IFB_1260220_TSA_Agreement_v05_01_25_Draft.pdf

CONTRACT FOR

IFB/PS/AFRD/2605-1260220/EMS Revenue Billing Services

Atlanta, Georgia

Andre Dickens Mayor

City of Atlanta

Roderick M. Smith Fire Chief

Atlanta Fire and Rescue Department

Chandra Houston Chief Procurement Officer

Department of Procurement

IFB/PS/AFRD/2605-1260220/EMS

Revenue Billing Services 1

City of Atlanta Technology Services Agreement v050125kme

IFB/PS/AFRD/2605-1260220/EMS Revenue Billing Services

Contract Name:

EMS Revenue Billing Services

Contract:

IFB/PS/AFRD/2605-1260220

Service Provider Name: City of Atlanta Using Agency:

AFRD

Address: Address:

226 Peachtree St. SW Atlanta, GA 30303

Phone: Phone:

404-853-5544

Email: Email:

jwozniak@atlantaga.gov

Authorized Representative: Authorized Representative:

Jason Wozniak

THIS AGREEMENT, IFB/PS/AFRD/2605-1260220/EMS Revenue Billing Services (this “Agreement”) between the City of Atlanta (the “City”), a Georgia Municipal Corporation, and _______________________ (“Service Provider”) is entered into and effective on this ____ day of ___________________, 20___ (the “Effective Date”). City and Service Provider may be collectively referred to as the “Parties” or individually as a “Party.”

WHEREAS, pursuant to City of Atlanta Code of Ordinances (“Code”) §2-1188, the Chief Procurement Officer is authorized to enter into this Agreement for the purchase of an Emergency Medical Service (EMS) billing module that will encompass many services within AFRD. Atlanta Fire Rescue operates an EMS agency that utilizes seven (7) Advanced Life Support (ALS) transport units and up to one (1) Tactical Medic for the sole purpose of providing pre-hospital emergency medical care and patient transport. on behalf of the City’s Atlanta Fire and Rescue Department (“AFRD”); and

WHEREAS, Service Provider has agreed to provide such services as outlined within this Agreement and more specifically within Exhibit A of the Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth, the Parties agree as follows:

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1. Interpretation.

1.1 All capitalized terms used in this Agreement shall have the meanings ascribed to them in the Agreement documents, including in Exhibit B attached hereto.

1.2 If there is a conflict between any of the Agreement documents, precedence shall be given in the following order:1

1. Agreement

2. Exhibit A – Scope of Services

3. Exhibit A.1 – Compensation

4. Exhibit B – Definitions

5. Exhibit C – Authorization

6. Exhibit D – City Security Policies

7. Exhibit E – Dispute Resolution Procedure

8. Exhibit F – Task Order Form (Not Applicable)

9. Exhibit G – Additional Agreement Documents

10. Appendix A – Office of Contract Compliance Requirements

11. Appendix B – Insurance and Bonding Requirements

1.3 If the application of the foregoing procedure fails to resolve the discrepancy, unless Service Provider sought and obtained the clarification of the discrepancy prior to entering into this Agreement, the discrepancy shall be resolved by construing the provision in favor of the City and in such a manner as will further the City’s best interests.

2. Term and Renewal Options.

2.1 This Agreement is effective as of the Effective Date written above and is authorized to continue in effect for a period of five (5) years, unless earlier terminated in accordance with a termination provision later set forth in this Agreement. In the event this Agreement is not earlier terminated, the City, in its sole discretion, is authorized to exercise up to zero (0) additional renewal options each for a period of zero (0) additional year(s). Any authorized period of the Agreement including any renewal period shall be referred to as the “Term.” In the event the City elects to exercise any option to renew, such renewal option will be exercised according to the following procedures:

2.2 If City desires to exercise an option to renew, it will submit legislation authorizing such renewal for consideration by the City's Council and Mayor prior to the expiration of the Term. The legislation will establish the date of such renewal.

2.3 If such legislation is enacted, City will notify Service Provider of such renewal within fifteen

(15) days prior to the expiration of the Agreement, at which time Service Provider shall be bound to provide Services during such renewal period, without the need for the Parties to execute any further documents evidencing such renewal. Service Provider acknowledges that its initial execution of this Agreement is deemed its agreement to continue to provide Services during, any renewal period in accordance with the terms and conditions of this Agreement.

1 For purposes of this provision, authorized changes to an item in the order of precedence pursuant to a Change Document take precedence over the particular item changed.

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City of Atlanta Technology Services Agreement v050125kme

3. Authorization. This Agreement is authorized by legislation adopted by the City’s Council and approved pursuant to City Charter Section 2-403 which is attached as Exhibit C.

4. Services.

4.1 Description of Services. Service Provider shall provide the services described generally on Exhibit A attached hereto, and if applicable, as may be further described on any and all task orders issued pursuant to the section entitled “Task Orders” below (individually, a "Task Order" and, collectively, the “Task Orders”) (the “Services”). If any Services to be performed are not specifically included but are reasonably necessary to accomplish the purpose of the Agreement, they will be deemed to be implied in the scope of the Services to the same extent as if specifically described.

