIS Fee"), as adjusted annually on the anniversary of the Commencement Date by a percentage rate equal to the Annual Escalator. This fee shall be payable at the time Licensee pays the Relocation Application Fee where required pursuant to section 10(c) of this Agreement, or immediately upon receipt of notice from Licensor that Licensor has determined that a SSIS is required. In the event a SSIS is performed after the execution of this Agreement by Licensor but prior to the installation of Licensee's Approved Equipment, and such SSIS indicates that the proposed installation of Licensee's Approved Equipment on the Tower is acceptable, such an indication in no way relieves Licensee of its obligations under section 11 herein. (c) Equipment; Relocation,Modification,Removal. Licensor hereby grants Licensee reasonable access to the Licensed Space for the purpose of installing and maintaining the Approved Equipment and its appurtenances. Except as otherwise provided, Licensee shall be responsible for all site Work to be done on the Licensed Space or the Easement pursuant to this Agreement. Licensee shall provide all materials and shall pay for all labor for the construction, installation, operation, maintenance and repair of the Approved Equipment. Licensee shall not construct, install or operate any equipment or improvements on the Tower Facility other than those which are described on Exhibit A, alter the Permitted Frequencies,or alter the operation of the Approved Equipment. Licensee shall submit an Application, utilizing Licensor's then current form, to request the right to replace or modify its Approved Equipment, alter the Permitted Frequencies or increase the Ground Space,which Application shall be accompanied by a Relocation Application Fee. Licensor shall evaluate for approval the feasibility of Licensee's request, which approval shall be in Licensor's sole discretion. Licensee acknowledges that any such relocation or modification of the Approved Equipment may result in an increase in the Monthly License Fee.An amendment to this Agreement shall be prepared to reflect each addition or modification to Licensee's Approved Equipment to which Licensor has given its written consent and the resulting increase in the Monthly License Fee, if any. Licensee shall have the right to remove all Approved Equipment at Licensee's sole expense on or before the expiration or earlier termination of the License provided Licensee repairs any damage to the Tower Facility or the Tower caused by such removal. Within 30 days of the expiration or termination of this Agreement for any reason,Licensee shall: (i)remove the Approved Equipment and any other property of Licensee at the Tower Facility at Licensee's sole risk, cost, and expense; (ii)deliver the Licensed Space in substantially the same and in as good a condition as received (ordinary wear and tear excepted); and (iii) repair any damage caused by the removal of the Approved Equipment within 10 days of the occurrence of such damage. If Licensee fails to timely pay the Holdover Fee or does not remove its Approved Equipment within 30 days after the expiration or termination of this Agreement, (i)the Approved Equipment shall be deemed conclusively and absolutely abandoned by Licensee and anyone claiming by,through, or under Licensee except for Hazardous Materials and waste and Approved Equipment containing Hazardous Materials and waste; and(ii)Licensor shall have the right to 63 Aqua Metric Sales Company Professional Services Agreement-Technology remove the Approved Equipment at Licensee's sole expense and dispose of such Approved Equipment in any manner Licensor so elects,and Licensee shall reimburse Licensor for its expenses upon demand without off-set. 11. RF INTERFERENCE/USER PRIORITY. Definitions. For purposes of this section 11,the following capitalized terms shall have the meanings set forth herein: Interference includes any performance degradation, misinterpretation, or loss of information to a radio communications system caused by unwanted energy emissions,radiations, or inductions,but shall not include permissible interference as defined by the FCC, and in addition, with regard to Unlicensed Frequencies, congestion. Licensed Frequencies are those certain channels or frequencies of the radio frequency spectrum that are licensed by the FCC in the geographic area where the Tower Facility is located. A Licensed User is any user of the Tower Facility, including Licensee, which transmits and/or receives Licensed Frequencies at the Tower Facility,but only with respect to such Licensed Frequencies. A Priority User is any Licensed User of the Tower Facility that holds a priority position in relationship to Licensee for protection from Interference, as determined in this section 11, which status is subject to change as set forth herein. A Subsequent User is any user of the Tower Facility that holds a