HomeMy WebLinkAboutresolution.council.144-23RESOLUTION NO. 144
(Series of 2023)
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A
PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF ASPEN AND
PAYBYPHONE US INC. AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS the City of Aspen's goal is to expand our parking service to both tourists and
residents; and assure community alignment.
WHEREAS the City of Aspen seeks to provide a means for alternative payments to
parking via a PROFESSIONAL SERVICES AGREEMENT which is annexed hereto and
made a part thereof;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves the Professional Services
Agreement for consultant services, a copy of which is annexed hereto and incorporated
herein, and does hereby authorize the City Manager of the City of Aspen to execute said
agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the
1 Oth day of October 2023.
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Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a true
and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a
meeting held on the day hereinabove stated.
Nicole Henning, City Clerk
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CITY OF A PEN STANDARD FORM OF AGREEMENT CITY OFASPEN
PROFESSIONAL SERVICES
City of Aspen Contract No.: 2023-294
AGREEMENT made this 1st day of August, in the year 2023.
BETWEEN the City:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 920-5079
And the Professional:
PayByPhone US Inc.
c/o Robyn Alisat
robyn.alisat@paybyphone.com
For the Following Project:
Contract Amount:
Total— Based on per transaction rate
in Exhibit A, not to exceed $125,000.00
per year through 2029
If this Agreement requires the City to pay
an amount of money in excess of
$50,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
Ci Council A r val:
Date:
Resolution No.:
PayByPhone Mobile App for paid parking which currently is over 65% of Aspen's paid parking
transactions, including payments for downtown core, residential area and service vehicles. The
mobile app is part of Aspen's customer focused service that provides an easy alternative for
payment.
Exhibits appended and made a part of this Agreement:
Exhibit A — Parking Facilities and Metered Stalls Price Agreement
The City and Professional (collectively the parties) agree as set forth below.
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1. Scope of Work. Professional shall perform in a competent and professional manner the Scope
of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein.
2. Completion. Professional shall commence Work immediately upon receipt of a written Notice
to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is
consistent with professional skill and care and the orderly progress of the Work in a timely manner.
The parties anticipate that all Work pursuant to this Agreement shall be completed no later than .
Upon request of the City, Professional shall submit, for the City's approval, a schedule for the perfor-
mance of Professional's services which shall be adjusted as required as the project proceeds, and
which shall include allowances for periods of time required by the City's project engineer for review
and approval of submissions and for approvals of authorities having jurisdiction over the project. This
schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the
Professional.
3. Payment. In consideration of the work performed, City shall pay Professional on a time and
expense basis for all work performed. The hourly rates for work performed by Professional shall not
exceed those hourly rates set forth at Exhibit A appended hereto. Except as otherwise mutually agreed
to by the parties the payments made to Professional shall not initially exceed the amount set forth
above. Professional shall submit, in timely fashion, invoices for work performed. The City shall
review such invoices and, if they are considered incorrect or untimely, the City shall review the matter
with Professional within ten days from receipt of the Professional's bill.
4. Nan -Assignability. Both parties recognize that this Agreement is one for personal services
and cannot be transferred, assigned, or sublet by either party without prior written consent of the other.
Sub -Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or
obligations under this Agreement. Professional shall be and remain solely responsible to the City for
the acts, errors, omissions or neglect of any subcontractors' officers, agents and employees, each of
whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent
of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due
which may be due to any sub -contractor.
5. Termination of Procurement. The sale contemplated by this Agreement may be
canceled by the City prior to acceptance by the City whenever for any reason and in its sole
discretion the City shall determine that such cancellation is in its best interests and convenience.
6. Termination of Professional Services. The Professional or the City may terminate the
Professional Services component of this Agreement, without specifying the reason therefor, by
giving ninety (90) days written notice, in writing, addressed to the other party, specifying the
effective date of the termination. No fees shall be earned after the effective date of the termination.
Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps,
models, photographs, reports or other material prepared by the Professional pursuant to this
Agreement shall become the property of the City. Notwithstanding the above, Professional shall not
be relieved of any liability to the City for damages sustained by the City by virtue of any breach of
this Agreement by the Professional, and the City may withhold any payments to the Professional for
the purposes of set-off until such time as the exact amount of damages due the City from the
Professional may be determined.
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7. Independent Contractor Status. It is expressly acknowledged and understood by the parties
that nothing contained in this agreement shall result in, or be construed as establishing an employment
relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to
use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or
servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City.
City is interested only in the results obtained under this contract. The manner and means of
conducting the work are under the sole control ofProfessional. Nonc of the benefits provided by City
to its employees including, but not limited to, workers' compensation insurance and unemployment
insurance, are available from City to the employees, agents or servants of Professional. Professional
shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees,
servants and subcontractors during the performance of this contract. Professional shall indemnify
City against all liability and loss in connection with, and shall assume full responsibility for payment
of all federal, state and local taxes or contributions imposed or required under unemployment
insurance, social security and income tax law, with respect to Professional and/or Professional's
employees engaged in the performance of the services agreed to herein.
8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers,
employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on
account of injury, loss, or damage, including without limitation claims arising from bodily injury,
personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind
whatsoever, which arise out of or are in any manner connected with this contract, to the extent and
for an amount represented by the degree or percentage such injury, loss, or damage is caused in whole
or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission, error,
professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the
Professional, or any officer, employee, representative, or agent of the Professional or of any
subcontractor of the Professional, or which arises out of any workmen's compensation claim of any
employee of the Professional or of any employee of any subcontractor of the Professional. The
Professional agrees to investigate, handle, respond to, and to provide defense for and defend against,
any such liability, claims or demands at the sole expense of the Professional, or at the option of the
City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in
connection with, any such liability, claims, or demands. If it is determined by the final judgment of a
court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the
act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the
Professional for the portion of the judgment attributable to such act, omission, or other fault of the
City, its officers, or employees.
8.1 Limitation of Liabili . 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.
9. Intellectual Property Rights
9.1.1 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
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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.
9.1.2 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.
9.1.3 Each party reserves the right to approve in advance the use of its Intellectual Property by
the other party in each and every instance.
9.1.4 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.
9.1.5 The parties undertake that they have all necessary permissions, licenses and rights to use
the Intellectual Property of third pasties for the purposes of this Agreement.
9.1.6 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 ofwhatever
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 Parry'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 development
of the services requested by the Indemnified Party would result in an infringement of
Intellectual Property rights.
9.1.7 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.
9.1.8 At the Indemnifying Parry'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 Parry's costs and expenses so incurred.
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9.1.9 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.
9.2 Client Information
9.2.1 "City Data" means all data provided directly by the City to PayByPhone in relation to this
Agreement, including the City's parking rates, the City's identifiers for Parking Locations
and parking stalls, merchant account information, enforcement equipment and practices,
and parking policies.
9.2.2 During the term of this Agreement and for such time after as not expressly prohibited,
PayByPhone may obtain, store and use such City 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 City Data. PayByPhone shall retain exclusive ownership
of all rights in any derivative data it develops based on City Data.
9.2.3 Following termination of this Agreement, PayByPhone will, at City's written request,
return to City or destroy all City Data and copies thereof. Notwithstanding the foregoing,
PayByPhone shall be permitted to retain such copies of, or any computer records or files
containing, the City 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.
9.3 Customer Information
9.3.1 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 City for parking enforcement, fines, and proceedings
("Transaction Data'). Transaction Data may include vehicle license plate, parking session
date, time, duration, zone number and amount paid, details of parking fines/violation
notices, and parking session details obtained through customer service centre, and does
not include User Profile Data (defined below).
9.3.2 In using, sharing, or otherwise processing Transaction Data, PayByPhone and City 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,
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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 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.
9.3.3 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.
10 Confidentiality
Neither party will disclose the other parry'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 parry'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 10, 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
parry'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.
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11 Professionals -Insurance.
