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Home My WebLink AboutAGENDA REPORT 2017 1101 CCSA REG ITEM 10F ITEM 10.F. MOORPARK CITY COUNCIL AGENDA REPORT rowaD/ 310 TO: The Honorable City Council FROM: Jeremy Laurentowski, Parks and Recreation Director� ' BY: Jason La Riva, Landscape/Parks Maintenance Superintendent DATE: October 19, 2017 (CC Meeting November 1, 2017) SUBJECT: Consider Award of Agreement with HydroPoint Data Systems, Inc. - for Annual Subscription Services for Landscape Maintenance Districts and Parks Irrigation Controllers; and Resolution Amending FY 2017/18 Budget for Irrigation Controller Subscription Services and Authorizing the Transfer of General Fund Money to Cover Deficits for Various Assessment District Funds BACKGROUND On May 18, 2011, the City Council approved the replacement of forty-four (44) existing irrigation controllers with WeatherTRAK irrigation controllers at various City Parks and LMD's, and approved a Sole Source Product and Installation contract with HydroPoint Data Systems, Inc. (HPDS), the manufacturer of WeatherTRAK irrigation controllers. The centralized management of our irrigation system improves efficiency, provides real- time diagnostics, and provides staff with the tools to help identify broken solenoids, disconnected wires, lateral line breaks, main line breaks, and water running outside of an irrigation window. The information we receive from these controllers has resulted in a reduction of landscape loss and overall water use. The WeatherTRAK service also automates rain-pause actions to suspend irrigation when rainfall is sufficient to meet irrigation requirements, provides reporting tools which enable staff to effectively oversee and benchmark our water management performance, and provides access to a technical support specialist who assists in training and helps staff resolve field-based challenges with our irrigation systems. DISCUSSION Since the initial 44 WeatherTRAK controllers were installed, an additional 17 controllers have been installed at various LMD's and Parks within the City. All 61 WeatherTRAK irrigation controllers require an annual subscription service to provide wireless 239 Honorable City Council November 1, 2017 Page 2 connectivity between the irrigation controller, as well as website, and cell phone applications. The annual cost per controller is $225.00, which has been paid for in full every May since 2011. A total of $65,151.40 has been paid to HPDS for irrigation controllers and subscription services to date. Recently, staff received a subscription renewal notice from HPDS for the period of April 30, 2017, expiring April 30, 2018 in the amount of $10,966.06. The combined amount of previously paid materials and services, including the current invoice, exceeds the City Manager's spending authority. Payment for these services requires City Council approval. Staff recommends that the City Council approve payment of subscription services for the period of April 30, 2017 through April 30, 2018. - In consideration of the current invoice and forecasting ongoing subscription costs, staff initiated negotiations with HPDS to establish a pre-paid pricing schedule that secures a favorable subscription rate for current controllers, as well as any additional controllers that may be installed within a three (3) year period. HPDS has agreed to a common expiration date of June 30, 2021 for all controller subscriptions. The common expiration date will provide accurate, organized, and timely invoicing which will lessen administrative burden on City staff, improve budget forecasting capabilities, and will prorate potential future WeatherTRAK subscription purchases by utilizing a daily rate to accurately invoice through the conclusion of the term. All controllers purchased during term of the Agreement will incur the same negotiated daily subscription rate of $0.56 per day, which represents a 13% savings from the original service agreement. The following represents the standard renewal rate versus the negotiated offer, including savings potential for all 61 irrigation controller subscriptions over a three year term: Standard Rate Pre-Paid Rate Controller Inventory 61 61 Daily Rate $0.64 $0.56 Days in Term (3 years) 1157 1157 Discount -- 13% Total $45,440 $39,538 Savings $5,907 Above savings contingent upon pre-payment of the 3-year subscription cost of $39,538 by November 30, 2017. 240 Honorable City Council November 1, 2017 Page 3 FISCAL IMPACT Funding for the irrigation controller subscription services for the subscription period from April 30, 2017, through April 30, 2018 was included in the FY 17/18 budget. No additional appropriation is required to process the current invoice amount of$10,966.06. The cost of the proposed bundle subscription rate term of 3 years was not included in the FY 17/18 budget. An aggregate budget expenditure increase of $39,538 will be needed from the following funds: Fund Budget Expenditure Increase General Fund (1000) $649.00 84-2 Steeple Hill T2865 (2302) $2,593.00 84-2 Pheasant T3019/3525 (2305)* $1,297.00 84-2 Mountain Meadows PC3 (2310) $3,889.00 84-4 Carlsberg (2312) $3,889.00 Country Club Estates (2315) $4,537.00 Moorpark Highlands (2322) $11,018.00 Park Maintenance District (2390)* $11,666.00 TOTAL $39,538.00 *General Fund subsidy required. However, 84-2 Zone 2- Pheasant T3019/3525 Fund (2302) and Park Maintenance District Fund (2390) are projected to have deficit fund balance at end of the June 30, 2018. Therefore, an aggregate interfund transfer of $12,963 from the General Fund (1000) will be required. STAFF RECOMMENDATION (ROLL CALL VOTE) 1. Award agreement for irrigation controller subscription services to HydroPoint Data Systems, Inc. in the amount of $48,738 which includes a $9,200 contingency for a 3 year term, and authorize the City Manager to execute the agreement, subject to final language approval by the City Manager; and 2. Approve payment to HydroPoint Data Systems, Inc. for April 2017 — April 2018 service invoice in the amount of $10,966.06 and direct staff to prepay the cost of three-year subscription before November 20, 2017; and 241 Honorable City Council November 1, 2017 Page 4 3. Adopt Resolution No. 2017- amending the FY 2017/18 budget to appropriate $39,538 in various funds for irrigation controller subscription services and authorizing the transfer of $12,963 from General Fund Reserve to cover deficits for certain assessment district funds. Attachments: 1. Invoice for Services April 30, 2017 through April 30, 2018 2. Agreement 3. Resolution No. 2017- 242 ATTACHMENT 1 ydr oPoint I nvoice data systems, inc Customer# Invoice Date Invoice # Hydropoint Data Systems,Inc CU021967 5/10/2017 80944 1720 Corporate Circle Petaluma,CA 94954 (707)769-9696 Page 1 of 3 Bill To Ship To City of Moorpark City of Moorpark Attn:Al Walter Attn:Accounts Payable 799 Moorpark Avenue 799 Moorpark Avenue Moorpark CA 93021 Moorpark CA 93021 United States United States PO # Terms Shipping Method Sales Rep Email 05/08/2017 FedEx Ground Maldonado,Jacky Ordered By Job Name Tracking # Allen Walter RNWL ITEM# DESCRIPTION SERIAL NUMBER(s) QTY PRICE AMOUNT CIM-1YA 1 Year Additional WeatherTRAK Central Service 07101814 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07007421 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07009615 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07009632 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07009855 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07009894 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07010087 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07010324 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008648 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008800 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07010196 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 08004965 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008671 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07008678 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07008690 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008874 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07009401 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 08007285 1 192.95 243 HydroPoint Invoice data systems, ins, Customer# Invoice Date Invoice # Hydropoint Data Systems,Inc CU021967 5/10/2017 80944 1720 Corporate Circle Petaluma,CA 94954 (707)769-9696 Page 2 of 3 ITEM# DESCRIPTION SERIAL NUMBER(s) QTY PRICE AMOUNT -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09002776 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07101592 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008824 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07009903 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07010228 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07008750 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07009408 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07009967 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07009468 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008642 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07009024 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008409 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008699 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008716 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07009236 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07103867 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07009779 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07010457 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008583 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07009467 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07009659 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07010230 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07010442 