HomeMy WebLinkAbout25B - AGMT - AMENDED KIOSKREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
SEPTEMBER 5, 2017
TITLE:
APPROVE A FIRST AMENDED
AGREEMENT WITH LD SYSTEMS TO
PROVIDE KIOSK WARRANTY AND
SOFTWARE SUPPORT SERVICES
(STRATEGIC PLAN NO. 41 1)
CI MA AGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
•;• 1.
❑ As Recommended
❑ As Amended
❑ Ordinance on 1s' Reading
❑ Ordinance on 2ntl Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute an amendment with LD
Systems for hardware warranty and software support services pertaining to the City's Payment
Kiosk for the period beginning September 1, 2017 through December 31, 2020, for an amount
not to exceed $77,675, which includes a $25,000 contingency; along with a provision for a six-
month extension (January 1, 2021 to June 30, 2021) exercisable by the City Manager and the
City Attorney, in an amount not to exceed $3,550 subject to non -substantive changes approved
by the City Manager and the City Attorney.
DISCUSSION
The Treasury and Customer Service Division of the Finance and Management Services Agency
('Treasury") operates Santa Ana's city-wide cashiering system. As part of this system Treasury
maintains a multi -window cashiering operation in the City's main lobby, serving the City's
customer base which is largely cash oriented resulting in high volumes of walk-in customer traffic.
To address the issue of transaction volume and to help accommodate our customers' afterhours
payment needs, the City entered into a Payment Kiosk Services agreement with LD Systems for
a Payment Kiosk system ("Kiosk").
The Kiosk allows customers multiple payment options on a 24 hour/7 days a week basis without
them having to come into City Hall to use the main lobby cashiering counter. Additionally, the
Kiosk software maintains the capability for customers to process payments for various City
revenue sources including but not limited to: municipal utility services, business license, dog
license, parking citations, paramedic subscriptions. Additionally, the Kiosk is designed to accept
cash, credit card, and check payments with the ability to dispense change including currency and
coin.
2513-1
First Amended Agreement with LD Systems for Renewal of Payment
Kiosk Warranty and Software Support Services
September 5, 2017
Page 2
In order to facilitate payments during non-operating hours (afterhours) as well as during regular
business hours, the Kiosk is situated as a "through -the -wall' installation fronting outward from the
southeast facing wall of City Hall adjacent to the main lobby doors. The Kiosk processes over
5,000 transactions annually and is of assistance in reducing lines at the cashiering counter and
alleviating the need for additional cashiering counter staff.
Following recent upgrades to the Kiosk system, a warrantable service agreement may be
extended until June 30, 2021. LD Systems will provide hardware warranty, software licensing,
maintenance, and support through the new agreement. As an added benefit when renewing the
agreement, LD Systems will also upgrade the Kiosk system to enable remote off-site system
hosting, thereby improving monitoring and trouble -shooting of Kiosk functions.
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet Goal #4 - City Financial Stability,
Objective 1 (maintain a stable, efficient and transparent financial environment).
FISCAL IMPACT
For the contract period, funds in the amount of $77,675, which includes a $25,000 contingency
will be budgeted and available as follows:
If it is determined that a further six-month extension is needed for January 1, 2021 through June
30, 2021, funds in the amount of $3,550 will be budgeted and available as follows:
FY
FY
FY
FY
Account No.
2017-18
2018-19
2019-20
2020-21
(Sep -Jun)
(Jul -Jun)
(Jul -Jun)
(Jul -Dec)
05210018-62300
$67,675
$5,000
$0
$0
01110130-62300
$0
$0
$2,500
$ 2,500
If it is determined that a further six-month extension is needed for January 1, 2021 through June
30, 2021, funds in the amount of $3,550 will be budgeted and available as follows:
25B-2
FY
Account No.
2020-21
(Jan -Jun)
01110130-62300
$3,550
25B-2
First Amended Agreement with LD Systems for
Upgrade & Extension of Payment Kiosk Services
September 5, 2017
Page 3
APPROVED AS TO FUNDS AND ACCOUNTS
Francis Gutierrez
Executive Director
Finance and Management Services Agency
WH
Exhibits: 1. First Amended Agreement with LD Systems
25B-3
25B-4
FIRST AMENDMENT
TO INDEPENDENT CONTRACTOR SERVICES AGREEMENT
THIS FIRST AMENDMENT AGREEMENT, made and entered into this 5th day of
September, 2017 by and between C:E. Dean Enterprises, Inc., a Texas corporation, doing
business as LD Systems, 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,
and the City of Santa Ana, a charter city and municipal corporation organized and existing under
the Constitution and laws of the State of California (hereinafter "CITY").