(a) Professional agrees to procure and maintain, at its own expense, a policy or policies
of insurance sufficient to insure against all liability, claims, demands, and other obligations
assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition
to any other insurance requirements imposed by this contract or by law. The Professional shall
not be relieved of any liability, claims, demands, or other obligations assumed pursuant to
Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its
failure to procure or maintain insurance in sufficient amounts, duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City.
All coverages shall be continuously maintained to cover all liability, claims, demands, and
other obligations assumed by the Professional pursuant to Section 8 above. In the case of any
claims -made policy, the necessary retroactive dates and extended reporting periods shall be
procured to maintain such continuous coverage.
(i) Worker's Compensation insurance to cover obligations imposed by applicable
laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance with minimum limits of ONE MIILLION DOLLARS
($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00)
disease - policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease - each
employee. Evidence of qualified self -insured status may be substituted for the
Worker's Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single
limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and TWO
MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to
all premises and operations. The policy shall include coverage for bodily injury, broad
form property damage (including completed operations), personal injury (including
coverage for contractual and employee acts), blanket contractual, independent
contractors, products, and completed operations. The policy shall include coverage
for explosion, collapse, and underground hazards. The policy shall contain a
severability of interests provision.
(iv) Professional Liability insurance with the minimum limits of ONE MILLION
DOLLARS ($1,000,000) each claim and TWO MILLION DOLLARS ($2,000,000)
aggregate-
(c) The policy or policies required above shall be endorsed to include the City and the City's
officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carried by or
provided through any insurance pool of the City, shall be excess and not contributory
insurance to that provided by Professional. No additional insured endorsement to the policy
required above shall contain any exclusion for bodily injury or property damage arising from
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completed operations. The Professional shall be solely responsible for any deductible losses
under any policy required above.
(d) The certificate of insurance provided to the City shall be completed by the Professional's
insurance agent as evidence that policies providing the required coverages, conditions, and
minimum limits are in full force and effect, and shall be reviewed and approved by the City
prior to commencement of the contract. No other form of certificate shall be used. The certifi-
cate shall identify this contract and shall provide that the coverages afforded under the policies
shall not be canceled, tenninated or materially changed until at least thirty (30) days prior
written notice has been given to the City.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of
contract upon which City may immediately terminate this contract, or at its discretion City
may procure or renew any such policy or any extended reporting period thereto and may pay
any and all premiums in connection therewith, and all monies so paid by City shall be repaid
by Professional to City upon demand, or City may offset the cost of the premiums against
monies due to Professional from City.
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently
$350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and
protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq.,
C.R.S., as from time to time amended, or otherwise available to City, its officers, or its.
employees.
12 Chy's Insurance. The parties hereto understand that the City is a member of the Colorado
Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper-
ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk
Management Department and are available to Professional for inspection during normal business
hours. City makes no representations whatsoever with respect to specific coverages offered by
CIRSA. City shall provide Professional reasonable notice of any changes in its membership or
participation in CIRSA.
13 Completeness of Agreement. It is expressly agreed that this agreement contains the entire
undertaking of the parties relevant to the subject matter thereof and there are no verbal or written
representations, agreements, warranties or promises pertaining to the project matter thereof not
expressly incorporated in this writing.
14 Notice. Any written notices as called for herein may be hand delivered or mailed by certified
mail return receipt requested to the respective persons and/or addresses listed above.
15 Non -Discrimination. No discrimination because of race, color, creed, sex, marital status,
affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion
shall be made in the employment of persons to perform services under this contract. Professional
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agrees to meet all of the requirements of City's municipal code, Section 15.04.570, pertaining to non-
discrimination in employment.
16 Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate
as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition
of this Agreement can be waived except by the written consent of the City, and forbearance or
indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant,
or condition to be performed by Professional to which the same may apply and, until complete
performance by Professional of said term, covenant or condition, the City shall be entitled to invoke
any remedy available to it under this Agreement or by law despite any such forbearance or indulgence.
