Resolution 2024-32867 RESOLUTION NO! 2024-32867
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE AGREEMENTS WITH
PARKMOBILE, LLC, AND PAYBYPHONE US INC., FOLLOWING THE
SUCCESSFUL NEGOTIATIONS BY THE ADMINISTRATION, PURSUANT TO
REQUEST FOR QUALIFICATIONS (RFQ) NO. 2023-051-WG FOR MOBILE
PARKING PAYMENT SYSTEMS; AND AUTHORIZING THE CITY MANAGER
AND CITY CLERK TO EXECUTE THE FINAL AGREEMENTS WITH
PARKMOBILE; LLC, AND PAYBYPHONE US INC.
WHEREAS, on February 1, 2023, the Mayor and City Commission approved to issue an
RFQ for mobile parking payment solutions; and
WHEREAS, on February 2, 2023, RFQ 2023-051-WG was issued; and
WHEREAS, on April 5, 2023, the City received proposals from the following nine(9)firms:
• Frogparking, Inc.
• Honkmobile USA LTD.
• Hotspot Parking Inc.
• Mobile Smart City Corp
• Parkeon, Inc.
• ParkMobile, LLC
• Passport Labs, Inc:
• PayByPhone US Inc.
• Zipby USA LLC; and
WHEREAS, on May 26, 2023,. the Evaluation Committee comprised of Jacqueline
Caicedo, Administrative Services Manager, Parking Department; Manny Marquez, Assistant
Director, Finance Department; Seychelles Martinez, Chief Software Architect, Information
Technology Department; Otniel Rodriguez, Assistant Director, Transportation and Mobility
Department; and Alberto Ventura, Assistant Director, Parking Department, convened to consider
proposals;,and •
WHEREAS, the Committee was provided an overview of the project, information relative
to the City's Cone of Silence Ordinance, the Government Sunshine Law, general information on
the scope of services and a copy of each proposal; and
WHEREAS, the Committee was instructed to score and rank each proposal pursuant to
the evaluation criteria established in the RFQ; and
WHEREAS, the evaluation process resulted in the proposers being ranked by the
Evaluation Committee in the following order:
1st ranked —ParkMobile, LLC
2nd ranked — PayByPhone US Inc.
3rd ranked — Parkeon, Inc. (Flowbird)
4th ranked —Mobile Smart City Corp
5th ranked — HonkMobile USA LTD.
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6th ranked—Passport Labs, Inc.
7th ranked Zipby. USA LLC
8th ranked—Hotspot Parking Inc.
9th ranked.— Frogparking, Inc.
WHEREAS, on June 28, 2023, via Resolution No. 2023-32625, the Mayor and City
Commission authorized the Administration to simultaneously negotiate with ParkMobile, LLC,
and PayByPhone US Inc., the first and second-ranked firms, respectively, with the final
negotiated Agreement(s) subject to the prior approval of the Mayor and City Commission; and
WHEREAS, as directed by the City Commission, the Administration successfully
negotiated agreements with ParkMobile, LLC and PayByPhone US Inc.
NOW; THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission approve the agreements with ParkMobile, LLC, and PayByPhone Us Inc., following
the successful negotiations by the Administration, pursuant to request for qualifications(RFQ)No:
2023-051-wg for Mobile Parking Payment Systems; and authorize the City Manager and City
Clerk to execute the final agreements with ParkMobile, LLC, and PayByPhone Us Inc.
PASSED AND ADOPTED this 31 day of 744144►'y' 2024.
ATTEST:
FEB 0 6 2024
RAFAEL E. GRANADO, CITY CLERI ,,.�..N,,,,��h STEVEN MEINER, MAYOR
;� 0,,, cy
s JINCORP GRATED'
�'�,?�,4, �i�"= APPROVED AS TO
"�,RH 2 _= FORM & LANGUAGE
w" v & FOR EXECUTION
Sponsored by Commissioner Alex J. Fernandez
'City Attorney Date
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Agenda Item: C2 D
• MIAIv\I BEACH Date: 1-31-2024
City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Honorable Mayor Steven Meiner and Members of the City Commission
FROM: Alina T. Hudak, City ManagI
DATE: January 31, 2024
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING THE AGREEMENTS WITH PARKMOBILE, LLC,
AND PAYBYPHONE US INC., PURSUANT TO REQUEST FOR QUALIFICATIONS
(RFQ) NO. 2023-051-WG, FOR MOBILE PARKING PAYMENT SYSTEMS; AND
AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE FINAL
AGREEMENTS
RECOMMENDATION
It is recommended that the Mayor and City Commission adopt the Resolution approving the
agreements with ParkMobile, LLC, and PayByPhone US, Inc., pursuant to Request, for
Qualifications (RFQ) 2023-051-WG for mobile parking payment systems. The Resolution also
authorizes the City Manager and City Clerk to execute the final agreements.
BACKGROUND/HISTORY
Mobile parking payment systems provide an alternative to the traditional ways of paying for
parking such as parking meters. Many firms offer mobile parking payment technology to users
through the use of a telephone application. Over the past ten (10) years, the City has engaged
with ParkMobile USA, Inc. for provision of these services. The agreement with ParkMobile was
set to expire on February 23, 2023.
On October 26, 2022, the City Commission directed the Administration to explore options for
contracting with the best mobile parking payment application service, including, but not limited to,
mobile parking payment applications being used by neighboring jurisdictions to maximize
convenience to residents and local visitors.
Pursuant to the City Commission's direction on October 26, 2022, staff returned to the City
Commission on. December 14, 2022, after having, researched which mobile parking payment
solutions were being utilized by neighboring jurisdictions and whether the City could piggyback
any of the contracts executed by these agencies. All local jurisdictions were queried, and
responses were received from the following:
1) City of Miami/Miami.Parking Authority;
2) City of,Coral Gables;
3) City of Doral;
4) City of Hallandale and
5) City of Fort Lauderdale.
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The City of Miami/Miami Parking Authority responded that its contract had been competitively
solicited and awarded to PayByPhone US Inc. ("PayByPhone")in 2014 and is scheduled to expire
in 2025. The other four (4) agencies responded that they were piggybacking off the City of
Miami/Miami Parking Authority Contract.
The City of Miami/Miami Parking Authority's contract with PayByPhone is similar to the City's
current contract with ParkMobile in that it allows for a resident discount rate and does not charge
residents a transaction fee. However, unlike the City's current contract, under which the City does
not pay any charges (resident transaction fees are absorbed by visitors in the visitor rates
charged), the City of Miami/Miami Parking Authority contract would allow the City to absorb the
resident transaction fees. Doing so is estimated to cost the City $136,000.00 annually. This
estimate is based on approximately 503,000 resident transactions at the current PayByPhone
convenience fee of$0.27.
Staff also identified competitive contracts awarded to PayByPhone by the National Cooperative
Purchasing Alliance(NCPA) and the City of Tampa. However, the NCPA contract does not allow
for discounted rates and no transaction fees to residents. Further, the Agreement with the City of
Tampa contains local preference language that typically precludes other agencies from
piggybacking.
Staff was unable to identify a contract awarded to PayByPhone that meets the City's current
requirements to offer residents discount rates and fee waivers. This is an important distinction
because piggybacking typically requires that the agency desiring to piggyback accept the terms,.
conditions, and pricing of the other agency's contract without modification.
During the research,process, staff learned that some jurisdictions (e.g., the City of Tampa) had
awarded contracts for mobile parking payment solutions to more than one provider as a means
of extending convenience to visitors traveling into the City from areas serviced by other providers.
As a result, the Administration recommended the City Commission authorize the preparation of a
competitive solicitation for a replacement contract for mobile parking payment solutions that
appropriately prioritizes, among other relevant factors, the convenience to the customer and
potential benefits to the City of utilizing a mobile parking payment solution provider used by a
majority of neighboring jurisdictions. The solicitation would also allow an award of a contract to
more than one mobile parking payment solutions provider if the City Commission deems that
doing so is in the City's best interest.
On February 1, 2023, the Mayor and City Commission approved the issuance of RFQ No. 2023-
051-WG for mobile parking payment solutions and also approved a month-to-month extension of
the current agreement with ParkMobile USA, Inc. until a replacement agreement is executed and
mobile parking payment service has been transitioned to a new service provider. RFQ responses
were due and received on April 5, 2023. The City received nine (9) proposals from the following
firms: Frogparking, Inc., Honkmobile USA LTD., Hotspot Parking Inc., Mobile Smart City Corp,
Parkeon, Inc., ParkMobile, LLC, Passport Labs, Inc., PayByPhone US Inc., and Zipby USA LLC
On May 26, 2023, the Evaluation Committee, appointed by the City Manager via Letter to
Commission No. 223-2023,, convened to consider the proposals received. The results of the
Evaluation Committee process are detailed in Attachment A and resulted in the following rankings:
1st ranked — ParkMobile, LLC
2nd ranked —PayByPhone US Inc.
3rd ranked — Parkeon, Inc. (Flowbird)
4th ranked — Mobile Smart City Corp
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5th ranked —HonkMobile USA LTD.
6th ranked—Passport Labs, Inc.
7th ranked —Zipby USA LLC
8th ranked —Hotspot Parking Inc.
9th ranked — Frogparking, Inc.
On June 28, 2023, the Mayor and City Commission approved Resolution No. 2023-32625
(attached hereto) authorizing the Administration to simultaneously negotiate with ParkMobile,
LLC, and PayByPhone US Inc., the first and second-ranked firms, respectively. The Resolution
also requires that the final negotiated Agreement(s) with the recommended proposer(s) shall be
subject to the prior approval of the Mayor and City Commission.
ANALYSIS
As directed by the City Commission, staff negotiated agreements with ParkMobile, LLC and
PayByPhone US Inc, the 1st and 2nd ranked firms, respectively. ParkMobile and PaybyPhone are
leaders in the mobile parking payment field, both were founded over fifteen years ago and have
contracts with multiple municipalities in Florida. As the City already has history with ParkMobile
as a service provider, adding PaybyPhone to our payment options will further facilitate the parking
user experience in the City. Despite the many similarities between these companies, there are
also major differences, including management of transaction fees. Negotiation discussions
commenced on July 6,2023, negotiating the waiver of transaction/convenience fees and agreeing
to an acceptable resident access format resulted in extensive negotiations. ParkMobile waives
transaction fees for City residents. PaybyPhone agreed to the terms proposed by the City and
committed to developing technology and implementing operational changes to allow for the waiver
of transaction fees for City residents. The Administration's goal was to negotiate similar contracts
with both firms to provide for easier enforcement of the agreements, while providing seamless
options to customers. Through extensive discussions and a cooperative spirit, this goal was
reached. The negotiated Agreements are attached hereto as Attachment A.
The most significant terms are highlighted below.
o The initial term of this Agreement shall be for a period of five (5) years. At the City
Manager's sole and absolute discretion and provided further that the concessionaire is not
in default under this Agreement, the City may extend the term of this Agreement for two
(2) additional two-year periods. The concessionaire shall maintain, for the entirety of any
renewal period, the same revenue share, terms, and conditions included within the
originally awarded contract. Continuation of the contract beyond the initial period and any
renewal option subsequently exercised is not a right of the Concessionaire.
o Both firms have agreed to waive transaction/convenience fees for City residents.
• Both firms agree to Transaction/Convenience fees for non-residents of$.35 per session.
• PaybyPhone and ParkMobile will collaborate to provide signage (ParkMobile will design,
procure and deliver the signage and PaybyPhone will cover all costs).
o ParkMobile will continue to utilize the current zones deployed throughout the City.
• For non-residents, PaybyPhone will utilize the same zones deployed by ParkMobile.
• However, for residents, PaybyPhone will require unique zones to access the $.35
transaction fee waiver.
LOBBYIST DISCLOSURE
In accordance with Resolution No. 2023-32857, adopted by the City Commission on December
13, 2023, the following information has been provided by the Administration.
1. Was the Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481,
includes a principal engaged in lobbying? No
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2. If so, specify name of lobbyist(s)and principal(s): Not Applicable
SUPPORTING SURVEY DATA
Not Applicable
FINANCIAL INFORMATION
For FY23 total parking meter revenue was $27,943,000 of which 85% or $23,751,550 was
collected. through ParkMobile. Pursuant to this. agreement ParkMobile and PayByPhone will
collect parking revenue for the City of Miami Beach. A $.35 transaction/convenience fee is
charged to non-residents. Transaction/convenience fees are waived for City of Miami Beach
residents.
ACCOUNTS:
This is.a revenue collection agreement.
CONCLUSION:
Based on the foregoing, it is recommended that the Mayor and City Commission adopt the
Resolution, approving the agreements with ParkMobile, LLC, and PayByPhone US Inc., pursuant
to Request for Qualifications(RFQ)No. 2023-051-WG, for mobile parking payment systems. The
Resolution also authorizes the City Manager and City Clerk to execute the final agreements with
ParkMobile, LLC, and PayByPhone US Inc.
ATTACHMENTS:
A Agreement with ParkMobile, LLC
B_Agreement with PayByPhone US Inc.
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ATTACHMENT A
Contract no.23-051-01
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH
AND
PARKMOBILE, LLC
FOR
MOBILE PARKING PAYMENT SYSTEM, PURSUANT TO
REQUEST FOR QUALIFICATIONS 2023-051-WG
This Professional Services Agreement ("PSA") and the ParkMobile, LLC. Service Agreement
("Service Agreement"), collectively, the "Agreement" is entered into this ("Effective
Date"), between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation organized and
existing under the laws of the State of Florida, having its principal offices at 1700 Convention
Center Drive, Miami Beach, Florida,33139(the"City"), and ParkMobile,LLC,a Delaware Limited
Liability Corporation, whose address is 1100 Spring Street Northwest, Suite 200, Atlanta, GA
30309 ("Vendor"or"ParkMobile").
SECTION 1
DEFINITIONS
Additional
Parking Locations: As defined in Section 12.1 of the Agreement.
Agreement: This Professional Services Agreement between the City and Vendor,
including any exhibits and amendments thereto and the ParkMobile
Service Agreement, collectively the"Agreement".
Authorized User: City's employee, consultant, contractor, and agent who is authorized by
City to access and use the Platform under the rights granted to City
pursuant to this Agreement.
City Manager: The chief administrative officer of the City.
City Manager's
Designee: The City staff member who is designated by the City Manager to administer
this Agreement on behalf of the City.The City Manager's designee shall be
the Parking Department Director.
Vendor For the purposes of this Agreement, Vendor shall be deemed to be an
independent contractor, and not an agent or employee of the City.
IP Rights: Any and all registered and unregistered rights granted, applied for,
or otherwise now or hereafter in existence under or related to any
patent, copyright, trademark, trade secret, database protection, or
other intellectual property rights laws, and all similar or equivalent
rights or forms of protection, in any part of the world.
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Contract no.23-051-01
Parking.
Locations: The location or locations of City's on-street parking, off-street parking,
reservation parking, parking lots, parking decks, permitted parking, and
other facilities where ParkMobile.Users may park.
Platform: Access-controlled mobile and/or web applications, services or interfaces
developed, hosted, or managed by, on behalf of, or in partnership with
ParkMobile that are made available to Client to administer, configure,
manage and/or monitor parking sessions, parking rates, and/or parking
restrictions associated with City's Parking Locations.
Services: The ParkMobile Application, the Platform, and all services, work and
actions by the Vendor performed or undertaken pursuant to the Agreement.
Transaction Fee: The Fee charged by the Vendor to the user per transaction as set forth in
Exhibit B
Parking Rate: The fee charged by the City for use of the parking space.
ParkMobile
Application: Any and all mobile and/or web applications, services, or interfaces
developed, hosted, or managed by, on behalf of, or in partnership with
ParkMobile and that are made available to the general public and that
facilitate the payment of parking transactions.
Proposal
Documents: Proposal Documents shall mean City of Miami Beach RFQ No. 2023-051-
WG for Mobile Parking Payment System, together with all amendments
thereto, issued by the City in contemplation of this Agreement RFQ, and
the Vendor's proposal in response thereto ("Proposal"), all of which are
hereby incorporated and made a part hereof; provided, however,that in the
event of an express conflict between the Proposal Documents and this
Agreement, the following order of precedent shall prevail: the Professional
Services Agreement;the RFQ;the Services Agreement, and the Proposal.
Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center
Drive, Third Floor, Miami Beach, Florida 33139; telephone number (305)
673-7000, Ext. 26724; and fax number(305)673-7529.
Transaction Data: Information and Data collected by the Vendor relating to drivers' parking
sessions, which 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 center.
User Profile Data: Any information about or with respect to ParkMobile users that is not
related to parking sessions at the Parking Locations, including without
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Contract no.23-051-01
limitation, information provided by users upon registration for a ParkMobile
account and data about the user's activity in the ParkMobile account or the
Application.
Merchant of Record: Refers to the entity that is authorized to receive customer payments to its
merchant account set up with its acquiring bank, including credit card and
any digital wallet transactions for Services.
SECTION 2
SCOPE OF SERVICES
2.1 In consideration of the Fee to be paid to Vendor by the City, Vendor shall provide the work
and services described in Exhibit"A" hereto (the"Services").
Although the Vendor may be provided with a schedule of the available hours to provide its
Services,the City shall not control nor have the right to control the hours of the Services performed
by the Vendor; where the Services are performed (although the City will provide Vendor with the
appropriate location to perform the Services); when the Services are performed, including how
many days a week the Services are performed; how the Services are performed, or any other
aspect of the actual manner and means of accomplishing the Services provided. Notwithstanding
the foregoing, all Services provided by the Vendor shall be performed in, accordance with the
terms and conditions set forth in Exhibit"B"and to the reasonable satisfaction of the City Manager.
If there are any questions regarding the Services to be performed, the Vendor should contact the
following person:
Monica Beltran, Director, Parking Department
1755 Meridian Avenue, 2nd Floor
Miami Beach, Florida 33139.
(305) 673-7000 ext. 26863
MonicaBeltran(c�miamibeachfl.gov
2.2 Vendor's Services, and any deliverables incident thereto, shall be completed in
accordance with the timeline and/or schedule in Exhibit C hereto. •
2.3 Services Provided by ParkMobile. During the Term(as defined herein), ParkMobile shall
perform the services for the City as described in Exhibit A hereof (as amended, modified or
supplemented from time to time upon the mutual written agreement of the parties, the"Services",
as further defined in Section 1). ParkMobile shall render the Services faithfully and to the best of
its ability and in compliance with all applicable laws, Federal, State, and local laws, codes,
ordinances, resolutions, administrative policies and procedures and/or rules and regulations,
(collectively, "Applicable Laws"), devoting such time as is reasonably necessary to provide the
Services. The precise times and manner of the performance of Services shall be as reasonably
requested by the City, consistent with a schedule to be reasonably agreed upon from time to time
by ParkMobile and the City. In connection with ParkMobile's performance of the Services, and in
addition to ParkMobile's compliance with Applicable Laws, ParkMobile shall also be subject to,
and agrees to abide by, such policies, procedures, directions and restrictions as the City, in its
sole and reasonable discretion, may establish from time to time. ParkMobile shall implement the
service within sixty(60)days of the effective date of this Agreement.
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Contract no.23-051-01
If the City requires additional work and/or services that are not included in this Agreement,
f arkMobile and the City shall negotiate such additional work and/or services, mutually agree on
the amount of additional compensation,and memorialize the terms in a written amendment to this
Agreement.
2.4 Help and Support.ParkMobile agrees to use its reasonable efforts to assist the City with
any technical support that the City may reasonably require in relation to using the Services. In
furtherance of the foregoing, ParkMobile agrees to provide the City with preventative
maintenance, corrective maintenance, adaptive maintenance and online, on-site and telephone
support with respect to the Services. Each of ParkMobile and the City shall promptly notify the
other of any errors or interruptions that arise during the City's use of the Platform,the ParkMobile
Application or the Services hereunder.
2.5 Errors and Corrections. In the event of any errors or interruptions in the Services,
ParkMobile's sole and exclusive obligation shall be to use reasonable efforts to repair or restore
that portion of the Services as promptly as possible. Repair may take the form, at the option of
ParkMobile, as the case may be, of: (i)corrected software applicable to the Services;(ii)corrected
materials in hard copy or electronic form describing the use and operation of the software
applicable to the Services, including any manuals and programming tools; (iii) instructions or
procedures to bypass the problem until a more permanent correction can be implemented; or(iv)
correction/clarification of the functional definition of the Services.
• 2.6 Publicity of Services. All brochures and promotional materials to be distributed by
ParkMobile and the City in connection with the Services shall be in a form mutually agreed upon
by the parties.
2.7 Authority of Parties; Cooperation. Each party acknowledges and agrees that it has no
authority to act on behalf of the other party other than as set forth in this Agreement or to enter
into any contract or to incur any liability on behalf of the other party, except with prior written
consent of an authorized officer of such party. Each party covenants that it shall not at any time
represent, either orally or in writing, that it has any right, power, or authority with respect to the
other party not expressly granted to the other party by such party.
Each party shall reasonably cooperate with the other party to permit such party to perform its
duties and obligations under this Agreement in a timely manner.
2.8 Technology Sublicense. Subject to and conditioned on City's and'its Authorized Users'
compliance with the terms and conditions of this Agreement, all applicable laws and regulations,
and City's payment of fees, ParkMobile hereby grants the City the nonexclusive, non-transferable,
non-sub-licensable, revocable right and sublicense to access and use the Platform during the
Term, as defined below. The City shall not use the Platform for any use other than in connection
with the Services. The City acknowledges and agrees that (a) ParkMobile shall be its exclusive
source of the Platform for the Term;and(b)all Services obtained by the City shall use the Platform
as necessary. The City has no interest in or right to use.the Platform or any improvements thereto
or modifications thereof except as set forth herein. In all instances, the City's use of the Platform
shall inure to both party's benefit. During the Term or at any time thereafter, the City shall not
commit, or cause any third party to commit, any act challenging, contesting, or impairing or
attempting to impair ParkMobile's right, title and interest in and to the Platform or the validity
thereof.
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Contract no.23-051-01
2.9 Proposal Documents. Notwithstanding the description of ParkMobile's services and
without limitation, ParkMobile shall provide any and all work and services as set forth in, and in
accordance to the requirements of, the Proposal Documents (which are attached as Exhibit D
hereto and are hereby deemed incorporated by reference as if fully set forth herein).
SECTION 3
TERM
The term of this Agreement("Term")shall commence on the date identified in the notice provided
by the City Manager's Designee stating that all initial signage contemplated under Section 10.11
has been installed ("Signage Installation Notice"), and shall have an initial term of Five (5)years,
with two(2)additional two-year renewal options,to be exercised at the City Manager's sole option
and discretion, by providing Vendor with written notice of same no less than thirty(30) days prior
to the expiration of the initial term.
Notwithstanding the Term provided herein, Vendor shall adhere to any specific timelines,
schedules, dates, and/or performance milestones for completion and delivery of the Services, as
same is/are set forth in the timeline and/or schedule referenced in Exhibit C hereto.
SECTION 4
FEE
4.1 City shall reimburse ParkMobile as set forth in Exhibit B and in accordance with Section
4.6. ParkMobile may propose an increase in the end user fees outlined in Exhibit B, not more
often than once in a calendar year,to adjust for inflation and any increase in the cost of ParkMobile
providing the services to City. All adjustments to the fees shall be valid upon the prior written
approval of 'the City Manager or City Manager's Designee. City rate structure is varied and
includes flat and hourly rates that differ for residents and visitors. However, other rates and/or
geographic areas may be added in the future. The rates specified herein shall commence on the
date specified in the Signage Installation Notice to Proceed.
4.2. Payment. The City shall serve as the Merchant of Record for ParkMobile Application
transaction fees and parking rates. ParkMobile shall invoice the City and the City shall issue a
check to reimburse ParkMobile in accordance with Section 4.6.
4.3 Taxes. ParkMobile's prices do not include sales, use, revenue or excise taxes, and
accordingly, in addition to the price specified herein, the amount of any sales, use, excise or other
similar tax applicable to the Services provided hereunder shall be paid by the City, including any
taxes applicable on fees paid by the consumer, or, in lieu thereof, City shall provide ParkMobile
with a tax exemption certificate issued by the appropriate taxing authority.
4.3. Billing Disputes. The City shall not be entitled to suspend payment of any disputed
invoices. Any disputes must be submitted to ParkMobile in writing and with an explanation of the
reason for the dispute,within forty-five(45)days. In the event that any payment dispute is resolved
in favor of the City, ParkMobile shall credit City on the immediately subsequent invoice issued to
City.
4.4. Expenses. Except as otherwise provided herein, ParkMobile shall not charge the City any
costs for the integration of its system(s) or for the management of the project and the Services.
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Contract no.23-051-01
ParkMobile shall charge the City for ordinary, necessary and reasonable third party costs only on
direct cost basis and only after the prior written approval of the City.
4.5 Merchant of Record for Prepayment Method. For any fees collected by Parkmobile via
prepaid cards, Google Pay, Apple Pay PayPal or a similar prepayment application, the parties
designate ParkMobile as the merchant of record. On a monthly basis, ParkMobile shall provide
the City a report of all transaction fees collected on their behalf and issue a reimbursement check
to the City. All fees paid under this Section 4.5 shall be paid to the City no later than 45days after
invoice.
4.6 Invoices. ParkMobile will issue invoices to the City on a monthly basis for all fees due to
ParkMobile under this Agreement. All payments due under this Agreement shall be paid within
thirty(45).days of the invoice date. All invoices shall include a detailed description of the Services
(or portion thereof)provided. All invoices submitted to the City shall be submitted to the following
address:
Accounts Payable: Pavables(c�miamibeachfl.gov
SECTION 5
TERMINATION
5.1 TERMINATION FOR CAUSE BY THE CITY
a. If either party shall fail to fulfill or otherwise violate any of the covenants, agreements, or
stipulations in this Agreement, and such material breach remains uncorrected for thirty(30)days
after receipt of notice by the other party, the other party shall thereupon have the right to
• terminate the Agreement by giving thirty (30) days' written notice to the other party of such
termination. If the breaching party fails to cure in that 30-day period or the breach is incapable
of cure, then the Agreement shall so terminate.
b. In that event, the City shall compensate ParkMobile in accordance with the Agreement for all
Services performed by ParkMobile prior to termination, net of any costs incurred by the City as
a consequence of the default.
c. Notwithstanding the above, neither party shall be relieved of liability to the other party for
damages sustained by virtue of any breach of the Agreement
5.2 TERMINATION FOR CONVENIENCE OF THE CITY
THE CITY MAY ALSO,THROUGH ITS CITY MANAGER,AND FOR ITS CONVENIENCE
AND WITHOUT CAUSE, TERMINATE THIS AGREEMENT AND THE SERVICES THEN
REMAINING TO BE PERFORMED AT ANY TIME WITHOUT CAUSE BY GIVING
WRITTEN NOTICE TO PARKMOBILE OF SUCH TERMINATION, WHICH SHALL
BECOME EFFECTIVE THIRTY (30) DAYS FOLLOWING RECEIPT BY PARKMOBILE
OF SUCH NOTICE. IF THE. AGREEMENT IS TERMINATED BY THE CITY AS
PROVIDED IN THIS SECTION, THE CITY SHALL COMPENSATE PARKMOBILE IN
ACCORDANCE WITH THE AGREEMENT FOR ALL SERVICES ACTUALLY
PERFORMED BY PARKMOBILE PRIOR TO TERMINATION. NO COMPENSATION
SHALL BE DUE TO PARKMOBILE FOR ANY PROFITS THAT PARKMOBILE
EXPECTED TO EARN ON THE BALANCE OF THE AGREEMENT. SUCH PAYMENTS
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Contract no.23-051-01
SHALL BE THE TOTAL EXTENT OF THE CITY'S LIABILITY TO PARKMOBILE UPON A
TERMINATION AS PROVIDED FOR IN THIS SECTION.
ADDITIONALLY, IN THE EVENT OF A PUBLIC HEALTH, WELFARE, OR SAFETY
CONCERN, AS DETERMINED BY THE CITY MANAGER, IN THE CITY MANAGER'S
SOLE DISCRETION, THE CITY MANAGER, PURSUANT TO A VERBAL OR WRITTEN
NOTIFICATION TO THE VENDOR, MAY IMMEDIATELY SUSPEND THE SERVICES
UNDER THIS AGREEMENT FOR A TIME CERTAIN, OR IN THE ALTERNATIVE,
TERMINATE THIS AGREEMENT ON A GIVEN DATE.
5.3 TERMINATION FOR CAUSE BY PARKMOBILE
ParkMobile may terminate its performance under this Agreement only if the City defaults and
fails to cure the default within forty-five(45)days of receiving written notice of a notice of default
delivered pursuant to Section. Default by the City occurs if the City fails to perform one or more
of its material duties under this Agreement. If a default occurs and ParkMobile wishes to
terminate the Agreement, then ParkMobile must deliver a written notice to the City describing
the default and the proposed termination date. The date must be at least thirty (30) days after
the City receives notice. ParkMobile, at its sole option, may extend the proposed termination
date to a later date. If the City cures the default before the proposed termination date, then the
proposed termination is ineffective. If the City does not cure the default before the proposed
termination date, then ParkMobile may terminate its performance under this Agreement on the
termination date.
5.4 TERMINATION FOR INSOLVENCY
Should ParkMobile (i) make a general assignment for the benefit of creditors; (ii) institute
liquidation proceedings or proceedings to be adjudicated as voluntarily bankrupt; (iii)consent to
the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent
jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act;
(vi) consent to the filing of a petition seeking such reorganization; or(vii)have a decree entered
against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or
assignee in bankruptcy or in an insolvency covering all or substantially all of such party's
property or providing for the liquidation or dissolution of such party's property or business affairs;
then, in any such event, the City party, at its option and without prior notice, may terminate this
Agreement effective immediately. In such event, the rights and obligations for the parties shall
be the same as provided for in Section 5.5.
5.5 EFFECT OF TERMINATION
a. Upon termination or expiration of this Agreement, (i) the City shall pay to ParkMobile any
portion of the Fees then accrued and properly payable under this Agreement; (ii) City shall
promptly return to ParkMobile all materials in its possession with the performance of the Services
hereunder; and (iii) City shall discontinue all use of the Platform and intellectual property of
ParkMobile.
b. Notwithstanding the exercise by any party of its rights under this Article 5, no termination of
this Agreement shall relieve either party of its liability for the payment or performance of any
obligation accrued prior to the termination date(including any indemnification obligation arising
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hereunder, whether or not notice of such indemnification claim has been given before such
termination, or of any rights or obligations under any other provisions, which, by their meaning
or content, are intended to survive the termination hereof).
SECTION 6
INDEMNIFICATION AND INSURANCE REQUIREMENTS
6.1 INDEMNIFICATION
Each party agrees to indemnify, defend and hold harmless (the "Indemnifying Party") the other
party and its officers, employees, agents, and contractors (the "Indemnified Party"), from and
against any and all actions (whether at law or in equity), claims, liabilities, losses, and expenses,
{ including, but not limited to, attorneys' fees and costs, for personal, economic or bodily injury,
wrongful death, loss of or damage to property, which may arise or be alleged to have arisen from
the negligent acts, errors, omissions or other wrongful conduct of the Indemnifying Party, its
officers, employees, agents, contractors, or any other person or entity acting under Indemnifying
Party control or supervision, in connection with, related to, or as a result of the Indemnifying Party
performance under this Agreement. To that extent, the Indemnifying Party shall pay all such
claims and losses and shall pay all such costs and judgments which may be issued from any
lawsuit arising from such claims and losses, and shall pay all costs and attorney's fees expended
by the Indemnified Party in the defense of such claims and losses, including appeals. The
Indemnifying Party expressly understands and agrees that any insurance protection required by
this Agreement or otherwise provided by the Indemnifying Party shall in no way limit the
Indemnifying Party's responsibility to indemnify, keep, and save harmless and defend the
Indemnified Party or its officers, employees, agents, and instrumentalities as herein provided.
6.2 INSURANCE REQUIREMENTS
The Vendor shall maintain the below-required insurance in effect prior to awarding the agreement
and for the duration of the agreement. The maintenance of proper insurance coverage is a
material element of the agreement and failure to maintain or renew coverage may be treated as
a material breach of the contract, which could result in termination of the Agreement.