RECITALS:
A. CITY OF SANTA ANA entered into an Independent Contractor Services Agreement
(Agreement #N-2017-160, "said Agreement") with CONTRACTOR for the provision of payment
kiosk refurbishment and warranty certification services for an amount not to exceed $25,000.00.
B. The effective Term of said Agreement was for the period commencing August 3, 2017
and ending December 31, 2017.
C. In accordance with the terms and conditions of said Agreement, the parties wish to
amend the Scope of Services of said Agreement to provide for payment kiosk hardware
warranty and software support services (including software licensing, software.upgrade and
maintenance, togetherwith remote hosting and monitoring services).
D. In accordance with the terms and conditions of said Agreement, the parties wish to
amend said Agreement to further extend the Term through December 31, 2020, with an option
for an additional six (6) month term beginning January 1, 2021 and ending June 30, 2021,
exercisable by the City Manager and the City Attorney.
E. The parties also wish to amend and add Compensation for the additional payment kiosk
hardware warranty and software support services and extended Term.
WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to
all the terms and conditions of said Agreement, except those amended in this First Amendment
to Independent Contractor Services Agreement, the parties agree as follows:
1. Section 1, SCOPE OF SERVICES, subsection 1.1 shall be amended to include (in addition
to Exhibit "A") those services as set forth in Exhibit "A-1" which exhibit shall be attached
hereto and incorporated into said Agreement by reference.
2. Section 2, COMPENSATION, subsection 2.1 shall be amended to include Exhibit "A-1" in
addition to Exhibit "A" and to increase the maximum total amount expendable under said
Agreement from $25,000 to $81,225, which amount shall include a $25,000 contingency
fund. Contingency funds may be used in connection with any parts and/or labor or services
described in Exhibits "A" or "A-1" or in connection with any additional services or extra work
as may be ordered by CITY and agreed to by CONTRACTOR in accordance with Section
16, ADDITIONAL SERVICES, and may include but not necessarily be limited to: added
functionality, enhanced platform offerings, third party software/hardware integration(s), and
Payment Card Industry Data Security Standard (PCI DSS) compliance requirements.
25B-5
3. Section 3, TERM, shall be amended to extend the Term of said Agreement through
December 31, 2020, with an option for an additional six (6) month term beginning January 1,
2021 and ending ,June 30, 2021, exercisable by written notice given to CONTRACTOR by
the City Manager and the City Attorney not later than the first day following the, last
December2020council meeting date, unless terminated earlier In accordance with Section
29 of said Agreement.
4. In addition to the amendments as made hereinabove, whenever the terms of said
Agreement shall reference Exhibit "A", they shall also read to include Exhibit "A-1".
5. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in
full force and effect.
(Signatures on following page)
2
25B-6
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement
the date and year first above written.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
Lisa rck
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
Francisco Gutierrez, Executive Director
Finance & Management Services Agency
3
CITY OF SANTA ANA
CYNTHIA J. KURTZ
Interim City Manager
CONTRACTOR
C.E. Dean Enterprises, Inc.,
dba LD Systems
Cliff Dean, CEO
Tax ID# 75-2556260
25B-7
EXHIBIT "A-1"
SCOPE OF SERVICES
(a) CONTRACTOR shall provide CITY a KIOSK Information Systems Software
("KIOSK") License & Maintenance Agreement (LD Systems — City of Santa Ana Upgrade to K-
Nect License & Maintenance Approach) as set forth in accordance with Exhibit "A -1(a)", which
exhibit shall be attached hereto and incorporated by reference. The KIOSK License &
Maintenance Agreement shall cover a forty (40) month base term beginning September 1, 2017
through December 30, 2020, and shall include an optional extension term, solely exercisable by
CITY, covering an additional six (6) month period from January 1, 2021 through June 30, 2021.
(b) CONTRACTOR shall provide CITY a KIOSK CORE K -Nett Software License &
Maintenance Agreement Statement of Work ("SOW") for the development and licensing costs
for the upgrade of the CITY payment kiosk to KIOSK CORE K-Nect as set forth in accordance
with Exhibit "AA(b)", which exhibit shall be attached hereto and incorporated by reference.
CORE K-Nect ("Knect") is the base software platform upon which the Santa Ana payment kiosk
application will run. Knect has multiple functions as the base platform including payment kiosk
administration, user management, system application and component monitoring, real-time alert
messages, uptime reporting and data logging. The upgrade to K-NECT will allow the CITY to
run its payment kiosk off of the KIOSK cloud server to take advantage of the Knect base
platform offerings.
