HomeMy WebLinkAboutPARKMOBILE 2 - 2015INSURANCE NOT REQUIRED N-2016-077
WORK MAY PROCEED
CLERK Of COUNCIL
DAM MAY 2 0 2015
4. Flys Cla
mobile ate."
PARKING SERVICES AGREEMENT
TIIIS PARKING SERVICES AGREEMENT (thio Agicetngnt") is made and entered inter as of
this 4th day of May, 201 5 (the "_P,_,a2ective I),4te"), by and among PARKit?ICIIJILE, MC. a Delaware limited
liability company { `Parkmobtic"), and City of Santa Arra, to charter city and municipal corporation organised
and existing under the Constitution and laws of the State ofCalifornta
RECITALS:
WHEREAS. Parkmobilc is engaged in the business of providing integrated solutions for the
manageinen of all parking -related matters, including providing a :system for the payment of street parking by
mobile telephone; and
WIIEREAS, Parkmobile and Client desire to enter into it mutually beneficial arrangeinem. pursuant
to which Parkmobile will provide mobile parking services to Client, upon the terms and subject to the
Conditions contained herein.
NOW, THEREFORE, in consideration of the terms, conditions, covenants and agreements contained
herein, and oilier good and valuable consideration, the receipt and sufficiency of which arc hereby
acknowledged by the parting hereto, and in order to effectuate the above arrangement, the parties hereto agree
its follows:
AR'TIC'LE; I
SERVICES
1.1 Services Provided Iry Parkmobile. During the `furan (as defined herein). ParkmebRe shall
direct its personnel to perform the sorvices for Client as described on'Sched, tlt_e I hereof (as amended, modified
or supplemented front time to time upon the nsutnai written agreement of the parties, tineScfyices,
Partcmobile shall render the Services faithfully and to the best of its ability and in compliance with all
applicable law, regulation, legal or regulatory process or government agency, rales or regulations (eollectively,
"Law"), devoting such bane as is reasonably necessary to provide the Services- The precise Hailes and manner
or the pwrfornnane,,c of Services shall be as reasonably requested by ('.hent, consistent with a schedules to be
reasonably agreed upon from time to time by Parkmobile and (lient. In connection with Patkmobile's
per€ormance of the: Services, Parkmobile shall be subject to, and agrees to abide by, such policies, procedures.
directions and restrictions as Client may reasonably establish from time to time.
If Client requiresadditional work that is not included in this AgrecAncra, Parkmobile and Client shall negotiate
the additional work, mutually agree on the amount of additional compensation, and memorialize the tones in
either a separate written contract or an amendment to this Agreement.
1.2 Belly Stud Su))tort. Parkmobile agrees to use its reasonable efforts to assist Client with any
technical support that. Client may reasonably require in relation to using the Services. In furtherance of the
foregoing, Parkmobile agrees to provide Client with preventative maintenance, corrective maintenance,
adaptive maintenance and online, on-site and telephone support with respect to the Services. Each of
Parkmobile and Client shall promptly notit"y the other of any errors or interruptions that arise during Client's
use of Parkniobile's software or the Services hereunder.
1.3 Error Corrections. to the event of any errors or interruptions in the Services. Parkinobile's
sole and exclusive obligation shall be to use reasonable efforts to repair or restore that portion ofthe. Services
as promptly as possible. Repair may take the form, at the option of Parkniobile, as the case may be, of:
(i)corrected software applicable to the Services; (ii)corrected materials in hard copy or electronic form
describing the use and operation of the software applicable to the Services, including any manuals and
programming tools; (iii) instruc=tions or procedures to bypass the problem until it more permanent correction
can be implemented, or (iv) correctionlclari#kation of the functional definition of the Services.
1.4 No Performance Warranty. I he Services are provided to Client "A5 IS" with no warranty
of arty kind. Notwithstanding the foregoing, Parkmobile shall provide the Services in accordance with tlae
service levels set forth on Schedule 2, as the same may be amended front time to time.
1.9 Reservation of Ria=hts. All eights not expressly granted to Client herein are reserved to
Parkmobile. All intellectual property rights related to the Services, as well as any additional services,
software, technology or systents developed by Parkmobile, belool, to Parkmobile.
1.6 Pnb4ieity tri Services. All brochures and proinotional materials to be distributed by f licit in
connection with the Services shall be in a form mutually agreed upon by the paries.
