HomeMy WebLinkAboutItem 08e - Utility Billing Software Service and Support
STAFF REPORT
PUBLIC WORKS SERVICES DEPARTMENT
DATE: October 20, 2026
TO: Honorable Mayor and City Council
FROM: Paul Cranmer, Assistant City Manager, Public Works Services Director
By: Anabel Carrillo, Public Works Customer Service/Administrative
Supervisor
SUBJECT: AGREEMENT WITH TRUEBILL SOLUTIONS LLC FOR ANNUAL HOSTING
AND SUPPORT SERVICES FOR UTILITY BILLING SOFTWARE, IN AN
AMOUNT NOT TO EXCEED $362,974
CEQA: Not a Project
Recommendation: Approve
SUMMARY
The Public Works Services Department (“PWSD”) is responsible for the billing,
invoicing, and collection of approximately 15,000 water and sewer accounts, as well
as 4,700 backflow records, as required by the State of California. To support these
operations, the PWSD utilizes a proprietary utility billing software system, developed,
hosted, and supported exclusively by TrueBill Solutions LLC, formerly known as
TruePoint Solutions. The Subscription License and Services Agreement (“Agreement”)
between the City and TrueBill Solutions LLC expired June 30, 2026.
Based on the quality of service provided and the City’s ongoing operational needs, it
is recommended that the City Council authorize a five-year Purchase Order with
TrueBill Solutions LLC for annual hosting and support services for the utility billing
software, in an amount not to exceed $362,974, with the option to exercise two
additional two-year extensions. It is further recommended that the City Council
authorize the City Manager to approve the optional extensions of the Agreement
without further City Council approval, provided that any adjustments to the financial
terms remain within established inflationary limits.
Agreement for Utility Billing Software Service and Support
October 20, 2026
Page 2 of 4
BACKGROUND
The PWSD serves approximately 15,000 water and sewer connections, a majority of
which are based on a tiered rate structure that are billed monthly, generating
approximately $15.5 million in annual revenue. On December 1, 2020, the City
Council approved, authorized, and directed the City Manager to execute a Software
Service Agreement with TruePoint Solutions, now known as TrueBill Solutions LLC,
for implementation of the TrueBill Utility Billing Software System. The TrueBill Utility
Billing Software System replaced DataNow, the City’s antiquated utility billing and
customer information system. The purchase and implementation of the TrueBill
utility software was the first phase of a two-phase update, intended to modernize
the City’s utility billing function.
In late 2021, the PWSD enacted the second phase of the software update and
executed a Change Order to the original Purchase Order with TruePoint Solutions
(now TrueBill Solutions LLC), for the purchase and implementation of TrueBill’s
backflow testing module and Vendor Contractor Portal (“TrueVCP”). These two
modules allow contractors to directly upload backflow testing information. The new
backflow testing module integrated the City’s former testing database into the
TrueBill Utility Billing System, expanding the functionality of TrueBill and effectively
integrating two historically separate programs.
The subscription fees to host both the software and provide ongoing support
services were included in the Agreement, to be renewed on an annual basis. The
term of the Subscription License and Agreement expired on June 30, 2026.
DISCUSSION
The Agreement with TruePoint Solutions, now known as TrueBill Solution LLC,
awarded by the City Council on December 1, 2020, was for a five-year term and
included a 3% annual price increase for Years 4 and 5. While industry-standard
increases for licensing agreements have since exceeded 10%, in addition to
cumulative increases implemented in prior years, the PWSD successfully negotiated
a new five-year term Agreement with TrueBill Solutions LLC that limits the pricing
increase to 8% each year. This agreement provides greater cost predictability, with
the following cost breakdown per year:
Agreement for Utility Billing Software Service and Support
October 20, 2026
Page 3 of 4
Term Year Total Cost
Year One $61,871
Year Two $66,821
Year Three $72,167
Year Four $77,940
Year Five $84,175
Five-Year Total $362,974
The annual hosting services and support fees pay for ongoing product development,
cloud-based hosting of the utility billing software, as well as licensing and technical
support services. These support services include access to the support hotline,
installation of updates when available, and database backups. Based on the excellent
service provided by TrueBill Solutions LLC, it is recommended that the City Council
approve a five-year Agreement for annual hosting and support services, with the
option of up to two additional two-year extensions.
ENVIRONMENTAL ANALYSIS
The proposed action does not constitute a project under the California
Environmental Quality Act (“CEQA”), under Section 15061(b)(3) of the CEQA
Guidelines, as it can be seen with certainty that it will have no impact on the
environment.
FISCAL IMPACT
Sufficient funds for the annual software hosting and support fees are budgeted in
the City’s Water and Sewer Operating Budget annually.
RECOMMENDATION
It is recommended that the City Council determine that this action does not
constitute a project under the California Environmental Quality Act (“CEQA”); and
approve a five-year Agreement with TrueBill Solutions LLC for annual hosting and
support services for the utility billing software in an amount not to exceed $362,974,
with the option of two two-year extensions. It is further recommended that the City
Council delegate the authority to approve any future optional extensions under this
Agreement to the City Manager, without having to return to the City Council for
Agreement for Utility Billing Software Service and Support
October 20, 2026
Page 4 of 4
subsequent approval, provided that any changes to the financial terms stay within
standard inflationary limits.
Attachment: Proposed Agreement
-1-
99999.92017\45401996.1
Error! Unknown document property name.
CITY OF ARCADIA
SOFTWARE AS A SERVICE AND PROFESSIONAL SERVICES AGREEMENT
This Software as a Service and Professional Services Agreement (hereinafter referred to as
“Agreement”) is made by and between the CITY OF ARCADIA, a municipal corporation (herein
“City”), and Govineer Solutions LLC, a Delaware limited liability company doing business as
TrueBill Solutions, having a principal place of business at 1656 S. East Bay Blvd. Suite 100,
Provo, Utah (herein “Provider”) on ___________, 2026 (“Effective Date”). City and Provider may
be individually referred to as “Party” and collectively as the “Parties”.
RECITALS
A. Provider represents that it owns, or possesses all rights necessary to provide and
license, the proprietary hosted utility-billing software selected by City, together with all required
modules, interfaces, documentation, and related services (collectively, the “Software”).
B. Provider shall provide City access to the hosted Software, related services,
documentation, interfaces, and functionality described in Exhibit “A” (collectively, the “Hosted
Services”). The Hosted Services shall conform in all material respects to Exhibit “A” and the
Documentation (collectively, the “Functional Requirements”). During the Term, Provider grants
City and its authorized Users a nonexclusive, nontransferable, non-sublicensable right to access
and use the Hosted Services for City’s internal operations, subject to the terms of this Agreement.
City acknowledges that City subscribes to the Hosted Services and that no copy of the Software
is delivered to, or licensed for installation by, City under this Agreement. No invoice, hyperlink,
online policy, or other Provider term shall modify this Agreement unless incorporated through a
written amendment executed by the Parties.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Use of the Software. Provider shall provide City with access to the hosted Software and
the services described in the Provider’s Proposal and attached hereto as Exhibit “A” and
incorporated herein by reference (“Software”). The specifications, performance and functionality
of the Software shall conform in all material respects to the requirements set forth in the Provider
Proposal and the Documentation for the Software (“Functional Requirements”). Subject to City’s
payment of the subscription fees set forth in Exhibit “A,” City shall have a nonexclusive,
nontransferable, non-sublicensable right to access and use the hosted Software for City’s internal
operations during the Term. City is not granted, and Provider does not convey, any perpetual,
fully paid, or irrevocable license, any copy of the Software, or any right to the Software’s source
code, and no source-code escrow is required or contemplated under this Agreement. Ownership
of the Software and the Hosted Services is governed by Section 20.
2. Services. Provider shall further provide City with implementation, installation, project
management, and training services in connection with the implementation of the Software as
further described in Exhibit “A” (“Services”).
3. Term. The Term of this Agreement will commence on the effective date and continue for
five (5) years. The parties may agree to two (2) additional two-year extensions upon execution of
a written amendment signed by the Parties.
-2-
99999.92017\45401996.1
Error! Unknown document property name.
4. Document Format and Accessibility Requirements. In accordance with the Americans with
Disabilities Act, the user interfaces of the Hosted Services made available to City under this
Agreement will substantially conform to the W3C Web Content Accessibility Guidelines 2.1 Level
AA (“WCAG 2.1 AA”) as in effect on the Effective Date, subject to the exceptions and remarks
disclosed in Provider’s then-current Accessibility Conformance Report (ACR/VPAT), which
Provider will furnish to City . For any area of non-conformance, Provider will describe planned
remediation efforts and interim workarounds to enable access by individuals with disabilities.
Without limiting the foregoing, for customer-facing materials generated through the Hosted
Services (such as utility bills, notices, and customer-portal pages), Provider will provide City with
reasonable interim workarounds (such as alternative accessible formats) upon City’s request until
the applicable non-conformance is remediated. Provider agrees to use commercially reasonable
efforts to provide ongoing remediation as part of the Services in accordance with a remediation
plan mutually agreed by the Parties. Provider’s accessibility obligations do not extend to content,
documents, configurations, templates, or third-party components created, selected, or supplied
by City or its other vendors, to City’s own web pages or mobile applications, or to conformance
with any accessibility standard adopted after the Effective Date, which shall be addressed under
Section 9.