4.2 Resources. Unless otherwise expressly provided in this Agreement, all equipment, software, Facilities and Service Provider Personnel required for the proper performance of the Services shall be furnished by and be under the control of Service Provider. Service Provider shall be responsible, at its sole cost, for procuring and using such resources in a proper, qualified, professional, and high-quality working and performing order.

4.3 Quantity of Services. City makes no representations or warranties about the quantity of Services that will be requested or Charges that will be paid under this Agreement. Any quantity of Services or amount of Charges set forth in this Agreement are estimates only.

5. Funding. In accordance with Exhibit C herein, the City has authorized a total expenditure of up to ($) under this Agreement (the "Maximum Payment Amount").

6. Task Orders.

6.1 If applicable, Task Orders under this Agreement may be issued by City without further legislative approval pursuant to Code §2-1111, if the legislation authorizing this Agreement provides for such issuance. In such circumstances, the Task Order may be executed by City's Chief Procurement Officer. City, at its sole discretion, may unilaterally issue Task Orders for Services for which Charges are established in this Agreement. Service Provider shall promptly proceed with the Services set forth in any such Task Order. If City solicits a proposal from Service Provider for a Task Order, Service Provider shall submit its proposal with a Task Order containing all the necessary terms and executed by Service Provider. Task Orders may be executed or issued during the Term of this Agreement that contain a Service performance period that extends beyond the Term. No Task Order may be executed or issued under this Agreement subsequent to the expiration or termination of this Agreement.

6.2 Each Task Order will include the following: (a) a reference to this Agreement; (b) the Task Order Commencement Date and, if applicable, the period of time during which the Services will be provided; (c) a description of the Services to be provided; (d) the amounts payable and payment schedule for the Services; and (e) any additional provisions applicable to the Services.

No Task Order will become effective until it has been executed by an authorized representative of Service Provider and City. Each Task Order shall be in the form of the Task Order Form attached hereto as Exhibit F, unless the Parties mutually agreed upon a different form.

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7. Change Documents.

7.1 This section will govern changes to this Agreement whether or not such changes involve an increase in the Maximum Payment Amount. In accordance with Code §2-1292, changes in the Services or other aspect of this Agreement shall be made by written document (“Change Document” or “Unilateral Change Document”).2 All changes shall be implemented pursuant to this section and any Applicable Law.

7.2 Potential Change Documents that may be issued concerning this Agreement include, but are not limited to:

(a) Change Documents involving an increase to the Maximum Payment Amount executed between City and Service Provider which may or may not require legislative approval under Code §2-1292;

(b) Change Documents involving no increase to the Maximum Payment Amount, changes in the value of the Charges, or changes in the terms or amounts of compensation executed between City and Service Provider pursuant to Code §2-1292(d); and

(c) Unilateral Change Documents issued by City pursuant to Code §2-1292(d) involving no increase to the Maximum Payment Amount, changes in the value of the Charges, or changes in the terms or amounts of compensation.

7.3 Change Documents that do not involve an increase in the Maximum Payment Amount may be executed pursuant to Code §2-1292(d) either bilaterally or unilaterally by City.

7.4 City may propose a change in the Services or other aspects of this Agreement by delivering written notice to Service Provider describing the requested change (“City Change Request”).

Within ten (10) Business Days of issuance of City's Change Request, Service Provider shall evaluate it and submit a written response to the City’s Change Request (“Service Provider Proposed Change Document”). If Service Provider does not respond to the City Change Request within ten (10) Business Days of receipt, it shall be deemed that Service Provider agrees with the proposed change. A City Change Request which involves the reduction of Services shall be effective upon written notice to Service Provider.

7.5 Service Provider may, without receiving a City Change Request, on its own submit a Service Provider Proposed Change Document to the City’s Authorized Representative describing its own proposed change to the Agreement.

7.6 Each Service Provider Proposed Change Document shall include the applicable schedule for implementing the proposed change, any applicable changes to the Charges (either increased or decreased) and all other information applicable to the proposed change. Each Service Provider Proposed Change Document shall constitute an offer by Service Provider and shall be irrevocable for a period of sixty (60) Business Days. City shall review and may provide Service Provider with comments regarding a Service Provider Proposed Change Document, and Service

2 Change Documents may assume numerous multiple forms and titles depending on the nature of the change involved (e.g., Change Order, Unilateral Change Order, Amendment, Contract Modification, Renewal, etc.)

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Provider shall respond to such comments, if any. A Service Provider Proposed Change Document will become effective only when executed by an authorized representative of City.