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07010468 1 192.95 -48 Stations or less 244 HydroPoint I nvoice data systems, inc. Customer# Invoice Date Invoice # Hydropoint Data Systems, Inc CU021967 5/10/2017 80944 1720 Corporate Circle Petaluma,CA 94954 (707)769-9696 Page 3 of 3 ITEM# DESCRIPTION SERIAL NUMBER(s) QTY PRICE AMOUNT CIM-1YA 1 Year Additional WeatherTRAK Central Service 07008141 1 192.95 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 07010497 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07101190 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07102007 1 192.95 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 09010870 1 189.25 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09010864 1 189.25 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09010862 1 189.25 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 09011223 1 189.25 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09011233 1 189.25 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09011622 1 188.63 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09009941 1 188.63 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09011235 1 188.63 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 09010861 1 188.01 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 09011421 1 106.03 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09011974 1 106.03 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09003312 1 90.62 -48 Stations or less CIM-1 YA 1 Year Additional WeatherTRAK Central Service 07103498 1 81.37 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09015232 1 3.08 -48 Stations or less CIM-1YA 1 Year Additional WeatherTRAK Central Service 09015243 1 3.08 -48 Stations or less Prorating WeatherTRAK services for(61) controllers thru 4/30/2018. Replaces all quotes previously received. Subtotal 10,966.06 Shipping Cost (FedEx Ground) 0.00 Total $10,966.06 PLEASE REMIT PAYMENT TO: HydroPoint Data Systems PO Box 398689 San Francisco,CA 94139-8689 1111111111111111111111 245 80944 ATTACHMENT 2 J LHydroPoint r360°SMART WATER MANAGEMENT October 10,2017 City of Moorpark 799 Moorpark Avenue Attn:Jason LaRiva Moorpark,CA 93021 Hello Jason, Thank you for being a valued HydroPoint customer! To show our appreciation for your loyalty,we're offering City of Moorpark up to 13%off the current WeatherTRAK Central subscription. This represents as much as$5,907.20 in savings for the 61 active WeatherTRAK Controllers,as the standard annual renewal rate is$235.00 per controller. This 13%discount brings the rate to$204.45 annually per controller. WeatherTRAK Central reliably delivers maximum water savings and reduces operating costs for you and your landscape and irrigation partners. Key features of WeatherTRAK Central include: • Real-Time Visibility&Control—Station,controller and site level control and monitoring. • 24/7 Alert Notification—Customizable text and email alerts for proactive resolution. • Daily Local Weather—ET Everywhere Service delivers daily site-specific weather,accurate to a square kilometer. • Asset Management—Track site assets on a site map and store pictures and documentation in one easy-to-access location. • Compliance Monitoring&Budgeting—Dashboard of consumption compared with user-defined budget.Site-specific water agency requirements with reporting on compliance status. • WeatherTRAK Mobile App—Anywhere,any time access for your smart phone or tablet for simple controller functionality in both English and Spanish versions We are pleased to offer City of Moorpark a multi-year discount off your WeatherTRAK Central subscription.The full details may be found on the reverse side of this page. Hurry,this offer expires November 30,2017. Feel free to contact Ben Slick at(707)-285-3262 or bslick@hydropoint.com to discuss the program. With Our Thanks, itlit j *- JA Chris Spain,CEO HydroPoint Data System 1720 Corporate Circle,Petaluma,CA 94954 the makers of p 800 362 8774 f 707 769 9695 u_; WeatherTRAK' hydropoint.com 2 4 6 HydroPoint' 360°SMART WATER MANAGEMENT Customer Loyalty Discount Offer The benefits of this offer include the respective discount as well as protection against any CPI cost increases. 3 Year Customer Loyalty Program--13%Discount 3 year Pre-Paid Subscription Renewal Price $39,532.78 Proposed Savings over Standard Extension $5,907.20 Offer Acceptance&Signature On behalf of City of Moorpark,we are selecting the following multi-year subscription: 3 year pre-paid service bundle of 13%off the standard price for an amount due of$39,532.78 at an annual rate of$204.45 per controller. The Renewal Term for each controller shall begin the day after the expiration of the current term,and will extend for all controllers from 5/1/2018 thru 6/30/2021(1,157 Days in new term). New(future)WeatherTRAK controller subscription purchases, regardless of vendor/distributor, shall be purchased at the offered rate of$204.45 per year,and shall be prorated by the 3 year pre-paid service bundle rate upon activation date and require written agreement between HydroPoint Data Systems, Inc.and City of Moorpark City Manager or designee. Ex: 15 Controllers-204.45/Yr. 3 Years$9,200. All orders are subject to HydroPoint standard sales terms and conditions and order acceptance policy for subscriptions. By signing below, customer understands that this is a binding order and agrees to the standard sales terms and conditions. On behalf of City of Moorpark: Customer Signature Date Printed Name Title This proposal expires on November 30,2017.To take advantage of this offer,please select the specific offer below,sign,date and return the full proposal to HydroPoint at 1)fax 707-769-9695,2)scan and email to your sales representative,or 3)mail to HydroPoint Data Systems,1720 Corporate Circle,Petaluma,CA 94954 247 HydroPoint Data Systems, Inc. General Terms and Conditions These General Terms and Conditions (these "General Terms") set forth general terms and conditions on which HydroPoint Data Systems, Inc. ("Vendor") provides goods and/or services to Customer as described in one or more Orders and. if any, Statements of Work. Any such Orders and Statements of Work, together with these General Terms and all other attachments attached to and referenced in the foregoing form a binding master agreement (collectively,the"Agreement")between Vendor and Customer. The Agreement is effective on the earliest date of the following: (1) the date of Customer's signature on the initial Order, (2) the acceptance in writing by Customer of an Order, (3) the acceptance by Vendor of Customer's Purchase Order for any Products and/or Services from Vendor, and (4) the acceptance or use by Customer of any Product (including Product activation) or Services provided by Vendor to Customer. Capitalized terms used in these General Tormo, but not defined herein have the meaning ascribed to(hem elsewhere in the Agreement. The following Exhibits to these General Terms are hereby incorporated by reference and made part of the Agreement: Exhibit A-Supplemental Terms and Conditions-Professional Services Exhibit B-Supplemental Terms and Conditions-Online Services In the event of a conflict between the General Terms and one or more of the foregoing exhibits, the General Terms will prevail. 1. Definitions. 1.1. "Anonymized Data" means Customer Information that is aggregated with other customers' information in a manner that does not and cannot be used to identify Customer or its affiliates or any individual person. 1.2. "Confidential Information" means any technical, business, financial. and other information, in whatever form (including but not limited to written or oral,visual, paper or electronic, narrative or graphic), that a party discloses to the other party in the course of Vendor providing Services to Customer and that the disclosing party considers proprietary and/or confidential to it concerning its business and affairs. Notwithstanding the foregoing, the term Confidential Information does not include information that (i) is or becomes publicly available other than as a result of disclosure by the receiving party in violation of this Agreement or any other |aga|, contractual or fiduciary obligation; (ii) is or was independently developed by personnel of the receiving party without access to or use of any Confidential Information of the other party(as defined without regard to this exception); (iii) is or becomes available to the receiving party on a non-confidential basis from a source (other than the disclosing party)that is not prohibited from disclosing such information to the receiving party by any legal, contractual or fiduciary obligation; or(iv) is information that was already known by the receiving party, so long as the receiving party can prove that such information had been in the receiving party's possession prior to receipt of the Confidential Information by the receiving party. 1.3. "Customer"means the entity listed under"Bill To"or otherwise indicated as the procuring party on an Order. 1.4. "Customer Data" means electronic data submitted to and stored in the Online Services by Customer (including its users)in using the Online Services. 1.5. "Customer Information"means information that Customer or its affiliates or other related parties provides to or makes accessible by Vendor or its related parties in connection with this Agreement including in providing Professional Services (excluding Customer Data). 1.6. "Vendor"means HydroPoint Data Systems, Inc. 1.7. "including"means including without limitation. 1.8. "Order"means collectively the initial Vendor Quotation and any subsequent Vendor Quotation, in each case that is accepted by Customer in writing,or to the extent the context so indicates, a specific Vendor Quotation executed by Customer in connection with this Agreement. Order may also refer to Customer's Subscription activations and renewals and Product orders through Vendor's website. 