subordinate position in relationship to Licensee for protection from Interference, as determined in this section 11, which status is subject to change as set forth herein. Unlicensed Frequencies are those certain channels or frequencies of the radio frequency spectrum that are not licensed by the FCC and are available for use by the general public in the geographic area where the Tower Facility is located. An Unlicensed User is any user of the Tower Facility, including Licensee, which transmits and/or receives Unlicensed Frequencies at the Tower Facility,but only with respect to such Unlicensed Frequencies. Information. Licensee shall cooperate with Licensor and with other lessees, licensees or occupants of the Tower Facility for purposes of avoiding Interference and/or investigating claims of Interference. Upon request, Licensee, within 10 days of Licensor's request, shall provide Licensor with a list of Licensee's transmit and receive frequencies and Approved Equipment specifications necessary to resolve or investigate claims of Interference. Unlicensed Frequencies. Notwithstanding any other provision contained herein, as among Licensor, Licensee and other users of the Tower or Tower Facility, (i)an Unlicensed User shall have no priority with respect to any other FCC Unlicensed Users with respect to Interference; and (ii) an Unlicensed User's rights and obligations with respect to such Interference shall be determined and governed by FCC Rules and Regulations and any other Applicable Law. Licensor expressly disclaims any and all warranties and accepts no responsibility for management, mediation, mitigation or resolution of Interference among FCC Unlicensed Users operating at the Tower Facility and shall have no liability therefor. Licensed Frequencies. Subject to FCC Rules and Regulations and other Applicable Law,the Parties acknowledge and agree that the accepted industry standard for priority protection from Interference between multiple Licensed Users has been based on the priority of occupancy of each user to another user of the Tower or Tower Facility, which priority has been based on the order of submittal of its collocation Application by each user of the Tower or Tower Facility. Should Application of FCC Rules and Regulations and other Applicable Law not resolve any claims of Interference consistent with subsections 11(e), I I(f)and I I(g)below, as among Licensor,Licensee and other users of the Tower Facility, (i) each Licensed User's priority shall be maintained so long as the Licensed User does not change the equipment and/or frequency that it is entitled to use at the Tower Facility at the time of its initial occupancy; and (ii) Licensee acknowledges and agrees that if Licensee replaces its Approved Equipment or alters the radio frequency of the Approved Equipment to a frequency range other than as described on page 1 of this Agreement, Licensee will lose its priority position for protection from Interference with regard to Approved 64 Aqua Metric Sales Company Professional Services Agreement-Technology Equipment operating at the new frequency in its relationship to other Licensed Users which are in place as of the date Licensee replaces its Approved Equipment or alters its radio frequency,consistent with this section 11. (e) Correction. Licensee. Licensee agrees not to cause Interference with the operations of any other user of the Tower or Tower Facility and to comply with all other terms and provisions of this section 11 imposed upon Licensee. If Licensor determines, in its reasonable discretion based on standard and accepted engineering practices, that Licensee's Approved Equipment is causing Interference to the installations of Licensor or a Priority User, Licensee shall, within 48 hours of notification from Licensor, commence such actions as are necessary to mitigate or eliminate the Interference, with the exception of ceasing Licensee's operations. If Licensee cannot mitigate or eliminate such Interference within the 48 hour period, Licensor may file a complaint with the FCC (currently the FCC's Enforcement Bureau, Spectrum Enforcement Division)or if such other user of the Tower Facility which is subject to Interference from Licensee's Approved Equipment is a Priority User,then upon the request of such Priority User consistent with Licensor's contractual obligations owed to the Priority User, Licensor may require that Licensee turn off or power down its interfering Approved Equipment and only power up or use such Approved Equipment during off-peak hours specified by Licensor in order to test whether such Interference continues or has been satisfactorily eliminated. If Licensee is unable to resolve or eliminate, to the satisfaction of Licensor, such Interference within 30 days from Licensee's initial notification thereof,Licensee will immediately remove or cease operations of the interfering Approved