17 Execution of Agreement ment by City. This Agreement shall be binding upon all parties hereto
and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein, this Agreement shall not be binding upon the City unless
duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence)
following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a
duly authorized official in his absence) to execute the same.
16. Warranties Against Contingent Fees Gratuities. Kickbacks and Conflicts of Interest.
(a) Professional warrants that no person or selling agency has been employed or retained
to solicit or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Professional for the purpose
of securing business.
(b) Professional agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(c) Professional represents that no official, officer, employee or representative of the
City during the term of this Agreement has or one (1) year thereafter shall have any interest,
direct or indirect, in this Agreement or the proceeds thereof, except those that may have
been disclosed at the time City Council approved the execution of this Agreement.
(d) In addition to other remedies it may have for breach of the prohibitions against
contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right
to:
1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Professional, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Professional; and
4. Recover such value from the offending parties.
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17. Fund Availability. Financial obligations of the City payable after the current fiscal year
are contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. If this Agreement contemplates the City utilizing state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
18. General Terms.
(a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions,
representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the parties.
In the event City 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.
(b) If any of the provisions of this Agreement sliall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
(c) The parties acknowledge and understand that there are no conditions or limitations to
this understanding except those as contained herein at the time of the execution hereof and
that after execution no alteration, change or modification shall be made except upon a writing
signed by the parties.
(d) This Agreement shall be governed by the laws of the State of Colorado as from time
to time in effect. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado.
19. Electronic Signatures and Electronic Records This Agreement and any amendments
hereto may be executed in several counterparts, each of which shall be deemed an original, and
all of which together shall constitute one agreement binding on the Parties, notwithstanding the
possible event that all Parties may not have signed the same counterpart. Furthermore, each Party
consents to the use of electronic signatures by either Party. The Scope of Work, and any other
documents requiring a signature hereunder, may be signed electronically in the maimer agreed to
by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement
solely because it is in electronic form or because an electronic record was used in its formation.
The Parties agree not to object to the admissibility of the Agreement in the form of an electronic
record, or a paper copy of an electronic documents, or a paper copy of a document bearing an
electronic signature, on the grounds that it is an electronic record or electronic signature or that it
is not in its original form or is not an original.
20. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the
benefit of and be binding upon the City and the Professional respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor
the Professional shall have the right to assign, transfer or sublet its interest or obligations
hereunder without the written consent of the other party.
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21. Third Parties. This Agreement does not and shall not be deemed or construed to confer upon
or grant to any third party or parties, except to parties to whom Professional or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Professional
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
22. Attorney's Fees. In the event that legal action is necessary to enforce any of the provisions
of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees.
23. Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual
efforts of the parties hereto and the parties agree that no construction shall be made or presumption
shall arise for or against either party based on any alleged unequal status of the parties in the
negotiation, review or drafting of the Agreement.
24. Certification Regarding Debarment Suspension. Ineligibility, and Voluntary Exclusion.
Professional certifies, by acceptance of this Agreement, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from
participation in any transaction with a Federal or State department or agency. It further certifies
that prior to submitting its Bid that it did include this clause without modification in all lower tier
transactions, solicitations, proposals, contracts and subcontracts. In the event that Professional or
any lower tier participant was unable to certify to the statement, an explanation was attached to
the Bid and was determined by the City to be satisfactory to the City.
25. 1nteuation and Modification. This written Agreement along with all Contract Documents
shall constitute the contract between the parties and supersedes or incorporates any prior written
and oral agreements of the parties. In addition, Professional understands that no City official or
employee, other than the Mayor and City Council acting as a body at a council meeting, has
authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the
City. Any such Agreement or modification to this Agreement must be in writing and be executed
by the parties hereto.
26. Authorized Representative. The undersigned representative of Professional, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Professional for the purposes of executing this Agreement and that he/she has
full and complete authority to enter into this Agreement for the terms and conditions specified
herein.
27. Force Maicure. If performance hereunder is prevented, restricted or interfered with by any
act or condition whatsoever beyond the reasonable control of a party, the party so affected, upon
giving prompt notice to the other party, shall be excused from such performance to the extent of
such prevention, restriction or interference.
