CONTRACT 7249 Service AgreementAgreement Noy 7 q
SOFTWARE SERVICES AGREEMENT
BETWEEN THE CITY OF EL SEGUNDO
`AND
120 WATER AUDIT, INC.
This AGREEMENT is entered into this loth day of March 2025, by and between
the CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY"), and
120 WATER AUDIT, INC. (d/b/a 120Water), A Delaware corporation ("CONSULTANT").
1. CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform the scope of
services attached as Exhibit 'A," and incorporated by reference
("SERVICES"). The SERVICES include installing and maintaining a
software program for various tasks associated with 120WATER
("SOFTWARE").
B. As additional consideration, CONSULTANT and CITY agree to abide by
the terms and conditions contained in this Agreement;
C. As additional consideration, CITY will pay CONSULTANT the
compensation set forth in Exhibit "A," but in no event more than Sixteen
Thousand One Hundred Forty dollars ($16,140.00).
D. CITY will not be liable for any costs or expenses exceeding the sum paid to
CONSULTANT pursuant to Section 1(C) unless otherwise agreed to by the
Parties and by written amendment to this Agreement.
2. TERM. The term of this Agreement will be from July 1, 2025, to June 30, 2026. Unless
otherwise determined by written amendment between the parties, this Agreement will
terminate in the following instances:
A. Completion of the work specified in Exhibit "A";
B. Termination as stated in Section 8.
3. INTENTIONALLY LEFT BLANK
4. "SELF-HELP" AND "MALICIOUS" CODES PROHIBITED,
A. CONSULTANT understands and agrees that CONSULTANT's use of any
"self-help" or "malicious" codes, as defined by this Section, is prohibited and
constitutes an "unfair business practice" as defined by California law.
Notwithstanding any other provision of this Agreement that limits
CONSULTANT's liability, CONSULTANT will be fully liable for all penalties
and damages arising from use of a self-help or malicious code.
Agreement Nge,74?449
B. "Self-help code" means any back -door, time -bomb, drop -dead, time-out,
lock -up, slow -down, data freezing, logic bombs, or other software routine, code, devices,
techniques intended to disable, slow, prevent operation of, or otherwise interfere with or
change any operation of any computer system, software or other property automatically
with the passage of time or under the prior instruction, triggering event or control of
someone other than Client.
C. "Malicious Code" means any virus, "spyware," "Trojan horse," "worm,"
"Easter egg," "cancelbot," "trapdoor," or other unapproved or malicious
software routine, code, command, device, technique, or instruction or other
contaminant intended to
Permit unauthorized access to, detection of, modification of, or
monitoring of any code, system, or data;
Alter, supplement, disable, erase, limit, threaten, infect, assault,
vandalize, defraud, disrupt, damage, disable, shut down or delete,
threaten, slow or otherwise inhibit the functioning of, or otherwise
harm any of the code, documentation or data or any computer
system, software or other property;
iii. Render any data irretrievable, modified, or disrupted so as to be
unreliable in any regard;
iv. Perform any other unauthorized action, or prevent, limit, condition or
inhibit performance of authorized actions or any function including,
without limitation, to its security or end user data.
5. LAWS AND REGULATIONS. CONSULTANT will be responsible for complying with
any and all applicable Federal, State, County, and Municipal laws and regulations and
the conditions of any required licenses and permits before entering into this Agreement.
Such compliance will be at CONSULTANT's sole cost and without any increase in price
or time on account of such compliance, regardless of whether compliance would require
additional labor, equipment, and/or materials not expressly provided for in the Agreement
or CONSULTANT's proposal.
6. INDEMNIFICATION; LIMITATION OF LIABILITY.
A. CONSULTANT agrees to the following:
Indemnification for Professional Services. CONSULTANT will
save harmless and indemnify and at CITY's request reimburse
defense costs for CITY and all its officers, volunteers,
employees and representatives from and against any and all
third -party suits, actions, or claims, of any character whatever,
brought for, or on account of, any injuries or damages
sustained by any person or property resulting or arising from
any negligent or wrongful act, error or omission by
Agreement Nq, 74g,4p
CONSULTANT or any of CONSULTANT'S officers, agents,
employees, or representatives, in the performance of this
Agreement, except for such loss or damage to the extent arising
from CITY's negligence or willful misconduct.