7.7 City may propose any changes to the Agreement, including, but not limited to, changes that it contends do not involve an increase to the Maximum Payment Amount and Service Provider shall, in good faith, evaluate such proposed City Change Request. If City and Service Provider are able to reach agreement on such City Change Request, each will execute a Change Document concerning such City Change Request pursuant to Code §2-1292(d). Nothing in this Agreement shall, in the event of a disagreement between City and Service Provider concerning a proposed City Change Request, or otherwise, prohibit City from issuing a Unilateral Change Document to Service Provider, pursuant to Code §2-1292(d), and City and Service Provider agree to resolve any dispute pursuant to the Dispute Resolution Procedures set forth in Exhibit E. During the pendency of such dispute, Service Provider shall continue to perform the Services, as changed by such Unilateral Change Document.

8. Service Provider’s Obligations.

8.1 Service Provider Personnel. Service Provider shall be responsible, at its own cost, for all recruiting, hiring, training, educating, and orienting of all Service Provider Personnel, all of whom shall be fully qualified and shall be authorized under Applicable Law to perform the Services.

8.2 Service Provider Authorized Representative. Service Provider designates the Service Provider Authorized Representative named on page l of this Agreement (“Service Provider Authorized Representative”) and, such Person shall: (a) be a project executive and employee within Service Provider's organization, with the information, authority, and resources available to properly coordinate Service Provider's responsibilities under this Agreement; (b) serve as primary interface and the single-point of communication for the provision of Services by Service Provider; (c) have day-to-day responsibility and authority to address issues relating to the Services; and (d) devote adequate time and efforts to managing and coordinating the Services.

8.3 Qualifications. Upon City's reasonable request, Service Provider will make available to City all relevant records of the education, training, experience, qualifications, work history, and performance of Service Provider Personnel.

8.4 Subcontracting. Except to the extent specifically authorized in this Agreement, Service Provider will not enter into any agreement with or delegate any Services to any Third Party without the prior written approval of City, which City may withhold in its sole discretion. In the event Service Provider is approved to subcontract any of the Services, Service Provider shall: (i) remain responsible for the performance of Services by its subcontractor(s); (ii) remain City's sole point of contact for the Services; and (iii) be solely responsible for the payment of any subcontractor.

8.5 Conflicts of Interest. In accordance with Code §2-813, Service Provider shall immediately notify City, in writing, specifically disclosing any and all potential or actual conflicts of interests, which arise or may arise during the execution of the Services or in the fulfillment of the requirements of this Agreement. City shall make a written determination as to whether a conflict of interest actually exists and the actions to be taken to resolve the conflict of interest.

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8.6 Commercial Activities. Neither Service Provider nor any Service Provider Personnel shall establish any commercial activity, issue concessions, or permits of any kind to Third Parties for establishing any activities on City property.

9. City’s Authorized Representative.

9.1 Designation and Authority. City designates the City Authorized Representative named on page 1 of this Agreement (the “City Authorized Representative”) who shall (a) serve as primary interface and the single-point of communication for the provision of Services; (b) have day-to-day responsibility to address issues relating to this Agreement; and (c) to the extent provided under the Code, have the authority to execute any additional documents or changes on behalf of City.

9.2 City’s Right to Review and Reject. Any Work Product, Service, or other document or item to be submitted or prepared by Service Provider hereunder shall be subject to the review of the City Authorized Representative. The City Authorized Representative may disapprove, if in the City Authorized Representative's sole opinion the Work Product, Service, document or item is not in accordance with the requirements of this Agreement or sound professional service principles, or is impractical, uneconomical, or unsuited in any way for the purposes for which the Work Product, Service, document or item is intended. If any of the said items or any portion thereof are so disapproved, Service Provider shall revise the items until they meet the approval of the City Authorized Representative. However, Service Provider shall not be compensated under any provision of this Agreement for repeated performance of such disapproved items.

10. Payment Procedures.

10.1 General. City will not be obligated to pay Service Provider any amount in addition to the Charges set forth on Exhibit A.1 of this Agreement, or, as set forth in an applicable Task Order appropriately issued under this Agreement.

10.2 Invoices. Service Provider shall prepare and submit to City invoices for payment of all Charges in accordance with this Agreement. Each invoice shall be in such detail and in such format as City may reasonably require. To the extent not specified in this Agreement, Service Provider shall invoice City monthly for Services rendered.

10.3 Taxes. The Charges are inclusive of all taxes, levies, duties and assessments (“Taxes”) of every nature due in connection with Service Provider's performance of the Services. Service Provider is responsible for payment of such Taxes to the appropriate governmental authority. If Service Provider is refunded any Tax payments made relating to the Services, Service Provider shall remit the amount of such refund to City within forty-five (45) Business Days of receipt of such refund.

10.4 Maximum Amount. City shall not be obligated to pay any amount in excess of the Maximum Payment Amount for all Services rendered pursuant to this Agreement.

