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HomeMy WebLinkAboutAgenda Report - March 15, 2023 C-07CITY OF 'A �■� ��.w a 14 a CALIFORNIA COUNCIL COMMUNICATION AGENDA ITEM C-7 AGENDA TITLE: Adopt a Resolution Authorizing City Manager to 1) Execute a 5 -Year Agreement with Smart Energy Systems, Inc. of Irvine (dba Smart Energy Water) for Customer Web Portal Solution ($631,500); and 2) Execute 5 -Year Agreement with iPaySmart, Inc. of Las Vegas, NV for Payment Services ($3,919,307) MEETING DATE: PREPARED BY March 15, 2023 Revenue Manager RECOMMENDED ACTION Adopt a Resolution Authorizing City Manager to 1) Execute a 5 -Year Agreement with Smart Energy Systems, Inc. of Irvine (dba Smart Energy Water) for Customer Web Portal Solution ($631,500); and 2) Execute a 5 - Year Agreement with iPaySmart, Inc. of Las Vegas, NV for Payment Services ($3,919,307) BACKGROUND INFORMATION: The Revenue Division is responsible for collecting payments for the City of Lodi. Utility payments and general invoices are currently accepted via online, kiosks, interactive voice response, drop-off box, and U.S. mail. The current online platform only takes payments and does not provide an ap based customer service platform. Along with the Revenue Division, Electric Utility and Public works receive customer calls often because of high bills.Smart Energy Water (SEW) Customer Service and iPaySmart Payment online platform will provide customers with more comprehensive information about their account, payment options, and customer service help by giving the customer the following in an ap based format: graphs for water and electric usage, the ability to update account information, online chats with Bot or Customer Service Representatives, high usage notifications, and electric vehicle information. Payment sources include an online service, point of sale, phone, and kiosk. Al Chatbot is a 24 hours service that will give customers answers to simple questions. The chat will be forwarded to a live Customer Service Representative during working hours if the question is outside the Chatbot program. The added features will give customers the tools to understand usage and lessen calls and office visits. Customers will have the ability to pay their bills and update any information all with one online platform. With the payment and added customer service features, the cost of the new platform will be less than the current payment platform. The estimated cost savings will be $225,000 over 5 years. APPROVED: ,1,-onIMar 1.2023MrJ4PST) Stephen Schwabauer, City Manager CC Transaction Fee ACH Transaction Fee $0.65 $0.75 $0.03 $0.025 $0.68 $0.775 $0.1.5 $0.10 $0.53 $0.68 ACH Return Fee $6.00 $4.50 $10.50 $1.00 $9.50 Chargeback Fees $15.00 $5.00 $20.00 $5.00 $15.00 IVR Fees $0.65 2,909,239 $100 Per Month $0.10. $0.00 $0.55 $100.00 Portal Access Fee $100 Per Month Cloud Access Fee $100 Per Month 511,200 $100 Per Month $0.00 $100.00 Total Savings ($225,778.22) Staff proposes a contract for 5 years using Smart Energy Systems, Inc., customer service platform, and iPaySmart, Inc., payment platform, to improve the customer experience online in the amount of $3,919,307 actual costs will be based on the number of transactions processed by both Smart Energy Systems, Inc. and iPaySmart, Inc. YEAR SEW 1 2 3 4 5 Total Txn Fees/Costs (CC, ACH, 10% annual growth is included Interchange) 476,526 524,179 576,596 634,256 697,682 2,909,239 Annual Costs 156,800 88,600 88,600 88,600 88,600 511,200 Service Growth 600 600 600 600 6001 3,000 Conti ngencyJFuture 50000 50000 50000 50000 50000 250,000 ACH Return Fees 204 204 204 204 204 1,020 Charge Back Fees 720 720 720 720 720 3,600 IVR Fees (taking pmts) 369.6 369.6 369.6 369.6 369.6 1,848 Portal Access Fee 0 0 0 0 0 225,000 Cloud Access Fee 0 0 0 0 0 - POS Cost (one time cost to buy with replacement cost) 8400 600 600 9,600 POS Printers (one time cost to buy with replacement 4200 300 300 4,800 Kiosk 45000 450OOr 45000 45000 450001 225,000 3,919,307 Total Savings ($225,778.22) Staff proposes a contract for 5 years using Smart Energy Systems, Inc., customer service platform, and iPaySmart, Inc., payment platform, to improve the customer experience online in the amount of $3,919,307 actual costs will be based on the number of transactions processed by both Smart Energy Systems, Inc. and iPaySmart, Inc. YEAR CurrentCosts 1 2 3 4 5 Total Txn Fees/Costs (CC, ACH, 10% annual growth is included Interchange) 593,808 653,189 718,508 790,358 869,394 3,625,257 ACH Return Fees 2142 2142 2142 2142 2142 10,710 Charge Back Fees 2880 2880 2880 2880 2880 14,400 IVR Fees (takingpmts) 2402.4 2402.4 2402.4 2402.4 2402.4 12,012 Portal Access Fee 1200 1200 1200 1200 1200 6,000 Cloud Access Fee 1200 1200 1200 1200 1200 6,000 POS Cost Rentals & Fees 39366 43740 48600 54000 60000 245,706 Kiosks 45000 45000 45000 45000 450001 225,000 4,145,085 Total Savings ($225,778.22) Staff proposes a contract for 5 years using Smart Energy Systems, Inc., customer service platform, and iPaySmart, Inc., payment platform, to improve the customer experience online in the amount of $3,919,307 actual costs will be based on the number of transactions processed by both Smart Energy Systems, Inc. and iPaySmart, Inc. FISCAL IMPACT: Costs for SEW Inc„ and iPaySmart, Inc. services are paid by the utilities for which online payments are collected. Approximately 14% of the cost is a General Fund expense. Appropriations will be needed to cover the costs of the upfront costs in the amount of $183,950.00 FUNDING AVAILABLE. Fiscal Year 2022/23 account number Appropriations 10020203.72312 5% $ 33,850.00 50060001.72312 47% $ 43,650.00 53053001.72312 14% $ 38,750.00 56052001.72312 25% $ 33,850.00 10050001.72312 9% $ 33,850.00 Total $ 183,950.00 Fiscal Year 2023/24 account number 10020203.72312 5% $ 38,105.00 50060001.72312 47% j $ 245,090.00 53053001.72312 14% $ 84,280.00 56052001.72312 10050001.72312 25% 9% Total $ 133,790.00 $ 57,339.00 $ 558,604.00 Fiscal Year 2024/25 account number 10020203.72312 5% $ 60,188.00 50060001.72312 47% $ 290,687.00 53053001.72312 14% $ 112,381.00 56052001.72312 10050001.72312 25% 9% Total $ 165,280.00 $ 81,209.00 $ 709,745.00 Fiscal Year 2025/26 account number 10020203.72312 50060001.72312 53053001.72312 56052001.72312 10050001.72312 5% $ 62,808.00 47% $ 315,319.00 14% $ 119,719.00 25% $ 178,387.00 9% $ 85,924.00 Total $ 762,157.00 Fiscal Year 2026/27 account number 10020203.72312 5% $ 65,870.00 50060001.72312 47% $ 342,600.00 53053001.72312 14% $ 127,971.00 56052001.72312 25% $ 192,980.00 10050001.72312 9% $ 91,296.00 Total $ 820,717.00 Fiscal Year 2027/28 account number 10020203.72312 5% $ 69,045.00 50060001.72312 47% $ 372,411.00 $ 136,846.00 53053001.72312 14% 56052001.72312 25% $ 208,835.00 10050001.72312 9% $ 96,997.00 Total $ 884,134.00 O Andrew Keys Deputy City Manager/Internal Services Director Order Form for Smart Energy Water SaaS and Cloud Subseriatlon Between Smart Energy Systems, Inc. dba Smart Energy Water 15495 Sand Canyon Avenue, STE 100 Irvine, CA 92618 ("SEW") And City of Lodi 221 W Pine Street P.O. Box 3006 Lodi, CA 95241-1910 ("Customer") 1. Order Form This Order Form or Agreement, as issued by SEW, shall constitute an offer made by SEW to a Customer. When signed and returned to SEW by Customer, it shall become a binding agreement for the SEW Cloud Service(s) or other Services listed in this Order Form and effective on the date signed by Customer. This Order Form is governed by and incorporates the Terms and Conditions attached hereto, including all referenced Appendices. 2. SEW Platform Modules and Service(s) The table below shows the purchased SEW Platform(s) and associated Service(s) thereof, purchased number of user licenses, initial subscription term, and fees, which shall be listed and selected by Customer below and subject to the Terns and Conditions which govern this Agreement. Product Code Product Name Smart Custaehor Mobile (SCMG)) — Mass Market Persona SCM -10 -Web Customer Web Portal SCM -10 -Mobile Customer Mobile A s(iOS & Android) SCM -10-1 SCM — My Account SCM -10-2 SCM — Billing SCM -10-3 SCM — Usage SCM -10-6 SCM — NotiRcations ® SCM -10-7 SCM — Service SCM -10-6 SCM - Connect Me SCM -10-9 SCM - Efficient / Conservation SCM -10-11 SCM -Electric Vehicle Support S Maintenance SuP-1 Standard 5u ort Plan 3. Subscriptions, Term, and Fees The number of subscribers listed below represents the committed number of subscriptions authorized to utilize the SEW Cloud Service(s). Additional subscriptions may be purchased at an additional cost by contacting your local SEW representative or sending a request to contracts@sew.ai i — Annual Product Subscription Metric # of Subscriptions Subscription Fee ® SCM® Mass Market Persona Number of Accounts 31,000 Electric $19,600 I 27,000 Water SCM® Customer Seryice I Admin Number of Administrators/ Utility ® Portal Users 20 Included Term Total Fee for Section 3 Payment Conditions for Tern Total fee due upon signing and invoiced in five (5) installments: On the Effective Date. Five $98,000 Upon the 1a anniversary of the Effective Date Years ($19,600 annually) Upon the 2nd anniversary of the Effective Date Upon the Yu anniversary of the Effective Date • Upon the 41h anniversary of the Effective Date The term of this Agreement commences on the Effective Date (below) and continue for five years as set forth in Section 3 above, unless earlier Page 1 terminated in accordance with this Agreement. The fees for additional services purchased under Section 4 and 5 shall be invoiced separately under the respective terms of such service. 4. Notification Subscriptions The table below shall display the SEW Notification Service(s) selected to be purchased by Customer, subject to the SEW Notification Services Terms and Conditions (below). ® EMAIL MESSAGING SERVICE Service Type Description Price (USD) Description Number of Emails ® Included Standard: Up to 150,000 Emails/Month ❑ Premium: $1500 / Month Premium: Up to 1,000,000 Emails/Month ❑ Premium Pro: $2400 / Month Premium Pro: Up to 4,000,000 Emails/Month Elite: $3500/ Month Elite: Exceedina 4,000,000 Emails/Month Email Volume SLA Setup fees Annual Service Maintenance & Support ® Included Standard: Up to 10 Emails/Sec ❑ Premium: $125 / Month Premium: Up to 50 Emails/Sec ❑ Premium Pro: $187 / Month Premium Pro: Up to 100 Emails/Sec ❑ Elite: $245 / Month Elite: Up to 200 Emails/Sec ❑ Enterprise: $478 / Month Enterprise: Up to 500 Emails/Sec Waived Enterprise: Up to 200 MessageslSec/Short Code Waived for Initial Term Code ❑ TEXT MESSAGING SERVICE Service Type ® Random Short Code ❑ Vanity Short Code SMS Volume SLA One-time Initial Setup Annual Service Maintenance & Support "Monthly fee paid annually upfront Price (USD) Description $1,400 / Month per Short Code Number of codes: 1 $1,900/Month per Short Code Number of codes: ® Included Standard: Up to 5 Messages/Sec/Short Code ❑ Premium: $286 / Month / Short Premium: Up to 25 Messages/Sec/Short Code Code _ ❑ Premium Pro: $442 / Month/ Premium Pro: Up to 50 Messages/Sec/Short Code Short Code ❑ Elite: $6891 Month / Short Code Elite: Up to 100 Messages/Sec/Short Code ❑ Enterprise: $947 / Month / Short Enterprise: Up to 200 MessageslSec/Short Code Code Waived i Waived for Initial Term ® WESMART CHAT S BOT SERVICES Service I- - WeSmart Advanced Chatbot ® WeSmart Live Agent Chat ® Live Agent Add-on for agent hand-off 5. Other Add-on Subscriptions Price (USD) Annual Fee - $7,500 / Year One-time Implementation Fee - $19,000 Annual Fee - $3,500 / Year One-time Implementation Fee - $6,500 Number of Agents: 5 Agent/-250:$1,140annual (S95/agent/month_=$5.700Annual Page 2 SEW additionally offers the following add-on, a la carte, or individual Subscriptions, which can be selected by Customer below, subject to the Terms and Conditions which govern this Agreement and shall be billed annually upfront. For Year 1, the fees shall be due upon signing. Thereafter, they shall be billed and due on the anniversary of the Effective Date. Description Comments / Additional Terms Count / Description S. Acceptance and Authorization City of Lodi Signature: Name: Stephen Schwabauer Title: City Manager Effective Date: APPROVED AS TO FORM: JANICE D. MAGDICH, City Attorney By ATTEST: OLIVIA NASHEI1 City Clerk Appendix A: SEW Software -as -a -Service Subscription Terms Appendix B: SEW Notification Services Agreement Appendix C: Data Retention Policy Appendix D: Insurance Requirements Languages Selected: Spanish, Punjabi Extension of data retention is in reference to the table listed in "Data Retention Policy" in Appendix C One (1) Day (8 Hours) Blocks of Onsite Training (There will be additional travel expenses (including normal travel items like taxi, Bight, lodging, meals) basis the number of trips and days) ;rm Smart Energy Water Signature: Name: Harman Sandhu Title: President Date: Page 3 Support and Deployment of Platform in Additional Language Pack Additional Languages ® $4,500 annually per language Translations to be provided and approved by Client. Pricing provided shall be per Order QTY 2 = $9,000 annually Language/Translation basis Number of additional languages: 2 EXD-01-A Extended Data Storage + Data -As -a -service ® $3,700 annually (Extends the data retention period in active production environment) Onsite Training Conducted in the "Train -the -Trainer" ® $1,750 per day Format. Additional hours may be purchased as necessary. Expenses and materials Order QTY 2 = $3,500 incurred for training to be billed at actual costs The total for services under this Order Form shall not exceed $631,500 over the 5 -year Ti fees S. Acceptance and Authorization City of Lodi Signature: Name: Stephen Schwabauer Title: City Manager Effective Date: APPROVED AS TO FORM: JANICE D. MAGDICH, City Attorney By ATTEST: OLIVIA NASHEI1 City Clerk Appendix A: SEW Software -as -a -Service Subscription Terms Appendix B: SEW Notification Services Agreement Appendix C: Data Retention Policy Appendix D: Insurance Requirements Languages Selected: Spanish, Punjabi Extension of data retention is in reference to the table listed in "Data Retention Policy" in Appendix C One (1) Day (8 Hours) Blocks of Onsite Training (There will be additional travel expenses (including normal travel items like taxi, Bight, lodging, meals) basis the number of trips and days) ;rm Smart Energy Water Signature: Name: Harman Sandhu Title: President Date: Page 3 A_poandix A SEW Software -aa -s- Sorvice_Sybscrfatlon Terms Smart Energy Systems, Inc. dba Smart Energy Water ('Provider' or "SEWJ has developed certain proprietary software applications, and the Parties have agreed that Provider will make the software -as -a -service platform(s) set forth on the Order Form attached hereto (the "Software') available via the Internet to the Customer hereunder Therefore, in consideration of the mutual covenants, terms, and conditions set forth below and in any relevant exhibits or documents, the adequacy of which is hereby acknowledged, the Parties agree as follows: 1 DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement 1 1 'Agreement" means these SEW Software -as -a -Service Subscription Terms & Conditions, including any applicable Order Form 1 2 'Customer Dala" means the data uploaded orotherwise Input by Customer andforSubscribers into the Software. 