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PARKING SERVICES AGREEMENTPARKING SERVICES AGREEMENT THIS PARKING SERVICES AGREEMENT (this "Agreement ") is made and entered into as of this hil'''day o , 2015 (the "Effective Date "), by and among PARKMOBILE, LLC, a Delaware limited liability compa ( "Parkmobile "), and CITY OF CLEARWATER, a Florida municipality ( "Client "). RECITALS: WHEREAS, Parkmobile is engaged in the business of providing integrated solutions for the management of all parking- related matters, including providing a system for the payment of street parking by mobile telephone; and WHEREAS, Client issued RFP #14 -15 dated February 17, 2015 ( "RFP ") which was awarded to Parkmobile on March 17, 2015; and WHEREAS, Parkmobile and Client desire to enter into a mutually beneficial arrangement, pursuant to which Parkmobile will provide mobile parking services to Client, upon the terms and subject to the conditions contained herein NOW, THEREFORE, in consideration of the terms, conditions, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, and in order to effectuate the above arrangement, the parties hereto agree as follows: ARTICLE 1 SERVICES 1.1 Services Provided by Parkmobile. During the Term (as defined herein), Parkmobile shall direct its personnel to perform the services for Client as described on Schedule 1 hereof (as amended, modified or supplemented from time to time upon the mutual written agreement of the parties, the "Services "). Parkmobile shall render the Services faithfully and to the best of its ability and in compliance with all applicable law, regulation, legal or regulatory process or government agency, rules or regulations (collectively, "Law "), 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 Client, consistent with a schedule to be reasonably agreed upon from time to time by Parkmobile and Client. In connection with Parkmobile's performance of the Services, Parkmobile shall be subject to, and agrees to abide by, such policies, procedures, directions and restrictions as Client may reasonably establish from time to time. If Client requires additional work that is not included in this Agreement, Parkmobile and Client shall negotiate the additional work, mutually agree on the amount of additional compensation, and memorialize the terms in either a separate written contract or an amendment to this Agreement. 1.2 Help and Support. Parkmobile agrees to use its reasonable efforts to assist Client with any technical support that Client may reasonably require in relation to using the Services. In furtherance of the foregoing, Parkmobile agrees to provide Client with preventative maintenance, corrective maintenance, adaptive maintenance and online, on -site and telephone support with respect to the Services. Each of Parkmobile and Client shall promptly notify the other of any errors or interruptions that arise during Client's use of Parkmobile's software or the Services hereunder. 1.3 Error 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. 1.4 Reservation of Rights. All rights not expressly granted to Client herein are reserved to Parkmobile. All intellectual property rights related to the Services, as well as any additional services, software, technology or systems developed by Parkmobile, belong to Parkmobile. Clients' data shall be the property of Client 1.5 Publicity of Services. All brochures and promotional materials to be distributed by Client in connection with the Services shall be in a form mutually agreed upon by the parties. 1.6 Cooperation. 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. 1.7 Authority of the Parties. 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. ARTICLE 2 FEES; EXPENSES 2.1 Fees. The fees (the "Fees ") applicable to the Services, are set forth on Schedule 3. Schedule 3 may be updated from time to time in writing upon the mutual agreement of the parties to reflect any changes or modifications in the Fees payable hereunder. 2.2 Payment. Payment is due not later than thirty (30) days after invoice. Late payment interest of ten percent (10 %) per annum may be assessed by Parkmobile on any payment past due, in which case such interest shall accrue from the payment due date to the date payment is received. 2.3 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 Client, or, in lieu thereof, Client shall provide Parkmobile with a tax exemption certificate issued by the appropriate taxing authority. 2.4 Billing Disputes. Client shall be entitled to suspend payment of any disputed invoices. Any disputes must be submitted to Parkmobile in writing, with an explanation of the reason for the dispute. Once the payment dispute is resolved/corrected and agreed to by both parties, Parkmobile shall submit to Client an amended invoice reflective of the agreed -to amount. Client will then process payment in favor of Parkmobile. 