1.7 Cnotieratieon- Fach party shall reasonably cooperate with the other party to permit such party
to perform its duties and obligations under this Agreement in a timely manner.
1.8 Authority of the Parties. Each party acknowledges and agrees that it Inas no authority to act
on behalf of the other party other than as set forth in this Agreement or to enter into any contract or to incur
any {lability on behalf of the other party, except with prior written consent of an authorized officer of such
party. Faeh pare covenants that it shall not at any time represent, either orally or in writing, that it has any
right, power or authority with respect to the other party not expressly granted to the other party by such party.
ARTICLE 2
FEES; EXPENSES
2.1 Fees. The fees (the "Fees,") applicable to the Services, are set forth ort Schedule 3.
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hedtle 3 may be updated from time to time in writing upon the annual agreement of the panties to refect
any changes or modifications in tine Fees payable hereunder.
2.2 Payment. Payment is due not later than forty-five (45) days after invoice. Late payment
interest of tett percent (10%) per annum may be assessed by Parkmobile on any payment past due, in which
case such interest shall accrue From the payment due date to the date payment is received. payment by Client
to Parkmobile shall not exceed't wenty Five i'housandDollars ($25,000) annually.
2.3 Taxes. Parkambile's prices du not include sales, use, revenue or excise taxes, and
accordingly, in addition to the price specified herein, the atnount of any sales, use, excise or other similar tax
applicable to the Services provided hereunder shall be paid by Client, or, in lien thereof, Client shall provide
Parkmobile with a tax exemption certificate issued by the appropriate taxing authority.
2.4 BiflnLDisautes. Client shall not he entitled to suspend payment of any disputed invoices.
Any disputes must be submitted to Parkmobile in writing and with as explanation of the reason for the dispute.
In the event that any payment dispute is resolved in favor of Client. Parkmobile shall credit Client on the
immediately subsequent invoice issued to Client.
2.5 Expenses. Except as otherwise provided herein, Parkmobile shall not charge Client any costs
for the integration of its system(s) or for the management of the project and the Services. Parkmobile shall
charge Client for ordinary, necessary and reasonable third party costs only on direct cost basis and only after
the prior approval of Client.
ARTICLE 3
TERM; TERMINATUON
3.1 Term. Tine initial term of this Agreement shall commence as of the Fffective Elate and
terminate oil May 3, 2010 (the "Innitl Term"). following the Initial Terin, the Agreement shall be
automatically extended annually for one (I) year renewal terms (each a `'Renew l "Perm" ), provided that
neither piety gives written notice to the other or its intent not to renew this Agreement at least sixty (GO) days
prior to the expiration of the then -current Rtave val Term. I he date on which this Agreement is terminated or
expires as provided herein is called the "Termination f)ate," and tine period from the Fffective fate through
the `Vermination Cate is herein called Tire "'Germ."
3,2 Termination for L ause.
(a) Either party may terminate this Agreement and the rights granted herein if the other
party hreaches any of the provisions of this Agreement anm
d (i) fails to reedy such breach within rorty -five
(45) days after receiving written notice thereof, or (ii) provided the breach does nob relate to it tnonctary
obligation, fails to (A;) commence a good faith action to remedy such breach within five (5) days after
receiving written notice thercot; and (€3) diligently pursue such action to Conclusion.
(b) if Parkmobile increases hard User Fecs or additional service fees, Client shall have the
right to terminate this Agreement by providing sixty (GQ) days written notice to Parkmobile,
(C) Should either party (I)make a general assignment for the benefit of creditors;
(it) institute liquidation proceedings or proceedings to be adjudicated as voluntarily bankrupt; (iii) consent to
the tiling of a petition of bankruptcy against it; IN) be adjudicated by a court of competent jurisdiction as
being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act; (vi) consent to the filing of a
petition seeking such reorganization, or (vii) have if decree entered against it by it court of eompetent
Jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in an insolvency covering all
or substantially all of such party's property or providing for the liquidation or dissolution of such party's
property or business affairs; then, in any such event, tine other party, at its option and without prior notice, may
terminate this Agreement effective immediately,
3.3 Effect oft"ertnination.
(a) Upon termination or expiration of this Agreement, (i) Client shall pay to Parkmobile
any portion of the Fees then accrued and properly payable under this Agreement: (ii)Client shah promptly
return to Parkmobile all materials in its possession provided by Parkmobile or otherwise created or produced
by Parkmobile in connection with the performance of tine Services hereunder; and (iii) Client shall discontinue
all use of the Technology and intellectual property of Parkmobile and P416,
(b) Notwithstanding the exercise by any party of its rights under this article 3, no
termination of this Agreement shall relieve either party of its liability for the payment or performantce of any
obligation accrued prior to the Termination hate (including any indemnification obligation arising hereunder,
whether or not notice of such indemnification claim has been given before such ternnination, or of any rights or
obligations under any other provisions, which, by their meaning or content, are intended to survive the
termination hereot).