(c) CONTRACTOR shall provide CITY a KIOSK Advantage Exchange with
Technician Warranty ("Warranty"). Warranty shall cover a forty (40) month base term beginning
September 1, 2017 through December 30, 2020, and shall include an optional extension term,
solely exercisable by CITY, covering an additional six (6) month period from January 1, 2021
through June 30, 2021.
(d) Scheduled compensation amounts for CONTRACTOR'S Services under said
Agreement, exclusive of parts/labor or services performed in connection with Exhibit "A" of said
Agreement, or additional services or. extra work subsequently performed pursuant to an
approved Change Order shall be as follows:
License & Maintenance Agreement:
a. Base Term —September 1, 2017 through December 31, 2020
$ 7,000.00 Core K-Nect One-time License Fee
$ 5.040.00 Core K-Nect Annual Maintenance
$ 12,040.00 Total License & Maintenance
b.' Optional Term — January 1, 2021 through June 30, 2021
$ 1,000.00 Core K-Nect Annual Maintenance (6 month's Proration)
ii. KIOSK K-Nect Software License & Maintenance Agreement Statement of Work:
a. Upgrade to K-Nect — SOW Development & Licensing Fees
$ 23,200.00 One-time City of Santa Ana Upgrade to Core K-Nect
r
b. SOW Development Anticipated Milestone Dates
1. Estimated "Start Date" of SOW Development— 10/2/2017
2. Estimated "Completion Date" of SOW Development -11/15/2017
3. Estimated "Testing Date" User Acceptance Testing —11/29/2017
4. Estimated "Acceptance Date" User Acceptance —12/15/2017
iii. KIOSK Advantage Exchange with Technician Warranty:
a. Base Term —September 1, 2017 through December 30, 2020
$ 17,435.00
b. Optional Term — January 1, 2021 through June 30, 2021
$ 2,550.00
(e) Software (as necessary) will be delivered electronically. Sales Tax or any other
applicable taxes will not be invoiced. The City will be responsible to remit any taxes to a taxing
authority as applicable.
(f) Payment Schedule
CONTRACTOR will invoice City as follows (based on "actual date"):
i. For one-time charges and base term services charges:
1. 50% ($26,337.50)
- Invoiced upon Date of Full Execution of First
Amended Agreement
2. 25% ($13,168.75)
- Invoiced upon Date of Completion of SOW
Development
3. 15% ($ 7,901:25)
- Invoiced upon Date of User Acceptance Testing
Commencement
4. 10% ($ 5,267.50) - Invoiced upon.Date of Final City User Acceptance
ii. For optional term services charges:
1. 100% ($3,550.00) - Invoiced upon Date of Written CITY Notice of Election
To Exercise Option to Extend Agreement
(Must be exercised by CITY by day following
last city council meeting of December,
2020.)
(g) Payment Terms
Terms are Net 30 from date of CITY receipt of CONTRACTOR'S invoice.
E
25B-9
Exhibit "A -1(a)"
KIOSK Software License &
Maintenance Agreement
LD Systems — City of Santa Ana
Upgrade to K-Nect License &
Maintenance Approach
August 28, 2017
Revision 1.1
25B-10
License & Maintenance Table of Contents
LICENSE & MAINTENANCE TABLE OF CONTENTS....................................................................................................2
VERSION................................................................................................................................................................2
KIOSK SOFTWARE LICENSE AND MAINTENANCE AGREEMENT ...............................................................................3
TERMSAND CONDITIONS......................................................................................................................................3
1. DEFINITIONS.........................................................................................................................................................3
2. LICENSE...............................................................................................................................................................3
3. MAINTENANCE......................................................................................................................................................6
G. EXCEPTIONS.........................................................................................................................................................7
4. LIMITED WARRANTY......................................................................................................................:.......................7
S. LIMITATION OF LIABILITY; EXCLUSION OF CONSEQUENTIAL DAMAGES..............................................................................7
6. DEFAULT..............................................................................................................................................................8
7. NOTICES..............................................................................................................................................................8
8. TERM AND TERMINATION; SURVIVAL ........................................................................................................................8
9. GOVERNING LAW..........................................................................................................................................:.......8
10. JURISDICTION AND VENUE................:..................................................................................................................9
11. ATTORNEYS'.FEES..............................................................................................................................................9
12. MODIFICATION AND WAIVER..............................................................................................................................9
13. PURCHASE ORDERTERMS...................................................................................................................................9
14. LANGUAGE......................................................................................................................................................9
SCHEDULE A TO KIOSK SOFTWARE LICENSE.........:...............................................................................................10
1 LICENSE FEES........................................................................................................................:.............................
