HomeMy WebLinkAbout25H - AGMT - KIOSK AND PAYMENT PROCESSING SRVSREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
JUNE 18, 2012
TITLE:
AGREEMENT WITH LD SYSTEMS FOR
KIOSK AND PAYMENT PROCESSING
SERVICES
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
? As Recommended
? As Amended
? Ordinance on 1" Reading
? Ordinance on 2nd Reading
? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
FILE NUMBER
1. Authorize the City Manager and Clerk of the Council to enter into an agreement with LD
Systems for the acquisition of a kiosk to be located at City Hall, to provide for 24 hour/7 days a
week payment services for a five year lease not to exceed $36,000, per year.
2. Authorize the City Manager and the Clerk of the Council to enter into an agreement with
CardFlex, Inc. for the processing of credit cards, and check payments in conjunction with a
kiosk to be located at the entrance of City Hall, in an aggregate limit not to exceed $30,000,
during a one-year agreement.
DISCUSSION
The Treasury Division of the City's Finance Department currently operates a cashiering counter
four days a week, Monday - Thursday. The City's customer base which is largely cash based
results in high volumes of walk-in traffic. As a result, staff has been investigating a means by
which customers are able to avail themselves to payment options other than the utilization of the
cashier counter window. Staff has identified a company, LD Systems, which is able to design a
kiosk system, similar to an ATM. The kiosk software would be able to process payments from the
various payment systems used in City Hall including municipal utility services, business licenses,
dog licenses, parking citations, etc. The kiosk is designed to accept check, credit card and cash
payments with the ability to dispense change including currency and coin.
In order to facilitate payments during non operating hours as well as regular business hours, it is
intended that the kiosk be placed facing outward of City Hall near the lobby doors. It is anticipated
that the kiosk will assist in diminishing lines at the cashier counter or need for additional counter
staff.
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Agreement with LD Systems For
Kiosk and Payment Processing Services
June 18, 2012
Page 2
Additionally, the City has an agreement with CardFlex to sponsor a City of Santa Ana paycard
program. CardFlex is also a merchant card processor that is able to provide the financial functions
the kiosk requires for credit card charges, debits or verification of funds for recharging the paycard.
Card Flex will be responsible for ensuring proper processing of payments. Approval of the
recommended actions will provide greater customer service to residents of the City.
FISCAL IMPACT
Total contract cost of the LD Systems agreement is estimated to be $180,000. Funds are
available in the Treasury and Customer Service Account (no. 01110130-62300).
Total cost of the CardFlex paycard program and merchant card processor is estimated to be less
than $30,000. Funds are available in the Treasury and Customer Service Account (no. 01110130-
62300).
?' 'N IC '4 -) 'A--, ,
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
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LD Systems
INDEPENDENT CONTRACTOR SERVICES AGREEMENT
THIS AGREENTENT (' :Agreement") dated this day of ___ 2012 (the "Effective Date-) is made by and between the City of Santa
Ana ("City") and LD Systems, a Texas limited partnership, duly organized and existing under and by virtue of the laws of the State of Texas, authorized to
conduct business in the state of California ("Contractor") having its principal place of business at 4200 International Parkway, Carrollton, Texas 75007, are
collectively referred to in this Agreement as the "Parties'
WHEREAS, LD Systems provides custom outdoor through the wall enclos.AA kiosk with currency bill acceptors.. currency and coin dispensers, prepaid card
recharge, and ability to access City accounts including Municipal Utdity Services, parking citations, dog licenses, business licenses and related goods and services collectively
determined by the City and Contractor, and
W't1EREAS, the Contractor is specially trained, experienced and competent to perform and has agreed to provide such services that are the subject of
this Agreement. and
WHEREAS, City believes its residents may benefit by utilizing a kiosk as a form of payment option; and
NOW, THEREFORE, for good and valuable consideration of due mutual promises and covenants contained herei», the receipt and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
Scope of Work
I I 'C he Contractor shall furnish to the Cite upon execution of this Agreement or receipt of the City's written authorization to proceed, those services
and work set forth in Exhibit A, attached hereto and, by this reference, made a pan hereof.
L2 All documents, drawings and written work product prepared or produced by the Contractor under this Agreement, and related to the
physical/mechanical functions of the kiosk, are the property of the Contractor; All documents, drawings, interfaces, and written work product
prepared or produced by the Contractor pursuant to this Agreement, and related to the banking and/or information technology functions of the kiosk,
are the sole and exclusive property of the Ctiy. If any physical/mechanical functions of the work is copyrightable, the Contractor may copyright the
same, except that, as to any, work which is copyrighted by the contractor, the City reserves a royalty fee, non-exclusive, and irrevocable license to
reproduce, publish, and use such work, or any part thereof, and to authorize others to do so.
1.3 Services and work provided by the Contractor at the City's request under this Agreement will be performed in a timely manner consistent with the
requirements and standards established by applicable federal, state and City laws, otdinane, s, regulations and resolutions, specifically including the
Payment Card Industry Data Security Standards (PCI -DSS), and in accordance with a schedule of work set forth in Exhibit A. If there is no
schedule, the hours and times for completion of said services and work are to be set by the Contractor, provided, however, that such schedule is
subject to review by and concurrence of the City.
2. ('onsideratfon.
2-1 City shall pay Contractor as set forth in Exhibit A
2.2 Except as expressly provided in Exhibit A of this Agreement, Contractor shall not be entitled to nor receive from City any additional consideration,
compensation, salter, wages, or other type of remuneration for services rendered under this Agreement Specifically, Contractor shall not be entitled by virtue ofthis
Agreement to consideration in the form of overtime, health insurance benefits, retirement benefits, disability retirement benefits, sick leave, vacation time, paid holidays
or other paid leaves of absence of any type or kind whatsoever.
2.3 City will not withhold any Federal or State income taxes or Social Security tax from arty payments made by City to Contractor under the terms and
conditions of this Agreement. Payment of all tares and other assessments on such Burns is the sole responsibility of Contractor. City has no responsibility or liability for
payment of Contractor's takes or assessments.
2.4 Pursuant to Penal Code section 484b and to Business and Professions Code section 7108.5, the Contractor must apply all funds and progress payments
received by the Contractor from the City for payment of services, labor, materials or equipment to pay for such services, labor, materials or equipment. Pursuant to Civil
Code section 1479, the Contractor shall direct or otherwise manifest the C'ontractor's intention and desire that payments made by the Contractor to subcontractors,
suppliers and nraterialmen shall be applied to retire and extinguish the debts or obligations resulting from the perforr artce of this .Agreement.
3. Term.
3.1 "Rte term of this Agreement shall be from the date of approval of this Agreement until completion of the agreed upon services unless sooner
terminated as provided below or unless some other method or time of termination is listed in Exhibit A
3,2 Should either parry default in the performance of this Agreement or materially breach any of its provisions, the other party, at that party's
option, may terminate this Agreement by giving written notification to the other part}.
3.3 This Agreement shall terminate automatically on the occurrence of (a) bankruptcy or insolvency of either part). (b) sale of Contractor's
business. tct cancellation of insurance required under the terms of this .Agreement, and (d) if'. for any reason. Contractor ceases to be licensed or otherwise
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authorized to do business in the State of California, and the Contractor fails to remedy such defect or defects within (30) days of the receipt of notice of such
defect or defects.