ARTTCLE 4
ADDITIONAL COVENANTS O T11F PARTIES
4.t Confidentiality.
(a) Each party acknowledges that all int'ormation and trade secrets relating to any of the
other party's products and the services hercumlcr, including, without limitation, pricing, software, business and
financial information, marketing and promertion plans, any changes or improvements therein, including ally
cost savings measures, is the confidential and proprietary information of such other party ("Confidential
Infgrm rtiop"). Except as othct-wise set out herein, neither party shall disclose any Confidential infirmation of
the other party to any third party or use it for its own benefit or the benefit of a third party, and each party shall
take all commercially reasonable measures to protect the confidentiality of Contidentia€ Information of the
other party and prevent its disclosure to others.
(b) Each party may disclose the Confidential Inforination of the disclosing party to its
affiliates and their respective: employees and agents who are directly involved in kite perlorinance irf this
Agreement, who have a need to know and will) are obligated to honor the restrictions on disclosure and asc of
,inch Confidential Information set forth in this Agreement (tire persons to whom such disclosure is permissible
being collectively known as " Represent ttive:s_"). tiach party shall be responsible for any breach of this
Swim 4.1 by its Representatives. The parties ,hail not disclose, without the prior written consent of tthe
disclosing party, any of such disclosing party's Confidential Information that it has learned either during the
comrse o; this Agreement or in discussions and proposals leading tip to this Agreenicut, except as may be
required by Law. The parties shall not use the Confidential Information of a disclosing party for any purpose
other than that for which it was disclosed.
(c) All Confidential Information of Parkmobile and Client shall retrain the property of
each respective party. Upon any termination or expiration of this Agreement, each party shafl return to the
other party the other party's original version of all Confndemial Information of such other party in document
form, including any electronic media version, such as CD-ROM or computer disk, and shall confirm to such
otter party in writing that all such documents and things have been so provided and that all copies thereof
have been destroyed subject to compliance with applicable Law, I tie foregoing shall not apply to any.
Confidential Information that is in the public domain without breach of this Agreement, Confidential
Information that a party can demonstrate was known prior to receipt farm the other party or Confidential
Information that was subsequently received from a third patty without any obligation of confidentiality to the
other party.
(d) To the extent any party determines it necessary or advisable to file a copy of this
Agreement with a governmental agency, including the United States Securities and Exchange Commission, or
otherwise in accordance with I_aw, that party and its counsel shall work with the non -disclosing party and its
counsel to obtain confidential treatment of relevant portions of this .Agreemcnt, including, without limitation,
product and service specifications and pricing, information..
(e) Each party agrecs that irreparable damage would occur, and that monetary damages
would be an insufficient remedy- at law, in tine event that any (if the provisions of this Section 4.1 were not
performed by the other patty in accordance with the terms hereof and that the each party shall be entitled to
specific perfon mance of the terms herco f, in addition to any other remedy at law or equity.
(f) Each party's obligation with respect to the Confidential Information of a disclosing
paiYy shall expire three (3) years after the termination or expiration of this Agreement, p ovided, however, that
each party's obligations with respect to the trade secrets of a disclosing party shall remain in effect throughout
the Term and at all times thereafter_ but only for so long as such information remains it trade secret.
4.2 111161-ntation. Subject to Section 4.I and any applicable Laws and privileges, each party
covenants and shall provide the other party with all information regarding itself and the transactions under this
Agreement that tile other party reasonably believe,, is required to comply with all applicable Law and to satisfy
the requesting parry's obligations hereunder. Any information owned by one party that is provided to any
other party pursuant to this Agreement shall reutain the property of the providing party. Unless specifically set
forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license
or otherwise in any such information.