10
Version
1.0.0 Created on August 3, 2017 by KIOSK Software Development Group.
25B-11
KIOSK Software License and Maintenance Agreement
This Software License and Maintenance Agreement ("License Agreement") is entered into as of the
Effective Date by and between Kiosk Information Systems ("KIOSK") and you ("Client'). Terms not
defined herein shall have the meaning set forth in the Master Services Agreement between KIOSK and
Client dated
TERMS AND CONDITIONS
1. Definitions
For purposes of this License Agreement
a. Effective Date - means the later date of execution (as shown on the signature page) by a
party of this License Agreement.
b. Error Correction - means eithera modification or addition that, when made or added to the
Licensed Software, brings the Licensed Software into material conformity with the Software
Requirements and Specifications set forth in the Statement of Work (SRS), or a procedure or
routine that, when observed in the regular operation of the Licensed Software, avoids the
practical adverse effect of such nonconformity.
c. Maintenance - shall have the meaning ascribed in Section 3.
d. Maintenance Term - means the time during which Maintenance will be provided by KIOSK
commencing on the Effective Date and continuing forthe duration of the time maintenance
is purchased.
e. Releases - means new versions of the Licensed Software, which may include Error
Corrections and/or Updates.
f. Licensed Software— means the object code version of the software used to operate a
Product as originally delivered to Client as listed on Schedule A hereto, as well as any related
software programs, purchased or provided, which are designed to operate in conjunction
with that software program.
g. Update - means new minor modifications of or improvements to the existing features of the
Licensed Software (i) which KIOSK makes commercially' available and (ii) which would
normally be designated as a change in the digit(s) to the right of the tenths digit in the
product version number [x.x.x]. "Update" does not include a product revision that provides
any material enhancement of Licensed Software features or functionality. KIOSK reserves
the right and authority to define an update.
h. KIOSK CORE -means KIOSK Core or KIOSK CORE K-Nect.
2. License
a. License Grant. Subjectto the terms of the Agreement, KIOSK grants to Client a worldwide
perpetual, revocable (but only for breach), fully paid-up, royalty free, non-exclusive, non-
transferable, non-sublicensable (except as otherwise permitted by the terms of this
License Agreement), license to Use the Licensed Software. Such Use of the Licensed
Software shall be restricted, except as otherwise provided in this License Agreement, to
25B-12
Use of the Licensed Software on the hardware on which such Licensed Software is first
installed and to Use of the Licensed Software on any new hardware provided by KIOSK in
the ordinary course of Client's business operation.
b. Restrictions. Except as expressly stated in the Agreement, Client may not and shall not:
(i) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make Error
corrections to the Deliverables in whole or in part; (ii) make any derivative works based
on the Deliverables, including but not limited to, by incorporating some or all of the
Deliverables in another piece of software or by adapting or modifying the Deliverables to
give it additional features or to allow the Deliverables to run on additional hardware
and/or delete or remove the copyright notices, trademarks and numbers of KIOSK or any
other attributes that identifies the Deliverables; (iii) work around anytechnical limitations
in the Deliverables or exceed the number or type of scope of Use agreed to and paid for
by Client; (iv) lease, sublicense, rent, lend, timeshare, distribute, transfer or assign the
Deliverables or any portion thereof to any third party (including by operation of law, stock
transfer or merger) without the prior written authorization of KIOSK; or (v) purposely use
the Deliverables In violation of Applicable Laws.
c. Ownership and Reservation of Rights. KIOSK is the sole and exclusive owner of all right,
title, and interest in and to the Licensed Software (including ownership of all copyrights
and other intellectual property rights pertaining thereto), subject only to the license
expressly granted to the Client herein. Any rights not expressly granted to Client herein
are reserved to KIOSK.
d. "Software Rights"
The following table sets forth Software ownership rights with respect to the
Deliverables. Underlying Software used in Deliverables is subject to respective Party's
Background IP Rights.