2.5 Expenses. Except as otherwise provided herein, Parkmobile shall not charge Client any costs for the integration of its system(s) or for the management of the project and the Services. Parkmobile shall charge Client for ordinary, necessary and reasonable third party costs only on direct cost basis and only after the prior approval of Client. ARTICLE 3 TERM; TERMINATION 3.1 Term. The initial term of this Agreement shall commence as of the Effective Date and terminate on (the "Initial Tenn"). Following the Initial Term, the Agreement may be automatically extended for three (3) consecutive one (1) year renewal terms (each a "Renewal Term "), provided that neither party gives written notice to the other of its intent not to renew this Agreement at least sixty (60) days prior to the expiration of the then - current Renewal Tenn. The date on which this Agreement is [A04 -00232 /165076/1] 2 terminated or expires as provided herein is called the "Termination Date," and the period from the Effective Date through the Termination Date is herein called the "Term." 3.2 Termination for Cause. (a) Either party may terminate this Agreement and the rights granted herein if the other party breaches any of the provisions of this Agreement and (i) fails to remedy such breach within forty-five (45) days after receiving written notice thereof, or (ii) provided the breach does not relate to a monetary obligation, fails to (A) commence a good faith action to remedy such breach within five (5) days after receiving written notice thereof, and (B) diligently pursue such action to conclusion. (b) Should either party (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 fling 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 other party, at its option and without prior notice, may terminate this Agreement effective immediately. 3.3 Effect of Termination. (a) Upon termination or expiration of this Agreement, (i) Client shall pay to Parkmobile any portion of the Fees then accrued and properly payable under this Agreement; (ii) Client shall promptly return to Parkmobile all materials in its possession provided by Parkmobile or otherwise created or produced by Parkmobile in connection with the performance of the Services hereunder; and (iii) Client shall discontinue all use of the Technology and intellectual property of Parkmobile and PMG. (b) Notwithstanding the exercise by any party of its rights under this Article 3, no termination of this Agreement shall relieve either party of its liability for the payment or 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). ARTICLE 4 ADDITIONAL COVENANTS OF THE PARTIES 4.1 Confidentiality. (a) The Parties understand that the City of Clearwater (the Client) is an agency subject to Florida's expansive public record laws, which are found in chapter 119, Florida Statutes. Pursuant to Florida Statute section 812.081(1)(c), "trade secret" means the whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. "Trade secret" includes any scientific, technical, or commercial information, including any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be: 1. Secret; 2. of value; 3. For use or in use by the business; and [A04 -00232 /165076/1] 3 4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it when the Parkmobile takes measures to prevent it from becoming available to persons other than those selected by the Parkmobile to have access thereto for limited purposes. (b) Documents containing trade secrets, as defined herein and as may be amended by Florida Statute, shall be stamped "confidential" so as to let the Client know to exempt from public access. The City of Clearwater, as the Client, shall retain all documents as required by chapter 119, Florida Statutes. If trade secret information is provided and such documents are marked "confidential," then the City shall exempt such documents from public access and make such documents confidential. (c) Each party may disclose trade secret information marked "confidential" of the disclosing party to its affiliates and their respective employees and agents who are directly involved in the performance of this Agreement, who have a need to know and who are obligated to honor the restrictions on disclosure and use of such trade secret information marked "confidential" set forth in this Agreement (the persons to whom such disclosure is permissible being collectively known as "Representatives "). Each party shall be responsible for any breach of this Section 4.1 by its Representatives. The parties shall not disclose, without the prior written consent of the disclosing party, any of such disclosing party's Confidential Information that it has learned either during the course of this Agreement or in discussions and proposals leading up to this Agreement, except as may be required by Law. The parties shall not use the Confidential Information of a disclosing party for any purpose other than that for which it was disclosed. (d) All trade secret information marked "confidential ", as defined herein and in Florida Statute, shall remain the property of each respective party. Upon any termination or expiration of this Agreement, each party shall return to the other party the other party's original version of all trade secrets information marked "confidential" of