3.4 "Ihe City may terminate this agreement upon 30 days prior written notice to the Contractor. Termination of this Agreement shall not affect
the County's obligation to pay for all fees earned and reasonable costs necessarily incurred by the Contractor as provided in Paragraph 2 herein, subject to any
applicable setoffs.
4. Required Licenses, Certificates and Permits.
Any licenses, certificates or permits required by the federal, state, county or municipal governments for Contractor to provide the services and work
described in Exhibit A shall be procured by Contractor and be valid at the time Contractor enters into this Agreement. Further, during the term of this
agreement, Contractor shall maintain such licenses, certificates and permits in full force and effect. Licenses. certificates and permits may include but are not
limited to driver's licenses, professional licenses or certificates and business licenses. Such licenses, certificates and permits will be procured and maintained in
force by Contractor at no expense to the City.
5. Office Space, Supplies, Equipment, etc.
Unless otherwise provided in Exhibit A, Contractor shall provide such office space, supplies, equipment, vehicles, reference materials and telephone
service as is necessary for Contractor to provide the services identified in Exhibit A to this Agreement. City is not obligated to reimburse or pay Contractor for any
expense or cost incurred by Contractor in procuring or maintaining such items. Responsibility for the costs and expenses incurred by Contractor in providing and
maintaining such items is the sole responsibility and obligation of Contactor.
6. Insurance.
6.1 Contractor shall take out, and maintain during the life of this Agreement. insurance policies with coverage at least as broad as follows:
6.1 .1 General Liability, Comprehensive general liability insurance covering bodily injury, personal injury, property damage, products
and completed operations with limits of no less than One Million Dollars 1$1,000.000.00) per incident or occurrence. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to any act or omission by Contractor
under this Agreement or the general aggregate limit shall be twice the required occurrence limit.
6.1.2 Automobile Liability Insurance, If the Contractor or the Contractor's officers, employees, agents, representatives or subcontractors
utilize a motor vehicle in performing any of the work or services under this Agreement, owned/non-ow9med automobile liability insurance providing combined
single limits covering bodily injury, property damage and transportation related pollution liability with limits of no less than One Million Dollars
($1,000,000.00) per incident or occurrence.
6.1 .3 Workers' Compensation Insurance. Workers' Compensation insurance as required by the California Labor Code. In signing this
contract, the Contractor certifies under section 1861 of the Labor Code that the Contractor is aware of the provisions of section 3700 of the Labor Code which
requires even employer to be insured against liability for workmen's compensation or to undertake self-insurance in accordance with the provisions ofthat code,
and that the Contractor will comply with such provisions before commencing the performance of the work of this Agreement.
6.2 Any deductibles, self-insured retentions or named insureds must be declared in twriting and approved by the City. At the option of the City,
either: (a) the insurer shall reduce or eliminate such deductibles, self-insured retentions or named insureds, or (b) the Contractor shall prow de a bond, cash, letter
of credit, guaranty or other security satisfactory to the City guaranteeing payment of the self=insured retention or deductible and payment of any and all costs,
losses, related investigations, claim administration and defense expenses
6.3 "1 be Contractor shall obtain a specific endorsement to all required insurance policies, except Workers' Compensation insurance and Professional
Liability insurance, if any, naming the City and its officers, officials and employees as additional insureds regarding' (a) liability arising from or in connection
wvith the performance or omission to perform any term or condition of this Agreement by or on behalf of the Contractor, including the insured's general
supervision of its subcontractors; (b) services, products and completed operations of the Contractor; (c) premises owned, occupied or used by the Contractor;
and (d) automobiles owned,. leased, hired or borrowed by the Contractor. For Workers' Compensation insurance carrier shall agree to waive all rights of
subrogations against the City and its officers, officials and employees for losses arising from the performance of or the omission to perform any term or
condition of the Agreement by the Contractor.
6.4 The C'ontractor's insurance coverage shall be primary insurance regarding the City and City's officer, officials and employees. Any insurance
or self-insurance maintained by the City or City's officers, officials and employees shall he excess of the C'ontractor's insurance and shall not contribute with
C'ontractor's insurance.
6_i Any failure to comply with reporting provisions of the policies shall not affect roveragc provided to the City or its officers, officials, employees
or volunteers
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6.6 "the Contractor's insurance shall apply separately to cacti insured against whom claim is made or suit is brought, exctpt with respect to the
limits ofthe insurer's liability.
6.7 Each insurance policy required by this section shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party
except after thirty (30) days' prior written notice has been given to C'ir}. The contractor shall promptly notify, or cause the insurance carrier to promptly notify,
the City of any change in the insurance policy or policies required under this Agreement, including. without limitation, any reduction in coverage or in limits of
the required policy or policies.
6.8 Insurance shall be placed tivith California admitted insurers (licensed to do business in California) with a current rating by Best's Key Rating
Ciwde acceptable to the City. A Best's rating of at least A -.VII shall be acceptable to the City lesser ratings must be approved in writing by the County -
6 9 Contractor shall require that all of its subcontractors are subject to the insurance and indemnity requirements stated herein, or shall include all
subcontractors as additional insureds under its insurance policies
6.10 At least ten (10) days prior to the date the Contractor begins performance of its obligations under this Agreement. Contractor shall furnish City
with certificates of insurance, and with original endorsements, showing coverage required by this Agreement, including, without limitation, those that verify
coverage for subcontractors of the Contractor. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that
insurer to bind coverage on its behalf. All certificates and endorsements shall be received and, in City's sole and absolute discretion, approved by the City. Cit%
reserves the right to require complete copies of all required insurance policies and endorsements, at any time.
h 11 The limits of insurance described herein shall not limit the liability of the Contractor and C'ontractor's officers, employees. agents,
representative or subcontractors.
Defense and Indemnification.
71 To the fullest extent permitted by law. Contractor shall indemnif). hold harmless and defend the City and its agents, officers and
employees from and against all claims, damages, losses, judgments. liabilities, expenses and other costs, including litigation costs and attorneys'
fees, arising out of, resulting from, or in connection with the performance of this Agreement by the Contractor or Contractor's officers, employees,
agents, representatives or subcontractors and resulting in or attributable to personal injury, death, or damage or destruction to tangible or intangible
property, including the loss of use; provided, however, such indemnification shall not extend to or cover loss, damage or expense arising from the
sole negligence or willful misconduct of the City or its agents, officers and employees.
7.2 Contractor's obligation to defend, indemnify and hold the City and its agents, officers and employees harmless under the provisions
of this paragraph is not limited to or restricted by any requirement in this Agreement for Contractor to procure and maintain a policy is insurance.
8. Status of Contractor.
8.1 All acts of Contractor and its officers, employees, agents. representatives, subcontractors and all others acting on behalf of Contractor relating to the
performance of this Agreement, shall be performed as independent contractors and not as agents, officers or employees of City. Contractor, by virtue of this Agreement,
has no authority to bind or incur any obligation on behalf of City. Except as expressly provided in Exhibit A, Contractor has no authority or responsibility to exercise
any rights or power tested in die City. No agent, officer or employee of the City is to be considered an employee of Contractor. It is understood by both Contractor and
City that this Agreement shal l not be construed or considered under any circumstances to create an employer-employee relationship or a joint venture.
8.2 At all times during the term of this Agreement, the Contractor and its officers, employees, agents, representatives or subcontractors are, and shall
represent and conduct themselves as, independent contractors and not employees of the City.
