HomeMy WebLinkAbout09 - Approval of PSA's with Multiple Parking Pay-by-Cell Providers and Data AggregatorQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
October 10, 2023
Agenda Item No. 9
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Jason AI -Imam, Finance Director/Treasurer - 949-644-3126,
jalimam@newportbeachca.gov
PREPARED BY: Anthony Alannouf, Management Assistant — 949-644-3148,
tony@newportbeachca.gov
TITLE: Approval of Professional Services Agreements with Multiple Parking
Pay -by -Cell Providers and Data Aggregator
ABSTRACT:
In order to improve customer service by providing more options to pay for parking, the
City of Newport Beach (City) issued a Request for Proposals (RFP) for parking
pay -by -cell providers and data aggregation. Based on the results of the selection
process, staff requests City Council approval to enter into Professional Services
Agreements with HotSpot Parking, Inc. (HotSpot), IPS Group, Inc. (IPS), Parkmobile, LLC
(Parkmobile) and PayByPhone Technologies (PayByPhone) for pay -by -cell application
services, and with ParkHub, Inc. (ParkHub) for data aggregation services. Each contract
would be for a term of five years.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
b) Approve a Professional Services Agreement with HotSpot Parking, Inc. for
Pay -By -Cell Parking Services in an amount not to exceed $1,472,000, and authorize
the Mayor and City Clerk to execute the agreement;
c) Approve a Professional Services Agreement with IPS Group, Inc. for Pay -By -Cell
Parking Services in an amount not to exceed $764,400, and authorize the Mayor and
City Clerk to execute the agreement;
d) Approve a Professional Services Agreement with Parkmobile, LLC for Pay -By -Cell
Parking Services in an amount not to exceed $1,609,400, and authorize the Mayor
and City Clerk to execute the agreement;
e) Approve a Professional Services Agreement with PayByPhone Technologies
(PayByPhone) for Pay -By -Cell Parking Services in an amount not to exceed
$1,472,000, and authorize the Mayor and City Clerk to execute the agreement; and
f) Approve a Professional Services Agreement with ParkHub, Inc. for Pay -By -Cell
Provider Payment Aggregator services, in an amount not to exceed $294,000.
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Agreements with Multiple Parking Pay -by -Cell Providers and a Data Aggregator
October 10, 2023
Page 2
DISCUSSION:
On April 5, 2016, the City entered into a Professional Services Agreement with
Parkmobile for pay -by -cell and parking reservation services. The goal of the Parkmobile
agreement was to provide an additional payment option to the single space meters and
paystations for parking in Newport Beach. Rather than walk to the meters or paystations,
customers could download the Parkmobile app on their cell phone and pay for parking
immediately by linking the Parkmobile app to various electronic payment methods,
including credit or debit cards, PayPal and other mobile wallet options. The customer is
then able to pay for parking from the convenience of their car, set up expiration
notifications, and add time from their current location without returning to a meter or pay
station.
Payment for parking by cell phone instead of at meters or paystations has increased in
popularity the past few years, and now represents 42% of all parking transactions in the
City.
As pay by cell became an increasingly popular payment option state and nationwide, the
City issued an RFP for multiple mobile parking payment services on November 10, 2021
to provide more options to pay for parking by cell phone. Although the contract was ready
to be awarded earlier, it was put on hold while a vendor transaction fee for online payment
processing was added to the City's Schedule of Rents, Fines, and Fees and approved by
City Council. The City received seven (7) proposals, which included one (1) submission
that was incomplete and therefore was considered non -responsive. The results of the
selection committee's technical score and cost analysis for the six responsive and
complete proposals is summarized below:
REQUEST FOR PROPOSAL NO. 22-26 MULTI PROVIDER FOR MOBILE PARKING PAYMENT SERVICES
PROPOSAL EVALUATION: EVALUATION SUMMARY (MMP)
Proposer
Technical Score
(Out of 75):
Cost Ratio Score
(Out of 25):
Aggregate Score
(Out of 100):
Overall Rank
PayByPhone Technologies Inc.
68.5
22
90.5
1
ParkMobile LLC
69.75
16
85.75
2
IPS Group Inc.
54.5
25
79.5
3
HotSpot Parking Inc.
55.5
19
74.5
4
Mobile Smart City Corp
57
13
70
5
T2 Systems, Inc.
54
10
64
6
Staff recommends contracting with HotSpot, IPS, Parkmobile and PayByPhone to give
customers multiple options, so they are not limited to any one pay -by -cell provider.
RFP No. 22-26 also requested proposals for data aggregation services. Utilizing data
aggregation services enables City personnel to efficiently access, download, and analyze
parking information sourced from all mobile payment providers through a single
centralized platform, eliminating the need to gather data separately from each provider's
payment portal. Employing a data aggregator also guarantees that the information
accessed by City staff is consistently and uniformly presented, streamlining the data
analysis process and facilitating informed decision -making.
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Agreements with Multiple Parking Pay -by -Cell Providers and a Data Aggregator
October 10, 2023
Page 3
The City received four proposals for data aggregation services. Staff recommends
contracting with the top -ranked company, ParkHub, for data aggregation services to
consolidate the data from the four different pay -by -cell providers.
Transaction Fees
Each pay -by -cell company has its own transaction fee, which is paid for by the customer:
Pay -by -Cell Company
Transaction Fee
Hot Spot
$
0.25
IPS
$
0.13
ParkMobile w 2% CPI Increase
$
0.25
Pa B Phone
$
0.25
The City will continue to pay the credit card fees associated with pay -by -cell payments,
as well as ParkHub's fee of $0.05/transaction for data aggregation services.
FISCAL IMPACT:
The adopted budget includes sufficient funding for the recommended award of contracts
to pay -by -cell providers and a data aggregator. The City receives approximately
$4.2 million of revenue for pay -by -cell parking related activity each year, net of credit card
fees, which are projected to be approximately $323,000 each year. The transaction fees
are paid by the customer.
The not -to -exceed amount for each company is calculated on the projected total number
of pay -by -cell transactions, as if each company would get 100% of the pay -by -cell market
share. The total pass -through amount that will be paid to all four pay -by -cell companies
will be approximately $319,480.00/year, or $1.6 million for all five years.
ParkHub charges the City $0.05/transaction for data aggregation. This fee is not passed
to the customer, and will be expensed to 1003032-553536 (Tidelands Pay By Cell
Transaction Fee) & 0103032-553536 (General Fund Pay By Cell Transaction Fee). City
staff projects that ParkHub will be paid approximately $60,000/year.
Marina Park parking and promotional code fees for class participants are recovered from
Recreation class fees, and then expensed from Marina Park Special Dept Expense NOC,
0107023-841046.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
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Agreements with Multiple Parking Pay -by -Cell Providers and a Data Aggregator
October 10, 2023
Page 4
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Professional Services Agreement with HotSpot Parking, Inc. for Pay by
Cell Provider
Attachment B — Professional Services Agreement with I.P.S. Group, Inc. for Pay by Cell
Provider
Attachment C — Professional Services Agreement with Parkmobile, LLC for Pay by Cell
Provider
Attachment D— Professional Services Agreement with PayByPhone Technologies, Inc.
for Pay by Cell Provider
Attachment E — Professional Services Agreement with ParkHub, Inc. for Pay by Cell
Provider Payment Aggregator
Attachment A
Professional Services Agreement with HotSpot Parking, Inc. for Pay by Cell Provider
9-5
PROFESSIONAL SERVICES AGREEMENT
WITH HOTSPOT PARKING INC. FOR
PAY BY CELL PROVIDER
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 10th day of October, 2023 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and HOTSPOT PARKING INC., an Oregon corporation ("Consultant"), whose address is
515 Beaverbrook Court, Fredericton, NB, E313 1 X6 Canada, and is made with reference
to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide Pay by Cell provider services for
parking fees ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on August 31, 2028, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if, any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed One Million Four Hundred
Seventy Thousand Dollars and 00/100 ($1,470,000.00), without prior written
authorization from City.
4.2 No billing rate changes shall be made during the term of this Agreement
without the prior written approval of City.
4.3 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.4 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.5 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
HOTSPOT PARKING INC. Page 2
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but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated John Blackmore to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Revenue Division. City's Revenue
Manager or designee shall be the Project Administrator and shall have the authority to
act for City under this Agreement. The Project Administrator shall represent City in all
matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
HOTSPOT PARKING INC. Page 3
requirements of this Agreement, all 'applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
HOTSPOT PARKING INC. Page 4
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service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
HOTSPOT PARKING INC. Page 5
M o
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
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19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section. is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants to provide the same or similar
Services in connection with the Project. This Agreement does not, and is not intended to,
grant Consultant the exclusive right to perform the Services in connection with the Project.
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24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Revenue Manger
Revenue Division
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Philip Curley
HotSpot Parking Inc.
3411 Silverside Road, Tatnall Building #104
Wilmington, DE 19810
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement; before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
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identified by Consultant in writing as: unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 of seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to, -the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
HOTSPOT PARKING INC. Page 9
WE
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable .by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and. all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
HOTSPOT PARKING INC. Page 10
9-15
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
: BY
ron C. Harp C1
City Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Noah Blom
Mayor
CONSULTANT: HOTSPOT PARKING
INC., an Oregon corporation
Date:
Bw
Leilani I. Brown Phillip Curley
City Clerk Head of Hot Spot Parking
Date:
Bv:
Deepak Darda
Global Director, Innovation
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
HOTSPOT PARKING INC. Page 11
9-16
EXHIBIT A
SCOPE OF SERVICES
HOTSPOT PARKING INC. Page A-1 9-17
EXHIBIT A
Scope of Services
SUMMARY
Consultant shall provide pay -by -cell mobile technology services to City's parking
customers to facilitate the payment of parking fees by mobile device. City shall at all
times remain the sole authority to establish the parking rates throughout the City.
REVENUE
The Consultant's Mobile Parking Payment System (MPP) System shall be certified to the
most recent version of the Payment Card•Industry Data Security Standard (PCI DSS). All
transactions shall be processed real-time through the Consultant's payment gateway to
the City's merchant processor, currently J.P. Morgan Chase Bank. Revenues shall be
deposited directly to the City's bank account and the City must be the merchant -of -record
on all transactions.
CUSTOMER SUPPORT
The following customer service and support functions shall be provided by Consultant:
1. Customers shall be able to make payment through Consultant's app, or by phone
call;
o Customer service hotline should be available to users 24 hours a day, 7 days
per week. Using an Interactive Voice Response ("IVR") system is acceptable,
but the option to speak with a live representative should be available during
normal business hours (8:OOam — 6:OOpm PST), 7 days per week, available in
both English and Spanish;
2. Provide for email communication;
3. Provide for texting or live chat communication;
4. Provide customer assistance with registration and use of system information;
5. Address and correct errors within parking transactions;
6. Issue refunds; and
7. The Consultant shall log all customer interactions and provide the City with
immediate access to reports and detailed logs associated with customer
correspondences and exchanges.
