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HomeMy WebLinkAboutBack-Up DocumentsPROFESSIONAL SERVICES AGREEMENT By and Between The CITY of Miami, Florida And Contractor This Professional Services Agreement ("Agreement") is entered into this day of , 2020 by and between the City of Miami, a municipal corporation of the State of Florida, whose address is 444 S.W. 2nd Avenue, 10th Floor, Miami, Florida 33130 ("CITY"), and, IKE Smart City, LLC, a corporation whose principal address is 250 N Hartford Ave. Columbus, OH 43222, hereinafter referred to as the ("Contractor"). BACKGROUND INFORMATION A. The Contractor is engaged in the development, installation, operation and maintenance of interactive wayfinding platforms, including IKE Kiosks (as hereinafter defined). B. The CITY and the Contractor desire to coordinate efforts to implement the deployment of IKE Kiosks within the CITY, in and on the Locations (as hereinafter defined), all in accordance with the terms set forth in this Agreement. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, CITY and Contractor hereby agree as follows: 1. Incorporation of Background Information. The foregoing background information is hereby incorporated and made a part of this Agreement. 2. Definitions. a. "CITY" means the CITY of Miami. b. "CITY Locations" means Locations situated on property located within the right -of- way or otherwise on property owned or leased by the CITY. c. "Contractor Intellectual Property" or "(Contractor-IP)' means the Contractor's patents, registered designs and trademarks, together with applications therefor and copyrights of any kind. d. "Confidential Information of the Contractor" means data and information of the Contractor that is disclosed to the CITY of Miami in anticipation of or pursuant to this agreement, which is clearly labeled "Confidential," and any law that requires confidentiality of said information shall be asserted by the Contractor. The Florida Sunshine law as set forth in Chapter 119 of Florida Statutes, as amended, mandates public access to certain public records. However, information disclosed pursuant to this agreement may contain technical, financial background or other data, public disclosure of which would cause substantial injury to the Contractor's competitive position or disclosure of which would cause substantial injury to the Contractor's competitive position or constitute a trade secret. If the Contractor has a good faith belief that information it discloses to the CITY is protected under the Florida Sunshine law, it shall clearly identify the information in bold face at the top of each page of any document IKE Smart CITY, LLC believes that the Information is protected from disclosure under the Florida Sunshine law. The CITY assumes no liability for disclosure of information so identified, provided the CITY has made a good faith legal determination that the information is not protected from disclosure under applicable law or is required to comply with an order or judgment of account of competent jurisdiction. e. "Data" means all information derived from IKE Kiosk usage including traffic, pedestrian counts, usage information, survey information, police notifications, PII and any other information collected by the IKE Kiosks at the time of installation or anytime thereafter, including information collected from cameras. Data also means all information derived from CITY and other sources consumed and presented by IKE Kiosks which may or may not be the intellectual property of the CITY or other third party. f. "Defaced Damage" means cosmetic damage to an IKE Kiosk that does not include physical damage to the kiosk such as graffiti. g. "Depreciation Costs" means, for the purposes of this Agreement, ten (10) years straight line on IKE Kiosk related equipment placed in service, inclusive of costs associated with the Installation Work. h. "Directed Content" means any and all content provided to Contractor by CITY for display on IKE Kiosks or created by the Contractor at the direction of CITY including any content on which CITY-IP may appear. Directed Content specifically excludes custom application development. "Fiscal Quarter" means the periods between and including (i) January through March 31st , (ii) April 1st through June 30th , (iii) July 1st through September 30th and (iv) October 1st through December 31st st 1 j. "Sunshine laws" means Section 119 of the Florida Statutes, applicable to any public request requiring certain records or documents to be open or available to the public, or otherwise known as "Sunshine Law". k. "Gross Revenue" means the total revenue earned by the Contractor in connection with the sale of advertisements on the IKE Kiosks on CITY Locations. "IKE Kiosks" means the interactive media kiosks operated by the Contractor for the purpose of displaying digital content, and which may provide, without limitation, those services and applications as set forth on Exhibit B. The IKE Kiosks are referred to individually as an "IKE Kiosk". m. "Installation Work" means all work performed by the Contractor to install an IKE Kiosk at a Location, including any and all work necessary to bring electrical service or fiber optic cable to that Location. n. "Interactive Mode" means the condition of an IKE Kiosk during any period in which a user is actively engaging the IKE Kiosk. o. "Locations" means collectively those locations on which the IKE Kiosks may be installed by Contractor, subject to change as set forth in this Agreement. The Locations are referred to individually as a "Location". p. Kiosk. "Malicious Damaae" means the deliberate physical damage to an IKE q. "Operational Date" means the date on which any one IKE Kiosk is installed and capable of carrying advertisements and performing the functions and services set forth in this Agreement. r. "Passive Mode" means the condition of an IKE Kiosk during any period in which no users are actively engaging the IKE Kiosk. s. "Revenue Share" means the amount paid by the Contractor to CITY for the ability to use encroachment, special use, or other permit granted to it by the CITY for the placement of IKE Kiosks; CITY's partnership in content development for IKE Kiosks; and CITY's advice on locations where IKE Kiosks shall be placed, as set forth on Exhibit A. t. "Required Approvals" means any and all governmental approvals, permits, franchise agreements and entitlements the CITY, the Contractor, or CITY deems necessary for the installation and operation of IKE Kiosks. u. "Software" means any and all software used in the operation of the IKE Kiosks. v. "Spot" means a discrete unit of time during Passive Mode when content may be displayed on IKE Kiosk screens. w. "CITY -IP" means the CITY's patents, registered designs and trademarks, together with applications therefor and copyrights of any kind. x. "Term" means the period in which the Contractor may install and operate the IKE Kiosks, as set forth on Exhibit A. y. "Utility Assistance" means working with local power and data providers and other local entities to: (a) minimize or eliminate connection fees ; (b) facilitate connection to existing public or private power infrastructure, such as festival lights, traffic lights, street lights, vehicle charging stations, kiosks, or spare or unused circuits, wires, or conduits; (c) allow and/or minimize the need for new trenching, long power runs and street closures subject to Required Approvals; (d) assist with identifying local general contractors and private utility consultants and obtaining access to infrastructure plans or drawings; (e) assist with identifying and obtaining all relevant permits; and (f) assist by providing a public works representative as needed who is knowledgeable on rights- of -way projects with electrical and data infrastructure and who can provide insight on previous projects involving power or data acquisition who can coordinate street and sidewalk work as needed and provide support to construction personnel. 3. Grant of Rights. The parties agree that all applications for permits and other Required Approvals shall be submitted by the Contractor. CITY is not responsible for the submission or approval of permits or obtaining any Required Approvals. 