8.3 Contractor shall determine the method, details and means of performing the work and services to be provided by Contractor under this Agreement.
Contractor shall be responsible to City only for the requirements and results specified in the Agreement and, except as expressly provided in this Agreement, shall not be
subject to City's control with respect to the physical action or activities of Contractor in fulfillment of this Agreement. Contractor has control over the manner and
means of performing the services under this Agreement. Contractor is permitted to provide services to others during the same period service is provided to City under
this Agreement. If necessary, Contractor has the responsibility for employing other persons or firms to assist Contractor in fulfilling the terns and obligations under this
Agreement.
8.4 If in the performance of this Agreement any third persons are employed by Contractor, such persons shrill be entirely and exclusively under the
direction, supervision and control of Contractor. All terms of employment including hours, wages, working conditions, discipline, hiring and discharging or any other
term of employmnent or requirements of law shall be determined by the Contractor.
8_i It is understood acid agreed that as an independent Contractor and not tun employee of the City, the Contractor and the Contractor's officers, employees,
agents, representatives or subcontractors do not have any entitlement as a City employee, and do not have the right to act on behalf of the City in any capacity
whatsoever as an agent. or to bind the City to any obligation whatsoever.
8.6 It is further understood and agreed that Contractor must issue J&-2 forms or other forms as required by lavv for income and employment tax purposes
for all of C'ontractor's assigned personnel under the terms and conditions ofthis Agreement.
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8 7 As an independent Contractor. Contractor hereby indemnifies and holds City harmless from any and all claims that may be made against City based
upon any contention by any third party that an employer-employee relationship exists by reason of the Agreement
9. Records and audit.
9.1 Contractor shall prepare and maintain all writings, documents and records prepared or compiled in connection with the performance of this
Agreement for a minimum of three (3) years from the termination or completion of this Agreement. This includes any handwriting, typewriting, printing, photostatic,
photographing and every other means of recording upon any tangible thing, any fort of communication or representation including letters, words, pictures, sounds or
symbols or any combination thereof.
9.2 Any authorized representative of City shall have access to any writings as defined above f'or the purposes of making audit, evaluation,
examination, excerpts and transcripts during the period such records are to be maintained by Contractor. Further. City has the right at all reasonable times to
audit, inspect or otherwise evaluate the work performed or being performed under this Agreement.
10. Confidentiality. The Contractor agrees to keep confidential all information obtained or learned during the course of furnishing services under this
Agreement and to ?vt disclose or reveal such information for any purpose not directly connected with t}me matter for which services are provided,
11. Nondiscrimination. During the performance of this Agreement, Contractor and its officers, employees, agents, representatives
or subcontractors shall not unlawfully discriminate in violation of any federal, state or local law, rule or regulation against any employee,
applicant for employment or person receiving services under this Agreement because of race, religion, color, national origin, ancestry,
physical or mental disability, medical condition (including genetic characteristics). marital status, age. political affiliation, sex, or sexual
orientation. Contractor and its officers, employees, agents, representatives or subcontractors shall comply with all applicable Federal,
State and local laws and regulations related to policy, the Fair Employment and Housing Act (Government Code sections 12900 et seq.);
California Labor Code sections 1101, 1102 and 1102.1; the Federal Civil Rights Act of 1963 (PA- 88-352), as amended; and all
applicable regulations promulgated in the California Code of Regulations or the Code of Federal Regulations.
12. Assignment. This is an agreement for the services of Contractor. City has relied upon the skills, knowledge, experience and training
of Contractor and the Contractor's firm, associates and employees knowledge, experience and training of Contractor and the Contractor's firm,
associates and employees as an inducement to enter into this Agreement Contractor shall not assign or subcontract this Agreement without the
express written consent of City. Further, Contractor shall not assign any monies due or to become due under this Agreement without the prior
written consent of City.
13. Waiver of Default. Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent
default. Waivcr or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach, and shall not
be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided below,
14. Notice. Any notice, communication, amendment, addition or deletion to this Agreement, including change of address of either
party during the term of' this Agreement, which Contractor or City shall be required or may desire to make shall be in writing and may
be personally served or, alternatively, sent by prepaid first class mail to the respective parties as follows:
1o City; To Contractor:
15. Conflicts. Contractor agrees that it has no interest and shall not acquire any interest direct or indirect which would conflict in any
manner or degree with the performance of the work and services under this Agreement.
16. Severability. If any portion of this Agreement or application thereof to any person or circumstance shall be declared invalid by a
court of competent jurisdiction or if it is found in contravention of any federal. state or county or city statute, ordinance or regulation the
remaining provisions of this Agreement or the application thrreof shall not be invalidated thereby and shall remain in full force and effect to
the extent that the provisions of this Agreement are severable.
17, Amendment. This Agreement supersedes tiny and all other agreetents, either oral or in writing, between any of the parties herein
with respect to the subject matter hereof and contains all the agreements bet"cen the parties with respect to such matter. Each parts
acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party, or anyone
acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this
Agreement shall be valid or binding.
18. Entire agreement. This Agreement supersedes any and all other agreements, either oral or in writing, between any of the parties herein with respect
to the subject matter hereof and contains all the agreements between the parties with respect to such matter. Each party acknowledges that no representations,
inducements. promises or agreements, oral or otherwise. have been made by any party, or anyone acting on behalf of any part), which are not embodied herein, and
that no other agreement, statement or promise not contained in this Agreement shall be valid or binding.
19. Advice of Attorney. Ea,:h party warrants and represents that in executing this Agreement, it has received independent legal
advice frorn its attorneys or the opportunit} to seek such advice
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20. Construction. Pleadings or captions to the provisions of this Agreement are solely for the convenience of the parties, and are not part
of this Agreement, and shall not be used to interpret or determine the validity of this Agreement, Any ambiguity in this Agreement shall not be
construed against the drafter, but rather the terms and provisions hereof shall be given a reasonable interpretation as if both parties had in fact
drafted this Agreement.
21. Governing Law and Venue. This Agreement shall he deemed to he made under, and shall be governed by and construed in
accordance with, the laws of the State of California. Any action brought to enforce the terms or provisions of this Agreement shalt be
brought in the County of Orange, State of California.
IN 1YITNESS WHEREOF, the Parties have caused this Distribution .Agreement to be executed and effective as of the Effective
Date.
CITY OF SANfA ANA
By:
Print Name: Paul M. Waiters
Title: __City Manager
Address: Clerk of the Council
20 Civic Center Plaza f-301
Santa Ana, CA 92702
Date:
LD SYSTENIS
By:
.Name:
Title:
Date:
6!5112
Recommended for Approval:
Francisco Gutierrez, Es Dir F.NLSA
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EXHIBIT A
A. SCOPE OF WORK
1. Pursuant to the requirements of State of California and all applicable local regulations,
Contractor shall provide Treasury payment services on a 2417 basis at City Hall, 20 Civic
Center Plaza, Santa Ana, CA 92701.
2. Equipment. Contractor shall lease a kiosk to City at the rate set forth in Attachment 1 hereto,
Additional kiosks may be leased and installed at the mutual agreement of the parties. Each
kiosk shall stylize a touch screen and be available in a minimum of the English and Spanish
languages. Initially, contractor shall install one kiosk in the City Hall lobby area, accessible
from the front patio area during hours that City Hall is closed.