A. Worker's Compensation Insurance for all employees of the vendor as required by Florida
Statute 440, and Employer Liability Insurance for bodily injury or disease. Should the Vendor
be exempt from this Statute, the Vendor and each employee shall hold the City harmless from
any injury incurred during the performance of the Contract. The exempt Vendor shall also
submit(i)a written statement detailing the number of employees and that they are not required
to carry Workers' Compensation insurance and do not anticipate hiring any additional
employees during the term of this contract or(ii)a copy of a Certificate of Exemption.
B. Commercial General Liability Insurance on an occurrence basis, including products and
completed operations, property damage, bodily injury, and personal & advertising injury with
limits no less than $1,000,000 per occurrence, and $2,000,000 general aggregate.
C. Automobile Liability Insurance•covering any automobile, if the vendor has no owned
automobiles, then coverage for hired and non-owned automobiles, with a limit no less than
$1,000,000 combined per accident for bodily injury and property damage.
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D. Umbrella Liability Insurance in an amount no less than $5,000,000 per occurrence. The
umbrella coverage must be as broad as the primary General Liability coverage.
Additional Insured — City of Miami Beach must be included by endorsement as an additional
insured with respect to all liability policies (except Professional Liability and Workers'
Compensation) arising out of work or operations performed on behalf of the Vendor including.
materials, parts, or equipment furnished in connection with such work or operations and
automobiles owned, leased, hired or borrowed in the form of an endorsement to the Vendor's
insurance.
•
Notice of Cancellation—Each insurance policy required above shall provide that coverage shall
not be cancelled, except with notice to the City of Miami Beach do EXIGIS Insurance Compliance
Services.
Waiver of Subrogation —Vendor agrees to obtain any endorsement that may be necessary to
affect the waiver of subrogation on the coverages required. However, this provision applies
regardless of whether the City has received a waiver of subrogation endorsement from the
insurer.
Acceptability of Insurers — Insurance must be placed with insurers with a current A.M. Best
rating of A:VII or higher. If not rated, exceptions may be made for members of the Florida
Insurance Funds (i.e. FWCIGA, FAJUA). Carriers may also be considered if they are licensed
and authorized to do insurance business in the State of Florida.
Verification of Coverage—Vendor shall furnish the City with original certificates and amendatory
endorsements, or copies of the applicable insurance language, effecting coverage required by
this contract. All certificates and endorsements are to be received and approved by the City
before work commences. However, failure to obtain the required documents prior to the work
beginning shall not waive the Vendor's obligation to provide them. The City reserves the right to
require complete, certified copies of all required insurance policies, including endorsements,
required by these specifications, atany time.
CERTIFICATE HOLDER ON ALL COI MUST READ:
CITY OF MIAMI BEACH
do EXIGIS Insurance Compliance Services
P.O. Box 947
Murrieta, CA 92564
Kindly submit all certificates of insurance, endorsements,exemption letters to our servicing agent,
EXIGIS, at:
Certificates-miamibeachriskworks.com
Special Risks or Circumstances -The City of Miami Beach reserves the right to modify these
requirements, including limits, based on the nature of the risk,prior experience, insurer,coverage,
or other special circumstances.
Compliance with the foregoing requirements shall not relieve the vendor of his liability and
obligation under this section or under any other section of this agreement.
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SECTION 7
LITIGATION JURISDICTIONNENUE/JURY TRIAL WAIVER
This Agreement shall be construed in accordance with the laws of the State of Florida. This
Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. By entering
into this Agreement, Vendor and the City expressly waive any rights either party may have to a
trial by jury of any civil litigation related to or arising out of this Agreement.
SECTION 8
LIMITATION OF CITY'S LIABILITY
The City desires to enter into this Agreement only if in so doing the City can place a limit on the
City's liability for any cause of action,for money damages due to an alleged breach by the City of
this Agreement, so that its liability for any such breach never exceeds one times the total amounts
paid to ParkMobile under this agreement in the 12 month period preceding the event giving rise
to the claim. Vendor hereby expresses its willingness to enter into this Agreement with Vendor's
recovery from the City for any damage action for breach of contract to be limited to a maximum
amount of one times the total amounts paid to ParkMobile under this agreement in the 12 month
period preceding the event giving rise to the claim.
Accordingly, and notwithstanding any other term or condition of this Agreement, Vendor hereby
agrees that the City shall not be liable to the Vendor for damages in an amount in excess of one
times the total amounts paid to ParkMobile under this agreement in the 12 month period preceding
the event giving rise to the claim for any action or claim for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this Agreement.
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida
Statutes.
In no event shall any party be liable for consequential, special, indirect or incidental damages,
including but not limited to any damages resulting from loss of use or 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.
SECTION 9
DUTY OF CARE/COMPLIANCE WITH APPLICABLE LAWS/PATENT RIGHTS; COPYRIGHT;
AND CONFIDENTIAL FINDINGS
9.1 DUTY OF CARE
With respect to the performance of the Services contemplated herein, Vendor shall exercise that
degree of skill, care, efficiency and diligence normally exercised by reasonable persons and/or
recognized professionals with respect to the performance of comparable work and/or services.
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9.2 COMPLIANCE WITH APPLICABLE LAWS
In its performance of the Services, Vendor shall comply with all applicable laws, ordinances, and
regulations of the City, Miami-Dade County, the State of Florida, and the federal government, as
applicable.
9.3 PATENT RIGHTS; COPYRIGHT; CONFIDENTIAL FINDINGS
a. ParkMobile agrees to defend and indemnify City for all losses, costs and damages resulting
from a claim and/or determination that the Services as supplied to the City infringe any United
States patent rights, copyrights or trademarks provided that: City promptly notifies ParkMobile in
writing upon City becoming aware of the existence of any such suit,action,proceeding or threat;
allows ParkMobile sole control of the defense and/or settlement thereof; provides such
reasonable cooperation as ParkMobile may require; and, makes no admissions or other
statements which may be prejudicial to ParkMobile. In no event shall City consent to any judgment
or decree or do any other act in compromise of any such claim without ParkMobile's express prior
written consent. In-no event will ParkMobile be liable for the payment of any amount agreed to in
settlement without its express consent.
b. In the event that the City is enjoined from its use of the Services due to a proceeding based
upon the infringement of patent, copyright or trademark in the United States, ParkMobile shall, at
its option, either:
i. promptly render the Services non-infringing and capable of providing services as intended;
or
ii. procure for City and its customers the right to continue using the Services; or
iii. replace the Services with non-infringing goods; or
iv. remove the Services and refund any expense of the City.
c. ParkMobile shall have no liability in respect of any claim based upon:
i. use, operation or combination of the Services with software, hardware, data, or equipment
not supplied by ParkMobile if such infringement would have been avoided but for such
use, operation or combination; or
ii. use of the Services other than in accordance with ParkMobile's specifications if such
infringement would have been avoided but for use of the Services not in accordance with
ParkMobile specifications; or
iii. Services that have been modified by any party other than DPT if such infringement would
have been avoided but for such modification.
d. Neither party will disclose the other party's or its affiliates' 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:
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i. with the other party's consent;
ii. 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
iii. when required to do so by law or by any binding rule, order or request.
For purposes of this Section 9, the parties agree that confidential or proprietary information does
not include any information that is:
i. already known to the receiving party at the time of disclosure hereunder(other than
from the other party or its affiliates)as demonstrated by its written records;
ii. 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;
iii. disclosed to the receiving party, by a third party, under no obligation of confidentiality
to the disclosing party or any other party; or
iv. 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.
SECTION 10
GENERAL PROVISIONS
10.1 AUDIT AND INSPECTIONS
Upon reasonable verbal or written notice to Vendor, and at any time during normal business
hours(i.e. 9AM—5PM, Monday through Fridays, excluding nationally recognized holidays), and
as often as the City Manager may, in his/her reasonable discretion and judgment, deem
necessary, there shall be made available to the City Manager at ParkMobile's headquarters,
and/or such representatives as the City Manager may deem to act on the City's behalf, to audit,
examine, and/ or inspect, any and all other documents and/or records relating to all matters
covered by this Agreement. Vendor shall maintain any and all such records at its place of
business at the address set forth in the"Notices" section of this Agreement.
10.2 INSPECTOR GENERAL AUDIT RIGHTS
(A) Pursuant to Section 2-256 of the Code of the City of Miami Beach,the City has established
the Office of the Inspector General which may,on a random basis, perform reviews,audits,
inspections and investigations on all City contracts., throughout the duration of said
contracts. This random audit is separate and distinct from any other audit performed by
or on behalf of the City.
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(B) The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records,
contracts and transactions. In addition, the Inspector General has the power to subpoena
witnesses, administer oaths, require the production of witnesses and monitor City projects
and programs. Monitoring of an existing City project or program may include a report
concerning whether the project is on time, within budget and in conformance with the
contract documents and applicable law. The Inspector General shall have the power to
audit, investigate, monitor,oversee, inspect and review operations, activities, performance
and procurement process including but not limited to project design, bid specifications,
(bid/proposal) submittals, activities of the Vendor, its officers, agents and employees,
lobbyists, City staff and elected officials to ensure compliance with the contract documents
and to detect fraud and corruption. Pursuant to Section 2-378 of the City Code, the City
is allocating a percentage of its overall annual contract expenditures to fund the activities
and operations of the Office of Inspector General.
(C) Upon ten (10) business days written notice to the Vendor, the Vendor shall make all
requested records and documents available to the Inspector General for inspection and
copying. The Inspector General is empowered to retain the services of independent
private sector auditors to audit, investigate, monitor, oversee, inspect and review
operations activities, performance and procurement process including but not limited to
project design, bid specifications, (bid/proposal) submittals, activities of the Vendor its
officers, agents and employees, lobbyists, City staff and elected officials to ensure
compliance with the contract documents and to detect fraud and corruption.
(D) The Inspector General shall have the right to inspect and copy all documents and records
in the Vendor's possession, custody or control which in the Inspector General's sole
judgment, pertain to performance of the contract,except to the extent such records contain
personally identifiable information, including, but not limited to original estimate files,
change order estimate files, worksheets, proposals and agreements from and with
successful subcontractors and suppliers, all project-related correspondence, memoranda,
instructions, financial documents, construction documents, (bid/proposal) and contract
documents, back-change documents, all documents and records which involve cash,
trade or volume discounts, insurance proceeds, rebates, or dividends received, payroll
and personnel records and supporting documentation for the aforesaid documents and
records.
(E) The Vendor shall make available at its office at all reasonable times the records, materials,
and other evidence regarding the acquisition (bid preparation) and performance of this
Agreement,for examination,audit,or reproduction, until three(3)years after final payment
under this Agreement or for any longer period required by statute or by other clauses of
this Agreement. In addition:
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If this Agreement is completely or partially terminated, the Vendor shall make
available records relating to the work terminated until three (3) years after any
resulting final termination settlement; and
ii. The Vendor shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement until such appeals,
litigation, or claims are finally resolved.
(F) The provisions in this section shall apply to the Vendor, its officers, agents, employees,
subcontractors and suppliers. The Vendor shall incorporate the provisions in this section
in all subcontracts and all other agreements executed by the Vendor in connection with
the performance of this Agreement.
(G) Nothing in this section shall impair any independent right to the City to conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they
be construed to impose any liability on the City by the Vendor or third parties.
10.3 ASSIGNMENT,TRANSFER OR SUBCONSULTING
With the exception of an assignment to ParkMobile's parent company, Vendor shall not
subcontract, assign, or transfer all or any portion of any work and/or service under this
Agreement without the prior written consent of the City Manager, which consent, if given at all,
shall be in the Manager's sole judgment and discretion. Neither this Agreement, nor any term or
provision hereof, or right hereunder, shall be assignable unless as approved pursuant to this
section, and any attempt to make such assignment(unless approved)shall be void.
10.4 PUBLIC ENTITY CRIMES
Prior to commencement of the Services, the Vendor shall file a State of Florida Form PUR 7068,
Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes with the
City's Procurement Division.
10.5 NO DISCRIMINATION
In connection with the performance of the Services, the Vendor shall not exclude from
participation in, deny the benefits of, or subject to discrimination anyone on the grounds of race,
color, national origin, sex, age, disability, religion, income or family status.
Additionally, Vendor shall comply fully with the City of Miami Beach Human Rights Ordinance,
codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting
discrimination in employment, housing, public accommodations, and public services on account
of actual or perceived race, color, national origin, religion, sex, intersexuality, gender identity,
sexual orientation, marital and familial status, age, disability, ancestry, height, weight, domestic
partner status, labor organization membership, familial situation, or political affiliation.
10.6 CONFLICT OF INTEREST
Vendor herein agrees to adhere to and be governed by all applicable Miami-Dade County
Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami-Dade County
Code, as may be amended from time to time;and by the City of Miami Beach Charter and Code,
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as may be amended from time to time; both of which are incorporated by reference as if fully set
forth herein.
Vendor covenants that it presently has no interest and shall not acquire any interest, directly or
indirectly, which could conflict in any manner or degree with the performance of the Services.
Vendor further covenants that in the performance of this Agreement, Vendor shall not employ
any person having any such interest. No member of or delegate to the Congress of the United
States shall be admitted to any share or part of this Agreement or to any benefits arising •
therefrom.
10.7 VENDOR'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
(A) Vendor shall comply with Florida Public Records law under Chapter 119, Florida Statutes,
as may be amended from time to time.
(B) The term "public records" shall have the meaning set forth in Section 119.011(12),which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or ordinance
or in connection with the transaction of official business of the City.
(C) Pursuant to Section 119.0701 of the Florida Statutes, if the Vendor meets the definition of
"Contractor" as defined in Section 119.0701(1)(a), the Vendor shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a
copy of the requested records or allow the records to be inspected or copied within
a reasonable time at a cost that does not exceed the cost provided in Chapter 119,
Florida Statutes or as otherwise provided by law;
(.3) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, except as authorized by law,
for the duration of the contract term and following completion of the Agreement if
the Vendor does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City, all public
records in possession of the Vendor or keep and maintain public records required
by the City to perform the service. If the Vendor transfers all public records to the
City upon completion of the Agreement, the Vendor shall destroy any duplicate
public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Vendor keeps and maintains public records upon
completion of the Agreement, the Vendor shall meet all applicable requirements
for retaining public records. All records stored electronically must be provided to
the City, upon request from the City's custodian of public records, in a format that
is compatible with the information technology systems of the City.
(D) REQUEST FOR RECORDS; NONCOMPLIANCE.
(1) A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City. If the City does not possess the
requested records,the City shall immediately notify the Vendor of the request,and
the Vendor must provide the records to the City or allow the records to be inspected
or copied within a reasonable time.
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(2) Vendor's failure to comply with the City's request for records shall constitute a
breach of this Agreement, and the City, at its sole discretion, may: (1)unilaterally
terminate the Agreement; (2) avail itself of the remedies set forth under the
Agreement; and/or(3)avail itself of any available remedies at law or in equity.
(3) A Vendor who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 119.10.
(E) CIVIL ACTION.
(1) If a civil action is filed against a Vendor to compel production of public records
relating to the City's contract for services,the court shall assess and award against
the Vendor the reasonable costs of enforcement, including reasonable attorneys'
fees, if:
a. The court determines that the Vendor unlawfully refused to comply with the
public records request within a reasonable time; and
b. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the Vendor has
not complied with the request, to the City and to the Vendor.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Vendor at the Vendor's address listed on its contract with
the City or to the Vendor's registered agent.Such notices must be sent by common
carrier delivery service or by registered, Global Express Guaranteed, or certified
mail, with postage or shipping paid by the sender and with evidence of delivery,
which may be in an electronic format.
(3) A Vendor who complies with a public records request within 8 business days after
the notice is sent is not liable for the reasonable costs of enforcement.