Indemnification for other Damages. CONSULTANT will
indemnify and hold CITY harmless from and against any claim,
action, damages, costs (including, without limitation, attorney's
fees), injuries, or liability, arising out of third -party claims
arising under this Agreement, or its performance, except for
such loss or damage to the extent arising from CITY's
negligence or willful misconduct. Should CITY be named in any
suit, or should any claim be brought against it by suit or
otherwise, whether the same be groundless or not, arising out
of this Agreement, or its performance, CONSULTANT will
defend CITY (at CITY's request and with counsel satisfactory to
CITY) and will indemnify CITY for any judgment rendered
against it or any sums paid out in settlement or otherwise.
iii. Intellectual Property Infringement. Notwithstanding any
provision to the contrary, CONSULTANT will, at its own
expense, indemnify and defend CITY against any third -party
claim that CONSULTANT's services or work product furnished
under this Agreement infringes a patent or copyright in the
United States or Puerto Rico. In such event, CONSULTANT will
pay all costs damages and attorney's fees that a court finally
awards as a result of such claim. To qualify for such defense
and payment, CITY must (a) give CONSULTANT prompt written
notice of any such claim; and (b) allow CONSULTANTto control,
and fully cooperate with CONSULTANT in the defense and all
related settlement negotiations. CITY agrees that if the use of
CONSULTANT's services or work product becomes, or
CONSULTANT believes is likely to become, the subject of such
an intellectual property claim, CITY will permit CONSULTANT,
at its option and expense, (1) to secure the right for CITY to
continue using CONSULTANT's services and work product, or
(b) to replace it with comparable services and work product, or
(c) modify the Services or the 120Water Platform so that
infringement is avoided. If, after using commercially reasonable
efforts, none of the foregoing three alternatives is reasonably
available, CONSULTANT may terminate this Agreement, and
CITY shall be entitled to a pro -rated refund of pre -paid but
unearned fees.
B. For purposes of this section "CITY" includes CITY's elected and appointed
officials, officers, employees, and volunteers.
Agreement Ngte749.49
C. It is expressly understood and agreed that the foregoing provisions will
survive termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 7, and any approval
of said insurance by CITY, are not intended to and will not in any manner
limit or qualify the liabilities and obligations otherwise assumed by
CONSULTANT pursuant to Section 6 of this Agreement concerning
indemnification.
E. Limitation of Liability.
iv. Except for intellectual property infringement, breach of
confidentiality, and indemnification obligations, in no event shall
CONSULTANT's total aggregate liability arising out of or related to
this Agreement, whether in contract, tort or under any other theory of
liability, exceed the amounts paid by CITY under the order form for
the services for which liability is claimed in the twelve (12) months
immediately preceding the incident giving rise to liability.
V. Exclusion of Consequential Damages. Except for intellectual
property infringement, breach of confidentiality, and indemnification
obligations, and notwithstanding anything to the contrary in this
Agreement, the parties expressly agree that in no event shall
CONSULTANT have any liability to CITY for any lost profits or for
any indirect, special, incidental, punitive, consequential, or special
damages of any kind or nature however caused, including without
limitation damages for loss of goodwill, substitute goods or services,
work stoppage, data loss, lost profit or computer failure, incurred by
CITY or any third party, whether in contract, tort or under any other
theory of liability, whether or not CONSULTANT has been advised
of the possibility of such damages.
7. INSURANCE.
A. Before commencing performance under this Agreement, and at all other
times this Agreement is effective, Consultant will procure and maintain the
following types of insurance with coverage limits complying, at a minimum,
with the limits set forth below:
Commercial general liability:
Professional Liability
Workers compensation
$1,000,000
$1,000,000
Statutory requirement.