25B-13
Client owned Software (software
Supplier (Kiosk) proprietary Software
developed for Client underthe Agreement)
licensed to Client
as defined in Table 1 of the Development
Statement of Work
Web Portal -
UI Skin - Assets that make up the custom
Browser -based access to view
user interface such as images and style -
monitoring, alerting, transaction,
sheets
and analytics modules
KIOSK Application Logic Layer (KALL)
Host to aggregate individual
modules expose as APIs for other
applications to consume
Client -side APIs and supporting
logic
Hardware Provider Layer (HPL)
Hardware device status
Monitoring & Alerting on device
status
25B-13
25B-14
Client owned Software (software
Supplier (Kiosk) proprietary Software
developed for Client under the Agreement)
licensed to Client
as defined in Table 1 of the Development
Statement of Work
Hardware device status reporting
Client -side & Server -side APIs and
supporting logic
Screens - Basic set of screens that provide
Flow Definition - Specific definition of screen
the functionality that supports a majority
flows
of user interactions that can be performed
on a device (kiosk)
Flow Logic
Kiosk Application Logic Layer (KALL)
Mechanism to define & leverage
Integration -Custom code to consume KALL
navigation for each screen that
within the application.
becomes the application flow
Client -side APIs and supporting
logic
Transaction
Storage and reporting of
transactions that are performed
at the device (kiosk)
Client -side & Server -side APIs and
supporting logic
Analytics
Storage and reporting of analytical
data that occurs at the device
(kiosk)
Client -side & Server -side APIs and
supporting logic
Remote Monitoring
Status of devices (kiosk level)
Monitoring & Alerting on device
status change
Uptime reporting
Client -side & Server -side APIs and
supporting logic
Authentication
Access control for devices & users
Client -side & Server -side APIs and
supporting logic
Licensing
Assign & validate modules that
the device and/or user has access
to consume
25B-14
3. Maintenance
a. Scope of Maintenance. During the Maintenance Term, KIOSK agrees to provide basic
maintenance services in support of the Licensed Software product platform specifically
identified on Schedule A ("Maintenance"). If no Licensed Software is listed on Schedule A,
nothing beyond basic maintenance will be provided. Basic maintenance services shall
consist of:
1 Error Correction. KIOSK shall be responsible for using all reasonable diligence to
correct verifiable and reproducible Errors when reported to KIOSK in accordance
with its standard reporting procedures. The Error Correction, when completed, may
be provided in the form of a "temporary fix," consisting of sufficient programming
and operating instructions to implement the Error Correction.
ii The Client is responsible for procuring, installing, and maintaining all equipment,
telephone lines, communications interfaces, and other hardware necessary to
operate the Licensed Software and to obtain maintenance services from KIOSK.
KIOSK will not be responsible for delays caused by events or circumstances beyond
its reasonable control.
iii New Releases. KIOSK may, from time to time, issue new Releases of the Licensed
Software, containing Error Corrections and/or Updates, to Clients who generally
have maintenance agreements in effect. KIOSK shall provide the Client with one (1)
copy of each new Release for each copy of the Licensed Software being maintained
under this License Agreement, without additional charge. KIOSK shall provide
reasonable assistance to help the Client install and operate each new Release on a
time and materials basis. Note: Some compatible and related software may be
released by KIOSK and made available to the Client through additional purchases.
After purchasing such software, updates to the compatible and related software
may be provided forthe unit(s) covered under this Software License and
Maintenance Agreement.
b. Provision of Maintenance. If Maintenance is cancelled or expires, Client can only receive
software updates via an incremental purchase of a software upgrade, subject to future
terms and pricing. Once an incremental software upgrade is purchased, the Client will be
afforded the opportunity to purchase a software license and maintenance agreement for
the upgrade purchased.
c. Fees and Expenses. The fee for Maintenance shall be 30% of license fee per kiosk or unit per
year (as listed in Schedule A). Such fee is due and payable at the Effective Date and each
renewal year of the Maintenance Term hereunder. Such fees do not include any applicable
travel and living expenses for installation and training, file conversion costs, optional
products and services, directories, consulting services, shipping charges, or the costs of any
recommended hardware. The Client agrees to pay such fees and costs, when and as the
25B-15
Client owned Software (software
Supplier (Kiosk) proprietary Software
developed for Client under the Agreement)
licensed to Client
as defined in Table 1 of the Development
Statement of Work
Client -side & Server -side APIs and
supporting logic
3. Maintenance
a. Scope of Maintenance. During the Maintenance Term, KIOSK agrees to provide basic
maintenance services in support of the Licensed Software product platform specifically
identified on Schedule A ("Maintenance"). If no Licensed Software is listed on Schedule A,
nothing beyond basic maintenance will be provided. Basic maintenance services shall
consist of:
1 Error Correction. KIOSK shall be responsible for using all reasonable diligence to
correct verifiable and reproducible Errors when reported to KIOSK in accordance
with its standard reporting procedures. The Error Correction, when completed, may
be provided in the form of a "temporary fix," consisting of sufficient programming
and operating instructions to implement the Error Correction.
ii The Client is responsible for procuring, installing, and maintaining all equipment,
telephone lines, communications interfaces, and other hardware necessary to
operate the Licensed Software and to obtain maintenance services from KIOSK.