4. Deolovment. Prior to the submission of the applications for the Required Approvals, CITY and the City's Director of Resilience and Public Works Department shall meet with the Contractor to discuss the number and specific sites for the Locations and the development of a deployment schedule for the IKE Kiosks. Upon agreement, the Contractor shall apply for all Required Approvals. CITY, the City's Director of Resilience and Public Works Department and the Contractor shall agree upon all deployment schedules and Locations promptly following the execution of this Agreement. Installation may begin immediately following obtaining all Required Approvals. CITY and the Contractor acknowledge and agree that some of the Locations shall include sites within underserved neighborhoods within the City, as agreed upon in connection with the deployment schedule. If there are more than fifty (50) Locations for deployment, the Contractor agrees that up to twenty percent (20%) of the total Locations where IKE Kiosks are deployed may be in underserved areas as identified by CITY. If there are fifty (50) or fewer Locations, the Contractor agrees that at least ten percent (10%) of the total Locations where IKE Kiosks are deployed may be in underserved areas as identified by CITY. 5. Term. The Term of this Agreement, and the rights and obligations of the parties set forth herein, shall begin on the Effective Date and continue for the period set forth on the attached Exhibit A. 6. Revenue Share. From and after the Operational Date for each IKE Kiosk and through the end of the Term, the Contractor shall pay to CITY the Revenue Share in accordance with the terms set forth on the attached Exhibit A. All payments of the Revenue Share shall be made at CITY's address as set forth in Section 25 of this Agreement, or at such other address as may be designated by CITY. 7. Reauired ADDrovals. The Contractor shall bear all costs and expenses associated with obtaining any and all Required Approvals. The Contractor shall submit applications for the Required Approvals to the appropriate CITY Departments to obtain the right to encroach in the public Right of Way for the term of this agreement on or before December 31, 2019 (the "Application Date"), subject to extension as set forth herein. If the Contractor fails to submit the applications by the Application Date, CITY may terminate this Agreement by written notice to Contractor, which written notice must be received by the Contractor within thirty (30) days after the Application Date, as extended hereby, for the termination to be effective. Additionally, the Application Date shall be extended on a day for day basis for each day the Contractor is delayed in submitting its applications due to a "Delay Event". The term "Delay Event" shall refer to delays attributable to any of the following: (a) delays in obtaining a utility provider's cooperation in identifying locations for power to ensure relatively short connection lines and establishing reasonable connection fees; (b) failure of the parties to timely identify Locations pursuant to Section 4, above. The Contractor shall promptly notify CITY in writing of any delays attributable to a Delay Event but in any event within ten (10) days of a Delay Event. 8. Installation Work. Upon receipt of the CITY's approval of the Plans and issuance of all Required Approvals, the Contractor shall work diligently to install the IKE Kiosks in accordance with an installation schedule prepared by the Contractor agreed to by CITY. All Installation Work shall be paid for by the Contractor. The Contractor shall perform the Installation Work in a good and workmanlike manner and in compliance with all applicable laws, regulations and rules as well as the Required Approvals. 0 I0058.0003\5072902.1 9. Utility Services. The Contractor shall pay all costs associated with bringing utility services and telecommunications services to each Location, including any and all costs associated with negotiating and obtaining access rights across private property in connection with the same. 10. Confidentialit a. The Contractor, and the CITY, each acknowledge that they have agreed to take all reasonable precautions and actions: (a) to hold all Confidential Information of the parties in confidence, unless disclosure is required by applicable law; and (b) to provide the Confidential Information of a disclosing party only to the receiving party's director's, officers, employees and agents who are directly concerned with the activities and who have agreed to keep the disclosing party's Confidential Information in confidence under confidentiality terms at least as strict as those allowed by law. Further, each Party agrees to: (i) advise its directors, employees and agents of the proprietary nature of the Confidential Information and the terms and conditions of this agreement; and (ii) use all reasonable safeguards to prevent the unauthorized use or disclosure of Confidential Information. The Contractor, and CITY agree to promptly notify the others upon any breach of confidentiality by such party or any of its agents, and to take all reasonable steps to minimize the effect of such breach. The Contractor and CITY agree not to use any Confidential Information except as expressly agreed. b. The provisions of Section 12(a) will not apply to any information of the disclosing Party that: (i) is known by the receiving Party prior to the advent of consideration of a relationship with the other Party as shown through the receiving Party's written records; (ii) is generally known and available in the public domain or becomes part of the public domain through no fault of the receiving Party; (iii) is rightfully received by the receiving Party without restriction from a third party that is under no obligation of confidentiality to the disclosing Party as shown in the receiving Party's written records; or (iv) was independently developed by or for the receiving Party by persons without access to any Confidential Information of the disclosing Party as can be properly documented in the receiving Party's written records. In addition, if the receiving Party is required to disclose Confidential Information of the disclosing Party to a court or other government body of competent jurisdiction, the receiving party shall provide written notice to the disclosing party that such disclosure is required and the receiving party shall limit its disclosure to that which the receiving party is advised by its counsel it is legally required disclose, and the receiving party shall not interfere with the disclosing party's efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information. 11. Intellectual Proaerty. CITY acknowledges that the Contractor and/or certain other parties with whom the Contractor has licenses (collectively, "Contractor Licensors") own, license and/or distribute certain inventions, discoveries, processes, know-how, trade secrets, copyrights, improvements and other intellectual property, which are owned by, or have been developed by, the Contractor or the Contractor's licensors (the "Contractor-IP"). CITY and the Contractor agree that the Contractor or Contractor's licensors, as the case may be, are and at all times shall remain the sole and exclusive owners of Contractor- IP, whether or not any such Contractor-IP is specifically adapted by the Contractor in connection with the Contractor contributions. CITY and the Contractor further agree that any improvements or modifications to Contractor-IP which are used, improved, modified, or developed by the Contractor or CITY (solely or jointly) and do not include or utilize CITY's Confidential Information (the "Contractor-IP Improvements") are and at all times shall remain the sole and exclusive property of the Contractor or the Contractor's licensors, as the case may be, and, to the extent CITY may otherwise claim an ownership interest therein, are hereby assigned to the Contractor or the Contractor's licensors, as applicable. For avoidance of doubt, all IP not specified or claimed by CITY is owned by the Contractor and shall be included in the definition of Contractor- IP. CITY represents and warrants that it owns, licenses or otherwise has the legal right to provide to the Contractor the CITY-IP. CITY and the Contractor agree that the CITY is the sole and exclusive owner of CITY-IP. CITY and the Contractor further agree that any electronic conversions or other improvements or modifications to CITY-IP that are developed by the Contractor (solely or jointly) as a result of this agreement and do not include or utilize the Contractor's Confidential Information or the Contractor-IP (the "CITY-IP Improvements") are and at all times shall remain the sole and exclusive property of CITY, and, to the extent the Contractor may otherwise claim an ownership interest therein, are hereby assigned to CITY. Subject to the terms and conditions of this agreement, CITY grants to the Contractor a non-exclusive license to permit the Contractor to use CITY-IP and CITY-IP Improvements in connection with the IKE Kiosks. 12. Advertisements. Contractor will use commercially reasonable efforts to fill Spots not dedicated to Directed Content with paid advertisements ("Advertising Spots"). If any Advertising Spots remain unsold by the time that such Advertising Spots are scheduled to be shown on the IKE Kiosk screen, the CITY may elect to have Directed Content appear during such Advertising Spot, at no cost to CITY. CITY shall make such election by providing to the Contractor, at the beginning of each month of the Term, written notice as to whether CITY desires any and how many unsold Advertising Spots for that month and shall provide to the Contractor the Directed Content that should be used during such unsold Advertising Spots. During each month of the Term, as and when there are unsold Advertising Spots and if such election is made by CITY, the Contractor shall display the provided Directed Content during such unsold Advertising Spots. 