CITY SUPPORT
Consultant shall provide a single point of contact,for the City. Contact is required to be
available during normal business hours; M-F 8:00 AM — 6:00 PM, PST. Consultant shall
coordinate and identify, in advance, an alternate point of contact when the primary
contact is unavailable. Consultant shall provide responses within 24 hours of City's
questions or concerns.
TRAINING
Consultant shall cover all travel costs, if applicable.
W
1. Consultant shall supply and keep current hard and digital copies of all operating,
training, repair, and user's manuals, which includes detailed instructions for system
usage. -
2. All manuals shall be updated throughout the duration of the contract.
3. Consultant shall provide technical bulletins that identify product notifications,
technology updates, and information regarding system errors or issues.
4. Consultant shall provide training as required.
5. Consultant shall notify City of upgrades to the MPP System and provide refresher
training as requested by the City.
MARKETING
Consultant shall provide, at their cost, marketing services to drive increased awareness
and adoption of its MPP System. The Consultant shall coordinate with the City to develop
a comprehensive Marketing Plan including advertising, signage, and community
engagement. All marketing shall be subject to City approval.
1. Proposers shall describe their ability to cross -market with the MPP System
Aggregator and other MPP System Partners.
2. The Consultant must provide the ability to cross -market to mobile app users.
3. The Proposer shall describe the ability to cross -market and sell advertising space
to local businesses and attract visitors to Newport Beach.
IMPLEMENTATION PLAN
Consultant shall provide an Implementation Work Plan detailing the actions necessary for
implementation of the MPP System. The Plan should ensure that the MPP System is able
to function quickly and be implemented in accordance with the project timeline.
Proposers shall provide a proposed Implementation Plan that includes the following:
1. A detailed testing plan. The developed system must undergo rigorous unit, system,
integration, and interface testing. All components shall be tested, as required. All
data integrations shall also be tested to ensure that the system interacts with other
systems as expected. The Consultant shall provide detailed test cases, as well as
testing status updates and resolutions for issues identified.
2. A training and support plan for during the implementation phase through the end
of contract.
3. Timeline. Proposer must provide timeline on project implementation including
testing, training, roll out, and signage delivery.
CONFIGURATION CAPABILITIES
Consultant shall provide a back -office portal which is only accessible to staff and
designated authorized users, and coordinate with City's contracted MPP System
aggregator. Staff facing portal should be web based and not require any additional
software to be downloaded. Through this portal, users should be able to access settings,
reporting features and other relevant real time information about current and previous
parking sessions. The following are required centralized configuration capabilities that
shall be available:
M
1. The MPP System shall support different rate structures that are configurable by
time of day, length of stay and day of the week. These may include dynamic and
progressive rate structures for peak occupancy periods.
2. The City shall have the ability to program rules and rates independent of
Consultant support with no additional costs associated with these changes.
3. The MPP System shall support the configuration of City parking rules such as City
holidays, application push notification, and alert rules.
4. The MPP System shall support prepayment timeframes.
5. The MPP System shall support automatic changes due to Daylight Savings Time
and support any State/Federal changes to Daylight Savings Time.
6. The MPP System should be able to provide a validation program, that could
include special events and merchant participation throughout the City or in specific
zones, should the City choose to enable this service.
7. The MPP System shall allow rates and schedules to be programmed and
reprogrammed in a flexible manner, in real time and without any System downtime.
8. The MPP System shall allow rates and schedules to be programmed prior to the
effective date and time, to go into effect automatically at that date and time.
9. The MPP System shall conform to a parking zone numbering sequence as defined
by the City. As multiple MPP Systems will be utilized, the City requires that the
same parking zone numbering sequence be used by each MPP System provider.
10.The Consultant shall provide integration with existing and future paid parking
management and enforcement systems, and equipment, at no additional cost.
CUSTOMER CAPABILITIES
Consultant's MPP System shall provide the following functions:
1. The customer shall be able to create/edit/update an account with the MPP System,
but it shall not be required to use the MPP system.
2. An account shall have the ability to support more than one license plate for the
same user.
3. Allows payment through multiple options, including voice, website (mobile
responsive design), mobile SMS texting, QR code, and smartphone application
compatible with iOS and Android operating systems.
4. Provides customer option to be informed via text, email, or application notification
prior to the expiration of their parking session.
5. Allows purchase of additional parking time (not past the maximum time allowed for
that specific parking space or zone).
6. Capable of providing a "lockout" period, restricting the customer from beginning
another parking session in the same space or zone until after a specified period of
time has passed.
7. Does not allow purchase when desired time includes restricted parking periods
(i.e., zone closures, and temporary no parking zones).
8. Allows customers to contact the Consultant with complaints and for refund
requests.
9. System must have a mobile responsive website that works on most older devices
and that can be accessed by computer.
W X
10. Any convenience fee must be clearly communicated to the customer, and the
Consultant must demonstrate methods used to minimize any convenience and
processing fees to the extent possible (digital wallets, etc.).
11. Allows users to email a copy of a receipt for parking session initiated through the
MPP System.
12. MPP System should integrate with the major mobile payment providers (Apple
Pay, Google Pay, Etc.) as a method of payment for parking sessions.
13. Customers shall have the ability to look back into parking session history and see
relevant information about previous parking sessions such as:
a) Parking session start time
b) Parking session expiration time
c) Method of payment
d) Payment amount
e) Zone
f) Vehicle information
14. MPP System shall allow users to pay for multiple parking sessions / vehicles
concurrently.
15. Users should see a final summary of transaction before initiating parking session
enabling them to make corrections if needed.
Reporting Capabilities
Through a back -office portal, The City should be able to access customizable reports for
the purpose of auditing previous parking sessions as well as viewing current parking
transactions and data. All reports should be able to be exported to Microsoft Excel.
Parking session data for at least the prior two (2) years should be available through the
back -office portal. Parking session data older than three (3) years must be retained and
available upon request. Reports should include, but are not limited to the following fields:
1. Date of Parking Session;
2. Zone Number;
3. Zone / Location Name;
4. Parking Rate;
5. Parking Rate Name;
6. Unique Parking Transaction ID (generated by proposer);
7. Vehicle License Plate;
8. Last 4 digits of Credit Card;
9. User Contact Details separated by detail type (if entered);
10. Beginning time / date of parking session;
11. Ending time / date of parking session;
12. Parking Fee;
13. Transaction Fee;
14. Total payment for session;
15. Revenue settlement date; and
16.Session Status (approved, cancelled, refunded etc.).
9-21
INTEGRATIONS
Consultant shall integrate in real time with the MPP System Aggregator as well as current
payment and enforcement systems deployed by the City.
The MPP System Partners should have the ability to accept changes made by MPP
System Aggregator. Changes sent by MPP System Aggregator include, but are not
limited to:
1. Rates by zone
2. Day & Hours of operation
3. Maximum time limits
4. Minimum time limits
5. Lockout Periods
6. Validation/Coupon Codes
Other Services
The City may request the following additional services:
Parking Reservation Services
Parking reservation services would allow the customers to purchase advance
tickets, products or services through the City merchant or service provider to
pay for parking in advance at City designated parking areas. Consultant may
be asked to work with businesses to integrate the business' website with
Consultant's website, provide discounts or vouchers as needed and provide
marketing materials.
2. Online temporary parking permit services
Online temporary parking permits would allow customers to purchase a
temporary parking permit at City designated parking zones from one to thirty
days, through Consultant's website, using the customer's license plate number
as the main identifier.
9-22
EXHIBIT B
SCHEDULE OF BILLING RATES
HOTSPOT PARKING INC. Page B-1 9_23
Implementation
cost for 2 way
integration
and optional
on -site training at
$1,050 per day
I W7ai=1i W.]
Billing Rates
$2,500 one time
Marketing
Marketing
Marketing Marketing $2,500.00
Signage/Marketing
cost
Packages
Packages
Packages Packages
available as
available as
available as available as
needed
needed
needed needed
i$0.
$0
_.__� _... -- — $0_..._.
Monthly costs
Pay Per Use:
Pay Per Use:
Pay Per Use:
Pay Per Use: Pay Per Use:
;Fees Paid
User Transaction
$0.25/session, or
$0.25/session,
$0.25/session, or $0.25/session, or '$0.25/session, 'By User
fee *
Membership at
or Membership
Membership at
Membership at or Membership
1$2.00/month or
at $2.00/month
$2.00/month or
$2.00/month or at $2.00/month
1$20.00/year
or $20.00/year
$20.00/year
$20.00/year or $20.00/year
Other - Merchant
Processing Fees
Total
2.99% per
remittance
$4,500.00
2.99% per 2.99% per 2.99% per
remittance remittance remittance
$0 $0 $0
2.99% per
remittance
WE
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall, be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from bodily injury, property damage, completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the contractual liability for professional services
performed by Consultant on behalf of the City).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
HOTSPOT PARKING INC. Page C-1 9_25
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional' liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
E. Cyber Liability. Contractor shall maintain cyber liability insurance with limits
of not less than two million dollars ($2,000,000) per occurrence and four
million dollars ($4,000,000) annual aggregate covering (1) all acts, errors,
omissions, negligence, infringement of intellectual property, (2) network
security and privacy risks, including but not limited to unauthorized access,
failure of security, breach of privacy perils, wrongful disclosure, collection, or
negligence in the handling of confidential information, privacy perils,
including coverage for related regulatory defense and penalties, and (3) data
breach expenses payable whether incurred by City or Contractor, including
but not limited to consumer notification, whether or not required by law,
computer forensic investigations, public relations and crisis management
firm fees, credit file or identity monitoring or remediation services, in the
performance of services for City or on behalf of City hereunder.
If a sub -limit applies to any elements of coverage, the certificate of insurance
evidencing the coverage above must specify the coverage section and the
amount of the sub -limit.
F. Comprehensive Crime Coverage. Contractor shall maintain
Comprehensive Crime Coverage, including employee dishonesty/fidelity
coverage, covering the theft, loss or destruction of money and securities
either on -site or in -transit, in an amount not less than two million dollars
($2,000,000) per occurrence and four million dollars ($4,000,000) in the
aggregate.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. The general liability, excess liability, pollution
liability, automobile liability, and cyber policies, if required, but forcertaintynot
including professional liability, workers compensation, or crime shall provide
HOTSPOT PARKING INC. Page C-2
9-26
or be endorsed to provide that City, its City Council, boards and
commissions, officers, agents, volunteers and employees shall be included
as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar
days' notice of cancellation (except for nonpayment for which ten (10)
calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. 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
HOTSPOT PARKING INC. Page C-3
9-27
insurance required from subcontractors. For CGL coverage, subcontractors
shall provide coverage with a format at least as broad as CG 20 38 0413.