B, Commercial general liability insurance will meet or exceed the requirements
of the most current ISO-CGL Form. The amount of insurance set forth
Agreement N(r,
above will be a combined single limit per occurrence for bodily injury,
personal injury, and property damage for the policy coverage. Liability
policies will be endorsed to name City, its officials, and employees as
"additional insureds" under said insurance coverage and to state that such
insurance will be deemed "primary" such that any other insurance that may
be carried by City will be excess thereto. Such insurance will be on an
"occurrence," not a "claims made," basis and will not be cancelable or
subject to reduction except upon thirty (30) days prior written notice to City.
C. Professional liability coverage will be on an "occurrence basis" if such
coverage is available, or on a "claims made" basis if not available. When
coverage is provided on a "claims made basis," Consultant will continue to
maintain the insurance in effect for a period of three (3) years after this
Agreement expires or is terminated ("extended insurance"). Such extended
insurance will have the same coverage and limits as the policy that was in
effect during the term of this Agreement, and will cover Consultant for all
claims made by City arising out of any errors or omissions of Consultant, or
its officers, employees or agents during the time this Agreement was in
effect.
D. Consultant will furnish to City duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement,
endorsements as required herein, and such other evidence of insurance or
copies of policies as may be reasonably required by City from time to time.
Insurance must be placed with insurers with a current A.M. Best Company
Rating equivalent to at least a Rating of "A:VII."
E. Should Consultant, for any reason, fail to obtain and maintain the insurance
required by this Agreement, City may obtain such coverage at Consultant's
expense and deduct the cost of such insurance from payments due to
Consultant under this Agreement or terminate.
8. TERMINATION OF AGREEMENT
A. During the term of this Agreement, CITY may, in its sole discretion,
terminate this Agreement with or without cause by giving at least thirty (30)
days' prior written notice to CONSULTANT ,provided that CONSULTANT
shall have thirty (30) days from such notice to cure any default alleged as
the cause of CITY's termination. The City Manager may exercise such right
of termination on behalf of CITY.
B. Except as otherwise provided, upon termination of this Agreement, CITY
will be liable to CONSULTANT only for all work done by CONSULTANT up
to and including the date of termination of this Agreement unless the
termination is for cause, in which event CONSULTANT will be
compensated only to the extent required by law.
Agreement N(,,742 )
9. NOTICES. All communications to either party by the other party will be deemed
made when received by such party at its respective name and address as follows:
If to CONSULTANT:
Attention: Jordan Packard
120 Water Audit, Inc.
250 S Elm St.
Zionsville, IN 46077
PH: (814) 598-4303
EMAIL: jordan.packard@120water.com
If to CITY:
Attention: Anthony Esparza
City of El Segundo - Water Division
400 Lomita St.
El Segundo, CA 90245
PH: (310) 524-2745
EMAIL: aesparza@elsegundo.org
Any such written communications by mail will be conclusively deemed to have been
received by the addressee upon deposit thereof in the United States Mail, postage
prepaid and properly addressed as noted above. In all other instances, notices will be
deemed given at the time of actual delivery. Changes may be made in the names or
addresses of persons to whom notices are to be given by giving notice in the manner
prescribed in this paragraph.
10. PROHIBITED USE OF ARTIFICIAL INTELLIGENCE.
A. Restriction on Artificial Intelligence Usage. CONSULTANT must not utilize,
employ, or incorporate any form artificial intelligence, machine learning, or
other similar technologies (collectively, "Al") in the provision of professional
services in this Agreement without CITY's express written consent.
B. Exclusions. The Al prohibition set forth directly above will not apply to
general business tools and software that may have Al components but are
not directly involved in the execution or delivery of professional services
that this Agreement covers, provided that such tools and software do not
significantly impact the quality or nature of such services.
C. Notification. CONSULTANT must promptly notify CITY, in writing, of any
proposal to employ Al in connection its provision of services to the CITY as
expressly stated in Section 10 of this Agreement. CITY will have the sole
discretion to grant or deny such proposal.