(F) IF THE VENDOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
VENDOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADOaMIAMIBEACHFL.GOV
PHONE: 305-673-7411
10.8 FORCE MAJEURE
(A) A "Force Majeure" event is an event that (i) in fact causes a delay in the performance of
the Vendor or the City's obligations under the Agreement, and (ii) is beyond the
reasonable control of such party unable to perform the obligation, and (iii) is not due to an
intentional act, error, omission, or negligence of such party, and (iv) could not have
reasonably been foreseen and prepared for by such party at any time prior to the
occurrence of the event. Subject to the foregoing criteria, Force Majeure may include
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events such as war, civil insurrection, riot, fires, epidemics, pandemics, terrorism,
sabotage, explosions, embargo restrictions, quarantine restrictions, transportation
accidents, strikes, strong hurricanes or tornadoes, earthquakes, or other acts of God
which prevent performance. Force Majeure shall not include technological impossibility,
inclement weather, or failure to secure any of the required permits pursuant to the
Agreement.
(B) If the City or Vendor's performance of its contractual obligations is prevented or delayed
by an event believed by to be Force Majeure, such party shall immediately, upon learning
of the occurrence of the event or of the commencement of any such delay, but in any case
within fifteen (15) business days thereof, provide notice: (i) of the occurrence of event of
Force Majeure, (ii)of the nature of the event and the cause thereof, (iii) of the anticipated
impact on the Agreement, (iv)of the anticipated period of the delay, and (v)of what course
of action such party plans to take in order to mitigate the detrimental effects of the event.
The timely delivery of the notice of the occurrence of a Force Majeure event is a condition
precedent to allowance of any relief pursuant to this section; however, receipt of such
notice shall not constitute acceptance that the event claimed to be a-Force Majeure event
is in fact Force Majeure, and the burden of proof of the occurrence of a Force Majeure
event shall be on the requesting party.
(C) No party hereto shall be liable for its failure to carry out its obligations under the Agreement
during a period when such party is rendered unable, in whole or in part, by Force Majeure
to carry out such obligations. The suspension of any of the obligations under this
Agreement due to a Force Majeure event shall be of no greater scope and no longer
duration than is required. The party shall use its reasonable best efforts to continue to
perform its obligations hereunder to the extent such obligations are not affected or are
only partially affected by the Force Majeure event, and to correct or cure the event or
condition excusing performance and otherwise to remedy its inability to perform to the
extent its inability to perform is the direct result of the Force Majeure event with all
reasonable dispatch.
(D) Obligations pursuant to the Agreement that arose before the occurrence of a Force
Majeure event, causing the suspension of performance, shall not be excused as a result
of such occurrence unless such occurrence makes such performance not reasonably
possible. The obligation to pay money in a timely manner for obligations and liabilities
which matured prior to the occurrence of a Force Majeure event shall not be subject to the
Force Majeure provisions.
(E) Notwithstanding any other provision to the contrary herein, in the event of a Force Majeure
occurrence, the City may, at the sole discretion of the City Manager, suspend the City's
payment obligations under the Agreement,and may take such action without regard to the
notice requirements herein. Additionally, in the event that an event of Force Majeure
delays a party's performance under the Agreement for a time period greater than thirty
(30) days, the City may, at the sole discretion of the City Manager, terminate the
Agreement on a given date, by giving written notice to Vendor of such termination. If the
Agreement is terminated pursuant to this section, Vendor shall be paid for any Services
satisfactorily performed up to the date of termination; following which the City shall be
discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this
Agreement. In no event will any condition of Force Majeure extend this Agreement beyond
its stated term.
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10.9 E-VERIFY
(A) Vendor shall comply with Section 448.095, Florida Statutes, "Employment Eligibility" ("E-
Verify Statute"), as may be amended from time to time. Pursuant to the E-Verify Statute,
commencing on January 1, 2021, Vendor shall register with and use the E-Verify system
to verify the work authorization status of all newly hired employees during the Term of the
Agreement. Additionally, Vendor shall expressly require any subcontractor performing
work or providing services pursuant to the Agreement to likewise utilize the U.S.
Department of Homeland Security's E-Verify system to verify the employment eligibility of
all new employees hired by the subcontractor during the contract Term. If Vendor enters
into a contract with an approved subcontractor,the subcontractor must provide the Vendor
with an affidavit stating that the subcontractor does not employ, contract with, or
subcontract with an unauthorized alien. Vendor shall maintain a copy of such affidavit for
the duration of the Agreement or such other extended period as may be required under
this Agreement.
(B) TERMINATION RIGHTS.
(1) If the City has a good faith belief that Vendor has knowingly violated Section
448.09(1), Florida Statutes, the City shall terminate this Agreement with Vendor
for cause, and the City shall thereafter have or owe no further obligation or liability
to Vendor.
(2) If the City has a good faith belief that a subcontractor has knowingly violated the
foregoing Subsection 10.9(A), but the Vendor otherwise complied with such
subsection, the City will promptly notify the Vendor and order the Vendor to
immediately terminate the Agreement with the subcontractor. Vendor's failure to
terminate a subcontractor shall be an event of default under this Agreement,
entitling City to terminate the Vendor's contract for cause.
(3) A contract terminated under the foregoing Subsection (B)(1) or (B)(2) is not in
breach of contract and may not be considered as such.
(4) The City or Vendor or a subcontractor may file an action with the Circuit or County
Court to challenge,a termination under the foregoing Subsection (B)(1) or (B)(2)
no later than 20 calendar days after the date on which the contract was terminated.
(5) If the City terminates the Agreement with Vendor under the foregoing Subsection
(B)(1), Vendor may not be awarded a public contract for at least 1 year after the
date of termination of this Agreement.
(6) Vendor is liable for any additional costs incurred by the City as a result of the
termination of this Agreement under this Section 10.9.
10.10 TRADEMARKS; PROMOTION MATERIALS
Parkmobile hereby grants the City a non-transferable, non-sublicensable, non-exclusive license
to use its name and trademarks, without modification unless approved by Parkmobile, solely in
connection with the City's marketing and use of the Services in the City facilities.
10.11 STATUS MEETINGS
On periodic basis, but not less than quarterly, upon request, an appropriate representative of each
party shall conduct a joint meeting to discuss the status of the Services, as well as to answer
questions, gather information and resolve disputes that may occur from time to time. It is the
expectation of the parties that the representatives of the parties shall communicate directly with
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one another and work directly with one another to ensure that all Services provided hereunder
-are completed on a timely and complete basis. All meetings pursuant to this Section 10.11 may
be face to face, video or telephonic meetings as may be agreed upon by the parties. Each party
shall bear its own costs of attending or participating in such meetings.
10.12 SIGNAGE
ParkMobile shall, at no cost to the City, coordinate with PayByPhone to design, procure, and
deliver all signage for the Parking Locations,including any signage necessary to replace outdated
signage placed at a Parking Location under a previous agreement. All signage shall include
information for both the City's other mobile parking payment provider, PayByPhone, and
ParkMobile equally. ParkMobile and PayByPhone shall coordinate the production of the Signage
and shall secure the prior written approval of the City. Upon receiving approval from the City,
ParkMobile and PayByPhone shall produce and deliver all Signage to the City. The City shall be
responsible for the costs of all subsequent Signage for go-live or additional phase areas.The City
is responsible for the installation of all signs and decals.
The number of signs included for a Parking Location shall be mutually agreed upon by the City,
PayByPhone, and ParkMobile for each Parking Location.
SECTION 11
NOTICES
Until changed by notice, in writing, all such notices and communications shall be addressed as
follows:
TO VENDOR: ParkMobile, LLC
1100 Spring Street Northwest, Suite 200
Atlanta, GA 30309
Attn: Brooke Krieger
For legal notices:
With a copy to ParkMobile's Legal Department at the
above address and to legal-notices c(c7parkmobile.io
TO CITY: City of Miami Beach, Parking Department
CIO Parking Director
1755 Meridian Avenue, 2nd Floor
Miami Beach, Florida 33139
MonicaBeltranaa,miamibeachfl.gov
All notices mailed electronically to either party shall be deemed to be sufficiently transmitted.
SECTION 12
MISCELLANEOUS PROVISIONS
12.1 CHANGES AND ADDITIONS
This Agreement cannot be modified or amended without the express written consent of the
parties. No modification, amendment, or alteration of the terms or conditions contained herein
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shall be effective unless contained in a written document executed with the same formality and of
equal dignity herewith. In the event Client wishes to add new Parking Locations in addition to the
Initial Parking Locations (the "Additional Parking Locations") or to add parking spaces to an
existing Parking Location, the amendment will be effective against both parties if it is in the form
of email between implementation personnel of the parties and, effective the date of such email,
the Appendix A will be read to include these Additional Parking Locations or parking spaces.
12.2 SEVERABILITY
If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this
Agreement shall not be affected and every other term and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
12.3 WAIVER OF BREACH
A party's failure to enforce any provision of this Agreement shall not be deemed a waiver of such
provision or modification of this Agreement. A party's waiver of any breach of a provision of this
Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed
to be a modification of the terms of this Agreement.
12.4 JOINT PREPARATION
The parties hereto acknowledge that they have sought and received whatever competent advice
and counsel as was necessary for them to form a full and complete understanding of all rights
and obligations herein and that the preparation of this Agreement has been a joint effort of the
parties,the language has been agreed to by parties to express their mutual intent and the resulting
document shall not,solely as a matter of judicial construction,be construed more severely against
one of the parties than the other.
12.5 REPRESENTATIONS and WARRANTIES
Each of ParkMobile and City hereby represents,warrants,and covenants to the other party hereto
as follows:
(a) It is duly organized and validly existing under,the laws of the state of its incorporation
and has full power and authority to carry on its business as it is now being conducted and
to own and operate its properties and assets;
(b) The execution, delivery and performance of this Agreement by such party has been
duly authorized by all requisite corporate or limited liability company action, as applicable;
(c) It has the power and authority to execute and deliver this Agreement and to perform its
obligations hereunder; and
(d) The execution, delivery and performance by it of this Agreement and its compliance
with the terms and provisions hereof do not and will not conflict with or result in a breach
of any of the terms or provisions of or constitute a default under the provisions of its charter
documents or bylaws, or any order,writ, injunction or decree of any court or governmental
authority entered against it or by which any of its property is bound.
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12.6 DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED "AS IS"AND WITH ALL FAULTS RELATED TO ANY THIRD
PARTY HARDWARE OR EQUIPMENT AS MAY BE REQUIRED FOR USE OF THE
PARKMOBILE SERVICE. PARKMOBILE DOES NOT MAKE ANY REPRESENTATIONS,
WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, DIRECTLY OR INDIRECTLY,
INCLUDNG WITHOUT LIMITATION, ANY WARRANTY OF CONDITION, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF USE WITH RESPECT TO, ARISING OUT
OF OR IN CONNECTION WITH ANY THIRD PARTY HARDWARE USED IN CONNECTION
WITH THE SERVICES TO BE PERFORMED HEREUNDER BY SUCH PARTY OR THE
RESULTS OBTAINED THEREBY.
12.7 ENTIRETY OF AGREEMENT
The City and Vendor agree that this is the entire agreement between the parties.This Agreement
supersedes all prior negotiations,correspondence,conversations,agreements or understandings
applicable to the matters contained herein, and there are no commitments, agreements or
understandings concerning the subject matter of this Agreement that are not contained in this
document. Title and paragraph headings are for convenient reference and are not intended to
confer any rights or obligations upon the parties to this Agreement.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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Contract no.23-051-01
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their appropriate officials, as of the dale first entered above.
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Rafael E. Granado, City Clerk Alina T. Hudak, City Manager
Date:
FOR VENDOR:
PARKMOBILE, LLC
By:
Print Name and Title
Date:
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
;2-Zt `' l Z/ZI I Z3
City Attorney Date
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Contract no.23-051-01
EXHIBIT A
SERVICE AGREEMENT
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Contract no.23-051-01
EXHIBIT B
FEE SCHEDULE
ParkMobile shall charge the end user an end-user fee as outlined in the pricing below:
Convenience Fee paid by Residents $No Fee
Convenience Fee paid by Non-Residents utilizing ParkMobile Wallet $0.30
Convenience Fee paid by Non-Residents without utilizing ParkMobile Wallet $0.35
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ATTACHMENT B
Contract no.23-051-02
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH
AND
PAYBYPHONE US INC.
FOR
MOBILE PARKING PAYMENT SYSTEM, PURSUANT TO
REQUEST FOR QUALIFICATIONS 2023-051-WG
This Professional Services Agreement ("PSA") and the PayByPhone US Inc., Service
Agreement ("Service Agreement"), collectively, the "Agreement" is entered into this
("Effective Date"), between the CITY OF MIAMI BEACH, FLORIDA, a municipal
corporation organized and existing under the laws of the State of Florida, having its principal
offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139(the"City"or"Client"), and
PayByPhone US Inc., a Delaware Corporation, whose address is 48 Wall Street, Suite 1100,
New York, New York 10005 ("Vendor" or"PayByPhone").
SECTION 1
DEFINITIONS
Additional
Parking Locations: As defined in Section 12.1 of the Agreement.
Agreement: This Professional Services Agreement between the City and Vendor,
including any exhibits and amendments thereto and the PayByPhone
Service Agreement, collectively the"Agreement".
City Manager: The chief administrative officer of the City.
City Manager's
Designee: The City staff member who is designated by the City Manager to administer
this Agreement on behalf of the City.The City Manager's designee shall be
the Parking Department Director.
Vendor For the purposes of this Agreement, Vendor shall be deemed to be an
independent contractor, and not an agent or employee of the City.
IP Rights: Any and all registered and unregistered rights granted, applied for, or
otherwise now or hereafter in existence under or related to any patent,
copyright, trademark, trade secret, database protection, or other
intellectual property rights laws, and all similar or equivalent rights or forms
of protection, in any part of the world.
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Parking
Locations: The location or locations of City's on-street parking, off-street parking,
reservation parking, parking lots, parking decks, permitted parking, and
other facilities where PayByPhone users may park.
Platform: Access-controlled mobile and/or web applications, services or interfaces
developed, hosted, or managed by, on behalf of, or in partnership with
PayByPhone that are made available to Client to administer, configure,
manage and/or monitor parking sessions, parking rates, and/or parking
restrictions associated with City's Parking Locations.
Services: The PayByPhone applications, the Platform and all services, work and
actions by the Vendor performed or undertaken pursuant to the Agreement.
Convenience Fee: The fee charged to the user by the City, as set forth in Exhibit B, that is
non-embedded and on top of the Parking Rate.
Parking Rate: The fee charged to the user by the City for use of the parking space.
Transaction Fee: The fee charged.by the Vendor to the City per Transaction as set forth in
Exhibit B.
Proposal
Documents: Proposal Documents shall mean City of Miami Beach RFQ No. 2023-051-
WG for Mobile Parking Payment System, together with all amendments
thereto, issued by the City in contemplation of this Agreement RFQ, and
the Vendor's proposal in response thereto ("Proposal"), all of which are
hereby incorporated and made a part hereof; provided, however,that in the
event of an express conflict between the Proposal Documents and this
Agreement,the following order of precedent shall prevail: the Professional
Services Agreement;the RFQ; the Services Agreement, and the Proposal.
Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center
Drive, Third Floor, Miami Beach, Florida 33139; telephone number (305)
673-7000, Ext. 26724; and fax number(305)673-7529.
Transaction Data: Information and data collected by the Vendor relating to drivers' parking
sessions at the.Parking Locations, which 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 center.
User Profile Data: Any information about or with respect to PayByPhone service users that is
not related to parking sessions at the Parking Locations, including without
limitation, information provided by users upon registration for a
PayByPhone account and data about the user's activity in the PayByPhone
account or the PayByPhone applications.
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Merchant of Record: Refers to the entity that is authorized to receive customer payments to its
merchant account set up with its acquiring bank, including credit card and
any digital wallet transactions for Services.
SECTION 2
SCOPE OF SERVICES
2.1 In consideration of the Fee to be paid to Vendor by the City, Vendor shall provide the work
and services described in Exhibit"A" hereto (the"Services").
Although the Vendor may be provided with a schedule of the available hours to provide its
Services,the City shall not control nor have the right to control the hours of the Services performed
by the Vendor; where the Services are performed (although the City will provide Vendor with the
appropriate location to perform the Services); when the Services are performed, including how
many days a week the Services are performed; how the Services are performed, or any other
aspect of the actual manner and means of accomplishing the Services provided. Notwithstanding
the foregoing, all Services provided by the Vendor shall be performed in accordance with the
terms and conditions set forth in Exhibit"A"and to the reasonable satisfaction of the City Manager.