Contractor shall provide additional kiosks at the same lease amount should the City elect to
install additional kiosks at its facility.
3. Subcontractors. Contractor elects to provide all required Contractor services through its work
force. Contractor agrees to provide City with prior written notice of any use of subcontactors to
perform the required services. Contractor shall assure that each subcontractor utilized will be
appropriately insured and bonded.
4. Support and Maintenance.
a. Contractor shall provide the necessary technical support and maintenance of all kiosk
machines. Technical support shall be accessed via email or telephone. Contractor shall
endeavor to:
i. Return all calls and resolve all issues within thirty (30) minutes or less;
ii. Close all tickets within twenty-four (24) hours; and
iii. Complete all on-site repairs requiring parts within twenty-four (24) hours; and
iv. Repair or replace kiosk machines within twenty-four (24) hours of notice of required
service.
b. In the event of a system failure, Contractor shall respond within two (2) hours' notice from
County. In the event the communication network is disrupted, Contractor shall ensure that
each kiosk is able to operate in a secure mode off-line.
c. Contractor shall assume responsibility for any losses and/or repairs due to acts of
vandalism or other causes.
d. Contractor shall implement and maintain a Disaster Recovery Plan with respect to all
equipment utilized in connection with this Agreement as hereinafter defined.
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5. Transactions.
a. City shall be responsible for maintaining a sufficient amount of cash in the kiosk and taking
cash from kiosk on a regular basis. City shall reconcile accounts serviced through the
kiosk.
b. Contractor shall develop and install an interface with Innova, the City cashiering system,
allowing City Treasury customers to utilize the kiosk to pay municipal utility bills, business
licenses, dog licenses, and parking citations with cash, check or credit card, at the
Contractor's kiosk. All transactions shall be made in real time. Payments shall be accepted
twenty-four (24) hours per day, seven (7) days per week. The interface shall include
development, testing and live integration, and shall be completed within forty-five (45) days
from the date of this Agreement.
c. Contractor shall develop an interface to allow City customers to utilize the kiosk to load or
withdraw funds from the CardFlex debit card sponsored by City. The interface shall include
development, testing and live integration, and shall be completed within forty-five (45) days
from the date of this Agreement.
d. Contractor shall guarantee that transactions performed at the kiosk will comply with all
Federal, State and local laws, rules and regulations, including Payment Card Industry Data
Security Standard (PCI DSS).
6. Website/Treasury Cashiering System,
a. Contractor kiosk shall provide to City, via Innova interface, a real-time listing of all
deposits/payments made via the kiosk. Contractor interface shall permit the appropriate
City personnel to confirm each individual transaction.
b. Contractor shall, at no additional cost to City, interface with the City's Innova Cashiering
system during the term of this Agreement.
c. Contractor is responsible for maintenance and repair of kiosk and interfaces to the
cashiering and debit card (CardFlex) systems. Any repairs to kiosk or connections to the
systems must be made within seventy-two (72) hours of notification at no charge to County
7. Continuinq Contractor Duties
a. Contractor shall install technology allowing City to obtain transaction reports, including, but
not limited limited to:
• Multiple account summary history;
• Depositor history (web/telephone; kiosk);
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• Customer transactions detail (kiosk transaction with picture of depositor; kiosk cash
transactions; kiosk credit card transactions; web/IVR credit card transactions;
address of record); and
• Capability to export results to Excel.
b. Contractor agrees to provide services allowing additional kiosk payments, such as building
permit, if requested, under the same quoted fee structure and conditions.
c. Contractor shall provide all necessary training with respect to the use and operation of
equipment and account managing at no additional cost to City.
d. Contractor shall not release any confidential information regarding any customer to a third
party without the City's prior written consent.
e. Contractor shall perform background checks on all of its employees assigned to provide
service hereunder.
f. Contractor shall, to the extent practicable, endeavor to collaborate with City's contracted e-
payment vendor, TransFirst, for the provision of services hereunder.
B. COMPENSATION
1. Contractor shall be compensated in accordance with the fee schedule attached hereto as
Attachment 1.
C. TERM
1. Paragraph 3.1 of the body of this Agreement is amended to read as follows:
3.1 The term of this Agreement shall be from July 1, 2012 through June 30, 2013, unless
otherwise terminated as provided below. This Agreement will not automatically renew but may be
renewed for four (4) additional one-year terms (each a "Renewal Term") by mutual, written
agreement of the parties. Such renewal shall be in the form of an amendment to the Agreement.
D. REPRESENTATIVES
The parties' respective Project Managers shall be:
For Ci : For Contractor:
Treasurer - Christine Duarte Cliff Dean
City of Santa Ana LD Systems
20 Civic Center Plaza (M-) 4200 International Parkway
Santa Ana, CA 92702 Carrollton, TX 75007
(714) 647-5335 (972) 862-4327
cduarte _santa-ana.oM cliff@ldsystemsinfo.com
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ATTACHMENT 1
CONTRACTOR'S INVOICE
20-MAY-12
615112
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pa sns
A partner, YStenot just a vendor.
Cliff Dean
4200 International Parkway
Carrollton, TX 75007
Phone (97 929 9228 Ext 327
214 676 5199
Invoice For:
Christine Duarte
Santa Ana
Payment Kiosk Series 1
Invoice
DATE 412012012
Invoice #
Customer ID
Invoice valid until: 20-May-12
Prepared by: Cliff E. Dean
1 Unit AAA.A "-i..
QUANTI DESCRIPTION UNIT PRICE TOTAL PRICE
1 Custom Outdoor Thru Wall Enclosure based on LID Systems design. Metal Construction w/Powdercoat
Finish, Lock-n-key entry, fans, Service Door. Includes the following components: $44,033.00 $44,033.00
17" Panel Brhe (Litemax) with resistive touch screen
Rugged External Keyboard and Trackball, USB Interface
Kiosk Amplified Dual Speaker System
80mm thermal receipt printer - TG2480H, USB, low paper and paper end sensor included
Magtek Outdoor configured magstripe credit card reader 3 track/port powered with USB interface
Bill Acceptor- ME[ Cashflow SCS627R RS232, 1,200 note (no barcodel - includes power supply & universal
bezel
Coin Acceptor - EMP800.14 Hemisphere West USB powered. Standard bezel (ccTalkl
Bill Dispenser - Fujitsu Bill Dispenser F58 "Semi Bunch" with 3 clenomincations includes: Serial interface,
Power supply,
Communication Cables. SDK kit and Shutter Kit with Cable
Coin Dispensers - Telequip T-Flex USB
PC - Optiplex XE, Pentium Dual Core E530012.80 Ghz, 800FSB, 2M cache, 2GB RAM (I333Mhz DDR3),
Integrated Video, 180GB BATA 3.0G1b/s, 8X DVD-RW, Windows 7 Professional 32-bit ICPUDELLXEW7-PR0I
Check imager- Pertech 6100 Series Financial Imager (return or keep check option; MICR Stamp, Full Width
Metal Deck; & Check Face Up Included)
HVAC (3000 btu) KA4C3DP21L
Artwork
Software loading of image
N. Cost $9,500 $ 9,500
.00
Pellet & cardboard packaging
Optional Additional TTW Kiosk units up to 5 $42,033
1 License per Terminal 19,816.00 $ 19,816.00
1 API Integration per Individual System' 19,000.00 $ 19,000.00
1 S/W Development Advanced Bill Pa ment $68,000.00 $68,000.00
1 Estimated US Frei t & Deliver), Cost Per Unit $1,285.00 $1,285.00
1 Installation In Prepared Location $3,000.00 $3,000.00
'0ne API integration is for acess to City direct or Cr dil card processing comp anv that accesses the records
O tional Add On Features
Second T- for B4600 nnter to 500 sheets 5382. cr terminal
Zremote' $125, rvr per terminal
Reporting - Optimize Transactions
Service Options 1 ear Parts included
1 year on-site maintenance arts and labor $5,800
3 ears on-site maintenance arts and labor $ 22,767.00 when selected at time of A reement $5,80000
$22,767 5 800.00
Notes: 1. Plus taxes, if required.