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self -insured Retentions. Upon request by the City, any self -insured
retentions must be declared to and approved by City. City reserves the right
to require that self -insured retentions be eliminated, lowered, or replaced by
a deductible. Self-insurance will not be considered to comply with these.
requirements unless approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
HOTSPOT PARKING INC. Page C-4
9-28
Attachment B
Professional Services Agreement with I.P.S. Group, Inc. for Pay by Cell Provider
9-29
PROFESSIONAL SERVICES AGREEMENT
WITH I.P.S GROUP, INC. FOR
PAY BY CELL PROVIDER
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 10th day of October, 2023 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and I.P.S GROUP, INC., a Pennsylvania corporation ("Consultant"), whose address is
7737 Kenamar Court, San Diego, CA 92121, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide Pay by Cell provider services for
parking fees ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on August 31, 2028, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform
Services attached hereto as Exhibit A and
or "Work"). City may elect to delete certai
3. TIME OF PERFORMANCE
n
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
9-30
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Seven Hundred Sixty Four
Thousand Four Hundred Dollars and 00/100 ($764,400.00), without prior written
authorization from City.
4.2 No billing rate changes shall be made during the term of this Agreement
without the prior written approval of City.
4.3 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.4 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.5 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
I.P.S Group, Inc. Page 2
9-31
reasonably anticipate would be necessary a
Compensation for any authorized Extra Work
Schedule of Billing Rates as set forth in Exhibit B
5. PROJECT MANAGER
t the execution of this Agreement.
shall be paid in accordance with the
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Malina Armstrong to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Finance Department. City's Revenue
Manager or designee shall be the Project Administrator and shall have the authority to
act for City under this Agreement. The Project Administrator shall represent City in all
matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
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requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
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service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
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16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
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19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants to provide the same or similar
Services in connection with the Project. This Agreement does not, and is not intended to,
grant Consultant the exclusive right to perform the Services in connection with the Project.
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24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Revenue Manager
Finance Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Brian Webber
I.P.S Group, Inc.
7737 Kenamar Ct.
San Diego, CA 92121
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
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identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
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28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controllinq Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: q/z_
By:
on C. Harp
Ci y Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Noah Blom
Mayor
CONSULTANT: I.P.S GROUP, INC., a
Pennsylvania corporation
Date:
Bv:
Leilani I. Brown Chad Randall
City Clerk Chief Executive Officer
Date:
By:
Brian Webber
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B -- Schedule of Billing Rates
Exhibit C — Insurance Requirements
I.P.S Group, Inc. Page 11
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EXHIBIT
SCOPE OF SERVICES
IRS Group, Inc. Page A-1 9-41
EXHIBIT A
Scope of Services
SUMMARY
Consultant shall provide pay -by -cell mobile technology services to City's parking customers to
facilitate the payment of parking fees by mobile device. City shall at all times remain the sole
authority to establish the parking rates throughout the City.
REVENUE
The Consultant's Mobile Parking Payment System (MPP) System shall be certified to the most
recent version of the Payment Card Industry Data Security Standard (PCI DSS). All transactions
shall be processed real-time through the Consultant's payment gateway to the City's merchant
processor, currently J.P. Morgan Chase Bank. Revenues shall be deposited directly to the City's
bank account and the City must be the merchant -of -record on all transactions.
CUSTOMER SUPPORT
The following customer service and support functions shall be provided by Consultant:
1. Customers shall be able to make payment through Consultant's app, or by phone call;
o Customer service hotline should be available to users 24 hours a day, 7 days per
week. Using an Interactive Voice Response ("IVR") system is acceptable, but the
option to speak with a live representative should be available during normal
business hours (B:OOam — 6:OOpm PST), 7 days per week, available in both English
and Spanish;
2. Provide for email communication;
3. Provide for texting or live chat communication;
4. Provide customer assistance with registration and use of system information;
5. Address and correct errors within parking transactions;
6. Issue refunds; and
7. The Consultant shall log all customer interactions and provide the City with immediate
access to reports and detailed logs associated with customer correspondences and
exchanges.
CITY SUPPORT
Consultant shall provide a single point of contact for the City. Contact is required to be available
during normal business hours; M-F 8:00 AM — 6:00 PM, PST. Consultant shall coordinate and
identify, in advance, an alternate point of contact when the primary contact is unavailable.
Consultant shall provide responses within 24 hours of City's questions or concerns.
TRAINING
Consultant shall cover all travel costs, if applicable.
1. Consultant shall supply and keep current hard and digital copies of all operating, training,
repair, and user's manuals, which includes detailed instructions for system usage.
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2. All manuals shall be updated throughout the duration of the contract.
3. Consultant shall provide technical bulletins that identify product notifications, technology
updates, and information regarding system errors or issues.
4. Consultant shall provide training as required.
5. Consultant shall notify City of upgrades to the MPP System and provide refresher training
as requested by the City.
MARKETING
Consultant shall provide, at their cost, marketing services to drive increased awareness and
adoption of its MPP System. The Consultant shall coordinate with the City to develop a
comprehensive Marketing Plan including advertising, signage, and community engagement. All
marketing shall be subject to City approval.
1. Proposers shall describe their ability to cross -market with the MPP System Aggregator
and other MPP System Partners.
2. The Consultant must provide the ability to cross -market to mobile app users.
3. The Proposer shall describe the ability to cross -market and sell advertising space to local
businesses and attract visitors to Newport Beach.
IMPLEMENTATION PLAN
Consultant shall provide an Implementation Work Plan detailing the actions necessary for
implementation of the MPP System. The Plan should ensure that the MPP System is able to
function quickly and be implemented in accordance with the project timeline.
Proposers shall provide a proposed Implementation Plan that includes the following:
I. A detailed testing plan. The developed system must undergo rigorous unit, system,
integration, and interface testing. All components shall be tested, as required. All data
integrations shall also be tested to ensure that the system interacts with other systems
as expected. The Consultant shall provide detailed test cases, as well as testing status
updates and resolutions for issues identified.
2. A training and support plan for during the implementation phase through the end of
contract.
3. Timeline. Proposer must provide timeline on project implementation including testing,
training, roll out, and signage delivery.
CONFIGURATION CAPABILITIES
Consultant shall provide a back -office portal which is only accessible to staff and designated
authorized users, and coordinate with City's contracted MPP System aggregator. Staff facing
portal should be web based and not require any additional software to be downloaded. Through
this portal, users should be able to access settings, reporting features and other relevant real
time information about current and previous parking sessions. The following are required
centralized configuration capabilities that shall be available:
1. The MPP System shall support different rate structures that are configurable by time of
day, length of stay and day of the week. These may include dynamic and progressive rate
structures for peak occupancy periods.
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2. The City shall have the ability to program rules and rates independent of Consultant
support with no additional costs associated with these changes.
3. The MPP System shall support the configuration of City parking rules such as City holidays,
application push notification, and alert rules.
4. The MPP System shall support prepayment timeframes.
5. The MPP System shall support automatic changes due to Daylight Savings Time and
support any State/Federal changes to Daylight Savings Time.
6. The MPP System should be able to provide a validation program, that could include
special events and merchant participation throughout the City or in specific zones, should
the City choose to enable this service.
7. The MPP System shall allow rates and schedules to be programmed and reprogrammed
in a flexible manner, in real time and without any System downtime.
8. The MPP System shall allow rates and schedules to be programmed prior to the effective
date and time, to go into effect automatically at that date and time.
9. The MPP System shall conform to a parking zone numbering sequence as defined by the
City. As multiple MPP Systems will be utilized, the City requires that the same parking
zone numbering sequence be used by each MPP System provider.
10. The Consultant shall provide integration with existing and future paid parking
management and enforcement systems, and equipment, at no additional cost.
CUSTOMER CAPABILITIES
Consultant's MPP System shall provide the following functions:
1. The customer shall be able to create/edit/update an account with the MPP System, but it
shall not be required to use the MPP system.
2. An account shall have the ability to support more than one license plate for the same
user.
3. Allows payment through multiple options, including voice, website (mobile responsive
design), mobile SMS texting, QR code, and smartphone application compatible with iOS
and Android operating systems.
4. Provides customer option to be informed via text, email, or application notification prior
to the expiration of their parking session.
5. Allows purchase of additional parking time (not past the maximum time allowed for that
specific parking space or zone).
6. Capable of providing a "lockout" period, restricting the customer from beginning another
parking session in the same space or zone until after a specified period of time has passed.
7. Does not allow purchase when desired time includes restricted parking periods (i.e., zone
closures, and temporary no parking zones).
8. Allows customers to contact the Consultant with complaints and for refund requests.
9. System must have a mobile responsive website that works on most older devices and that
can be accessed by computer.
10. Any convenience fee must be clearly communicated to the customer, and the Consultant
must demonstrate methods used to minimize any convenience and processing fees to the
extent possible (digital wallets, etc.).
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11. Allows users to email a copy of a receipt for parking session initiated through the MPP
System.
12. MPP System should integrate with the major mobile payment providers (Apple Pay,
Google Pay, Etc.) as a method of payment for parking sessions.
13. Customers shall have the ability to look back into parking session history and see relevant
information about previous parking sessions such as:
a) Parking session start time
b) Parking session expiration time
c) Method of payment
d) Payment amount
e) Zone
f) Vehicle information
14. MPP System shall allow users to pay for multiple parking sessions / vehicles concurrently.
15. Users should see a final summary of transaction before initiating parking session enabling
them to make corrections if needed.
Reporting Capabilities
Through a back -office portal, The City should be able to access customizable reports for the
purpose of auditing previous parking sessions as well as viewing current parking transactions and
data. All reports should be able to be exported to Microsoft Excel. Parking session data for at
least the prior two (2) years should be available through the back -office portal. Parking session
data older than three (3) years must be retained and available upon request. Reports should
include, but are not limited to the following fields:
1. Date of Parking Session;
2. Zone Number;
3. Zone / Location Name;
4. Parking Rate;
5. Parking Rate Name;
6. Unique Parking Transaction ID (generated by proposer);
7. Vehicle License Plate;
8. Last 4 digits of Credit Card;
9. User Contact Details separated by detail type (if entered);
10. Beginning time / date of parking session;
11. Ending time / date of parking session;
12. Parking Fee;
13. Transaction Fee,
14. Total payment for session;
15. Revenue settlement date; and
16. Session Status (approved, cancelled, refunded etc.).
INTEGRATIONS
Consultant shall integrate in real time with the MPP System Aggregator as well as current
payment and enforcement systems deployed by the City.
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The MPP System Partners should have the ability to accept changes made by MPP System
Aggregator. Changes sent by MPP System Aggregator include, but are not limited to:
1. Rates by zone
2. Day & Hours of operation
3. Maximum time limits
4. Minimum time limits
5. lockout Periods
6. Validation/Coupon Codes
Other Services
The City may request the following additional services:
1. Parking Reservation Services
Parking reservation services would allow the customers to purchase advance tickets, products
or services through the City merchant or service provider to pay for parking in advance at City
designated parking areas. Consultant may be asked to work with businesses to integrate the
business' website with Consultant's website, provide discounts or vouchers as needed and
provide marketing materials.
2. Online temporary parking permit services
Online temporary parking permits would allow customers to purchase a temporary parking
permit at City designated parking zones from one to thirty days, through Consultant's website,
using the customer's license plate number as the main identifier.