If there are any questions regarding the Services to be performed, the Vendor should contact the
following person:
Monica Beltran, Director, Parking Department
1755 Meridian Avenue, 2nd Floor
Miami Beach, Florida 33139
(305) 673-7000 ext. 26863
MonicaBeltran@miamibeachfl.gov
2.2 Vendor's Services, and any deliverables incident thereto, shall be completed in
accordance with the timeline and/or schedule in Exhibit C.hereto.
2.3 Services Provided by PayByPhone. During the Term (as defined herein), PayByPhone
shall perform the services for the City as described,in Exhibit A hereof(as amended, modified or
supplemented from time to time upon the mutual written agreement of the parties,the"Services").
PayByPhone shall render the Services faithfully and to the best of its ability and in compliance
with all, applicable laws, Federal, State, and local laws, codes, ordinances, resolutions,
administrative policies and procedures and/or rules and regulations, (collectively, "Applicable
Laws"), devoting such time as is reasonably necessary to provide the Services.The precise times
and manner of the performance of Services shall be as reasonably requested by the City,
consistent with a schedule to be reasonably agreed upon from time to time by PayByPhone and
the City. In connection with PayByPhone's performance of the Services, and in addition to
PayByPhone's compliance with Applicable Laws, PayByPhone shall also be subject to, and
agrees to abide by, such applicable policies, procedures, directions and restrictions as the City,
in its sole and reasonable discretion, may establish from time to time and as communicated to
PayByPhone. PayByPhone shall implement the Services within sixty (60) days of the Effective
Date of this Agreement. The City acknowledges and agrees that PayByPhone is not liable or
responsible for any delay in the implementation of the Services that is caused by any act or event
outside the direct control of PayByPhone, including, but not limited to, a third party delaying
integration set up.
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If the City requires additional work and/or services that are not included in this Agreement,
PayByPhone and the Cityshall negotiate such additional work and/or services, mutually agree on
the amount of additional compensation, and memorialize the terms in a written amendment to this
Agreement.
2.4 Help and Support. PayByPhone agrees to use its reasonable efforts to assist the City
with any technical support that the City may reasonably require in relation to using the Services.
In furtherance of the foregoing, PayByPhone agrees to provide the City with preventative
maintenance, corrective maintenance,adaptive maintenance for the Platform and will provide City
administrative staff email and telephone support with respect to the Services between 7 am to 4
pm EST, Monday to Friday. Each of PayByPhone and the City shall promptly notify the other of
any errors or interruptions that arise during the City's use of PayByPhone's software or the
Services hereunder.
2.5 Errors and Corrections. In the event of any errors or interruptions in the Services,
PayByPhone's sole and exclusive obligation shall be to use reasonable efforts to repair or restore
that portion of the Services as promptly as possible. Repair may take the form, at the option of
PayByPhone, as the case may be, of: (i) corrected software applicable to the Services; (ii)
corrected materials in hard copy or electronic form, describing the use and operation of the
software applicable to the Services, including any manuals and programming tools; (iii)
instructions or procedures to bypass the problem until a more permanent correction can be
implemented; or(iv)correction/clarification of the functional definition of the Services.
2.6 Publicity of Services. All brochures and promotional materials to be distributed by
PayByPhone and the City in connection with the Services shall be in a form mutually agreed upon
by the parties.
2.7 Authority of Parties; Cooperation. Each party acknowledges and agrees that it has no
authority to act on behalf of the other party other than as set forth in this Agreement or to enter
into any contract or to incur any liability on behalf of the other party, except with prior written
consent of an authorized officer of such party. Each party covenants that it shall not at any time
represent, either orally or in writing, that it has any right, power, or authority with respect to the
other party not expressly granted to the other party by such party.
Each party shall reasonably cooperate with the other party to permit such party to perform its
duties and obligations under this Agreement in a timely manner.
2.8 Technology Sublicense. PayByPhone hereby grants the City the nonexclusive, non-
transferable, non-sub-licensable, revocable right and sublicense to use any applicable proprietary
technology that PayByPhone licenses but does not own and relates to the Services (the
"Technology")in connection with the Services. The City shall not use the Technology for any use
other than in connection with the Services. The City acknowledges and agrees that (a)
PayByPhone shall be its exclusive source of the Technology for the Term; and (b) all Services
obtained by the City shall use the Technology as necessary. The City has no interest in or right
to use the Technology or any improvements thereto or modifications thereof except as set forth
herein. In all instances, the City's use of the Technology shall inure to both party's benefit. During
the Term or at any time thereafter, the City shall not commit, or cause any third party to commit,
any act challenging, contesting, or impairing or attempting to impair PayByPhone's right, title and
interest in and to the Technology or the validity thereof.
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2.9 Proposal Documents. Notwithstanding the description of PayByPhone's services and
without limitation, PayByPhone shall provide any and all work and services as set forth in, and in
accordance to the requirements of, the Proposal Documents (which are attached hereto and are
hereby deemed incorporated by reference as if fully set forth herein).
SECTION 3
TERM •
The term of this Agreement("Term")shall commence on the date identified in the notice provided
by the City Manager's Designee stating that all initial signage contemplated under Section 10.12
has been installed ("Signage Installation Notice"), and shall have an initial term of Five(5)years,
with two(2)additional two-year renewal options,to be exercised at the City Manager's sole option
and discretion, by providing Vendor with written notice of same no less than thirty(30) days prior
to the expiration of the initial term.
Notwithstanding the Term provided herein, Vendor shall adhere to any specific timelines,
schedules, dates, and/or performance milestones for completion and delivery of the Services, as •
same is/are set forth in the timeline and/or schedule referenced in Exhibit C hereto.
SECTION 4
FEE
4.1 City shall pay PayByPhone as set forth in Exhibit B and in accordance with Section 4.2.
PayByPhone may propose an increase in the Transaction Fees outlined in Exhibit B, not more
often than once in a calendar year, to adjust for inflation and any increase in the cost of
PayByPhone providing the services to City.All adjustments to the Transaction Fees shall be valid
upon the prior written approval of the City Manager or City Manager's Designee. City parking
rate structure is varied and includes flat and hourly rates that differ for residents and visitors.
However, other rates and/or geographic areas may be added in the future. The rates specified
herein shall commence on the date specified in the Signage Installation Notice to Proceed.
4.2. Payment. The City will serve as the Merchant of Record for Parking Rates and any
Convenience Fees. PayByPhone shall invoice the City the applicable fees as set forth in Exhibit
B.The City will issue a check to pay the Vendor on a monthly basis. Payment is due no later than
forty-five (45) days after invoice. Invoices shall include a detailed description of the Services (or
portions thereof) provided, and shall be submitted to the City at the following address:
Accounts Payable: Payables(c�miamibeachfl.gov
4.3 Taxes. PayByPhone's prices do not include sales, use, revenue or excise taxes, and
accordingly, in addition to the price specified herein, the amount of any sales, use,excise or other
similar tax applicable to the Services provided hereunder shall be paid by the City, including any
taxes applicable on fees paid by the consumer, or, in lieu thereof, City shall provide PayByPhone
with a tax exemption certificate issued by the appropriate taxing authority.
4.3. Billing Disputes. The City shall not be entitled to suspend payment of any disputed
invoices. Any disputes must be submitted to PayByPhone in writing and with an explanation of
the reason for the dispute, within forty-five (45) days. In the event that any payment dispute is
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resolved in favor of the City, PayByPhone shall credit City on the immediately subsequent invoice
issued to City.
4.4. Expenses. Except as otherwise provided herein, PayByPhone shall not charge the City
any costs for one(1) integration of its system(s)-with the City's enforcement software solution, or
for the management of the project and the Services: PayByPhone shall charge the City for
ordinary, necessary and reasonable third party costs only on direct cost basis and only after the
prior written approval of the City.
SECTION 5
TERMINATION
5.1 TERMINATION FOR CAUSE BY THE CITY
a. If'either party shall fail to fulfill or otherwise violate any of the covenants, agreements, or
stipulations in this Agreement, and such material breach remains uncorrected for thirty(30)days
after receipt of notice by the other party, the other party shall thereupon have the right to
terminate the Agreement by giving thirty (30) days' written notice to the other party of such
termination. If the breaching party fails to cure in that 30-day period or the breach is incapable
of cure, then the Agreement shall so terminate.
b. In that event, the City shall compensate PayByPhone in accordance with the Agreement for
all Services performed by PayByPhone prior to termination, net of any costs incurred by the City
as a consequence of the default.
c. Notwithstanding the above, neither party shall be relieved of liability to the other party for
damages sustained by the City by virtue of any breach of the Agreement.
5.2 TERMINATION FOR CONVENIENCE OF THE CITY
THE CITY MAY ALSO,THROUGH ITS CITY MANAGER,AND FOR ITS CONVENIENCE
AND WITHOUT CAUSE, TERMINATE THIS AGREEMENT AND THE SERVICES THEN
REMAINING TO BE PERFORMED AT ANY TIME WITHOUT CAUSE BY GIVING
WRITTEN NOTICE TO PAYBYPHONE OF SUCH TERMINATION, WHICH SHALL
BECOME EFFECTIVE THIRTY (30) DAYS FOLLOWING RECEIPT BY PAYBYPHONE
OF SUCH NOTICE. IF THE AGREEMENT IS TERMINATED BY THE CITY AS
PROVIDED IN THIS SECTION, THE CITY SHALL COMPENSATE PAYBYPHONE IN
ACCORDANCE WITH THE AGREEMENT FOR ALL SERVICES ACTUALLY
PERFORMED BY PAYBYPHONE PRIOR TO TERMINATION. NO COMPENSATION
SHALL BE DUE TO PAYBYPHONE FOR ANY PROFITS THAT PAYBYPHONE
EXPECTED TO EARN ON THE BALANCE OF THE AGREEMENT. SUCH PAYMENTS
SHALL BE THE TOTAL EXTENT OF THE CITY'S LIABILITY TO PAYBYPHONE UPON
A TERMINATION AS PROVIDED FOR IN THIS SECTION.
ADDITIONALLY, IN THE EVENT OF A PUBLIC HEALTH, WELFARE, OR SAFETY
CONCERN, AS DETERMINED BY THE CITY MANAGER, IN THE CITY MANAGER'S
SOLE DISCRETION, THE CITY MANAGER, PURSUANT TO A VERBAL OR WRITTEN
NOTIFICATION TO THE VENDOR, MAY SUSPEND THE SERVICES UNDER THIS
AGREEMENT WITH TEN (10) DAYS PRIOR NOTICE TO VENDOR FOR A TIME
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CERTAIN, OR IN THE ALTERNATIVE, TERMINATE THIS AGREEMENT ON A GIVEN
DATE. •
5.3 TERMINATION FOR CAUSE BY PAYBYPHONE
PayByPhone may terminate its performance under this Agreement only if the City defaults and
fails to cure the default within forty-five(45)days of receiving written notice of a notice of default
delivered pursuant to Section. Default by the City occurs if the City fails to perform one or more
of its material duties under this Agreement. If a default occurs and PayByPhone wishes to
terminate the Agreement, then PayByPhone must deliver a written notice to the City describing
the default and the proposed termination date. The date must be at least thirty (30) days after
the City receives notice. PayByPhone, at its sole option, may extend the proposed termination
date to a later date. If the City cures the default before the proposed termination date, then the
proposed termination is ineffective. If the City does not cure the default before the proposed
termination date,then PayByPhone may terminate its performance under this Agreement on the
termination date.
5.4 TERMINATION FOR INSOLVENCY
Should PayByPhone (i) make a general assignment for the benefit of creditors; (ii) institute
liquidation proceedings or proceedings to be adjudicated as voluntarily bankrupt; (iii)consent to
the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent
jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act;
(vi)consent to the filing of a petition seeking such reorganization; or(vii) have a decree entered
against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or
assignee in bankruptcy or in an insolvency covering all or substantially all of such party's
property or providing for the liquidation or dissolution of such party's property or business affairs;
then, in any such event, the City party, at its option and without prior notice, may terminate this
Agreement effective immediately. In such event, the rights and obligations for the parties shall
be the same as provided for in Section 5.5.
5.5 EFFECT OF TERMINATION
a. Upon termination or expiration of this Agreement, (i) the City shall pay to PayByPhone any
portion of the Fees then accrued and properly payable under this Agreement; (ii) City shall
promptly return to PayByPhone all materials in its possession with the performance of the
Services hereunder; and (iii) City shall discontinue all use of the Technology and intellectual
property of PayByPhone.
b. Notwithstanding the exercise by any party of its rights under this Article 5, no termination of
this Agreement shall relieve either party of its liability for the payment or performance of any
obligation accrued prior to the Termination Date(including any indemnification obligation arising
hereunder, whether or not notice of such indemnification claim has been given before such
termination, or of any rights or obligations under any other provisions, which, by their meaning
or content, are intended to survive the termination hereof).
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SECTION 6
INDEMNIFICATION AND INSURANCE REQUIREMENTS
6.1 INDEMNIFICATION
Each party agrees to indemnify, defend and hold harmless (the "Indemnifying Party") the other
party and its officers, employees, agents, and contractors (the "Indemnified Party"), from and
against any and all actions (whether at law or in equity), claims, liabilities, losses, and expenses,
including, but not limited to, attorneys' fees and costs, for personal, economic or bodily injury,
wrongful death, loss of or damage to property,which may arise or be alleged to have arisen from
the negligent acts, errors, omissions or other wrongful conduct of the Indemnifying Party, its
officers, employees, agents, contractors, or any other person or entity acting under Indemnifying
Party control or supervision, in connection with, related to, or as a result of the Indemnifying Party
performance under this Agreement. To that extent, the Indemnifying Party shall pay all such
claims and losses and shall pay all such costs and judgments which may be issued from any
lawsuit arising from such claims and losses, and shall pay all costs and attorney's fees expended
by the Indemnified Party in the defense of such claims and losses, including appeals. The
Indemnifying Party expressly understands and agrees that any insurance protection required by
this Agreement or otherwise provided by the Indemnifying Party shall in no way limit the
Indemnifying Party's responsibility to indemnify, keep, and save harmless and defend the
Indemnified Party or its officers, employees, agents, and instrumentalities as herein provided.
6.2 INSURANCE REQUIREMENTS
The Vendor shall maintain the below-required insurance in effect prior to awarding the agreement
and for the duration of the agreement. The maintenance of proper insurance coverage is a
material element of the agreement and failure to maintain or renew coverage may be treated as
a material breach of the contract, which could result in withholding of payments or termination of
the Agreement.
A. Worker's Compensation Insurance for all employees of the vendor as required by Florida
Statute 440, and Employer Liability Insurance for bodily injury or disease. Should the Vendor
be exempt from this Statute,the Vendor and each employee shall hold the City harmless from
any injury incurred during the performance of the Contract. The exempt Vendor shall also
submit(i)a written statement detailing the number of employees and that they are not required
to carry Workers' Compensation insurance and do not anticipate hiring any additional
employees during the term of this contract or(ii)a copy of a Certificate of Exemption.
B. Commercial General Liability Insurance on an occurrence basis, including products and
completed operations, property damage, bodily injury, and personal & advertising injury with
limits no less than $1,000,000 per occurrence, and $2,000,000 general aggregate.
C. Automobile Liability Insurance covering any automobile,, if the vendor has no owned
automobiles, then coverage for hired and non-owned automobiles, with a limit no less than
$1,000,000 combined per accident for bodily injury and property damage.
D. Umbrella Liability Insurance in an amount no less than $5,000,000 per occurrence. The
umbrella coverage must be as broad as the primary General Liability coverage.
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Additional Insured — City of Miami Beach must be included by endorsement as an additional
insured with respect to all commercial general liability policies arising out of work or operations
performed on behalf of the Vendor including materials, parts, or equipment furnished in
connection with such work or operations and automobiles owned, leased, hired or borrowed in
the form of an endorsement to the Vendor's insurance.
Notice of Cancellation—Each insurance policy required above shall provide that coverage shall
not be cancelled,except with notice to the City of Miami Beach do EXIGIS Insurance Compliance
Services.