28. Survival_ The confidentiality, intellectual property and indemnification obligations in this
Agreement and any other terms that by reasonable implication contemplate continued
performance, shall survive the expiry or termination of this Agreement.
Agreement Professional Services Page 10
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29. 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.
30, Severability
In the event that any provision of this Agreement shall be unenforceable or invalid under any
applicable law or be so held by applicable court decision, such unenforceability or invalidity
shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such
provision shall be changed and interpreted so as to best accomplish the objectives of such
unenforceable or invalid provision within the limits of applicable law or applicable court
decisions.
31. 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 hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement of which shall be deemed an original on the date first written
above.
CITY OF P9NyJZQORADO:
SArx G. ft
[Signature]
By: Sara G. Ott
[Name]
Title: city Manager
Date: 10/11/2023 1 9:50:17 PM PDT
Approve as to Form:
-Gocu Ski,, by:
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City Attonlc:y
PROFESSIONAL:
6octi81ynad hy;
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[Signature]
By: satyajit samra
[Name]
Title: President
Date:9/16/2023 1 7:21:12 AM MDT
Agreement Professional Services Page 11
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General Conditions and Special Conditions can be found on City
of Aspen Website.
Purchasing I Aspen, CO
Agreement Professional Services Page 12
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EXHIBIT A
SCOPE OF WORK
This Scope of Work (the “Scope of Work”) is entered into as of ______________________ (the “Effective Date”)
between 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 (“PayByPhone”) and City of Aspen, a provider
of parking services with its address at: 427 Rio Grande Place, Aspen, Colorado 81611 (“City”).
RECITALS
The objective between PayByPhone and City provided for in this Scope of Work is for PayByPhone to provide
wireless applications to enhance the payment process for parking at parking facilities and metered parking stalls owned
and/or managed by City, described in more detail in Appendix A (each address listed is a “Parking Location”).
PayByPhone mobile commerce solutions will also provide City with a management information system, including
real-time operation and transaction reports.
Section 1 THE PAYBYPHONE MOBILE PAYMENT PLATFORM AND APPLICATIONS
1.1 PAYBYPHONE MOBILE PAYMENT APPLICATION
PayByPhone agrees to roll out the PayByPhone mobile payment service for use at City’s managed and owned parking
facilities as agreed upon by PayByPhone and City, to allow for consumers to pay for the use of City’s parking facilities
through personal wireless devices (e.g., cellular telephones) or other wireless systems.
1.2 PAYBYPHONE MANAGEMENT INFORMATION SYSTEM
PayByPhone will operate and manage a software application for City that will provide near real time information and
management reports on the transactions conducted utilizing the PayByPhone mobile payment service (the “Portal”).
PayByPhone will host the Portal on its network. City will access the Portal through a browser-based program installed
on City’s computer hardware.
1.3 COMPUTER, NETWORKING AND TELECOMMUNICATION SYSTEMS
PayByPhone or its parent, PayByPhone Technologies Inc. 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 Scope of Work, other than City’s existing computer and telecommunications
systems.
1.4 MOBILE PAYMENT SERVICE ENFORCEMENT
City agrees to supply Wireless Devices to employees in the field to provide real time confirmat ion of validly parked
vehicles.
1.5 REPORTS
PayByPhone will provide City 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.
Section 2 FEES AND PAYMENTS
2.1 PRICING AND PAYMENT
City agrees to pay the fees, as outlined in Appendix A. All amounts payable hereunder are exclusive of any and all
taxes, including taxes applicable on fees paid by the consumer, and City is responsible for payment of such taxes. All
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prices are stated, and City shall pay, in US dollars. Payment is due within 30 days of invoicing. PayByPhone may,
acting reasonably, increase any fees outlined in Appendix A, not more often than once in a calendar year, for the
reasons of, but not limited to, adjusting for inflation and any increase in the cost of PayByPhone providing the services
to City.