10.5 Payment. Unless otherwise specified in the Agreement, City shall endeavor to pay all undisputed Charges within thirty (30) Business Days of the date of the receipt by City of a properly rendered and delivered invoice. Notwithstanding the foregoing, unless otherwise provided, all undisputed Charges on an invoice properly rendered and delivered shall be payable within forty-five (45) Business Days of the date of receipt by City.

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10.6 Disputed Charges. If City in good faith disputes any portion of an invoice, City may withhold such disputed amount and notify Service Provider in writing of the basis for any dispute within thirty (30) Business Days of the later of: (a) receipt of the invoice; or (b) discovery of the basis for any such dispute. City and Service Provider agree to use all reasonable commercial efforts to resolve any disputed amount in any invoice within thirty (30) Business Days of the date City notifies Service Provider of the disputed amount.

10.7 No Acceptance of Nonconforming Work. No payment of any invoice or any partial or entire use of the Services by City constitutes acceptance of any Services.

11. Service Provider Representations and Warranties. As of the Effective Date and continuing throughout the Term and, if applicable, any subsequent Task Order performance period, Service Provider warrants to City that:

11.1 Authority. Service Provider is duly incorporated or formed, validly existing and is in good standing under the laws of the state in which it is incorporated or formed and is in good standing in each other jurisdiction where the failure to be in good standing would have a material adverse effect on its business or its ability to perform its obligations under this Agreement. Service Provider has all necessary power and authority to enter into and perform its obligations under this Agreement, and the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary actions on its part. No action, suit or proceeding in which Service Provider is a party that may restrain or question this Agreement, or the provision of Services by Service Provider is pending or threatened.

11.2 Validity of Agreement. This Agreement has been duly and validly executed and delivered by Service Provider and constitutes the valid and binding obligation of Service Provider, enforceable in accordance with its terms.

11.3 Professional Standards. The Services will be performed in a professional and workmanlike manner in accordance with the standards imposed by Applicable Law and the practices and professional standards used in well managed operations performing services similar to the Services.

11.4 Conformity. The development, creation, delivery, provision, implementation, testing, maintenance, and support of all Services shall conform in all material respects to the description of such Services in this Agreement.

11.5 Originality and Title to Concepts, Materials, and Goods. If applicable and in accordance with Code §§2-1294 and 2-1295, Service Provider represents and warrants that all processes, procedures, Work Product, materials and methodologies used by Service Provider or any Service Provider Personnel, or City's use thereof (or access or other rights thereto) in connection with the Services, or any of the Services themselves, (i) are wholly original with the Service Provider or Service Provider Personnel or Service Provider has secured all applicable interests, rights, licenses, permits or other Intellectual Property Rights; (ii) shall not violate the rights of publicity or privacy of, or constitute a libel or slander against, any Third Party; and (iii) shall not infringe or misappropriate the Intellectual Property Rights of a Third Party. Service Provider represents and warrants that it is the owner of or otherwise has the right to use and distribute the goods and services contemplated by the Agreement.

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11.6 Contingent Fees Prohibited. In accordance with Code §2-1485, it has not employed or retained any company or Person, other than a bona fide employee working for Service Provider, to solicit or secure this Agreement; and that Service Provider has not paid or agreed to pay any Person other than a bona fide employee working for Service Provider, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the above warranty, and upon a finding after notice and hearing, City shall have the right to terminate the Agreement without liability, and, at its discretion, to deduct from the Agreement, or otherwise recover the full amount of, such fee, commission, percentage, gift or consideration.

12. Compliance with Laws.

12.1 General. Service Provider will perform the Services in compliance with all Applicable Laws.

12.2 City’s Socio-Economic Programs. Service Provider shall comply with any and all applicable City socio-economic programs, including, but not limited to, City’s EBO and EEO Programs, and requirements set forth in the Code in the performance of the Services.

12.3 Consents, Licenses and Permits. Service Provider will be responsible for, and the Charges shall include the cost of obtaining, maintaining and complying with, and paying all fees and taxes associated with, all applicable licenses, authorizations, consents, approvals and permits required of Service Provider in performing Services and complying with this Agreement.

13. Data Security.

13.1 Service Provider Data Security Obligations. To the extent that Service Provider accesses or processes any data received from or on behalf of City under this Agreement (“City data”), Service Provider shall at all times:

(a) act only on the instructions of City;

(b) not transfer City data to another party without City’s prior written consent;

(c) have in place appropriate technical and organizational security measures against unauthorized or unlawful processing, access, loss, destruction, disclosure, and damage of such City data;

(d) immediately notify City upon any breach, potential breach, or unauthorized access to City data;

(e) immediately notify City of any requests for information, complaints, or other communications received from any governmental agency regarding data; and upon City’s request, facilitate City’s interaction with governmental agencies.