Equipment. Licensor. Upon the request of Licensee, Licensor hereby covenants to take commercially reasonable efforts to prohibit a Subsequent User from causing Interference with the operations of Licensee to the extent Licensee is a Priority User pursuant this section 11. If Licensor determines, in its reasonable discretion based on standard and accepted engineering practices, that a Subsequent User's equipment is causing Interference to the installations of Licensee, upon Licensee's request, Licensor shall, within 48 hours of request, commence such actions as are necessary to mitigate or eliminate the Interference,with the exception of ceasing Subsequent User's operations. Government Users. Notwithstanding the foregoing, if another user of the Tower or Tower Facility is a governmental entity, Licensor shall give such governmental entity written notice of the Interference within 5 Business Days of Licensor's determination that such action is reasonably necessary. Licensor shall have the right to give the governmental entity 5 Business Days, or more as specified in the governmental site or occupancy agreement or as required by Applicable Law, from the receipt of such notice prior to Licensor being required to take any actions required by this subsection 11 (e)to cure such Interference. (f) FCC Requirements Regarding Interference. Nothing herein shall prejudice, limit or impair Licensee's rights under Applicable Law, including, but not limited to, FCC Rules and Regulations to redress any Interference independently of the terms of this section 11. Notwithstanding anything herein to the contrary, the provisions set forth in this section 11 shall be interpreted in a manner so as not to be inconsistent with Applicable Law,including, but not limited to, FCC Rules and Regulations and nothing herein relieves Licensee from complying with all Applicable Laws governing the propagation of radio frequencies and/or radio frequency interference. The Parties acknowledge that currently FCC Rules and Regulations govern the obligations of wireless telecommunication service providers with respect to the operation of equipment and use of frequencies. Consequently, the provisions set forth in this section 11 are expressly subject to CFR, Title 47, including but not limited to Part 15, et seq, governing Radio Frequency Devices; Part 20, et seq, governing commercial mobile radio services; Part 24, et seq, governing personal communications services;and Part 90,et seq,governing private land mobile radio services. In addition, in accordance with good engineering practice and standard industry protocols, licensees employ a wide range of techniques and practices, including those involving the use of proper types of equipment as well those related to the adjustment of operating parameters, in a mutually cooperative effort to identify and mitigate sources of Interference. The obligation of Part 20 licensees, including, but not limited to, private paging, specialized mobile radio services, cellular radiotelephone service and personal communications services,to avoid Interference is set forth in 47 CFR Part 90, Subpart N — Operating Requirements, §90.403(e). Claims of Interference are ultimately cognizable before the FCC's Enforcement Bureau, Spectrum Enforcement Division. Licensee shall observe good engineering practice and standard industry protocols, applying such commercially reasonable techniques as constitute best practices among licensees, in the deployment of their frequencies and the operation of the Approved Equipment. If Licensee deploys its frequencies or operates the Approved Equipment in a manner which prevents any other user of the Tower or Tower Facility from decoding signal imbedded in their licensed frequencies such that the Spectrum Enforcement Division makes a determination that Licensee is the cause of the Interference and Licensee fails or refuses to mitigate or eliminate the Interference within the time and manner 65 Aqua Metric Sales Company Professional Services Agreement-Technology proscribed by the Spectrum Enforcement Division, Licensee shall be default of this Agreement and the remedies set forth in section 22 shall apply. (g) Public Safety Interference. As of the Commencement Date, Licensor and Licensee are aware of the publication of FCC Final Rule, Private Land Mobile Services; 800 MHz Public Safety Interference Proceeding, Federal Register: November 22, 2004 (Volume 69, Number 224), Rules and Regulations, Page 67823-67853 ("Final Rule"). Claims of Interference made by or against users which are public safety entities shall be in compliance with the Final Rule as and when effective,or otherwise in accordance with FCC Rules and Regulations. (h) AM Detuning. The parties acknowledge that the FCC Rules and Regulations govern the obligations of Licensee with respect to the operation of the Approved Equipment. Consequently,the provisions set