WW
EXHIBIT B
SCHEDULE OF BILLING RATES
IRS Group, Inc. Page B-1 9-47
Exhibit "B"
Billing Rates
ParkSmarter" Mobile Payment Solution
ProduCL/Service
ParkSmarter' mobile payment decals for SSPM
Price per unit
$2.00
ParkSmarter' mobile payment decals for MSM
TBQ
Decal Shipping
TBQ
Physical Signage
$45.00
On -site Setup and Installation
see below
Additional signage or scope of work to be quoted upon request
TBQ
On -site setup: IPS shall provide the City with instructions on how to setup / install decals in support of the
ParkSmarter"' mobile payment application. However, IPS will send staff to provide installation and setup
services. The costs for these services will be based on the costs of travel, rental car, hotel, and per diem
expenses and will be added to the setup invoice at the completion of the service based on $95 0/day/ person.
24-Hour Customer Call Center (per minutc)
$1.25
NM
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
I.P.S Group, Inc. Page C-1 9.49
D. Professional Liabilitv (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
E. Cyber Liability. Contractor shall maintain cyber liability insurance with limits
of not less than two million dollars ($2,000,000) per occurrence and four
million dollars ($4,000,000) annual aggregate covering (1) all acts, errors,
omissions, negligence, infringement of intellectual property, (2) network
security and privacy risks, including but not limited to unauthorized access,
failure of security, breach of privacy perils, wrongful disclosure, collection, or
negligence in the handling of confidential information, privacy perils,
including coverage for related regulatory defense and penalties, and (3) data
breach expenses payable whether incurred by City or Contractor, including
but not limited to consumer notification, whether or not required by law,
computer forensic investigations, public relations and crisis management
firm fees, credit file or identity monitoring or remediation services, in the
performance of services for City or on behalf of City hereunder.
F. Comprehensive Crime Coverage. Contractor shall maintain
Comprehensive Crime Coverage, including employee dishonesty/fidelity
coverage, covering the theft, loss or destruction of money and securities
either on -site or in -transit, in an amount not less than two million dollars and
00/100 ($2,000,000) per occurrence and four million dollars and 00/100
($4,000,000) in the aggregate.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
IRS Group, Inc. Page C-2 9-50
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. 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. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
I.P.S Group, Inc. Page C-3 9-51
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
I. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
I.P.S Group, Inc. Page C-4 9-52
Attachment C
Professional Services Agreement with Parkmobile, LLC for Pay by Cell Provider
9-53
PROFESSIONAL SERVICES AGREEMENT
WITH PARKMOBILE, LLC FOR
PAY BY CELL SERVICE PROVIDER
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 10th day of October, 2023 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and PARKMOBILE, LLC, a Delaware limited liability company ("Consultant"), whose
address is 1100 Spring Street NW, Suite 200, Atlanta, Georgia, 30309, and is made with
reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide Pay by Cell provider services for
parking fees ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on August 31, 2028, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
ME
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed One Million Five Hundred
Ninety Seven Thousand Dollars and 00/100 ($1,597,000.00), without prior written
authorization from City.
4.2 No billing rate changes shall be made during the term of this Agreement
without the prior written approval of City.
4.3 Upon the first anniversary of the Effective Date and upon each anniversary
of the Effective Date thereafter, the billing rates set forth in Exhibit B ("Billing Rates") shall
be adjusted in proportion to changes in the Consumer Price Index, subject to the
maximum adjustment set forth below. Such adjustment shall be made by multiplying the
Billing Rates in Exhibit B by a fraction, the numerator of which is the value of the
Consumer Price Index for the calendar month three (3) months preceding the calendar
month forwhich such adjustment is to be made, and the denominator of which is the value
of the Consumer Price Index for the same calendar month immediately prior to Effective
Date. The Consumer Price Index to be used in such calculation is the "Consumer Price
Index, All Items, 1982-84=100 for All Urban Consumers (CPI-U)", for the Los Angeles -
Riverside -Orange County Metropolitan Area, published by the United States Department
of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial
indices are published, the official index shall be used. If said Consumer Price Index is no
longer published at the adjustment date, it shall be constructed by conversion tables
Parkmobile, LLC Page 2
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included in such new index. In no event, however, shall the amount payable under this
Agreement be reduced below the Billing Rates in effect immediately preceding such
adjustment. The maximum adjustment increase to the Billing Rates, for any year where
an adjustment is made pursuant to this Section, shall not exceed the Consumer Price
Index or 2.0% of the Billing Rates in effect immediately preceding such adjustment,
whichever is less, with any fraction of a cent rounded up to the next whole cent.
4.4 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.5 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.6 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Krystela Gomez to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
Parkmobile, LLC Page 3
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6. ADMINISTRATION
This Agreement will be administered by the Revenue Division. City's Revenue
Manager or designee shall be the Project Administrator and shall have the authority to
act for City under this Agreement. The Project Administrator shall represent City in all
matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. ' STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
Parkmobile, LLC Page 4
9-57
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence orwillful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' -fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work 'are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its. employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing .the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work.or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to. work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
Parkmobile, LLC Page 5
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13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City. y
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
Parkmobile, LLC Page 6
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employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents foriother projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
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21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result -of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants to provide the same or similar
Services in connection with the Project. This Agreement does not, and is not intended to,
grant Consultant the exclusive right to perform the Services in connection with the Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If, subject to the Act and/or Government Code §§ 1090 et seg.,-Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals; including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
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25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Revenue Manager
Revenue Division
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Tony Stewart
Parkmobile, LLC
1100 Spring St NW
Atlanta, GA 30309
Legal-notices@parkmobi le. io
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City.expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
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satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, -county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controllinq Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
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M.R
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical, handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:`�
ron C. Harp 9 -Y-23 wc.-
City Attorney
ATTEST:
Date:
0
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Bv:
Noah Blom
Mayor
CONSULTANT: PARKMOBILE, LLC, a
Delaware limited liability company
Date:
By:
Leilani I. Brown Justin Clifford
City Clerk Head of US Finance
Date:
Bv:
Tony Stewart
General Counsel/Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Parkmobile, LLC Page 12
a.
EXHIBIT
SCOPE OF SERVICES
Parkmobile, LLC Page A-1 9_66
EXHIBIT A
Scope of Services
SUMMARY
Consultant shall provide pay -by -cell mobile technology services to City's parking customers to
facilitate the payment of parking fees by mobile device. City shall at all times remain the sole
authority to establish the parking rates throughout the City.
REVENUE
The Consultant's Mobile Parking Payment System (MPP) System shall be certified to the most
recent version of the Payment Card Industry Data Security Standard (PCI DSS). All transactions
shall be processed real-time through the Consultant's payment gateway to the City's merchant
processor, currently J.P. Morgan Chase Bank. Revenues shall be deposited directly to the City's
bank account and the City must be the merchant -of -record on all transactions.
CUSTOMER SUPPORT
The following customer service and support functions shall be provided by Consultant:
1. Customers shall be able to make payment through Consultant's app, or by phone call;
o Customer service hotline should be available to users 24 hours a day, 7 days per
week. Using an Interactive Voice Response ("IVR") system is acceptable, but the
option to speak with a live representative should be available during normal
business hours (B:OOam — 6:OOpm PST), 7 days per week, available in both English
and Spanish;
2. Provide for email communication;
3. Provide for texting or live chat communication;
4. Provide customer assistance with registration and use of system information;
5. Address and correct errors within parking transactions;
6. Issue refunds; and
7. The Consultant shall log all customer interactions and provide the City with immediate
access to reports and detailed logs associated with customer correspondences and
exchanges.
CITY SUPPORT
Consultant shall provide a single point of contact for the City. Contact is required to be available
during normal business hours; M-F 8:00 AM — 6:00 PM, PST. Consultant shall coordinate and
identify, in advance, an alternate point of contact when the primary contact is unavailable.
Consultant shall provide responses within 24 hours of City's questions or concerns.
TRAINING
Consultant shall cover all travel costs, if applicable.
1. Consultant shall supply and keep current hard and digital copies of all operating, training,
repair, and user's manuals, which includes detailed instructions for system usage.
a.
2. All manuals shall be updated throughout the duration of the contract.
3. Consultant shall provide technical bulletins that identify product notifications, technology
updates, and information regarding system errors or issues.
4. Consultant shall provide training as required.
5. Consultant shall notify City of upgrades to the MPP System and provide refresher training
as requested by the City.
MARKETING
Consultant shall provide, at their cost, marketing services to drive increased awareness and
adoption of its MPP System. The Consultant shall coordinate with the City to develop a
comprehensive Marketing Plan including advertising, signage, and community engagement. All
marketing shall be subject to City approval.
1. Proposers shall describe their ability to cross -market with the MPP System Aggregator
and other MPP System Partners.
2. The Consultant must provide the ability to cross -market to mobile app users.
3. The Proposer shall describe the ability to cross -market and sell advertising space to local
businesses and attract visitors to Newport Beach.
IMPLEMENTATION PLAN
Consultant shall provide an Implementation Work Plan detailing the actions necessary for
implementation of the MPP System. The Plan should ensure that the MPP System is able to
function quickly and be implemented in accordance with the project timeline.
Proposers shall provide a proposed Implementation Plan that includes the following:
1. A detailed testing plan. The developed system must undergo rigorous unit, system,
integration, and interface testing. All components shall be tested, as required. All data
integrations shall also be tested to ensure that the system interacts with other systems
as expected. The Consultant shall provide detailed test cases, as well as testing status
updates and resolutions for issues identified.
2. A training and support plan for during the implementation phase through the end of
contract.
3. Timeline. Proposer must provide timeline on project implementation including testing,
training, roll out, and signage delivery.
CONFIGURATION CAPABILITIES
Consultant shall provide a back -office portal which is only accessible to staff and designated
authorized users, and coordinate with City's contracted MPP System aggregator. Staff facing
portal should be web based and not require any additional software to be downloaded. Through
this portal, users should be able to access settings, reporting features and other relevant real
time information about current and previous parking sessions. The following are required
centralized configuration capabilities that shall be available:
1. The MPP System shall support different rate structures that are configurable by time of
day, length of stay and day of the week. These may include dynamic and progressive rate
structures for peak occupancy periods.
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2. The City shall have the ability to program rules and rates independent of Consultant
support with no additional costs associated with these changes.
3. The MPP System shall support the configuration of City parking rules such as City holidays,
application push notification, and alert rules.
4. The MPP System shall support prepayment timeframes.
5. The MPP System shall support automatic changes due to Daylight Savings Time and
support any State/Federal changes to Daylight Savings Time.
6. The MPP System should be able to provide a validation program, that could include
special events and merchant participation throughout the City or in specific zones, should
the City choose to enable this service.
7. The MPP System shall allow rates and schedules to be programmed and reprogrammed
in a flexible manner, in real time and without any System downtime.
8. The MPP System shall allow rates and schedules to be programmed prior to the effective
date and time, to go into effect automatically at that date and time.
9. The MPP System shall conform to a parking zone numbering sequence as defined by the
City. As multiple MPP Systems will be utilized, the City requires that the same parking
zone numbering sequence be used by each MPP System provider.
10. The Consultant shall provide integration with existing and future paid parking
management and enforcement systems, and equipment, at no additional cost.