13.2 Data Ownership. To the extent that Service Provider accesses or processes any data received from or on behalf of City in the course of provision of the obligations under this Agreement, all City data, including copies, summaries and derivative works thereof, must be remitted, in a mutually agreeable format and media, to City by the Service Provider upon request or upon completion, expiration, termination, or cancellation of this Agreement. The foregoing sentence does not apply if the City’s Chief Information Security Officer or delegate authorizes in writing the Service Provider to sanitize and/or destroy the data and the Service Provider certifies, in writing, that the sanitization and/or destruction of the data has occurred. Within ninety (90) calendar days following any remittance of City data to City, Service Provider shall, unless otherwise instructed by City in writing, sanitize and/or destroy any remaining data and certify

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City of Atlanta in writing that the sanitization and/or destruction of the data has occurred. Any such remittance, sanitization, or destruction of date will be at the Service Provider’s sole cost and expense.

13.3 Information Security Program. To the extent that Service Provider accesses or processes any data received from or on behalf of City in the course of provision of the obligations under this Agreement, Service Provider shall establish a written information security program (“ISP”) containing appropriate administrative, technical, and physical measures to protect City data (including Personal Information) against accidental or unlawful destruction, alteration, unauthorized disclosure or access consistent with Applicable Laws.

13.4 Data Security Incident.

13.4.1 Notification. If Service Provider becomes aware of a security breach (as defined in any Applicable Law) or any other event that compromises the security, confidentiality or integrity of City data (an “Incident”), Service Provider will take appropriate actions to contain, investigate and mitigate the Incident. Service Provider shall immediately notify City of an Incident, but in no event later than forty-eight (48) hours.

13.4.2 Other Service Provider Obligations. In the event that an Incident causes release of Personal Information of individuals, Service Provider shall, to the extent legally required or otherwise necessary, notify the individuals of potential harm, and bear the actual, reasonable costs of: (a) notifying affected individuals, insureds, or others the City deems appropriate, provided that Service Provider and City shall mutually agree on the content and timing of any such notifications, in good faith and as needed to meet applicable legal requirements; (b) establishing a call center or other communications procedures in response to such Incident (e.g., customer service FAQs, talking points and training); (c) public relations and other similar crisis management services; (d) legal and accounting fees and expenses; and (e) if applicable based on the nature of the of the Incident, one (1) year of credit monitoring to affected individuals. The foregoing obligations shall not be limited in any way by any limitation of liability under this Agreement, nor shall any amounts paid or incurred under this section count towards or be applied to any cap or other limitation on damages.

13.4.3 City Data Policies. Service Provider shall comply with Code §2-234.1, any City Security Policies included in Exhibit D, and any additional City Security Policies that the City may provide during the Term of this Agreement. Service Provider shall ensure that all Service Provider Personnel comply with the same.

13.5 Data Residency and Location. Service Provider shall ensure that all City data (including Personal Information) processed, stored, or transmitted in connection with this Agreement shall remain within the territorial boundaries of the United States of America unless required by Applicable Law or with prior written consent from the City. In such event, any transfer of data outside of the United States must comply with relevant data protection regulations and require appropriate safeguards to ensure data security and privacy.

13.6 Access to City Network. To the extent Service Provider accesses any City technology assets, the Service Provider shall comply with the following:

13.6.1 Access Request. Service Provider shall not permit any Service Provider Personnel to connect to the City’s network without the City’s prior written approval. Service

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Provider must submit to the City a formal request for access, which may be granted or denied at the City’s sole discretion. To ensure compatibility, security, and compliance with the City’s IT requirements, before any access to City technology assets is granted, the Service Provider shall provide details on technical specifications and interface requirements as indicated hereinbelow.

13.6.2 Technical Specifications Description. Service Provider shall provide a comprehensive description of the technical specifications/data architecture to be utilized in connection with the services/products delivered under this Agreement. This description shall include:

(a) The overall design and structure of the data system;

(b) Details on data storage, processing, and retrieval methods;

(c) Data models, including the organization of databases, tables, and entities;

(d) The flow of data between systems, including how data is ingested, processed, stored, and accessed;

(e) Security measures at all levels of the architecture, including encryption, access control, and data integrity protections;

(f) Any cloud or on-premise infrastructure utilized, including relevant configurations;

and

(g) Such other information as the City may reasonably request.

13.6.3 Required Interfaces and Integration Details. Service Provider shall provide a detailed description of all interfaces required for the integration of the data system, including technical details such as Application Programming Interfaces (APIs), Data Exchange Formats, Data Transfer Mechanisms, Data Synchronization Methods, Error Handling Protocols, and Network and Connectivity Specifications, and Information on the network architecture required for seamless data exchange, including bandwidth requirements and connectivity protocols.

13.6.4 Technical Documentation and Updates. Service Provider shall provide and maintain up-to-date technical documentation detailing the architecture, data flow, and integration interfaces. This documentation shall be delivered to the City upon request and updated as necessary during the term of the Agreement to reflect changes, upgrades, or modifications to the system.