11. AUDIT AND ACCESS TO RECORDS. CONSULTANT, including
CONSULTANT's subcontractors, will maintain records and other evidence of all expenses
and costs charged to CITY in the performance of this Agreement for a period of three (3)
years after completion. CITY or any of its duly authorized representatives will, for the
purpose of audit and examination, have access to and be permitted to inspect such
records and other evidence of such expenses and costs charged to CITY. For purposes
of audit, the date of completion of the Agreement will be the date of CITY'S payment for
CONSULTANT's final billing (so noted on invoice) under this Agreement.
Agreement Nc eV742Q
12. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT
for current services are within the current budget and within an available, unexhausted
and unencumbered appropriation of the CITY. In the event the CITY has not appropriated
sufficient funds for payment of CONSULTANT services beyond the current fiscal year,
this Agreement will cover only those costs incurred up to the conclusion of the current
fiscal year.
13. INDEPENDENT CONTRACTOR. CONSULTANT, AND CONSULTANT's
subconsultants will act as independent contractors while performing the SERVICES and
CONSULTANT will have control of CONSULTANT's work and the manner in which it is
performed, except as is otherwise provided herein. CONSULTANT will be free to contract
for other services performed during the term of this Agreement. CONSULTANT is not an
agent or employee of CITY and is not entitled to participate in any pension plan,
insurance, bonus or similar benefits CITY provides for its employees.
14. ASSIGNMENT. An essential element of this Agreement is the skill and creativity
of CONSULTANT. CONSULTANT may not, therefore, assign the creative portions of the
work to a third party for the production of the work without CITY's prior written consent,
provided that CONSULTANT may assign, convey, or transfer (whether by contract,
merger, or operation of law) (collectively "assign" and its cognates) without CITY's
consent any or all of CONSULTANT's rights or obligations under this Agreement in
connection with a merger, acquisition, corporate reorganization, or sale of all or
substantially all of CONSULTANT's assets or equity, provided that (a) CONSULTANT
reasonably believes the assignee has the operational ability to perform CONSULTANT's
obligations under this Agreement, or (b) if the assignee is an entity with whom CITY is
prohibited by law or regulation from conducting business, then CITY may terminate this
Agreement. Failure to conform to this provision may result in termination of the
Agreement.
15. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the
main body of this Agreement takes precedence over the attached Exhibits; this
Agreement supersedes any conflicting provisions. Any inconsistency between the
Exhibits will be resolved in the order in which the Exhibits appear below:
A. Exhibit "A": REFERENCE: 20250221-085005374
16. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the
Parties' entire understanding. There are no other understandings, terms or other
agreements expressed or implied, oral or written. There are three (3) attachments to this
Agreement. Except as otherwise provided, this Agreement will bind and inure to the
benefit of the Parties to this Agreement and any subsequent successors and assigns.
17. MODIFICATION. No alteration, change or modification of the terms of the
Agreement will be valid unless made in writing and signed by both Parties hereto and
approved by appropriate action of CITY. The city manager may exercise this authority on
behalf of CITY.
Agreement Nc�-7 49
18. ELECTRONIC SIGNATURES; SIGNATURE AUTHORITY. This Agreement may
be executed by the Parties on any number of separate counterparts, and all such
counterparts so executed constitute one Agreement binding on all the Parties
notwithstanding that all the Parties are not signatories to the same counterpart. In
accordance with Government Code § 16.5, the Parties agree that this Agreement,
Agreements ancillary to this Agreement, and related documents to be entered into in
connection with this Agreement will be considered signed when the signature of a party
is delivered by electronic transmission. Such electronic signature will be treated in all
respects as having the same effect as an original signature. CONSULTANT warrants that
its signatory (or signatories, as applicable) to this Agreement has the legal authority to
enter this Agreement and bind CONSULTANT accordingly.
19. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with
CONSULTANT's Taxpayer Identification Number.
20. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that CONSULTANT has demonstrated trustworthiness and possesses the
quality, fitness, and capacity to perform the Agreement in a manner satisfactory to CITY.