1 3. 'Documentation" means the Software's standard user manuals and any other accompanying documents related to the Software, in each case, that are delivered by SEW to Customer during Implementation 14 'Feedback" means any suggestions, comments for enhancements or functionality or other feedback regarding SEW's products and/or services that are communicated by Customer to SEW 1 5 'Implementation" means the process for gathering requirements, configuring, testing, training, and integrating the Software for Customer's use, as set forth in a Statement of Work 16 'Maintenance and Support' means, unless Customer is subscribing to SEW's Max Support Plan, SEW's maintenance and support performed in accordance with SEW's then - current Standard Support Plan (a copy of which will be provided to Customer upon request) 1.7 'Order Form" means an Osier Form for Smart Energy Water Cloud Services executed between SEW and Customer. 1 8 'Software" means the SEW software that Customer has subscribed to as identified in an applicable Order Form. 1 9. 'Specifications" means SEW's specifications for the Software. 1 10 'Statement of Work' means a statement of work that (a) expressly references, and is governed by, this Agreement, (b) is executed by an authorized representative of each party and (c) sets forth, at a minimum, the Services to be performed by SEW and the related fees to he paid by Customer in consideration thereof 1 11 'Subscribers" means an active account registered with the Customer to use the Software, either from a preexisting account of Customer or as associated with an active utility meter, as set forth In an applicable Order Form 2 SOFTWARE DELIVERY. 21+moi ht tpan�i less Soitwa« Subject to the terms and conditions of this Agreement, SEW hereby grants Customer non-exclusive, non-sublicensable, non -transferable, Amsted right to access and use the Software for Customer's business purposes 22 F3p1ktpfiqi_W_9n SotbyE_ptag Customer will not permit any third pares fo access and use the Software other then Subscribers Customer will not permit Subscribers in excess of the cap set forth in the applicable Order Form to access or use the Software Custemerwill be responsible and liahle for all Subscribers' compliance with the terms and conditions of this Agreement Customer will not: (a) modify, translate or create derivative works from the Software; (b) allow third parties to exploit the Software; (c) reverse engineer, decompile, or attempt to derive any of the Software's source code, object code or underlying structure, ideas or algorithms of the Software; (d) remove or modify any program markings or any notice of SEW's proprietary rights; (e) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Software; (f) use the Software for timesharing or service bureau purposes or otherwise for the benefit of a Ihird party; or (g) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Software or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Software and notify SEW promptly of any such unauthorized access or use, and (ii) use the Software only in accordance with the Documentation and all applicable laws, rules and regulations 3 UPDATES AHD SERYtQE BEVELS. 31. Pr f UDdming anr4 Nta.rntenonce SEW will provide regular Maintenance and Support, Ind uding by making available to Customer any modifications, bug -fixes, or seourity updates to the Software that SEW generally makes available to its customers, for no additional fee ("Updates") "Software" or defined herein will incorporate any Updates, as well as any custom upgrades provided to Customer pursuant to a Statement of Work as contemplated herein. 32 Service Level Aya4abrh : SEW will use commercially reasonable efforts to make the Software available in accordance with the Availability Service Level Agreement ("SLA") stated hereunder. SEW will provide Availability (as defined below) of at least 99 5% each month as calculated below "Availability" is calculated as follows: Availability = ([# of minutes in month] -1# of minutes per month the Software is Unavailable])/1# of minutes in month] "Unavailable" means the Software is not available for access and use through Customer's Internet connection, excluding any performance issues: (t) caused by factors outside of SEW's reasonable control, including any force majeure event or Internet aocess or related problems beyond the demarcation point of SEW; (ii) that result from any actions or inactions of Customer or any third party; (I ii) that result from Customers equipment, softwere or other technology andlor third -party equipment, software or other lechnotogy (other than third -party equipment within SEW s direct control); (iv) that result from any planned maintenance as described in lhIs Agreement or (v) arlsing from SEWS suspension or termination of Customer's right to use the Software. 4 FEES. 41 Fees. Fees shall be based upon the SEW Platform(s), modules, number of Subscribers, and Services selected from the Order Form and the pricing stated therein Customer agrees to make all payments to SEW within thirty (30) calendar days after receipt of invoice. Invoices shall be dated and provided to Customer electronically on the invoice date If Customer's account is sixty (60) days or more overdue, SEW reserves the right with prior written notice to withhold performance of its obligations under this Agreement, without liability, until such payments are paid in full, or to terminate for cause Fees under this Agreement shall additionally be exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for all applicable taxes, levies, or duties hereunder 5 INTE-LECTLIAL PROPERTY RIGHTS. 5 1 Gu&tpfner t]a_t_a. As between SEW and Customer, Customer owns the Customer Date Customer hereby grants to SEW: (a) a non-exclusive, worldwide, royalty -free, fully paid up, non- sublicense ble (except to ovnVactora and service SEWS providing services on behaIF of SEW), non-Iransferable (subject to Secllon 12 3) right and license to copy, distribute, display, create derivative wafks of and otherwise use the Customer Data (I) to perform Its obligations under this Agreement, (it) to Intemally improve Its products and services and (I 11) to create aggregated andlor anonymized data from such Customer Data (the "Aggregated Data'); and (b) a non-exclusive, perpetual, irrevocable, worldwide, royalty -free, fully paid up. sublicensable (through multiple tiers), transferable right and license to copy, d[aid bute, display, create derivative works of and otherwise use the Aggregated Data. Customer reserves any and all right, tide and interest in and to the Customer Data other than the rights and licenses expressly granted to SEW in this Section 5.1 52 Softwo re SEW retains all right, title, and interest in and to the Documentation and Software, as well as any related modifications, improvements, methodologies, techniques, processes, and instruction developed by SEW arrd used in ltie course of performing the Services (collectively "SEW IP"). Nothing In this Agreement will be construed to grant Customer any ownership in the SEW IP Customer recognizes that the Software and its components are protected by copyright and other laws SEW grants no, and reserves any and all, rignts other than the rig his expressly gran led to Customer under Ihls Agreement with respect to the Software. 53 Fgr_§Wk. Customer hereby granlS SEW a perpetual, irrevocable, unrestricted, worldwide license to use any Feedback, without compensation or any obllgation to report on such use, and without any other restriction Such rights win include, without limitation, the right to exploit Feedback in any way and the right to grant sublicenses (through multiple tiers) Notwithstanding the provisions of Article 6 (Confidential Information) below, Feedback will not be considered Customer's Confidential Information Page 4 B CONFIDENTIAL INFORMATION. 61 Cortridang7l Inlgrmatia+, P r. "Confidential Information" refers to the following types of material or content one party to this Agreement ("Discloser) discloses to the other ('Reclplent"): (a) any information Discloser marks or designates as "Confidential" at the time of disclosure; and (b) any other nonpublic, sensitive Information disclosed by Discloser including, but not limited to code, inventions, know-how, business, technical, and financial information, or other information which should reasonably be known by the Recipient to be confidential at the time it is disclosed, due to the nature of the information and the circumstances surrounding such disclosure Notwithstanding the foregoing, Confidential Information does not Include information that: (i) is in Recipient's possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or Inaction; or (iv) is rightfully obtained by Recipient from a third party without breach of any confidentiality obligations 8.2 Recipient will not use Confidential Information of the Discloser for any purpose other than to exercise its rights or perform its obligations under this Agreement (the'Purposel Recipient: (a) will not disclose Confidential Information ofthe Discloser to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a written agreement with Recipient with terms no less restrictive than those of this Article 6; and (b) will not disclose Confidential Information of the Discloser to any other third party without Discloser's prior written consent Recipient will protect Confidential Information of the Discloser with the same degree of care it uses to protect its own confidential information of a similar nature, but with no less then reasonable care Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information of the Discloser that comes to Recipients attention Notwithstanding the foregoing, Recipient may disclose Confidential Information of the Discloser as required by applicable law or by proper legal or governmental authority Recipient will give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effortto seek a protective order or otherwise to contest such required disclosure, at Discloser's expense 63 ln'UnChon Recipient agrees that breach of this Article 6 may cause Discloser irreparable injury, for which monetary damages maybe inadequate, and in addition to any other remedy, Discloser will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage. 64 7Trm_iq@�pm A Relynr Upon expiration or termination of this Agreement, Recipient will return to the Discloser all copies (excepting one (1) copy archived for purposes of Recipient's back-up processes) of Confidential Information of the Discloser or certify, in writing, the destruction thereof 6 5l n ry f�rphl This Agreement does not transfer ownership of Confidential Information or grant a license or any other right thereto Discloser will retain all right, title, and interest in and to all of its Confidential Information 7 DATA PRIVACY 4iSECURITY. 71 Dala Security Each party will be responsible for establishing and maintaining its own data privacy and information security policies, including physical, technical, administrative, and organizational safeguards to ensure the security and confidentiality of Customer Data; protect against any anticipated threats or hazards to the security of Customer Data; protect against unauthorized disclosure, access to, or use of Customer Data; ensure the proper disposal of Customer Data; and ensure that all employees, agents, and subcontractors, if any, comply with the above SEW agrees to provide the City with data privacy, information security and cyber security policies upon request. 8 REPRESENTATIONS & WARRANTIES. 81 From SEW. (a) Rg: Fun rqn. SEW represents and warrants that, during the Tern, the Software will perform materially in accordance with the Software Specifications (b) Re: Intellectual Property Rights in the Software SEW represents and warrants that it owns the Software and has the power and authority to grant the rights in this Agreement without the further consent of any third party In the event of a breach of the warranty in this Section 81(b), SEW, at its own expense and election, will promptly take the following actions: (1) secure for Customer the right to continue using the Software; (ii) replace or modify the Software to make it non -infringing, provided such modification or replacement will not materially degrade any functionality listed In the Specifications; or (iii) refund the prorated SaaS subscription fee paid for the Software for every month remaining in the Term, following the date after which Customer is required to cease use of the Software In conjunction with Customer's right to terminate for breach where applicable and the provisions of Section 91 below (Indemnified Claims), the preceding sentence states SEW's sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Section 81(b) and for potential or actual infringement by the Software SEW's representations and warranties herein will not apply to the extent any infringement arises out of any conditions listed in Section 9 1 (a) -9 1(f) below 62 From Bo)n PaELi?,s. Each party represents and warrants that (a) It has the full right and authority to enter Into, execute, and perform its obligations under this Agreement, (b) no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required hereunder, (c) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties 8.3. vVarrorsly iirsClarrnrus Except for the express warranties in Sections 8 1 and 8 2 above, SEW MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE SEW does not warrant that the Software will perform without error or that it will run without immaterial interruption. SEW provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than SEW, unless SEW approves such modification in writing; or (b) use of the Software in combination with any operating system, hardware, software, or other third -party materials not authorized or specifically forbidden in the Specifications or Documentation 9. INDEMNIFICATION. 