KIOSK will not be responsible for delays caused by events or circumstances beyond
its reasonable control.
iii New Releases. KIOSK may, from time to time, issue new Releases of the Licensed
Software, containing Error Corrections and/or Updates, to Clients who generally
have maintenance agreements in effect. KIOSK shall provide the Client with one (1)
copy of each new Release for each copy of the Licensed Software being maintained
under this License Agreement, without additional charge. KIOSK shall provide
reasonable assistance to help the Client install and operate each new Release on a
time and materials basis. Note: Some compatible and related software may be
released by KIOSK and made available to the Client through additional purchases.
After purchasing such software, updates to the compatible and related software
may be provided forthe unit(s) covered under this Software License and
Maintenance Agreement.
b. Provision of Maintenance. If Maintenance is cancelled or expires, Client can only receive
software updates via an incremental purchase of a software upgrade, subject to future
terms and pricing. Once an incremental software upgrade is purchased, the Client will be
afforded the opportunity to purchase a software license and maintenance agreement for
the upgrade purchased.
c. Fees and Expenses. The fee for Maintenance shall be 30% of license fee per kiosk or unit per
year (as listed in Schedule A). Such fee is due and payable at the Effective Date and each
renewal year of the Maintenance Term hereunder. Such fees do not include any applicable
travel and living expenses for installation and training, file conversion costs, optional
products and services, directories, consulting services, shipping charges, or the costs of any
recommended hardware. The Client agrees to pay such fees and costs, when and as the
25B-15
services are rendered and the expenses incurred, as invoiced by KIOSK. KIOSK reserves the
right to require prepayment or advance deposit for such additional charges or expenses in
some instances. The Client is also responsible for sales or use taxes and state or local
property or excise taxes associated with Client's licensing, possession, or use of the Licensed
Software or any associated services.
d. Annual Renewal. The Maintenance Term shall automatically renew at the end of the Term
unless canceled by the Client prior to the end of the Term of this License Agreement . Client
shall provide thirty (30) calendar day's written notification of its intention to cancel this
Software License and Maintenance Agreement.
e. Back -Level Support. KIOSK will use reasonable commercial efforts to maintain one prior
back -level version of the Licensed Software.
f. Cooperation of the Client. The Client agrees to notify KIOSK promptly following the
discovery of any Error. Further, upon discovery of an Error, the Client agrees, if requested by
KIOSK, to submit to KIOSK a listing of output and any other data that KIOSK may require in
order to reproduce the Error and the operating conditions under which the Error occurred
or was discovered.
g. Exceptions. The following matters are not covered by Maintenance:
i Any problem resulting from the misuse, improper use, alteration, or damage of the
Licensed Software;
ii Any problem caused by modifications in any version of the Licensed Software not
made or authorized by KIOSK;
iii Any problem resulting from programming other than the Licensed Software or
equipment;
iv Any problem resulting from the combination of the Licensed Software with such
other programming or equipment to the extent such combination has not been
approved by KIOSK; or
v Errors in any version of the Licensed Software other than the most recent Release.
4. Limited Warranty
KIOSK shall perform its services hereunder in a workmanlike manner. Notwithstanding the addition of
any Error Correction, Update, or Release to the Licensed Software for purposes of the License
Agreement, KIOSK's obligation to correct Errors in such additions shall be limited to the maintenance
terms of this License Agreement. Notwithstanding the provisions of Section 13 of the Agreement,
EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, KIOSK SHALL HAVE NO LIABILITY FOR THE
Licensed Software OR ANY SERVICES PROVIDED, INCLUDING ANY LIABILITY FOR NEGLIGENCE; KIOSK
MAKES AND THE CLIENT RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER
PROVISION OF THIS LICENSE AGREEMENT OR ANY OTHER COMMUNICATION; AND KIOSK SPECIFICALLY
DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
S. Limitation of Liability; Exclusion of Consequential Damages
IN NO EVENT SHALL KIOSK BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR
EXEMPLARY DAMAGES OF ANY NATURE IN CONNECTION WITH THIS LICENSE AGREEMENT AND THE
SERVICES OR SOFTWARE PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
25B-16
LOSS OF: BUSINESS PROFITS, BUSINESS INTERRUPTION, BUSINESS INFORMATION OR DATA STORAGE,
GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES
OR LOSSES, ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF KIOSK
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Default
Should the Client fail to pay any fees or charges due hereunder or fail to carry out any other obligation
under this License Agreement or any other agreement with KIOSK, KIOSK may, at its option, in addition
to other available remedies, terminate this License Agreement or suspend Maintenance, provided that it
first gives the Client thirty (30) calendar days prior notice in order to permit the Client to cure the
Client's default. In addition, Maintenance will automatically terminate with respect to any copies of
Licensed Software that are no longer regularly used by KIOSK Clients whether as a result of expiration or
replacement of such versions with new Releases.