forth in this Agreement are expressly subject to the FCC Rules and Regulations, including, but not limited to 47 C.F.R. §§ 27.63, 22.371 and 73.1692. Licensee agrees, at Licensee's sole cost, to comply with the foregoing as well as any and all other FCC Rules, Regulations and public guidance relating to AM detuning as such provisions currently exist or are hereafter modified. Licensee shall be fully responsible for any pre and/or post installation testing for AM interference at the Tower Facility and for the installation of any new detuning apparatus or the adjustment of any existing detuning apparatus that may be necessary to prevent adverse effects on the radiation pattern of any AM station caused by the installation of the Approved Equipment. Licensee shall provide Licensor with written proof of such compliance. In the event that Licensee determines that pre or post-installation testing for AM interference is not required at the Tower Facility, such a determination shall be at Licensee's sole risk. If Licensee or Licensor receives a complaint of interference from an AM broadcast station after the Approved Equipment is added to a Tower or a Tower is modified to accommodate Licensee, Licensee shall eliminate such interference within 30 calendar days of the receipt of such complaint. Licensee's failure to eliminate such interference within such 30 day period shall constitute a default under this Agreement and Licensor shall have the right to eliminate such interference at Licensee's expense. Licensee further agrees to indemnify Licensor in the event that Licensee's failure to comply with the FCC Rules and Regulations prior to installation/modification of the Approved Equipment results in any administrative investigation,proceeding or adjudication with respect to Licensor. 12. SITE RULES AND REGULATIONS. Licensee agrees to comply with the reasonable rules and regulations established from time to time at the Tower Facility by Licensor,which may be modified by Licensor from time to time upon receipt by Licensee of such revised rules and regulations. Such rules and regulations will not unreasonably interfere with Licensee's use of the Licensed Space under this Agreement. 13. DESTRUCTION; CONDEMNATION. (a) Destruction. If the Tower or other portions of the improvements at the Tower Facility owned by Licensor are destroyed or so damaged as to materially interfere with Licensee's use and benefits from the Licensed Space,Licensor or Licensee shall be entitled to elect to cancel and terminate this Agreement on the date of such casualty and any unearned Monthly License Fee paid in advance of such date shall be refunded by Licensor to Licensee within 30 days of such termination date. Notwithstanding the foregoing, Licensor may elect, in its sole discretion, to restore the damaged improvements, in which case Licensee and Licensor shall remain bound to the terms of this Agreement but Licensee shall be entitled to an abatement of the Monthly License Fee during the loss of use. If the Tower is so damaged that reconstruction or repair cannot reasonably be undertaken without removing the Approved Equipment, then(i)Licensor may,upon giving written notice to Licensee,remove any of the Approved Equipment and interrupt the signal activity of Licensee, (ii) Licensee may, at Licensee's sole cost and expense, install temporary facilities pending such reconstruction or repair, provided such temporary facilities do not interfere with the construction, rebuilding or operation of the Tower, (iii)Licensor agrees to provide Licensee alternative space, if available, on the Tower or at the Tower Facility during such reconstruction/repair period and(iv)should Licensor not substantially restore or replace the Tower in a fashion sufficient to allow Licensee to resume operations thereon within 6 months of the date of casualty, provided that such 6 month period shall be automatically extended for so long as Licensor has commenced and diligently continues to restore or replace such Tower, and Licensee's operation has been materially disrupted for 60 or more consecutive days,then Licensee,upon 30 days'prior written notice to Licensor,may terminate this Agreement. (b) Condemnation. If the whole or any substantial part of the Tower Facility shall be taken by any public authority under the power of eminent domain or in deed or conveyance in lieu of condemnation so as to materially interfere with Licensee's use thereof and benefits from the Licensed Space, then this Agreement shall terminate on the part so taken on the date of possession by such authority of that part, and Licensor or Licensee shall have the right to terminate this Agreement and any unearned Monthly License Fee paid in advance of such termination shall be refunded by Licensor 66 Aqua Metric Sales Company Professional Services Agreement-Technology to Licensee within 30 days following such termination. Notwithstanding