1'9. "Product"means tangible goods sold by Vendor to Customer pursuant to an Order. 1.10'^Profeamional Services" has the meaning as defined in Exhibit A - Supplemental Terms and Conditions - Professional Services. 1.11."Online Services"has the meaning as defined in Exhibit B-Supplemental Terms and Conditions-Online Services. 1.12."Service(s)"means Professional Services and Online Services. Rev.20170908 HydroPoint—General Terms and Conditions Page 1 of 5 2 4 8 1.13."Start Date" means the date on which a Subscription Term commences. For controllers that are sold with access to Online Services, the Start Date is the date of first installation of the controller. For the Water Compass solution or equivalent Service wherein a transmitting water flow meter or sensor is installed and transmits data to Vendor, the Start Date is the date of first installation of the meter or sensor. For Subscription Professional Services such as Performance Management, the Start Date is the date of the first Kick-Off Meeting between representatives of Vendor and Customer relating to the Subscription Professional Services,or a Kick-Off Notice, if such meeting is not to be held. 2. Sale of Products. 2.1. Product Purchase Terms. Customer agrees to purchase the Products on the Order on the terms contained in the Order and otherwise in this Agreement. Product prices are F.O.B. origin, freight prepaid to destination specified in the Order.Vendor will invoice sales of Product at the time of their shipment except as otherwise stated in the Order.Title and risk of loss pass to Customer upon tender of shipment to the carrier. Customer must make any good faith claim for shipment shortfall or damage within five (5)days of receipt of shipment,otherwise Customer waives such claim as to such Products. 2.2. Limited Product Warranty. All Products are warranted in accordance with and are sold subject to the product warranty terms and conditions found on Vendor's website (the "Limited Warranty"), currently at the URL: https://hydropoint.com/legal/. The remedies provided in the Limited Warranty constitute Customer's sole remedies and Vendor's sole obligations with respect to a breach of the Limited Warranty. The Limited Warranty is made expressly subject to the terms and conditions of this Agreement including Section 11, below. 3. General Payment Terms.All sales of Products and Services are final and related payments are non-refundable except to the extent otherwise expressly provided in the Agreement. All credit extended by Vendor and the limits of such credit, are at Vendor's sole discretion, and may be reduced or terminated by Vendor at any time, for any reason. A late charge is payable on all overdue balances under this Agreement while outstanding more than thirty(30)days past due based on Order terms at the rate of the lesser of one and a half percent(1.5%) monthly and the highest rate allowed by law. Vendor may defer delivery of Products ordered and/or suspend provision of Services until all such overdue amounts are paid. All payments hereunder must be paid in U.S. Dollars. Except as otherwise specified in this Agreement, (i)all fees are exclusive of, and Customer is responsible for, applicable foreign, federal, state, and local sales, use, excise, value added, export and all customs, duties and other governmental fees or levies or other applicable taxes,other than taxes on the net income of Vendor, (ii)Customer shall pay or reimburse Vendor for any such taxes and fees paid by Vendor, and (iii) Vendor may add any such taxes to invoices submitted to Customer by Vendor. Vendor shall be entitled to recover from Customer any costs incurred in collecting any amount past due under this Agreement, including reasonable attorneys'fees. Customer may make no offset for any amounts due regardless of the justification for such intended offset. Any good faith invoice disputes must be brought by Customer within thirty(30)days of receipt, otherwise Customer waives such dispute. Additional Products and Services not within the scope of an Order or Statement of Work are subject to additional fees at Vendor's then-current rates. 4. Supplemental Services Terms and Conditions. Professional Services are provided subject to the additional terms and conditions in Exhibit A- Supplemental Terms and Conditions- Professional Services (also referred to as the"Services Terms").Online Services are provided subject to the additional terms and conditions in Exhibit B -Supplemental Terms and Conditions-Online Services(also referred to as the"Online Terms"). 5. Orders and Ordering Documents.Any Orders, Statements of Work, and amendments and attachments thereto, will be incorporated into this Agreement. Any Order comprising a Customer purchase order or similar purchasing document issued by any entity other than Vendor is subject to and incorporates these General Terms and will be valid only for the purpose of identifying this Agreement and the items and quantities ordered; any other terms and conditions included in such purchase order that conflict with, vary, or supplement the terms herein are void and will be of no effect, even if Vendor otherwise accepts the purchase order. In the event of a conflict between the terms of these General Terms and an Order, Statement of Work or attachment, these General Terms will control. Vendor is failure to object to Customer terms and conditions contained in any Order or other document from Customer will not be construed as a waiver of the foregoing nor an acceptance of any such terms and conditions. 6. Ownership; Proprietary Rights. The Services, and all ideas, know-how, processes, information, drawings, documents, designs, models, inventions, copyrightable material, and other tangible and intangible materials authored, prepared, created, made, developed, delivered, conceived, or reduced to practice, in whole or in part, by Vendor in the course of performing Services under the Agreement including, without limitation, computer programs, data, and documentation (collectively, the "Works") and all copyrights, patent rights, trade secrets, trademarks, moral rights, and all other proprietary and intellectual property rights throughout the world in each of the foregoing (collectively, "Intellectual Property Rights") are and will remain the sole and exclusive property of Vendor. As between Vendor and Customer, each party retains all of its rights to its trademarks, logos, trade Rev.20170908 HydroPoint—General Terms and Conditions -Page 2 of 5 249 names, and service marks, website(s), technologies, patents, copyrights, trade secrets, and other intellectual property, and proprietary rights. Without limiting the generality of the foregoing, Vendor shall at all times solely and exclusively own all rights, title, and interest in and to the Online Services and content therein, the Professional Services, Anonymized Data, Anonymized Information, and any and all improvements, enhancements, derivative works, and extensions thereof, and all Intellectual Property Rights therein. No implied licenses are granted herein. All rights not expressly granted to Customer are reserved to Vendor. 7. Customer Cooperation. Customer shall provide reasonable cooperation to Vendor in Vendor's performance of Vendor's obligations under this Agreement. Customer consents to Vendor's reasonable and limited use of Customer's name, logo, and use case in promotion of Vendor's goods and services on condition that: (i) any public use, such as on a website or press release must first be submitted for approval by Customer and (ii) Customer reserves the right to terminate this use right at any time upon notice to Vendor. 8. Protection and Use of Confidential Information. Each party shall not use (except as expressly authorized by this Agreement) or disclose Confidential Information of the other party without the prior written consent of the other party. The receiving party may disclose the Confidential Information of the other party to the minimum extent necessary to comply with a lawful order of a court or taxing authority, or government regulation, provided that the party making such disclosure provides the other party with reasonable advance written notice thereof to the extent legally permissible, and reasonably cooperates with the other party(at the expense of the party whose documents are being requested) to seek confidential or protective treatment of such information. In addition, each party shall take at least reasonable measures to protect and maintain in confidence the other party's Confidential Information. Each party may disclose such terms of this Agreement to its attorneys, accountants, and other professional advisors, or to potential investors or other third parties conducting due diligence in connection with a potential financing, change of control or other similar transaction of such party, provided further that each of the foregoing third parties must be under a duty of confidentiality with respect thereto. Customers may disclose this Agreement to the extent necessary to comply with applicable laws and regulations that make this Agreement a public document or to otherwise comply with applicable public disclosure laws and regulations; provided, however, that, to the extent permitted by law, Customer shall use commercially reasonable efforts to seek confidential treatment of all pricing information within the Agreement in connection with such disclosure. If Vendor is obligated to respond to a third-party subpoena or other compulsory legal order or process in connection with Online Services, Customer Data, or otherwise in connection with this Agreement, Customer shall reimburse Vendor for Vendor's reasonable related attorneys'fees, as well as Vendor's employees'and contractors'time and materials spent in responding to the third-party subpoena or other compulsory legal order or process at Vendor's then-current hourly rates for such Services. Vendor may disclose Customer Confidential Information to independent contractors, subcontractors and service providers of Vendor for the purpose of providing and maintaining the Services and otherwise performing Vendor's obligations under this Agreement and provided such third parties are bound by obligations of confidential and use restrictions at least as protective as those in this Section 8. 