4.3 Records, Each party shall maintain and retain records related to the provision of the Services
under this Agreement consistent with such party's historical policies regarding retention of records. As needed
from time to time doming the period in which Services are provided, and upon termination of the provision of
any Service, unless otherwise prohibited by applicable I.-aw, tine parties shall provide each other- with records
related to the provision of the services under this Agreement to the extent that (a) such records exist in the
ordinary coarse of business, and (b) such records are reasonably necessary for the requesting party to comply
with its obligations under this Agreement or applicable Law.
4.4 Status Nieetiul!s. Oil periodic basis, but not less than quarterly, an appropriate representative
of each party shall conduct a joint meeting to discuss circ status of the Services, as well as to answer questions,
gather information and resolve disputes that may occur from time to time. It is the expectation of the parties
that tine representatives of the parties shall communicate directly with one another nail work directly with one
another to ensure that all Services provided hereunder are completed oil a timely and complete basis. All
meetings pursuant to this Section dA may be race to face, video or telephonic mcctings as may be agreed upon
by the parties. Each patty shall bear its own costs of attending or participating in such meetings.
4.5 Privaay. Client agrees (a) to comply with all applicable Law; (b) not to use tire, infbrmation
provided to it by Parkmobile about identifiable individuals (`p)") to market goods or services to those
individuals or others; (c) that it will use reasonable security measures to safeguard the PI; and (d) not to
disclose to others the PI.
4.6 Insurance. parkmobiic shall keep all of its insurable properties adequately insured against
losses damages and hazards as are customarily insured against by businesses engaging in similar activities or
owning similar properties and at least the minimum amount required by applicable Law and any other
agreement to which Parkrnobile is a patty or pursuant to which Parkambile provides any services, including
liability, property and business interruption insurance, as applicable.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
SA R e s ntatiotta anc0 `r4nrranties. Each of Parkmobile and Client hereby represents,
warrants and covenants to the other party hereto as follows;
(a) It is duty organized and validly existing under the Iavvs of the state of its incorporation
and has fall power and authority to carry oil its business as it is now being conducted and to own and operate
its properties and assets;
(b) The execution, delivery and performance of this Agreement by such party has been
duly authorized by all requisite corporate or limited liability company action, as applicable;
(c) It has the- power and authority to execute and deliver this Agreement and to perform
its obligations hereunder: and
(d) 'flie execution, delivery and performance by it of this Agreement and its compliance
with the terms and provisions hereof do not and will not conflict with or result in a breach of am of the terms
or provisions of or constitute a default under the Ixovisions of its charter documents or bylaws, or any order,
writ, ittiurmion or decree of any court or governmental authority entered against it (it- by which any of its
property is hound.
5.2 Disclaimer of Warranties. THE SERVICE'S ARE PROVIDED "AS IS" AND W[fH ALL
I AMAS. CLIENTACKNOW1 EDGES AND AGREES THAT PARKMOBILE SHALL NOT BE LIABU
FOR ANY ERROR, OMISSION, DEFECT. OLFICIE.NCY OR NON(ONFORMI-I Y IN -m 'TRIAL
PROGRAM OR SERVICES. WIT}IOi,I'I' IAMIFING TNF. FORE?fiOING, CLIENT A5SUNIFS ALL RISKS
ASSOCIATED WI"I'Fi THE SERVICES. OTHER HIAN AS SPECIFICALLY SET FORTH HEREIN,
NEITHER OF THE PARTIES MAKES ANY REPRESE:N'[APIONS, WARRAN'[LES OR G1-IARANTEES,
EXPRESS OR IMPLIED, DIRLCILY OR INDIRECTLY, INCLUDING, Wf[HOUr LIMITATION. ANY
WARRANTY OF CONDITION, MERCHANTABILITY OR HINFiSS FOR A PARTICULAR PURPOSE
OR USE, WITH RESPELL. TO_ ARISING OUT OF OR IN CONNECTION WI'TFI THE SERVICES TO BF
PERFORMLD IIERF:LJNDER BY SUCI I PARTY OR TIIF RFSUL FS OBTAINED "[HEREBY.
5.3 Ind ®nt nitica do n.
(a) fitdemnification by Parkniohilu. Parkmobile shall indemnify, defend and hold
harmless Client, its affiliates, their respective successors and assigns, and their respective officers, directors,
einployees, consultants, agents and representatives trout any liability, damage, diminution in value. loss, cost,
claim or expense, including reasonable attorneys' fees and expenses that result from or arise out of, (i) the
breach of inaccuracy of any of Parkmobile"s represe�rttatiorrs or warranties in tfiis Agreement, (r`i) the bixaeh of
any of Parkmobile's covenants or agreements in this Agreemetrt, or (iii) any violations of Law or
governmental rules or regulations by Parkmobile in performing its obligations it, connection with this
Agreement.