Waiver of Subrogation —Vendor agrees to obtain any endorsement that may be necessary to
affect the waiver of subrogation on the coverages required. However, this provision applies
regardless of whether the City has received a waiver of subrogation endorsement from the
insurer.
Acceptability of Insurers — Insurance must be placed with insurers with a current A.M. Best
rating of A:VII or higher. If not rated, exceptions may be made for members of the Florida
Insurance Funds (i.e. FWCIGA, FAJUA). Carriers may also be considered if they are licensed
and authorized to do insurance business in the State of Florida.
Verification of Coverage—Vendor shall furnish the City with original certificates and amendatory
endorsements, or copies of the applicable insurance language, effecting coverage required by
this contract. All certificates and endorsements are to be received and approved by the City
before work commences. However, failure to obtain the required documents prior to the work
beginning shall not waive the Vendor's obligation to provide them. The City reserves the right to
require complete, certified copies of all required insurance policies, including endorsements,
required by these specifications, at any time.
CERTIFICATE HOLDER ON ALL COI MUST READ:
CITY OF M IAM I BEACH
do EXIGIS Insurance Compliance Services
P.O. Box 947
Murrieta, CA 92564
Kindly submit all certificates of insurance,endorsements,exemption letters to our servicing agent,
• EXIGIS, at:
Certificates-miam ibeach(u�riskworks.com
Special Risks or Circumstances-The City of Miami Beach reserves the right to modify these
requirements, including limits,based on the nature of the risk,prior experience, insurer, coverage,
or other special circumstances.
Compliance with the foregoing requirements shall not relieve the vendor of his liability and
obligation under this section or under any other section of this agreement.
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SECTION 7
LITIGATION JURISDICTION/VENUE/JURY TRIAL WAIVER
This Agreement shall be construed in accordance with the laws of the State of Florida. This
Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. By entering
into this Agreement, Vendor and the City expressly waive any rights either party may have to a
trial by jury of any civil litigation related to or arising out of this Agreement.
SECTION 8
LIMITATION OF CITY'S LIABILITY
The City desires to enter into this Agreement only if in so doing the City can place a limit on the
City's liability for any cause of action, for money damages due to an alleged breach by the City of
this Agreement, so that its liability for any such breach never exceeds one times the total amounts
paid to PayByPhone under this agreement in the 12 month period preceding the event giving rise
to the claim.Vendor hereby expresses its willingness to enter into this Agreement with Vendor's
recovery from the City for any damage action for breach of contract to be limited to a maximum
amount of one times the total amounts paid to.PayByPhone under this agreement in the 12 month
period preceding the event giving rise to the claim..
Accordingly, and notwithstanding any other term or condition of this Agreement, Vendor hereby
agrees that the City shall not be liable to the Vendor for damages in an amount in excess of one
times the total amounts paid to PayByPhone under this agreement in the 12 month period
preceding the event giving rise to the claim for any action or claim for breach of contract arising
out of the performance or non-performance of any obligations imposed upon the City by this
Agreement.
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida
Statutes.
In no event shall any party be liable for consequential, special, indirect or incidental damages,
including but not limited to any damages resulting from loss of use or 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.
SECTION 9
DUTY OF CARE/COMPLIANCE WITH APPLICABLE LAWS/PATENT RIGHTS; COPYRIGHT;
AND CONFIDENTIAL FINDINGS
9.1 DUTY OF CARE
With respect to the performance of the Services contemplated herein, Vendor shall exercise that
degree of skill, care, efficiency and diligence normally exercised by reasonable persons and/or
recognized professionals with respect to the performance of comparable work and/or services.
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9.2 COMPLIANCE WITH APPLICABLE LAWS
In its performance of the Services, Vendor shall comply with all applicable laws, ordinances, and
regulations of the City, Miami-Dade County, the State of Florida, and the federal government, as
applicable.
9.3 PATENT RIGHTS; COPYRIGHT; CONFIDENTIAL FINDINGS
a. PayByPhone agrees to defend and indemnify City for all losses, costs and damages resulting
from a claim and/or determination that the Services as supplied to the City infringe any United
States patent rights, copyrights or trademarks provided that: City promptly notifies PayByPhone
in writing upon City becoming aware of the existence of any such suit,action, proceeding or threat;
allows PayByPhone sole control of the defense and/or settlement thereof; provides such
reasonable cooperation as PayByPhone may require; and, makes no admissions or other
statements which may be prejudicial to PayByPhone. In no event shall City consent to any
judgment or decree or do any other act in.compromise of any such claim without PayByPhone's
express prior written consent. In no event will PayByPhone be liable for the payment of any
amount agreed to in settlement without its express consent.
b. In the event that the City is enjoined from its use of the Services due'to a proceeding based
upon the infringement of patent, copyright or trademark in the United States, PayByPhone shall,
at its option, either:
i. promptly render the product non-infringing and capable of providing services as intended;
or
ii. procure for City and its customers the right to continue using its product; or
iii. replace the product with non-infringing goods; or
iv. remove the product and refund any expense of the City.
c. PayByPhone shall have no liability in respect of any claim based upon:
i. use, operation or combination of its product with software, hardware, data, or equipment
not supplied by PayByPhone if such infringement would have been avoided but for such
use,operation or combination; or
ii. use of products other than in accordance with PayByPhone's specifications if such
infringement would have been avoided but for use of the Products not in accordance with
PayByPhone specifications; or
iii. its products that have been modified by any party other than PayByPhone if such
infringement would have been avoided but for such modification.
d. Neither party will disclose the other party's or its affiliates' 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:
i. with the other party's consent;
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ii. 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
iii. when required to do so by law or by any binding rule, order or request.
For purposes of this Section 9.3,the parties agree that confidential or proprietary information does
not include any information that is:
i. already known to the receiving party at the time of disclosure hereunder (other than
from the other party or its affiliates)as demonstrated by its written records;
ii. 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;
iii. disclosed to the receiving party, by a third party, under no obligation of confidentiality
to the disclosing party or any other party; or
iv. 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.
SECTION 10
GENERAL PROVISIONS
• 10.1 AUDIT AND INSPECTIONS
Upon reasonable verbal or written notice to Vendor, and at any time during normal business
hours(i.e.9AM—5PM, Monday through Fridays, excluding nationally recognized holidays), and
as often as the City Manager may, in his/her reasonable discretion and judgment, deem
necessary, there shall be made available to the City Manager, and/or such representatives as
the City Manager may deem to act on the City's behalf, to audit, examine, and/or inspect, any
and all other documents and/or records relating to all matters covered by this Agreement.
Vendor shall maintain any and all such records at its place of business at the address set forth
in the"Notices" section of this Agreement.
10.2 INSPECTOR GENERAL AUDIT RIGHTS
(A) Pursuant to Section 2-256 of the Code of the City of Miami Beach,the City has established
the Office of the Inspector General which may,on a random basis, perform,reviews,audits,
inspections and investigations on all City contracts, throughout the duration of said
contracts. This random audit is separate and distinct from any other audit performed by
or on behalf of the City.
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(B) The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records,
contracts and transactions. In addition, the Inspector General has the power to subpoena
witnesses, administer oaths, require the production of witnesses and monitor City projects
and programs. Monitoring of an existing City project or program may include a report
concerning whether the project is on time, within budget and in conformance with the
contract documents and applicable law. The Inspector General shall have the power to
audit, investigate, monitor,oversee, inspect and review operations,activities, performance
and procurement process including but not limited to project design, bid specifications,
(bid/proposal) submittals, activities of the Vendor, its officers, agents and employees,
lobbyists, City staff and elected officials to ensure compliance with the contract documents.
and to detect fraud and corruption. Pursuant to Section 2-378 of the City Code, the City
is allocating a percentage of its overall annual contract expenditures to fund the activities
and operations of the Office of Inspector General.
(C) Upon ten (10) days written notice to the Vendor, the Vendor shall make all requested
records and documents available to the Inspector General for inspection and copying.The
Inspector General is empowered to retain the services of independent private sector
auditors to audit, investigate, monitor, oversee, inspect and review operations activities,
performance and procurement process including but not limited to project design, bid
specifications, (bid/proposal) submittals, activities of the Vendor its officers, agents and
employees, lobbyists, City staff and elected officials to ensure compliance with the
contract documents and to detect fraud and corruption.
(D) The Inspector General shall have the right to inspect and copy all documents and records
in the Vendor's possession, custody or control which in the Inspector General's sole
judgment, pertain to performance of the contract, including, but not limited to original
estimate files, change order estimate files, worksheets, proposals and agreements from
and with successful subcontractors and suppliers, all project-related correspondence,
memoranda, instructions, financial documents, construction documents, (bid/proposal)
and contract documents, back-change documents, all documents and records which
involve cash, trade or volume discounts, insurance proceeds, rebates, or dividends
received, payroll and personnel records and supporting documentation for the aforesaid
documents and records.
(E) The Vendor shall make available at its office at all reasonable times the records, materials,
and other evidence regarding the acquisition (bid preparation) and performance of this
Agreement,for examination, audit,or reproduction, until three(3)years after final payment
under this Agreement or for any longer period required by statute or by other clauses of
this Agreement. In addition:
If this Agreement is completely or partially terminated, the Vendor shall make
available records relating to the work terminated until three (3) years after any
resulting final termination settlement; and
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ii. The Vendor shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement until such appeals,
litigation, or claims are finally resolved.
(F) The provisions in this section shall apply to the Vendor, its officers, agents, employees,
subcontractors and suppliers. The Vendor shall incorporate the provisions in this section
in all subcontracts and all other agreements executed by the Vendor in connection with
the performance of this Agreement.
(G) Nothing in this section shall impair any independent right to the City to conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they
be construed to impose any liability on the City by the Vendor or third parties.
10.3 ASSIGNMENT,TRANSFER OR SUBCONSULTING
With the exception of an assignment to PayByPhone's parent company, Vendor shall not
subcontract, assign, or transfer all or any portion of any work and/or service under this
Agreement without the prior written consent of the City Manager, which consent, if given at all,
shall be in the Manager's sole judgment and discretion. Neither this Agreement, nor any term or
provision hereof, or right hereunder, shall be assignable unless as approved pursuant to this
section, and any attempt to make such assignment(unless approved)shall be void.
10.4 PUBLIC ENTITY CRIMES
Prior to commencement of the Services, the Vendor shall file a State of Florida Form PUR 7068,
Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes with the
City's Procurement Division.
10.5 NO DISCRIMINATION
In connection with the performance of the Services, the Vendor shall not exclude from
participation in, deny the benefits of, or subject to discrimination anyone on the grounds of race,
color, national origin, sex, age, disability, religion, income or family status.
Additionally, Vendor shall comply fully with the City of Miami Beach Human Rights Ordinance,
codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting
discrimination in employment, housing, public accommodations, and public services on account
of actual or perceived race, color, national origin, religion, sex, intersexuality, gender identity,
sexual orientation, marital and familial status, age, disability, ancestry, height, weight, domestic
partner status, labor organization membership, familial situation, or political affiliation.
10.6 CONFLICT OF INTEREST
Vendor herein agrees to adhere to and be governed by all applicable Miami-Dade County
Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami-Dade County
Code,as may be amended from time to time; and by the City of Miami Beach Charter and Code,
as may be amended from time to time; both of which are incorporated by reference as if fully set
forth herein.
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Vendor covenants that it presently has no interest and shall not acquire any interest, directly or
indirectly, which could conflict in any manner or degree with the performance of the Services.
Vendor further covenants that in the performance of this Agreement, Vendor shall not employ
any person having any such interest. No member of or delegate to the Congress of the United
States shall be admitted to any share or part of this Agreement or to any benefits arising
therefrom: .
10.7 VENDOR'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
(A) Vendor shall comply with Florida Public Records law under Chapter 119, Florida Statutes,
as may be amended from time to time.
(B) The term "public records" shall have the meaning set forth in Section 119.011(12), which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or ordinance
or in connection with the transaction of official business of the City.
(C) Pursuant to Section 119.0701 of the.Florida Statutes, if the Vendor meets the definition of
"Contractor" as defined in Section 119.0701(1)(a), the Vendor shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a
copy of the requested records or allow the records to be inspected or copied within
a reasonable time at a cost that does not exceed the cost provided in Chapter 119,
Florida Statutes or as otherwise provided by law;
(3) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, except as authorized by law,
for the duration of the contract term and following completion of the Agreement if
the Vendor does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City, all public
records in possession of the Vendor or keep and maintain public records required
by the City to perform the service. If the Vendor transfers all public records to the
City upon completion of the Agreement, the Vendor shall destroy any duplicate
public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Vendor keeps and maintains public records upon
completion of the Agreement, the Vendor shall meet all applicable requirements
for retaining public records. All records stored electronically must be provided to
the City, upon request from the City's custodian of public records, in a format that
is compatible with the information technology systems of the City.
(D) REQUEST FOR RECORDS; NONCOMPLIANCE.
(1) A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City. If the City does not possess the
requested records,the City shall immediately notify the Vendor of the request,and
the Vendor must provide the records to the City or allow the records to be inspected
or copied within a reasonable time.
(2) Vendor's failure to comply with the City's request for records shall constitute a
breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally
terminate the Agreement; (2) avail itself of the remedies set forth under the
Agreement; and/or(3)avail itself of any available remedies at law or in equity.
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(3) A Vendor who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 119.10.
(E) CIVIL ACTION.
(1) If a civil action is filed against a Vendor to compel production of public records
relating to the City's contract for services,the court shall assess and award against
the Vendor the reasonable costs of enforcement, including reasonable attorneys'
fees, if:
a. The court determines that the Vendor unlawfully refused to comply with the
public records request within a reasonable time; and
b. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the Vendor has
not complied with the request, to the City and to the Vendor.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Vendor at the Vendor's address listed on its contract with
the City or to the Vendor's registered agent. Such notices must be sent by common
carrier delivery service or by registered, Global Express Guaranteed, or certified
mail, with postage or shipping paid by the sender and with evidence of delivery,
which may be in an electronic format.
(3) A Vendor who complies with a public records request within 8 business days after
the notice is sent is not liable for the reasonable costs of enforcement.
(F) IF THE VENDOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
VENDOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV
PHONE: 305-673-7411
10.8 FORCE MAJEURE
(A) A "Force Majeure" event is an event that (i) in fact causes a delay in the performance of
the Vendor or the City's obligations under the Agreement, and (ii) is beyond the
reasonable control of such party unable to perform the obligation, and (iii) is not due to an
intentional act, error, omission, or negligence of such party, and (iv) could not have
reasonably been foreseen and prepared for by such party at any time prior to the
occurrence of the event. Subject to the foregoing criteria, Force Majeure may include
events such as war, civil insurrection, riot, fires, epidemics, pandemics, terrorism,
sabotage, explosions, embargo restrictions, quarantine restrictions, transportation
accidents, strikes, strong hurricanes or tornadoes, earthquakes, or other acts of God
which prevent performance. Force Majeure shall not include technological impossibility,
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inclement weather, or failure to secure any of the required permits pursuant to the
Agreement.
(B) If the City or Vendor's performance of its contractual obligations is prevented or delayed
by an event believed by to be Force Majeure, such party shall immediately, upon learning
of the occurrence of the event or of the commencement of any such delay, but in any case
within fifteen (15) business days thereof, provide notice: (i) of the occurrence of event of
Force Majeure, (ii) of the nature of the event and the cause thereof, (iii)of the anticipated
impact on the Agreement, (iv)of the anticipated period of the delay,and(v)of what course
of action such party plans to take in order to mitigate the detrimental effects of the event.
The timely delivery of the notice of the occurrence of a Force Majeure event is a condition
precedent to allowance of any relief pursuant to this section; however, receipt of such
notice shall not constitute acceptance that the event claimed to be a Force Majeure event
is in fact Force Majeure, and the burden of proof of the occurrence of a Force Majeure
event shall be on the requesting party.
(C) No party hereto shall be liable for its failure to carry out its obligations under the Agreement
during a period when such party is rendered unable, in whole or in part, by Force Majeure
to carry out such obligations. The suspension of any of the obligations under this
Agreement due to a Force Majeure event shall be of no greater scope and no longer
duration than is required. The party shall use its reasonable best efforts to continue to
perform its obligations hereunder to the extent such obligations are not affected or are
only partially affected by the Force Majeure event, and to correct or cure the event or
condition excusing performance and otherwise to remedy its inability to perform to the
extent its inability to perform is the direct result of the Force Majeure event with all
reasonable dispatch.