91 Indemnirwlion by M SEW will defend and indemnify Customer and its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns against any settlement amounts, damages, liabilities, costs and expenses (including reasonable attomeys' fees) (collectively, "Liabilities") that are payable to any third party or incurred by Customer arising from any third -party claim, suit, or proceeding arising out of an allegation that Customer's authorized use of the Software infringes or misappropriates a third party's intellectual property rights SEW's obligations set forth in this Section 9.1 do not apply to the extent that any claim arises out of: (a) CUat6mer'8 breach of this Agreement; (b) revisions to the Software made without SEW's written consent; (c) Customer's failure to incorporate Upgrades that would have avoided the alleged infringement, provided SEW offered such Upgrades without charges not otherwise required pursuant to this Agreement; (d) SEW's modification of Software in compliance with Customer's specifications; (e) unauthorized use of the software by third parties; or (f) use of the Software with hardware or software not provided by or approved of by SEW. 92 !ng"n r _ t!Q_nl]y ruslgrnce Customer will indemnify, defend and hold SEW and its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns against any Liabilities that are payable to any third party or incurred by SEW arising from any third -party claim, suit, or proceeding arising out of (a) SEW's authorized use of the Customer Data or (b) any use of the Software by Customer and/or its Subscribers in violation of this Agreement 93 Indemn yGauon Procedure If an indemnified party becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2, as applicable, involving any claim, action, suit, investigation, arbitration, or other proceeding against the indemnified party by any third party (each an "Action"), the indemnified party will give the other party prompt written notice of such Action The indemnified party will cooperate, at the expense of the indemnifying party, with the indemnifying party and its counsel in the defense and the indemnified party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed 10 LIMITATION OF LIABILITY. 101 Lpabih y Ca . UNDER NO CIRCUMSTANCES WILL SEWS LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS) EXCEED THE INSURANCE LIMITS SET FORTH IN APPENDIX D FOR THE APPLICABLE POLICY, AND IF THE CLAIM IS NON - INSURABLE, SEW'S LIABILITY WILL BE LIMITED TO THE HIGHEST INSURANCE LIMIT AMOUNT LISTED IN APPENDIX D 102 )=ltclusrom o1 _QQK4 nfgn1ra.? Damage- IN NO EVENT WILL SEW BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS OR LOST REVENUE, ARISING OUT OF OR RELATED TO THIS AGREEMENT 10.3 G.Laf.IN4n�91>3gLeir�elg. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; EVEN IF SEW IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE If applicable law limits the application of the provisions of this Section 10, SEW's liability will be limited to the maximum extent permissible by law For the avoidance of doubt, SEW's liability limits apply to SEW's affiliates, SEWS, agents, sponsors, directors, officers, employees, consultants, and other representatives. Page 5 10 4 CxFgpiignlo Lirruteban of L+abirsty The foregoing limitations do not apply to any liability arising from SEW's indemnification obligations under Section 91 above. 11 TERM d. TERMINATION. 11.1 I= The Initial Term of this Agreement shall begin on the Effective Date and continue for five years as stated in the applicable Order Form. 112 Terminplion Customer may terminate Agreament with or wilhout cause, by giving Provider at least ten (10) days written notice Where phases are anticipated within the scope of services, at which an Intomlediate decision is required eonceming whether to proceed turther, Customer may terminate at the conclusion of any such phase Upon termination, 5EW shall be entl tied to payment to the extent work has been performed. Upon termination, SEW shall immediately suspend all work and deliver any documents or work in progress to Customer. Customer has signed up for a 5 -year Term and Provider has applied a Term discount of 40% to the fees If Customer terminates this Agreement prior to the full Term, the Term discount shall not apply, and Customer shall be liable to pay the additional fees for the period of the Agreement starting Effective Date up to date of Termination However, Customer shall assume no liability for costs, expenses or lost profits resulting from services not completed or for contracts entered into by SEW with third parties in reliance upon this Agreement 113 Effm121 of Termrn 1+ n. Upon expiration or termination of this Agreement, Customer will immediately cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control SEW shall similarly delete, destroy, or return all relevant copies of Customer data which may be entitled to preservation based on state or federal data retention requirements. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees Incurred before termination (in addition to any fees owed under Section 113 above, if applicable) and (b) Sections 1, 4, 5, n, 8 3, 9, 10, 11 and 12 12 MISCELLANEOUS, 12.1. In dent Conlracto% The Parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf. 122 Force Malmrro No delay, failure, or default, other than a failure to pay fees, will constitute a breach of this Agreement to the extent caused by causes beyond the performing party's reasonable control or acts of war, terrorism, earthquakes, other acts of God or of nature, strikes or labor disputes, embargoes 123 As nm nt $uccessir _ Customer may not assign this Agreement or any of its rights or obligations hereunder without SEW's written consent. SEW may freely assign this Agreement Except to the extent forbidden herein, this Agreement will be binding upon and inure to the benefit of the Parbea' respective successors and assigns. 124. av rab+lity. To the extent permitted by law, the Parties waive any provision of lawthat would render any clause of this Agreement invalid or unenforceable In the event that a provision herein is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by law, and the remaining provisions of this Agreernenl will continue In full force and effect 12.5. No Waiver. Neither party will be deemed to have waived any of its rights under This Agreement by lapse of time or oy any statement or representation other than by an authorized representative In an explicit written waiver No waiver of a breach hereof will constitute a waiver of any other breach of (his Agreement 126 gl 4S� IuniCla.l7r: This Agreement will be governed by the laws or the State of California, without reference to any conflicts of law principles The Parties consent to the personal and exclusive jurisdlction of the federal and state courts of San Joaquin County, California 127 Conflicts. Should this Agreement conflict with any other agreements, this Agreement will govern 12.8 Construction. The Parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed In favor of or against either party by reason of authorship. 12.9. Business License. Provider acknowledges that Customer requires Provider to have a City of Lodi business license and Provider agrees to secure such license and pay the appropriate fees prior to performing any work hereunder. 12.10. Insurance Requirements. Provider shall take out and maintain during the life of this Agreement, insurance coverage as set forth in Appendix D attached hereto and incorporated by this reference. 1211 Enbre Aoreemenl This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications 12.12, Exmmkyinn In gvnt r arts. This Agreement may be executed in one or more counterparts Each counterpart will be an original, but all such counterparts will constitute a single instrument 1213 iuladlflCaiiop This Agreement may be modified from time to time by SEW, with Customer to be provided notice of no less than thirty (30) days prior to such Terms and Conditions taking effect 12.14. SQC2 Be iorunq_ Provider shall provide the copy of the latest SOC2 Type II report within 80 days of signing of the Agreement and annually thereafter upon completion of annual audit Page 6 A211!10.114 _11 SEW Notification ServirP5 ArrrQemnn! Smart Energy Systems, Inc. dba Smart Energy Water ('Provider" or 'SEW") has developed certain proprietary software applications and services for a Customer, and the Parties have agreed that Provider will make the Services described in the Order Form available to the Customer hereunder Therefore, in consideration of the mutual covenants, terms, and conditions set forth below and in any relevant exhibits or documents, the adequacy of which Is hereby acknowledged, the Parties agree as follows 1. Definitions 1 1 "Monthly Uptime Percentage" shall refer to the difference between 100% and the percentage of time during which the Services are unavailable. 12 "Services" shall refer to notification services for the SCM® Cloud Services platform utilized to establish form(s) of contact between the Customer and end user of the SEW Claud Seryices Platform, which include, but are not limited to, SMS text messaging. email, and interactive voice response (IVR) services 13 'SEW Cloud Services Pla(form" shall refer to Customers deployment of the SC MV platform, or other applica hie software of SEW sold through an authorized reseller 14 "Term" shall mean the Term set forth in the applicable license agreement, SaaS subscription agreement, cloud services agreement, or if not defined in an applicable signed writing, five years from the Effective Date. 2. Scope and General Terms 21 SEW shall provide the following Services selected within the Order Form in accordance with the following terms and conditions 22 Customer may use the Services solely to: a) Use and make the Services available to end users in connection with the use of SEW Cloud Services Platform. b) Use the Services In connection with and as necessary for Cuslomers activities pursuant to these terms or the terms set forth in an applicable license agreement. SaaS subscription agreement, or cloud services agreement. c) Allow any affiliates to use the Services, subject to the terms hereunder 23 In relation to the Services provided under this Agreement, Customer agrees that: a) Customer shall not transfer, resell, lease, license, or otherwise make available the Services or SEW Cloud Services Platform to third parties or offer it on a standalone basis, or make any representation, warranty, or guarantee to any end user or third party on behalf of SEW concerning the Services. b) SEW shall be entitled to use any Customer data that is necessary to provide the Services c) Customers use of the Services does not violate the terms of this Agreement. d) Customer shall not use the Services or SEW Cloud Services Platform to create, train, or improve (director or indirectly) a substantially similar product or service e) Customer shall not reverse engineer, decom elle, disassemble, or otherwise create, attempt to create, or derive, or permit or assist anyone else to create or derive the source code of any Services or SEW Cloud Services Platform provided in connection with this Agreement 24 SEW shall make the Services available and guarantee a Monthly Uptime Percentage of 99.5%, notwithstanding any unavailability or performance issues of the Services caused by or as a result of the following (collectively, the "Exclusions"): a) Factors that are outside of SEW s reasonable control, including, without limitation, any force majeure event, telecommunications provider -related problems or issues, internet access or related problems occurring beyond the point in the network where SEW maintains access and control of the Services b) Any actions or inactions of Customer or any third party c) Any Customer application(s), equipment, software, or other technology, third party equipment, software, etc. not authorized for use with the Services d) Routine or scheduled maintenance for which SEW will provide at least twenty-four (24) hours of advanced notice. e) Problems or issues related to alpha, beta, or not otherwise generally available in SEW features or products 25 Notification Services shall commence at the rates and volumes selected by Customer in the Order Form a) In the event that Customer exceeds the number of emails per month selected, SEW shall automatically escalate Customerto the next service tier and corresponding rates Customer shall thereafter be invoiced according to the rates set forth for the escalated her for the remaining Terre for such Order Form b) At any time during the Term of the Order Form, Customer can contact SEW to request to be change their service to a lower tier Such changes to revert to a lower her and corresponding rates can be made only once during a twelve-month period Customer shall not be entitled to any credits for unused volumes when reverting to a lower service tier after having been escalated to a higher tier as a result of having exceeded notification volume limits c) In the event Customer requires a higher notification Volume SLA tier in order to meet increased demand or to ensure timely delivery of the Services for Customers and users, Customer shall contact SEW detailing the Email Volume SLA or SMS Volume SLA tier customer wishes to upgrade to 3. Term 31 The Initial Term of this Agreement shall begin on the Effective Date and continue for five years 4. Termination 41 Customer may terminate Agreement with or without cause, by giving Provider at least ten (10) days written notice Where phases are anticipated within the scope of services, at which an intermediate decision is required concerning whether to proceed further, Customer may terminate at the conclusion of any such phase. Upon termination, SEW shall be entitled to payment to the extent work frac been performed Upon termination, SEW shall immediately suspend all work and deliver any docu merits or work in progress to Customer Customer has signed up for a 5 -year Term and Provider has applled a Term discount of 40% to the fees It Customer terminates this Agreement prior to the full Term, the Term discount shall not apply and Customer shah be liable to pay the additional fees fpr the period of the Agreement starting Effective Date up to dale of Termination HDwever, Customer shall assume no liability for Costs, expenses or lost profits resulting from services not completed or for contracts entered into by SEW with third parties in reliance upon this Agreement 5. Fees 51 Fees for the Services shall be set fo th in the Order Form. Customer shall be invoiced for applicable ane -time initial Setup fees, maintenance and support fees, and monthly service type fees upfront upon signing of this Agreement and annually thereafter if applicable The usage fees applicable to Inbound and outbound SMS messaging or voice call messages that are selected by the Customer shall be invoiced based on monthly intervals Customer agrees to make all payments to SEW within thirty (30) calendar days after receipt of invorce If Customers account is sixty (60) days or more overdue, SEW reserves the right with prior written notice to withhold performance of Is obligations under this Agreement, without liability. until such payments are paid in full, orte terminate for cause. Fees under this Agreement shall additionally be exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for all applicable taxes, levies, or duties hereunder. 