The City retains responsibility for ensuring that its web functionality, web pages, mobile
applications, and web-accessible documents comply with WCAG 2.1 AA or higher. Subject to
Section 34, Provider agrees to indemnify and defend the City against third-party claims, lawsuits,
complaints, challenges, and legal actions brought against the City to the extent arising from
Provider’s failure to provide the Hosted Services in substantial conformance with WCAG 2.1 AA
as required by this Section, excluding any claim arising from City Data, City-created or City-
configured content, City’s own web properties, or City’s failure to implement a remediation or
workaround made available by Provider, or any accessibility standard adopted after the Effective
Date..
5. Project Schedule. Provider shall perform in accordance with the detailed implementation
schedule, milestones, deliverables, and acceptance criteria set forth in Exhibit “A.” Any change to
the Project Schedule must be approved in writing by City and, if it changes compensation, scope,
or a material completion date, processed under Section 9. Delays are governed by Section 12.
6. Compensation.
a Subject to subsection 6(b), City shall pay for accepted Software and Services in
accordance with the fixed fees and milestone schedule in Exhibit “A.” Payment is conditioned on
receipt of a correct, itemized invoice and does not constitute acceptance.
b In no event shall total compensation for the initial five (5) year Term of this
Agreement exceed Three Hundred Sixty-Two Thousand Nine Hundred Seventy-Six Dollars
($362,976.00), inclusive of implementation, subscription, Support, maintenance, travel, data
conversion, interfaces, and training, unless an increased amount is authorized by a written
amendment under Section 9. The foregoing not-to-exceed amount excludes (i) third-party
payment gateway, payment-processing, interchange, and bank fees, which are passed through
to City at Provider’s cost, (ii) fees for any extension term under Section 3, and (iii) any Extended
Support or additional work authorized in advance under Section 9.
c Compensation includes all personnel, materials, hosting, third-party software
licenses embedded in the Hosted Services, supplies, taxes, expenses, and equipment necessary
for complete performance.. No additional or “Extended Support” fee is payable unless approved
in advance through Section 9.
-3-
99999.92017\45401996.1
Error! Unknown document property name.
d City’s failure to discover or object to unsatisfactory work or billing before payment
is not a waiver. City may withhold amounts disputed in good faith upon written notice delivered
within thirty (30) days of the invoice date specifying the basis of the dispute, while paying all
undisputed amounts. Undisputed amounts not paid within thirty (30) days after the due date shall
bear interest at the lesser of one percent (1%) per month or the maximum rate permitted by law.
Provider shall not suspend Support, Hosted Services, access to City Data, or critical functionality
because of a good-faith billing dispute properly noticed under this subsection, and may suspend
for an undisputed delinquency only after at least thirty (30) days’ written notice and a reasonable
opportunity to cure.
7. Maintenance and Support Services. Maintenance, updates, security patches, corrections,
backups, disaster recovery, and Support are included throughout the Term at the prices in Exhibit
“A.” Provider may modify, update, and improve the Hosted Services from time to time, provided
that Provider shall not materially reduce the overall core functionality, security, or service levels
of the Hosted Services used by City during the Term without City’s prior written consent. Optional
services require prior written authorization under Section 9.
8. Contract Documents; Order of Precedence. The following documents shall govern the
performance of the Scope of Work and the terms and conditions for the provision of the Software
and Services (collectively, the “Contract Documents”):
a This Agreement;
b The final City-approved Scope of Services, implementation plan, pricing schedule,
service levels, security requirements, and Provider Proposal attached as (Exhibit
“A”); and
c City Insurance Requirements (Exhibit “B”).
In the event of conflict, the Contract Documents control in the foregoing order, with this Agreement
as the master agreement. No Order, invoice, website, portal, click-through term, privacy policy,
or other Provider document will amend or override this Agreement unless expressly incorporated
through a written amendment signed by authorized representatives of both Parties.
9. Additional Work. No change in scope, price, schedule, functionality, hosting, security,
data use, or other material term is binding on City unless described in a written amendment or
City authorized change order executed before the additional work begins. An Order, quote,
invoice, email, or online term does not authorize additional compensation. Any amendment
requiring City Council approval is ineffective until such approval is obtained.
10. Maintenance of Records. Provider shall maintain complete books, invoices, security and
access logs, audit reports, configuration records, data-processing records, and other evidence
relating to performance and costs during the Term and for at least four (4) years after final
payment, or longer if required by law, litigation hold, audit, or City records-retention requirements.
Records shall be available to City and its auditors at reasonable times. This provision does not
limit the public-records obligations in Exhibit “A.”
11. Notice to Proceed. The obligations of Provider to commence performance shall be
triggered by Provider’s receipt of notice from the City to proceed. Thereafter, Provider shall
proceed in accordance with the Project Schedule. The Notice to Proceed shall set forth the date
of commencement of the Project Schedule.
12. Delays in Performance.
-4-
99999.92017\45401996.1
Error! Unknown document property name.
a Neither the City nor Provider shall be considered in default of the Contract
Documents for delays in performance caused by circumstances beyond the reasonable control
of the non-performing party. For purposes of this Agreement, such circumstances include but are
not limited to: abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and
other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances;
sabotage or judicial restraint; pandemics or epidemics; failures or outages of the internet,
telecommunications carriers, or third-party cloud hosting providers; cyberattacks or denial-of-
service attacks by third parties; and acts or orders of governmental authority.
b Should such circumstances occur, the non-performing party shall, within a
reasonable time of being prevented from performing, give written notice to the other party
describing the circumstances preventing continued performance and the efforts being made to
resume performance under the Contract Documents. It is not intended by the parties that any
such delay shall extend for a period in excess of sixty (60) days.
13. Confidentiality. “Confidential Information” means nonpublic City Data, security
information, credentials, and other information identified as confidential or reasonably understood
to be confidential. Provider shall use City’s Confidential Information solely to perform this
Agreement; apply safeguards at least as protective as those required by Exhibit “A”; disclose it
only to authorized personnel and approved Subprocessors with a need to know; and remain
responsible for their compliance. Provider shall not sell, monetize, mine, profile, advertise from,
or otherwise use City’s Confidential Information for its own purposes, provided that Provider may
create and use De-Identified Data as permitted by Exhibit “A.” Confidential Information also
includes Provider’s software, source code, security architecture and assessments,
Documentation, pricing and discount structures, product roadmaps, and other nonpublic technical
or business information of Provider or its licensors, which City shall protect using at least the same
measures it uses to protect its own confidential information and in no event less than reasonable
measures, and which City shall disclose only to personnel, auditors, and advisors with a bona fide
need to know who are bound by confidentiality obligations no less protective than these. Provider
shall promptly notify City of any legally compelled disclosure of City’s Confidential Information and
cooperate in seeking protection, unless notice is prohibited by law. City may disclose Provider
information as required by the California Public Records Act, subpoena, audit, or other law, and
does not guarantee confidentiality of Provider materials; provided that City shall, to the extent
permitted by law, give Provider prompt written notice of any request that would require disclosure
of Provider’s Confidential Information and a reasonable opportunity to seek protection before
disclosure. These obligations survive termination.
14. Compliance with Law.
a Provider shall comply with all applicable federal, state, and local laws, regulations,
and binding standards, including accessibility, privacy, cybersecurity, records-retention,
consumer-notification, employment, and tax requirements.
b Provider shall obtain and maintain, at its expense, all licenses, permits,
registrations, and approvals required for its performance and shall reasonably assist City with
regulatory compliance.
c Without limiting the foregoing, Provider shall comply with California Civil Code
sections 1798.29, 1798.81.5, and 1798.82 to the extent applicable to its maintenance of City Data,
support City’s compliance with the California Public Records Act, comply with the accessibility
requirements in Section 4, and maintain PCI DSS compliance for any payment-card function
within Provider’s control.
-5-
99999.92017\45401996.1
Error! Unknown document property name.
15. Warranty
a. Software Warranty. Provider warrants that, throughout the Term, the Hosted
Services will conform in all material respects to the Functional Requirements and
the Documentation. City’s remedy, and Provider’s entire liability, for breach of this
warranty is for Provider to use commercially reasonable efforts, at no additional
charge to City, to correct or replace the nonconforming item so that it conforms; if
Provider is unable to do so within a reasonable period, City may terminate the
affected Services and receive a pro-rata refund of prepaid, unused fees for the
terminated Services. This warranty does not apply to the extent a nonconformity is
caused by (i) modification, configuration, or use of the Hosted Services other than
by Provider or other than in accordance with the Documentation, (ii) City Data or
City’s source data, (iii) City’s or a third party’s hardware, software, infrastructure,
network, or interfaces, or (iv) City’s failure to implement an update, patch, or
workaround made available by Provider.
b. Malware. Provider warrants that the Software shall not contain any lock, counter,
CPU reference, virus, worm, or other malware or device capable of halting
operations or erasing or altering data or programs. Provider further warrants that
neither it, nor its agents, employees, or subcontractors shall insert any shutdown
device following delivery of the Software (or any hardware) or Services.
c. Service Warranty. Provider warrants that all Services will be performed in a
professional and workmanlike manner in accordance with generally accepted
software-industry practices by properly trained personnel. Notice of a breach of this
warranty must be given in writing within ninety (90) days after the affected Service
is completed, and City’s primary remedy is re-performance of the nonconforming
Service or, if Provider cannot re-perform it within a reasonable period, refund of the
fees paid for that Service.