9. Use of Third-Party Services and Subcontractors. Vendor may, in the ordinary course of business, utilize third- party services(including third-party hosting and data centers)and may also engage independent contractors and subcontractors in performing its obligations under this Agreement(including for installation and other Professional Services)and Customer hereby consents to such use. 10. Representations and Warranties by Both Parties. Each party represents and warrants to the other party that (i)it has the right to enter into this Agreement and perform its obligations hereunder in the manner contemplated by this Agreement, (ii)this Agreement does not conflict with any other agreement entered into by it and (iii)that it shall comply with all applicable law in connection with the performance of its obligations and use of the Products and Services. 11. General Disclaimers. Except for the express warranties provided in this Agreement, the Products and Services are provided "AS IS AND WITH ALL FAULTS" and to the fullest extent permissible under applicable law,Vendor disclaims all warranties, express, implied, and statutory, concerning the Products and Services, and otherwise related to this Agreement, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and any warranties of non-infringement. Vendor does not warrant that (i) the Products or Services will meet Customer's requirements (ii) that the Online Services' operation will be error-free or uninterrupted (including due to performance of the Internet, other transmission networks, and customer's local network and equipment, which systems Vendor is not responsible for providing) or (iii) that the Services or any Product will properly operate when used with equipment, other systems, or configurations, in each case not specified by Vendor in an Order or Statement of Work. Vendor is not responsible for injury or property damage or other damages or losses due to a failure of a Product or Services. Vendor is not responsible for errors in data provided by Customer or its users or representatives. As to Online Services, Vendor is not responsible for errors Rev.20170908 HydroPoint—General Terms and Conditions - Page 3 of 5 250 due to equipment failure.Vendor is not responsible for defects or problems in Products or Services to the extent such defects or problems are caused by factors other than the Products or Services, or to the extent such defects or problems are a result of tampering with Products or Services (including without limitation disconnection, abuse, misuse, accident, alteration, neglect, unauthorized repair, relocation, or resident interference). Without limiting the foregoing, the following are excluded from Vendor warranties: failures due to lightning strikes, misuse, electrical power line surge damage, infestation of pests, improper installation by user, improper power supply attachment, short circuiting of valve wire outputs, water damage, and physical abuse. Notwithstanding anything to the contrary herein, Vendor makes no warranty with respect to qualification under state licensing provisions (see the Services Terms) and Vendor does not provide design, installation, or maintenance services for irrigation systems generally. Vendor is not responsible for failures in Customer's irrigation systems not caused by goods or services provided hereunder and covered by Vendor's express warranties herein. Proper installation and use of Vendor Products and Services may involve design, installation, and other considerations not provided by Vendor and for which Vendor is not responsible. Vendor is not responsible for use of its Products and Services in a manner inconsistent with specifications and intended use provided by Vendor. The entire responsibility in connection with the consequences resulting from the use of the Products and Services as well as the intended or achieved results resulting from the use of the Products and Services lies entirely with Customer. If Customer has acquired the Products or Services through an authorized distributor or reseller of Vendor, Vendor shall not be held responsible for any additional promises or warranties made by such distributor or reseller. To the maximum extent permitted by law, this Section shall apply even if any express warranty or limited remedies set forth in this Agreement fails of its essential purpose. 12. Limitation of Liability. To the maximum extent permitted by applicable law, in no event will Vendor or its affiliates, including their respective employees, officers, directors, owners, agents, successors and assigns, be liable to Customer or to any third party for any indirect, incidental, special, exemplary or consequential damages, including, but not limited to, lost profits, loss of data, loss of use, business interruption, loss of good will, or cost of procuring substitute products or services, arising out of or in relation to this Agreement or the Products or Services, even if advised of the possibility of such damages or losses. Notwithstanding anything else in this Agreement to the contrary, Vendor's aggregate liability arising from, relating to, based on, or connected with this Agreement including the Products and Services, shall in any event and under any theory of recovery, including claims of negligence, be limited to the lesser of(1) the amount of fees actually received by Vendor under this Agreement relating to the property for which the claim accrued during the three- (3) month period immediately preceding the date on which Customer's claim first accrued and(2)five thousand dollars($5,000). 13. Limitations of Disclaimers and Limitations on Liability. Applicable law in certain jurisdictions relevant to this Agreement including individual properties of Customer may limit the contractual exclusion, limitation or disclaimer of warranties or damages. In such cases, Vendor's liability (and the liability of its affiliates and agents) will be limited in accordance with this Agreement to the greatest extent permitted by applicable law. 14. Specific Exclusions. Without limiting Section 12, Vendor will not be liable for losses, demands, expenses, liabilities,fines,or the like relating to any of the following: — water or other utility charges, including surcharges or fines; — losses of plant material resulting from under-or over-irrigation or otherwise; or — injury, death, or property damage due to Vendor local or remote management through Products and/or Services of irrigation including without limitation accidents due to wet surfaces, pipe and related damage due to freezing of water,damage to hardscape surfaces,and the like. The foregoing list is not exhaustive. Procurement of Products or Services from Vendor does not limit Customer's obligation to ensure,and is not a replacement for,Customer's on-site monitoring and management of its properties including responding to water leaks or hazardous conditions. 15. Force Majeure. Vendor shall not be liable to Customer or any other person or entity for any delay or failure in the performance of this Agreement or for loss or damage of any nature whatsoever suffered by Customer or its affiliates due to (i) disruption or unavailability of communications, utility, hosting, or Internet service including those resulting in interruption in Online Services, (ii) acts of war, acts of vandalism, terrorism, hacking, lightning, flood,fire,strike,or(iii)any other causes beyond Vendor's reasonable control. 16. Sale of Real Property. If Customer sells or otherwise transfers ownership of an individual location or property identified in an Order or Statement of Work to a third party, Customer may,with notification to Vendor, assign the Services relating to such property to the new property owner only in respect of such individual property and related Services, and only if the new owner agrees with Vendor in writing to be bound by an agreement Rev.20170908 HydroPoint—General Terms and Conditions Page 4 of 5 251 substantially equivalent to this Agreement procuring the Services. Any such assignment shall not relieve Customer of obligations or liabilities under the Agreement occurring and/or accruing prior to the date of the assignment, and Customer shall continue to be bound by the Order or Statement of Work for all properties other than to the extent so assigned. Absent such assignment in accordance with this Section 16, Customer will remain obligated under the Agreement for contracted Services relating to such transferred property. 17. Independent Contractor. The relationship of Vendor and Customer is solely that of independent contractors. Nothing contained in this Agreement shall be construed to (i) give either party the power to direct or control the activities of or legally bind the other or(ii) constitute either party as the other's partner,joint venturer, co-owner, agent,franchisee,or employee. Neither party is authorized or empowered to transact business, incur obligations, or make representations on behalf of the other party. 18. Dispute Resolution. In the event of any dispute arising out of or related in any way to this Agreement(except for non-payment by Customer),the parties agree to first attempt, in good faith,to settle such disputes informally through direct discussions and direct negotiations. If a resolution cannot be reached informally,the parties agree, before the filing of any lawsuit,to submit such disputes to and participate in good faith in at least one non-binding mediation before a mutually-acceptable mediator. For purposes of the procedures set forth in this paragraph,a "dispute"means any action,dispute, claim or controversy of any kind,whether in contract or tort,statutory or common law,legal or equitable, now existing or hereafter arising under or in connection with,or in any way pertaining to this Agreement.The foregoing does not apply to the seeking of injunctive relief. No formal proceedings for the judicial resolution of any dispute, except for the seeking of injunctive relief,may begin until the foregoing dispute resolution procedure has been completed. 