CUSTOMER CAPABILITIES
Consultant's MPP System shall provide the following functions:
1. The customer shall be able to create/edit/update an account with the MPP System, but it
shall not be required to use the MPP system.
2. An account shall have the ability to support more than one license plate for the same
user.
3. Allows payment through multiple options, including voice, website (mobile responsive
design), mobile SMS texting, QR code, and smartphone application compatible with iOS
and Android operating systems.
4. Provides customer option to be informed via text, email, or application notification prior
to the expiration of their parking session.
5. Allows purchase of additional parking time (not past the maximum time allowed for that
specific parking space or zone).
6. Capable of providing a "lockout" period, restricting the customer from beginning another
parking session in the same space or zone until after a specified period of time has passed.
7. Does not allow purchase when desired time includes restricted parking periods (i.e., zone
closures, and temporary no parking zones).
8. Allows customers to contact the Consultant with complaints and for refund requests.
9. System must have a mobile responsive website that works on most older devices and that
can be accessed by computer.
10. Any convenience fee must be clearly communicated to the customer, and the Consultant
must demonstrate methods used to minimize any convenience and processing fees to the
extent possible (digital wallets, etc.).
11. Allows users to email a copy of a receipt for parking session initiated through the MPP
System.
12. MPP System should integrate with the major mobile payment providers (Apple Pay,
Google Pay, Etc.) as a method of payment for parking sessions.
13. Customers shall have the ability to look back into parking session history and see relevant
information about previous parking sessions such as:
a) Parking session start time
b) Parking session expiration time
c) Method of,payment
d) Payment amount
e) Zone
f) Vehicle information
14. MPP System shall allow users to pay for multiple parking sessions / vehicles concurrently.
15. Users should see a final summary of transaction before initiating parking session enabling
them to make corrections if needed.
Reporting Capabilities
Through a back -office portal, The City should be able to access customizable reports for the
purpose of auditing previous parking sessions as well as viewing current parking transactions and
data. All reports should be able to be exported to Microsoft Excel. Parking session data for at
least the prior two (2) years should be available through the back -office portal. Parking session
data older than three (3) years must be retained and available upon request. Reports should
include, but are not limited to the following fields:
1. Date of Parking Session;
2. Zone Number;
3. Zone / Location Name;
4. Parking Rate;
5. Parking Rate Name;
6. Unique Parking Transaction ID (generated by proposer);
7. Vehicle License Plate;
8. Last 4 digits of Credit Card;
9. User Contact Details separated by detail type (if entered);
10. Beginning time / date of parking session;
11. Ending time / date of parking session;
12. Parking Fee;
13. Transaction Fee;
14. Total payment for session;
15. Revenue settlement date; and
16. Session Status (approved, cancelled, refunded etc.).
INTEGRATIONS
Consultant shall integrate with the City's previously identified enforcement provider(s) and
support related reporting requirements.
9- 70
Other Services
The City may request the following additional services:
1. Parking Reservation Services
Parking reservation services would allow the customers to purchase advance tickets,
products or services through the City merchant or service provider to pay for parking in
advance at City designated parking areas. Consultant may be asked to work with businesses
to integrate the business' website with Consultant's website, provide discounts or vouchers
as needed and provide marketing materials.
2. Online temporary parking permit services
Online temporary parking permits would allow customers to purchase a temporary parking
permit at City designated parking zones from one to thirty days, through Consultant's
website, using the customer's license plate number as the main identifier.
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EXHIBIT B
SCHEDULE OF BILLING RATES
Parkmobile, LLC Page B-1 9 72
EXHIBIT B
Billing Rates
User Transaction Fee - $0.25/transaction
Pre -Paid Parking Mobile Payment (Reservations) Transaction Fee — 10% of parking fee amount with a
minimum of $1.00
9- 73
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad. as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall. maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
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D. Technology Errors & Omissions Insurance. Consultant shall maintain
technology errors and omissions insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
E. Cyber Liability. Contractor shall maintain cyber liability insurance with limits
of not less than two million dollars ($2,000,000) per occurrence and four
million dollars ($4,000,000) annual aggregate covering (1) all acts, errors,
omissions, negligence, (2) network security and privacy risks, including but
not limited to unauthorized access, failure of security, breach of privacy
perils, wrongful disclosure, collection, or negligence in the handling of
confidential information, privacy perils, including coverage for related
regulatory defense and penalties, and (3) data breach expenses payable
whether incurred by City or Contractor, including but not limited to consumer
notification, whether or not required by law, computer forensic investigations,
public relations and crisis management firm fees, credit file or identity
monitoring or remediation services, in the performance of services for City
or on behalf of City hereunder.
F. Comprehensive Crime Coverage. - Contractor shall maintain
Comprehensive Crime Coverage, including employee dishonesty/fidelity
coverage, covering the theft, loss or destruction of money and securities
either on -site or in -transit, in an amount not less than two million dollars and
00/100 ($2,000,000) per occurrence.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. , Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
Parkmobile, LLC Page C-2
9- 75
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
.additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. 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. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
Parkmobile, LLC Page C-3 9_76
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that_ involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
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Attachment D
Professional Services Agreement with PayByPhone Technologies, Inc.
for Pay by Cell Provider
PROFESSIONAL SERVICES AGREEMENT
WITH PAYBYPHONE US INC. FOR
PAY BY CELL PROVIDER
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 10th day of October, 2023 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and PAYBYPHONE US INC., a Delaware corporation ("Consultant"), whose address is
48 Wall Street, Suite 1100, New York, New York 10005 and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide pay by cell parking services
("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on August 31, 2028, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Consultant shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
performed in a diligent and timely manner.
9-79
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services in accordance with the provisions
of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and
incorporated herein by reference. Consultant's compensation for all Work performed in
accordance with this Agreement, including all reimbursable items and subconsultant fees,
shall not exceed One Million Four Hundred and Seventy Thousand Dollars and
00/100 ($1,470,000.00), without prior written authorization from City.
4.2 Except as expressly set forth in this Section 4, no billing rate changes shall
be made during the term of this Agreement without the prior written approval of City.
4.3 Upon the first anniversary of the Effective Date and upon each anniversary
of the Effective Date thereafter, the billing rates set forth in Exhibit B ("Billing Rates") shall
be adjusted in proportion to changes in the Consumer Price Index, subject to the
maximum adjustment set forth below. Such adjustment shall be made by multiplying the
Billing Rates in Exhibit B by a fraction, the numerator of which is the value of the
Consumer Price Index for the calendar month three (3) months preceding the calendar
month for which such adjustment is to be made, and the denominator of which is the value
of the Consumer Price Index for the same calendar month immediately prior to Effective
Date. The Consumer Price Index to be used in such calculation is the "Consumer Price
Index, All Items, 1982-84=100 for All Urban Consumers (CPI-U)", for the Los Angeles -
Riverside -Orange County Metropolitan Area, published by the United States Department
of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial
indices are published, the official index shall be used. If said Consumer Price Index is no
longer published at the adjustment date, it shall be constructed by conversion tables
included in such new index. In no event, however, shall the amount payable under this
Agreement be reduced below the Billing Rates in effect immediately preceding such
adjustment. The maximum adjustment increase to the Billing Rates, for any year where
an adjustment is made pursuant to this Section, shall not exceed the Consumer Price
Index or 2.0% of the Billing Rates in effect immediately preceding such adjustment,
whichever is less, with any fraction of a cent rounded up to the next whole cent.
4.4 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
PayByPhone Technologies, Inc. Page 2
9-80
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.5 City shall reimburse Consultant only forthose costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.6 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Teresa Trussell to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Finance Department. City's Revenue
Manager or designee shall be the Project Administrator and shall have the authority to
act for City under this Agreement. The Project Administrator shall represent City in all
matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
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8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
Except as expressly set forth in this Agreement, Consultant does not make, and hereby
specifically disclaims, any representations or warranties, express or implied, regarding
fitness for a particular purpose. City acknowledges that the Consultant mobile payment
services and services furnished under this Agreement shall be provided in accordance
with the Statement of Work and the Consultant's proposal.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, each party (the "Indemnifying Party")
shall indemnify, defend and hold harmless the other party, including its council, boards
and commissions, officers, agents, volunteers and employees (collectively, the
"Indemnified Parties") from and against any and all third party claims (including, without
limitation, claims for bodily injury, death or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities,
costs and expenses (including, without limitation, attorneys' fees, disbursements and
court costs) of every kind and nature whatsoever (individually, a Claim; collectively,
"Claims"), arising from any material breach of the terms and conditions of this Agreement,
or arising from the negligence or willful misconduct of the Indemnifying Party.
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Indemnifying Party to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity
shall be construed as authorizing any award of attorneys' fees in any action on or to
enforce the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
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9.3 In no event shall either party be liable to the other party for punitive damages
or consequential, special, indirect or incidental damages, including but not limited to any
damages resulting from loss of use or profits consequential, special, indirect or incidental
damages, including but not limited to any damages resulting from use or loss of profits,
arising out of or in connection with this agreement, whether in an action based on contract,
tort (including negligence) or any other legal theory, even if the party has been advised
of the possibility of such damages.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement orforother periods as specified in this Agreement, policies of insurance
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of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared by City, its officers, employees, agents
and subcontractors shall remain the exclusive property of City, and City shall have the
sole right to use such materials in its discretion without further compensation to
Consultant or any other party.
17.2 Documents, including drawings and specifications, prepared by Consultant
specifically for the City pursuant to this Agreement are not intended or represented to be
suitable for reuse by others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written authorization
from Consultant will be at City's sole risk and without liability to Consultant. Further, any
and all liability arising out of changes made to Consultant's deliverables under this
Agreement by City or persons other than Consultant is waived against Consultant, and
City assumes full responsibility for such changes unless City has given Consultant prior
notice and has received from Consultant written consent for such changes.
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17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
17.4 The parties acknowledge and agree that any trademarks, patents, trade
names, logos, trade dress, domain names, copyrights or licenses therein, or other
enforceable intellectual property rights and whether in hard or electronic copy (collectively
"Intellectual Property") belonging to the other party, given to them under this Agreement
is and shall remain the property of that party for the duration of the Term of this
Agreement. Except as expressly stated, nothing in this Agreement shall be deemed or
interpreted to convey, transfer or assign any Intellectual Property rights to the other party.
17.5 Each party reserves the right to approve in advance the use of its
Intellectual Property by the other party in each and every instance. Upon termination of
this Agreement for any reason the parties will use reasonable endeavors to ensure that
all such Intellectual Property and material are removed from display and/or destroyed at
the request of the other party save where such Intellectual Property is held by the parties
in compliance with any statutory obligations and/or the maintenance of proper records.
17.6 The parties will share information and data directly relating to user parking
sessions through the Consultant service at parking spaces owned and/or managed by
City and as may be required by the City for parking enforcement, fines, and proceedings
("Transaction Data"). Transaction Data may include vehicle license plate, parking session
date, time, duration, zone number and amount paid, details of parking fines/violation
notices, and parking session details obtained through customer service centre, and does
not include User Profile Data (defined below).