(b) Indeninilica£ion by _Client. Client shall indenmiti, defend and hold harmless
Parkmobile, its affiliates, thch respective successtns and assigns, and their respective oflieers, directors.
amployecs, consultants, agents and representatives from any liability, damage, dinur nlion in value, lass, cost,
claim or expense. including reasonable attorneys' fees and expenses that result from or arise out ol: (i) the
breach or hiaccuraey or any o€ Client's representations or warranties in this Agreement. Ili} the breach of any
of C'lient's covenants or agreements in tills Agreement, or (iii) any violations of Law or govcrtuneival rade% or
regulations by Client in performing its obligations in Connection with this Agreement.
5.4 Limitation of Lfitbil'tty. THE AGGRFOATE LIABILITY OF PARKMOBILE AND PM(j
FOR ANY .AND ALL. LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE WIIATS0FVFR
(WHETHER SUCH CAUSE, BE BASED IN CONERACT, NFULICiENCE, STRICTLIABILITY, O'IJWR
T'ORTOR OFFIFRWISEi) UNDER THIS AGM EWN"L SFIALL IN NO EVEN"[ E'XCLED AN AMOUNT
EQUAL TO THE TOTAL AMOUNTPAID FOR 1 HE SERVICES PURCHASED HERFUNDFIR. EACH
PARTY HERE YO AGREES T IAT EACH OTHER PARTY SI IAL.L. NO"i FIF LIABLE YO SUCH PARTY
OR ANYONE ACTING TFIROUGII SUCH PARTY" UNDER ANY LEGAL 'THEORY (INCLUDING,
Wf[FIOUT LIMITATION, BREACH OF CONTRACT', STRICT LIABILITY, NEGLIGENCE OR ANY
OTIIF;R LEGAL THEORY) FOR INCIDENTAL. CONSEQUENTIAL., INDIRECT, SPECIAL OR
EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO'[ HIS AGRF F:MEN'F.
ARTICLE 6
MISCELLANEOUS
6.1 Force Maienre. Neither party shall be liable tier tinlurc or delay in performance of its
obligations under this Agreement to the extent such failure or delay is caused by an act of God, act of public
enemy. war or national emergency, rebellion, insurrection, riot, epidemic quarantine restriction, fire, flood.
explosion_ storm, earthquake, interruption in the supply of electricity, power or energy- terrorist attack, Tabor
dispute or disruption, or other event beyond the reasonable control of such party and without the rault of or
negligence Ixy tach pally (catch, a "B ice v4ajeur I verb"). Ira party's performance under this Agrcennent is
affected by a Force Maicure [:vent, such party shall give prompt written notice- of stich event to the other party,
stating aha: date and extent of such suspension and the cause thercot; and shall at all times use cornmercialfv
reasonable efforts to mitigate the impact of the Force Majeure Event on its performance under this Agreement:
rovided, that such party shalt take measures to overcome the condition that are consistent in all maternal
respects with the measures taken in connection with such party's business. The parties shall promptly confer,
in ,ntod faith, on what action may be taken to minimize the impact, on both parties, of such condition. hi the
event ol'a Force MaJeure Fivent that affects either or both parties' ahilk% to perform under this Agreemeni, the
patties agree to cooperate in good faith to resume the affected services ars soon as commercially possible to the
extent commercially reasonable.
6.2 Notiees. All notices, requests, claims, demands and other coatmuaications hereunder shall be
in writing and shall be declined to have been ehify given when delivered (a) in persona (b) by any national
overnight courier or other service providing evidence of dcfivery, or by registered or certified mait (postatge
prepaid, return receipt requested), or (c) by facsimile with it copy delivered the next business day by any
overnight courier or other service providing evidence of deliver,,, to the respective parties at the f000wing,
addresses:
Io Parkmobile: Parkmobile, IVC
32M (lalteria Parkway, Suite 100
Atlanta, (icorgia 30339
Attention: Cherie Fuz/cll
Telephone: (401)818-9036
Facsimile: (77o)818-9039
6mai1: C'hexa`iv.furtell�itlar»<thilegk�l}nl.re>)rr
Co talent: Clerk otthe City Council
City of Santa Lina
20 Civic Cooler Ptasa (Mt 30)
P.O. [lox 1988
Santa Ana, CA 92702-1988
Fax 714- 647-69%
City of, Santa Ana Finance iJc�artntant
—.. _ -.