13. Covenants of the Contractor. a. Repair and Maintenance. The Contractor shall maintain the IKE Kiosks in good and operable condition, reasonable wear and tear excepted. The Contractor shall begin all work necessary to repair any damage to the IKE Kiosks within twenty- four (24) hours or within twenty- four (24) hours after receipt of written or e-mail notice of the need for such repairs and shall provide the City's Director of Resilience and Public Works Departmentor other CITY designee with a status of update within twenty- four (24) hours after beginning such work. If the repair does not require a replacement of the IKE Kiosk, the Contractor shall use best efforts to complete the same within three (3) business days after beginning such work. If the repair requires a replacement of the IKE Kiosk, the Contractor shall: (a) remove the IKE Kiosk within five (5) business days and cap any utility connections to make the Location safe for pedestrians; and (b) use best efforts to complete the replacement work within forty-five (45) days after beginning such work. In either event, the Contractor shall perform such repair and replacement work as reasonably necessary throughout the Term to ensure the IKE Kiosks are capable of operating for their intended purposes. No failure to complete repairs within a specific time period shall constitute a default on behalf of Contractor so long as the Contractor is diligently pursuing repair of the IKE Kiosk and providing weekly status updates to the City's Director of Resilience and Public Works Departmentor other CITY designee. The Contractor shall employ standard operating procedures with respect to the IKE Kiosks that includes (i) daily visits to each IKE Kiosk to ensure the IKE Kiosks are maintained in a clean manner and to remove any Defaced Damage thereon, with the understanding that the Contractor shall only be required to perform any work necessary to clean or remove Defaced Damage no more than five (5) days per calendar week and the Contractor shall have no obligation' to check or clean the IKE Kiosks on nationally recognized holidays or during inclement weather, and (ii) electronic monitoring seven days per week. The Contractor shall engage one or more small or minority -owned business(es) located within the City to perform the above -required maintenance work on the IKE Kiosks, provided such a business is available and qualified to perform these requirements and does so in a manner satisfactory to the Contractor in its sole, but reasonable discretion. If no such business exists within the City or if any such business does exist but does not perform as required, the Contractor may engage any business of its choosing. The Contractor may at its sole discretion permanently remove an IKE Kiosk from a Location after five (5) incidents of Defaced Damage or after the third (3) incidents of Malicious Damage and such removal shall not be considered afailure to maintain or perform, breach of this agreement, or breach of agreed upon deployment plans. b. Performance Requirements. The Contractor shall ensure that each IKE Kiosk and the applications thereon are functional and available for use for their intended purposes at least 95% of the time that such IKE Kiosk is installed and operational at a Location, not including downtime associated with maintenance or upgrades. Additionally, the Contractor shall ensure that the emergency features on each IKE Kiosk are functional and available for use at least 99% of the time that such IKE Kiosk is installed and operational at a Location, not including downtime associated with maintenance or upgrades. During any scheduled maintenance or upgrades to the Software or other components of the IKE Kiosks, the screens on the IKE Kiosks shall display a message notifying users that the IKE Kiosk is temporarily unavailable for use due to maintenance or upgrades. The Contractor shall not permit any flashing lights or flashing text on the user interface of the IKE Kiosks. Each IKE Kiosk shall contain text on all sides of the external cabinetry identifying it as an emergency device along with a pulsing blue light located on the top of and/or on the IKE Kiosk screen and visible from all directions at a distance of at least 200 feet from the IKE Kiosk Location. Each IKE Kiosk shall contain text on two (2) sides identifying it as a CITY information device. c. Compliance with Laws. This Agreement and all acts and transactions pursuant hereto and the rights of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Florida. Each of the parties to this Agreement consent to the exclusive jurisdiction and venue of the courts of Miami -Dade County, Florida; any and all disputes arising under the terms of this Agreement must be resolved exclusively in the courts located within Miami -Dade County, FL. d. CITY Content. As and when requested by CITY, the Contractor shall meet with CITY to discuss the development of Directed Content for the IKE Kiosks. Directed Content shall appear on the IKE Kiosks during the Interactive Mode and Passive Mode in the frequencies and amounts as set forth on Exhibit A. All such Directed Content must comply the terms of this Agreement, including Exhibit C, and if any such content violates this Agreement or Exltibi.t C, the Contractor may remove the violating content and notify CITY thereof. e. Advertisina Content. Restrictions on advertising content are set forth in Exhibit C. attached hereto and incorporated herein. Transitions between advertisements shall be limited to either fade or swipe transitions. The Contractor shall comply with all applicable laws and/or regulations in its display of advertisements on the IKE Kiosks. f. Liens. The Contractor shall be responsible for the satisfaction or payment of any liens for any provider of work, labor, material or services claiming by, through or under the Contractor. The Contractor shall also indemnify, hold harmless and defend the CITY and CITY against any such liens, including the reasonable fees of attorneys. Such liens shall be discharged by the Contractor within thirty (30) days after notice of filing thereof by bonding, payment or otherwise, provided that the Contractor may contest, in good faith and by appropriate proceedings, any such liens. g. Design Requirements and Accessibility. The Contractor shall ensure that the design of the IKE Kiosks complies with the applicable provisions of the Americans with Disabilities Act Accessibility Guidelines. Specifically, the IKE Kiosks shall include accessibility touch functioning that enables the operative section of the touch screens to lower for use by someone in a wheelchair and high contrast and large letter mode to assist individuals with visual impairments. The Contractor shall implement all reasonable accessibility features identified by the CITY. In the event that an accessibility feature cannot be implemented on the current version of a deployed IKE Kiosk the Contractor shall make a reasonable effort to implement the feature as part of the following IKE Kiosk upgrade. In the event that a requested accessibility feature cannot be implemented by the Contractor, the Contractor shall provide a written explanation of why the accessibility feature cannot be implemented and/or is not reasonable. h. Research and Development. The Contractor agrees to implement an exclusive research and development pilot arrangement with CITY in coordination and collaboration with the City's Director of Resilience and Public Works Department wherein CITY will make a good faith effort to assist with identifying a minimum of three (3) locations where the Contractor can pilot new Kiosks or upgrades as part of the Contractor's product development and pilot efforts. The Contractor agrees that the City will be the first market in which new capabilities deemed useful by the City will be deployed. i. Privacy and Security. 1. End User Data: PII. For the purposes of this Agreement, "End User" means a member of the general public utilizing the IKE Kiosks and/or Software at a Location. "PII" means personally identifiable information of an individual as such term is defined by applicable federal law. 2. Privacy. Contractor shall fully comply with the terms of its published Privacy Policy. Notwithstanding the Privacy Policy as stated in Exhibit D, all provisions of this Agreement shall remain in effect, unless amended by the mutual written agreement of the Parties, and this Agreement shall control in the event of any conflict with the Privacy Policy. The Contractor shall notify CITY in writing of any changes to the Contractor's Privacy Policy at least thirty (30) days prior to implementing any changes and work with CITY via the City's Director of Resilience and Public Works Department to overcome any concerns or issues associated with the changes. CITY acknowledges and agrees that the Contractor may use or otherwise disclose aggregated or anonymized Data of End Users to any third party as the Contractor determines is reasonably necessary to facilitate or enhance the use of the services offered by the IKE Kiosks or to create additional services or features for the IKE Kiosks or as requested by CITY, in connection with the improvement, enhancement, development or deployment of City services or public safety. 