(D) Obligations pursuant to the Agreement that arose before the occurrence of a Force
Majeure event, causing the suspension of performance, shall not be excused as a result
of such occurrence unless such occurrence makes such performance not reasonably
possible. The obligation to pay money in a timely manner for obligations and liabilities
which matured prior to the occurrence of a Force Majeure event shall not be subject to the
Force Majeure provisions.
(E) Notwithstanding any other provision to the contrary herein, in the event of a Force Majeure
occurrence, the City may, at the sole discretion of the City Manager, suspend the City's
payment obligations under the Agreement, and may take such action without regard to the
notice requirements herein. Additionally, in the event that an event of Force Majeure
delays a party's performance under the Agreement for a time period greater than thirty
(30) days, the City may, at the sole discretion of the City Manager, terminate the
Agreement on a given date, by giving written notice to Vendor of such termination. If the
Agreement is terminated pursuant to this section, Vendor shall be paid for any Services
satisfactorily performed up to the date of termination; following which the City shall be
discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this
Agreement. In no event will any condition of Force Majeure extend this Agreement beyond
its stated term.
10.9 E-VERIFY
(A) Vendor shall comply with Section 448.095, Florida Statutes, "Employment Eligibility" ("E-
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Verify Statute"), as may be amended from time to time. Pursuant to the E-Verify Statute,
commencing on January 1, 2021, Vendor shall register with and use the E-Verify system
to verify the work authorization status of all newly hired employees during the Term of the
Agreement, provide an affidavit stating that the Vendor does not employ, contract with, or
subcontract with an unauthorized alien, or, upon the City's written request, otherwise
demonstrate Vendor's compliance with Section 448.095 as described
therein. Additionally, Vendor shall expressly require any subcontractor performing work
or providing services pursuant to the Agreement to utilize the U.S. Department of
Homeland Security's E-Verify system to verify the employment eligibility of all new
employees hired by the subcontractor during the contract Term, as applicable. If Vendor
enters into a contract with an approved subcontractor,the subcontractor must provide the
Vendor with an affidavit stating that the subcontractor does not employ, contract with, or
subcontract with an unauthorized alien. Vendor shall maintain a copy of such affidavit for
the duration of the Agreement or such other extended period as may be required under
this Agreement.
(B) TERMINATION RIGHTS.
(1) If the City has a good faith belief that Vendor has knowingly violated Section
448.09(1), Florida Statutes, the City shall terminate this Agreement with Vendor
for cause, and the City shall thereafter have or owe no further obligation or liability
to Vendor.
(2) If the City has a good faith belief that a subcontractor has knowingly violated the
foregoing Subsection 10.9(A), but the Vendor otherwise complied with such
subsection, the City will promptly notify the Vendor and order the Vendor to
immediately terminate the Agreement with the subcontractor. Vendor's failure to
terminate a subcontractor shall be an event of default under this Agreement,
entitling City to terminate the Vendor's contract for cause.
(3) A contract terminated under the foregoing Subsection (B)(1) or (B)(2) is not in
breach of contract and may not be considered as such.
(4) The City or Vendor or a subcontractor may file an action with the Circuit or County
Court to challenge a termination under the foregoing Subsection (B)(1) or (B)(2)
no later than 20 calendar days after the date on which the contract was terminated.
(5) If the City terminates the Agreement with Vendor under the foregoing Subsection
(B)(1), Vendor may not be awarded a public contract for at least 1 year after the
date of termination of this Agreement.
(6) Vendor is liable for any additional costs incurred by the City as a result of the
termination of this Agreement under this Section 10.9.
10.10 TRADEMARKS; PROMOTION MATERIALS
PayByPhone hereby grants the City a non-transferable, non-sublicensable, non-exclusive license
to use its name and trademarks,without modification unless approved by PayByPhone, solely in
connection with the City's marketing and use of the Services in the City facilities.
10.11 STATUS MEETINGS
On periodic basis, but not less than quarterly, an appropriate representative of each party shall
conduct a joint meeting to discuss the status of the Services, as well as to answer questions,
gather information and resolve disputes that may occur from time to time. It is the expectation of
the parties that the representatives of the parties shall communicate directly with one another and
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work directly with one another to ensure that all Services provided hereunder are completed on a
timely and complete basis. All meetings pursuant to this,Section 10.11 may be face to face,.video
or telephonic meetings as may be agreed upon by the parties. Each party shall bear its own costs
of attending or participating in such meetings.
• 10.12 SIGNAGE
PayByPhone shall, at no cost to the City, coordinate with the City's other mobile parking payment
provider, ParkMobile, to design, procure, and deliver all signage for the Parking Locations,
including any signage necessary to replace outdated signage placed at a Parking Location under
a previous agreement.All signage shall include information for both ParkMobile and PayByPhone
equally. ParkMobile and PayByPhone shall coordinate the production of the Signage and shall
secure the prior written approval of the City. Upon receiving approval from the City, PayByPhone.
and ParkMobile shall produce and deliver all signage to the City.The City shall be responsible for
the costs of all subsequent Signage for go-live or additional phase areas. The City is responsible
for the installation of all signs and decals.
The number of signs included for a Parking Location shall be mutually agreed upon by the City,
PayByPhone, and ParkMobile for each Parking Location.
SECTION 11
NOTICES
Until changed by notice, in writing, all such notices and communications shall be addressed as
follows:
TO VENDOR:
PayByPhone US.Inc.
c/o PayByPhone Technologies Inc.
600-1290 Homer Street
Vancouver, BC V6B 2Y5
Canada
Attn: Legal
With a copy to:.legal@paybyphone.com
TO CITY: City of Miami Beach, Parking Department
CIO Parking Director
1755 Meridian Avenue, 2nd Floor
Miami Beach, Florida 33139
MonicaBeltranmiamibeachfl.qov
All notices mailed electronically to either party shall be deemed to be sufficiently transmitted.
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SECTION 12
MISCELLANEOUS PROVISIONS
12.1 CHANGES AND ADDITIONS
This Agreement cannot be modified or amended without the express written consent of the
parties. No modification, amendment, or alteration of the terms or conditions contained herein
shall be effective unless contained in a written document executed with the same formality and of
equal dignity herewith. In the event Client wishes to add new Parking Locations in addition to the
Initial Parking Locations (the "Additional Parking Locations") or to add parking spaces to an
existing Parking Location, the amendment will be effective against both parties if it is in the form
of email between implementation personnel of the parties and, effective the date of such email,
the Exhibit B will be read to include these Additional Parking Locations or parking spaces.
12.2 SEVERABILITY
If any term or provision of this Agreement is held invalid or unenforceable,the remainder of this
Agreement shall not be affected and every other term and provision of this Agreement.shall be
valid and be enforced to the fullest extent permitted by law.
12.3 WAIVER OF BREACH
A party's failure,to enforce any provision of this Agreement shall not be deemed a waiver of such
provision or modification of this Agreement. A party's waiver of any breach of a provision of this
Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed
to be a modification of the terms of this Agreement.
12.4 JOINT PREPARATION
The parties hereto acknowledge that they have sought and received whatever competent advice
and counsel as was necessary for them to form a full and complete understanding of all rights
and obligations herein and that the preparation of this Agreement has been a joint effort of the
parties,the language has been agreed to by parties to express their mutual intent and the resulting
document shall not,solely as a matter of judicial construction, be construed more severely against
one of the parties than the other.
12.5 REPRESENTATIONS and WARRANTIES
Each of PayByPhone and City hereby represents, warrants, and covenants to the other party
hereto as follows:
(a) It is duly organized and validly existing under the laws of the state of its incorporation
and has full power and authority to carry on its business as it is now being conducted and
to own and operate its properties and assets;
(b) The execution, delivery and performance of this Agreement by such party has been
duly authorized by all requisite corporate or limited liability company action, as applicable;
(c) It has the power and authority to execute and deliver this Agreement and to perform its
obligations hereunder; and
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Contract no.23-051-02
(d) The execution, delivery and performance by it of this Agreement and its compliance
with the terms and provisions hereof do not and will not conflict with or result in a breach
of any of the terms or provisions of or constitute a default under the provisions of its charter
documents or bylaws, or any order, writ, injunction or decree of any court or governmental
authority entered against it or by which any of its property is bound.
12.6 DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED"AS IS" AND WITH ALL FAULTS RELATED TO ANY THIRD
PARTY HARDWARE OR EQUIPMENT AS MAY BE REQUIRED FOR USE OF THE
PAYBYPHONE SERVICE. PAYBYPHONE DOES NOT MAKE ANY REPRESENTATIONS,
WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, DIRECTLY OR INDIRECTLY,
INCLUDNG WITHOUT LIMITATION, ANY WARRANTY OF CONDITION, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF USE WITH RESPECT TO, ARISING OUT
OF OR IN CONNECTION WITH ANY THIRD PARTY HARDWARE USED IN CONNECTION
WITH THE SERVICES TO BE PERFORMED HEREUNDER BY SUCH PARTY OR THE
RESULTS OBTAINED THEREBY.
12.7 ENTIRETY OF AGREEMENT
The City and Vendor agree that this is the entire agreement between the parties. This Agreement
supersedes all prior negotiations,correspondence, conversations,agreements or understandings
applicable to the matters contained herein, and there are no commitments, agreements or
understandings concerning the subject matter of this Agreement that are not contained in this
document. Title and paragraph headings are for convenient reference and are not intended to
confer any rights or obligations upon the parties to this Agreement.
• [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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Contract no.23-051-02
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their appropriate officials, as of the date first entered above.
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Rafael E. Granado, City Clerk Alina T. Hudak, City Manager
Date:
APPROVED AS TO
FORM &LANGUAGE
FOR VENDOR: & FOR EXECUTION
1 Z/2Z/2
PAYBYPHONE US INC, City Attorney Wr Date
By:
Satyajit(Sonny)Samra, President
Date:
•
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Contract no.23-051-02
EXHIBIT A
SERVICE AGREEMENT
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Contract no.23-051-02
EXHIBIT A
COOPERATION AND SERVICE AGREEMENT
For the purposes of this Exhibit C—Cooperation and Service Agreement,"PayByPhone"shall mean PayByPhone US
Inc.,a provider of enhanced mobile commerce solutions,a Delaware corporation with its address at 48 Wall-Street,
Suite 1100,New York,New York 10005 and "Client"shall mean the City of Miami Beach,a provider of parking
services with its address at: 1700 Convention Center Drive,Miami Beach,Florida,33139.
AGREEMENT
Section 1 THE PAYBYPHONE MOBILE PAYMENT PLATFORM AND APPLICATIONS
1.1 PAYBYPHONE MOBILEPAYMENT.APPLICATION
PayByPhone agrees to roll out the PayByPhone mobile payment service for use at Client's managed and owned
parking facilities as agreed upon by PayByPhone and Client,to allow for consumers to pay for the use of Client's
parking facilities through personal wireless devices (e.g., cellular telephones) or other wireless systems. QR code
,access to the-payment service is not included.
1.2 PAYBYPHONE MANAGEMENT INFORMATION SYSTEM
PayByPhone will operate and manage a software application for Client that will provide near real rime information
and management reports on the transactions conducted utilizing the PayByPhone mobile payment service (the
"Portal").PayByPhone will host the Portal on its.network. Client will access the Portal through a browser-based
program'installed on Client's computer hardware.
1.3 COMPUTER,NETWORKING AND TELECOMMUNICATION SYSTEMS
PayByPhone will own or possess,and will operate and maintain,all computer and networking hardware and'.software
and data required to operate the PayByPhone mobile payment services service as contemplated in this Agreement,
other than Client's existing computer and telecommunications systems.
1.4 MOBILE PAYMENT SERVICE ENFORCEMENT
Client agrees to supply Wireless:Devices.to employeesin the field to provide real time confirmation of validly parked
vehicles.
1.5 REPORTS
PayByPhone will provide Client with a set of standard self-serve reports in the Portal. Any changes or customizations
to the standard set of reports will be subject to PayByPhone's prior approval and then-current PayByPhone
professional services,fees.
See https://www.paybyphone.com/pdf/us/pbp_professionalservicessamplerates.pdf for sample rates.
1.6 PAYBYPHONE INTERACTIVE VOICE RESPONSE
PayByPhone Will provide the PayByPhone interactive voice response solution("I.VR") for use at Client's managed
and/or owned parking,facilities,as agreed upon by PayByPhone and Client,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. Client is responsible for paying all Transaction Fees, as outlined in Appendix A, for each
Transaction made through IVR.
1.7 PAYBYPHONE RIGHTS&RATES
PayByPhone'will provide Client with the PayByPhone Rights&Rates service("Rights&Rates")to allow Client to
control eligibility to park at Client parking facilities and to assign special parking rules and prices to select segments
of drivers. In this Agreement, a"Right" is the entitlement to start a parking session at a Parking Location and/or
qualify for a specific rate/restriction. Client is responsible for paying the Rights & Rates implementation and
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Contract no.23-051-02
subscription fees, as outlined in Appendix A, for the number of Client parking spaces as agreed upon between
PayByPhone and Client.
1.8 USE OF QR CODE
At Client's request, as part of the PayByPhone mobile payment service, PayByPhone will provide to Client, and
include on the relevant signage at Client's parking facilities or in marketing materials, QR codes which will allow
consumers to access the PayByPhone mobile payment service through QR code scanning,at no additional cost. Client
acknowledges that inclusion of QR codes in the payment service is associated with a material risk of fraudulent activity
by third parties who may manually replace QR codes on Client signage with their own codes and redirect the
consumers to their sites for payment, resulting in losses to Client, PayByPhone and consumers. Client releases
PayByPhone from any liability for any claims, actions or losses resulting from or associated with such fraudulent
activity at Client's parking facilities and,to the extent permitted by law,agrees to indemnify PayByPhone against any
and all third party claims,actions,losses resulting from or arising out of such fraudulent activity,as set out in section
8.2 of this Agreement. Client will reimburse PayByPhone for the cost'of removing fraudulent QR signage from
Client's parking facilities and for the costs of customer support and call centre fees associated with calls related to
fraudulent signage at Client's parking spaces. PayByPhone will provide evidence supporting determination of the
costs,but PayByPhone's calculations will be conclusive of the same. PayByPhone reserves the right to discontinue
the support for the QR code feature with 10 day written notice to Client if the fraudulent activity at Client's parking
facilities persists for longer than 6 weeks.
1.9 PAYBYPHONE VALIDATIONS PORTAL
Subject to the terms and conditions of this Agreement,.PayByPhone will provide Client a parking validation
subscription service, which allows Client 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"). Client is responsible for paying all Validations Portal fees,as set out in Appendix A,for the
Parking Location(s),,as agreed upon between PayByPhone and Client. Notwithstanding anything contrary to this
Agreement,Client 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 Client. Client 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.
Section 2 FEES AND PAYMENTS
2.1 MERCHANT ACCOUNT
Merchant account refers to Client's merchant account set up with Client's acquiring bank. PayByPhone will cover
the cost of linking one(1)Client merchant account with PayByPhone's gateway provider. Client agrees to cover the
cost of merchant account updates including all third party fees and then-current PayByPhone professional services
2.2 TRANSACTION TESTING
PayByPhone reserves the right to execute test transactions from time to time to ensure top performance of the system
and account.PayByPhone may execute up to ten test transactions per month without adjusting the Client invoice.
2.3 THIRD PARTY INTEGRATION
In the event that system changes(such as upgrades)by a third party that will impact the PayByPhone integration with
Client sub-systems such as enforcement, Client agrees to pay for all PayByPhone development costs required to
maintain such integration. PayByPhone will notify Client, in advance, of any such integration costs that could be
added.
Section 3 EXCLUSIVITY
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Contract no.23-051-02
The parties expressly acknowledge that Client currently engages,and/or may in the future, at its option, add,other
providers of mobile parking payment applications("Third Party Providers"),through contracts for the same parking
facilities and metered stalls covered by this Agreement.