d. Remedies. Provider shall respond to and correct malfunctions and nonconformities
in accordance with the Service Levels in Section 7 of Exhibit “A.” For a Severity 1
incident, Provider shall devote its most experienced available resources and provide
continuous commercially reasonable efforts until restoration. The service credits set
forth in Section 7 of Exhibit “A” are City’s primary remedy for Provider’s failure to
meet a service level, except that if Provider fails to meet the monthly Availability
commitment in any three (3) consecutive months, City may terminate the affected
Hosted Services upon thirty (30) days’ written notice and receive a pro-rata refund
of prepaid, unused fees.
e. Representations and Warranties of City. City represents and warrants that (i) it has
the full right and authority to enter into, execute, and perform its obligations under
this Agreement; (ii) it has had the opportunity to evaluate the suitability of the Hosted
Services for its requirements and has relied on its own investigation and judgment
in selecting them; (iii) its use of City Data complies with applicable Data Protection
Laws; (iv) it has the legal right to use City Data and to allow Provider to process City
Data as contemplated by this Agreement; and (v) it will use the Hosted Services in
accordance with the Documentation and Section 4 of Exhibit “A.”
f. Services Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION
15, THE HOSTED SERVICES AND THE SERVICES ARE PROVIDED “AS IS” AND
“AS AVAILABLE,” AND PROVIDER MAKES NO OTHER REPRESENTATION OR
WARRANTY OF ANY KIND. ALL OTHER EXPRESS OR IMPLIED WARRANTIES,
-6-
99999.92017\45401996.1
Error! Unknown document property name.
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ABSENCE OF
HIDDEN OR LATENT DEFECTS, AND COURSE OF DEALING, COURSE OF
PERFORMANCE, OR USAGE OF TRADE, ARE SPECIFICALLY EXCLUDED AND
DISCLAIMED. PROVIDER DOES NOT WARRANT THAT THE HOSTED
SERVICES WILL MEET REQUIREMENTS NOT SET FORTH IN THE
FUNCTIONAL REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION
OR ERROR, OR WILL BE FREE OF ALL DEFECTS, AND PROVIDER DOES NOT
GUARANTEE ANY PARTICULAR RESULT FROM THE USE OF THE HOSTED
SERVICES. THE OPERATION OF THE HOSTED SERVICES MAY BE
INTERRUPTED DUE TO MAINTENANCE, UPDATES, SYSTEM OR NETWORK
FAILURES, OR FAILURES IN THE SYSTEMS OF PROVIDER’S THIRD-PARTY
SERVICE PROVIDERS, AND, EXCEPT FOR PROVIDER’S EXPRESS
OBLIGATIONS UNDER THIS AGREEMENT, PROVIDER DISCLAIMS LIABILITY
FOR DAMAGES CAUSED BY SUCH INTERRUPTIONS. PROVIDER DOES NOT
REPRESENT OR WARRANT THAT THE HOSTED SERVICES WILL OPERATE
OR BE COMPATIBLE WITH ANY THIRD-PARTY SERVICE, APPLICATION, OR
HARDWARE NOT IDENTIFIED IN THE FUNCTIONAL REQUIREMENTS.
NOTHING IN THIS SUBSECTION LIMITS PROVIDER’S OBLIGATIONS UNDER
SECTIONS 21 AND 23.
g. Risk of Exposure. CITY RECOGNIZES AND AGREES THAT HOSTING DATA
ONLINE INVOLVES RISKS OF UNAUTHORIZED DISCLOSURE OR EXPOSURE.
PROVIDER SHALL MAINTAIN THE SECURITY PROGRAM AND CONTROLS
REQUIRED BY SECTION 6 OF EXHIBIT “A,” BUT DOES NOT REPRESENT,
WARRANT, OR GUARANTEE THAT CITY DATA WILL NOT BE EXPOSED OR
DISCLOSED THROUGH THE ACTS OR OMISSIONS OF THIRD PARTIES OR
THROUGH MEANS NOT REASONABLY PREVENTABLE BY THOSE
CONTROLS.
16. Acceptance Testing; Final Acceptance. City acknowledges that the Hosted Services
identified in Exhibit “A” are in production use by City as of the Effective Date and are accepted as
of the Effective Date. This Section applies only to new modules, interfaces, or other deliverables
first made available to City under an Order after the Effective Date. Before testing begins, the
Parties shall approve a written test plan containing objective, mutually agreed pass/fail criteria.
City will have thirty (30) business days after delivery of each complete deliverable to test it and to
deliver written notice of any material nonconformity, specifying the failed criteria in reasonable
detail. A deliverable is deemed accepted upon the earlier of (i) City’s written acceptance, or (ii)
City’s failure to deliver a written notice of material nonconformity within the testing period, or (iii)
City’s use of the deliverable in production.. If City timely rejects a deliverable for material
nonconformity, Provider shall correct it at no charge and resubmit it for a testing period of equal
length limited to the previously failed criteria. Acceptance does not waive Provider’s express
warranties in Section 15.
17. Assignment and Subcontractors. City shall not assign, transfer, or delegate this
Agreement or any rights or obligations under it without Provider’s prior written consent, which
shall not be unreasonably withheld. Provider shall not assign or transfer this Agreement without
City’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed;
provided, however, that Provider may assign or transfer this Agreement, in whole or in part,
without City’s consent, to an affiliate or in connection with a merger, acquisition, reorganization,
internal restructuring, change of control, or sale of all or substantially all of the assets or equity of
Provider or of the business line to which this Agreement relates, upon written notice to City
delivered no later than thirty (30) days after the effective date of such assignment or transfer, so
-7-
99999.92017\45401996.1
Error! Unknown document property name.
long as the assignee assumes Provider’s obligations under this Agreement. A change in the
direct or indirect ownership or control of Provider shall not constitute an assignment requiring
City’s consent and shall not give rise to any right of termination. Provider shall give City written
notice of any such change in ownership or control no later than thirty (30) days after its closing.
Provider may engage subcontractors and Subprocessors to perform portions of the Services,
subject to Section 6 of Exhibit “A.” Provider shall disclose the hosting providers and
Subprocessors that store or process City Data, their functions, and data locations, and each shall
be bound by written obligations at least as protective of City Data as this Agreement. Provider
remains responsible for the performance of its personnel and subcontractors.
18. Independent Contractor.
a Provider enters into this Agreement as an independent contractor and not as an
employee of the City. The Provider shall have no power or authority by this Agreement to bind
the City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this
relationship or status. All employees, agents, contractors or subcontractors hired or retained by
the Provider are employees, agents, contractors or subcontractors of the Provider and not of the
City. The City shall not be obligated in any way to pay any wage claims or other claims made
against Provider by any such employees, agents, contractors subcontractors, or any other person
resulting from performance of this Agreement.
b Provider agrees it has satisfied itself by its own investigation and research
regarding the conditions affecting the work to be done and labor and materials needed, and that
its decision to execute this Agreement is based on such independent investigation and research.
19. Integration. The Contract Documents represent the entire understanding of the City and
Provider as to those matters contained herein and supersedes and cancels any prior oral or
written understanding, promises or representations with respect to those matters covered
hereunder. This Agreement may not be modified or altered except in writing signed by both
parties hereto. This is an integrated Agreement.
20. Title to Software; Ownership; No Escrow. Provider represents and warrants that it is the
sole owner of the Software or, if not the owner, that it has received all legally required
authorizations from the owner to provide the Software as contemplated herein, has the full power
to grant the rights required by this Agreement, and that neither the Software, nor its use in
accordance with the Contract Documents, will violate or infringe upon any patent, copyright, trade
secret, or other intellectual property right of another person or of City. The rights of access and
use granted to City under this Agreement are nonexclusive, nontransferable (except as permitted
in Section 17), non-sublicensable, revocable in accordance with this Agreement, and limited to
City’s internal operations. All rights not expressly granted to City are reserved by Provider and
its licensors. All ownership and other proprietary interests in and to the Software, the Hosted
Services, the Documentation, and all fixes, upgrades, updates, modifications, derivative works,
and other Services, and all patents, copyrights, trade secrets, trademarks, and other intellectual
property rights embodied in or associated with the same, are and shall remain with Provider and/or
its licensors. Neither this Agreement nor City’s access to the Hosted Services shall be construed
as transferring title or any ownership right or interest in the foregoing to City, and City acquires no
right to any source code. No source-code escrow is required or contemplated under this
Agreement, and Provider has no obligation to deposit source code with any escrow agent or to
make source code available to City under any circumstances. Upon expiration or termination of
this Agreement, City’s rights of access and use terminate, subject to Section 22(d). If City
provides any feedback, enhancement requests, recommendations, comments, or suggestions
regarding the Services (“Feedback”), Provider may freely use such Feedback without obligation,
attribution, or compensation to City, provided that Provider shall not identify City as the source
-8-
99999.92017\45401996.1
Error! Unknown document property name.
without City’s consent. Ownership of City Data is governed by Exhibit “A” and is not affected by
this Section.