14. Covenants of CITY. a. Directed Content. From and after the date on which the IKE Kiosks are installed at the Locations, CITY shall work with the Contractor in good faith to create Directed Content for the IKE Kiosks. CITY shall promptly and thoroughly provide information requested by and answer any and all questions from, the Contractor regarding the development of any Directed Content. CITY via the City's Director of Resilience and Public Works Department or equivalent shall promptly respond to any requests for approval of Directed Content and shall communicate any objections to such content clearly and in writing. If the Directed Content contains any third -party advertising, such advertising is subject to the reasonable approval of the Contractor and shall not, conflict with the content restrictions and other terms set forth in this Agreement. Additionally, CITY shall not sell any rights to the Directed Content or Spots allocated to the CITY Directed Content hereunder. 15. Property Ownership. CITY acknowledges that the IKE Kiosks, the Software, including any enhancements thereto regardless which party generated the enhancements, the Contractor IP and any intellectual property rights in and to any of the content created by the Contractor and displayed thereon, including Directed Content shall belong to the Contractor. Notwithstanding the foregoing, the Contractor acknowledges that any CITY-IP shall belong to the CITY, as applicable, and except for the manner in which such CITY-IP is used in conjunction with the Software and IKE Kiosks, no CITY-IP shall become or be deemed the property of Contractor. Each party shall do all such acts and things as the other party may reasonably require for the purpose of preserving or perfecting the foregoing. CITY shall promptly notify the Contractor and the Contractor shall promptly notify CITY of any infringement or unauthorized use of the IKE Kiosks, the Software, any Contractor IP or any content created for the IKE Kiosks, including Directed Content, of which it becomes aware and will cooperate fully to take all actions necessary to terminate such infringing or unauthorized use. The Contractor and CITY agree, at their sole cost and expense, to take all actions necessary to maintain ownership of their respective logos, trademarks and other marks during the Term. 16. Insurance. The Contractor shall obtain and keep in full force and effect, at its sole cost and expense, comprehensive general liability and property damage insurance against claims for bodily injury, disease, illness or death and for injury to or destruction of property arising from the Contractor's use of Locations. Such insurance to afford protection to a limit of not less than Three Million and 00/100 Dollars ($3,000,000.00) with respect to bodily injury, disease, illness or death suffered by any one person and with respect to damage to or destruction of property arising out of any one accident. Each policy or policies of insurance shall name the Contractor as insured and the CITY and the CITY as additional insureds, as their interests may appear. The Contractor shall deliver certificates of insurance, and such other evidence of continued insurance coverage in accordance with this Section prior to commencing any Installation Work or other work at the Locations to the CITY. All insurance policies of the Contractor required by this Agreement shall be taken out with insurers with an A.M. Best Rating or its equivalent of A-VIII or better. Upon request, the Contractor shall promptly deliver copies of such insurance policies, or certificates of insurance evidencing that the Contractor is maintaining the insurance coverages required by this Agreement. 17. Indemnification. Contractor shall indemnify, hold/save harmless, and defend at its own cost and expense, CITY, its agencies and instrumentalities such as its elected and appointed officials, agents, servants and employees from and against any claim, demand or cause of action (in this Section collectively referred to as the "CITY") of whatsoever kind or nature arising out of the intentional misconduct, negligence, or gross negligence of Contractor, its agents, servants or employees in the performance of its obligations pursuant to this Contract, a third party claim that the Services or any component thereof infringes or violates any intellectual property right of any person, and/or of Contractor's failure to comply with any applicable federal, state, county or CITY law, code, rule or regulation applicable to Contractor's responsibilities under this Contract including, without limitation, Consumer, Debtor/ Creditor, Credit Reporting and/or Mortgage Laws, or all other applicable Laws, Codes, Statutes, Rules or Regulations. This indemnity, hold harmless and duty to defend is equally applicable to for all costs, losses and expenses, including but not limited to, damages to persons or property, judgments, reasonable attorney's fees, paralegal expenses, and court costs at both the administrative, regulatory, trial and appellate levels arising out of or in connection with the operations permitted under this Contract. The parties understand and agree that the covenants and representations relating to this indemnification provision shall serve the term of this Contract and continue in full force and effect as to the Contractor responsibility to indemnify, hold harmless and defend the CITY, will survive the cancellation or expiration of the Contract, as referenced above, as applicable. Contractor will indemnify, defend, and hold CITY, harmless for any negligent acts of Contractor or for any violation of any intellectual property laws, intellectual property rights, contracts or, rules, regulations, or statutes. 18. Representations and Warranties of CITY. CITY represents and warrants to the Contractor the following: a. Requisite Authority. CITY has the requisite power and authority to enter into this Agreement, to grant the rights herein granted with respect to the Locations subject to CITY approval as may be required, to perform its obligations hereunder and to consummate the transactions contemplated hereby; and no further action on the part of CITY is necessary to authorize the execution and delivery by it, and the performance of its obligations under this Agreement. CITY is not aware of any action, waiver or consent by any governmental entity that is necessary to make this Agreement a valid instrument binding upon CITY in accordance with its terms. b. Execution and Delivery. CITY has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding obligation of CITY, enforceable in accordance with its terms. c. No Violation: Absence of Defaults. Neither the execution and delivery by CITY of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any agreement or other instrument to which CITY is a party, or result in a breach of, or constitute (with due notice or lapse of time or both) a default under any such agreement or other instrument, or (ii) violate any law, administrative regulation or rule or court order, judgment or decree applicable to CITY or by which CITY is bound. 19. Representations and W rranties of The Contractor. Reauisite Authority. The Contractor has the requisite power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; and no further action on the part of the Contractor is necessary to authorize the execution and delivery by it, and the performance of its obligations under this Agreement. Execution and Delivery. The Contractor has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding obligation of the Contractor, enforceable in accordance with its terms. 