Section.4 MARKETING,PROMOTION AND USER EDUCATION
4.1 MARKETING EVENTS
PayByPhone may conduct on-site marketing events and campaigns for its service,whereby PayByPhone will inform
parking lot consumers of the availability of the PayByPhone mobile payment services as well as any promotions
available,with the knowledge and approval of Client which is.not to be unreasonably withheld.
4.2 CLIENT TRAINING
PayByPhone will provide initial training to Client using a"Train the Trainer"(the"Client Trainer")model on the self-
served PayByPhone Service Management Interface(SMI). The said Client Trainer will,at its own expense,train its
staff and employees, including patrollers, to operate the mobile payment services and related applications and
technology. Additional training sessions are available at the then current professional services rates. See
https://www.paybyphone.com/pdf/us/pbp_professionalservicessamplerates:pdf for sample rates.
Section 5 INTELLECTUAL PROPERTY
5.1 INTELLECTUAL'PROPERTY RIGHTS
5.1.1 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.
5.1.2 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.
5.1.3 Each party reserves the right to approve in advance the use of its Intellectual Property by the other party in
upon,the advance written approval or as previously agreed upon in writing by the parties.
5.1.4 Upon termination of this Agreement for any reason the parties will use reasonable endeavours 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.
5.1.5 The parties undertake that they have all necessary permissions, licenses and rights to use the Intellectual
Property of third parties for the purposes of this Agreement.
5.1.6 To the extent permitted by,law,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) arising from any actual 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 Indemnifying Party knew or ought to have known that such
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Contract no.23-051-02
development of the services requested by the Indemnified Party would result in an infringement of Intellectual
Property rights.
5.1.7 The Indemnified Party shall notify the Indemnifying Party in writing of any such action,claim or proceeding
and shall not make any admission unless the Indemnifying Party gives prior written consent.
5.1.8 At the Indemnifying Party's request and expense,the Indemnified Party shall permit the Indemnifying Party
to conduct all negotiations and litigation. The Indemnified Party shall give all assistance as the Indemnifying Party
may reasonably request and the Indemnifying Party shall pay the Indemnified Party's costs and expenses so incurred.
5.1.9 The Indemnifying Party may,at its expense:(i)obtain.a license to enable the Indemnified Party to continue
to use the Services,or(ii)modify or replace the Services to avoid any alleged or actual infringement or breach,or(iii)
terminate the provision of the affected elements of the Services. Where the Indemnifying Party exercises options(i)
or(ii)the functionality of such modification or replacement shall not materially affect the performance of the Services.
5.2 CLIENT INFORMATION
5.2.1 "Client Data"means all data provided directly by the Client to PayByPhone in relation to this Agreement,
including Client's parking rates, Client's identifiers for Parking Locations and parking stalls, merchant account
information,enforcement equipment and practices,and parking policies.
5.2.2 During the term of this Agreement and for such time after as not expressly prohibited, PayByPhone may
obtain,store and use such Client Data for any purpose,including without limitation providing and improving services
under this Agreement, so long as it complies with applicable data protection laws, contractual obligations and any
other applicable requirements with respect to the Client Data. PayByPhone shall retain exclusive ownership of all
rights in any derivative data it develops based on Client Data.
5.2.3 Following termination of this Agreement,PayByPhone will, at Client's written request,return to Client or
destroy all Client Data and copies thereof.'Notwithstanding the foregoing,PayByPhone shall be permitted to retain
such copies of, or any computer records or files containing, the Client Data: (a) that has been archived by
PayByPhone's automatic electronic archiving and back-up procedures,to the extent created and retained in a manner
consistent with PayByPhone's standard archiving and back-up procedures;and(b)to the extent required by applicable
law.
5.3 CUSTOMER INFORMATION
5.3.1 The parties will share information and data directly relating to drivers' parking sessions through the
PayByPhone service at the Parking Locations("Parking Sessions")and as may be required by the Client 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).
5.3.2 In using, sharing, or otherwise processing Transaction Data, PayByPhone and Client must comply with
applicable data protection laws, contractual obligations and any other applicable requirements. Each party is
responsible to the PayByPhone 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 any privacy legislation that uses that
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Contract no:23-051-02
concept and is applicable to the parry's activities. Each party agrees to provide such assistance as is reasonably
required to enable the other party to comply with the applicable data protection laws.
5.3.3 Any information about or with respect to PayByPhone service users that is not related to parking sessions at
the Parking Locations,including without limitation,information provided by users upon registration for a PayByPhone
account and data about the user's activity in the PayByPhone account or the PayByPhone applications("User Profile
Data")shall be exclusively owned by PayByPhone.PayByPhone shall retain exclusive ownership of all rights in any
derivative data it develops based on Transaction Data and User Profile Data.
5.4 PAYBYPHONE'S SERVICES TO CUSTOMERS
The parties acknowledge that PayByPhone service users hold the PayByPhone account under terms of service
established by PayByPhone. Under these terms of service,PayByPhone 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. Client agrees that, at any time during the Term;
PayByPhone may charge any users who opt into these services a.fee("SMS Fee")for each SMS Communication sent
by PayByPhone with respect to an initial parking session or extension of a parking session and may set the amount of
the SMS Fee with reference to the cost PayByPhone 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.PayByPhone will provide
Client with 30 day written notice of an increase in the amount of the SMS Fee. PayByPhone shall be responsible for
any taxes applicable to the SMS Fees.PayByPhone 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 or extension of a parking session.
Unless under the terms of the Agreement PayByPhone is designated as the merchant of record for parking fees paid
using PayByPhone mobile payment service,PayByPhone and.Client agree to designate Client as the merchant of
record for any SMS Fees only.In that case,Client will collect PayByPhone's SMS Fees and remit to PayByPhone.
Remittance will be made via electronic payment or cheque and may be included in the amount that also includes fees
payable by Client to PayByPhone under this Agreement.
Section 6 INTENTIONALLY OMITTED
Section 7 DISCLAIMER,INDEMNIFICATION AND LIMITATION OF LIABILITY
7.1 DISCLAIMER
Except as expressly set forth in this agreement,PayByPhone does not make,and hereby specifically disclaims, any
representations or warranties,express or implied,regarding the PayByPhone mobile payment services,including any
implied warranties of title,merchantability,fitness for a particular purpose or non-infringement.Client acknowledges
that the PayByPhone mobile payment services and services furnished by PayByPhone under this agreement
(including, without limitation, any sservers or other hardware, software, applications and any other items used or
provided by PayByPhone or any third parties in connection with providing access to or hosting any of the foregoing
or the performance of any services by PayByPhone under this agreement)are provided by PayByPhone"as is".
7.2 PARKING RATES
Client will be given access to parking rate data in order to confirm the parking rates at each Parking Location via the
Portal.PayByPhone will make every attempt at ensuring the rates are configured correctly;upon completion of each
Parking Location setup, it is the Client's responsibility to ensure all rates are configured correctly. Failing to do so
shall exclude PayByPhone from any liability: Client shall implement any parking rate changes via the Portal following
the Parking Location setup. In the event.Client requests that PayByPhone configure the parking rate changes after the
Parking Location setup, Client shall provide PayByPhone with sufficient notice of the rate changes and such work
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Contract no.23-051-02
will be subject to PayByPhone's prior approval and then-current PayByPhone professional services fees. See
https://www.paybyphone.com/pdf/us/pbpjirofessionalservicessamplerates:pdf for sample fees.
• Section 8 MISCELLANEOUS
INTENTIONALLY OMITTED
8.1 NO AGENCY
Each party,in all matters relating to this Agreement,will act as an independent contractor and independent employers.
Except as otherwise expressly set forth herein,neither party will have authority and will not represent that it has any
authority to assume or create any obligation,express or implied,on behalf of the other,or to represent the other as an
agent,employee or in any other capacity. Except as otherwise expressly set forth herein,nothing in this Agreement
shall be construed to have established any agency,joint venture or partnership between the parties. Neither party shall
make any warranties,or representations on behalf of the other party.
8.2 COUNTERPARTS
This Agreement may be executed in one or more counterparts,each of which shall be deemed an original and all of
which shall be taken together and deemed to be one instrument. The parties further agree that a signature transmitted
via facsimile shall be deemed original for all purposes hereunder.
8.3 CAPTIONS
The captions used in this Agreement are for convenience only and shall not affect in any way the meaning or
interpretation of the provision set forth herein.
8.4 CLIENT'S CONDUCT OF BUSINESS THROUGH AFFILIATES
The parties acknowledge that Client may carry out its business through affiliates.Client agrees to cause its affiliates
to take such actions and to execute such documents as may be reasonably required to give effect to this Agreement as
though references to Client in this Agreement were references to Client and those of its affiliates through which it
carries on the business of owning and operating parking facilities.
8.5 PCI-DSS:PAYMENT CARD INDUSTRY DATA SECURITY STANDARD
PayByPhone is responsible for the security of cardholder data which PayByPhone possesses or otherwise stores,
processes,or transmits on behalf of the Client.PayByPhone abides by the rules and regulations set forth in the PCI-
DSS.
IN WITNESS WHEREOF, the parties; have caused this Agreement to be executed by their duly authorized
representatives.
The City of Miami Beach PayByPhone US Inc.
Signature:
Signature:
Name:
Name:
Title:
Title:
Attest.
Signature:
Name:Rafael E.Granath).City Clerk
Date:
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Contract no.23-051-02
EXHIBIT B
FEE SCHEDULE
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62
EXHIBIT B
PAYBYPHONE FEES
All amounts are exclusive of any and all taxes, including taxes applicable on fees paid by the driver. For
• the purposes,of this Agreement,"Transaction"includes(a)user registration for a parking session,permit,
validation or extension at a Parking Location through the PayByPhone mobile payment service(whether
or not any amount is payable to Client by the user), (b) a refund, (c) a charge reversal and(d) any other
operation for which PayByPhone incurs a fee from its gateway provider or an acquirer,if applicable.
wrgi "Atiiitij 1�"P UCE •
ONE-TIME SETUP FEES ,
Signage first round of signage production at service launch(installation not Included
included)
Training,consulting,marketing,and customer support as described in the Agreement Included
Marketing includes a standard,launch package
Mobile payment services setup fee for all Initial Parking Locations I Waived'
Integration with enforcement solution software: PayByPhone will include 1 Included
complimentary enforcement integration
Standard PayByPhone city dynamic label Included
TRANSACTION FEES .:
Hourly Parking: Client pays to PayByPhone per Transaction—City serves as
Merchant of Record $0.352
(Client may charge user a non-embedded,on top of price of Convenience Fee of
$0.35)
Monthly Parking Option: Client pays to.PayByPhone per Transaction—City serves
as Merchant of Record $1.002
(Client may charge user a non-embedded,on top of price of Convenience Fee of
$1.00)
Resident Rate Zero Fee Offering: Verified via PayByPhone's Rights&Rates $0.00 per authorized
solution(priced below),residents will receive a$0 cost Convenience Fee if the
resident
"double code offering"(see description below)is utilized.
Monthly minimum of total Transaction Fees Waived
OPTIONAL FEES.
Additional Custom dynamic label $1,000
Mobile payment service setup fee for Additional Parking Locations Waived
IVR setup fee Waived
IVR additional per transaction fee Waived—Included with
standard transaction fee
Rights&Rates setup fee Reduced
$500
Rights&Rates monthly subscription fee for one(1)Right $199 per month
Validation Portal setup fee $1,500
Panel'
63
EXHIBIT B
PAYBYPHONE FEES
Validation.Portal monthly subscription fee $250 per Parking
Location/mo.
NOTES:
t. Mobile payment services setup fee (if applicable) includes configuration, testing, and
implementation of a dedicated client account within the PayByPhone system; merchant
account integration and testing; set up and training on reporting, customer service, and other
elements of the PayByPhone Portal.
2. Any change in the Parking Rates,will not affect the price the Client will pay to PayByPhone
per Transaction. The Convenience Fee may only be increased by mutual agreement of both
parties. Services covered by the Transaction Fee include interactive voice response solution
(IVR). Client is responsible for paying all Transactions Fees for all Transactions made through
the PayByPhone mobile application,web application, and/or IVR(if applicable).
3. Client is responsible for paying its own credit card processing and merchant banking fees, if
Client is merchant of record(MOR).
Double Code Offering: PayByPhone assigns a location code for the area plus a resident
location code that will be used by residents only, which provides a SO Convenience Fee option
for residents.
a. If a non-resident were to try to use this resident location and they were not
authorized via Rights&Rates,they would be instructed to utilize the standard
location code.
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Contract no.23-051-02
EXHIBIT C
TIMELINE/SCHEDULE/SIGNAGE
PayByPhone Q city COlu`a L
Planned [Q ei -Mobile Payments
s•Aft estimated dates and tlmeframes are dependent upon information being provided to PayByPhone by the City.
•
`'Anticipated !dilating read 'G m City Tea Estimated
State Date Task Description Designation PBP Team Member(a) tVlember(sj Task Duration Completion - Deliverable
I Date
Procurement,City
j Manager,Parking,
111/1/2023 Contract Negotiation ;Mutual Sales,Legal Legal 3 Weeks 22-Nov.23 Fully Executed Agreement
___,_�� Parking Admin,
1 Sales,Implementation. Finance,IT, Workbook provided,which includes a0 information needed by PBP to
l Account Management, Integration/Enforce work on the City's implementation for mobile payments.Clearly
11/29/2023 Project Kickoff Call .PPayByPhone Integrations ment 1 Hour 11/29/2023 defined expectations and timelines will be discussed
1 I All relevant
city/parking team
111/29/2023 Workbook Complete ;City members 2 weeks 12/13/2023 Workbook returned to PayByPhone with completed materials
Merchant Account I Finance,Parking City to begin setting up merchant account ASAP to ensure available for
111/29/2023 Setup (Gty Implementation Admin 3.4 Weeks 12/27/2023 test transactions necessary prior to go live.
1 j Upon Gty providing contact information for enforcement partner,
I
i Parking Admin& PayByPhone will engage with provider to setup integration for
'12/13/2023 Enforcement Engaged PayByPhone Implementation Enforcement 3.4 weeks 1/3/2024 enforcement purposes
PayByPhone will discuss signage during weekly calls and create mock-
i Parking Admin& ups for approval by City.Upon approval,signage will be ordered for
12/6/21323 Signage Discussion {PayByPhone implementation ' Enforcement' 2 weeks 12/27/2023 delivery prior to estimated go live.
IPayByPhone will discuss marketing strategies available to the Gty and
r Parking Admin& discuss the City's marketing desires to plan marketing efforts to
12/27/2023 Marketing Discussion IPayB9Phone implementation Marketing Ongoing 18O announce mobile payment launch within the City.
ITest Transactions- I i Parking Admin& Test transactions will be submitted with 000pration from the City to
r1/1/2024 Merchant IPay8yPhone {implementation' Finance 1-2 Weeks 1/1S/2024 verify visibility within merchant account.
Test Transactions• I I Parking Admin& Test transactions will be submitted with cooperation from the City to
11/1/2024 Enforcement (PayByPhone immpeementation Enforcement 1-2 Weeks 1/15/2024 verity visibility within enforcement devices
Signage Installation ( Gty to Install signage and decals with plans to have system live upon
i1/1/2024 Planning [Gty 1 Parking Admin 1.2 Weeks 1/19/2024 install.
11/23/2O24 Go Live CPayByDhone !Implementation Parking Admin Ongoing t/23/202d Go live date may vary based on when signs are installed.
•
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66
Competitive Bid Reports -C2 D
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager
DATE: January 31, 2024
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING THE AGREEMENTS WITH
PARKMOBILE, LLC, AND PAYBYPHONE US INC., PURSUANT TO
REQUEST FOR QUALIFICATIONS (RFQ) NO. 2023-051-WG FOR MOBILE
PARKING PAYMENT SYSTEMS;AND AUTHORIZING THE CITY MANAGER
AND CITY CLERK TO EXECUTE THE FINAL AGREEMENTS.
(ITEM TO BE SUBMITTED IN SUPPLEMENTAL)
SUPPORTING SURVEY DATA
TBD
FINANCIAL INFORMATION
TBD
Is this a "Residents Right Does this item utilize G.O.
to Know" item. pursuant to Bond Funds?
City Code Section 2-14?
No No
Legislative Tracking
Parking/Procurement
Page 69 of 2002