such other party in document form, including any electronic media version, such as CD -ROM or computer disk, and shall confirm to such other party in writing that all such documents and things have been so provided and that all copies thereof have been destroyed subject to compliance with applicable Law. The foregoing shall not apply to any trade secret information marked "confidential" that is in the public domain without breach of this Agreement, trade secret information marked "confidential" that a party can demonstrate was known prior to receipt from the other party or trade secret information marked "confidential" that was subsequently received from a third party without any obligation of confidentiality to the other party. (e) To the extent any party determines it necessary or advisable to file a copy of this Agreement with a governmental agency, including the United States Securities and Exchange Commission, or otherwise in accordance with Law, that party and its counsel shall work with the non - disclosing party and its counsel to obtain confidential treatment of relevant portions of this Agreement, including, without limitation, product and service specifications and pricing information.. (f) The Client's obligation with respect to trade secret information marked "confidential" shall comply with Florida Statutes, chapter 119. 4.2 Information. Subject to Section 4.1 and any applicable Laws and privileges, each party covenants and shall provide the other party with all information regarding itself and the transactions under this Agreement that the other party reasonably believes is required to comply with all applicable Law and to satisfy the requesting party's obligations hereunder. Any information owned by one party that is provided to any other party pursuant to this Agreement shall remain the property of the providing party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information. 4.3 Records. Each party shall maintain and retain records related to the provision of the Services under this Agreement consistent with Florida Statutes and such party's historical policies regarding retention of records. As needed from time to time during the period in which Services are provided, and upon termination of the provision of any Service, unless otherwise prohibited by applicable Law, the parties shall provide each other with records related to the provision of the Services under this Agreement to the extent that [A04 -00232 /165076/1] 4 (a) such records exist in the ordinary course of business, and (b) such records are reasonably necessary for the requesting party to comply with its obligations under this Agreement or applicable Law. 4.4 Status Meetings. On a periodic basis, but not less than bi- annually, 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 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 4.4 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. 4.5 Privacy. Client agrees (a) to comply with all applicable Law; (b) not to use the information provided to it by Parkmobile about identifiable individuals ( "PI ") to market goods or services to those individuals or others; (c) that it will use reasonable security measures to safeguard the PI; and (d) to disclose to others the PI, as permitted only by Florida Statutes. 4.6 Insurance. Parkmobile shall, at its own cost and expense, acquire and maintain (and cause any subcontractors, representatives or agents to acquire and maintain) during the term with the City, sufficient insurance to adequately protect the respective interest of the parties. Coverage shall be obtained with a carrier having an AM Best Rating of A -VII or better. In addition, the City has the right to review Parkmobile's deductible or self - insured retention and to require that it be reduced or eliminated. Specifically Parkmobile must carry the following minimum types and amounts of insurance on an occurrence basis or in the case of coverage that cannot be obtained on an occurrence basis, then coverage can be obtained on a claims -made basis with a minimum three (3) year tail following the termination or expiration of this Agreement: a. Commercial General Liability Insurance coverage, including but not limited to, premises operations, products /completed operations, products liability, contractual liability, advertising injury, personal injury, death, and property damage in the minimum amount of $1,000,000 (one million dollars) per occurrence and $2,000,000 (two million dollars) general aggregate. b. Commercial Automobile Liability Insurance coverage for any owned, non - owned, hired or borrowed automobile is required in the minimum amount of $1,000,000 (one million dollars) combined single limit. c. Statutory Workers' Compensation Insurance coverage in accordance with the laws of the State of Florida, and Employer's Liability Insurance in the minimum amount of $100,000 (one hundred thousand dollars) each employee each accident, $100,000 (one hundred thousand dollars) each employee by disease and $500,000 (five hundred thousand dollars) aggregate by