2. Winn and phone line- customers responsibility.
3. Warant : One year free arts.
4. License usage click fee $1.00 per transaction aid Month)
5. Site preparation-cu stomer's responsibility including all Permits and costs
6. Terms - 50% w/order 40% nor to shipping balance on installation.
7. License Maint fee! r $475.00 $ 475.00
8.
eement cessin is for 60 months will be automaticall
renless either artives a 90 da notice
g
9. for additonal units u to 3 months
10for cost reduction im limen
ted are 50/50 revs lit after costs
SUB TOTAL $ 170 909.00
S
anta Ana Tax Assessor / Collector
A
d
pprove
:
Signature:
Date. Plus Taxes
TOTAL If applicable
170 909.00
THANKS FOR YOUR BUSINESS!
The daily balancing of the equipment and loading of supplies will be done by the customer. Training will be supplied at the time of the install.
60 month leasing option on the one location for development is approximately $3,033.13, If lease option is chosen, development costs and
equipment costs will be paid by customer, and upon acceptance of installation Macquarie/LD systems capital will send total funds to customer.
Monthly lease depending on term selected will start the time.
25H-14
CARDFLEX, INC
PREPAID DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this "Agreement") dated this day of 2012 (the "Effective Date") is made by and
between CardFlex, Inc., a California Corporation duly organized and existing under and by virtue of the laws of the State of California, having its principal place of
business at 2900 Bristol St, Bldg F, Costa Mesa, CA ("CardFlex") and located at
("City"). City and CardFlex are
collectively referred to in this Agreement as the "Parties".
WHEREAS, CardFlex provides identification card, prepaid card accounts, payroll card, funds disbursement and related goods and services (the "CardFlex
Services"); and
WHEREAS, CardFlex is a registered Agent of Issuing Bank, and is licensed to issue stored value cards under a proprietary payment system developed
by CardFlex (the "CardFlex Card" and together with the payment system, the "CardFlex Program"), that are the subject of this Agreement; and
WHEREAS, City believes its residents may benefit by utilizing the CardFlex Card and CardFlex Program; and
WHEREAS, City desires to provide an opportunity for its residents to obtaint the CardFlex Card and CardFlex Program; and
WHEREAS, CardFlex believes that its business could benefit from City services; and
WHEREAS, the Parties desire a relationship that allows City to receive from its interested Customers, and transmit to CardFlex sign-up information
applications and application fees (if applicable) for the CardFlex Cards issued by CardFlex and related card services included in the Card Program;
NOW, THEREFORE, for good and valuable consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. City Appointment. Acting upon authority granted to it by Issuing Bank, as well as on its own behalf, CardFlex hereby appoints City and those
Customers (if any) of City that elect, by agreement with City, to participate (collectively, "City") as CardFlex's Customer to provide services as set forth in Section
2 of this Agreement (the "Customer Services") during the term of this Agreement described in Section 5 of this Agreement.
Customer Services. To the extent and where permitted by applicable law, the following are the Customer Services to be provided by City:
(a)(i) City will make available to its Customers, access to stored value cards issued by Issuing Bank pursuant to the CardFlex system. City will use commercially
reasonable efforts to make available marketing information consisting of information and such other materials approved by CardFlex and approved by City,
("CardFlex Marketing Materials") about the CardFlex Cards and the services related to the CardFlex Cards and such other marketing materials supplied by CardFlex,
in its sole discretion.
(b) City will, upon request of its Customers, accept, for transmission to CardFlex, applications and the corresponding Customer Data (as hereinafter defined) from
the Customers for the CardFlex Card and the CardFlex Services ("Customers").
(c) Applicant Form. City's transmission of the Customer Data for CardFlex will also be in accordance with the Applicant Form currently in use by CardFlex.
(d) City may use CardFlex's name, trade names, trademarks, service marks, and logos as necessary or reasonably appropriate to advertise and promote the Customer
Services. CardFlex may use City's name, trade names, trademarks, service marks, and logos as with the prior written approval of the City, to advertise and
promote the Customer Services. The Parties shall limit such usage in programs and placement, which have been previously approved in writing by both Parties.
(e) City may provide, to all or some of it's Customers, or may have all or some of it's Customers sign, an acknowledgement that the CardFlexCards are being issued
only by Issuing Bank and CardFlex, that City is not responsible in any manner for the CardFlex Cards or any of the CardFlex Services, and that City is only serving
as an distributor to receive for transmission and to transmit to CardFlex sign-up information applications and application fees (if applicable) for stored value cards
issued by Issuing Bank for CardFlex and to receive for transmission and to transmit to CardFlex voluntary- payments from City Customers to add or "load" value
on their cards.
3. Consideration to City. City shall receive fifteen per-cent (15%) of the net revenue derived from all income received from Customer referred by
City to CardFlex. Net revenue is defined as all transaction fees, interchange fees, and other fees less all processing fees.
The Parties' Additional Rights and Responsibilities.
(a) As between CardFlex and Issuing Bank, on the one hand, and City, on the other hand, CardFlex will be solely responsible, alone or through contracts with third
parties, for the determination of the Customers to whom or which CardFlex Cards are issued, for the issuance of the CardFlex Cards, for the provision of all CardFlex
Services it provides to the Customers, and for the production and delivery of numbered accounts, reports, invoices, and statements to, and its relationship with, the
Customers. This responsibility includes (without limitation) responding to and satisfying any Customers complaints regarding the availability and quality of the
CardFlex Cards and the CardFlex Services.
(b) CardFlex will, at City's expense, deliver to City a sufficient quantity of CardFlex Marketing Materials as may be necessary for City to perform the City marketing.
City orders shall be sent to the address of CardFlex set forth below. CardFlex will deliver the ordered marketing materials by (i) personal delivery, (ii) mail, or
(iii) prepaid overnight express delivery service or same-day local courier service within seven Business Days after City's order. Method will be at City's request and
expense. CardFlex will assist City with all reasonable instructions of City's employees in marketing and processing applications for the CardFlex Cards, the
CardFlex Services, Customer Data and Customer Payments. CardFlex will also provide a toll-free telephone number by which City's employees may pose questions
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directly to CardFlex and will take such other actions as are reasonably necessary to keep City's employees informed of news and developments related to the
CardFlex Services.