21. Infringement Remedies. If it is claimed that the Software or Hosted Services furnished by
Provider infringes any third-party patent, copyright, trade secret, or other intellectual property
right, Provider agrees to defend or settle any such claim or suit at Provider’s expense and to
indemnify and hold the City harmless from any losses, damages, or harm, including reasonable
attorney’s fees and legal expenses, incurred as a result of such claim. Without the City’s prior
written approval, Provider shall not accept any liability on the City’s behalf for the infringement,
nor shall Provider reach a settlement that from the City perspective impairs the value or
usefulness of the work that is the subject of the infringement claim. Provider will also pay all
damages and costs that by final judgment or settlement are assessed against the City due to such
proven or settled infringement. Should Provider find, or be found, to have infringed on any
intellectual property rights, Provider will, at its option and expense, procure (i) a right for the City
to continue using the applicable Software or Hosted Services, (ii) a modification that avoids the
infringement while continuing to satisfy the Functional Requirements, or (iii) a replacement that
provides substantially equivalent functionality and complies with the Functional Requirements, in
each case at no additional cost to City. If none of the foregoing remedies is commercially or
technically feasible using commercially reasonable efforts, Provider may terminate the affected
Services upon written notice and shall refund prepaid, unused fees for the terminated Services
together with City’s reasonable, documented migration costs, subject to Section 34. Provider has
no obligation under this Section to the extent a claim arises from (a) City Data, (b) City’s
combination of the Software or Hosted Services with products or services not provided or
recommended by Provider, (c) modification of the Software other than by Provider, or (d) City’s
use of the Software or Hosted Services other than in accordance with the Documentation or this
Agreement. City shall give Provider prompt written notice of any such claim and tender sole
control of its defense and settlement to Provider, with City’s reasonable cooperation at Provider’s
expense.
22. Termination
a. Termination for Default. Subject to subsection 22(b), City may terminate this
Agreement, in whole or in part, if Provider materially defaults and fails to cure as
provided in subsection 22(b). Termination is effective on the date in City’s written
notice. If Provider fails to cure, it shall reimburse City’s reasonable, documented,
actual incremental costs of substitute performance, migration, restoration, and
remediation for the remainder of the then-current annual subscription period, in
addition to other remedies, in each case subject to Section 34. Provider may
terminate this Agreement if City materially breaches this Agreement, including any
failure to pay undisputed amounts when due, and fails to cure as provided in
subsection 22(b). Termination is effective on the date in Provider’s written notice.
b. Cure. The defaulting Party shall have a period of thirty (30) days following a written
notice of default specifying the default in reasonable detail to cure such default or, if
such default cannot reasonably be cured within such period, to provide the non-
defaulting Party with a written plan reasonably satisfactory to the non-defaulting
Party to cure the default and thereafter to pursue such plan diligently to completion;
provided, however, that a failure to pay undisputed amounts when due must be
cured within such thirty (30) day period.
c. Termination for Non-Appropriation. City’s payment obligation under this Agreement
extends only to funds appropriated annually by City’s governing body for the purpose
of this Agreement. For each succeeding fiscal period covered by this Agreement,
-9-
99999.92017\45401996.1
Error! Unknown document property name.
City’s applicable department responsible for this Agreement agrees to include in its
budget request appropriations sufficient to cover the annual financial obligations under
this Agreement. However, City’s governing body has no obligation to make
appropriations for the Agreement in lieu of appropriations for new or other contracts. If
City appropriates insufficient funds to continue annual payments under this Agreement,
City may terminate this Agreement effective upon the last day of the fiscal year for
which funds were appropriated. Upon termination under this paragraph, Provider shall
be entitled to compensation for all services rendered prior to the effective termination
date. Provider’s assumption of risk of possible non-appropriation is a part of the
consideration for the Agreement. City shall notify Provider in writing promptly, and in
no event later than thirty (30) days, after the governing body’s action resulting in
insufficient appropriation, and shall not continue to use the Hosted Services after a
termination under this subsection. This Section controls against any and all other
provisions of the Agreement.
d. Continued Access and Transition. If City so requests in writing at least sixty (60) days
before expiration or termination (other than a termination by Provider for City’s failure
to pay undisputed amounts), Provider shall continue the Hosted Services for up to six
(6) months following expiration or termination at the then-current rates, prorated
monthly, and shall provide City Data in Provider’s standard export formats at no
additional charge together with reasonable transition cooperation, without withholding
City Data.. Transition assistance beyond Provider’s standard exports and reasonable
cooperation, including custom formats, custom extracts, or configuration of City Data
on other systems, will be provided at Provider’s then-current time-and-materials rates
as authorized under Section 9. Provider shall retain and not delete City Data during
the transition period and for sixty (60) days thereafter, and shall thereafter return or
securely destroy City Data as provided in Section 6 of Exhibit “A.”
23. Indemnification. Provider shall indemnify, defend (with counsel reasonably acceptable to
City), and hold harmless the City, its officers, officials, agents, and employees (collectively, the
“Indemnitees”) from and against any and all claims, damages, demands, liability, costs, losses
and expenses (all of the foregoing collectively “Claims”), including without limitation court costs
and reasonable attorneys’ fees, to the extent arising out of (i) bodily injury to or death of persons,
or damage to tangible property, caused by Provider’s negligence or willful misconduct; (ii)
Provider’s gross negligence or willful misconduct in performing the Services; or (iii) a Security
Incident to the extent caused by Provider’s gross negligence, willful misconduct, or material
breach of its express security obligations in Section 6 of Exhibit “A.” Provider’s indemnification
obligation for third-party claims that the Software or the Hosted Services infringe intellectual
property rights is set forth in Section 21. Provider’s obligations under this Section do not apply to
the extent a Claim is caused by the negligence or willful misconduct of the Indemnitees, by City
Data, or by City’s use of the Hosted Services other than as permitted by this Agreement. City
shall give Provider prompt written notice of any Claim, tender sole control of the defense and
settlement to Provider, and provide reasonable cooperation at Provider’s expense; Provider shall
not enter into any settlement that imposes a non-monetary obligation on an Indemnitee or that
does not fully release the Indemnitees without City’s prior written consent. City does not waive
any rights against Provider under this Section because of Provider’s provision of insurance
policies required by this Agreement. Provider’s obligations to defend and indemnify the City
survive the expiration or termination of this Agreement. To the extent permitted by applicable law,
City shall indemnify, defend, and hold harmless Provider and its officers, employees, and agents
from and against third-party Claims to the extent caused by (i) the negligence or willful misconduct
of City or its officers, officials, employees, or agents, (ii) City’s lack of rights or consents in City
Data provided by City, (iii) unauthorized use of the Hosted Services through City’s accounts or
credentials to the extent enabled by City as described in Section 4 of Exhibit “A,” or (iv) City’s
-10-
99999.92017\45401996.1
Error! Unknown document property name.
violation of applicable law, in each case except to the extent caused by Provider’s negligence,
willful misconduct, or breach of this Agreement. City shall have no obligation to indemnify
Provider for any Claim to the extent arising from the Software, the Hosted Services, or the
Services as provided by Provider. Provider shall give City prompt written notice of any Claim for
which it seeks indemnification and reasonable cooperation in its defense. Except for Claims
described in Section 34(c), this Section is subject to Section 34.
24. Conflicts of Interest.
a. Provider covenants that neither it, nor any of its employees, agents, contractors, or
subcontractors has any present interest, nor shall they acquire any interest, direct
or indirect, in the subject of the Agreement, nor any other interest which would
conflict in any manner or degree with the performance of its Services hereunder.
b. Provider shall make all disclosures required by the City’s conflict of interest code in
accordance with the category designated by the City, unless the City’s Contract
Administrator determines in writing that Provider’s duties are more limited in scope
than is warranted by the category designated by the City code and that a narrower
disclosure category should apply. Provider also agrees to make disclosure in
compliance with the City conflict of interest code if, at any time after the execution
of this Agreement, City determines and notifies Provider in writing that Provider’s
duties under this Agreement warrant greater disclosure by Provider than was
originally contemplated. Provider shall make disclosures in the time, place and
manner set forth in the conflict-of-interest code and as directed by the City.
25. Liability of Contractor. Provider shall be responsible for performing the services under this
Agreement in a manner which is consistent with the generally accepted standards of the
Provider’s profession and shall be liable for its own negligence and the negligent acts of its
employees, agents, contractors and subcontractors. The City shall have no right of control over
the manner in which the work is to be done but only as to its outcome and shall not be charged
with the responsibility of preventing risk to Provider or its employees, agents, contractors or
subcontractors. Provider’s liability under this Section is subject to Section 34.
26. Insurance.
a. Provider will comply with the “Insurance Requirements” of City which are
attached hereto as Exhibit “B” and included as a part of this Agreement.
b. No limitation on liability contained in the Contract Documents shall apply to
any third-party claim for personal injury or wrongful death arising from the negligent
acts or willful misconduct of either party, its agents or assigns. All other liabilities of
the Parties under the Contract Documents are subject to the limitations set forth in
Section 34.
27. Laws and Venue. This Agreement shall be governed by the laws of the State of California.
Any litigation regarding this Agreement or its contents shall be filed in a state or federal court
situated in the County of Los Angeles, State of California.
28. Documents. Provider shall deliver to City no less than one (1) full set of documentation,
manuals, and training materials for the Software. City shall have the right to copy such documents
and materials for its own internal use of the Software.
-11-
99999.92017\45401996.1
Error! Unknown document property name.
29. Project Manager. Provider shall assign _________________ as Project Manager. The
Project Manager shall not be removed from the Project or reassigned without the prior written
consent of the City.