6. Warranty and Liability 6.1. DISCLAIMER OF WARRANTY WITH THE EXCEPTION OF THE SERVICE LEVEL COMMITMENT SET FORTH IN SECTION 2 4, THE SERVICES UNDER THIS AGREEMENT ARE PROVIDED "AS -IS," EXCLUSIVE OF ANY WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FORA PARTICULAR PURPOSE, NONINFRiNGEMENT. OR ANY OTHER WARHANrY, WHETHER EXPRESS OR IMPLIED SEW DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR -FREE OR MEET ALL CUSTOMER REQUIREMENTS WITHOUT LIMITING THE FOREGOING, SERVICES MAY BE SUBJECT TO LIMITATIONS OF THE TELECOMMUNICATIONS PROVIDER, HOSTING ENVIRONMENT, DELAYS, INTERNET SERVICE PROVIDER, THIRD PARTIES, ACTIONS OR INACTIONS OF THE CUSTOMER, AND OTHER PROBLEMS INHERENT TO THE USE OF MASS-MARKET NOTIFICATION SERVICES AND ELECTRONIC COMMUNICATIONS SEW IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, DELETIONS, LOSS OF DATA, DATA CORRUPTION, THIRD -PARTY PUBLICATION, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS NOT CAUSED BY SEW OR OUTSIDE OF SEW'S REASONABLE CONTROL TO THE EXTENT Si1CH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW SEW SHALL NOT BE LIABILE AND WILL HAVE NO OBLIGATION TO INDEMNIFY CUSTOMER FOR END USER DATA OR ANY OTHER PERSONALLY IDENTIFIABLE INFORMATION SENT TO SEW Page 7 6.2 LIMITATION OF LIABILITY IN NO EVENT WILL SEW'S AND ITS LICENSORS' TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE INSURANCE LIMITS SET FORTH IN APPENDIX D FOR THE APPLICABLE POLICY, AND IF THE CLAIM IS NON -INSURABLE, SEWS LIABILITY WILL BE LIMITED TO THE HIGHEST INSURANCE LIMIT AMOUNT LISTED IN APPENDIX D. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF WHETHERANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL SEW OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS, OPPORTUNITIES, DATA, OR USE, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF SEW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 63 Recordings and Communications Monitoring. In the event Customer records or monitors any SMS messages, IVR communications, or other communications using the Services, then Customer represents and warrants that It shall comply with all applicable laws prior to doing so at all times SEW makes no representations or warranties with respect to recording or monitoring telephone calls/IVR communications, SMS messages, or other communications, and recommends that Customer always secure prior consent to record or monitor communications using the Services. Customer acknowledges that these representations, warranties, and obligations are essential to SEW's ability to provide the Services, and further agrees to indemnify SEW and its affiliates or providers in the event of any acts or omissions in connection with recording or monitoring IVR communications, SMS messages, or other communications, whether such claims arise under contract, tort, statute, or other legal theory Addltional Terms 71 Short Codes, If Customer utilizes a short code with SEW as a part of the Services, Customer. a) Shall not change the short code use case without first having such new use case approved by SEW or the applicable provider. b) Shall stop sending additional messages to any party that replies by texting "STOP" (or the equivalent) to the short code, except for a single text message confirming that such party has been successfully opted out of the short code c) Shall follow all applicable rules, regulations, laws, statutes, or guidelines set by state, local, or federal legal authorities, or as imposed by SEW or its affiliates, providers, etc pertaining to the use of short codes or voice recordings 72 Compliance with Laws Both Customer and SEW agree to comply with the applicable laws relating to each Party's respective activities pursuant to this Agreement 73 No Waiver. Our failure to enforce at any time, any provision of this Agreement, or any other applicable policy or signed writing in connection hereto shall not waive our right to do so later Any waiver must be in writing and signed by both Parties to be legally binding. 74 Independent Contractors The Parties are independent contractors and will so represent themselves in all regards Neither Party is the agent of the other, and neither may make commitments on the others behalf. 75 Force Majeure No delay, failure, or default, other than a failure to pay fees, will constitute a breach of this Agreement to the extent that such delay, failure, or default, or any other breach is caused by acts of war, terrorism, earthquakes, other acts of God or of nature, strikes or labor disputes, embargoes, or other causes beyond the performing Party's reasonable control. 76 Assignment S Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Providers prior written consent Except to the extent forbidden herein, this Agreement will be binding upon and inure to the benefit of the Parties' respective successors and assigns Any attempt to assign, transfer, or delegate the terms under this Agreement shall be null and void. 77. Notices Any notice required or permitted to be given under this Agreement will be given in writing to the receiving Party by personal delivery, certified mall, return receipt requested, overnight delivery recognized by a nationally recognized carrier, or by email upon confirmation of receipt Notices to SEW shall be copied to ranrr rr,Es�sr w a 7.6 Modification. Modifications to the Services and associated fees thereof may be made from time to time, and any modifications made to the Services, or associated fees, shall be noticed to the Customer thirty (30) days prior to such modifications taking effect 7.9 Severabllity. To the extent permitted by law, the Parties waive any provision of law that would render any clause of this Agreement invalid or unenforceable In the event that a provision herein is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by law, and the remaining provisions of this Agreementwill continue In full force and effect 710 Choice of Law 6 Jurisdiction: This Agreement will be governed by the laws of the State of California, without reference to any conflicts of law principles. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Joaquin County, California. 711 Conflicts Should this Agreement conflict with any other agreements, this Agreement will govern 7.12. Construction. The Parties agree that the terms of this Agreement result from negotiations between them This Agreement will not be construed in favor of or against either party by reason of authorship 7.13. Business License. Provider acknowledges that Customer requires Provider to have a City of Lodi business license and Provider agrees to secure such license and pay the appropriate fees prior to performing any work hereunder. 7.14. Insurance Requirements. Provider shall take out and maintain during the life of this Agreement, insurance coverage as set forth In Appendix D attached hereto and incorporated by this reference. 7.16 Entire Agreement This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter, with the exception of an applicable license agreement, SaaS subscription agreement, or statement of work Neither Party has relied upon any such prior or contemporaneous communications except those expressly referenced and named herein. 716 Execution in Counterparts This Agreement maybe executed in one or more :ounterparts Each counterpart will bean original, but all such counterparts will constitute a single instrument 717 Amendment This Agreement may only be amended in writing by authorized representatives of each Party Page 8 ApperigIN Data Retention Policy 1) Data Retention Policy a) Introduction Q It shall be the policy of Smart Energy Water to maintain complete and accurate records for the usage, billing, behavior, or any of the specified types of data ('Data') of Client and its Users, for the duration described for historical reference, contractual or legal requirements, or for any other purposes as set forth in this Data Retention Policy ("Policy"). The types of Data stored and subsequent durations for each type, described in the Retention Summary set forth in Section 1(h) below, shall be the recommended and standard retention periods based on legal requirements and practical considerations. In the event that Client wishes to have such Data retained for an extended period, such additional retention periods shall be agreed upon in a separate writing it) Data Retention shall include, but is not limited to, paper and electronic records, documentary materials, Customer Data, personally identifiable information, billing records, usage information, eta Such information shall be managed and maintained in a manner that protects the integrity of the Data, while ensuring appropriate access for the durations described above iii) Upon expiration of the above retention periods, such data shall be destroyed, deleted, returned, or otherwise disposed of according to standard industry guidelines and in compliance with legal requirements, EXCEPT for those records pertaining to (1) matters under investigation or those matters that are the subject of any claim or litigation, and (2) matters that are anticipated to be the subject of reasonably foreseeable investigation, claim, or litigation b) Definitions i) "Audit Logs' shall refer to recordings of key system events, timestamps, and other records that otherwise maintain evidence of any processes or activities it) "Billing Date' shall refer to any information regarding the billing information of customers, which may include, but is not limited to, credit card information, security codes, expiration dates, billing addresses, names of customers, etc iii) "Billing Summaries" shall refer to any information regarding the costs or charges relating to a customers usage of utilities maintained over monthly billing periods iv) "Customer Data" shall refer to any personally identifiable information of a Client's users, which may include, but is not limited to, name, address, personal Usage information, etc. v) "Investigation" shall refer to any business or legal process which requires the retention, examination, or review or any Data. v) "Notifications" shall refer to logs of the information events (email, IVR, SMS text messaging) sent by a utility and received by a customer. vii) "Outages" shall refer to logs of outage events reported via OMS to the Services, by either the customer, if approved, or the Client viii) "Retention" shall refer to storage of Data on either local, cloud -based, or archive storage or servers Ix) "Usage" shall refer to any customers use of a utility as tracked and maintained by the Services. x) "User Behavlof" shall refer to the interaction of Clients customers on the portal or mobile application, which may include, but is not limited to, log -on periods, active periods, interactions with particular modules, clicks, etc c) General I) SEW shall be bound in its obligations regarding the Data it processes and controls These obligations shall include how long SEW retains Data, and when and how SEW can destroy such Data These obligations may arise from industry standards, local laws or regulations, or arising out of agreements between the Parties it) SEW shall ensure that necessary records, documents, or Data are adequately protected and maintained, and additionally, that such records, documents, or Data are properly disposed of. III) SEW shall not use Client or Customer Data except as necessary to provide the Services, or as necessary to comply with the law or binding order of a governmental body d) Cloud -Based Storage i) In maintaining the Data, SEW shall utilize its cloud -based scalable storage solutions which shall allow Client to store and display historical usage data, billing information, payment history, etc. SEW shall utilize industry standard methodologies, which shall ensure business continuity, continuous retention for the periods described, data recovery, and availability for its Users. e) Archiving and Backups i) SEW shall utilize similar industry standard solutions for archiving, restoring, and backing up Data Incremental Data (daily usage, user behavior, notifications, outages) shall be recorded nightly, and full Data backups shall be executed over the weekend Data shall be retained in both Cloud -based local storage form, as well as Array -based replication form offsite to be utilized as back-ups or archives in the event of system failure of the local Cloud -based storage ii) SEW shall be notified vie email confirmation of backups of Data being saved successfully or such backups failing to be saved Backups shall be tested periodically by restoring such Data to a staging database to ensure that Data is not corrupted and are in proper usage compliance in its application configuration Q Destruction and Purging of Data 1) Data that Is personal or confidential In nature shall be disposed of according to methodologies agreed upon by and between the parties In a signed writing 11) Electronic Data shall be subject to secure electronic deletion !it) Physical or paper documents shall be shredded using secure consoles through which waste shall be properly screened for disposal iv) Specific deletion or destruction processes shall be carried out by an employee of SEW or by an internal or external service provider employed for the purposes of such proper and compliant disposal of Data v) Data of Users or Clients who have been inactive for a period of twenty-four (24) months shall be deleted Clients, if such Client or User account(s) are inactive for a period of eighteen (18) months, shall be noted of such inactivity via email. g) Litigation or Investigation 1) In the event that SEW becomes involved in any unforeseen litigation or business event that requires access to Client and Customer Data, such Data may need to be archived beyond its active use or as required by law ii) Documents shall be retained in the event that they are subject to matters under investigation or those that are subject to any claim or litigation, or those matters that are anticipated to be the subject of reasonably foreseeable investigation, claim, or litigation iii) Prior to the disclosure of any Client and Customer Data, SEW shall first disclose to Client of such requirement, so that Client may inform its users and allow users the opportunity to seek protection from such disclosure h) Retention Summary I) SEW, for the purposes of historical reference, contractual or legal requirements, or other requirements as a part of