2.2 MERCHANT ACCOUNT
Merchant account refers to City’s merchant account set up with City’s acquiring bank. PayByPhone will cover the
cost of linking one (1) City merchant account with PayByPhone’s gateway provider. City agrees to cover the cost of
merchant account updates including all third party fees and then-current PayByPhone professional services fees. See
https://www.paybyphone.com/pdf/us/pbp_professionalservicessamplerates.pdf for sample rates.
2.3 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 City invoice.
2.4 THIRD PARTY INTEGRATION
In the event that system changes (such as upgrades) by a third party impact the PayByPhone integration with City sub-
systems such as enforcement, City agrees to pay for all PayByPhone development costs required to maintain such
integration. PayByPhone will notify City, in advance, of any such integration costs that could be added .
Section 3 EXCLUSIVITY
The parties expressly acknowledge that City 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 Scope of Work.
Section 4 MARKETING, PROMOTION AND USER EDUCATION
4.1 SIGNAGE
City agrees to use the PayByPhone decals and signs already installed at the Parking Locations as of the Effective Date.
All additional and replacement signage is at City’s cost. City agrees to either use PayByPhone’s standard signage
template or ensure that its non-standard signage complies with all PayByPhone’s marketing and branding guidelines
(available on request). City shall not modify PayByPhone’s logos, fonts, colours, design, and other brand/marketing
related items without PayByPhone’s prior written consent and approval. In the event City requests that PayByPhone
produce non-standard signage for City, such customization work 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 fees.
City will be responsible for installation of all additional and replacement decals and signs at the Parking Locations.
4.2 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 City which is not to be unreasonably withheld.
4.3 CLIENT TRAINING
PayByPhone will provide initial training to City using a “Train the Trainer” (the “City Trainer”) model on the self-
served PayByPhone Service Management Interface (SMI). The said City 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.
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4.4 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. City 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 Scope of Work, the SMS Fee is equal to $0.25, inclusive of taxes payable by the user. PayByPhone will
provide City 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 Scope of Work PayByPhone is designated as the merchant of record for parking fees
paid using PayByPhone mobile payment service, PayByPhone and City agree to designate City as the merchant of
record for any SMS Fees only. In that case, City 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 City to PayByPhone under this Scope of Work.
Section 5 TERM AND TERMINATION
5.1 TERM AND RENEWAL
6.1.1 This Scope of Work shall enter into force on the Effective Date and shall remain in force and effect for a
period of five consecutive years (the “Initial Term”) from the date that the first end user Transaction is made through
the PayByPhone mobile payment service unless earlier terminated in accordance with this Section 6. PayByPhone
records will be conclusive evidence of the date of the first end user Transaction for the purposes of this section.
6.1.2 Upon the termination of the Initial Term, the Scope of Work will automatically renew for one (1) or more
additional terms of one (1) year each (each a “Renewal Term”), unless either party gives the other party at least ninety
(90) days prior written notice of its intent to not renew the Scope of Work before the end of the then-current Term.
The Initial Term and all Renewal Terms, if any, shall collectively be referred to as the “Term”.
5.2 TERMINATION
Should a party breach a material term and such breach remains uncorrected for thirty (30) days after receipt of a notice
by the breaching party, the non-breaching party may, in addition to all other remedies available at law, terminate this
Scope of Work by providing written notice to the breaching party, without further obligation provided, however, that
if the nature of the breach is such that it cannot be reasonably cured within such thirty (30) day period, the breaching
party will not be deemed in default of this Scope of Work so long as such party commences efforts to effect a cure
and is diligently pursuing such efforts. Provided, further, that if the breach is as a result of the non -payment of any
fee, the non-breaching party may terminate this Scope of Work if such breach remains uncorrected for ten (10) days
after the breaching party's receipt of notice of such breach.