30. Notice. Any notice or instrument required to be given or delivered by this Agreement may
be given or delivered in person or sent via commercial overnight delivery or by certified mail,
addressed to each party at the address set forth below or such other address for which a party
has given notice in accordance with this section. Notice will be effective upon receipt, or within
five (5) days of delivery.
City:
City of Arcadia
240 W. Huntington Drive,
Arcadia, California 91007
Attn: [INSERT NAME AND TITLE]
Provider:
[INSERT NAME]
[INSERT ADDRESS]
[INSERT ADDRESS]
Attn: [INSERT NAME AND TITLE]
31. City Not Obligated to Third Parties. City shall not be obligated or liable for payment
hereunder to any party other than the Provider.
32. Non-Discrimination. Provider shall not discriminate in any way against any person on the
basis of race, color, religious creed, national origin, ancestry, sex, sexual orientation, age,
physical handicap, medical condition or marital status in connection with, or related to, the
performance of this Agreement.
33. Prohibited Interests. Provider maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working solely for Provider, to
solicit or secure this Agreement. Further, Provider warrants that it has not paid nor has it agreed
to pay any company or person, other than a bona fide employee working solely for Provider, any
fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or
resulting from the award or making of this Agreement. For breach or violation of this warranty,
City shall have the right to rescind this Agreement without liability. For the term of this Agreement,
no director, official, officer or employee of City, during the term of his or her service with City, shall
have any direct interest in this Agreement, or obtain any present or anticipated material benefit
arising therefrom.
34. Limitation of Liability.
a. Maximum Liability. EXCEPT FOR THE MATTERS EXPRESSLY EXCLUDED IN
SUBSECTION (c) BELOW, AND TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, PROVIDER’S TOTAL AGGREGATE LIABILITY ARISING OUT
OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, THE CONTRACT
DOCUMENTS, THE SOFTWARE, OR THE SERVICES, FROM ANY CAUSE OF
ACTION WHETHER IN CONTRACT, TORT, STATUTE, OR OTHERWISE, SHALL
NOT EXCEED THE TOTAL AMOUNTS PAID BY CITY TO PROVIDER UNDER
THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING
THE FIRST EVENT GIVING RISE TO THE LIABILITY (THE “GENERAL CAP”);
-12-
99999.92017\45401996.1
Error! Unknown document property name.
PROVIDED, HOWEVER, THAT (I) PROVIDER’S TOTAL AGGREGATE LIABILITY
ARISING FROM PROVIDER’S FRAUD OR GROSS NEGLIGENCE SHALL NOT
EXCEED THE APPLICABLE PER-OCCURRENCE OR PER-CLAIM LIMIT OF THE
INSURANCE PROVIDER IS REQUIRED TO MAINTAIN UNDER EXHIBIT “B” FOR
THE TYPE OF LIABILITY AT ISSUE (THE “INSURANCE CAP”), WHICH SHALL
APPLY IN LIEU OF THE GENERAL CAP AND THE SECURITY CAP, AND (II)
PROVIDER’S TOTAL AGGREGATE LIABILITY FOR A SECURITY INCIDENT
SHALL NOT EXCEED TWO (2) TIMES THE GENERAL CAP (THE “SECURITY
CAP”), AND THEN ONLY TO THE EXTENT THE SECURITY INCIDENT IS
CAUSED BY PROVIDER’S MATERIAL BREACH OF ITS EXPRESS SECURITY
OBLIGATIONS IN SECTION 6 OF EXHIBIT “A.” THE FOREGOING SECURITY
CAP DOES NOT APPLY, AND PROVIDER’S LIABILITY REMAINS SUBJECT TO
THE GENERAL CAP, FOR ANY SECURITY INCIDENT TO THE EXTENT ARISING
FROM (I) CITY DATA OR THE ACTS OR OMISSIONS OF CITY OR ANY USER,
(II) USE OF THE SERVICES THROUGH CITY’S ACCOUNTS, CREDENTIALS, OR
PASSWORDS, OR (III) HARDWARE, SOFTWARE, SYSTEMS, OR NETWORKS
NOT CONTROLLED BY PROVIDER. MULTIPLE CLAIMS SHALL NOT ENLARGE
THESE LIMITS.
b. Exclusion of Damages. EXCEPT FOR THE MATTERS EXPRESSLY EXCLUDED
IN SUBSECTION (c) BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER FOR ANY LOST REVENUE, LOSS OF BUSINESS, LOST OR
ANTICIPATED PROFITS, LOST SAVINGS, LOSS OR CORRUPTION OF DATA,
INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR REPUTATION, OR
FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY,
SPECIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION
AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS SUBSECTION DOES NOT LIMIT CITY’S OBLIGATION TO PAY
FEES DUE UNDER THIS AGREEMENT.
c. Exclusions from the Limitations. The limitations in subsections (a) and (b) do not
apply to (i) Provider’s indemnification obligations under Section 23 for third-party
claims of personal injury, death, or damage to tangible property to the extent caused
by Provider’s negligence or willful misconduct; (ii) Provider’s defense and
indemnification obligations under Section 21 for third-party claims of intellectual
property infringement; (iii) either Party’s willful misconduct; and (iv) City’s obligation
to pay fees for Services rendered.
d. Basis of Bargain. The limitations and exclusions in this Section are an essential
element of the consideration for this Agreement, reflect the allocation of risk between
the Parties and the fees charged, and will apply even if any limited remedy fails of
its essential purpose. The insurance coverages required by Exhibit “B” are
maintained in addition to, and do not enlarge, the limitations in this Section, except
to the extent of insurance proceeds actually available and paid for a Claim described
in subsection (c).
e.
35. Severability. If any provision of this Agreement is held unenforceable, invalid, or illegal,
that provision shall be enforced to the maximum extent permitted and the remaining provisions
shall remain in full force and effect.
-13-
99999.92017\45401996.1
Error! Unknown document property name.
36. Counterparts. This Agreement and any exhibits, amendments or renewals hereto may be
executed in a number of counterparts, and each counterpart signature, when taken with the other
counterpart signatures, is treated as if executed upon one original of this Agreement or any
amendment or renewal. A signature by any party to this Agreement provided by facsimile or
electronic mail is binding upon that party as if it were the original.
[Signatures on following page]
-14-
99999.92017\45401996.1
Error! Unknown document property name.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written
above.
CITY OF ARCADIA
APPROVED BY:
Dominic Lazzaretto
City Manager
ATTESTED BY:
Linda Rodriguez
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
PROVIDER
[***INSERT PROVIDER NAME***]
APPROVED BY:
[***INSERT NAME***]
[***INSERT POSITION***]
-15-
99999.92017\45401996.1
Error! Unknown document property name.
EXHIBIT A
SCOPE OF SERVICES AND TERMS
1. Definitions.
a. “City Data” means all electronic data and information processed or stored
through the Hosted Services by City or on City’s behalf, but shall not include (a)
payment records, credit cards, or other information City uses to pay Provider, or
other information and records related to City’s account, including without
limitation identifying information related to City staff involved in payment or other
management of such account, (b) the Software, the Hosted Services, the
Documentation, or Provider’s proprietary data models, standard configurations,
or templates, or (c) De-Identified Data. Raw payment-card data processed
exclusively by an approved third-party payment processor is excluded, and City
transaction and reconciliation records maintained in the Hosted Services remain
City Data.
b. “Data Protection Laws” means all state, foreign, or federal laws, statutes,
regulations, rules, executive orders, directives, or other official guidance, and any
industry rules or self-regulatory codes of conduct relating to data protection,
privacy, data security, electronic communications, or data security incidents that
are applicable to City or Customer Data.
c. “Documentation” means any user manuals and other documentation that
Provider makes available to assist in the integration or use of the Hosted
Services or On-Premise Software.
d. “Hosted Services” means all cloud-based services, applications, modules,
hosting, environments, interfaces, and third-party components that Provider
furnishes or requires for City’s use. Provider remains responsible for all third-
party components and providers as if they were Provider’s own.
e. “On-Premise Software” means Provider’s software products, if any, to be
delivered as licensed software and deployed on City’s premises in accordance
with the terms of this Agreement. The Parties acknowledge that City subscribes
to the Hosted Services only and that no On-Premise Software is licensed or
delivered to City under this Agreement.
f. “Order” means a statement of work or change order expressly authorized in
writing under Section 9 of the Agreement. A quote, invoice, portal entry,
purchase acknowledgment, or online term is not an Order and cannot modify the
Agreement.
g. “Personal Data” means any data that identifies, relates to, describes, is capable
of being associated with, or could reasonably be linked, directly or indirectly, with
a particular data subject, including without limitation, all information defined as
“Personal Data,” “Personal Information” or analogous definitions in applicable
Data Protection Laws.
h. “Services” means the Hosted Services and/or On-Premise Software (as
applicable) and the installation, initial training, configuration, customization, data
conversion, and other services, excluding Support.
i. “Support” means the support services for the Hosted Services or On-Premise
Software as set forth below.
j. “User” means any person who is authorized by City to use the Hosted Services
on City’s behalf, including without limitation City’s employees, officials,
representatives, consultants, contractors, auditors, service providers, and agents.