its delivery and maintenance of Services or Software to Client, shall retain the following types of Data for the durations set forth, and pursuant to the terms set forth in this Data Retention Policy Deb Type usage Description Duration Monthly Read 24 months Daily Read 24 months Hourly Read 24 months 15 -minute Read 3 months Billing Date(Summary Overview of Past Bills 24 months User Behavior User Interactions with Portal 12 months Notifications Text Message, IVR, Email Logs B months Audit Logs Timestamps, Recordings of Key Events 6 months Bill PDF Storage ' Add-on Feature 24 months _ Outages History of Reported Outages 12 months Page 9 Appendix D NOTE. The City of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from the City's online Insurance program requesting you to forward the email to your Insurance provider(s) to submit the required insurance documentation electronically insurance Reg uirements for IT Vendor Services Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CO 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Contractor has no owned autos, then hired, and non - owned autos with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employers Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. Other Insurance Provisions: (a) Additional gamed Insured ajgs The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 10 1185 or if not available, through the addition of both CG 2010, CG 20 26, CG 20 33, or CG 20 38;"CG 20 37 if a later edition is used (b) Pnmary and Non-Coninhutory Insurance Endorsement The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, the Contractor's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (c) Waiver of Subrogation Contractor hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Lodi by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Lodi has received a waiver of subrogation endorsement from the insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of thero oiect that it is insuring. (d) 5everabilily of Interest Clause The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to incr% qi?ppXX cdm)-"ny� —sab-irityy--u id6r— ie caiiira,iors commercial general liability and aul9T9P1PeV1 'HY28r?9CieS (e) Notice of Cancellation or Change in Coverage Endorsement This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. (f) Continuity of Coverage All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Contractor shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Contractor shall provide proof of continuing insurance on at least an annual basis during the Term. If Contractor's insurance lapses or is discontinued for any reason, Contractor shall immediately notify the City and immediately obtain replacement insurance. Contractor agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). (g) Failure to Comply If Contractor fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. Contractor shall reimburse the City for premiums paid, wlth interest on the premium paid by the City at the maximum allowable legal rate then m effect in California. The City shall notify Contractor of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. Contractor shall pay such reimbursement and interest on the first (Ist) day of the month following the City's notice. Notwithstanding any other provision of this Agreement, if Contractor fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of Insurance, the City may terminate this Agreement upon such breach. Upon such termination, Contractor shall immediately cease use of the Site or facilities and commanoe and diligently pursue the removal of any and all of its personal property from the site or facilities (h) Verification of Coverage Consultant shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at anytime. Failure to exercise this right shall not constitute a walver of the City's right to exercise after the effective date. (i) Self -Insured Retention Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. (j) Insurance Limits The limits of insurance described herein shall not limit the liability of the Contractor and Contractor's officers, employees, agents, representatives or subcontractors. Contractors obligation to defend, indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement In the Agreement for Contractor to procure and maintain a policy of insurance. (k) Subcontractors Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors Claims Mae olictes if any of the required policies provide coverage on a claims -made basis: 1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (m) guaWied Insurer(sl All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of California which are rated at least'A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. Page 2 1 of 2 pages I Risk: rev 3/1/2018 Order Form for Premium Pavment Services Between iPaySmart, Inc. 15495 Sand Canyon Ave., STE 100, Irvine CA 92618 ("Provider') And City of Lodi 221 W Pine Street P.O. Box 3006 Lodi, CA 95241-1910 ("Customer') 1. Order Form When signed and returned to Provider by Customer this order form by and between Customer and Provider is a binding agreement for the Services listed in this form and effective on the date signed by Customer (collectively, the "Agreement") This Agreement is governed by and incorporates the terms and conditions that begin on page 3 below. 2. Premium Payment Subscription & Fees The table below outlines implementation fees and subscription levels as selected by Customer by checking the relevant boxes below and billed as set forth below. ® Absorbed FEE MODEL - PAID BY Township Cards (Credit/Debit - Visa, MasterCard, Discover, Amex, ApplePay, GooglePay) Channel Customer /Transaction Type Fee per Transaction Transaction Limit • Web Portal ® Automated IVR Residential & Commercial Interchange PLUS $0.15 USD $25,000.00 • Mobile App • Kiosk ® Wallets (PayPal, Venmo) Channel Customer/ Transaction Type Fee per Transaction Transaction Limit ® Web Portal Residential & Commercial 1.89% USD $5,000.00 ® ACH / eCheck Channel Customer I Transaction Type Fee per Transaction Transaction Limit • Web Portal ® • Automated IVR Residential &Commercial $0.10 USD $50,000.00 • Kiosk {l • Mobile App ® Online Banking Consolidation Channel Customer I Transaction Type Fee Per Transaction Transaction Limit Consolidated Banking Payments Residential & Commercial $0.25 USD $50,000.00 -Lockbox) —(E ® Kiosks (2) Initial Setup Fee $9,000 (includes Delivery and Installation) Monthly Fees $3,750.00 (includes 2 Kiosks that meet requirements of the Customer (indoor/outdoor) $0.95 Per Cash Payment (Credit Card and ACH fees listed above) Cash Transaction Fees I Page 1 of 8 Other Fees and Terms • Chargebacks: $5.00 per chargeback (applicable to Cards above) • Returned ACH - Insufficient Funds (NSF) — $1.00 per ACH Return • One time and AutoPay — ACH, Card and PayPal are available for One Time and AutoPay. Venmo is only available for One Time Pay. • Cash Fee (Kiosk): $1.00 Per Transaction 3. Optional Other Products and Services Provider offers the following add-on, a la carte, or individual subscriptions, which can be selected by Customer below, subject to the attached Terms and Conditions. One-time fees shall be due upon signing. Annual fees shall be billed annually. For Year 1, the annual fees shall be due upon signing. Thereafter, they shall be billed and due on the anniversary of the Effective Date. N/ Description Fee Comments ® SMS Text -to -Pay $9,700 — One time setup Automated SMS Text based payments using digital wallets. $1900 / month service fee ® POS Devices $8,400 — One time Qty:14 Verifone or equivalent ($600 ea) ® POS Desktop Printers $4,200— One time Qty:14 Epson or equivalent ($300 ea) The total fees for services under this Order Form shall not exceed $3,287,807 over the 5 -year Term, 4. Acceptance and Authorization Customer Provider Signature: Signature: Name: Stephen Schwabauer Name: Title: City Manager Title: Effective Date: Date: APPROVED AS TO FORM: JANICE D. MAGDICH, City Attorney By _ ATTEST: OLIVIA NASHEQ City Clerk Page 2 of 8 Premium Payment Services 'forms and Conditions iPaySmart, Inc. ("Provider") and its affiliates have developed certain proprietary software applicatlons and servlces for the Customer, and the Parties have agreed that Provider will make the Services described in the Order Form available to the Customer hereunder. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below and in any relevant exhibits or documents, the adequacy of which is hereby acknowledged, the Parties agree as follows 1. Definitions 1.1. "Agreement "or "Contract" shall refer to the main agreement or contract for Cloud Services, as amended from time to time. 1.2. "Approved Payment Types" shall mean credit and debit means of payment, such as Visa®, MasterCard®, Discover®, E -check and other payment methods as deemed necessary by Provider. 1.3. "Average Bill Amount" shall mean the total amount of Payments processed through Provider in a given month divided by the number for the same month. 1.4. "Effective Date" shall be the last date upon which the parties signed the Agreement. The Agreement will not be effective against any party "until that date. 1.5. "Enhancement(s)" shall refer to any personalization of the Provider Platform to achieve certain additional functional requirements of the Customer, as clarified and agreed during implementation. 1.6. "Excess Payment Amount" shall mean the amount by which the total of all Payment Amounts from Non -Qualified Transactions processed in a calendar month exceeds 5% of the total of the Payment Amounts of all card Payments processed that month. 1.7. "Fee Assumptions" shall mean information used to calculate the Provider Service Fee, including the projected Average Bill Amount, projected payment method mix (credit vs debit vs e -check) and that the total Payment Amount processed each month resulting from Non -Qualified Transactions shall not exceed 5% of the total Payment Amount of all card Payments processed that month. 1.8. "Initial Setup" shall mean the first personalization and activation of the standard service as specified during the implementation process. 1.9. "IVR" shall mean an interactive telephone voice response system that facilitates payment by Users. 1.10. "Launch Date" shall be the date on which Customer launches the Services to the Users. 1.11. "Monthly Uptime Percentage" shall refer to the difference between 100% and the percentage of time during which the Services are unavailable. 1.12. "Non -Qualified Transaction" shall mean (i) a Payment made with a cans generally issued for business use that results in interchange fees or other processing charges assessed by a Provider Authorized Processor or card association that are higher than those charged for transactions with cards issued for consumer use; or (ti) a Payment that does not qualify for reduced interchange fees under programs that Customer may be participating in. These high-cost cards may include, among others, corporate cards, virtual cards, purchase cards, business cards, and travel and entertainment cards. 1.13. "Order Form" shall mean the check -box list of services selected by Customer and fee schedule attached to the Agreement. 1.14. "Payment" shall mean payment by a User through the Platform for Customer's services, Customer's bills, or other amounts owed to Customer. 1.15. "Payment Amount" shall mean the amount of a Payment. 1.16_ "Reversed or Charged -back Transactions" shall mean canceled transactions due to User error, a User's challenge to Payment authenticity, or action by a financial institution or a Provider Authorized Processor (commonly referred to as ACH or eCheclk returns or credit/debit card chargebacks). 1.17. "Services" shall refer to payment and payment processing services for the Customer powered by Provider and/or its affiliates. 1.18. "Provider Authorized Processor" shall mean a Provider authorized merchant account provider and payment processing gateway. 1.19. "Provider Platform" shall refer to Customer's deployment of the digital cloud payments platform, or other applicable software sold directly or through an authorized reseller. 1.20. "Term" shall mean the period set forth in Section 4 below. 1.21. "Transaction Fees" shall mean costs and fees incurred by Provider in the ordinary course of processing payments on behalf of Customer. 1.22. "User' shall mean the users of Customer's services. 2. Scope and General Terms 2.1- Provider shall provide Services selected by Customer on the attached Order Form in accordance with the terms and conditions within the Agreement. Provider or its authorized agents may, on behalf of customer, procure, setup, and maintain third -party services in order to properly provide the Services for the Customer, dependent upon the Customer's selections. Services enable Users to make Payments by Approved Payment Types. Payments may be made via IVR or secure Internet interface provided on the Provider Platform. 2.2. Customer may use the Services solely to: a) Use and make the Services available to Users in connection with the Provider Platform. b) Use the Services in connection with and as necessary for Customer's activities pursuant to these terms or the terms set forth in an applicable license agreement, SaaS subscription agreement, or cloud services agreement. c) Allow any affiliates to use the Services, subject to the terms hereunder. 2.3. Enhancements a) The Parties agree that the Services are provided on a "platform as a service' basis, and not as a result of custom software development. The Provider Platform may be personalized to achieve certain additional functional requirements of the Customer as clarified and agreed during implementation ("Enhancements"). Enhancements may include some or all of the features included in any technical requirements or similar document provided to Provider. The Parties will fully cooperate with one another to: 1) ensure that requirements with respect to Enhancements are clarified as needed; 2) accept Provider's proposed reasonable alternatives to achieve Customer's functional objectives within the limits of the Provider Platform; and 3) accept Provider's reasonable estimates of time of completion, designs and plans with respect to agreed Enhancements. There will be no fee charged by Provider to Customer for Enhancements, provided Provider designs and plans are accepted by Customer. If the Services are to be offered at multiple locations, or if the Services include multiple Enhancements, the Parties will agree to a phased implementation 2.4. In relation to the Services provided under this Agreement, Customer agrees that: a) Customer shall not transfer, resell, lease, license, or otherwise make available the Services or Provider Platform to third parties or offer it on a standalone basis, or make any representation, warranty, or guarantee to any end user or third party on behalf of Provider concerning the Services. b) Provider shall be entitled to use any Customer data that is necessary to provide the Services. Page 3 of 8 c) Customers use of the Services does not violate the terms of the Agreement or these terms and conditions. d) Customer shall not use the Services or Provider Platform to create, train, or improve (director or indirectly) a substantially similar product or service. e) Customer shall not reverse engineer, decompile, disassemble, or otherwise create, attempt to create, or derive, or permit or assist anyone else to create or derive the source code of any Services or Provider Platform provided in connection with the Agreement or these terms and conditions. 