7. Notices
All notices or other communications required to be given hereunder shall be in writing and shall be
delivered by personal delivery, mail, courier, or facsimile to the address or facsimile number of the other
party set forth in the Agreement. Notice shall be deemed given based on any one of the following
notification methods: upon personal delivery; if sent by fax, with confirmation of correct transmission,
on the next business day after it was sent; upon the courier's confirmed delivery if sent by courier; and if
sent by mail with proper postage prepaid, five (5) calendar days after the date of mailing. A party may
change its address for notice by delivering to the other party written notice.
8. Term and Termination; Survival
a. Term. The term of this License Agreement (the "Term") shall commence on the Effective
Date and shall continue until terminated as set forth herein.
b. Termination. Either Party may terminate this License Agreement by delivering written
notice thereof to the other Party in the event that such other Party breaches any material
term or condition of this License Agreement and does not take action to cure such breach
within thirty calendar days after receipt of written notice from the non -breaching Party,
which notice shall specify the breach in reasonable detail.
c. Termination by Client. Client may terminate the license grant in the Licensed Software at
any time on 30 calendar days' notice to KIOSK. At termination of the license grant, Client
will no longer use the Licensed Software in any way and will destroy all copies of the
Licensed Software in its possession and have an officer of the Client certify to such
destruction.
d. Survival. The following shall survive the termination of this License Agreement: (a)
provisions of Sections 7, 8 and 11, (b) any payment obligations of either party accruing prior
to the effective date of such termination, and (c) any other provisions of this License
Agreement necessary to interpret the respective rights and obligations of the parties
hereunder
9. Governing Law. This License Agreement shall be governed by the laws of the State of Colorado and
the United States as applied to agreements entered into and fully performed therein by residents
thereof.
25B-17
10. Jurisdiction and Venue.
Any action or proceeding arising directly or indirectly from this License Agreement shall be litigated in
the state or federal courts located in Denver, Colorado. Bothparties consent to the jurisdiction of
such courts.
11. Attorneys' Fees.
The prevailing party in any action to enforce this License Agreement shall be entitled to recover costs
and expenses, including attorneys' fees.
12. Modification and Waiver.
This is the entire agreement between KIOSK and the Client relating to the subject matter hereof and it
may be amended only by a writing executed by the Client and KIOSK. The failure of either party at any
time to require performance by the other party of any provision hereof shall not affect in any way the
right to require such performance at any time thereafter. Nor shall the waiver by either party of a
breach of any provision hereof be taken or held to be a waiver of any subsequent breach of the same
provision or any other provision.
13. Purchase Order Terms.
The terms stated in this License Agreement are the exclusive terms regarding the Client's rights and
obligations with respect to the services provided hereunder and the license to the Licensed Software.
Any terms or conditions stated in any purchase order, acknowledgment or invoice shall be of no force
and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to
explain or modify any term expressed in the License Agreement. The issuance of a purchase order and/
or payment of the license fee invoice by the Client shall constitute full and unconditional acceptance
and acknowledgement of this License Agreement and its terms by the Client.
14. Language.
The official version of this License Agreement is in the English language and this License Agreement will
be construed in accordance with this version. Translations of this License Agreement into any other
language are for the purpose of accommodation only and shall be of no legal effect.
Signed for and on behalf of
the below named authorized
Representative thereof.
Signed: {To be signed to engage KIOSK}
By:
Company: Kiosk Information Systems
Title:
Signed for and on behalf of
the below named authorized
Representative thereof.
Signed: (To be signed to engage KIOSK)
By:
Company:
Title:
Date: Date:
25B-18
EXHIBIT "A -1(b)"
LD Systems i
City of Santa Ana
Upgrade to Kiosk
Core K-Nect
Statement of Work
Stacey Schramm
Director, Strategic Solutions
KIOSK Information Systems
346 South Arthur Avenue
Louisville, CO 80027
858.272.1527, sschramm@kiosk.com
KIOSK Information Systems
www.kiosk.com
August 28, 2017
Revision 1.1
25B-19
Upgrade to K-Nect Statement of Work
This Statement of Work ("SOW") is made and entered into effective the 2017, by and
between LD Systems ("LDS") and Kiosk Information Systems Inc. ("Supplier").
Below is the assessment of the workload, risk and timeframe for this development project.