2. Services.
a. Subscription and License Types. Provider makes services available both in the
-16-
99999.92017\45401996.1
Error! Unknown document property name.
form of a subscription to Hosted Services and a limited license to On-Premise
Software. Provider generally permits (upon request and with Provider prior
approval) the transition during the term from On-Premise Software delivery to
Hosted Services delivery. If City so requests, and Provider approves, City
acknowledges and agrees that (a) City’s acceptance of the Hosted Services
constitutes City’s agreement to the applicable terms of this Agreement, (b) City
may incur an additional fee for transition as agreed upon by the parties in writing,
subject to Section 9 of this Agreement.
b. Authorization. Subject to the terms and conditions of this Agreement (including
without limitation City’s timely payment of all fees and compliance with all other
obligations and restrictions set forth in this Agreement), Provider:
i. grants to City permission to access and use the functionality of the
Hosted Services, for the limited purposes described in the Agreement,
throughout City’s applicable service period; and/or
ii. grants City a license, during City’s applicable license period, to reproduce
and use the On-Premise Software, solely in the form furnished by
Provider to City, on City’s own server(s) for the limited purposes
described in the Documentation.
c. Ownership; Reservation of Rights. Ownership of the Software, the Hosted
Services, and the Documentation, and the absence of any source-code escrow
obligation, are governed by Section 20 of the Agreement. All rights to the
Software and Hosted Services not expressly granted to City are reserved by
Provider and its licensors, and City acquires no right to any source code.
d. Support. Provider will provide Support as set forth in Section 7 of this Exhibit.
Provider will use reasonable efforts to make the Hosted Services available for
City’s authorized use twenty-four (24) hours per day, 365 days per year, subject
to planned and unplanned downtime, and will use reasonable efforts to schedule
planned downtime outside of the support hours stated below and to communicate
unplanned downtime by email or through the Hosted Services. Support primarily
consists of responses to system operational and configuration questions,
troubleshooting assistance, and responses to how-to questions concerning the
Services. Support will not include, and Provider will have no responsibility with
regard to, any issues related to or arising from:
i. City’s or a third party’s hardware, infrastructure or network,
ii. any changes made other than by Provider or its representatives,
iii. format changes to any file used to import from, or export data to, a
third party, or
iv. training of personnel.
Extended Support fees apply only to work outside the agreed scope that City
authorizes in advance under Section 9 of the Agreement. Provider shall maintain
staffed support from 7:00 a.m. to 5:00 p.m. Pacific Time (8:00 a.m. to 6:00 p.m.
Mountain Time), Monday through Friday excluding Provider-designated holidays,
plus after-hours on-call coverage for Severity 1 incidents. Provider shall perform
encrypted backups of City Data at least once each business day, retain backups
in accordance with Provider’s standard retention schedule, maintain recovery
copies in a separate availability zone or region, and test restoration procedures
at least annually. In the event of any loss of or damage to City Data, City’s
remedy, and Provider’s liability, will be for Provider to use commercially
reasonable efforts to restore the lost or damaged City Data from the most recent
available backup.
-17-
99999.92017\45401996.1
Error! Unknown document property name.
City may reproduce and use the Documentation solely as necessary to support
Users’ use of the Hosted Services or On-Premise Software, as the case may be.
3. Fees. City agrees to pay the fixed amounts stated below, subject to Section 6 of the
Agreement and acceptance of applicable deliverables:
Year One $61,871.00
Year Two $66,821.00
Year Three $72,167.00
Year Four $77,940.00
Year Five $84,175.00
Invoices are payable net thirty (30) days after City receives a correct invoice. The annual
amounts stated above are fixed for the initial five-year Term and may not be increased
unilaterally, except that third-party payment gateway, payment-processing, interchange,
and bank fees are passed through to City at Provider’s cost.. Pricing for any extension
term under Section 3 of the Agreement shall be the then-current annual fee for the
immediately preceding year increased by not more than eight percent (8%) per year, to
be confirmed by written amendment. Provider shall not suspend Support, Hosted
Services, or access to City Data for an amount disputed in good faith and properly
noticed, and shall comply with Section 6(d) of the Agreement before any permitted
suspension.
4. Acceptable Use. The Services are for City governmental and utility operations use only,
and City shall use the Services in accordance with the Documentation. City shall not, nor
will City allow anyone else to, directly or indirectly without the authorization of Provider:
a. use the Services for any purpose other than City’s own internal business
purposes including, without limitation use for service bureau or time-sharing
purposes or in any other way sublicense or allow third parties to use or exploit
the Services,
b. permit any third party, other than Users with appropriate access authority, to
access or use the Services without Provider’s consent, including without
limitation providing Services passwords or other log-in information to any third
party,
c. share all or any portion of the non-public Services features or content with any
third party,
d. access the Services in order to build a competitive product or service, to build a
product using similar ideas, features, functions or graphics of the Services, or to
copy any ideas, features, functions or graphics of the Services,
e. engage in web scraping or data scraping on or related to the Services, including
without limitation collection of information through any software that simulates
human activity or any bot or web crawler,
f. knowingly upload or permit to be introduced to the Services any data or other
information that contains any worms, vulnerabilities, viruses, Trojan horse, or any
other code, routine, program or mechanism of a destructive or malicious nature
that permits unauthorized access into, disables, partially or wholly erases, or
otherwise adversely affects the Services or the systems on which the Services
are hosted,
g. reverse engineer, disassemble, decompile, decode, or adapt the Services, or
any part thereof, or otherwise attempt to derive or gain access to the source code
-18-
99999.92017\45401996.1
Error! Unknown document property name.
of the Services,
h. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works
of or improvements to the Services or part thereof,
i. interfere with or disrupt servers or networks connected to the Services, or bypass
or breach any security device, license key or protection used for or contained in
the Services,
j. use the Services in any manner or for any purpose that infringes,
misappropriates, or otherwise violates any of Provider’s or any other party’s
intellectual property rights or that violates any applicable law,
k. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or
harm in any manner the Services or Provider systems, including, without
limitation, to conduct penetration or similar testing, or
l. remove any disclaimer, copyright, trademark, proprietary rights, or other notice
on or in the Services,
m. use the Services, City Data accessed through the Services, or any output of the
Services to develop, train, fine-tune, validate, benchmark, or improve any
artificial intelligence, machine learning, or large language model, or to generate
training or evaluation data for any such model, in each case without Provider’s
prior written consent,
n. access or interact with the Services by means of any artificial intelligence agent,
autonomous agent, bot, script, or other automated process, other than through
interfaces expressly documented or authorized in writing by Provider, or use any
such tool in a manner that circumvents access controls, user-based licensing, or
rate limits,
o. input into the Services any data that City does not have the right to input or that
City is prohibited by law or contract from disclosing to Provider, or
p. use any output of the Services to create or improve a product or service that
competes with the Services.
City is solely responsible for its use of, and for any output generated by, any
artificial intelligence, machine-learning, or automated tool that City or its Users
elect to use with the Services or with City Data, and Provider disclaims all liability
for such use and output. Provider’s own use of City Data is governed by Section
6 of this Exhibit.
Users. City is responsible and liable for: (a) the use of the Services by its Users,
including any User conduct that would violate the requirements of this Agreement
applicable to City; and (b) any unauthorized use of the Services through City’s
accounts or credentials to the extent enabled by the acts or omissions of City or
its Users, including through City’s failure to protect its passwords and log-in
information or to timely deactivate the credentials of persons who cease to be
Users. City is not responsible for unauthorized access to the Services to the
extent caused by Provider’s breach of its security obligations under Section 6 of
this Exhibit. City shall take reasonable steps to prevent unauthorized access to
the Services, including by protecting its passwords and other log-in information
and by timely deactivating the credentials of persons who cease to be Users. City
shall notify Provider timely of any known or suspected unauthorized use of the
Services or breach of its security and shall use reasonable best efforts to stop
the same. Nothing in this paragraph limits Provider’s obligations under Section 6
of this Exhibit.
City Obligations. City assumes responsibility for its use of, and the results it
obtains from, the Services, including its review and verification of billing
calculations and outputs before relying on or issuing them. City acknowledges
that certain third-party hardware, software, and services identified in the
Functional Requirements are required to use the Services, and City is
-19-
99999.92017\45401996.1
Error! Unknown document property name.
responsible for obtaining and maintaining the same at its expense. For the
Hosted Services, major upgrades and other significant modifications Provider
makes to improve the performance of the Services may be installed with
additional notice to the City, subject to Section 7 of the Agreement.
5. Compliance with Laws. Each Party shall comply with laws applicable to its own
performance. Provider remains responsible for the , security, accessibility, and
regulatory compliance of the Hosted Services and its processing of City Data.
6. Security. City owns all right, title, and interest in City Data, subject to the rights granted
to Provider in this Agreement. Provider acquires no right in City Data except the rights
described in this Section. Provider shall maintain a written information-security program
aligned with generally accepted industry standards and shall, at minimum, use
encryption in transit and at rest, multifactor authentication for privileged and remote
access, least-privilege access controls, secure software-development practices,
vulnerability and patch management, anti-malware controls, centralized logging and
monitoring, annual third-party penetration testing (the summary results of which Provider
will make available to City subject to Section 13 of the Agreement), personnel security
training, tenant segregation, and tested incident-response and business-continuity
procedures. Provider shall exercise commercially reasonable efforts to prevent
unauthorized disclosure or exposure of City Data. Provider’s security obligations do not
extend to systems, networks, devices, or credentials controlled by City or its other
vendors.
a. Use of City Data. City grants Provider a non-exclusive, royalty-free, worldwide
right and license, during the Term and for the retention periods described in this
Section, to access, host, copy, process, transmit, and display City Data (a) to
provide, maintain, secure, and support the Hosted Services for City, (b) to share
it with Provider’s affiliates, service providers, and Subprocessors solely for the
purpose of providing the Hosted Services, (c) to communicate with City regarding
the Services, including service, security, billing, and product notices, and (d) as
required by applicable law or by proper legal, governmental, or regulatory
authority. City retains all right, title, and interest in City Data, subject to the rights
granted in this Agreement. City is solely responsible for the accuracy, quality,
integrity, reliability, legality, and right to use City Data submitted to Provider
through the Services. Provider is not obligated to review City Data and is not
liable or responsible for the content, accuracy, or appropriateness of City Data.