2.5. Provider will charge Customer's utility consumers a service fee for each Payment ("Provider Service Fee") or invoice Customer separately per transaction, as provided in the attached order form. a) The Provider Service Fee is to be collected in addition to the corresponding Payment or invoiced to Customer, as designated by Customer. b) For each Payment, the Provider Service Fee will be collected, and Provider will pay the corresponding processing and related fees of the Approved Payment Types ('Transaction Fees") except for fees related to Reversed or Charged -back Transactions. c) A schedule of Provider Service Fees is the Order Forth. The Provider Service Fee is based on the Fee Assumptions Customer shall be billed additional Provider Service Fees equal to 3.5% of the Excess Payment Amount for each month during which there is an Excess Payment Amount. d) Provider may amend the terns upon prior written notice to Customer if a change is caused by changes in the card or payment system rules or changes in credit card fees or if the Fee Assumptions prove to have been materially incorrect. The amended Service Fee shall take effect thirty (30) days after written notice to Customer. 2.6. Explicit User Confirmation - Provider shall confirm the dollar amount of all Payments, and when paid by the User, the corresponding Provider Service Fee to be charged to a card and electronically obtain the Users approval of the charges prior to initiating card authorizations transaction. Provider shall provide User with electronic confirmation of all transactions. 2.7. Merchant Account - Provider will arrange for Customer to have a merchant account with the Provider Authorized Processor for processing and settlement of the card transactions. 2.8. Card Authorization - For authorization purposes, Provider will electronically transmit all card transactions to the appropriate card -processing center, in real time as the transactions occur. 2.9. Customers Responsibilities - In order for Provider to provide the Services outlined with the Agreement, Customer shall cooperate with Provider by, a) Entering Into all applicable merchant card, cash management, ACH origination, or kiosk agreements. b) Keeping throughout the duration of the Agreement or these terms and conditions, a bill payment link connecting to Provider System at a prominent and mutually agreed location on Customer's website. The phone number for IVR payments will also be added to the web site. Customer will also add the IVR payment option as part of Customers general phone system. c) Sharing User Adoption marketing as may be performed under this or another agreement or Order Form. d) Launching the Service within thirty (30) days of the merchant account setup. e) Dedicating sufficient and properly trained personnel to support the implementation process and its use of the Services in compliance with all laws applicable to its use of the Services. 2.10. Provider shall make the Services available and guarantee a Monthly Availability of 99.95%, notwithstanding any unavailability or performance issues of the Services caused by or as a result of the following (collectively, the "Exclusions"): a) Factors that are outside of Providers reasonable control, including, without limitation, any force majeure event, telecommunications provider -related problems or issues, intemet access or related problems occurring beyond the point in the network where Provider maintains access and control of the Services. b) Any actions or inactions of Customer or any third party. c) Any Customer application(s), equipment, software, or other technology, third party equipment, software, etc. not authorized for use with the Services. d) Routine or scheduled maintenance for which Provider will provide at least twenty-four (24) hours of advanced notice. e) Problems or issues related to alpha, beta, or not otherwise generally available in Provider features or products. 3. Payment 3.1. Net 30. Customer agrees that payment is due upon receipt of Providers invoice, payable within 30 days of the date of such invoice. 3.2. Offsets. Customer agrees that Provider shall have the right to deduct the value of sums collected on behalf of Customer during the Tenn. 4. Term 4.1. These term shall commence on the Effective Date, set forth upon the execution of the Agreement for a five (5) year period. 4.2. Termination. Customer may terminate Agreement with or without cause, by giving Provider at least ten (10) days written notice. Where phases are anticipated within the scope of services, at which an intermediate decision is required concerning whether to proceed further, Customer may terminate at the conclusion of any such phase. Upon termination, Provider shall be entitled to payment to the extent work has been performed. Upon termination, Provider shall immediately suspend all work and deliver any documents or work in progress to Customer. Customer has signed up for a 5 -year Term and Provider has applied a Term discount of 40% to the fees, If Customer terminates this Agreement prior to the full Term, the Term discount shall not apply and Customer shall be liable to pay the additional fees for the period of the Agreement starting Effective Date up to date of Termination However, Customer shall assume no liability for costs, expenses or lost profits resulting from services not completed or for contracts entered into by Provider with third parties in reliance upon this Agreement. 5. Settlement and Payment Terms 5.1. Provider together with its authorized card processor shall forward the payment transactions, and when paid by User, the corresponding Provider Service Fee to the appropriate cans organizations for settlement (other than the Provider Service Fee) directly to Customers depository bank account previously designated by Customer (hereinafter the "Customer Bank Account"). When as provided in Schedule A Customer pays the Provider Service Fee, Provider will invoice Customer and debit the fees from Customers account on a monthly basis. 5.2. Provider together with the Provider Authorized Processor will continuously review its settlement and direct debit processes for its simplicity and efficlencies, Customer and Provider agree to fully cooperate with each other if Provider were to change its settlement and invoicing processes. 5.3 Customer shall be invoiced for applicable one-time initial setup fees, maintenance and support fees, and monthly service type fees upfront upon signing of the Agreement and annually thereafter if applicable. The usage fees applicable to inbound and outbound SMS messaging, voice call messages, or interactive voice recording messages, that are selected by the Customer shall be invoiced based on monthly intervals. Customer agrees to make all payments to Provider within thirty (30) calendar days after receipt of invoice. If Customers account is sixty (60) days or more overdue, Provider reserves the right with prior written notice to withhold performance of its obligations under the Agreement or these terms and conditions, without liability, until such payments are paid in full, or to terminate for cause. Fees under the Agreement and these terms and conditions shall additionally be exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for all applicable taxes, levies, or duties hereunder based on Customer's income. 6. Insights Page 4 of 8 6.1. Aggregate Data, Anonym ized. Customer hereby grants Provider the right to anonymize and aggregate data generated from the Provider Platform to create insights for comparison of local, regional, national and global usage, consumption or other trends resulting from such data. 6.2. Customer Access. Provider will enable Customer to display aggregated and anonymized insights data to enhance the customer experience for Customer's end users. 7. PCI DSS 7.1. For PCI Compliance, Customer shall have two options for using the Services - Provider Platform; or Any other configuration. 7.2. To eliminate or substantially reduce any PCI compliance risks, and to render all Customer systems out of scope from PCI compliance requirements, Customer agrees to use Provider's Platform, were Provider uses its own platform to capture payments and to manage the entire end to end user experience from the following channels for payment acceptance: Web, Mobile, IVR, and Point-of-sale devices operated by Customer's employees (per Provider's recommended setup), recurring payments, eBill Presentment, etc. If Customer however chooses any other integration, such as third - party web pages integrated with APIs, third -party gateway pages, or its own IVR systems or other point-of-sale or customer self-service solutions, or a cashiering model from a third -party, Customer expressly agrees that Customer shall not be exempt from PCI requirements and shall be liable for any data breaches occurring on its own systems as Customer recognizes that Customer systems are participating in the transactions and are in scope for PCI compliance. Under those circumstances, Provider shall not be responsible for any PCI obligations outside of Provider's own platform, and Provider expressly disclaims any PCI or security obligations related to Customer systems or third -party systems that participate in the payment transactions that are outside of the Provider Platform. 7.3. Provider highly recommends that Customer uses the Provider Platform to substantially reduce its PCI compliance and data breach risks. 7.4. If Customer chooses to use any other option than the Provider Platform, Customer agrees and warrants that Customer shall remain PCI compliant throughout the term of the Agreement. For clarity, Customer's utilization PCI compliant applications, such as its billing software, does not eliminate the need for Customer to be PCI compliant. Per PCI requirements, if a party's systems participate in processing, accepting, or storing card transactions, that party is required to be PCI compliant as the systems are in scope. 8. Reversed or Charged -Back Transactions 8.1. With respect to all Reversed or Charged -back Transactions, Customer authorizes Provider and Provider Authorized Processor (and/or the respective card organizations) to debit the Customer Bank Account for the Payment Amount and Provider shall refund the card organization for the credit back to the User, the corresponding Provider Service Fee, if any. Provider, together with Provider Authorized Processor(s), will continuously review its processes for Reversed or Charged -back Transactions for simplicity and efficiencies. Customer and Provider agree to reasonably cooperate with each other if Provider requires any change to its settlement and invoicing processes for these transactions. 9. Warranty and Liability 9.1. DISCLAIMER OF WARRANTY. WITH THE EXCEPTION OF THE SERVICE LEVEL COMMITMENT SET FORTH IN SECTION 2.4, THE SERVICES UNDER THESE TERMS AND CONDITIONS ARE PROVIDED "AS -IS," EXCLUSIVE OF ANY WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. PROVIDER DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR -FREE OR MEET ALL CUSTOMER REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, SERVICES MAY BE SUBJECT TO LIMITATIONS OF THE TELECOMMUNICATIONS PROVIDER, HOSTING ENVIRONMENT, DELAYS, INTERNET SERVICE PROVIDER, THIRD PARTIES, ACTIONS OR INACTIONS OF THE CUSTOMER, AND OTHER PROBLEMS INHERENT TO THE USE OF MASS- MARKET NOTIFICATION SERVICES AND ELECTRONIC COMMUNICATIONS. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, DELETIONS, LOSS OF DATA, DATA CORRUPTION, THIRD -PARTY PUBLICATION, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS NOT CAUSED BY PROVIDER OR OUTSIDE OF PROVIDER'S REASONABLE CONTROL. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. PROVIDER SHALL NOT BE LIABILE AND WILL HAVE NO OBLIGATION TO INDEMNIFY CUSTOMER FOR END USER DATA OR ANY OTHER PERSONALLY IDENTIFIABLE INFORMATION SENT TO PROVIDER 9.2. LIMITATION OF LIABILITY. IN NO EVENT WILL PROVIDER'S AND ITS LICENSORS' TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THESE TERMS AND CONDITIONS EXCEED THE INSURANCE LIMITS SET FORTH IN EXHIBIT A FOR THE APPLICABLE POLICY, AND IF THE CLAIM IS NON -INSURABLE, PROVIDER'S LIABILITY WILL BE LIMITED TO THE HIGHEST INSURANCE LIMIT AMOUNT LISTED IN EXHIBIT A. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL PROVIDEROR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS, OPPORTUNITIES, DATA, OR USE, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF PROVIDERHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 9.3. Recordings and Communications Monitoring. In the event Customer records or monitors any SMS messages, IVR communications, or other communications using the Services, then Customer represents and warrants that it shall comply with all applicable laws prior to doing so at all times. Provider makes no representations or warranties with respect to recording or monitoring telephone calls/IVR communications, SMS messages, or other communications, and recommends that Customer always secure prior consent to record or monitor communications using the Services. Customer acknowledges that these representations, warranties, and obligations are essential to Provider's ability to provide the Services, and further agrees to indemnify Provider and its service providers in the event of any acts or omissions in connection with recording or monitoring IVR communications, SMS messages, or other communications, whether such claims arise under contract, tort, statute, or other legal theory. 10. Additional Terms 10.1.Short Codes. If Customer utilizes a short code with Provider as a part of the Services, Customer: a) Shall not change the short code use case without first having such new use case approved by Provider or the applicable provider. b) Shall stop sending additional messages to any party that replies by texting "STOP" (or the equivalent) to the short code, except for a single text message confirming that such party has been successfully opted out of the short code- c) Shall follow all applicable rules, regulations, laws, statutes, or guidelines set by state, local, or federal legal authorities, or as imposed by Provider or its service providers pertaining to the use of short codes or voice recordings. 