(c) Following the time that the Customer Data corresponding to an application for a CardFlex Card is made available to CardFlex, CardFlex will begin processing the
request and will make best efforts to deliver to such Customer a permanent CardFlex Card in a timely manner. CardFlex will deliver such CardFlex Card by (i) personal
delivery, (ii) mail, or (iii) prepaid overnight express delivery service or same-day local courier service to the address included in such Customer Data. The
CardFlex Card shall identify CardFlex and/or its banking partners as the issuers of it and shall indicate at least the name, address, toll-free telephone number, and
logo for CardFlex.
(d) CardFlex fees, the fees it charges and receives from City for the CardFlex Services are outlined in ADDENDUM A; and, the fees it charges and receives from
Customers for the CardFlex Services are outlined in ADDENDUM B.
(e) CardFlex represents, warrants, and covenants that, to the extent related to the CardFlex Card and CardFlex Services offered and provided by it, to it's Customers and
related to the performance of its obligations under this Agreement, (i) all federal, state, and local laws and regulations have been complied with in all material
respects relating to this Agreement (ii) any and all licenses, permits, and other authorizations required by federal, state, and local laws (collectively, the "CardFlex
Authorizations") have been obtained, are in full force and effect, and are valid under applicable federal, state, and local laws; (iii) the continuation, validity, and
effectiveness of all the CardFlex Authorizations shall not be impaired or adversely affected by the terms hereof, and (iv) it will maintain the effectiveness of all of
the CardFlex Authorizations, or obtain new or additional CardFlex Authorizations, as necessary to permit it to perform its obligations under this Agreement.
(f) CardFlex will pay when due, all federal excise taxes and all state and local use or sales taxes imposed in connection with the provision of the CardFlex Service.
City will pay when due, all federal excise taxes and all state and local use or sales taxes imposed in connection with funds collected by it for the Customer Services
to the extent such taxes can be collected from the Customer. Each Party will also file when due all required tax returns required to be filed connection with its
business and with the collection and remittance of any applicable excise, use, or sales taxes for which it bears responsibility under this Section 4(f). CardFlex will
indemnify City against any such taxes imposed on or due by Issuing Bank.
(g) City will make available for transmission (if obtained by City) to CardFlex, the information obtained by City from the Customers for the CardFlex Services.
That information shall consist of the Customer's name, address, telephone number, and other such required information (collectively "Customer Data").
(h) City represents, warrants, and covenants that, to the extent related to the Customer Services provided by City, (i) all federal, state, and local laws and regulations
have been complied with in all material respects relating to this Agreement; (ii) any and all licenses, permits, and other authorizations required by federal, state and
local laws (collectively, the " Customer Authorizations') have been obtained, are in full force and effect, and are valid under applicable federal, state, and local
laws; (iii) the continuation, validity, and effectiveness of all of the Customer Authorizations shall not be impaired or adversely affected by the terms hereof, and (iv) it
will maintain in effect the Customer Authorizations, or obtain new or additional Customer Authorizations, as necessary to permit it to perform its obligations under this
Agreement.
(i) Any other provision of this Agreement to the contrary notwithstanding, as between City and CardFlex, CardFlex shall have the right at any time to cause
another qualifying bank other than the initial Issuing Bank to become the issuer of the CardFlex Cards proposed to be issued pursuant to the terms of this
Agreement, and, upon CardFlex's request, City agrees to exert its commercially reasonable best efforts to facilitate substituting another bank (the or a "Successor
Bank") for the initial Issuing Bank for all purposes of this Agreement, it being understood that the Parties intend that the material terms of this Agreement shall be
unaffected by any such substitution of a Successor Bank for the initial Issuing Bank.
5. Term: Termination.
(a) The term of this Agreement begins on the Effective Date and shall continue for a period of not less than 48 months from the Effective Date. After the initial
period of 48 months, this Agreement may be renewed by mutual agreement of the parties, on the anniversary of the Effective Date, for a period of 12 months (the
"Annual Expiration Date"). Either party may terminate the agreement by giving written notice to the other Party of the notifying Party's intent to terminate this
Agreement at least 90 days before the Annual Expiration Date; if that notice is timely given, the term of this Agreement shall expire on the Annual Expiration Date
immediately following the date on which that notice was given. (Any other reference in this Agreement to the "termination" of this Agreement shall include, without
limitation, the expiration of the term set forth in this Section 5(a).)
(b) Either Party may terminate this Agreement before the expiration of the term set forth in Section 5(a), by giving the other Party written notice of termination,
upon any of the following events of default by the other Party. (i) The other Party fails to pay any amount when due under this Agreement and that payment failure
continues for ten Business Days after written notice of that payment failure is given by the Party entitled to payment; (ii) the other Party continues its failure to
perform, or fails to cure or correct any nonperformance of, any of its obligations under this Agreement (other than a payment or other obligation addressed in either
of the immediately two preceding clauses) for 30 days after written notice of that failure (which describes the failure with reasonable specificity) is given by the Party
entitled to performance; (iii) any bankruptcy, insolvency, liquidation, dissolution, or similar action or proceeding is instituted, commenced, or acquiesced in by the
other Party or, if instituted or commenced involuntarily against the other Party, is not stayed or dismissed within 60 days after that involuntary institution or
commencement, or (iv) the other Party otherwise becomes insolvent, admits in writing its inability to pay its debts as they mature, makes a general assignment for the
benefits of its creditors, or enters into any workout or similar arrangement with its creditors; whenever in this sentence the term "Party" is used in relation to rights
of City to terminate this Agreement for the action or inaction, or an event involving, the other Party, City shall have the same termination rights with respect to any
such action or inaction by, or event involving, either CardFlex or Issuing Bank. The Parties may also terminate this Agreement by mutual written consent.
Notwithstanding the effect of the immediately preceding clause (ii) in light of the Parties' respective obligations in Sections 4(e) and 4(h) of this Agreement, the Parties
agree that a Party's loss of or inability to secure any governmental or regulatory license or authorization in any particular state of the United States, including
(without limitation) the District of Columbia (a "Lost State") while maintaining necessary governmental or regulatory licenses or authorizations in one or
more other states, shall not alone (i.e., without any other failure to perform by that Party) give the other Party a right to terminate this Agreement as a whole, but
will give the other Party the right to cease performing those of its obligations hereunder, after the loss of that license or authorization, which arise or are performable
only in, or correspond to or facilitate the performance of the first Party of its obligations hereunder in, the Lost State.
(c) A Party's termination of this Agreement under Section 5(b) shall not be its exclusive remedy for any default by the other Party or affect such other Party's responsibility
for performing its obligations under this Agreement.
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(d) Upon termination of this Agreement, each Party shall cease all theretofore permitted use of the other Party's name, trade names, trademarks, service marks, and
logos.
(e) Upon termination of this Agreement, CardFlex will disburse to City all fee payments accrued and not yet paid.
6. No Control Of Customer's Operations: Independent Parties. Notwithstanding anything to the contrary contained herein, this Agreement shall
not be construed to provide that CardFlex in any manner controls the operations of City or the manner in which the City complies with its obligations hereunder.
The Parties are independent. This Agreement does not create or evidence a partnership or joint venture between the Parties, and no Party has any authority hereunder with
respect to any of the employees or Customers of the other Party. Each Party is responsible for its own business expenses generally, including (without limitation)
expenses of performing its obligations under this Agreement, and for the payment of all taxes relating to its own business activities.
7. Non-Competition. Except as otherwise expressly provided in this Agreement, with respect to all Accounts established pursuant to this
Agreement, City agrees that neither City nor any entity that City controls shall by itself or in conjunction with others, directly or indirectly, during the term of this
agreement, specifically target any offer of a stored value, prepaid debit card, or related product to any of City's Customers.