CONSULTANT represents that CONSULTANT's financial resources, surety and
insurance experience, service experience, completion ability, personnel, current
workload, experience in dealing with private parties, and experience in dealing with public
agencies all suggest that CONSULTANT is capable of performing the proposed contract
and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public
agency.
21. WAIVER. A waiver by either Party of any breach of any term, covenant, or
condition contained in this Agreement will not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant, or condition contained in
this Agreement whether of the same or different character. The payment or acceptance
of fees for any period after a default will not be deemed a waiver of any right or acceptance
of defective performance.
22. SEVERABILITY. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, then such portion will be deemed
modified to the extent necessary in the opinion of the court to render such portion
enforceable and, as so modified, such portion and the balance of this Agreement will
continue in full force and effect.
23. FORCE MAJEURE. Should performance of this Agreement be prevented or
delayed due to fire, flood, explosion, acts of terrorism, war, embargo, government action,
civil or military authority, the natural elements, or other similar causes beyond the Parties'
reasonable control (each a "Force Majeure Event"), and if such Force Majeure Event lasts
more than thirty (30) days, then either Party has the right to terminate this the Agreement
by providing written notice to the other Party.
Agreement Ngt,,74Z49
24. INTERPRETATION; VENUE. This Agreement and its performance will be
governed, interpreted, construed and regulated by the laws of the State of California.
Exclusive venue for any action involving this Agreement will be in Los Angeles County.
ADDITIONAL PROVISIONS.
25. Purchase of Goods. Purchases of goods from CONSULTANT, including without
limitation, water testing kits and water pitcher filters, shall be pursuant to a separate Order
Form, and the terms of such purchases are governed by CONSULTANT's product terms
of sale agreement, which will be presented and incorporated in such Order Form.
26. Intellectual Property.
A. Subject to the limited rights expressly granted hereunder, CONSULTANT
reserves all rights, title and interest in and to the 120Water Platform,
including, but not limited to, all software, technology and other materials
associated therewith, all Documentation and content (excluding CITY
Data), and all copies, modifications and derivative works thereof, and all
CONSULTANT trademarks, names, logos, and all rights to patent,
copyright, trade secret and other proprietary or intellectual property rights
therein. "120Water Platform" means CONSULTANT's proprietary online
hosted software platform, website, operating systems, hardware, and other
technical resources used by CONSULTANT to provide the SaaS Services.
"Documentation" means the user guides and specifications for the SaaS
Services that are made available from time to time by CONSULTANT in
electronic or tangible form, but excluding any sales or marketing materials.
CITY shall own all reports produced by the 120Water Platform or provided
by CONSULTANT pursuant to the applicable Scope of Work. No rights are
granted to CITY hereunder other than as expressly set forth herein. As
between CONSULTANT and CITY, CITY owns all CITY Data.
27. OWNERSHIP AND USE OF DATA.
A. Definitions. "CITY Data" means all electronic data (including, but not
limited to, Personal Information, as defined under applicable data privacy
law) uploaded by CITY to the 120Water Platform. "Derivative Data" means
collectively, (i) information derived or generated from or based on CITY
Data, but not containing CITY Data, (ii) CITY Data which has been de -
identified or anonymized so that it no longer identifies a specific individual;
and, (iii) CITY Data which has been aggregated with other data but which
no longer identifies a specific individual or CITY. "Usage Data" means
statistical data related to CITY's access to and use of the SaaS Services
and data derived from it, that is used by CONSULTANT, including to
compile statistical and performance information related to the provision of
the Services and operation of the 120Water Platform.
Agreement Nq� ,Z Q
B. Ownership of CITY Data. As between CITY and CONSULTANT, CITY
owns all CITY Data.
C. Use of CITY Data. CITY hereby grants CONSULTANT and its contractors
a limited, nonexclusive right and license to use all CITY Data during this
Agreement, and, after expiration or termination as permitted herein.
D. Derivative Data and Usage Data. CONSULTANT shall irrevocably own all
Derivative Data and Usage Data and may use or disclose it in any way it
chooses. This Section 27 shall survive any expiration or termination of this
Agreement.