10.2.Compliance with Laws. Both Customer and Provider agree to comply with the applicable laws relating to each Party's respective activities pursuant to the Agreement and these terms and conditions. 10.3.No Waiver. Our failure to enforce at any time, any provision of the Agreement, these terms and conditions, or any other applicable policy or signed writing in connection hereto shall not waive our right to do so later. Any waiver must be in writing and signed by both Parties to be legally binding. 10.4. Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent of the other, and neither may make commitments on the other's behalf. 10.5. Force Majeure. No delay, failure, or default, other than a failure to pay fees, will constitute a breach of these terms and conditions, to the extent that such delay, failure, or default, or any other breach is caused by acts of war, terrorism, earthquakes, other acts of God or of nature, strikes or labor disputes, embargoes, or other causes beyond the performing Party's reasonable control. 10.6.Assignment S Successors. Customer may not assign the Agreement, these terms and conditions, or any of its rights or obligations hereunder Page 5 of 8 without Providers prior written consent. Except to the extent forbidden herein, these terms and conditions will be binding upon and inure to the benefit of the Parties' respective successors and assigns. Any attempt to assign, transfer, or delegate these terms and conditions shall be null and void. 10.7. Notices. Any notice required or permitted to be given under these terms and conditions will be given in writing to the receiving Party by personal delivery, certified mail, return receipt requested, overnight delivery recognized by a nationally recognized carrier, or by email upon confirmation of receipt. Notices to Provider shall be copied to info@ipaysmart.ai. 10.8. Modification. Modifications to the Services and associated fees thereof may be made from time to time, and any modifications made to the Services, or associated fees, shall be noticed to the Customer thirty (30) days prior to such modifications taking effect. 10.9.Severability. To the extent permitted by law, the Partles waive any provision of law that would render any clause of these terns and conditions invalid or unenforceable. In the event that a provision herein is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by law, and the remaining provisions of and these terms and conditions will continue in full force and effect. 10A O.Choice of Law & Jurisdiction: These terns and conditions will be governed by the laws of the State of California, without reference to any conflicts of law principles. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Joaquin County, California. 10A 1I .Conflicts. Should and these terms and conditions conflict with any other agreements or terms, these terms and conditions will govern. 10.12. Construction. The Parties agree that these terms result from negotiations between them. These terms and conditions will not be construed in favor of or against either party by reason of authorship. 10. 1 3.Business License. Provider acknowledges that Customer requires Provider to have a City of Lodi business license and Provider agrees to secure such license and pay the appropriate fees prior to performing any work hereunder. 10.14.Insurance Requirements. Provider shall take out and maintain during the life of this Agreement, insurance coverage as set forth in Exhibit A attached hereto and incorporated by this reference. 10.15.Entire Agreement. These terms and conditions, along with the Agreement, set forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter, with the exception of an applicable license agreement, SaaS subscription agreement, or statement of work. Neither Party has relied upon any such prior or contemporaneous communications except those expressly referenced and named herein. 10.16.Amendment. These terms and conditions may only be amended in writing by authorized representatives of each Party. 10.17.SOC2 Reporting. Provider shall provide the copy of the latest SOC2 Type II report within 60 days of signing of the Agreement and annually thereafter upon completion of annual audit Page 6 of 8 Implementation Services Addendum Pursuant to the agreement between iPaySmart, Inc. ("Provider') and City of Lodi ("Customer') under the Order Form for Premium Payment Services executed on the Customer has engaged the Provider to deliver the following services Scope of Services The scope for services includes the following key implementation activities: 1 Conducting a solution confirmation workshop for payment integration to incorporate Customer's business rules. 2 Configuration and setup of the Payment Services as mentioned below. Selection Activity Description Customer CIS/Billing System: API or daily file transfer using Secure FTP for posting payment. ® Integration with Customer system Set up of SFTP and configuration of batch jobs for the transfers of daily payment reconciliation ® Setup web payments Configure and setup white labeled web portal for online payment options with Customer branding and linked to Customer's website Configuration of CSP Payment Analytics to provide summary dashboard, payment details and ® Customer Service Portal (CSP) reconciliation reports of payment transactions. Customer staff can make payment transactions for customers in CSP. ❑ Live agent service setup Setup inbound live agent call line for end consumers to call in and make payments. ® SMS Text / Text -to -Pay Ability for customers to pay bills via text (up to 3 accounts max tied to a number) (requires separate notifications service) Features In Scope Payment Features In Scope Selection Deliverable Description ® One -Time Payments - Authenticated Customer is a registered user of payment portal and is required to Login to make payments. ® One -Time Payments - Customer can make guest payment without being a registered user in the web portal. Unauthenticated ® Automatic Recurring Payments Ability to enroll in autopay to have the full bill balance deducted monthly based on due date or selected days prior to due date (up to 10 days prior to due date). Administrator Features In Scope Deliverable Description Payment Setup Merchant ID, Convenience Fees configuration Standard Payment Dashboard Payment Reconciliation Reports Refunds and Voids CSP Analytics Dashboard to show summary and details of payment transactions i Deposit summary report, deposit details report, chargeback reports, ECP return reports, transfer summaries. These reports will be provided via batch files as well as under Admin Portal Ability for CSR to refund or void payment transactions via the Admin Portal Multi -Channel Notification Services The following notification workflows are in scope of the implementation services. Notification Push Email SMS eBill Ready Notification — Y Y Y Page 7 of 8 Payment Reminder Payment Delinquent Y Y Y Y Y Y Payment Plan/Arrangement Enroll/Unenroll Confirmation N Y Y Autopay Enroll/Unenroll Confirmation Y Y4 Y Text -to -pay N N Y Note: All outbound notifications shall be one-way with exception of Text to Pay. Assumptions 1, Customer shall be responsible for coordinating the access to any Customer owned and third -party data and interfaces required for integration. These API's/services are expected to be fully tested by Customer and error free. 2. Customer will provide timely responses to Provider for any of Provider's information needs, as well as timely review of project documents provided. 3. To the extent feasible, Provider will utilize existing web service interfaces to meet the requirements stated in this Addendum. 4. Provider team will migrate existing Customer Notification preference data to the provider platform however any validation or cleansing of the source data is not in scope. Provider team will work with the Customer team to identify and catalog the data for migration and agree upon a migration strategy. Upon completing the strategy for data conversion and migration, Provider shall be responsible for taking the data in the source format and translate and convert to the SCM platform. 5. Provider will assist Customer personnel or designated training provider with preparation of materials and delivery of the Train -the -Trainer program. Training materials will only include software User Guides adapted for the Customer software modules and features in scope. Development of tailored training material to incorporate the Customer's business process is not in scope but may be added as part of a separate Change Request. 6. Training will be conducted in a train the trainer format. (CSRs to be trained by the Trainers). End user (Utility customer) training is not in scope of this sow. 7. Customer Trainers will deliver end-user training with Provider trainers in a supporting role. The Customer Training Coordinator will be responsible for scheduling end-users, material duplication, and training facilities. Provider will assign a Trainer from Provider team to work with Customer during Training sessions. 8. Provider will provide a template with test case scenarios for testing. Customer shall prepare and provide the required test data sets that meet the test scenario on time in the QA environment while ensuring data quality. Test data preparation activity may include Data cleaning, conversion, migrating data from a legacy system and shall be Customer's responsibility. 9. Customer shall be responsible for providing test data on timely basis for testing of all functional scenarios in scope of the project. 10. All project activities will be performed, and Deliverables will be created in English. 11. The Customer will ensure that they have appropriate agreements in place with third parties whose work may affect Provider's ability to provide the Services. Unless specifically agreed to otherwise in writing, Customer is responsible for the management and performance of the third parties, and for any third -party hardware, software or communications equipment used in connection with the Services. 12. The Customer will make key business users available to play critical roles in the workshop. 13. Provider and Customer will review the scope and deliverable expectations before work begins in order to provide a common understanding by both parties. 14. The Customer is responsible for identifying the trainers to participate in Train the Trainer activities, rooms for training sessions, managing enrollment and any costs associated additional training sessions and attendance of Customer trainees and Provider personnel at such training sessions. Page 8 of 8 Exhibit A NOTE. The City of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from the City's online insurance program requesting you to forward the email to your Insurance providers) to submit the required insurance documentation electronically insurance Requirements for IT Vendor Services Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence_ If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Contractor has no owned autos, then hired, and non - owned autos with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. Other Insurance Provisions: (a) Additional Named Insured Status The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or an behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 10 1185 or if not available, through the addition of both CG 2010, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used (b) Pnmaryand Non-Coninbulory Insurance Endorsement The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, the Contractor's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (c) Waiver of Subrogation Contractor hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Lodi by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Lodi has received a waiver of subrogation endorsement from the insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of the promec that it is insuring. (d) 5eyarabolity of Interest Clause The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to incr"—"" �ETj1� of corTipPny'S liabiii{y undeHN'd-Cant�a�Cdrs domme Cialgenaral IiaFiifi[}r anpfautc i b;l�eVia �� C'ies, (e) Notice of Cancellation gr Chgriqg in Coveragge Endorsement This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. (f) Continuity of govefage All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Contractor shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Contractor shall provide proof of continuing insurance on at least an annual basis during the Term. If Contractor's insurance lapses or Is discontinued for any reason, Contractor shall immediately notify the City and immediately obtain replacement insurance. Contractor agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). (g) Failure to Comply If Contractor fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. Contractor shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify Contractor of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. Contractor shall pay such reimbursement and interest on the first (1st) day of the month following the City's notice. Notwithstanding any other provision of this Agreement, if Contractor fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of insurance, the City may terminate this Agreement upon such breach. Upon such termination, Contractor shall immediately cease use of the Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities, (h) Venfication of Coverage Consultant shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date. (i) Self -Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. (j) Insurance Limits The limits of insurance described herein shall not limit the liability of the Contractor and Contractor's officers, employees, agents, representatives or subcontractors. Contractor's obligation to defend, indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in the Agreement for Contractor to procure and maintain a policy of insurance. (k) Subconlraclars Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors Claims Made Policies If any of the required policies provide coverage on a claims -made basis: 1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (m) Qualified Insureds All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. Page 2 1 of 2 pages 1 Risk: rev. 3/1/2018 AGENDA ITEM CITY OF LODI COUNCIL COMMUNICATION TM BLUE SHEET C-7 AGENDA TITLE: Adopt Resolution Authorizing City Manager to 1) Execute 5 -Year Agreement with Smart Energy Systems, Inc. of Irvine (dba Smart