Section 6 REPRESENTATIONS AND WARRANTIES, DISCLAIMER AND PARKING RATES
6.1 MUTUAL REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other that:
i) it has the full corporate right and authority, and possesses all licenses, permits, authorizations and
rights to intellectual property, necessary to enter into and perform this Scope of Work;
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ii) its entry into and performance of this Scope of Work do not and will not conflict with or result in a
breach or violation of any Scope of Work or order by which it is bound; and
iii) this Scope of Work constitutes its legal, valid and binding obligations enforceable against it in
accordance with the terms of this Scope of Work.
6.2 DISCLAIMER
Except as expressly set forth in this Scope of Work, 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, merchantabilit y, fitness for a particular purpose or non-infringement. City
acknowledges that the PayByPhone mobile payment services and services furnished by PayByPhone under this Scope
of Work (including, without limitation, any servers 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 Scope of Work) are provided by PayByPhone “as is”.
6.3 PARKING RATES
City 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 City’s responsibility to ensure all rates are configured correctly. Failing to do so shall
exclude PayByPhone from any liability. City shall implement any parking rate changes via the Portal following the
Parking Location setup. In the event City requests that PayByPhone configure the parking rate changes after the
Parking Location setup, City shall provide PayByPhone with sufficient notice of the rate changes and such work 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 fees.
or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
IN WITNESS WHEREOF, the parties have caused this Scope of Work to be executed by their duly authorized
representatives.
City of Aspen PayByPhone US Inc.
Signature: _____________________________ Signature: ____________________________
Name: _______________________________ Name: _______________________________
Title: ________________________________ Title: ________________________________
Notice Address:
427 Rio Grande Place
Aspen, Colorado 81611
US
Notice Address:
c/o PayByPhone Technologies Inc.
600-1290 Homer Street
6th Floor
Vancouver, BC V6B 2Y5
Canada
With a copy to: legal@paybyphone.com
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9/16/2023 | 7:21:12 AM MDT
Satyajit Samra
President
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Sara G. Ott
City Manager
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APPENDIX A
PARKING FACILITIES AND METERED PARKING STALLS:
Parking facility located at [address] including [number] of parking spaces.
Parking facility located at [address] including [number] of parking spaces.
(together, “Initial Parking Locations”).
PRICING:
All amounts are exclusive of any and all taxes, including taxes applicable on fees paid by d river.
For the purposes of this Scope of Work “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 City 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 o r an acquirer, if applicable.
ITEM PRICE
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 Scope of
Work Included
Mobile payment services setup fee for all Initial Parking Locations $1,5001
Integration with enforcement solution software TBD
Standard PayByPhone city dynamic label Included
TRANSACTION FEES
City pays to PayByPhone per Transaction
(City may charge driver a non-embedded, on-top of price of parking convenience fee of
$0.40)
$0.402
Monthly minimum of total Transaction Fees $250/mo.3
OPTIONAL FEES
Custom dynamic label $1,000
Mobile payment service setup fee for Additional Parking Locations $250 per location
NOTES:
1. Mobile payment services setup fee includes configuration, testing and implementation of a dedicated City account within the PayByPhone
system; merchant account integration and testing; set up and training on reporting, customer service and other elements of the PayByPhone
Service Management Interface. One-time setup fees are invoiced at contract signing.
2. Any change in the convenience fee will not affect the price the City will pay to PayByPhone per Transaction. The convenience fee may only
be increased by mutual Scope of Work of both parties. Services covered by the Transaction Fee do include interactive voice response solution
(IVR).
3. Monthly minimum will apply when Transaction Fees per calendar month total less than the specified monthly minimum. City is responsible
for covering the difference between the monthly minimum and the Transaction Fees.
4. IVR additional per transaction fee applies to all Transactions, including without limitation, Transactions made through the PayByPhone
mobile application, web application, and/or IVR.
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5. City is responsible for paying all Transactions Fees and any IVR additional per transaction fees for all Transactions made through the
PayByPhone mobile application, web application, and/or IVR (if applicable).
6. City is responsible for paying its own credit card processing and merchant banking fees, if City is MOR.
7. In the event that PayByPhone is the only form of payment, City will be responsible for 100% of the call centre fees as a pass through.
8. All fees and charges are payable within 30 days of invoicing.
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