Team required for entire project, whose services are incorporate into the fixed pricing provided herein:
• 1 developer
1 QA
• ism
This development engagement is based on two, 3 -week sprints= 6 weeks, +/-. The work defined below
outlines the scope and the work necessary to upgrade the Santa Ana project to CORE K-Nect.
AE Warranty & Field Service SOW
25B-20
Page 12
2;.`Irr Scope
The backlog table defines the Services and functionality in scope for this SOW.
1
Product Backlog item
1 Retrofit Old Santa Ana APIs To Work Vhth K -Nett
New
2
Bug
14 — — ------- APIs o -...-.--n
New
3
Product Backlog Item
Modify OLD SA Code To Work Wnh New Way of Sending Transact+ons To K -Nast
New
4
Bug
<---------> Transactions o--•---•-->
New
5
Product Backlog Item
FPL Integration. Printer
New
d
Product Backlog item
HPL Integration- Credit lard Reader
New
7
Product Backlog Item
f H.PL Integration -Barcode Scanner
New
B
Product Backlog Item
e HPL Integration • Bill Accepter
Net+
9
Product. Backlog Item
' kPt'Tr:iEd:5tA4FrCd,.'s.;jy¢Ipr
New
10
Product Backlog Item
' HPI Integration - Coin: Dispenser
New
li
Product Backlog Item
HPL Integration - BBl Disperser
New
12
Product Backlog Stem
Alerts- Integrate into Nov, Santa Ana Version
New
13
Bug
' <..........> Hwdware / Components / Alen <..........>
New
14
Product Backlog item
Create image
Nnv
15
Product 836109 l•.em
Wndows License
Ne v
15
Product Backlog Item
Imp!ementconig Changes
New
17
Bug
<------* Sokvare/Installs --- -------
New
18
Product Backlog item
Creme ie•.t Users
Navy
19
Product Backlog item
Credit Card InIectien - V+ ah at APT {CEent Is ut)
New
20
Bug
' <-------> Payment; & Prccessing <...».»_.>
N -a
21
Product Backlog Item
' Create NEW AWS SA DaWbxs
Nov
22
Bug
<..........a Databases <....»....>
New
The following items are assumptions that may have impact on the scope of this Statement of Work. To
the extent modifications are contemplated during the design, test or implementation phases based on
the requirement in scope or the assumption made herein, then the parties will update the scope and
cost of the SOW as required.
Does not include hardware modifications
AE Warranty & Field Service SOW Page 13
25B-21
L
a�ytig-
,� a s ° 3 i.
'4. Qevelopment & fiJcdnsingFees
The development estimate is based on the In -Scope item and assumptions listed above.
Estimated Development Sprints: 2 sprints = $69,600 (with a credit of $46,400). KIOSK will provide a
credit back to the development project account of the City of Santa Ana in the amount of $46,400).
Total net development costs = $23,200.
KIOSK Information Systems CORE K -Nett License - One time license fee of $7,000. One time license
fee, plus: $1,500 for each of three (3) years starting September 1, 2017 (annual period to run from
September 1st through August 31st) + $540 for final 4 months (September, October, November,
December - 2020) of forty (40) month contractual term (base term). Total net base term licensing,
software support/maintenance costs = $12,040. (Additional $1,000 for optional six (6) month contract
extension term covering January 1, 2021 through June 30, 2021, if exercised.) See Kiosk CORE K-
Nect License and Maintenance Agreement for additional details.
Kiosk Information Systems Advantage Exchange with Technician Hardware Warranty - One time
warranty fee of $17,000. One time warranty fee covering three (3) years, starting September 1, 2017
(annual period to run from September 1st through August 31st) + $435 for final 4 months
(September, October, November, December - 2020) of forty (40) month contractual term (base term).
Total net base term warranty costs = $17,435. (Additional $2,550 for optional six (6) month contract
extension term covering January 1, 2021 through June 30, 2021, if exercised.)
Based on a development, licensing, software support/maintenance, and hardware warranty term of
forty (40) months covering September 1, 2017 through December 31, 2020 (base term), the total
extended net cost for KIOSK Information Systems services = $52,675. If exercised, the optional six (6)
month contract extension term (optional term) cost - all services combined - is $3,550 and the
maximum extended net cost of all services for the maximum forty-six (46) month contract term =
$56,225.
AE Warranty & Field Service SOW
25B-22
Page 14
VipS b a +LLy �e.
• Y
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
LD Systems Kiosk Information Systems, Inc.
Signature
Signature
By: Name
By: Name
Its: Title
Its: Title
Date
Date
AE Warranty & Field Service SOW Page 15
25B-23
25B-24