Provider may retain third parties (“Subprocessors”) to assist it in performing its
obligations under this Agreement, provided that such Subprocessors are bound
by obligations with respect to City Data no less protective than those set forth
herein. Provider shall not sell City Data, share it for cross-contextual behavioral
advertising, or combine Personal Data within City Data with data received from or
on behalf of any third party, and shall not otherwise disclose City Data to any
third party except as required or permitted by this Agreement or by City’s written
direction. To the extent City or its Users provide Personal Data in connection with
the Services, City is responsible for and warrants that it will obtain the necessary
rights and consents under applicable law to disclose such Personal Data to
Provider and to allow Provider to collect, use, retain, and disclose it as
contemplated by this Agreement.
b. De-Identified Data. Provider may create, and shall own all rights in, aggregated
or de-identified data derived from City Data (“De-Identified Data”), and may use,
transfer, and disclose De-Identified Data, including aggregated with data from
other customers, to operate, secure, support, benchmark, analyze, and improve
the Services and Provider’s other products and services, provided that De-
-20-
99999.92017\45401996.1
Error! Unknown document property name.
Identified Data does not contain Personal Data and does not permit the
identification of City or any person, household, account, or property. Provider
shall not attempt to reidentify De-Identified Data, shall not sell City Data, and
shall not use City Data that has not been de-identified to train or improve any
generalized artificial-intelligence or machine-learning model without City’s prior
written consent. Nothing in this Section restricts Provider from using De-Identified
Data, aggregate usage statistics, system telemetry, or Feedback, including
through the use of machine-learning techniques, for the purposes described
above. City retains ownership of City Data and of the City-specific configuration
settings and report definitions it creates; Provider retains ownership of the
Software, the Hosted Services, and Provider’s standard configurations,
templates, and data models. These obligations do not apply to De-Identified
Data.
c. Return, Export and Destruction. During the Term, City may export City Data at
any time in Provider’s standard export formats at no additional charge. Upon
City’s written request, or upon expiration or termination, Provider shall provide a
complete copy of City Data in Provider’s standard machine-readable export
formats, including the associated field definitions and available metadata, at no
additional charge. Exports in nonstandard or custom formats, custom extracts,
and other extraordinary migration assistance will be provided at Provider’s then-
current time-and-materials rates as authorized under Section 9 of the Agreement.
Provider shall continue the Services during any transition period established
under Section 22(d) of the Agreement and shall preserve City Data until the
earlier of City’s written confirmation of successful transfer or sixty (60) days after
the transition period ends. Provider shall not destroy City Data that Provider has
been notified in writing is subject to a litigation hold, audit, public-records request,
or retention requirement. Upon the later of sixty (60) days after expiration or
termination or City’s written authorization, Provider shall return or securely
destroy all remaining City Data in its possession, shall destroy backup copies in
the ordinary course as backup media are cycled, and upon City’s request shall
provide a written certificate of destruction. These obligations do not apply to De-
Identified Data.
d. Required Disclosure. Provider may disclose City Data only when legally required.
Unless prohibited, Provider shall give City prompt written notice before
disclosure, disclose only the minimum legally required, and reasonably cooperate
with City’s efforts to contest or limit disclosure. Provider bears its own compliance
costs and all costs arising from its breach or unauthorized processing.
e. Data Accuracy. City is responsible for the accuracy, completeness and legality of
the source data it supplies and for reviewing and verifying converted data, billing
calculations, and system outputs before relying on or issuing them. Provider is
responsible for performing data conversion and migration in accordance with the
conversion plan and reconciliation standards agreed by the Parties and for the
Hosted Services processing City Data in conformance with the Functional
Requirements and the Documentation. Provider’s liability for data conversion,
calculation, processing, interface, or output errors is subject to Sections 15 and
34 of the Agreement.
f. Regulatory Compliance. Provider shall provide records, audit materials,
technical assistance, and cooperation reasonably necessary for City to verify
Provider’s compliance with Data Protection Laws, accessibility requirements,
security obligations, and public-records duties, at no additional charge. Provider
may satisfy such requests by providing its then-current third-party audit reports,
security questionnaire responses, penetration-test summaries, and accessibility
conformance report. Provider shall promptly stop and remediate unauthorized or
-21-
99999.92017\45401996.1
Error! Unknown document property name.
noncompliant processing at its expense. On-site audits, if any, shall occur no
more than once annually on at least thirty (30) days’ written notice, during
business hours, and subject to Provider’s security and confidentiality
requirements. City bears costs only for extraordinary assistance unrelated to
Provider’s duties and authorized in advance under Section 9.
g. Security Incidents. Provider shall notify City’s designated security contact in a
timely manner and in any event no later than forty-eight (48) hours after Provider
confirms any unauthorized access to, or acquisition, use, disclosure, alteration,
loss, or destruction of, City Data in Provider’s possession or control, or any
ransomware event materially affecting the Services (“Security Incident”). Provider
shall promptly contain and investigate the Security Incident; preserve relevant
evidence; provide material updates as they become available; reasonably
cooperate with City and, as appropriate, with law enforcement, regulators,
insurers, and forensic specialists; restore affected City Data and Services in
accordance with its incident-response and business-continuity procedures; and
provide a root-cause and corrective-action summary. Provider shall not notify
third parties of a Security Incident affecting City Data without City’s approval
unless legally required. City shall control, and the Parties will cooperate on, any
legally required public or individual notifications in response to a Security
Incident. To the extent a Security Incident is caused by Provider’s breach of this
Agreement or the negligence of Provider or its Subprocessors, Provider shall
bear the reasonable and documented costs of investigation, restoration of City
Data, and legally required notification of affected individuals, in each case subject
to Section 34 of the Agreement. Except as expressly set forth in this Section, City
is responsible for remedial measures it elects to undertake, including credit
monitoring and call-center services.
h. Requests from Regulators and Individuals. Provider shall promptly forward to
City any request concerning Personal Data or City Data and shall not respond
except as directed by City or required by law. Provider shall provide timely
assistance needed for City’s response. Provider bears costs attributable to its
own processing, breach, or noncompliance; other extraordinary assistance
requires advance City authorization.
i. Public Records and Legal Holds. Provider shall preserve, search, segregate,
export, and deliver records responsive to City requests in sufficient time for City
to comply with the California Public Records Act, subpoenas, audits, and legal
holds. Records shall be provided in the electronic formats in which maintained
and, when requested, in a reasonably usable format with metadata. Provider
shall not assert ownership of City Data or charge ordinary export fees to delay
production.
j. Payment Security. Provider shall identify all payment processors and
integrations, maintain PCI DSS compliance for functions within its control, use
tokenization and encryption, avoid storing sensitive authentication data, and
remain responsible for the security and performance of Provider-selected
integrations.
k. Subprocessors and Data Location. Provider shall maintain and make available to
City a current list of the Subprocessors that host or process City Data, together
with their functions and the countries in which City Data is hosted and processed,
and shall give City at least thirty (30) days’ prior written notice before adding or
replacing a Subprocessor that hosts or processes City Data. City may object to a
proposed Subprocessor within that period on reasonable, documented
information-security or legal-compliance grounds, in which case the Parties will
work in good faith to identify a commercially reasonable alternative; if none is
available, City may terminate the affected Hosted Services and receive a pro-rata
-22-
99999.92017\45401996.1
Error! Unknown document property name.
refund of prepaid, unused fees. City Data shall be hosted and processed in the
United States unless City approves otherwise in writing. Provider shall flow down
all applicable obligations to each Subprocessor and remains responsible for each
Subprocessor’s performance of those obligations.
7. Service Levels and Support.
a. Availability. Provider shall use commercially reasonable efforts to make the
production Hosted Services available at least 99.5% of each calendar month,
measured at the external service interface, excluding (i) planned maintenance
scheduled outside the support hours in Section 2 of this Exhibit or otherwise
agreed with City, (ii) emergency maintenance reasonably necessary to preserve
the security or integrity of the Services, (iii) unavailability caused by City, its
Users, City Data, or systems, networks, devices, or third-party services not
provided or controlled by Provider, (iv) failures of public internet or
telecommunications infrastructure outside Provider’s control, and (v) force
majeure events described in Section 12 of the Agreement. If Availability in a
calendar month falls below 99.5%, City may request, within thirty (30) days after
the end of that month, a service credit against the next invoice equal to two
percent (2%) of the monthly subscription fee if Availability is at least 99.0% but
less than 99.5%; five percent (5%) if Availability is at least 97.0% but less than
99.0%; and ten percent (10%) if Availability is less than 97.0%. Service credits in
any calendar month shall not exceed ten percent (10%) of the monthly
subscription fee and, together with the termination right in Section 15(d) of the
Agreement, are City’s primary remedy for any failure to meet the Availability
commitment.
b. Severity 1 - Critical. A complete outage of the production Hosted Services, a
confirmed material security event affecting City Data, or an inability to perform
billing or payment functions for which no reasonable workaround exists. Provider
shall acknowledge within one (1) hour during support hours and within two (2)
hours outside support hours, devote continuous commercially reasonable efforts
on a 24x7 basis, target delivery of a workaround within eight (8) hours of
acknowledgment, and target restoration of critical functionality within twenty-four
(24) hours of acknowledgment. The response and restoration times stated in this
Section 7 are targets based on commercially reasonable efforts and are not
guarantees or warranties.
c. Severity 2 - High. Material degradation or failure of an important function without
a reasonable workaround. Provider shall acknowledge within four (4) business
hours, target a workaround within two (2) business days, and target resolution
within ten (10) business days..
d. Severity 3 - Standard. A noncritical defect, question, or enhancement request.