20 Civic Plaza (MT -17)
Satt
____ta__Ana_.-.____. _{7_2702_____...— —
, CA
Attention: Arthro Rodriguez,
Vigpit_Aid
1'eteptxmc: (714)647-6953
entaih troaiaitttrarsatsaa-
gola2 lar
or to such other address (or tax number, if applicable) as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above (provided that notice of any change
of address or fax number shall be affective only upon receipt thereof),
6.3 Independent Contractors. 'The parties Fire independent contractors under this Agreement,
which shall not be construed to create any employment relationship, partnership, joint venture, fira nchisor-
franchisee or agency relationship that did not already exist prior to the tftective Date, or to authorize any party
to enter into any commitment or agreement binding nn the other parry except as expressly stated herein. 'I lie
parties have act authority to make statements, warranties, or representations or to create any liabilitics oil
behalf 01,111C other,
6.d Entire Agreement. This Agreement and the documents and schedules referred to herein
contain the complete agreement between the parties hereto and supersede any prior understandings,
agreements or representations by or between ihu parties, written or oral, which may have related to the subject
shatter hereof in any way, provided, however, that this provision is not intender) to abrogate any other written
agreement between the parties executed with or after this Agreement.
5.5 Antendruent and Waiver, The parties hereto may not amend or modify this Agreement
except as may be agreed upon by a wotten iustrumcnt executed by the parties hereto. No heaivcr of any
provision hereunder or any breach or defauft thereof shall extend to or affect in any way any other provision or
prior or subsequent breach or default.
6.6 Successors and Assigns. "Phis Agreement and all of the provisions hereof shall be binding
upon and ince to tie benefit of the parties and their respective successors and permitted asstlons, except than
neither this Agreement nor any of trc rights, interests or obligations hereunder may be assigned or delegated
by either party without the prior written consent of the other party:rorovided tint Parkmobile may assign its
rie-Wits, interests or obligations tinder this Agreement without the consent of Client to (i) any affiliate of
Parkmobile to long as Parkmobile remains tite primary obligor under this Agreement or (ii) any tender to
Parkmobile or its affiliates as security= for borrowings.
6.7 Third -Party Beneticiaties. `Elie parties to this Agreement do not intend this Agreement to
benefit or create any right or cause of action in or on behalf of any person or entity other than Parkmobile and
Client.
6.8 Severahility, Whenever possible. each provision of this Agreement shall be interpreted in
such manner as to he effective and valid under applicable f.aw, but if any provision of this Agreement is field
to he prohibited by or invalid tinder applicable Law, such provision shall be ineffective only to the extent o€
such prohibition or invalidity, without invalidating tie remainder of such provision or the remaining,
provisions of this, Agreement,
Gro 9 Cavern', tt� lily. This Agreement shall be governed by and construed in accordance with the
laws of the State of California, without giving effect to any choice or conflict of law provision or rule that
would cause the application of the laws of any other jurisdiction.
6.10 Arbitration. Should there be any ambiguity, contradiction or inconsistency ill this
Agreement, or should any disagreement or dispute arise between the parties in connection with this
Agreement, the component representatives of the parties shall first attempt in good faith amicably to sattle the
matter by mutual negotiations, If such negotiations are unsuccessful, any controversy, dispute or claim arising
out of, or in connection with, this Agreement must be settled by final and binding arbitration to be held
exctusivefy in Orange County, California in accordance with the Commercial Arbitration Rules. as amended
and in effect 11-om time to time. of tite American Arbitration Association (the `Rules"). fhe procedures and
law applicable during the arbitration of arty controversy, dispute or claim shall be bath ire Rules and the
internal laws of the State of California excluding, and without regard to, its or any other jurisdiction's rules
concerning any conflict of laws. '€he arbitrator shall have the power to order injunctive relief or provide
further equitable remedies_ All fees and expenses relating to the work performed by the arbitrator(s) shall be
shared equally between the parties. Nothing in this paragraph shall prevent a party from seeking injunctive
relief front any the state m federal courts located in Orange County, California. Hie parties consent to the
exclusive jurisdiction and venue; of such courts with respect to any matter not within the arbitrator's
jurisdiction. Any award of the arbitrator may be enforced in any- court of competent jurisdiction.