13.6.5 Compliance and Data Governance. Service Provider’s data architecture, interfaces, data transfer, and data storage shall comply with all Applicable Law and standards related to data security, privacy, and governance, and shall adhere to best practices for data protection.

14. Business Continuity; Disaster Recovery. Throughout the Term of this Agreement, Service Provider shall maintain a commercially reasonable business continuity and disaster recovery plan and will follow such plan.

15. Confidential Information.

15.1 Handling of Confidential Information. Each Party agrees to preserve as strictly confidential all Confidential Information of the other Party for two (2) years following the expiration or termination of this Agreement; provided, however, that each Party’s obligations for the other

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Party’s Confidential Information that constitutes trade secrets pursuant to Applicable Laws will continue for so long as such Confidential Information continues to constitute a trade secret under Applicable Law. Any Confidential Information that may be deemed Sensitive Security Information by the Department of Homeland Security or any other similar Confidential Information related to security will be considered trade secrets. Upon request by City, Service Provider will return any trade secrets to City. Each Party agrees to hold the Confidential Information of the other in trust and confidence and will not disclose it to any Person or use it (directly or indirectly) for its own benefit or the benefit of any other Person other than in the performance of its obligations under this Agreement.

15.2 Disclosure of Confidential Information or Information Other Party Deems to be Confidential Information. Each Party will be entitled to disclose any Confidential Information if compelled to do so pursuant to: (i) a subpoena; (ii) judicial or administrative order; or (iii) any other requirement imposed upon it by Applicable Law. Prior to making such a disclosure, to the extent allowed pursuant to Applicable Law, each Party shall provide the other with thirty-six (36) hours prior notice either by facsimile or via both electronic mail and certified mail to the City’s Authorized Representative of its intent to disclose, describing the content of the information to be disclosed and providing a copy of the pleading, instrument, document, communication or other written item compelling disclosure with the name, address, phone number and facsimile number of the Person requesting disclosure. Should the non-disclosing Party contest the disclosure, it must: a) seek a protective order preventing such disclosure; or b) intervene in such action compelling disclosure, as appropriate. This section shall be applicable to information that one Party deems to be Confidential Information, but the other Party does not.

16. Work Product.

16.1 If applicable, and except as otherwise expressly provided in this Agreement, all reports, information, data, specifications, computer programs, technical reports, operating manuals and similar work or other documents, all deliverables, and other work product prepared or authored by Service Provider or any of its Service Provider Personnel exclusively for City under this Agreement, and all Intellectual Property Rights associated with the foregoing items (collectively, the “Work Product”) shall be and remain the sole and exclusive property of City.

Any of Service Provider’s works of authorship comprised within the Work Product (whether created alone or in concert with City or Third Party) shall be deemed to be “works made for hire” and made in the course of services rendered and, whether pursuant to the provisions of Section 101 of the U.S. Copyright Act or other Applicable Law, such Work Product shall belong exclusively to City. Service Provider grants the City a non-exclusive, perpetual, worldwide, fully paid up, royalty-free license to all Work Product exclusively developed for City under this Agreement.

16.2 If any of the Work Product is determined not to be a work made for hire, Service Provider assigns to City, worldwide and in perpetuity, all rights, including proprietary rights, copyrights, and related rights, and all extensions and renewals of those rights, in the Work Product. If Service Provider has any rights to the Work Product that cannot be assigned to City, Service Provider unconditionally and irrevocably waives the enforcement of such rights and irrevocably grants to City during the term of such rights an exclusive, irrevocable, perpetual, transferable, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make, have made, create derivate works of, distribute, publicly perform and publicly display by all means, now known or later developed, such rights.

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16.3 City shall have the sole and exclusive right to apply for, obtain, register, hold and renew, in its own name or for its own benefit, all patents, copyrights, applications and registrations, renewals and continuations and all other appropriate protection.

16.4 To the extent exclusive title or complete and exclusive ownership rights in any Work Product created by Service Provider may not originally vest in City by operation of Applicable Law, Service Provider shall immediately upon request, unconditionally and irrevocably assign, transfer, and convey to City all rights, title and interest in the Work Product.

16.5 Without any additional cost to City, Service Provider shall promptly give City all reasonable assistance and execute all documents City may reasonably request to enable City to perfect, preserve, enforce, register, and record its rights in all Work Product. Service Provider irrevocably designates City as Service Provider’s agent and attorney-in-fact to execute, deliver and file, if necessary, any documents necessary to give effect to the provisions of this section and to take all actions necessary, in Service Provider’s name, with the same force and effect as if performed by Service Provider.