19. Miscellaneous. The Agreement, including all attachments, contains the entire agreement of the parties, and supersedes any and all previous or contemporaneous agreements with respect to the subject matter hereof, whether oral or written. The Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Subject to Section 16,the Agreement may not be assigned by Customer, in whole or in part, without Vendor's prior written consent, such consent not to be unreasonably withheld. Any attempted assignment in violation of the foregoing will be null and void. Vendor may assign, delegate and/or subcontract any or all of its rights or obligations hereunder. All formal notices, requests, demands, consents and communications under this Agreement must be in writing and delivered by personal delivery, electronic mail or facsimile transmission, by certified or registered mail, return receipt requested, or by overnight courier and will be deemed given upon personal delivery, five (5) days after deposit in the mail, two (2) days after deposit with an overnight courier or upon electronic confirmation or acknowledgment of receipt of electronic transmission. Notices will be sent to the party's most recent contact information set forth in the Order or such other contact information as either Party may specify in writing for notification purposes from time to time. The Agreement is governed in all respects, including validity, interpretation and effect, by the laws of the State of California,without reference to the conflicts of laws rules or any other rules that would result in the application of a different body of law. The UN Convention on Contracts for the International Sale of Goods will not apply to this Agreement. For purposes of enforcement of this Agreement, the parties submit themselves to the exclusive jurisdiction of the courts located in the County of San Francisco in the state of California and hereby agree that such courts have exclusive jurisdiction for the enforcement of this Agreement and any rulings or orders associated therewith, and voluntarily waive any right to challenge jurisdiction based on any theory, including inconvenience of forum. Notwithstanding the foregoing, Vendor may seek injunctive or other equitable relief, wherever it deems appropriate, to protect or enforce Vendor's rights under this Agreement. If any part of this Agreement is held to be void or unenforceable, such part will be treated as severable, leaving valid the remainder of this Agreement notwithstanding the part or parts found to be void or unenforceable. No waiver will be effective unless it is in writing and signed by an authorized representative of the waiving party, and any such waiver will only be applicable to the specific instance(s) referenced in such written waiver. These General Terms, the Professional Services Terms, and the Online Terms may be amended only by a writing executed by each of the parties. Headings in this Agreement are for purposes of reference only and will not limit or otherwise affect the meaning hereof. Sections 1, 6, 7, 8, and 11-19 and any payment obligations of Customer will survive a termination of this Agreement. [End General Terms and Conditions] Rev.20170908 Hy_droPoint—General Terms and Conditions Page 5 of 5 252 EXHIBIT A HydroPoint Data Systems, Inc. Supplemental Terms and Conditions for PROFESSIONAL SERVICES These Supplemental Terms and Conditions for Professional Services(these, "Services Terms")are supplemental terms and conditions governing the provision by HydroPoint Data Systems, Inc. ("Vendor")of Professional Services, as defined below, and are attached to the General Terms and made part of the Agreement between Vendor and Customer. These Services Terms supplement, but do not replace,the General Terms and other terms and conditions of the Agreement. Capitalized terms used, but not defined in this Exhibit have the meaning ascribed to them elsewhere in the Agreement. 1. Definitions. 1.1. "Professional Services"means general consulting, design, analysis, assessments, evaluations,verification, installation, commissioning, implementation, management, training (including provision of training videos), configuration, and other professional services (and excluding for the avoidance of doubt, Online Services) provided by Vendor to Customer pursuant to the Agreement as further described in the Order, Statements of Work, and other attachments to this Agreement. 1.2. "Professional Services Fees" mean the fees payable to Vendor in consideration of Professional Services as provided in the Order and/or one or more Statements of Work. 1.3. "Statement of Work" means a written proposal or other document prepared by Vendor and accepted by Customer in writing (either directly or by its attachment to a Customer-accepted Order) that describes the nature and scope of Professional Services to be provided by Vendor to Customer and that may include, as applicable, related compensation, expense reimbursement, and other terms and conditions relating thereto. 1.4. "Subscription Professional Services" means standardized Professional Services that are provided by Vendor on a subscription or recurring fee basis(for example, Performance Management Services). 2. Engagement. Customer hereby engages Vendor to perform the Professional Services of the scope and on the terms described in the Order and Statement of Work, as the case may be including any attachments thereto describing the Professional Services. 3. Professional Services Fees and Terms. Customer shall pay Vendor the Professional Services Fees according to the terms each as set forth in the applicable Order and Statement of Work and subject to this Agreement. Except as otherwise provided in the applicable Order or Statement of Work, (i) Professional Services (other than Subscription Professional Services) and related reimbursable travel and other expenses will be invoiced monthly in arrears or,for brief engagements, at completion, at Vendor's option, (ii)any total fee amount communicated in connection with a time and materials-based project is an estimate only and not a guarantee that the Professional Services will be completed for such total fee amount, (iii) expense reimbursement policies will be subject to Vendor's generally-applicable expense reimbursement policies then in effect and (iv) Customer shall obtain and pay for all legally-required state and local permits and other local approvals and Vendor may suspend the provision of Professional Services pending receipt of such approvals and permits. In the event of an early termination of Professional Services (to the extent permitted by the Agreement), Vendor will invoice and Customer shall pay all Professional Services Fees for Professional Services provided up to the effective date of termination of the applicable Statement of Work plus reasonable shutdown fees, if any, incurred by Vendor. Professional Services are limited to the scope and Deliverables as are provided in the applicable Order or Statement of Work, which do not include all design, installation, use, or maintenance considerations for Customer's irrigation or water systems generally. 4. Change Orders. If Customer or Vendor requests a change in any of the specifications, requirements, Deliverables, schedule, scope or other terms of the Professional Services provided in any Order or Statement of Work,the parties will promptly meet to discuss the proposed changes. Once any changes are tentatively agreed, if at all, Vendor will prepare and deliver for approval a change order describing the proposed changes including any changes in fees and expenses (each, a "Change Order"). Change Orders are not binding unless and until they are executed by Customer in the form prepared by Vendor. Upon such execution, Change Orders will be deemed part of, and subject to, this Agreement. If the parties disagree about the proposed changes, the parties shall promptly escalate the change request to their respective senior management officers for resolution. 5. Subscription Professional Services. The following terms and conditions apply solely to Subscription Professional Services. 5.1. Term and Termination.The initial term of subscription is as provided in the applicable Order or, if no term is indicated, the initial term is one (1) year (the "Initial Term"). The Initial Term commences upon the Rev.20170908 - HydroPoint—Exhibit A—Professional Services Page 1 of 3 253 applicable Start Date, as defined in the General Terms. Upon expiration of the Initial Term, the Subscription Professional Services will automatically renew for successive one- (1) year renewal terms (each, a "Renewal Term")absent written notice by either party to the other of its election to not so renew delivered at least sixty (60) days prior to such renewal. Notwithstanding Section 12 (Termination of Professional Services), Customer may not terminate Subscription Professional Services for convenience during the Initial or any Renewal Term, but may terminate in the event that Vendor has committed a material breach of its obligations relating to the Subscription Professional Services that is not cured within forty-five (45)days after Vendor's receipt of written notice thereof,which notice must expressly state all of the reasons for the claimed breach in sufficient detail so as to provide Vendor a meaningful opportunity to cure such alleged breach. Section 4(Change Orders)is not applicable to Subscription Professional Services. 