17.7 In using, sharing, or otherwise processing Transaction Data, Consultant
and City must comply with applicable data protection laws, contractual obligations and
any other applicable requirements. Each party is responsible to the Consultant service
users and other third parties for its respective use, sharing and processing of Transaction
Data, whether it performs such use, sharing and processing directly or through third
parties. Each party acts as a "data controller" with respect to Transaction Data for the
purposes of applicable data protection legislation (if applicable to the party's activities)
and each party agrees to provide such assistance as is reasonably required to enable the
other party to comply with the applicable data protection laws.
17.8 Any information about or with respect to Consultant service users that is not
related to parking sessions at parking spaces owned or managed by the City, including
without limitation, information provided by users upon registration for a Consultant
account and data about the user's activity in the user's account with Consultant or in the
Consultant applications ("User Profile Data") shall be exclusively owned by Consultant.
Consultant shall retain exclusive ownership of all rights in any derivative data it develops
based on Transaction Data and User Profile Data.
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18. CONFIDENTIALITY
Neither party will disclose the other party's confidential or proprietary information,
including Transaction Data and User Profile Data ("Confidential Information") (including
the terms of this Agreement and any information provided by the other party that is
confidentially maintained or proprietary or which derives value from not being generally
known to persons who can obtain economic value from its disclosure or use or that a
reasonable person would consider confidential, given the context) except:
(a) with the other party's consent;
(b) to employees, agents and contractors who have a need to know in the
discharge of their duties and who are subject to a contractual obligation to
keep such information confidential that is at least as restrictive as this
Agreement; or
(c) when required to do so by law or by any binding rule, order or request.
For purposes of this Section 18, the parties agree that confidential or proprietary
information does not include any information that is:
(a) already known to the receiving party at the time of disclosure hereunder
(other than from the other party hereto) as demonstrated by its written
records;
(b) now or hereafter becomes publicly known other than through acts or
omissions of the receiving party, or anyone to whom the receiving party
disclosed such information;
(c) disclosed to the receiving party, by a third party, under no obligation of
confidentiality to the disclosing party or any other party; or
(d) independently developed by the receiving party without reliance on the
confidential information of the disclosing party as shown by its written
records.
Each party shall exercise reasonable commercial care in protecting the
confidentiality of the other party's confidential information disclosed to it. The parties
agree that an actual or threatened breach of this provision would result in irreparable
harm to the party whose confidential information would be disclosed in breach, and shall
entitle that party to temporary or permanent injunctive relief without proof of actual
damages.
19. INTELLECTUAL PROPERTY INDEMNITY
Each party shall indemnify (for the purposes of this clause, the "Indemnifying
Party") the other (for the purposes of this clause the "Indemnified Party") against all
actions, claims, proceedings, costs and expenses (including reasonable legal fees)
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arising from or related to any alleged infringement of Intellectual Property rights of
whatever nature insofar as these relate to the Intellectual Property rights developed and
owned by the Indemnifying Party or licensed to the Indemnified Party which claims,
actions or proceedings arise as a result of the Indemnified Party's use of any of the
Services, except that the indemnity shall not apply to any actions, claims or proceedings
which are attributable to any breach of contract or negligent act or omission on the part
of the Indemnified Party or where such actions, claims or proceedings relate to any
developments of the services carried out by or at the request of the Indemnified Party
except where the Indemnified Party knew or ought to have known that such development
of the services requested by the Indemnified Party would result in an infringement of
Intellectual Property rights.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours upon providing five (5)
business days' notice to Consultant. Consultant shall allow inspection of all Work, data,
Documents, proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment to Consultant under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. City shall provide Consultant prompt notice of
any withholding of payment due under this Agreement. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement. Consultant
shall not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
22. RESERVED
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants to provide the same or similar
Services in connection with the Project. This Agreement does not, and is not intended to,
grant Consultant the exclusive right to perform the Services in connection with the Project.
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24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seca., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Revenue Manager
Finance Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Teresa Trussell
PayByPhone US Inc.
c/o 600-1290 Homer Street, 6th Floor
Vancouver, BC V6B 2Y5, Canada
With a copy to: legal@paybyphone.com
26. RESERVED
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27. TERMINATION
27.1 In the event that either party materially breaches any of the provisions of
this Agreement and such breach remains uncorrected for thirty (30) days after receipt of
notice by the non -defaulting party, the non -defaulting party may terminate the Agreement
forthwith by giving to the defaulting party written notice thereof, however, that if the nature
of the breach is such that it cannot be reasonably cured within such thirty (30) day period,
the breaching party will not be deemed in default of this Agreement so long as such party
commences efforts to effect a cure and is diligently pursuing such efforts.
27.2 Notwithstanding the above provisions, either party shall have the right, at
its sole and absolute discretion and without cause, of terminating this Agreement at any
time by giving no less than thirty (30) calendar days' prior written notice to the other party.
In the event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination and upon
request by City, Consultant shall deliver to City all City Confidential Information and
Documents.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
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against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date ? Z3
By: A, d, l �
1) -
a on 6. Harp 9-z7-Z5 Wc-
i y Attorney
ATTEST:
Date:
0-2
t_eilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Noah Blom
Mayor
CONSULTANT: PayByPhone US Inc., a
Delaware corporation
Date:
By:
Satyajit (Sonny) Samra
President
Date:
By:
Nick Hamill
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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EXHIBIT
SCOPE OF SERVICES
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EXHIBIT A
Scope of Services
SUMMARY
Consultant shall provide pay -by -cell mobile technology services to City's parking customers to
facilitate the payment of parking fees by mobile device. City shall at all times remain the sole
authority to establish the parking rates throughout the City.
REVENUE
The Consultant's Mobile Parking Payment System (MPP) System shall be certified to the most
recent version of the Payment Card Industry Data Security Standard (PCI DSS). All transactions
shall be processed real-time through the Consultant's payment gateway to the City's merchant
processor, currently J.P. Morgan Chase Bank. Consultant will cover the cost of linking one (1) City
merchant account with Consultant's gateway provider. Revenues shall be deposited directly to
the City's bank account and the City must be the merchant -of -record on all transactions.
Consultant shall provide the City with a monthly statement including a summary of the total
number of transactions per parking location, the total parking fees collected, the total pay -by -
mobile fees due to Consultant. The City shall remit payment to Consultant within 30 days of
receipt of statement.
CUSTOMER SUPPORT
The following customer service and support functions shall be provided by Consultant:
1. Customers shall be able to make payment through Consultant's app, or by Interactive
Voice Response ("IVR");
o Customer service hotline should be available to users 24 hours a day, 7 days per
week. Using IVR system is acceptable, but the option to speak with a live
representative should be available during normal business hours (B:OOam —
6:00pm PST), 7 days per week, available in both English and Spanish;
2. Provide for email communication;
3. Provide for texting or live chat communication;
4. Provide customer assistance with registration and use of system information;
5. Address and correct errors within parking transactions;
6. Issue refunds; and
7. The Consultant shall log all customer interactions and provide the City with immediate
access to reports and detailed logs associated with customer correspondences and
exchanges.
CITY SUPPORT
Consultant shall provide a single point of contact for the City. Contact is required to be available
during normal business hours; M-F 8:00 AM — 6:00 PM, PST. Consultant shall coordinate and
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identify, in advance, an alternate point of contact when the primary contact is unavailable.
Consultant shall provide responses within 24 hours of City's questions or concerns.
TRAINING
Consultant shall cover all travel costs, if applicable.
1. Consultant shall supply and keep current hard and digital copies of all operating, training,
repair, and user's manuals, which includes detailed instructions for system usage.
2. All manuals shall be updated throughout the duration of the contract.
3. Consultant shall provide technical bulletins that identify product notifications, technology
updates, and information regarding system errors or issues.
4. Consultant shall provide training as required.
5. Consultant shall notify City of upgrades to the MPP System and provide refresher training
as requested by the City.
MARKETING
Consultant shall provide, at their cost, marketing services to drive increased awareness and
adoption of its MPP System. The Consultant shall coordinate with the City to develop a
comprehensive Marketing Plan including advertising, signage, and community engagement. All
marketing shall be subject to City approval.
1. Proposers shall describe their ability to cross -market with the MPP System Aggregator
and other MPP System Partners.
2. The Consultant must provide the ability to cross -market to mobile app users.
3. The Proposer shall describe the ability to cross -market and sell advertising space to local
businesses and attract visitors to Newport Beach.
IMPLEMENTATION PLAN
Consultant shall provide an Implementation Work Plan detailing the actions necessary for
implementation of the MPP System. The Plan should ensure that the MPP System is able to
function quickly and be implemented in accordance with the project timeline.
Proposers shall provide a proposed Implementation Plan that includes the following:
1. A detailed testing plan. The developed system must undergo rigorous unit, system,
integration, and interface testing. All components shall be tested, as required. All data
integrations shall also be tested to ensure that the system interacts with other systems
as expected. The Consultant shall provide detailed test cases, as well as testing status
updates and resolutions for issues identified.
2. A training and support plan for during the implementation phase through the end of
contract.
3. Timeline. Proposer must provide timeline on project implementation including testing,
training, roll out, and signage delivery.
CONFIGURATION CAPABILITIES
Consultant shall provide a back -office portal which is only accessible to staff and designated
authorized users, and coordinate with City's contracted MPP System aggregator. Staff facing
portal should be web based and not require any additional software to be downloaded. Through
...
this portal, users should be able to access settings, reporting features and other relevant real
time information about current and previous parking sessions. The following are required
centralized configuration capabilities that shall be available:
1. The MPP System shall support different rate structures that are configurable by time of
day, length of stay and day of the week. These may include dynamic and progressive rate
structures for peak occupancy periods.
2. The City shall have the ability to program rules and rates independent of Consultant
support with no additional costs associated with these changes.
3. The MPP System shall support the configuration of City parking rules such as City holidays,
application push notification, and alert rules.
4. The MPP System shall support prepayment timeframes.
5. The MPP System shall support automatic changes due to Daylight Savings Time and
support any State/Federal changes to Daylight Savings Time.
6. The MPP System should be able to provide a validation program, that could include
special events and merchant participation throughout the City or in specific zones, should
the City choose to enable this service.
7. The MPP System shall allow rates and schedules to be programmed and reprogrammed
in a flexible manner, in real time and without any System downtime.
8. The MPP System shall allow rates and schedules to be programmed prior to the effective
date and time, to go into effect automatically at that date and time.
9. The MPP System shall conform to a parking zone numbering sequence as defined by the
City. As multiple MPP Systems will be utilized, the City requires that the same parking
zone numbering sequence be used by each MPP System provider.
10. The Consultant shall provide integration with existing and future paid parking
management and enforcement systems, and equipment, at no additional cost.