6.11 No Strict Construction; Headings. 'I lie language used in this Agreement shall he deemed to
he the language chosen by the parties hereto to express their mutual intent, and no title of strict construction
shall be applied against any party, Itic- headings used in this Agreement arc for reference purposes ouiy and
shall not affect in any way the meaning or interpretation of this Agreement.
6.12 Cogntcrgarts; Delivery. I his Agreement may be executed in arty renumber or counterparts,
each of which shall be deemed an original, but alt of which together shalt constitute but one anti €Ile same
instrument. "i'lte parEies agree that this Agreement may be executed and delivered by facsimile or other
electronic transmission.
(b' rnutztres begin on fiXott ixg jacrge)
9
IN WI FNESS WI It"RL-{)[', the parties hereto have executed this Parking Servies Agreement the
date and year First above written.
AT _F E,S-r:
alk c
MARIA DHTAZz R
C'terk of the Council
APPROVI-D AS TO FORM:
SONIA R. CARVALHO
City Attorney
Lisa Starck
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
Cl FY OF SAN`I A A,, 'A
OA\ I[ C 11 AI S
City Manager
PARKMoBILF, I.l-C
"Parkmohi le"
Francisco Gutierrez F Nctr'iivc irseti, Cherie 1, izzelt
Finance R Management Services Agency C hiel Executive Director
Tax ID#
SCHEDULE I
SERVICE'S
Parkmobile otters a serviceto Client's parking customers ("End Users") that titcilhates the activation and
payment ol'parking transactions using mobile technology ("Mobile Parking"). For use of the Mobile
Parking service, an End user Pee per transaction as reflected in Schedule 3 is charged.
Parkmohilc accepts several electronic payutcm methods front customers:
a. Traditional credit cares payments are accepted with Visa. MasterCard, Discover, &
AMEX ("Traditional Payments")
b, Emerging Payment". ("`Emerging Pa)ments"). Emerging payments represent the
numerous alternative payment methods that have begun to hit the marketplace today.
Mostly, these innovations involve the use of vii-ioal account -based membership profiles
that a customer can utilize to transact purchases based upon fire mcmber's individual
Payment preferences. Examples of emerging payments include PayPal, Parkmobile"s
Stored Value Wallet, the (ioogle Wallet, ACEI, MasterCard's glohalVt.ard, the ISIS
Wallet, and Visa checkoat
End Users who are registered with Parkmobile can begin and, if applicable, end a parking transaction in a
variety of ways: visiting; the website of Parkmobile - wwv,,parkmobilc.comn Calling an Intelligent Voice
Respirnse (IVR) 1-300 Number, m using Parkmobitc's mobile application. In order to register and begin
a parking event, End Users simply provide tine required infOl'antiott to create all aCCOant including; Credit
card data and license plate number which is stored in a secure, PCI Level I compliant environment.
Ihercatter, subsequent parking visits only require the Lind User to enter or select the applicable parking
duration options available for the location.
The tariff code of the parking area is indicated on parking signs or out parking meters. Enforcers of the
Client check the validity of parking status real time against the Parkmobile database via :t web service
offering, free of charge to the Client, to determine if a valid parking right exists. This service ran he
accessed by using a handheld terminal or PDA.
The supply of handheld terminals lot- PDA's) for enforcement and GSNM cards for communication
between the handheld terminals and the database and back-office systems are outside the scope of the
Services.
End Users will receive parking alert services via SMS, mobile app push notification or email. 'The lard
User will be notified, for example, when parked far an extended period of time or when #tae maximum
parking time nears expiration.
End Users cats use Mobile Parking anywhere the Parkmobile mobile payment service is available.
All parking charges are automatically charged to the credit card of the End User. End Users have real
time access to an online account -based personal page acecsaible from as wav;p<arkmobtlC _a yryl to check and
print their parking history. receipts, and statements.
SERVICE LEVELS
Operation, Management and Maintenance of tire Svsteru
(a) Parknmbile shall use its best efforts not to perform maintenance during business hours.
In emergency eases, adynsnnents to the system may also take place daring hours for paid parking. 11'
necessary, Parkrnobite may perform maintenance of the system during, business hours, provided
Parkmobile provides {Tient with at toast twenty-four (24) hours advance notice beiorc the start or the
work.