20. Default and Remedies. a. Default. If either party fails to comply with any term of this Agreement, except as contemplated by Section 20(b), and such failure is not cured within sixty (60) days after receipt of written notice from the non -breaching party of the same, or, if such failure is of a nature that cannot reasonably be cured within such sixty (60) day period, and the breaching party has not cured after a reasonable amount of additional time has passed, the breaching party will be in default ("Default") with respect to this Agreement. b. Service Default. If the Contractor deactivates all of the IKE Kiosks deployed pursuant to this Agreement with the intention of ceasing to provide the services contemplated by this Agreement and such deactivation continues for a period of thirty (30) days after receipt of written notice from CITY thereof, then such deactivation shall be referred to herein as a "Service Default". Notwithstandingtheforegoing, the Contractor shall not be deemed to be in Service Default if (1) the Service Default was caused by or in any way connected with the acts or omissions of CITY, its agencies, agents, employees, contractors or representatives, or (2) the Service Default was unable to be cured within the aforementioned thirty (30) day period due to Force Majeure. c. Remedies. If a party is in Default as set forth in Section 20(a), above, the non- breaching party shall have the right to terminate this Agreement and seek such other rights and remedies as may be available at law or in equity (the "Default Remedies"). If the Contractor is in Service Default as set forth in Section 20(b), above, then CITY, as their sole and exclusive remedy for the Service Default, may elect to terminate this Agreement and receive from the Contractor, in total, the amount of One Million Dollars ($1,000,000.00) as liquidated damages (the "Service Default Remedies"). The parties hereby agree that if the Contractor is both in Default and Service Default, the remedies available to CITY shall be limited to the Service Default Remedies set forth above, and in such event, CITY hereby waives its rights to pursue the Default Remedies. 21. Assianment. Except as otherwise provided herein, neither this Agreement nor any rights or obligations hereunder may be assigned by either party without the prior consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, in the event (i) that substantially all operations of the Contractor are being transferred to (a) another entity by way of merger, consolidation or sale of substantially all of the stock therein or assets thereof, or (b) any person or entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the Contractor, or (ii) there is a transfer of outstanding capital stock or other listed equity interests in and to the Contractor through the "over- the-counter" market or any recognized national or international securities exchange, the consent of CITY shall not be required, provided the acquiring entity, if applicable, shall agree to assume and perform all of the duties, and obligations of the Contractor hereunder. Notwithstanding anything contained in this Agreement to the contrary, neither the consent of CITY shall not be required for a collateral or conditional assignment of this Agreement to a lender of the Contractor, nor shall CITY consent or approval be required in connection with the Contractor's entering into any equipment financing or equipment leasing with respect to, or the granting of a security interest in and to, the IKE Kiosks. CITY shall assign this Agreement to a successor in the event CITY merges with or is consolidated into another entity wherein CITY is no longer recognized as a separate and independent body, and in such event the successor from such merger or consolidation will agree to be bound by and comply with and perform pursuant to all of the terms, covenants and conditions of this Agreement applicable to CITY. CITY may assign this agreement to a different entity if the entity will agree and is able to be bound by and comply with and perform pursuant to all of the terms, covenants and conditions of this Agreement applicable to CITY. 22. Surrender. Upon the expiration of this Agreement, the Contractor shall remove the IKE Kiosks and restore the Locations their original conditions and shall do such work is necessary to cap off the utilities serving the Locations. 23. Force Maieure. A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted. 24. Casualty. If during the Term all or a material part of any IKE Kiosk is damaged by a casualty, the Contractor shall have the option to terminate this Agreement with respect to such IKE Kiosk by written notice given to CITY promptly after the occurrence of the casualty. All insurance proceeds or other compensation for any such casualty shall belong to the Contractor. 25. Notice. All notices or other communications required under this Contract shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO THE CITY: Arthur Noriega V CITY Manager 444 SW 2nd Avenue, 10th FI Miami, Florida 33130 Victoria Mendez CITY Attorney 444 SW 2nd Avenue, 9t"Floor Miami, Florida 33130 Annie Perez, CPPO Procurement Director 444 SW 2nd Avenue, 6th Floor Miami, Florida 33130 TO CONTRACTOR: Ike Smart CITY, LLC 250 N. Hartford Avenue Columbus, Ohio 43222 Attn: Chief Financial Officer Copy to: Kooper, Mentel, Ferguson Yaross, Ltd. 100 S. Fourth St., Suite 100 Columbus, Ohio 43215 Attn: Brian Kooperman 26. Governina Law. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. 27. Counteroarts and Electronic Sianatures. This Agreement may be executed by the parties hereto in two or more counterparts and each executed counterpart shall be considered an original. This Agreement may be executed and delivered by electronic signature; any original signatures that are initially delivered electronically shall be physically delivered with reasonable promptness thereafter. 28. Draftina. This Agreement has been negotiated between the parties and, for construction purposes, shall not be deemed the drafting of any one party. 29. Amendments: Invalidity. This Agreement may not be amended, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver, or discharge is sought. The invalidity of any one of the covenants, agreements, conditions or provisions of this Agreement or any portion thereof shall not affect the remaining portions thereof or any part hereof and this Agreement shall be amended to substitute a valid provision which reflects the intent of the parties as was set forth in the invalid provision. 30. Exhibits. All exhibits referred to in this Agreement are incorporated in this Agreement by reference and will be deemed part of this Agreement for all purposes as if set forth at length herein. 31. No Joint Venture. Partnership. Aaencv. This Agreement will not be construed as in any way establishing a partnership, joint venture, express or implied agency, or employer employee relationship between CITY and the Contractor. 32. No Waiver. The failure of any party to exercise any right hereunder, or to insist upon strict compliance by the other party, shall not constitute a waiver of either party's right to demand strict compliance with the terms and conditions of this Agreement 33. Survival. The provisions of this Agreement which, by their reasonable terms, are intended to survive termination of this Agreement shall survive termination. In the event that this Agreement is terminated or expires by its terms, such expiration or termination shall not affect any liability or other obligation which shall have accrued prior to such termination. 34. Section Headinas. The section headings herein are inserted only for convenience and reference and shall in no way define, limit, or prescribe the scope or intent of any provisions of this Agreement. 35. Usage of Terms. When the context in which words are used herein indicates that such is the intent, words in the singular number shall include the plural and vice versa. All pronouns and any variations thereof shall be deemed to refer to all genders. 36. Public Records: Contractor understands that the public shall have access, at all reasonable times, to all documents and information pertaining to CITY Agreements, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the CITY and the public to all documents subject to disclosure under applicable laws. Contractor's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the CITY. Contractor shall additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keep and maintain public records that ordinarily and necessarily would be required by the CITY to perform this service; (2) upon request from the CITY's custodian of public records, provide the CITY with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if Contractor does not transfer the records to the CITY; (4) upon completion of the contract, transfer, at no cost, to the CITY all public records in possession of the Contractor or keep and maintain public records required by the CITY to perform the service, if the Contractor transfers all public records to the CITY upon completion of the Agreement, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements, if the Contractor keeps and maintains public records upon completion of the Agreement, the Contractor shall meet all applicable requirements for retaining public records, all records stored electronically must be provided to the CITY, upon request from the CITY's custodian of public records, in a format that is compatible with the information technology systems of the CITY. Notwithstanding the foregoing, Contractor shall be permitted to retain any public records that make up part of its work product solely as required for archival purposes, as required by law, or to evidence compliance with the terms of the Agreement. Should Contractor determine to dispute any public access provision required by Florida Statutes, then Contractor shall do so in accordance with the provisions of chapter 119, Florida Statutes, at its own expense and at no cost to the CITY. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (305) 416-1800, VIA EMAIL AT PUBLICRECORDS@MIAMIGOV.COM, OR REGULAR EMAIL AT CITY OF MIAMI OFFICE OF THE CITY ATTORNEY, 444 SW 2ND AVENUE, 9TH FL, MIAMI, FL 33130. THE CONTRACTOR MAY ALSO CONTACT THE RECORDS CUSTODIAN AT THE CITY OF MIAMI DEPARTMENT WHO IS ADMINISTERING THIS CONTRACT. 37. Audit and Inspection Rights and Records Retention: A. Contractor agrees to provide access to the CITY or to any of its duly authorized representatives, to any books, documents, papers, and records of Contractor which are directly pertinent to this Agreement, for the purpose of audit, examination, excerpts, and transcripts. The CITY may, at reasonable times, and for a period of up to three (3) years following the date of final payment by the CITY to Contractor under this Agreement, audit and inspect, or cause to be audited and inspected, those books, documents, papers, and records of Contractor which are related to Contractor's performance under this Agreement. Contractor agrees to maintain any and all such books, documents, papers, and records at its principal place of business for a period of three (3) years after final payment is made under this Agreement and all other pending matters are closed. Contractor's failure to adhere to, or refusal to comply with, this condition shall result in the immediate cancellation of this Agreement by the CITY. B. The CITY may, at reasonable times during the term hereof, inspect the Contractor's facilities and perform such tests, as the CITY deems reasonably necessary, to determine whether the goods or services required to be provided by Contractor under this Agreement conform to the terms hereof. Contractor shall make available to the CITY all reasonable facilities and assistance to facilitate the performance of tests or inspections by CITY representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of Section 18-101 and 18-102 of the Code of the CITY of Miami, Florida as same may be amended or supplemented, from time to time. 38. Termination: The CITY, acting by and through its CITY Manager, shall have the right to terminate this Agreement, in its sole discretion, and without penalty, at any time, by giving written notice to Contractor at least thirty (30) calendar days prior to the effective date of such termination. In such event, the CITY shall pay to Contractor compensation for Services rendered and approved expenses incurred prior to the effective date of termination. In no event shall the CITY be liable to Contractor for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the CITY be liable for any consequential or incidental damages. The Contractor shall have no recourse or remedy against the CITY for a termination under this subsection except for payment of fees due prior to the effective date of termination. 39. Nondiscrimination: Contractor represents to the CITY that Contractor does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Contractor's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Contractor further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 40. Independent Contractors: Contractor has been procured and is being engaged to provide Services to the CITY as an Independent Contractor, and not as an agent or employee of the CITY. Accordingly, neither Contractor, nor its employees, nor any sub -Contractor hired by Contractor to provide any Services under this Agreement shall attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the CITY, nor any rights generally afforded classified or unclassified employees. Contractor further understands that Florida Workers' Compensation benefits available to employees of the CITY are not available to Contractor, its employees, or any sub -Contractor hired by Contractor to provide any Services hereunder, and Contractor agrees to provide or to require sub-Contractor(s) to provide, as applicable, workers' compensation insurance for any employee or agent of Contractor rendering Services to the CITY under this Agreement. Contractor further understands and agrees that Contractor's or sub - Contractors' use or entry upon CITY properties shall not in any way change its or their status as an Independent Contractor. The Contractor does not have the power or authority to bind the CITY in any promise, agreement, or representation other than specifically provided for in this Agreement. 41. CITY Not Liable for Delays: Contractor hereby understands and agrees that in no event shall the CITY be liable for, or responsible to Contractor or any sub -Contractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the CITY has no control. 42. Use of Name: Contractor understands and agrees that the CITY is not engaged in research for advertising, sales promotion, or other publicity purposes. Contractor is allowed, within the limited scope of normal and customary marketing and promotion of its work, to use the general results of this project and the name of the CITY. The Contractor agrees to protect any confidential information provided by the CITY and will not release information of a specific nature without prior written consent of the CITY Manager or the CITY Commission. 43. No Conflict of Interest: Pursuant to CITY of Miami Code Section 2-611, as amended ("CITY Code"), regarding conflicts of interest, Contractor hereby certifies to the CITY that no individual member of Contractor, no employee, and no sub -Contractor under this Agreement nor any immediate family member of any of the same is also a member of any board, commission, or agency of the CITY. Contractor hereby represents and warrants to the CITY that throughout the term of this Agreement, Contractor, its employees, and its sub -Contractors will abide by this prohibition of the CITY Code. 44. No Third -Party Beneficiary: No persons other than the Contractor and the CITY (and their successors and assigns) shall have any rights whatsoever under this Agreement. 45. Entire Agreement: This instrument and its exhibits constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized. IKE SMARTCITY, LLC, CITY OF MIAMI, a municipal corporation: BY: BY: Pete Scantland, Chief Executive Officer Arthur Noriega V, CITY Manager DATE: DATE: ATTEST: Corporate Secretary/Notary Public ATTEST: Corporate Seal/Notary Seal Todd Hannon, CITY Clerk APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director Risk Management APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez, CITY Attorney EXHIBIT A DEAL TERMS 1. Term. The term of this Agreement shall be for a period commencing upon the Effective Date and expiring on December 31st of the tenth (10th) full consecutive calendar year immediately following the Operational Date for the thirtieth (30th) IKE Kiosk to be installed on -a Location (the "Initial Term"). The Initial' Term shall automatically renew for one (I) additional term of ten (10) calendar years (the "Renewal Term," and together with the Initial Term, the "Term") provided the Criteria, as defined below, are satisfied as of the end of the Initial Term. Additionally, the Company may elect to terminate this Agreement at the expiration of the Initial Term if the Company notifies CITY in writing at least ninety (90) days prior to the expiration of the Initial Term that the Company does not desire to extend the Term. All terms, conditions and requirements of this Agreement, except for the Company's obligation to pay the Revenue Share or any other monies, shall commence as of the Effective Date. The term "Renewal Criteria", as used herein, means (a) during the last twelve (12) consecutive full month period of the Initial Term the Company shall not have been in default beyond any applicable notice and cure period with respect to its obligations required by Section 13(a) and (b) of the Agreement and (b) the Company is not in default of the Agreement beyond any applicable notice and cure period as of the last day of the Initial Term. With respect to the thirty-first (31st) and all subsequent IKE Kiosks to be installed on a Location, the Company and CITY shall execute an amendment to this Agreement as of the date such additional IKE Kiosk or IKE Kiosks are installed, which amendment will provide for each such IKE Kiosk or IKE Kiosks to have an initial term of ten (10) years from and after the Operational Date for such IKE Kiosk or IKE Kiosks, with a right for the Company to renew the initial term provided the Renewal Criteria are satisfied with respect to such IKE Kiosk or IKE Kiosks. The parties acknowledge and agree that this paragraph contemplates more than one amendment to this Agreement depending on the number and timing of additional IKE Kiosks installed. 