disease with benefits afforded under the laws of the State of Florida. Coverage should include Voluntary Compensation, Jones Act, and U.S. Longshoremen's and Harbor Worker's Act coverage where applicable. Coverage must be applicable to employees, contractors, subcontractors, and volunteers, if any. d. Professional Liability/Malpractice /Errors or Omissions Insurance coverage appropriate for the type of business engaged in by the Parkmobile with minimum limits of $1,000,000 (one million dollars) per occurrence. If a claims made form of coverage is provided, the retroactive date of coverage shall be no later than the inception date of claims made coverage, unless prior policy was extended indefinitely to cover prior acts. Coverage shall be extended beyond the policy year either by a supplemental extended reporting period (ERP) of as great a duration as available, and with no less coverage and with reinstated aggregate limits, or by requiring that any new policy provide a retroactive date no later than the inception date of claims made coverage. e. Cyber Liability Insurance coverage in an amount adequate to meet or exceed the notification and monitoring requirements under Florida Statute §817.5681 for the contracted services. [A04 -00232 /165076/1] 5 f. If Parkmobile is using its own property in connection with the performance of its obligations under this Agreement, then Property Insurance on an "All Risks" basis with replacement cost coverage for property and equipment in the care, custody and control of others is recommended. The above insurance limits may be achieved by a combination of primary and umbrella/excess liability policies. Other Insurance Provisions a. Prior to the execution of this Agreement, and then annually upon the anniversary date(s) of the insurance policy's renewal date(s) for as long as this Agreement remains in effect, Parkmobile will furnish the City with a Certificate of Insurance(s) (using appropriate ACORD certificate, SIGNED by the Issuer, and with applicable endorsements) evidencing all of the coverage set forth above and naming the City as an "Additional Insured." In addition when requested in writing from the City, Parkmobile will provide the City with certified copies of all applicable policies. The address where such certificates and certified policies shall be sent or delivered is as follows: City of Clearwater Attn: Purchasing Department P.O. Box 4748 Clearwater, FL 33758 -4748 b. Parkmobile shall provide thirty (30) days written notice of any cancellation, non - renewal, termination, material change or reduction in coverage. c. Parkmobile's insurance as outlined above shall be primary and non - contributory coverage for Parkmobile's negligence. d. Parkmobile reserves the right to appoint legal counsel to provide for Parkmobile's defense, for any and all claims that may arise related to Agreement, work performed under this Agreement, or to Parkmobile's design, equipment, or service. Parkmobile agrees that the City shall not be liable to reimburse Parkmobile for any legal fees or costs as a result of Parkmobile providing its defense as contemplated herein. The stipulated limits of coverage above shall not be construed as a limitation of any potential liability to the City, and failure of the City to request evidence of this insurance shall not be construed as a waiver of Parkmobile's (or its subcontractors', representatives' or agents') obligation to provide the insurance coverage specified. ARTICLE 5 REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION 5.1 Representations and Warranties. Each of Parkmobile and Client 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, [A04 -00232 /165076/1] 6 writ, injunction or decree of any court or governmental authority entered against it or by which any of its property is bound. 5.2 Disclaimer of Warranties. PARKMOBILE WARRANTS THAT THE SERVICES AND MATERIALS WILL CONFORM TO THE REQUIREMENTS OF THE AGREEMENT. ADDITIONALLY, PARKMOBILE WARRANTS THAT ALL SERVICES WILL BE PERFORMED IN A GOOD, WORKMAN -LIKE AND PROFESSIONAL MANNER. THE CLIENT'S ACCEPTANCE OF SERVICE OR MATERIALS PROVIDED BY PARKMOBILE WILL NOT RELIEVE PARKMOBILE FROM ITS OBLIGATIONS UNDER THIS WARRANTY. IF ANY MATERIALS OR SERVICES ARE OF A SUBSTANDARD OR UNSATISFACTORY MANNER AS DETRMINED BY THE CLIENT, PARKMOBILE, AT NO ADDITIONAL CHARGE TO CLIENT, WILL PROVIDE MATERIALS OR REDO SUCH SERVICES UNTIL IN ACCORDANCE WITH THIS AGREEMENT AND TO THE CLIENT'S REASONABLE SATISFACTION. UNLESS OTHERWISE AGREED, PARKMOBILE WARRANTS THAT MATERIALS WILL BE NEW, UNUSED, OF MOST CURRENT MANUFACTURE AND NOT DISCONTINUED, WILL BE FREE OF MATERIAL DEFECTS, WILL BE PROVIDED IN ACCORDANCE WITH MANUFACTURER'S STANDARD WARRANTY FOR AT LEAST ONE (1) YEAR UNLESS OTHERWISE SPECIFIED, AND WILL PERFORM IN ACCORDANCE WITH MANUFACTURER'S PUBLISHED SPECIFICATIONS. 