(b) Parkmobile makes a daily backup oidata in the (local) database, which data are retained
for three (3) months.
2. Frrnrs anti Interruptions
(a) When an error or interruption occurs in the Services, Client shall inform Parkmobile as
soon as possible, Paarkntobile shall confirm its receipt of such notification in writing. if any error or
interruption cannot be repaired by Parkmobile within rive (5) business days froth the date when the error
or interruption is reported to Parkmobile, then Parkmobile may issare as credit for the Services during such
downtinv.. Tiate spent by Parkmobile to restore and support to interruptions and errors caused by Client
and not attributable to parkmobile shall be charged at the hourly rite of $1$0,
(b) In the event that Client and Parkmobile disagree about whether an error or interruption
has been resolved, Client and Parkmobile shall discuss in good faith and reach a narwal resohrtion
rega€ding whether such error or interruption has occurred or, been adequately resolved. 11 tine parties
agree that 'tile problem was in rad an error or interruption, then Client shall not be entitled to a credit for
the Software during, the downtime.
3. �4erttrt xattl Antdcraiaatiou
Parkmobile shall protect and authenticate a limited number of representatives that shalt have
access to the system and confidential information, I he parties shall respect and utilize security access
codes.
1. It�cjaorts
Parlanobile shall provide Client access to reports refitted to the Services via all Internet or other digital
means in relation to parking history, active users anti parking revenues. Parkntobile also shall provide
Client with monthly reports through an Internet or other dighal [Weans regarding parking revenues.
SQIE.bt€LF, 3
FEES
Parkmobile shall charge the (Aicnt or End User an end uwt tee of $0.30 cents per transaction (" Ead I Iser
FraduwnaI Pavinent Credit Lod t c"iMerchant Party Fees:
Parkmobile has been certified and can pass real time authorized debit/credit card transactions to the Client
usim,, one of Parkntobiie's fully integrated processing partner to tend all collections directly into Client's
account. Should Client elect to pursue an alternative Merchant Service Provider, Parkinobile shall pass real
time transactions via it gateway solution at an additional cost of$.0_s per authorized transaction. In either
scenario. the Client acts as the merchant of record (MOR) in the arrangement, covering all credit card
processing costs. Parkmobile invoices the Client monthly to seek reimbursement from the Client for its Fad
User Fee assessed on each Mobile Par king transaction.
1;;mgrgngpavnrents F_cs
Parkmobile shall collect parking revenues for each Finer ging Payment transaction and pass ttte Emerging
Parking Revenuee to tire Client in accordance with Parkmobilc's standard settlement procedures.
1'ransaction processing tees for Emerging Payments only are S. 15 plus 31,oof the parking fee (" transaction
Processing Fee") tear each Emerging Payment, No other merchant processing or gateway tee will be
charged to an Emerging Payment trartsactiot. As user€ herein, Emerging Revenue steal l mean parking
revenue generated by End Users less End I ]ser Pees charged by Parkmobile, Transaction Processing Fees
and other third party fees if applicable.
Other Terms and Conditions
Parkmobile's End User Fee does not cover any merchant processing or other third party tees associated
with the acceptance of Traditional Payments or Emerging Payments.
Parkinlobile wso. 1'ves the right to pass thrrntgh n acases in third paE'ty it ansaction proce9sint, kindrelated
tees.
The rise of mobile devices for enforcement as well its data plans are not part ofthis agreement.
Cost for initial standard signage shall be borne exclusively by Pa rk nobito. Client evil€ be responsible for
all signage installation.
Cost of marketing shall be borne exclusively by Partatnobile based on Parkmobile' siandani marketing
program.
Parkmobile reserves the right to increase Fod User Fees and additional service tees upon sixty (60) clays
written notice to £'hent. Should Client not agree to an increase ill Frid laser Fees or additional service fees,
Client shall have the right to terminate this Algreement by providing sixty (60) days written notice to
Parkmobile. Cather development activities and additional services (listed below) for a fee at the request of
and atter written approval by Client as described below.
Additional Services
I. Non -Integrated Gateway Service
?. Additional Marketing/Advertising
_. Customized Reporting
d. Custom Integration to Y" patties
5. Citation/Enforcement support
6. Replacement SignagelStickers
7. Additionai'irainina
S. Zonc & Rate structure chamhes after irnl�lemcntation
4. Event Override Solution
10. Self -Administration Scrvice