17. Audit and Inspection Rights.

17.1 Service Provider shall maintain complete and accurate books, records, and accounts to support and document performance under this Agreement (“Service Provider Records”) by Service Provider, or Service Provider Personnel. Service Provider shall keep, at no additional cost to City, in a reasonably accessible location, all such Service Provider Records for a period of seven

(7) years after expiration of this Agreement or as required by Applicable Law, if longer. In accordance with Code §§2-1208 and 2-1209, the Service Provider Records may be inspected, audited, and copied by City or City’s Authorized Representative during normal business hours and at such reasonable times as City and Service Provider may determine. If any audit or inspection of Charges or Service Provider’s performance, including the performance of any Service Provider Personnel reveal that City has overpaid any amounts to Service Provider, Service Provider shall promptly refund such overpayment and Service Provider shall also pay to City interest on the overpayment amount at the rate of one and one-half percent (1.5%) per month (or such maximum rate permissible by Applicable Law, if lower) from the date the overpayment was made until the date the overpayment is refunded to City by Service Provider.

17.2 Upon City’s request, Service Provider shall provide a copy of its latest operations audit for Facilities not managed by City that are used to provide services under this Agreement. Each report shall cover a twelve (12) month period during the Term. Such audits may be on a rotating site basis where operations and procedures of Service Provider and Service Provider Personnel comply in all aspects of this Agreement. Service Provider shall provide City with a copy of each report prepared in connection with each such audit within thirty (30) Business Days after it prepares or receives such report. City may consult with all Third Party auditors and review Third Party audit reports for any reviews which were conducted and are relevant to the Services.

17.3 During regular business hours, but no more frequently than once every twelve (12) months, City may, at its sole expense, perform an audit of Service Provider’s operations which shall not be duplicative of any other audits required by this Agreement. Such audits shall be conducted on a mutually agreed upon date (which shall be no more than thirty (30) Business Days after City’s written request of time, location, and duration), subject to reasonable postponement by Service Provider or Service Provider Personnel upon Service Provider or Service Provider Personnel’s request, provided however, than no such postponement shall exceed thirty (30) Business Days, Revenue Billing Services 13

City of Atlanta unless agreed to in writing by the Parties. Service Provider or Service Provider Personnel shall provide City with a copy of each report prepared in connection with any such audit no more than thirty (30) Business Days after Service Provider or Service Provider Personnel receives such report. Service Provider or Service Provider Personnel shall promptly act at its expense to correct those matters or items identified in any such audit that require correction.

17.4 Upon written notice and at a mutually acceptable time, City or City Representatives may audit, test and inspect: (i) Service Provider’s ISP; (ii) Service Provider’s Facilities; (iii) Service Provider’s Business Continuity and Disaster Recovery Plans; and, (iv) Service Provider Personnel locations, as well as other Service Provider resources, including systems equipment, operational environments, support locations, recovery processes, data centers, backup locations and call centers used to provide services under this Agreement. This information security audit is in addition to other audit rights granted herein. Service Provider or Service Provider Personnel shall promptly take action at its expense to correct all issues identified by an information security audit that City, in its reasonable discretion, identifies as requiring correction. Service Provider shall ensure that all Service Provider Personnel maintain adequate policies, procedures and controls designed to ensure that such Service Provider Personnel will protect City Confidential Information in the same manner that Service Provider is required to protect City Confidential Information under this Agreement. Upon the request of City, Service Provider shall deliver to City such information as may be reasonably requested by City related to Service Provider’s oversight of any Service Provider Personnel, including any findings by Service Provider that any Service Provider Personnel is not in compliance with the information security requirements set forth in this Agreement.

17.5 If performed, Service Provider shall provide annually at its expense its most recent American Institute of Certified Public Accountants (“AICPA”) System and Organization Control (“SOC”) reports (or any successor reports thereto) pertaining to the service obligations of Service Provider under this Agreement and covering the most recent consecutive twelve (12) month period during the Term. Service Provider shall provide City a copy of each report within thirty

(30) calendar days after Service Provider receives such report. Additionally, Service Provider shall provide City with a copy of Service Provider’s ISO reports or other similar reports, if any.

Service Provider shall inform City of any internal auditing capability it possesses and permit City to consult with such auditors at reasonable times.

18. Indemnification by Service Provider.

18.1 General Indemnity. Service Provider shall indemnify and hold City, its agencies and its and their respective officers, directors, employees, advisors, and agents, successors and permitted assigns (collectively, “City Indemnitees”), harmless from any losses, liabilities, damages, demands and claims, and all related costs (including reasonable legal fees and costs of investigation, litigation, settlement, judgment, interest, and penalties) arising from claims or actions based upon:

(a) Service Provider's or Service Provider Personnel's performance, non-performance, or breach of this Agreement;

(b) compensation or benefits of any kind, by or on behalf of Service Provider or Service Provider Personnel, claiming an employment or other relationship with Service Provider or such Service Provider Personnel (or claiming that this Agreement creates an inherent, statutory or implied employment relationship with City or arising in any other manner out

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City of Atlanta of this Agreement or the provision of Services by such Service Provider or Service Provider Personnel);

(c) any actual, alleged, threatened or potential violation of any Applicable Laws by Service Provider or Service Provider Personnel, to the extent such claim is based on the act or omission of Service Provider or Service Provider Personnel, excluding acts or omissions by or at the direction of City;

(d) death of or injury to any individual caused, in whole or in part, by the tortious conduct of Service Provider or any Person acting for, in the name of, at the direction or supervision of or on behalf of Service Provider; and

(e) damage to, or loss or destruction of, any real or tangible personal property caused, in whole or in part, by the tortious conduct of Service Provider or any Person acting for, in the name of, at the direction or supervision of or on behalf of Service Provider.