the foregoing, Licensor may elect to rebuild the Tower or other improvements affected by such condemnation at an alternate location or property owned, leased or managed by Licensor, in which case Licensee and Licensor shall remain bound hereby. Upon such relocation of the Tower or improvements, the Licensed Space shall be modified to include the new Tower or improvements and the property on which the same are located and this Agreement shall be amended accordingly to clarify the rights of Licensor and Licensee with respect to the Licensed Space. Licensee agrees not to make a claim to the condemning authority for any condemnation award to the extent such claim shall diminish or affect the award made to Licensor with regard to such condemnation. (c) License Fee Abatement. The Monthly License Fee with respect to the affected Tower Facility shall be abated during any period that the Tower has not been restored following an event described in subsections(a)or(b)above so long as Licensee is unable to continue to operate from a temporary location at the property during any period of restoration. 14. COMPLIANCE WITH LAWS. Licensor shall be responsible for compliance with any marking and lighting requirements of the FAA and the FCC applicable to the Tower Facility,provided that if the requirement for compliance results from the presence of the Approved Equipment on the Tower, Licensee shall pay the costs and expenses therefor (including any lighting automated alarm system so required). Licensee has the responsibility of carrying out the terms of Licensee's FCC license with respect to tower light observation and notification to the FAA if those requirements imposed on Licensee are in excess of those required of Licensor. Notwithstanding anything to the contrary in this Agreement,Licensee shall at all times comply with all Applicable Laws and ordinances and all rules and regulations of municipal, state and federal governmental authorities relating to the installation, maintenance, location, use, operation, and removal of the Approved Equipment and other alterations or improvements authorized pursuant to the provisions of this Agreement. 15.INDEMNIFICATION; INSURANCE. (a) Mutual Indemnity. To the extent allowed by law and subject to the mutual waiver of subrogation set forth in section 27, Licensee and Licensor each indemnifies the other against and holds the other harmless from any and all costs, demands, Damages, suits, expenses, or causes of action (including reasonable attorney's fees and court costs)which arise out of the use and/or occupancy of the Licensed Space by the Indemnifying Party. This indemnity does not apply to any Claims arising from the gross negligence or intentional misconduct of the Indemnified Party. (b) Limits on Indemnification. Neither Party shall be responsible or liable to any of the foregoing Indemnified Parties for any Damages arising from any claim to the extent attributable to any acts or omissions of other licensees or users occupying the Tower Facility or for any structural or power failures or destruction or damage to the Tower Facility except to the extent caused by the sole,joint, or concurrent gross negligence or willful misconduct of such Party. (c) Survival. The provisions of this section 15 shall survive the expiration or earlier termination of this Agreement with respect to any events occurring on or before expiration or termination of same whether or not Claims relating thereto are asserted before or after such expiration or termination. (d) Insurance. Licensor and Licensee shall keep in full force and effect, during the Term of this Agreement,insurance coverage in accordance with Appendix II attached hereto. 16. LIMITATION OF PARTIES' LIABILITY. NEITHER LICENSOR NOR LICENSEE SHALL BE RESPONSIBLE FOR, AND HEREBY WAIVES ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED RESULTING FROM (i) LICENSEE'S USE OR LICENSEE'S INABILITY TO USE THE TOWER FACILITY, OR (ii) DAMAGE TO THE OTHER'S EQUIPMENT. If Licensor shall fail to perform or observe any term, condition, covenant or obligation required to be performed or observed by it under this Agreement or is charged with an indemnity obligation hereunder, and if Licensee shall, as a consequence thereof, recover a money judgment against Licensor (whether compensatory or punitive in nature), Licensee agrees that it shall look solely to Licensor's right, title and interest in and to the Tower Facility and the Tower for the collection of such judgment,and Licensee further agrees that no other assets of Licensor shall be subject to levy, execution or other process for the satisfaction of Licensee's judgment,and that Licensor shall not be personally liable for any deficiency. 17. DISCLAIMER OF WARRANTY. LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ASSOCIATED WITH THE 67 Aqua Metric Sales Company Professional Services Agreement-Technology