E. Use of CITY Data after Expiration or Termination. Upon CITY's request
within thirty (30) days after the expiration or termination of this Agreement,
CONSULTANT will provide CITY with a copy of CITY Data held by
CONSULTANT. Upon expiration of such thirty (30) day period,
CONSULTANT shall convert CITY's account to an inactive status.
CONSULTANT may, but shall not be obligated to, delete all CITY Data after
CITY's account converts to inactive status. The confidentiality obligations
as are set forth in this Section 27 shall remain in force and effect at all times
during this Agreement, and (i) with respect to Confidential Information that
constitutes a trade secret under applicable law, for so long as such trade
secret status has not been lost; and (ii) with respect to Confidential
Information that does not constitute a trade secret, for five (5) years after
termination or expiration of this Agreement, and (iii) with respect to Personal
Information held by CONSULTANT, forever.
28. WARRANTY DISCLAIMER. Except for the warranties expressly stated herein,
CONSULTANT provides all services as -is, and CONSULTANT disclaims all other
warranties, express or implied, including, but not limited to, warranties of merchantability,
fitness for a particular purpose, title, and non -infringement.
[SIGNATURES ON NEXT PAGE]
Agreement NQ.,,7
IN WITNESS WHEREOF the parties hereto have executed this contract the day and
year first hereinabove written.
CITY OF EL SE DO 120 WATER AUDIT, INC..
;�17PllYr•7, ��L �11
C.�
Elias Sassdon, By: Melissa Gindling
Public Works Director Title: VP, Account Manageme
Taxpayer ID No. 93-4964685
ATTEST:
Susan Truax,
City Clerk
APPROVED AS TO FORM:
MARK D. H LEY, City Attorney
JoaqUitiffazquez, Assistant City Attorney
Exhibit "All
Agreement No. 7249
120Water
Comments from Jordan Packard
. . .. ... . ....... ...... . . .....
Item Name & Description Unit Price Quantity Term
(months)
PWS Platforrr$11,140,00 12
L,Ij F 'l'llMJI,jwM(`f'r / year
-
V, d F)
L.CM F:Diro IManaged ServUces Package $5,000.00 Q
year
v,i v N C' T r-
I nllCi I F" wu j1 vlil (wx
'ulltI^"'SIP iiv 1 1 b Io I'ving CI1ci tpjk,I jll,i
Agreement No. 7249
Annual subtotal $16,140.00
Total $16,140.00
The renewal of your subscription has a contract start date of 06/29/2025 and will run through 06/28/2026
Fees
will be invoiced on the listed contract date of this order form and will be due• Net 30 from the invoice date.
Invoice Terms:
Billing Street Address:
Billing City:
Billing State:
Billing Zip Code:
Billing Country:
Billing Notes (if applicable):
This Order Form, together with the Master Services Agreement available at http LQCK_'Vat-�r . Mki-t—er-
_�: t Lt9L9QD2Zl
services -agreement (the "MSA"), shall become a legally binding contract upon the earlier of (a) the date both
parties execute the Order Form or (b) the date Customer initially began using the Services. Any capitalized
word not otherwise defined in this Order Form shall have the sarne meaning as set forth in the MSA.
120Water may reject this Order Form if: (1) the signatory below does not have the authority to bind Customer
to this Order Form, (2) changes have been made to this.0rder Form (other than completion of the purchase
order inforrnation and signature block), or (3) the requested purchase order information or signature is
incomplete or does not match our records or the rest of this Order Form, Subscriptions are non -cancelable
before their end of the Term.
Agreement No. 7249
Signature Date
RiInted name
Cm.AntersignatUre
Couirate rsiginature
Melissa Gindling
Joiidan F:)ackard
AcCOLAII'It Manageii,
jc)ii,daiii.packao,d(O-fl20water.cc,)� ri
120Wateir
250 S FArri St
Z�onsviHe, N 46077
U5,
03/18/2025
Date