18.2 Intellectual Property Indemnification by Service Provider. Service Provider shall indemnify and hold City Indemnitees harmless from and against any losses, liabilities, damages, demands and claims, and all related costs (including reasonable legal fees and costs of investigation, litigation, settlement, judgment, interest and penalties) arising from claims or actions based upon any of the processes, procedures, Work Product, materials and methodologies used by Service Provider or any Service Provider Personnel, or City's use thereof (or access or other rights thereto) in connection with the Services, or any of the Services themselves, infringes or misappropriates the Intellectual Property Rights of a Third Party. If any processes, procedures, Work Product, materials, methodologies or Services provided by Service Provider hereunder is held to constitute, or in Service Provider's reasonable judgment is likely to constitute, an infringement or misappropriation, Service Provider will in addition to its indemnity obligations, at its expense and option, and after consultation with City regarding City's preference in such event, either:

(a) procure the right for City Indemnitees to continue using such processes, procedures, Work Product, materials, methodologies or Services; (b) replace such processes, procedures, Work Product, materials, methodologies or Services with a non-infringing equivalent, provided that such replacement does not result in a degradation of the functionality, performance or quality of the Services; (c) modify such processes, procedures, Work Product, materials, methodologies or Services, or have such processes, procedures, Work Product, materials, methodologies or Services modified, to make them non-infringing, provided that such modification does not result in a degradation of the functionality, performance or quality of the processes, procedures, Work Product, materials, methodologies or Services; or (d) create a feasible workaround that would not have any adverse impact on City.

18.3 Indemnification by City. In accordance with O.C.G.A. § 50-5-64.1(a)(1), the City is prohibited from defending, indemnifying, or holding harmless any other person. Any provision within this Agreement or Additional Terms (as defined hereinbelow) purporting to require the City to defend, indemnify or hold harmless any other person shall be void as a matter of law.

19. Limitation of Liability.

19.1 General. THE MAXIMUM AGGREGATE LIABILITY OF CITY HEREUNDER IS LIMITED

TO THE TOTAL OF ALL CHARGES ACTUALLY PAID DURING THE CURRENT YEAR

UNDER THE AGREEMENT. EXCEPT FOR SERVICE PROVIDER'S INDEMNITY

OBLIGATIONS SET FORTH IN THE SECTION ENTITLED "INDEMNIFICATION BY

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City of Atlanta

SERVICE PROVIDER" AND WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY

SERVICE PROVIDER, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,

CONSEQUENTIAL, OR PUNITIVE DAMAGES (OR ANY COMPARABLE CATEGORY

OR FORM OF SUCH DAMAGES, HOWSOEVER CHARACTERIZED IN ANY

JURISDICTION), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR

NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT,

REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE,

TORT, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, AND EVEN IF

FORESEEABLE OR IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF

SUCH DAMAGES.

19.2 Exceptions to Limitations. The limitations set forth in the immediate subsection shall not apply to: (a) personal injury, wrongful death, or tangible property damage; (b) any claim for infringement of intellectual property; (c) any breach of the section entitled “Confidential Information;” or (d) any claim involving a violation of any Applicable Law concerning homeland security, terrorist activity or security sensitive information, regardless of the manner in which such damages are characterized.

20. Insurance and Bonding Requirements. Service Provider shall comply with all insurance and bonding requirements set forth on Appendix B.

21. Suspension of Services. In accordance with Code§2-1291(2), City may, by written notice to Service Provider, suspend at any time the performance of any or all of the Services to be performed under this Agreement. Upon receipt of a suspension notice, Service Provider must, unless the notice requires otherwise, (a) immediately discontinue suspended Services on the date and to the extent specified in the notice; (b) place no further orders or subcontracts for materials, services or Facilities with respect to suspended Services, other than to the extent required in the notice; and (c) take any other reasonable steps to minimize costs associated with the suspension.

22. Termination.

22.1 Termination by City for Cause.

22.1.1 In accordance with Code §2-1291(7), City may at its option, by giving written notice to Service Provider, terminate this Agreement or any applicable Task Order:

(a) for a material breach of this Agreement by Service Provider that is not cured by Service Provider within seven (7) Business Days of the date on which City provides written notice of such breach;

(b) immediately for a material breach of this Agreement by Service Provider that is not reasonably curable within seven (7) Business Days;

(c) immediately upon written notice for numerous breaches of this Agreement by

Service Provider that collectively constitute a material breach or reasonable grounds for insecurity…