5.2. Fees. Notwithstanding Section 3 (Professional Services Fees and Terms), Subscription Professional Services fees are due annually in advance of service. 5.3. Embedded Online Services. Certain Subscription Professional Services require or include a subscription to Online Services. Any such embedded Online Services are provided subject to and governed by the Online Terms. 6. Warranty by Vendor for Professional Services. Vendor warrants to Customer that Vendor will perform Professional Services in a professional manner consistent with industry standards and that it will deliver related Deliverables substantially conforming to those as set forth in the applicable Statement of Work or Order. Customer's sole and exclusive remedy for Vendor's breach of the foregoing warranty is as follows: Customer shall provide Vendor with a detailed written description of the non-conforming Deliverables within ten (10) days from the date of delivery of the Deliverables claimed to be non-conforming, Vendor shall promptly review and confer with Customer regarding such written claims and, for those claims that Vendor accepts as valid following an inquiry in good faith, Vendor shall promptly and at its expense, use commercially-reasonable efforts to re- perform the relevant Professional Services; if no written rejection is given to Vendor by Customer within ten (10) days following such re-performance, the Deliverables as re-performed will be deemed accepted by Customer. If Vendor determines, in its sole discretion, that it is not commercially feasible to re-perform the Professional Services so as to be conforming, then Vendor shall refund amounts paid by the Customer for such non- conforming Professional Services. To the extent Vendor disagrees with Customer's notice of non-conformance, the parties agree, if so requested by Customer in writing, to escalate the matter to their respective senior management. This Section constitutes Customer's sole remedy and Vendor's sole obligation with respect to a breach of the foregoing Professional Services Warranty. 7. Rights in Services, Deliverables and Information. As between Vendor and Customer and without limiting Section 6 of the General Terms, nothing in this Agreement transfers any right, title or interest in or to Professional Services including all Intellectual Property Rights therein except for Deliverables (on condition of payment in full therefor). "Deliverables" means reports, analyses, and other work product produced by Vendor in providing the Professional Services to the extent of Customer Information or other information that is unique and specific to Customer contained therein. Customer shall provide Vendor with and cooperate in Vendor's collection of, Customer Information reasonably necessary or advisable to permit Vendor to perform Professional Services. Customer consents to Vendor's use of Customer Information, such as water usage information, for any purpose except that Vendor will not disclose Customer Information to any third party (other than its affiliates, service providers, subcontractors, and agents). Notwithstanding the foregoing, Customer consents to Vendor's collection and use of Customer Information in the form of Anonymized Data. All rights not expressly granted to Customer in this Agreement are reserved by Vendor. 8. Insurance. In respect to Professional Services, Vendor shall maintain insurance policies and coverages as follows: Worker's Compensation Insurance insuring Vendor's liability under the worker's compensation and occupational disease laws of the state where Professional Services performed with at least the coverage required by law; Commercial General Liability Insurance with coverage on an "occurrence" basis with a combined single limit of not less than $1,000,000 per occurrence and $2,000,000 aggregate; in each case to insure Vendor for Professional Services performed under an Order or Statement of Work; and Insurance for operations of all hired and non-owned vehicles with limits for each accident of$1,000,000 combined single limit with respect to bodily injury, death and property damage. 9. Customer Obligations Regarding Site Conditions. Other than as disclosed in writing to Vendor and acknowledged in writing by Vendor in advance of providing Professional Services, Customer represents and warrants that, to Customer's knowledge after reasonable inquiry, there are no potentially hazardous substances, environmental contamination, or conditions in, on, or near the properties required to be visited by Vendor employees, subcontractors, agents ,or independent contractors in performing its obligations under the Agreement that present a potential danger to human health or the environment. Customer shall immediately notify Vendor if it becomes aware of any changes to aforementioned representations and warranties. Vendor shall not be - Rev.20170908 HydroPoint—Exhibit A—Professional Services Page 2 of 3 254 responsible for remedying any pre-existing hazardous materials, pre-existing hazardous conditions or pre-existing violations of laws, or regulations affecting the site where Professional Services are to be performed, and Customer shall indemnify, defend, and hold harmless Vendor from any liability, loss,damages, cost, and expense (including attorneys' fees) arising out of or relating to any such hazardous materials, hazardous conditions, or violations of laws or regulations or inaccuracies with respect to the aforementioned representations and warranties. 10. Indemnification. Vendor shall defend, indemnify and hold harmless Customer and its officers, directors, agents, and employees (each an "Indemnified Party" and collectively, "Indemnified Parties")from and against any and all third-party claims, demands, losses, liabilities, suits, costs, and expenses(including reasonable attorney's fees and legal expenses) to the extent arising out of death or injury or property damage to the extent caused by Vendor's gross negligence, or willful, reckless, or criminal misconduct in the performance of the Professional Services at Customer's location;and except in each case to the extent caused by the negligence or misconduct of an Indemnified Party or resulting from Customer's failure to comply with Section 7 (Customer Cooperation)of the General Terms (collectively, "Claims")Error! Reference source not found.. The obligations under this Section 10 are conditioned upon Customer (i) giving Vendor prompt written notice of any Claim; (ii) granting Vendor complete control of the defense and (conditioned upon a full release of Customer) settlement of Claims; and (iii) reasonably cooperating with Vendor in the defense and settlement of Claims. 11. Limitation of Liability. For the avoidance of doubt, Professional Services Terms are governed by the General Terms and these Services Terms. Without limiting the foregoing, Professional Services are provided subject to the disclaimers, limitations of liability, exclusions and other terms and conditions in the General Terms, which should be reviewed in conjunction with these Services Terms. 12. Termination of Professional Services. Except as otherwise specified in the applicable Order or Statement of Work and excluding Subscription Professional Services, either party may terminate Professional Services by providing notice to the other party with termination to be effective three(3)days after the date of such notice. 13. Not a Licensed Contractor. Customer acknowledges that Vendor is performing services as an independent contractor,and that Vendor is a provider of irrigation control systems and services and not a licensed contractor. Customer acknowledges that Vendor may work with a third-party installer (who, if required by applicable law, shall be licensed) to perform any installation services described in the applicable Order or Statement of Work. Customer acknowledges that Vendor is not a licensed contractor under California or other law or regulations or under the law or regulations of the state in which it will perform professional services (each are "state licensing provisions"). Customer hereby waives any claim, and shall not raise any defense to enforcement of a contract, on grounds that Vendor (i) is a contractor within the meaning of any state licensing provisions, or (ii) is required under any state licensing provisions or other applicable law to be licensed as a contractor. [End Supplemental Terms and Conditions for Professional Services] Rev.20170908 HydroPoint—Exhibit A—Professional Services Page 3 of 3 255 HydroPoint Data Systems,Inc. Terms and Conditions for ONLINE SERVICES These Terms and Conditions for Online Services(these,"Online Terms")govern the provision by HydroPoint Data Systems, Inc.("Vendor")of Online Services,as defined below, and supplement the General Terms which are made part of the Agreement between Vendor and Customer. These Online Terms supplement, but do not replace,the General Terms and other terms and conditions of the Agreement,the latest version of which can be found at https://hydropoint.com/legal. Capitalized terms used, but not defined in this agreement have the meaning ascribed to them elsewhere in the Agreement. 1. Definitions. 1.1. "Online Services" means, collectively, the software-based and other electronic services and data provided by Vendor to which Customer procures access and use pursuant to the Agreement via the internet, cell or other wireless technology, or other telecommunications methods. Such electronic services may include web-based management and/or monitoring applications, and weather and water usage data feeds and services, and includes those that are accessed by the Customer through Products such as Vendor controllers and other Products. For the avoidance of doubt, Online Services exclude Professional Services, but may be procured as a part of Professional Services. 