11. City will be given access to parking rate data in order to confirm the parking rates at each
City parking location via the Consultant's back -office portal. Consultant will make every
attempt at ensuring the rates are configured correctly; upon completion of each City
parking location setup, it is the City's responsibility to ensure all rates are configured
correctly. Failing to do so shall exclude Consultant from any liability. City shall implement
any parking rate changes via the portal following the parking location setup. In the event
City requests that Consultant configure the parking rate changes after the parking
location setup, City shall provide Consultant with five (5) days' written notice of the rate
changes.
CUSTOMER CAPABILITIES
Consultant's MPP System shall provide the following functions:
1. The customer shall be able to create/edit/update an account with the MPP System, but it
shall not be required to use the MPP system.
2. An account shall have the ability to support more than one license plate for the same
user.
3. Allows payment through multiple options, including IVR, website (mobile responsive
design), QR code, and smartphone application compatible with iOS and Android operating
systems.
..W
4. Provides customer option to be informed via text, email, or application notification prior
to the expiration of their parking session.
5. Allows purchase of additional parking time (not past the maximum time allowed for that
specific parking space or zone).
6. Capable of providing a "lockout" period, restricting the customer from beginning another
parking session in the same space or zone until after a specified period of time has passed.
7. Does not allow purchase when desired time includes restricted parking periods (i.e., zone
closures, and temporary no parking zones).
S. Allows customers to contact the Consultant with complaints and for refund requests.
9. System must have a mobile responsive website that works on most older devices and that
can be accessed by computer.
10. Any convenience fee must be clearly communicated to the customer, and the Consultant
must demonstrate methods used to minimize any convenience and processing fees to the
extent possible (digital wallets, etc.).
11. Allows users to email a copy of a receipt for parking session initiated through the MPP
System.
12. MPP System should integrate with the major mobile payment providers (Apple Pay,
Google Pay, Etc.) as a method of payment for parking sessions.
13. Customers shall have the ability to look back into parking session history and see relevant
information about previous parking sessions such as:
a) Parking session start time
b) Parking session expiration time
c) Method of payment
d) Payment amount
e) Zone
f) Vehicle information
14. MPP System shall allow users to pay for multiple parking sessions / vehicles concurrently.
15. Users should see a final summary of transaction before initiating parking session enabling
them to make corrections if needed.
Reporting Capabilities
Through a back -office portal, The City should be able to access standard, self -serve reports for
the purpose of auditing previous parking sessions as well as viewing current parking transactions
and data. All reports should be able to be exported to Microsoft Excel. Parking session data for
at least the prior two (2) years should be available through the back -office portal. Parking session
data older than three (3) years must be retained and available upon request. Reports should
include, but are not limited to the following fields:
1. Date of Parking Session;
2. Zone Number;
3. Zone / Location Name;
4. Parking Rate;
5. Parking Rate Name;
6. Unique Parking Transaction ID (generated by proposer);
..,
7. Vehicle License Plate;
8. Last 4 digits of Credit Card;
9. User Contact Details separated by detail type (if entered);
10. Beginning time / date of parking session;
11. Ending time / date of parking session;
12. Parking Fee;
13. Transaction Fee;
14. Total payment for session;
15. Revenue settlement date; and
16. Session Status (approved, cancelled, refunded etc.).
INTEGRATIONS
Consultant shall integrate in real time with the MPP System Aggregator as well as current
payment and enforcement systems deployed by the City. In the event that system changes (such
as upgrades) by a third party affect the Consultant's integration with City sub -systems such as
enforcement, City agrees to pay for all Consultant development costs required to maintain such
integration. Consultant will notify City, in advance, of any such integration costs that could be
added.
MPP Systems shall also have a two-way integration with the MPP System Aggregator. The MPP
System Partners should have the ability to accept changes made by MPP System Aggregator.
Changes sent by MPP System Aggregator include, but are not limited to:
1. Rates by zone
2. Day & Hours of operation
3. Maximum time limits
4. Minimum time limits
5. Lockout Periods
6. Validation/Coupon Codes
CONSULTANT INTERACTIVE VOICE RESPONSE
Upon request by City to Consultant, Consultant will provide the Consultant's interactive voice
response solution ("IVR") for use at City's parking stalls and/or facilities, as agreed upon by
Consultant and City, to allow for consumers to call and pay for the use of the parking location by
calling the applicable service number displayed on the parking sign, parking meter, and/or pay
station. City is responsible for paying all Transaction Fees, as outlined in Exhibit B, for each
Transaction made through IVR. For the purposes of this Agreement, "Transaction" includes (a)
user registration for a parking session, permit, validation or extension at City's parking location
through the Consultant mobile payment service (whether or not any amount is payable to City
by the user), (b) a refund, (c) a charge reversal and (d) any other operation for which Consultant
incurs a fee from its gateway provider or an acquirer, if applicable.
CONSULTANT VALIDATIONS PORTAL
9-97
Upon request by City to Consultant and subject to the terms and conditions of this Agreement,
Consultant will provide City a parking validation subscription service, which allows City to access
a web -based parking validation and complimentary parking management portal to enter and
manage license plate information to validate consumer parking sessions (the "Validations
Portal"). City is responsible for paying all Validations Portal fees, as set out in Exhibit B, for the
City's parking locations, as agreed upon between Consultant and City. Notwithstanding anything
contrary to this Agreement, City may not terminate its subscription to the Validations Portal for
any reason for six months from the date the Validations Portal is set up for City. City shall not: (a)
reverse engineer, decompile, dissemble, or otherwise attempt to discover the source code,
object code, or underlying structure, ideas, know-how or algorithms relevant to the Validations
Portal; (b) create derivative works based on the Validations Portal; or (c) encourage or assist any
third party to do the foregoing.
CONSULTANT'S SERVICES TO CUSTOMERS
The parties acknowledge that Consultant service users hold the Consultant account under terms
of service established by Consultant. Under these terms of service, Consultant may offer users
an option to receive service communications by SMS text ("SMS Communications"), including
reminders to extend a Parking Session and confirmations of successful registration for a Parking
Session. City agrees that, at any time during the Term, Consultant may charge any users who opt
into these services a fee for each SMS Communication sent by Consultant with respect to a
Parking Session ("SMS Fee") and may set the amount of the SMS Fee with reference to the cost
Consultant incurs in delivering this optional service. At the time of entering into this Agreement,
the SMS Fee is equal to $0.15, inclusive of taxes payable by the user. Consultant will provide City
with 30 day written notice of an increase in the amount of the SMS Fee. Consultant shall be
responsible for any taxes applicable to the SMS Fees. Consultant records will be conclusive
evidence with respect to the amount of SMS Fees collected during a billing period. The SMS Fees
will be added to the total charged to the user in respect of a Parking Session.
Other Services
Upon prior written approval by Consultant, the City may request the following additional services:
1. Parking Reservation Services
Parking reservation services would allow the customers to purchase advance tickets, products
or services through the City merchant or service provider to pay for parking in advance at City
designated parking areas. Consultant may be asked to work with businesses to integrate the
business' website with Consultant's website, provide discounts or vouchers as needed and
provide marketing materials.
2. Online temporary parking permit services
..;
Online temporary parking permits would allow customers to purchase a temporary parking
permit at City designated parking zones from one to thirty days, through Consultant's website,
using the customer's license plate number as the main identifier.
EXHIBIT B
SCHEDULE OF BILLING RATES
PayByPhone Technologies, Inc. Page B-1 9-100
A:.11._ 111-d___]
Billing Rates
All amounts payable to Consultant are exclusive of any and all taxes, including taxes applicable on fees paid
by driver.
For the purposes of this Agreement "Transaction" includes (a) an active parking session, permit, validation or
extension at a City parking location through the Consultant's mobile payment service (whether or not any
amount is payable to the City by the user), (b) a refund, (c) a charge reversal and (d) any other operation for
which Consultant incurs a fee from its gateway provider or an acquirer, if applicable.
$2,500 one time
Implementation — cost for 2 way
Platform integration
(platform)
and optional
on -site training at
$1,050 per day
IVR Implementation! $1,000 one time additional
fees & IVR fee if $0.02 per
selectedlincluded Transaction
additional per + additional $0.02
Transaction feel per Transaction
(if IVR is selected
by City)
additional $0.02 additional $0.02 additional $0.02
per Transaction per Transaction per Transaction
$2,500 one time Marketing Marketing
Signage/Marketing cost Packages Packages
available as available as
needed needed
$0 $0
Monthly minimum
$0.25 $0
Transaction Fee
City pays to Consultant
per Transaction
(City may charge user a
non -embedded, on -top of
price of parking
convenience fee of
$0.25)2
$0.15
SMS Fee per SMS $0.15
communication
(Optional/paid by
user)
.25
15
Marketing
Packages
available as
needed
$0
$0.25
15
Marketing
Packages
available as
needed
$0
$0.25,
Fees paid
by user
9-101
Mobile Payment
Not applicable
$250 per
$250 per
$250 per location
$250 per
Service Setup for
location
location
location
additional
locations after
initial deployment
C
$1,500 Setup one
$250 per
$250 per parking $250 per parking
$250 per
Validations
Time & $250 per
parking location
location per
location per
parking location
(Offstreet)
parking location
per month
month
month
per month
per month
(if Validations is
selected by City)
i
$0 setup
$0
$0
$0
$0 $0
Initial Enforcement
integration with
No cost
4 Existing Partner
$0 setup
$0
$0
$0
$0 $0
Future Integrations
No Cost
(if selected by City)
$5,000.00
$0
$0
$0
$0
Total'
NOTES:
1. if IVR is selected by City, IVR additional per transaction fee applies to all Transactions, including without limitation, Transactions made through
the Consultant's mobile application, web application, and/or IVR.
2. Any change in the convenience fee will not affect the price the City will pay to Consultant per Transaction. The convenience fee may only be
increased by mutual agreement of both parties. Services covered by the Transaction Fee do not include interactive voice response solution
(IVR). The City is responsible for paying all Transactions Fees and any IVR additional per transaction fees for all Transactions made through
the Consultant's mobile application, web application, and/or IVR (if applicable).
3. Total prices are provided as estimates only and do not include optional training fees, Transaction Fees, additional IVR per transaction fees,
Validations fees, and additional parking location set up fees.
4. The City is responsible for paying its own credit card processing and merchant banking fees if the City is MOR.
5. In the event that Consultant is the only form of payment, the City will be responsible for 100% of the call center fees as a pass through.
6. All fees and charges are payable within 30 days of invoicing.
9-102
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation blanket endorsement in favor of City, its City Council,
boards of commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance with coverage at least as broad as provided by Insurance
Services Office form CG 00 01, in an amount not less than two million
dollars ($2,000,000) per occurrence, four million dollars ($4,000,000)
general aggregate. The policy shall cover liability arising from bodily injury,
property damage, completed operations, personal and advertising injury,
and liability assumed under an insured contract (including the tort liability of
another assumed in a business contract). The limits of insurance required
under this section may be satisfied by a combination of primary and
umbrella or excess insurance.
C. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain errors and omissions insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
PayByPhone Technologies, Inc. Page C-1 9-103
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
D. Cyber Liability. Contractor shall maintain cyber liability insurance with limits
not less than two million dollars ($2,000,000) per claim and four million
dollars ($4,000,000) annual aggregate, covering (1) all acts, errors,
omissions, negligence, infringement of copyright and trademarks; (2)
network security and privacy risks, including but not limited to unauthorized
access, failure of security, breach of privacy perils, wrongful disclosure,
collection, or negligence in the handling of confidential information, privacy
perils, including coverage for related regulatory defense and penalties; (3)
data breach expenses payable whether incurred by City or Consultant,
including but not limited to consumer notification, whether or not required
by law, computer forensic investigations, public relations and crisis
management firm fees, credit file or identity monitoring or remediation
services in the performance of services for City or on behalf of City
hereunder.
If a sub -limit applies to any elements of coverage, the certificate of
insurance evidencing the coverage above must specify the coverage
section and the amount of the sub -limit.
E. Comprehensive Crime Coverage. Contractor shall maintain
Comprehensive Crime Coverage, including employee dishonesty/fidelity
coverage, covering the theft, loss or destruction of money and securities
either on -site or in -transit, in an amount not less than two million dollars
($2,000,000) per occurrence and four million dollars ($4,000,000) in the
aggregate. The Comprehensive Crime Coverage shall provide or be
endorsed to provide that City shall be included as a loss payee under such
policy.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement, except for Crime, shall be endorsed to waive
subrogation against City, its City Council, boards and commissions, officers,
agents, volunteers and employees or shall specifically allow Consultant or
others providing insurance evidence in compliance with these requirements
to waive their right of recovery prior to a loss. Consultant hereby waives its
own right of recovery against City, and shall require similar written express
waivers from each of its subconsultants.
B. Additional Insured Status. All liability insurance policies including general
liability, excess liability, and cyber but not professional liability/tech E&O
shall provide or be endorsed to provide that City, its City Council, boards
and commissions, officers, agents, volunteers and employees shall be
included as additional insureds under such policy.
PayByPhone Technologies, Inc. Page C-2 9-104
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
blanket waiver of subrogation endorsement for workers' compensation and
other endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this Agreement.
The certificates and endorsements for each insurance policy shall be
signed. At least forty-five (45) days following the expiration of any such
policy, evidence of insurance showing that such insurance coverage has
been renewed or extended shall be filed with the City. The Consultant will
commit to notify the City in the event of any lapse of coverage. If such
coverage is cancelled or reduced, Consultant shall, within ten (10) days
after receipt of written notice of such cancellation or reduction of coverage,
file with the City evidence of insurance showing that the required insurance
has been reinstated or has been provided through another insurance
company or companies. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. 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. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
PayByPhone Technologies, Inc. Page C-3 9-105
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
PayByPhone Technologies, Inc. Page C-4 9-106
Attachment E
Professional Services Agreement with ParkHub, Inc. for
Pay by Cell Provider Payment Aggregator
9-107
PROFESSIONAL SERVICES AGREEMENT
WITH PARKHUB, INC. FOR
PAY BY CELL PROVIDER PAYMENT AGGREGATOR
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 10th day of October, 2023 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and PARKHUB, INC., a Delaware corporation ("Consultant"), whose address is 1717
McKinney Avenue, Suite 800, Dallas, TX 75202, and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to cant' on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide data aggregator services to support
the City's contracted Pay by cell parking and reservation services ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on May 31, 2028, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent'and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing,to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Two Hundred Ninety Four
Thousand Dollars and 00/100 ($294,000.00), without prior written authorization from
City. No billing rate changes shall be made during the term of this Agreement without the
prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
ParkHub, Inc. Page 2
9-109
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Charley DeBow to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to -City.
6. ADMINISTRATION
This Agreement will be administered by the Revenue Division. City's Revenue
Manager or designee shall be the Project Administrator and shall have the authority to
act for City under this Agreement. The Project Administrator shall represent City in all
matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
ParkHub, Inc. Page 3
9-110
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence orwillful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
ParkHub, Inc. Page 4
9-111
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
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16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit: A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall. have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall,. at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will ba at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
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19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time .period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
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24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et sea., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given 'under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices,- demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Revenue Manager
Revenue Division
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Connor Mowles
ParkHub, Inc.
1717 McKinney Avenue, Suite 800
Dallas, TX 75202
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
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identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
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- 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise. unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
a on C. Harp 9 • r • 23 �-
Ci y Attorney
ATTEST:
Date:
0
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Noah Blom
Mayor
CONSULTANT: PARKHUB, INC.,
Delaware corporation
Date:
By:
Connor Mowles
Chief Executive Officer
Date:
By:
Nicholas Dermatas
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
0
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EXHIBIT A
SCOPE OF SERVICES
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EXHIBIT A
Scope of Services
UNIFIED BACK OFFICE SYSTEM
The Consultant shall provide a single, unified back office system that integrates all mobile
payment data from City's contracted pay -by -cell providers (MPP System Partners),
including the following:
1. A centralized management and reporting interface that includes payment and
transactional data from all MPP System Partners.
2. Centralized City configuration capabilities such as:
a. Ability to adjust rates by zone
b. Configure parking regulations such as:
i. Hours of operation
ii. Prepayment options
iii. Maximum time limits
iv. Minimum parking time
v. Lockout periods
vi. Validation/coupon codes
vii. Ability to communicate configurations to all MPP System Partners and
verify changes have been made.
3. Consolidated reporting with the ability to filter by individual mobile parking payment
vendor or all MPP Systems.
4. Robust consolidated reporting, which shall include, at the minimum:
a. Revenue
b. Zone
c. Parking duration
f. License Plate
In order to receive real-time parking session and payment data from the MPP System
Partners, Consultant is hosted by Amazon Web Services (AWS) and is engineered for
scalability and flexibility. Consultant shall provide industry standard reliability and
redundancy with 99.9% up -time. Consultant shall connect to mobile apps via real-time
API connections. Mobile payment transactions shall be sent to Consultant in real-time
and immediately available for enforcement lookups. This is the workflow for all payment
integrations except ParkMobile. For ParkMobile transactions, Consultant shall send a
request every 15 seconds and pull all new parking transactions from the ParkMobile
database.
Consultant shall provide upgrades to the back office system at no additional fee. Future
releases shall be communicated at least 30 days prior to release with detailed update
notes on new features. Additional training via webinar shall be available for all City staff.
On -site training may be scheduled at no additional cost to the City.
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Consultant's product is hosted on Amazon Web Services across multiple regions of North
America. Consultant's data storage shall be replicated across multiple available zones to
ensure access to data in the event of a major outage. Consultant's system shall
immediately notify technical and executive team of any integration issues vie email.
Notification shall be sent for every failure and shall be investigated and resolved
immediately.
Consultant shall work with each Mobile Payment Provider System Partner individually to
ensure configurations are correct. As configurations change, consultant will communicate
changes to Mobile Payment Provider System Partners and verify that all changes have
been correctly applied. Configuration changes to be communicated to Mobile Payment
Provider System Partners include, but are not limited to: Parking rates by zone and space,
hours of operation, prepayment options, maximum time limits, minimum parking time,
"lockout" periods, validations/coupon codes.
AUDIT CAPABILITIES
The MPP System Aggregator shall always reflect current pricing the City has approved.
The pricing within the MPP System Aggregator is the pricing used to charge the customer
for parking and becomes revenue to the City. System shall provide a robust automated
auditing capability that highlights any discrepancies between approved pricing and pricing
charged to the customer. In addition, the City expects the chosen Consultant of this
solicitation to resolve any pricing discrepancies such that the City receives all entitled
revenue.
INTEGRATION REQUIREMENTS
Consultant shall provide one central interface between MPP System Aggregator and City
sub -systems to support the deployment of multiple MPP systems. Consultant shall make
all requested parking transaction data available to all City sub -systems through
Consultant's API at no cost. City's sub -systems include, but are not limited to: Handheld
devices, License plate recognitioin, Citation and permit management systems, pay
stations, way finding, and mapping and vehicle guidance systems.
STANDARDIZED ZONING
Consultant shall ensure that all MPP systems conform to a zone and/or space numbering
sequence as defined by the City. As multiple MPP Systems will be utilized, the City
requires that the same numbering sequence be used by each MPP System provider.
MARKETING AND INTEGRATED SIGNAGE
Consultant shall coordinate all marketing efforts with contracted mobile payment apps, as
well as oversee the individual mobile payment app marketing strategies to ensure the
mobile payment apps are abiding by their marketing terms of their contract with the City.
Consultant will develop integrated signage and decals highlighting zone #'s, mobile
payment applications, QR codes, 1-800 #'s, and all other pertinent or requested
information. The Consultant will also be responsible for the cost of all signage. Signage
specifications will be subject to the City's approval and must conform to appropriate
design standards and signage guidelines. Decals will be provided for each MPP system
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operating in the City. The Consultant will be required to provide, at their cost, sufficient
signage and decals as determined by the City. At a minimum, this will include decals for
each pay station and upright signage.
SUPPORT
Consultant shall assign a Primary Account executive who will be responsible for
communication between the City and Consultant during the City's normal business hours,
7:30a — 5:30p. Consultant shall respond to all support related communications the same
day. Support can be reached via e-mail at charley.debow@parkhub.com and by phone
at (814) 574-3121. City staff shall also have a direct line to ParkHub's executive team,
including the CEO, CTO and COO:
Conner Mowle, CEO
915-474-3860
Wen Sang, CTO
617-816-1666
Chris Elliston, CRO
214-755-7070
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EXHIBIT B
SCHEDULE OF BILLING RATES
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EXHIBIT B
Billing Rates
Application
Year 1
Year 2
Year 3
Year 4
Year 5
Implementation
$0.00
$0.00
$0.00
$0.00
$0.00
Monthly Costs
$0.00
$0.00
$0.00
$0.00
$0.00
User Transaction Fee
$0.05
$0.05
$0.05
$0.05
$0.05
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EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance i,n accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
G. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
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D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
E. Cyber Liability. Contractor shall maintain cyber liability insurance with limits
of not less than two million dollars ($2,000,000) per occurrence and four
million dollars ($4,000,000) annual aggregate covering (1) all acts, errors,
omissions, negligence, infringement of intellectual property, (2) network
security and privacy risks, including but not limited to unauthorized access,
failure of security, breach of privacy perils, wrongful disclosure, collection, or
negligence in the handling of confidential information, privacy perils,
including coverage for related regulatory defense and penalties, and (3) data
breach expenses payable whether -incurred by City or Contractor, including
but not limited to consumer notification, whether or not required by law,
computer forensic investigations, public relations and crisis management
firm fees, credit file or identity monitoring or remediation services, in the
performance of services for City or on behalf of City hereunder.
F. Comprehensive Crime .Coverage. Contractor shall maintain
Comprehensive Crime Coverage, including employee dishonesty/fidelity
coverage, covering the theft, loss or destruction of money and securities
either on -site or in -transit, in an amount not less than two million dollars and
00/100 ($2,000,000) per occurrence and four million dollars and 00/100
($4,000,000) in the aggregate.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
ParkHub, Inc. Page C-2 9_126
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. 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. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
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D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement'imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by, the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
I. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
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