Arcadia City Council
October 20, 2026

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 exten sions. It is further recommend ed 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

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 pric e 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 S olutions 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

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 C ity 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

subsequent approval, provided that any changes to the financial terms stay within standard inflationary limits.

Attachment: Proposed Agreement

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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 descri bed 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 Requi rements”). 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 modi fy 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 grant ed, and Provider does not convey, any perpetual, fully paid, or irrevocable license, any copy of t he 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 Ci ty with implementation, installation, project management, and training services in connection wi th 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.
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4. Document Format and Accessibility Requireme nts. In accordance with the Americans with Disabilities Act, the user interfaces of the Host ed 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-t o-exceed amount excludes (i) third-party payment gateway, payment-processing, interchang e, 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.
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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 overal l 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.
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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 Informati on” means nonpublic City Data, security information, credentials, and other information identified as confidential or reasonably understood to be confidential. Provider shall use City’s C onfidential 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.
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15. Warranty
a. Software Warranty. Provider warrants that, throughout the Term, the Hosted Services will conform in all material res pects 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 Provid er 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 reli ed 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-
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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 AGREEMEN T, 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 LIM ITS PROVIDER’S OBLIGATIONS UNDER SECTIONS 21 AND 23.
g. Risk of Exposure. CITY RECO GNIZES 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 earli er 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-
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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.” Prov ider 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, upgr ades, 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 circ umstances. 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-
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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 li ability 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 Functi onal 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 shal l 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 material ly 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-
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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 terminat ion 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, offi cials, agents, and employ ees (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 ot her 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-
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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 Prov ider 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-
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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 st atus 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-
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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, SOFT WARE, SYSTEMS, OR NETWORKS NOT CONTROLLED BY PROVIDER. MULTIPLE CLAIMS SHALL NOT ENLARGE THESE LIMITS.
b. Exclusion of Damages. EXCEPT FO R 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 ob ligations 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 Agreem ent 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.
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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]
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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***]

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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-
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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.
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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-
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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-
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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-
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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-
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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. Provi der 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-
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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..

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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 insuranc e 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 ma y utilize either deductibles or provide coverage excess of a self-insured retenti on, subject to written approval by the City, and -24-
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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 Automobi le 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 Num ber 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 specific ally 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-
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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.
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(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.
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(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.