5.3 Indemnification. (a) Indemnification by Parkmobile. Parkmobile shall indemnify, defend and hold harmless Client, its affiliates, their respective successors and assigns, and their respective officers, directors, employees, consultants, agents and representatives from any liability, damage, diminution in value, loss, cost, claim or expense that result from or arise out of: (i) the breach or inaccuracy of any of Parkmobile's representations or warranties in this Agreement; (ii) the breach of any of Parkmobile's covenants or agreements in this Agreement; (iii) any violations of Law by Parkmobile in performing its obligations in connection with this Agreement; or (iv) the negligent acts of Parkmobile, its employees, servants, or agents in any related to or in connection with its service under this Agreement. Each party shall be responsible for its own attorneys' fees and expenses. (b) Indemnification by Client. Client shall indemnify, defend and hold harmless Parkmobile, its affiliates, their respective successors and assigns, and their respective officers, directors, employees, consultants, agents and representatives from any liability, damage, diminution in value, loss, cost, claim or expense that result from or arise out of: (i) the breach or inaccuracy of any of Client's representations or warranties in this Agreement; (ii) the breach of any of Client's covenants or agreements in this Agreement; or (iii) any violations of Law or governmental rules or regulations by Client in performing its obligations in connection with this Agreement. Each party shall be responsible for its own attorneys' fees and expenses. Nothing contained herein shall be construed as a waiver of any immunity from or limitation of liability the Client may be entitled to under the doctrine of sovereign immunity or section 768.28, Florida Statutes. 5.4 Limitation of Liability. EACH PARTY HERETO AGREE THAT EACH OTHER PARTY SHALL NOT BE LIABLE TO SUCH PARTY OR ANYONE ACTING THROUGH SUCH PARTY UNDER ANY LEGAL THEORY(INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY) FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT. Notwithstanding the forgoing, the Client does not explicitly or impliedly waive its rights to the privileges, rights, immunities, or limitations of liability provided in Section 768.28, Florida Statutes, or any other statutory limitations provided for in Florida Statutes [A04 -00232 /165076/1] 7 ARTICLE 6 MISCELLANEOUS 6.1 Force Majeure. Neither party shall be liable for failure or delay in performance of its obligations under this Agreement to the extent such failure or delay is caused by an act of God, act of a public enemy, war or national emergency, rebellion, insurrection, riot, epidemic, quarantine restriction, fire, flood, explosion, storm, earthquake, interruption in the supply of electricity, power or energy, terrorist attack, labor dispute or disruption, or other event beyond the reasonable control of such party and without the fault of or negligence by such party (each, a "Force Majeure Event "). If a party's performance under this Agreement is affected by a Force Majeure Event, such party shall give prompt written notice of such event to the other party, stating the date and extent of such suspension and the cause thereof, and shall at all times use commercially reasonable efforts to mitigate the impact of the Force Majeure Event on its performance under this Agreement; provided, that such party shall take measures to overcome the condition that are consistent in all material respects with the measures taken in connection with such party's business. The parties shall promptly confer, in good faith, on what action may be taken to minimize the impact, on both parties, of such condition. In the event of a Force Majeure Event that affects either or both parties' ability to perform under this Agreement, the parties agree to cooperate in good faith to resume the affected services as soon as commercially possible to the extent commercially reasonable. 6.2 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person; (b) by any national overnight courier or other service providing evidence of delivery, or by registered or certified mail (postage prepaid, return receipt requested); or (c) by facsimile with a copy delivered the next business day by any overnight courier or other service providing evidence of delivery, to the respective parties at the following addresses: To Parkmobile: To Client: Parkmobile, LLC 3200 Galleria Parkway, Suite 100 Atlanta, Georgia 30339 Attention: Cherie Fuzzell Telephone: (404) 818 -9036 Facsimile: (770) 818 -9039 Email: Cherie .fuzzell @parkmobileglobal.com City of Clearwater Attention: Charles "Eric" Wilson — Parking System Manager — Engineering Department Telephone: 727 -562 -4774 email: Charles.wilson @myClearwater.com Fax: 727 -562 -4755 or to such other address (or fax number, if applicable) as the party to whom notice is given may have previously furnished to the others in writing in the manner set forth above (provided that notice of any change of address or fax number shall be effective only upon receipt thereof). 