1.2. "Subscription" means Customer's procurement of access to the Online Services for the applicable Subscription Term as described in this Agreement. 1.3. "Subscription Fees"mean the fees owed in consideration of a Subscription. 2. General; Term of Subscription. Subject to the terms and conditions of the Agreement (including payment by Customer of applicable Subscription Fees) and for the Subscription Term, Customer hereby subscribes to (and Vendor shall use commercially reasonable efforts to make available) the Online Services solely for Customer's internal business use. For Subscriptions comprising transmission of data to and from a Product, such as a Vendor controllers' connection to online services, the Subscription may be purchased in connection with the purchase of the Product in which case the Subscription Term relating to the Product commences upon activation of the Product. Other Subscriptions commence on the effective date of the Order procuring the Subscription or other commencement date specified therein. The initial term of a Subscription (the "Initial Term") is the Subscription period indicated on the applicable Order. If no such initial period is indicated on the applicable Order, then the Initial Term is one (1)year. Upon expiration of the Initial Term, the Subscription will automatically renew for successive one-(1) year renewal terms (each, a "Renewal Term") absent written notice by either party of its election to not so renew delivered at least sixty (60) days prior to such renewal. The parties will cooperate in good faith with the other party's written request from time to time to conform any related, but non-co-terminus Subscription Terms to a co-terminus Subscription Term through the use of fee pro-ration and the like. "Subscription Term" means, as to a Subscription, the Initial Term and any Renewal Terms. The Subscription Term commences on the applicable Start Date, as defined in the General Terms. 3. Restrictions. Customer shall not, and shall not knowingly permit any third party to, in whole or in part, (i)reverse engineer, decompile or disassemble the Online Services or use similar methods to determine any design structure, concepts and construction method of the Online Services or of any database provided to Customer relating thereto, or replicate the functionality of the Online Services for any purpose, (ii) copy, translate, resell, distribute, or create a derivative work of the Online Services or use the Online Services for timesharing, service bureau, or similar purposes (iii) use the Online Services for the purpose of building a similar or competitive product or service, (iv) obtain or knowingly assist in obtaining unauthorized access to the Online Services including using or attempting to use non-Vendor approved controllers or other equipment to access Vendor data feeds or other Online Services or sharing passwords to access to Online Services, (v) use the Online Services in a manner that is contrary to applicable law, in violation of any third party rights of privacy or intellectual property rights, (vi) use the Online Services to store, access, distribute or transmit any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, religious belief, sex, gender, gender expression or identity, sexual orientation, disability; or causes or is reasonably likely to cause damage or injury to any person or property or (vii) transmit viruses or other code intended to harm or surreptitiously intercept data to or from the Online Services or affect its operation. Customer shall indemnify, defend, and hold Vendor harmless from claims, demands, liabilities, losses, and costs and expenses (including attorneys'fees)arising out of or relating to Customer's breach of this Section 3. Vendor has the right(but not the obligation) to monitor and review all information and materials transferred to or otherwise stored under Customer's account in the Online Services and may remove any such information or material that Vendor deems in its sole discretion to violate these Online Terms or the Agreement generally. Customer shall comply with all Rev.20170928-Moorpark HydroPoint—Online Services Page 1 of 4 256 applicable laws and regulations in connection with its use of the Online Services including export laws and obtain any permits, licenses and authorizations required to be obtained by Customer in using the Online Services; Vendor reserves the right to notify law enforcement when the company encounters content or actions it believes to be in violation of the law. Customer shall not remove, modify, or obscure any Vendor or other copyright, trademark,or other proprietary notices affixed to or displayed on or in the Online Services and shall not knowingly allow any third party under Customer's control to take any such action. Customer is responsible under this Agreement for all activities conducted in the Online Services under its login credentials and account including those of its independent contractors or any other third party.Vendor shall have no obligation to provide the Online Services in any particular geographical location and may discontinue the Online Services in any geographical location in its sole discretion. Subscriptions included or purchased in connection with a Product such as a transmitting controller must be activated on or before the last day of the 13th month following the month in which the Product was purchased or are forfeited and may not be activated. Vendor is not responsible for activation of a Product-based Subscription or for loss of a Subscription due to the failure to timely activate it. 4. Customer Data; Right to Use; Other Customer Responsibilities. Responsibility for ensuring that Customer Data entered by Customer into the Online Services is accurate and reflects Customer requirements lies solely with Customer. Customer hereby grants Vendor the right and license to use, copy, store, transmit, modify, and display Customer Data for the purposes of performing Vendor's obligations under this Agreement. Certain Online Services require the use of Vendor Products such as transmitting controllers, which are not included in Subscription Fees and must be purchased separately. Additionally Online Services may require Customer- provided communications and other hardware and software necessary to access the Internet and Vendor's web-based applications, which are not included in Subscription Fees. Customer is responsible for obtaining and maintaining, at Customer expense, all software and hardware, including Products, needed to access and use the Online Services (collectively, "Equipment"). Customer shall also be responsible for maintaining the security _ of the Equipment, Customer account information, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent (excluding uses by Vendor in performing Professional Services procured by Customer). Vendor's use of Customer Data is also governed by Vendor's applicable privacy policy for the Online Service available on Vendor's website at https://www.hydropoint.com/legal and Customer consents to Vendor's use of Customer Data in accordance with such privacy policy as revised from time to time. Customer consents to Vendor's collection and use of Customer Data in the form of Anonymized Data. Vendor owns all right, title, and interest in and to Anonymized Data and nothing herein restricts Vendor's use of Anonymized Data in any manner whatsoever. 5. Subscription Fees. Customer shall pay all fees for Subscriptions in the amounts and according to the terms as are set forth in the applicable Orders (and Statements of Work, if any) procuring the Subscription. Except as otherwise specified in the Agreement, (i) Subscription fees will be invoiced annually in advance and due within thirty (30) days of Customer's receipt of the invoice and (ii) Vendor may increase Subscription Fees at each renewal thereof during the Subscription Term on at least thirty (30)days' prior notice to Customer. If Customer's use of the Online Services exceeds the parameters or restrictions set forth on the applicable Order or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Fees for Online Services are not refundable except in accordance with this Agreement. 6. Limited Warranty by Vendor for Online Services. Vendor warrants that each Online.Service will, during the Subscription Term, perform materially in accordance with its applicable documentation as provided or made available to Customer by Vendor. Customer's sole and exclusive remedy for Vendor's breach of the foregoing limited warranty is that Vendor shall use commercially reasonable efforts to modify the Online Service to achieve in all material respects the functionality described in such documentation and if Vendor is unable to materially achieve such functionality through such efforts or deems, in Vendor's sole discretion, such efforts impracticable, Customer will be entitled to terminate the Subscription and receive a pro-rata refund of any pre-paid and unused Subscription Fees, if any, for the terminated, unused portion of the Subscription Term at issue. This Section 6 constitutes Customer's sole remedy and Vendor's sole obligation with respect to a breach of the foregoing Online Services limited warranty. This limited warranty will not apply to the extent that the breach of warranty resulted from Customer's breach of the Agreement, Customer's use of the Online Services in conjunction with hardware or software not provided or specified by Vendor, Customer's failure to provide reasonable cooperation in provision of the Online Services, or use of the Online Services by Customer other than in accordance with its documentation or the terms of the Agreement. For the avoidance of doubt, the foregoing limited warranty is granted subject to the disclaimers in Section 11 of and elsewhere in the General Terms and to Section 7 (Online Services Disclaimer)below. 