2. Revenue Share. The Company shall pay to CITY the "Revenue Share" for each IKE Kiosk on City Locations, defined as follows: an amount equal to forty percent (40%) of annual Gross Revenue earned by the Company with respect to an operational IKE Kiosk on City Locations during the initial ten (10) year term and any renewals and extensions thereof. The Gross Revenue attributable to, and the Revenue Share payable with respect to, each calendar year of the Term shall be evaluated and determined independently of the Gross Revenue attributable to, and the Revenue Share payable with respect to, any other calendar year of the Term. From and after the Operational Date for each IKE Kiosk and throughout the remainder of the Term, the Revenue Share for such IKE Kiosks shall be paid in quarterly installments due on the fifteenth (15th) day after the completion of each Fiscal Quarter. The Company shall submit to CITY simultaneously with the payment of the Revenue Share, a statement of the Gross Revenue applicable to the operational IKE Kiosks for the immediately preceding Fiscal Quarter. Additionally, on or before January 15th of each calendar year, the Company shall submit to CITY a statement of Gross Revenue applicable to the operational IKE Kiosks for the immediately preceding calendar year ("Reconciliation Statement"). If a Reconciliation Statement shows that the amount of the Revenue Share paid during any calendar year exceeded the amount actually due and owing by the Company, the Company shall credit such overage against the Revenue Share payments next coming due until reimbursed in full. If a Reconciliation Statement shows that the amount of the Revenue Share paid during any calendar year was less than the amount actually due and owing by the Company for such year, then the Company shall pay such shortfall within thirty (30) days after submission of the Reconciliation Statement. CITY at its sole discretion reserves the right to audit the Reconciliation Statement and underlying documents related to the Gross Revenue upon thirty (30) days prior written notice to the Company. Notwithstanding the foregoing, at the end of any full calendar year during the term in which there were always at least thirty (30) IKE Kiosks installed at Locations, the Company shall pay to CITY the amount of Fifty Thousand and 00/100 Dollars ($50,000.00) to offset administrative costs incurred by CITY in connection with this Agreement (the "Administrative Offset") subject to the following terms. If the Revenue Share for any calendar year is less than the Administrative Offset, the Company shall pay the difference between the Revenue Share applicable to such calendar year and the Administrative Offset such that the total amount payable in such calendar year shall not exceed the Administrative Offset. If the Revenue Share for any calendar year exceeds the Administrative Offset, the Company shall pay the Revenue Share applicable to such calendar year only and shall have no obligation to pay the Administrative Offset. 3. Directed Content. CITY Directed Content will be shown on the IKE Kiosks in accordance with the following schedule: a. During Interactive Mode, Directed Content will occupy a minimum of sixty- six percent (66%) of the screen area on each of the IKE Kiosks. b. During Passive Mode, at least one (1) Spots out of every eight (8) Spots shown on an IKE Kiosk screen will contain Directed Content. MIADOCS 19939341 1 2 EXHIBIT B IKE KIOSK SERVICES AND APPLICATIONS IKE SMART CITY, LLC BELIEVES THAT THIS INFORMATION IS PROTECTED FROM DISCLOSURE UNDER THE FLORIDA SUNSHINE LAW The IKE Kiosks may display the following applications as well as other applications as agreed between CITYCITY, the Director of Resilience and Public Works Department, and the Company: (i) Wayfinding, including multimodal mapping to destinations, businesses and other points of interest (sorted into freestanding apps such as Eat, Play, Shop, Stay); (ii) Getting Around, including real-time arrival and departure information for public transit, bike share and car share services all accessed from an interactive map; ideas; (iii) Question of the Week, allowing for CITY to survey the public on its opinions and (iv) Events, including a comprehensive event and activity listing for CITY; (v) Jobs, including career and internship postings within CITY, arranged geographically to encourage workforce development; (vi) Photobooth, including customized City-themed background postcards and social media integration; (vii) Emergency Communication, including a pre-emptive protocol for real-time posting of emergency and/or public safety communication such as storm warnings, amber alerts, evacuations (including routes) and road closures; (viii) Pedestrian Counting, including RFID-based measurement of pedestrians within range of the IKE unit, and a web -based dashboard containing analytics for CITY'S use; (ix) Air Quality Monitoring, including relaying data to the CITY on a regular basis; and (x) Arcade, including video games employing the unique touch -screen capabilities of the IKE EMERGENCY SERVICES / PANIC FEATURES The IKE Kiosks at the discretion of the CITY may provide the following capabilities: Panic button on the sides of the kiosk and/or as part of the user interface that is integrated with the City's E-911 and or next gen 911 system Integration with the CITY'S public surveillance systems including the existing Genetec platform or other future video management system (VMS). MIADOCS 19939355 1 INTEGRATION WITH CITY SYSTEMS To ensure that IKE Kiosks always have the most up to date information, Kiosks may require integration with CITY systems. In the event that integration occurs, integration shall be accomplished via the use of non-proprietary open standards -based APIs and/or web services that comply with the following minimum standards: Use the existing ESRI geospatial platform (3D and 2D) that has open APIs and supports open geospatial standards including but not limited to the following: o KM L: http://vvww.opengeospatial.org/standards/km1 o CityGML: http://www.opengeospatial.org/standards/citygml o InfraGML: http://www:opengeospatial.org/standards/infragml o IndoorGML http://www.opengeospatial.org/standards/indoorgnal o ISO 16739 https://www.buildingsmart.org/about/what-ii-openbim/ifc-introduction/ o ISO 19107 also known as OGC Abstract Spec Topic 1 - Geometry o i3S and 3DTiles spec o OGC 3D Portrayal Service http://www.opengeospatial.org/standards/3dp o OGC Indexed 3d Scene Layer (13S) http://www.opengeospatial.org/standards/i3s O 3DTiles https://www.opengeospatiatorg/pressroom/pressreleases/2829 o OGC LAS Specification 1.4 OGC Community Standard • Support integration (including management, control, monitoring, data, and communications) with other products/technologies via web services and open APIs that meet the following requirements: o All REST APIs using JSON must conform to JSON API specification v1.0 at a minimum. o All REST APIs using XML should use Domain XML Standards. o All SOAP APIs should conform to W3C SOAP standard 1.2 at a minimum. o All SOAP APIs should conform to OASIS WS Security standard 1.1 at a minimum. o All SOAP APIs should conform to OASIS WS Federation standard 1.2 at a minimum. o All SOAP APIs should conform to OASIS WS Trust standard 1.4 at a minimum. o All Graph QL APIs should conform to the current GraphQL design specification available at htp://GraphOL.org. o All APIs should use transport layer security (TLS) specification RFC 1.3 at a minimum. O 11 REST APIs should be documented in accordance with Open API specification version 2.0 at a minimum. o All SOAP APIs should be documented in accordance with WSDL specification 1.1 (W3C note 15) at a minimum. All data obtained from CITY systems remains the property of the CITY and all data once transmitted to CITY systems becomes the property of the CITY. MIADOCS 19939355 1 2 EXHIBIT C CONTENT RESTRICTIONS The Company shall not display any of the following types of advertisements on the IKE Kiosks: (i) Political advertisements or advertisements or displays designed to promote views of particular political groups or influence opinions of others on public policy issues; (ii) Advertisements or displays which involve nudity, partial nudity or pornographic, lewd or sexually explicit images or services that would be offensive to generally prevailing community standards; (iii) Tobacco advertisements; (iv) Content that could be deemed offensive by reasonable local community standards; or (v) Advertisements or displays which condone discrimination based upon race, religion, creed, ethnicity, disability, gender, gender identity or expression, or sexual orientation. The CITY reserves the right to further limit or restrict the type of content displayed at any one or multiple Locations. However, in such an event CITY and the Company shall agree to any additional restrictions or limitations prior to the installation of the IKE Kiosk at the given Location/s. In the event that the Company cannot agree to the additional restrictions or limitations, the Company reserves the right to not install an IKE Kiosk at the given Location/s, and CITY and the Company shall work together in good faith to find a reasonably suitable alternative Location/s that will not have such