Provider shall acknowledge within two (2) business days and shall resolve the
item, provide a mutually acceptable plan, or address it in a future release..
-23-
99999.92017\45401996.1
Error! Unknown document property name.
EXHIBIT B
INSURANCE REQUIREMENTS
1. Insurance. Provider shall not commence work for the City until it has provided
evidence satisfactory to the City it has secured all insurance required under this section. In
addition, Provider shall not allow any subcontractor to commence work on any subcontract until
it has secured all insurance required under this section.
a. Additional Insured
The City of Arcadia, its officials, officers, employees, agents, and volunteers shall
be named as additional insureds on Provider’s and its subconsultants’ policies of commercial
general liability and automobile liability insurance using the endorsements and forms specified
herein or exact equivalents.
b. Commercial General Liability
(i) The Provider shall take out and maintain, during the performance
of all work under this Agreement, in amounts not less than specified herein, Commercial General
Liability Insurance, in a form and with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
Insurance Services Office Commercial General Liability coverage
(Occurrence Form CG 00 01) or exact equivalent.
(iii) Commercial General Liability Insurance must include coverage
for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Contractual Liability with respect to this Contract
(7) Broad Form Property Damage
(8) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured
against another; (3) products/completed operations liability; or (4) contain any other exclusion
contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials,
officers, employees, agents, and City-designated volunteers additional insured status using ISO
endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same
coverage.
(vi) The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to written approval by the City, and
-24-
99999.92017\45401996.1
Error! Unknown document property name.
provided that such deductibles shall not apply to the City as an additional insured.
c. Automobile Liability
(i) At all times during the performance of the work under this
Agreement, the Provider shall maintain Automobile Liability Insurance for bodily injury and
property damage including coverage for owned, non-owned and hired vehicles, in a form and with
insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01 covering automobile liability
(Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials,
officers, employees, agents and City designated volunteers additional insured status.
(iv) Subject to written approval by the City, the automobile liability
program may utilize deductibles, provided that such deductibles shall not apply to the City as an
additional insured, but not a self-insured retention.
d. Workers’ Compensation/Employer’s Liability
37. Provider certifies that he/she is aware of the provisions of Section 3700 of the California
Labor Code which requires every employer to be insured against liability for workers’
compensation or to undertake self-insurance in accordance with the provisions of that code, and
he/she will comply with such provisions before commencing work under this Agreement.
38. To the extent Provider has employees at any time during the term of this Agreement, at
all times during the performance of the work under this Agreement, the Provider shall maintain
full compensation insurance for all persons employed directly by him/her to carry out the work
contemplated under this Agreement, all in accordance with the “Workers’ Compensation and
Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory
thereof, and Employer’s Liability Coverage in amounts indicated herein. Provider shall require all
subconsultants to obtain and maintain, for the period required by this Agreement, workers’
compensation coverage of the same type and limits as specified in this section.
e. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Provider shall
maintain professional liability or Errors and Omissions insurance appropriate to its profession, in
a form and with insurance companies acceptable to the City and in an amount indicated herein.
This insurance shall be endorsed to include contractual liability applicable to this Agreement and
shall be written on a policy form coverage specifically designed to protect against acts, errors or
omissions of the Provider. “Covered Professional Services” as designated in the policy must
specifically include work performed under this Agreement. The policy must “pay on behalf of” the
insured and must include a provision establishing the insurer's duty to defend.
f. Privacy/Network Security (Cyber)
At all times during the performance of the work under this Agreement, the Provider shall
maintain privacy/network security insurance for: (1) privacy breaches, (2) system breaches, (3)
denial or loss of service, and the (4) introduction, implantation or spread of malicious software
code, in a form and with insurance companies acceptable to the City.
-25-
99999.92017\45401996.1
Error! Unknown document property name.
g. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/$4,000,000
aggregate for bodily injury, personal injury,
and property damage
Automobile Liability $1,000,000 per occurrence for bodily injury
and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors
and omissions)
Cyber Liability $1,000,000 per occurrence and aggregate
(ii) Defense costs shall be payable in addition to the limits.
(iii) Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as Additional Insured pursuant to this Agreement.
h. Evidence Required
Prior to execution of the Agreement, the Provider shall file with the City evidence
of insurance from an insurer or insurers certifying to the coverage of all insurance
required herein. Such evidence shall include original copies of the ISO CG 00 01
(or insurer’s equivalent) signed by the insurer’s representative and Certificate of
Insurance (Acord Form 25-S or equivalent), together with required endorsements.
All evidence of insurance shall be signed by a properly authorized officer, agent,
or qualified representative of the insurer and shall certify the names of the insured,
any additional insureds, where appropriate, the type and amount of the insurance,
the location and operations to which the insurance applies, and the expiration date
of such insurance.
i. Policy Provisions Required
(i) Provider shall provide the City at least thirty (30) days prior written
notice of cancellation of any policy required by this Agreement, except that
the Provider shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of the premium. If any
of the required coverage is cancelled or expires during the term of this
Agreement, the Provider shall deliver renewal certificate(s) including the
General Liability Additional Insured Endorsement to the City at least ten
(10) days prior to the effective date of cancellation or expiration. If such
coverage is cancelled or reduced, Provider shall, within ten (10) days after
receipt of written notice of such cancellation or reduction of coverage, file
with the City evidence of insurance showing that the required insurance
has been reinstated or has been provided through another insurance
company or companies.
-26-
99999.92017\45401996.1
Error! Unknown document property name.
(ii) The Commercial General Liability Policy and Automobile Policy
shall each contain a provision stating that Provider’s policy is primary
insurance and that any insurance, self-insurance or other coverage
maintained by the City or any named insureds shall not be called upon to
contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the
Effective Date of this Agreement. Provider shall maintain such coverage
continuously for a period of at least three years after the completion of the
work under this Agreement. Provider shall purchase a one (1) year
extended reporting period A) if the retroactive date is advanced past the
Effective Date of this Agreement; B) if the policy is cancelled or not
renewed; or C) if the policy is replaced by another claims-made policy with
a retroactive date subsequent to the effective date of this Agreement.
(iv) All required insurance coverages, except for the professional
liability coverage, shall contain or be endorsed to provide waiver of
subrogation in favor of the City, its officials, officers, employees, agents,
and volunteers or shall specifically allow Provider or others providing
insurance evidence in compliance with these specifications to waive their
right of recovery prior to a loss. Provider hereby waives its own right of
recovery against City and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with respect to
the limits of liability. Further the limits set forth herein shall not be construed
to relieve the Provider from liability in excess of such coverage, nor shall it
limit the Provider’s indemnification obligations to the City and shall not
preclude the City from taking such other actions available to the City under
other provisions of the Agreement or law.
j. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum
requirements:
(1) Each such policy shall be from a company or companies
with a current A.M. Best's rating of no less than A: VII and admitted
to transact in the business of insurance in the State of California or
otherwise allowed to place insurance through surplus line brokers
under applicable provisions of the California Insurance Code or any
federal law.
k. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Provider, and any approval of said insurance
by the City, is not intended to and shall not in any manner limit or qualify
the liabilities and obligations otherwise assumed by the Provider pursuant
to this Agreement, including, but not limited to, the provisions concerning
indemnification.
-27-
99999.92017\45401996.1
Error! Unknown document property name.
(ii) If at any time during the life of the Agreement, any policy of
insurance required under this Agreement does not comply with these
specifications or is canceled and not replaced, City has the right but not the
duty to obtain the insurance it deems necessary and any premium paid by
City will be promptly reimbursed by Provider or City will withhold amounts
sufficient to pay premium from Provider payments. In the alternative, City
may cancel this Agreement.
(iii) The City may require the Provider to provide complete copies of all
insurance policies in effect for the duration of the Project.
(iv) Neither the City nor the City Council, nor any member of the City
Council, nor any of the officials, officers, employees, agents or volunteers
shall be personally responsible for any liability arising under or by virtue of
this Agreement.
l. Subconsultant Insurance Requirements. Provider shall not allow any
subcontractors or subconsultants to commence work on any subcontract until they
have provided evidence satisfactory to the City that they have secured all
insurance required under this section. Policies of commercial general liability
insurance provided by such subcontractors or subconsultants shall be endorsed
to name the City as an additional insured using ISO form CG 20 38 04 13 or an
endorsement providing the exact same coverage. If requested by Provider, City
may approve different scopes or minimum limits of insurance for particular
subcontractors or subconsultants.