6.3 Independent Contractors. The parties are independent contractors under this Agreement, which shall not be construed to create any employment relationship, partnership, joint venture, franchisor - franchisee or agency relationship that did not already exist prior to the Effective Date, or to authorize any party to enter into any commitment or agreement binding on the other party except as expressly stated herein. The parties have no authority to make statements, warranties, or representations or to create any liabilities on behalf of the other. [A04 -00232 /165076/1] 8 6.4 Entire Agreement. This Agreement and the documents and schedules referred to herein contain the complete agreement between the parties hereto and supersede any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way; provided, however, that this provision is not intended to abrogate any other written agreement between the parties executed with or after this Agreement. 6.5 Amendment and Waiver. The parties hereto may not amend or modify this Agreement, except as may be agreed upon by a written instrument executed by the parties hereto. No waiver of any provision hereunder or any breach or default thereof shall extend to or affect in any way any other provision or prior or subsequent breach or default. 6.6 Successors and Assigns. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns, except that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by either party without the prior written consent of the other party. 6.7 Third -Party Beneficiaries. The parties to this Agreement do not intend this Agreement to benefit or create any right or cause of action in or on behalf of any person or entity other than Parkmobile and Client. 6.8 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 6.9 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. Venue for any dispute pertaining to this Agreement shall lie exclusively in Pinellas County, Florida. 6.10 Counterparts; Delivery. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. The parties agree that this Agreement may be executed and delivered by facsimile or other electronic transmission. (Signatures begin on following page) [A04 -00232 /165076/1] 9 IN WITNESS WHEREOF, the parties hereto, being duly empowered and authorized, have set their hands and seals this lie day of Mai , 2015. Signed, sealed and delivered In the presence of: WI ESS signature WAN teAOSA iA Type/Print Witness Name Type/Print Witness Name Countersigned: W Ce l'KIrd0S George N. Appro tekos, Mayor ed as to fo Camilo Soto Assistant City Attorney [A04 -00232 /165076/1] PARKMOBILE, LLC Cherie Fuzzell Title: CEO CITY OF CLEARWATER, FLORIDA, a Florida Municipal Corporation By: W;14441", William B. Horne, II, City Manager Attest: Rosemarie Call, City Clerk SCHEDULE 1 SERVICES Parkmobile offers a service to Client's parking customers ( "End Users ") that facilitates the activation and payment of parking transactions using mobile technology ( "Mobile Parking "). For use of the Mobile Parking service, an End User Fee per transaction as reflected in Schedule 3 is charged. Services shall be provided in accordance with Parkmobile's submission to RFP and attached hereto as Exhibit A. Parkmobile accepts several electronic payment methods from customers: a. Traditional credit card payments are accepted with Visa, MasterCard, Discover, & AMEX ( "Traditional Payments ") b. Emerging Payments ( "Emerging Payments "). Emerging payments represent the numerous alternative payment methods that have begun to hit the marketplace today. Mostly, these innovations involve the use of virtual account -based membership profiles that a customer can utilize to transact purchases based upon the member's individual payment preferences. Examples of emerging payments include PayPal, Parkmobile's Stored Value Wallet, the Google Wallet, ACH, MasterCard's globalVCard, the ISIS Wallet, and Visa checkout. End Users who are registered with Parkmobile can begin and, if applicable, end a parking transaction in a variety of ways: visiting the website of Parkmobile - www.parkmobile.com; calling an Intelligent Voice Response (IVR) 1 -800 Number, or using Parkmobile's mobile application. In order to register and begin a parking event, End Users simply provide the required information to create an account including credit card data and license plate number which is stored in a secure, PCI Level 1 compliant environment. Thereafter, subsequent parking visits only require the End User to enter or select the applicable parking duration options available for the location. The tariff code of the parking area is indicated on parking signs or on parking meters. Enforcers of the Client check the validity of parking status real time against the Parkmobile database via a web service offering, free of charge to the Client, to determine if a valid parking right exists. This service can be accessed by using a handheld terminal or PDA. The supply of handheld terminals (or PDA's) for enforcement and GSM cards for communication between the handheld terminals and the database and back - office systems are outside the scope of the Services. End Users will receive parking alert services via SMS, mobile app push notification or email. The End User will