additional restrictions or limitations. In the event the CITY receives frequent and reasonable complaints from the general public that the Company has violated one or more of the restrictions set forth in subparts (i) through (v), the Company shall work with CITY in good faith to resolve the issue giving rise to the complaints. Furthermore, if the frequent and reasonable complaints allege a violation of subpart (iv), above, the Company may continue to display the content that is the subject of the complaints until the Company's contract requiring the display of such content expires. Any removal of an IKE Kiosk pursuant to this paragraph shall not be considered a breach or default of this agreement. EXHIBIT D Privacy Policy and User Privacy Protections PRIVACY POLICY Effective: 04/04/2019 Last modified: 01/02/2019 Introduction IKE SMART CITY, LLC ("We", "Us", "Our") respects your privacy and is committed to protecting it through our compliance with this policy. This policy describes the types of information we may collect from you or that you may provide when you visit an IKE Kiosk (an "IKE") and our practices for collecting, using, maintaining, protecting, and disclosing that information. Please read this policy carefully to understand our policies and practices regarding your information and how we will treat it. If you do not agree with our policies and practices, your choice is not to use the IKEs. By accessing or using an IKE, you agree to this privacy policy. This policy may change from time to time. Your continued use of an IKE after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates. User Information Collected by an IKE General Many of the features, services and information available on an IKE can be accessed by you anonymously and without requiring that you provide any information about yourself. The IKE will collect information on each user's anonymous interactions with the IKE, such as which features, services and information are most often used and how they are used, so we can improve the IKE platform and your experience with IKEs. We may share this anonymous user information without restriction with city where the IKE is located, our local partners and our technology partners or any other party as we reasonably deem necessary. Interactive Features Some of the features offered by IKE are interactive, and if you engage these interactive features, the IKE will ask you to provide information about yourself, some of which may personally identify you. The IKE will only ask you for information that is necessary to perform the service you request by engaging the interactive feature you select. Additionally, the IKE will only store this information long enough to perform the service you request, and during that time, we will not share, sell or otherwise disclose this information to any third parties, subject to any features operated by a Third -Party Partner, as described in the following paragraph. After that, the information will no longer be retained by the IKE or us. Certain interactive features of the IKE platform are operated or provided by, incorporate the API(s) of, or otherwise require communication or coordination with, third parties (a "Third Party Partner"), and in choosing to engage these features, you agree that we can provide the information you give MIADOCS 19939464 1 to an IKE, including any information that can personally identify you, to that Third Party Partner. For instance, if the IKE has a 311 feature that enables you to send a message to the city and receive updates on the status of your message, that feature will not only ask you for your email address but will also provide your email address to the city, the Third -Party Partner of the 311 feature, so that you can receive the updates you requested. We will always disclose whether an interactive feature is operated by a Third -Party Partner, and this disclosure will appear prominently on the screen when you select one of these features. With respect to any feature operated by a Third -Party Partner, the IKE will only store the information you provide long enough to perform the service you request. After that, the information will no longer be retained by the IKE or us, but it may continue to be retained by the Third -Party Partner. We will only share this information with the Third -Party Partner, and we will not share, sell or otherwise disclose this information to any other third parties. We do not exercise control over our Third -Party Partners, and you will be subject to their policies and terms and conditions when you engage with any feature operated by a Third -Party Partner. For this reason, we recommend that you review their policies and terms and conditions prior to engaging with any feature operated by a Third -Party Partner. Other Services WIFI Service Each IKE may be equipped to provide wifi service to personal devices able to receive a wireless wifi signal and located within close proximity to the IKE. We engage with Third -Party Partners to collect certain technical information to help us operate and provide the wifi service and other services available on the IKE to you. All of the technical information we collect is anonymized, and this technical information includes device type, population demographic information, general device location, foot traffic and frequency of IKE Kiosk visits, and aggregated data showing popular website searches, though please note that we will not store your browsing history or track the websites you visit when you use your personal device to access the wifi service. The technical information is available only to us and our Third -Party Partners and is retained for only six (6) months, after which it is deleted by us and our Third -Party Partners and no longer available. Please note that all of the technical information that is collected is aggregated and anonymized, meaning that the aggregated and anonymized technical information cannot be used to identify an individual user of the IKE or the IKE wifi services. We reserve the right to obtain individualized MAC addresses to identify and ban users who engage with the IKE or the IKE wifi services in violation of our Acceptable Use Policy and Terms of Use. Environmental Sensors Each IKE may have environmental sensors that collect data about the environment near an IKE, such as air quality. The environmental sensors do not collect any data from or about you. We will share this data without restriction to the city, our local partners and our technology partners or any other party as we reasonably deem necessary. Camera Each IKE may be equipped with one or more cameras. The cameras capture images of the area surrounding the IKE, and those images may include you. We will not keep any footage captured by any camera for longer than 15 days, unless the footage is necessary to investigate an incident. Furthermore, we will not use or disclose data collected by our cameras except to improve the 2 functionality and ensure the security of the IKEs, as necessary to address illegal activity on, associated with or perpetrated against the IKEs or in the surrounding area, or if we believe the disclosure is required by law or in the interest of public safety. We will not use facial recognition technology, and we will not use our cameras to track your movements throughout the city. Disclosure of Information In addition to the disclosures we have identified elsewhere in this policy, we may also disclose any and all information collected by us or that you provide to us via an IKE as described in this policy to our parents, subsidiaries and affiliates, and/or any entity who acquires, by any means, some or all of the assets or ownership interests of IKE Smart City, LLC. Data Securit We have implemented measures designed to secure any information you provide to us via an IKE from accidental loss and from unauthorized access, use, alteration and disclosure. Although we do our best to protect your information, we cannot guarantee the security of the information you provide to us via an IKE. Children The IKEs are not directed toward children under the age of 13 nor do we knowingly or intentionally collect personal information from children under the age of 13. If you are under the age of 13, you are not permitted to submit any personally identifiable information to us. We adhere to the Children's Online Privacy Protection Act in our operation of the IKEs. Privacy Policy Changes We may update this Privacy Policy from time to time to reflect changes in applicable law. Because any personal information you provide to us is not stored or maintained in databases owned or created by us, we will be unable to notify you as and when this Privacy Policy is updated. Therefore, we encourage you to visit this Privacy Policy page periodically to view any updates. Contact Information To ask question or provide comments about this policy and our privacy practices, contact us at: 250 N Hartford Ave Columbus, Ohio 43222 614.294.4898 privacy@ikesmartcity.com 3