8. Non-Exclusive Rights. City acknowledges and agrees that its rights under this Agreement to market and distribute CardFlex Cards shall be non-
exclusive in nature and that CardFlex shall be permitted to enter into similar arrangements with other potential distributors. In addition, during the term of this
agreement, City shall not be permitted to enter into a similar agreement with any or other debit card retailer, independent marketing organization, or third party
processor in direct or indirect competition with or providing services similar to CardFlex.
9. Indemnification.
(a)CardFlex hereby agrees to indemnify, defend, and hold harmless City and its Customers, employees, officers, directors, successors, and permitted assigns against
any and all losses, claims, or expenses (including, without limitation, reasonable attorneys' fees and expenses) in any way arising from or connected with the
inaccuracy of any representation or warranty of CardFlex hereunder, and the performance or nonperformance of CardFlex's obligations hereunder, it being the
intention of the parties that CardFlex shall be fully liable for the actions and inactions of, or other events affecting, Issuing Bank which constitute an inaccuracy of
any representation or warranty of CardFlex hereunder, and the performance or nonperformance ofCardFlex's or Issuing Bank's obligations hereunder.
(b) City hereby agrees to indemnify, defend, and hold harmless CardFlex and its Customers, employees, officers, directors, successors, and permitted assigns against
any and all losses, claims or expenses (including, without limitation, reasonable attorneys' fees and expenses) in any way arising from or connected with the
inaccuracy of any representation or warranty of City hereunder or the performance or nonperformance of City's obligations hereunder.
(c) In no event shall either Party be liable for any consequential, punitive, special, or exemplary damages relating to this Agreement
(d) The Parties' respective indemnification obligations under this Section 9 shall survive the termination of this Agreement.
10. Confidentiality. Except as to Issuing Bank, each Party shall keep the Confidential Information of the other Party confidential and shall not use any of
that Confidential Information for any purpose other than in connection with this Agreement. The "Confidential Information" of a Party is any trade secret or other
confidential or proprietary information relating to that Party's services, business, or Customers; except that information that is generally known to the public or in the
industry (other than by a breach of this Section 10), is in the possession of the receiving Party before disclosure by the other Party, or is or becomes available to the
receiving Party from a source that (to the receiving Party's knowledge) is not bound by any nondisclosure obligation to the other Party. A Party may, without violating
this Section 10, make such disclosures (a) to its directors, officers, employees, attorneys, and other Customers as may be necessary to permit that
Party to perform its obligations and to exercise its rights hereunder, and (b) as it reasonably deems are required by law, including the Freedom of
Information Act and the California Public Records Act, though a Party will use its reasonable efforts to notify the other Party in advance of any
such disclosure required by law. The Parties' respective obligations under this Section 10 shall survive the termination of this Agreement.
11. Compliance with Laws. The Parties will perform their respective obligations under this Agreement in compliance, in all
material respects, with all applicable Laws, orders, or regulations.
12. Access to Records.
(a) During the term of this Agreement, CardFlex shall maintain accurate records with respect to all issuances of the CardFlex Cards to City
introduced accounts and provision of the CardFlex Services to Customers, the receipt of all payments and other amounts from Customers, all
transactions of Customers using the CardFlex Cards, and all other matters related to this Agreement and copies of all documents and other
materials related to CardFlex's obligations to City under this Agreement. Within 30 days of City's written request to CardFlex, but not more
than once in any twelve-month period, City, by its duly authorized Agents and representatives, shall have the right to inspect such records,
documents and materials from time to time during ordinary business hours, subject to (i) such security procedures as CardFlex may
reasonably impose and (ii) such limitations as may be required under applicable governmental or regulatory rules, regulations or statutes
governing the conduct of CardFlex's business; provided, however, that Parties shall have no obligation to disclose to each other, or to inspect
or copy, or have any other right of access to any other corporate financial information, or Customer Financial Information, or to obtain
photocopies of such records, documents, and materials. City agrees that any records, documents, and materials made available for inspection
under this Section 12 shall be deemed Confidential Information of CardFlex that is subject to CardFlex's corporate privacy policy, except
with respect to any disclosure required by any regulatory agency with jurisdiction over City, or Section 10 of this Agreement.
(b) Within 30 days of CardFlex's written request to City, but not more than once in any twelve-month period, CardFlex, by its duly
authorized Agents and representatives, shall have the right to inspect the records, documents and materials maintained by City relating to
the CardFlex Cards and this Agreement, from time to time during ordinary business hours, subject to (i) such security procedures as City may
reasonably impose and (ii) such limitations as may be required under applicable governmental or regulatory rules, regulations or statutes
governing the conduct of City's business; provided, however, that Parties shall have no obligation to disclose to each other, or to inspect or copy,
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or have any other right of access to any other corporate financial information or Customer Financial Information, or to obtain
photocopies of such records, documents, and materials. CardFlex agrees that any records, documents, and materials made available for
inspection under this Section 12 shall be deemed Confidential Information of Customer that is subject to City's privacy policy, except with
respect to any disclosure required by any regulatory agency with jurisdiction over CardFlex, or Section 10 of this Agreement.
13. Notice. Any notice, consent, or other communication to be given under this Agreement by any Party to the other Party shall be in
writing and shall be either (a) personally delivered, (b) mailed by registered or certified mail, postage prepaid with return receipt requested, (c)
delivered by prepaid overnight express delivery service or same-day local courier service, or (d) delivered by prepaid facsimile transmission, in
any case to the address or number set forth below or at such other address or number as may have previously been designated by a Party for it
by notice to the other Party in accordance with this Section 13. Notices delivered personally, by overnight express delivery service, or by local
courier service shall be deemed given as of actual receipt. Mailed notices shall be deemed given three Business Days after mailing (A "-Business
Day" is any Monday through Friday other than a day on which banks are authorized to be closed in the State of California.) Notices delivered
by facsimile transmission shall be deemed given upon receipt by the sender of the Transmission confirmation.
14. Assignment. Except as provided in this Agreement, the rights and obligations under this Agreement may not be assigned or
delegated by either Party without the prior written consent of the other Party, and any such purported assignment or delegation without such
consent shall be void. Either Party may assign its rights and obligations under this Agreement to any entity that controls, is controlled by, or is
under common control with such Party, so long as that other entity is not a direct competitor of the non-assigning Party and is capable of
performing (and agrees to perform) the obligations of the assigning Party under this Agreement. Any requested consent to assignment will
not be unreasonably withheld by a Party, unless the entity to which the assignment is to be made is a direct competitor of the non-assigning Party
(in which case, consent shall be in the sole discretion of the non-assigning Party).
15. Governing Law. This Agreement shall be governed by, construed in accordance with, and enforced under the laws of the State of
California.