be notified, for example, when parked for an extended period of time or when the maximum parking time nears expiration. End Users can use Mobile Parking anywhere the Parkmobile mobile payment service is available. All parking charges are automatically charged to the credit card of the End User. End Users have real time access to an online account -based personal page accessible from www.parkmobile.com to check and print their parking history, receipts, and statements. [A04 -00232 /165076/1] SCHEDULE 2 SERVICE LEVELS 1. Operation, Management and Maintenance of the System (a) Parkmobile shall use its best efforts not to perform maintenance during business hours. In emergency cases, adjustments to the system may also take place during hours for paid parking. If necessary, Parkmobile may perform maintenance of the system during business hours, provided Parkmobile provides Client with at least twenty -four (24) hours advance notice before the start of the work. (b) Parkmobile makes a daily backup of data in the (local) database, which data are retained for three (3) months. 2. Security and Authorization Parkmobile shall protect and authenticate a limited number of representatives that shall have access to the system and confidential information. The parties shall respect and utilize security access codes. 3. Reports Parkmobile shall provide Client access to reports related to the Services via an Internet or other digital means in relation to parking history, active users and parking revenues. Parkmobile also shall provide Client with monthly reports through an Internet or other digital means regarding parking revenues. [A04 -00232 /165076/1] SCHEDULE 3 FEES End User Fees per transaction shall be charged to End Users in accordance with Parkmobile's submission to RFP and attached hereto as Exhibit A ( "End User Fee "). Traditional Payment Credit Card Fees/Merchant Processing/Other Third Party Fees: Parkmobile has been certified and can pass real time authorized debit/credit card transactions to the Client's current merchant services provider, Bank of America Merchant Services (BAMS), to fund all collections directly into Client's account. No gateway fees shall be required to be paid by Client as a result of this integration with BAMS. Should Client elect to pursue an alternative Merchant Service Provider in the future that has not certified Parkmobile, Parkmobile shall pass real time transactions via a gateway solution at an additional cost of $.05 per authorized transaction. In either scenario, the Client acts as the merchant of record (MOR) in the arrangement, covering all credit card processing costs. Parkmobile invoices the Client monthly to seek reimbursement from the Client for its End User Fee assessed on each Mobile Parking transaction. Emerging Payments Fees At a future date, during the Initial Term or a Renewal Term, Client may elect to offer Emerging Payments by providing written notice to Parkmobile. Should Client elect to offer Emerging Payments the following fees shall apply: Parkmobile shall collect parking revenues for each Emerging Payment transaction and pass the Emerging Parking Revenue to the Client in accordance with Parkmobile's standard settlement procedures. Transaction processing fees for Emerging Payments only are $.15 plus 3% of the parking fee ( "Transaction Processing Fee ") for each Emerging Payment. No other merchant processing or gateway fee will be charged to an Emerging Payment transaction by Client's payment processor, BAMS. As used herein, Emerging Revenue shall mean parking revenue generated by End Users less End User Fees charged by Parkmobile, Transaction Processing Fees and other third party fees if applicable. Other Terms and Conditions Parkmobile's End User Fee does not cover any merchant processing or other third party fees associated with the acceptance of Traditional Payments or Emerging Payments. If Client's merchant service provider changes to a provider other than BAMS or a merchant service provider that has not certified Parkmobile at any time during this Agreement, then Parkmobile reserves the right to pass through increases in third party transaction processing and related fees. The uses of mobile devices for enforcement as well as data plans are not part of this agreement. Cost for initial standard signage shall be in accordance with Exhibit A. The timeline and milestones for implementation to City shall be in accordance with Exhibit A. Cost of marketing shall be in accordance with Exhibit A — Part 2. Parkmobile reserves the right to increase End User Fees and additional service fees, only if written notice is provided to Client sixty (60) days prior to the end of the initial term.. Other development activities and additional services (listed below) for a fee at the request of and after written approval by Client as described below. [A04 -00232 /165076/1] Additional Services: 1. Non - Integrated Gateway Service 2. Additional Marketing/Advertising 3. Replacement Signage /Stickers 4. Additional Training 5. Self- Administration Service [A04 -00232 /165076/1]