Energy Water) for Customer Web Portal Solution ($631,500); and 2) Execute 5 -Year Agreement with iPaySmart, Inc. of Irvine for Payment Services ($3,287,807) MEETING DATE: PREPARED BY: March 1, 2023 Revenue Manager RECOMMENDED ACTION: Adopt a resolution authorizing the City Manager to 1) Execute a 5 - Year Agreement with Smart Energy Systems, Inc. of Irvine (dba Smart Energy Water) for a Customer Web Portal Solution in an amount not -to -exceed $631,500; and 2) Execute a 5 -Year Agreement with iPaySmart, Inc. of Irvine for Payment Services in an amount not -to -exceed $3,287,807. BACKGROUND INFORMATION: The Revenue Division is responsible for collecting payments for the City of Lodi, including those for all customer utilities. Utility payments and general invoices are currently accepted via online, kiosks, interactive voice response, drop-off box, and U.S. mail. The current online platform only takes payments and does not provide a customer service platform. Along with the Revenue Division, Lodi Electric Utility (LEU) and Public Works (PW) receive a number of customer calls and requests as it relates to high bills and inquiries on electric and water usage as well as financial assistance and rebate programs. Smart Energy Systems, Inc. (SEW) provides an online platform for customers that includes more comprehensive information about their account, payment options, and customer service assistance by providing a number of features and enhancements to the current customer experience, including: • Historical and current hourly electric and water usage • Ability to update account information • Online chats with Chatbot or Customer Service Representatives • Notifications to help manage utility usage and costs • Information and forms/applications to apply for conservation and efficiency programs/rebates • Ability to integrate smart home devices • Electric vehicle information which enables customers to locate charging stations, status and payment information as well as program charging to align with best pricing options Payment sources include an online service, point of sale, telephone, and kiosk. Chatbot is a 24 hour service that will give customers answers to simple questions. The chat will be forwarded to a live Customer Service Representative during working hours if the question is outside the Chatbot program. APPROVED: <<,�� "i ., 1 [9r. u,.ra,a is:uPor Stephen Schwabauer, City Manager Adopt Resolution Authorizing City Manager to 1) Execute 5 -Year Agreement with Smart Energy Systems, Inc. of Irvine (dba Smart Energy Water) for Customer Web Portal Solution ($631,500); and 2) Execute 5 -Year Agreement with iPaySmart, Inc. of Las Vegas, NV for Payment Services ($3,287,807) March 1, 2023 Page 2 The added features will give customers the tools to understand and help manage usage, service requests and program applications thereby reducing the need to wait on hold via telephone or in line to speak with a Customer Service Representative. Customers will have the ability to pay their bills and update any information all with one online platform. With the payment and added customer service features, the cost of the new platform will be less than the current payment only platform currently in place. Overall, including the added features, estimated cost savings will be approximately $225,000 over 5 years. LEU and PW staff initiated discussions with SEW several years ago to understand more about what additional customer service features were available in the market and staff have continued to follow the SEW product for the past few years as other utilities like Alameda Municipal Power have successfully implemented the SEW platform. More recently, a Customer Satisfaction Survey conducted by LEU in 2022 resulted in two key recommendations for improvement, including improving the efficiency of customer service and improving the functionality and content of utility bills by providing more detailed information on usage specifically. Staff are confident the SEW platform and services will help accomplish both. Per Lodi Municipal Code, Section 3.20.075, financial services contracts shall be awarded on the basis of professional qualifications and experience, quality of service, performance and negotiated prices. The platform and services to be provided by SEW will result in cost savings to the City as well as provide additional features and functionality for residents and businesses, thereby improving the overall customer experience. Therefore, staff proposes two agreements: one with Smart Energy Systems, Inc., for the customer service platform, and one with iPaySmart, Inc. for payment services over a period of 5 years for a total estimated not -to -exceed amount of $3,919,307. Actual costs will be based on the number of transactions. FISCAL IMPACT: Costs for the proposed online platform and services are shared across the utilities for which online payments are collected. Approximately 8% of the overall cost is a General Fund expense. FUNDING AVAILABLE: As listed below. For the current Fiscal Year 2022/23 (FY 23) through June 30, 2023, the Electric Utility has sufficient funds to cover the $43,650 below. Appropriations will be needed to cover the remaining costs as noted below for FY 23. Future year funding will be included as part of the annual budget planning process. Fiscal Year 2022/23 10020203.72312* $32,540 50060001.72450 $45,040 53053001.72312* $38,790 56052001.72312* $32,540 10050001.72312* $32,540 $181,450 *Appropriation needed Adopt Resolution Authorizing City Manager to 1) Execute 5 -Year Agreement with Smart Energy Systems, Inc. of Irvine (dba Smart Energy Water) for Customer Web Portal Solution ($631,500); and 2) Execute 5 -Year Agreement with iPaySmart, Inc. of Las Vegas, NV for Payment Services ($3,287,807) March 1, 2023 Page 3 Fiscal Year 2023/24 10020203.72312 $98,645 50060001.72312 $536,727 53053001.72312 $197,591 56052001.72312 $299,303 10050001.72312 $138,776 TOTAL $1,271,042 Fiscal Year 2024/25 10020203.72312 $62,674 50060001.72312 $315,488 53053001.72312 $119,885 56052001.72312 $178,252 $85,790 10050001.72312 TOTAL $762,089 Fiscal Year 2025/26 10020203.72312 $65,737 $342,769 50060001.72312 53053001.72312 $128,137 56052001.72312 $192,847 10050001.72312 TOTAL $91,160 $820,650 Fiscal Year 2026/27 10020203.72312 $45,493 50060001.72312 $152,471 $71,453 53053001.72312 56052001.72312 $91,625 10050001.72312 $54,720 TOTAL $415,762 Adopt Resolution Authorizing City Manager to 1) Execute 5 -Year Agreement with Smart Energy Systems, Inc. of Irvine (dba Smart Energy Water) for Customer Web Portal Solution ($631,500); and 2) Execute 5 -Year Agreement with iPaySmart, Inc. of Las Vegas, NV for Payment Services ($3,287,807) March 1, 2023 Page 4 Fiscal Year 2027/28 10020203.72312 50060001.72312 $23,416 $220,107 53053001.72312 $65,565 56052001.72312 $117,078 10050001.72312 $42,148 TOTAL $468,314 Andrew Keys Andrew Keys Deputy City Manager/Internal Services Director Andrew Keys Tarra Sumner Revenue Manager Signature: Ofr XVqbj Email: akeys@lodi.gov BLUE SHEET RESOLUTION NO. 2023- A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A FIVE-YEAR AGREEMENT WITH SMART ENERGY SYSTEMS, INC., OF IRVINE (DBA SMART ENERGY WATER) FOR CUSTOMER WEB PORTAL SOLUTION; AND TO EXECUTE A FIVE-YEAR AGREEMENT WITH IPAYSMART, INC., OF LAS VEGAS, NEVADA, FOR PAYMENT SERVICES; AND FURTHER APPROPRIATING FUNDS ------------------------------------------------------------------ WHEREAS, the Revenue Division is responsible for collecting payments for the City of Lodi with utility payments and general invoices currently accepted via online, kiosks, interactive voice response, drop-off box, and U.S. mail; and WHEREAS, the current online platform only takes payments and does not provide a customer service platform; and WHEREAS, Smart Energy Systems, Inc. (SEW) provides an online platform for customers that includes more comprehensive information about their account, payment options, and customer service assistance by providing a number of features and enhancements to the current customer experience; and WHEREAS, SEW payment sources include an online service, point of sale, telephone, and kiosk, as well as a 24-hour Chatbot feature which forwards to a live Customer Service Representative during working hours if the question is outside the Chatbot program; and WHEREAS, with the payment and added customer service features provided by SEW, the cost of the new platform will be less than the current payment -only platform, with an estimated cost savings of approximately $225,000 over five years; and WHEREAS, a Customer Satisfaction Survey conducted by LEU in 2022 resulted in two key recommendations for improvement, including improving the efficiency of customer service and improving the functionality and content of utility bills by providing more detailed information on usage specifically, and staff are confident the SEW platform and services will help accomplish both; and WHEREAS, in accordance with Lodi Municipal Code Section 3.20.075, financial services contracts shall be awarded on the basis of professional qualifications and experience, quality of service, performance, and negotiated prices; and WHEREAS, the platform and services to be provided by SEW will result in cost savings to the City, as well as provide additional features and functionality for residents and businesses, thereby improving the overall customer experience; and WHEREAS, staff is recommending to appropriate funds for Fiscal Year 2022/23 as follows: 10020203.72312 $32,540 53053001.72312 $38,790 $32,540 56052001.72312 10050001.72312 $32,540 $136,410 NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a five -Year Agreement with Smart Energy Systems, Inc., of Irvine, California, (dba Smart Energy Water) for a Customer Web Portal Solution in an amount not to exceed $631,500 through June 30, 2028; execute a five-year Agreement with iPaySmart, Inc., of Las Vegas, Nevada, for Payment Services in an amount not to exceed $3,287,807 through June 30, 2028; and authorize the Deputy City Manager/Internal Services Director to execute all other necessary documents associated with these agreements and services; and BE IT FURTHER RESOLVED that the Lodi City Council does hereby authorize the appropriation of funds in the amount of $136,410 as set forth above; and BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol Manual (Res. No. 2019-223), the City Attorney is hereby authorized to make minor revisions to the above -referenced document(s) that do not alter the compensation or term, and to make clerical corrections as necessary. Dated: March 15, 2023 I hereby certify that Resolution No. 2023- was passed and adopted by the City Council of the City of Lodi in a regular meeting held March 15, 2023 by the following votes: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — PAMELA M. FARRIS Assistant City Clerk 2023- RESOLUTION NO. 2023-55 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A FIVE-YEAR AGREEMENT WITH SMART ENERGY SYSTEMS, INC., OF IRVINE (DBA SMART ENERGY WATER) FOR CUSTOMER WEB PORTAL SOLUTION; AND TO EXECUTE A FIVE-YEAR AGREEMENT WITH IPAYSMART, INC., OF LAS VEGAS, NEVADA, FOR PAYMENT SERVICES; AND FURTHER APPROPRIATING FUNDS WHEREAS, the Revenue Division is responsible for collecting payments for the City of Lodi with utility payments and general invoices currently accepted via online, kiosks, interactive voice response, drop-off box, and U.S. mail; and WHEREAS, the current online platform only takes payments and does not provide a customer service platform; and WHEREAS, Smart Energy Systems, Inc. (SEW) provides an online platform for customers that includes more comprehensive information about their account, payment options, and customer service assistance by providing a number of features and enhancements to the current customer experience; and WHEREAS, SEW payment sources include an online service, point of sale, telephone, and kiosk, as well as a 24-hour Chatbot feature which forwards to a live Customer Service Representative during working hours if the question is outside the Chatbot program; and WHEREAS, with the payment and added customer service features provided by SEW, the cost of the new platform will be less than the current payment -only platform, with an estimated cost savings of approximately $225,000 over five years; and WHEREAS, a Customer Satisfaction Survey conducted by LEU in 2022 resulted in two key recommendations for improvement, including improving the efficiency of customer service and improving the functionality and content of utility bills by providing more detailed information on usage specifically, and staff are confident the SEW platform and services will help accomplish both; and WHEREAS, in accordance with Lodi Municipal Code Section 3.20.075, financial services contracts shall be awarded on the basis of professional qualifications and experience, quality of service, performance, and negotiated prices; and WHEREAS, the platform and services to be provided by SEW will result in cost savings to the City, as well as provide additional features and functionality for residents and businesses, thereby improving the overall customer experience; and follows: WHEREAS, staff is recommending to appropriate funds for Fiscal Year 2022/23 as 10020203.72312 $32,540 53053001.72312 $38,790 56052001.72312 $32,540 10050001.72312 $32,540 $1136,410 NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a five -Year Agreement with Smart Energy Systems, Inc., of Irvine, California, (dba Smart Energy Water) for a Customer Web Portal Solution in an amount not to exceed $631,500 through June 30, 2028; execute a five-year Agreement with iPaySmart, Inc., of Las Vegas, Nevada, for Payment Services in an amount not to exceed $3,287,807 through June 30, 2028; and authorize the Deputy City Manager/Internal Services Director to execute all other necessary documents associated with these agreements and services; and BE IT FURTHER RESOLVED that the Lodi City Council does hereby authorize the appropriation of funds in the amount of $136,410 as set forth above; and BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol Manual (Res. No. 2019-223), the City Attorney is hereby authorized to make minor revisions to the above -referenced document(s) that do not alter the compensation or term, and to make clerical corrections as necessary. Dated: March 15, 2023 I hereby certify that Resolution No. 2023-55 was passed and adopted by the City Council of the City of Lodi in a regular meeting held March 15, 2023 by the following votes: AYES: COUNCIL MEMBERS — Bregman, Craig, Nakanishi, and Mayor Hothi NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None 42rmago' Y-??. LA�aAA"� PAMELA M. FARRIS Assistant City Clerk 2023-55