16. Force Majeure. Except as otherwise expressly set forth herein, in the event a Party shall be delayed or hindered in, or
prevented from, the performance of any act required of it hereunder by reason of strike, inability to procure materials, failure of power,
telecommunications or connectivity failure, restrictive governmental laws or regulations, inability to obtain or maintain (for any reason outside of
a Party's reasonable control) any governmental or regulatory license or authorization, riot, insurrection, war, terrorism and/or any act in
furtherance of terrorism, act of God, or other event outside that Party's reasonable control (each such cause or event being hereinafter referred to as
a "Force Majeure") then performance of such acts will be excused for the period of the delay and the period for performance of any such act
shall be extended for a period equivalent to the period of such delay. Any time a Party is experiencing a Force Majeure that is expected to
result in a significant failure or delay, that Party will give notice to the other Party describing the Force Majeure and the nature of the failure
or delay and giving an estimate as to how long the delay will be. A Party claiming an excusable delay or failure under this Section 16 shall use
reasonable efforts to alleviate or overcome the Force Majeure as soon as practicable.
17. Offset. A Party shall be entitled to credit or offset an amount equal to any or all amounts due to it by the other Party under this
Agreement.
18. Dispute Resolution. Any dispute or controversy arising out of or relating to this Agreement, or the interpretation or termination of
this Agreement ("Dispute"), shall be resolved or settled by arbitration before a single arbitrator pursuant to the Rules for Commercial
Arbitration of the American Arbitration Association (the "Rules"). Arbitration may be commenced at any time by a Party's giving written
notice to the other Party that a Dispute has been referred to arbitration under this Section 18. The arbitration proceeding shall be conducted in
Orange County, California. The arbitrator shall be selected by agreement of the Parties, but if they do not so agree within 20 days after the
date of the notice referred to in the second preceding sentence, the selection shall be made by the Orange County office of the American
Arbitration Association pursuant to the Rules. Any award rendered by the arbitrator shall be conclusive and binding upon the Parties. This
provision for arbitration shall be specifically enforceable by either of the Parties, and judgment upon the arbitration award may be entered and
enforced in any court having jurisdiction over the Parties or their respective assets, it being the intent of the Parties that these arbitration
provisions be enforced to the fullest extent permitted by applicable law. Each of the Parties shall pay its own expenses of arbitration
(including, without limitation, those of its own counsel and witnesses), and the expenses of the arbitrator shall be shared equally by the Parties;
except that if, in the opinion of the arbitrator, any claim or any defense or objection thereto was unreasonable, the arbitrator may assess, as part
of his or her award, all or part of the arbitration expenses of the other Party (including, without limitation, its reasonable attorneys' fees) and of
the arbitrator against the Party asserting charge unreasonable claim, defense, or objection Nothing in this Section 18 precludes a Party from
applying to a court having jurisdiction to (a) seek provisional or temporary injunctive relief, in response to an actual or threatened breach of
this Agreement or otherwise to avoid irrevocable damage or maintain the status quo, until a final arbitration decision or award is rendered or a
Dispute is otherwise resolved or (b) enforce the provisions of this Section 18. Nothing in this Section 18 precludes the Parties from resolving a
Dispute by agreement at any time.
19. Amendment Waiver. This Agreement may only be amended by the written consent of both Parties, and any provision hereof may
be waived only by a document signed by the Party against which the waiver is sought to be enforced. A Party's failure or delay in enforcing the
other Party's performance of any of such other Party's obligations under this Agreement shall not be a waiver of any of those obligations.
20. Invalid Provisions. If any provision of this Agreement is ever held to be invalid or unenforceable, that provision will be severed from
the rest of this Agreement, and all of the other provisions of this Agreement will remain in effect, but will be amended by the Parties to the extent
possible to result in this Agreement having the same relative economic benefits and detriments to the Parties as existed before the severance
of the invalid or unenforceable provision.
21. Entire Agreement. This Agreement contains the entire agreement of the Parties as to the subject matter hereof and supersedes all
prior agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof. The Authorized
Payment Processor Applicant Form is an integral part of this Agreement.
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22. Binding Effect: No Third-Party Beneficiaries. This Agreement and the rights and obligations hereunder shall be binding upon and
shall inure to the benefit of the Parties and their legal successors and permitted assigns. Except as otherwise provided in Section 1 and 2 above,
nothing in this Agreement, expressed or implied, is intended to confer upon any person or entity, other than the Parties And their legal
successors and permitted assigns, any rights, benefits, or obligations.
23. Compliance with Gram m-Leach-BlilevAct. Notwithstanding the foregoing, nothing herein shall require either Party to violate
Title V of the Gramm-Leach-Bliley Act (the "Act") or any regulation promulgated thereunder with respect to the privacy of the customers of any
financial institution.
24. Organization and Qualification. The Parties represent and warrant to each other that each Party is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is organized, is duly qualified and in good standing as a foreign
entity in every state in which the character of its business requires such qualification (except where the failure to obtain such foreign
qualification would not have a material adverse effect on City's business) and has the power to own its property and carry on its business as now
conducted.
25. Due Authorization. The execution and delivery by the Parties of this Agreement, the performance by the Parties of the transactions
contemplated hereby and compliance by the Parties with the terms of this Agreement, (a) are within the Parties' power and authority; and, (b) have
been duly authorized by all necessary action. This Agreement has been duly executed and delivered by the Parties and constitutes a valid and
binding agreement of each Party, enforceable in accordance with its terms.
26. Consents. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to
each of the terms of this Agreement, and shall indemnify the other Party fully, including reasonable costs and attorney's fees, for any injuries or damages to that Party in
the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
27. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute
one, and the same, document.
Date
IN WITNESS WHEREOF, the Parties have caused this Distribution Agreement to be executed and effective as of the Effective
CITY OF SANTA ANA
By:
Print Name: Paul M. Walters
Title: -City Manager
Address: Clerk of the Council
20 Civic Center Plaza (-30)
Santa Ana, CA
Date:
CARDFLEX, INC:
By:
Name:
Title:
Date:
Recommended for Approval:
Francisco Gutierrez, Ex Dir FMSA
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ADDENDUM A
CardFlex Services and Pricing
• General Purpose Reloadable Prepaid Cards ............................................................$3ea
• Implementation and Set-Up ............................................................................$5,000
o Card Design and Set-up
o MasterCard or Discover Submittal
o First CA Bank Submittal
o Custom Card Carrier and Collateral
o Custom Cardholder Landing Page
o Marketing Support Materials (electronic form)
• Returned Check Fee ..........................................................................................$20
• Card Replacement (Lost/Stolen) ........................................................................$5.00
*Account Activation is optional and not required by CardFlex.
**CardFlex will perform no disbursementfunctions under this agreement, but will provide (SA) with any
information needed to perform Direct Deposit, including authorizations and/or disclosures. Additional
disbursement services are available and can be added under a separate addendum, if necessary.
Initials
Initials
6 of 7
25H-20
ADDENDUM B
Cardholder Fees
Monthly Account Maintenance $4.95
POS Transactions FREE
NSF Overdraft Fee NONE
Load Fee FREE
Electronic Statement FREE
Direct Deposit FREE
Email Notifications - Balance Inquiry FREE
Text Message Alerts - Balance Inquiry FREE
Customer Service via IVR FREE
ATM Cash Withdrawal $2.00
Other Domestic ATM Transactions (including Declines) $0.50
International ATM Cash Withdrawal $3.50
Other International ATM Transactions (including Declines) $1.00
Cash Withdrawal From Bank $4.00
Bill Pay $1.00
Card to Card Transfers $1.00
Other Transfers $3.00
Expedite Card Delivery $25.00
Declined Transactions $.25
Live Agent Customer Service $2*
*Waived if card problem exists
Initials
Initials
7of7
25H-21
25H-22