7. Online Services Disclaimer. Weather data feeds and other Online Services provided by Vendor rely upon numerous interconnected technologies and weather information that are inherently not fault-free and may Rev.20170928-Moorpark HydroPoint—Online Services Page 2 of 4 257 contain errors or become interrupted. Vendor disclaims responsibility for liabilities, losses, claims and demands resulting from any such errors or interruptions. The Online Services should not be used for fault-intolerant applications or where such errors or interruptions would present a high degree of risk. Certain Online Services allow alerts and notifications to be sent to mobile devices. Vendor is not responsible for text or other mobile communications charges resulting from such alerts and notifications. 8. Improvements to Online Services. Vendor may make enhancements, updates, and other modifications to the functionality, user interface, usability and documentation of the Online Services from time to time in its sole discretion as part of its ongoing effort to improve its offerings so long as such modifications do not materially diminish the functionality of the Online Services during the then Initial or Renewal Term. 9. Indemnification. Vendor shall indemnify, defend and hold Customer harmless from all expenses, losses, damages and liabilities (including reasonable legal fees) to the extent arising out of or relating to any third-party claims, demands, or suits in connection with a violation by the Online Services of any third-party United States copyright or trademark rights except to the extent the alleged infringement is caused by: (a) changes or modifications to the Online Services made or specified by Customer or any third party; or(b)combinations of the Online Services or Professional Services Deliverables with any product or service not supplied or specified by Vendor under this Agreement (collectively, "Claims"). If a Claim contemplated under this Section 9 is brought, Vendor shall, at its sole option and expense, and within a reasonable period, (1)procure for Customer the right to continue using the allegedly infringing item; (2) replace the same with a non-infringing item providing materially equivalent functions and efficiency; (3) modify the same to be non-infringing without material loss of functionality; or (4) if none of the foregoing is in Vendor's sole discretion commercially reasonable, at Vendor's notice, Customer shall discontinue use of the infringing item and Vendor shall refund to Customer the Subscription Fees paid by Customer to Vendor in relation to such discontinued item under this Agreement corresponding to the six (6) months preceding the effective date of such discontinuance and any pre-paid unused Subscription fees. This Section 9 sets forth Vendor's sole liability, and Customer's sole and exclusive remedy, in lieu of all others, with respect to infringement. The obligations under this Section 9 are conditioned upon Customer (i) giving Vendor prompt written notice of any Claim; (ii) granting Vendor complete control of the defense and (conditioned upon a full release of Customer) settlement of Claims; and (iii) reasonably cooperating with Vendor in the defense and settlement of Claims. 10. Ownership of Online Services. Without limiting Section 6 of the General Terms, as between Vendor and Customer, Vendor owns all right, title and interest in and to the Online Services including all Intellectual Property Rights therein. Nothing in this Agreement grants Customer any right, title or interest in or to the Online Services other than the limited right to access and use the Online Services during the Subscription Term in accordance with the Agreement. All rights not expressly granted to Customer in this Agreement are reserved by Vendor. 11. Termination of a Subscription for Cause.Subject to Section 6, either party may terminate a Subscription during the Subscription Term in the event that the other party has committed a material breach of this Agreement that is not cured within forty-five (45) days after the other party's receipt of written notice thereof, which notice must expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach except that the cure period for failure of Customer to pay fees when due is five(5)days. 12. Effect of Termination. Upon termination or expiration of a Subscription,for any reason, Customer shall cease all use of the Online Services for which the Subscription has terminated or expired and Vendor may, at any time more than ninety (90) days following such termination or expiration, permanently delete Customer Data and Customer's account associated with the terminated Subscription. 13. Export; U.S. Governmental Rights. Customer shall not remove or export from the United States or knowingly permit the export or re-export of the Online Services, or the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to the Online Services or any software, documentation or data related to the Online Services(the"Online Services Software"),or anything related thereto,or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Online Services Software, if any, and their respective documentation are"commercial items"and according to DFAR section 252.227 7014(a)(1)and (5)are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. Rev.20170928-Moorpark HydroPoint—Online Services Page 3 of 4 258 HydroPoint Data Systems,Inc. City of Moorpark 1720 Corporate Circle Parks,Recreation and Community Services Petaluma,CA 94954 799 Moorpark Avenue Moorpark,CA 93021 By: By: Name: Name: Title: Title: Date: Date: Rev.20170928-Moorpark HydroPoint—Online Services Page 4 of 4 259 ATTACHMENT 3 RESOLUTION NO. 2017- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, AMENDING THE FISCAL YEAR 2017/18 BUDGET BY APPROPRIATIONG $39,538 IN VARIOUS FUNDS AND APPROVING INTERFUND TRANSFER OF $12,963 FROM THE GENERAL FUND (1000) RESERVE TO 84-2 PHEASANT T3019/3525 (2305) AND PARK MAINTENANCE DISTRICT (2390) FUNDS FOR THREE-YEAR IRRIGATION CONTROLLER SUBSCRIPTION SERVICE WHEREAS, on June 21, 2017 the City of Moorpark adopted the Operating and Capital Improvement Projects budget for Fiscal Year 2017/18, which included an appropriation of $10,966 for irrigation controller subscription service in property maintenance account (53000); and WHEREAS, a staff report has been presented to City Council recommending the prepayment of $39,538 to HydroPoint Data Systems, Inc. for three-year subscription for irrigation controllers; and WHEREAS, an aggregate budget expenditure increase of $39,538 is request from General Fund (1000) - $649; 84-2 Steeple Hill T2865 Fund (2302) - $2,593; 84-2 Pheasant T3019/3525 fund (2305) - $1,297; 84-2 Mountain Meadows PC3 Fund (2312) - $3,889; 84-2 Carlsberg Fund (2312) - $3,889; Country Club Estates Fund (2315) - $4,537; Moorpark Highlands Fund (2322) - $11,018; and Park Maintenance District Fund (2390) - $11,666; and WHEREAS, 84-2 Pheasant T3019/3525 Fund (2305) and Park Maintenance District Fund (2390) are projected to have deficit fund balances at June 30, 2018. Therefore, an interfund transfer of $12,963 from the General Fund (1000) Reserve is needed to cover their share of costs; and WHEREAS, Exhibit "A" attached hereto and made a part of hereof, describes said budget amendment and the resultant impact to the budget line items. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. An aggregate budget expenditure increase of $39,538 in various funds as more particularly described in Exhibit "A", attached hereto, is hereby approved. SECTION 2. An interfund transfer of $12,963 from the General Fund (1000) Reserve to 84-2 Pheasant 13019/3525 Fund (2305) and Park Maintenance District Fund (2390), as more particularly described in Exhibit "A", attached hereto, is hereby approved. 260 Resolution No. 2017- Page 2 SECTION 3 . The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions. PASSED AND ADOPTED this 1st day of November, 2017 Janice S. Parvin, Mayor ATTEST: Maureen Benson, City Clerk Exhibit A - Budget Amendment 261 Resolution No. 2017- Page 3 EXHIBIT A BUDGET AMENDMENT FOR VARIOUS FUNDS FOR FOR IRRIGATION CONTROLLER SUBSCRIPTION SERVICES FY 2017/18 FUND BALANCE ALLOCATION: Fund Title Fund-Account Number Amount General Fund _1000-000-00000-33990 $ 13,612.00 84-2 Steeple Hill T2865 2302-000-00000-33990 $ 2,593.00 84-2 Mountain Meadows PC3 2310-000-00000-33990 $ 3,889.00 84-4 Carlsberg 2312-000-00000-33990 $ 3,889.00 Country Club Estates 2315-000-00000-33990 $ 4,537.00 Moorpark Highlands .2322-000-00000-33990 $ 11,018.00 Total $ 39,538.00 REVENUE BUDGET ALLOCATION: Account Number Current Budget Revision Amended Budget 2305-000-00000-49010 $ 61,502.00 $ 1,297.00 $ 62,799.00 2390-000-00000-49010 $ 2,340,568.00 $ 11,666.00 $ 2,352,234.00 Total $ 2,402,070.00 $ 12,963.00 $ 2,415,033.00 • EXPENDITURE APPROPRIATION: Account Number Current Budget Revision Amended Budget 1000-541-00000-59010 $ 2,340,568.00 $ 12,963.00 $ 2,353,531.00 1000-171-L0002-53000 $ 29,749.00 $ 649.00 $ 30,398.00 2302-542-P0004-53000 $ 76,051.00 $ 2,593.00 $ 78,644.00 2305-542-P0004-53000 $ 83,063.00 $ 1,297.00 $ 84,360.00 2310-542-P0004-53000 $ 164,355.00 $ 3,889.00 $ 168,244.00 2312-542-P0004-53000 $ 125,417.00 $ 3,889.00 $ 129,306.00 2315-542-P0004-53000 $ 67,227.00 $ 4,537.00 $ 71,764.00 2322-542-P0004-53000 $ 421,326.00 $ 11,018.00 $ 432,344.00 2390 541 R0010 53000 $ 96,990.00 $ 1,944.00 $ 98,934.00 2390 541 R0030 53000 $ 275,492.94 $ 1,296.00 $ 276,788.94 2391 541 R0040 53000 $ 16,400.00 $ 648.50 $ 17,048.50 2390 541 R0050 53000 $ 33,855.00 $ 648.50 $ 34,503.50 2390 541 R0070 53000 $ 46,123.00 $ 648.50 $ 46,771.50 2390 541 R0080 53000 $ 65,117.00 $ 1,296.10 $ 66,413.10 2390 541 R0100 53000 $ 75,885.00 $ 1,296.10 $ 77,181.10 2390 541 R0111 53000 $ 91,165.00 $ 1,296.15 $ 92,461.15 2390 541 R0120 53000 $ 31,805.00 $ 648.00 $ 32,453.00 2390 541 R0130 53000 $ 55,370.00 $ 648.00 $ 56,018.00 2390 541 R0170 53000 $ 28,785.00 $ 1,296.15 $ 30,081.15 $ - $ - Total $ 4,124,743.94 $ 52,501.00 $ 4,177,244.94 fl h Finance Approval: 1.- 262