Loading...
HomeMy WebLinkAboutItem 4.3 - 1169 Authorization to Purchase Electronic Locker Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: October 4, 2016 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Authorization to Purchase Electronic Locker Systems for the Emerald Glen Recreation & Aquatic Complex Project (CIP No. PK0105) Prepared by: Douglas Rooney, Parks and Facilities Development Coordinator EXECUTIVE SUMMARY: The City Council will consider the direct purchase of electronic locker systems for the Emerald Glen Recreation & Aquatic Complex Project (CIP No. PK0105). The locker systems were included in the construction documents for the project but Staff is recommending procuring them directly from the vendor. STAFF RECOMMENDATION: Staff recommends that the City Council authorize the purc hase of the electronic locker systems and accompanying license and maintenance agreement for the Emerald Glen Recreation & Aquatic Complex Project (CIP No. PK0105). FINANCIAL IMPACT: Funds have been allocated in the existing Project construction budget. The Contractor will provide a deductive change order to the construction contract which will cover the cost of the locker purchase. DESCRIPTION: While the Emerald Glen Recreation and Aquatic Complex project was in the design phase, the Parks and Community Services Department determined that one of the amenities of the new facility should be electronic lockers. This type of locker provides patrons with convenient storage that can be accessed throughout the day. Working with the design team, Staff researched and assembled a list of electronic lockers with features that align with the Department’s operational needs. Staff concluded that the GoPod system from Best Lockers, LLC was the sole system that met all of the requirements and could be licensed and maintained on a scale appropriate for the facility. The drawings and specifications for the original project bid in December 2014 contained Page 2 of 2 electronic lockers from Best Lockers, LLC. The contract for construction was awarded to C. Overaa & Company in February of 2015. While under construction, Staff was notified by C. Overaa & Company that they were unable to procure the lockers by the usual means as the purchase required the buyer to enter into a licensing and maintenance agreement with Best Lockers, LLC. Staff consulted with the City Attorney and the City Attorney recommended removing the electronic lockers from the construction contract and procuring them in a direct purchase from the vendor. C. Overaa & Company will issue a deductive change order of the co nstruction contract, which will return monies to the construction contingency and said funds will be used for the direct purchase of the electronic lockers. Proposed Expenditures for Electronic Locker Systems: Equipment purchase (214 lockers and 3 kiosks) $155,012 This is a onetime purchase from the construction budget. Annual license and maintenance (for 5 years) $12,412 per year Yearly fee paid from the facility operating budget. (First year free) Because the GoPod Electronic Locker System from Best Lockers, LLC. is the only locker system that met all of the operational needs, it qualifies as a sole source purchase under the City’s Purchasing Ordinance. A detailed list of equipment and the license and maintenance agreement are included in Schedule A and Exhibit A within Attachments 1 and 2. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: 1. Sale Agreement. 2. License and Maintenance Agreement Best Initial ________ 1 Agreement L-15 / 08-05 S Buyer Initial ________ SALE AGREEMENT THIS SALE AGREEMENT (the “Agreement”) made and entered into as of this the 4th day of October 2016 (the “Effective Date”), by and between BEST LOCKERS, LLC, a Delaware limited liability company with its principal place of business at 2126 W. Landstreet Rd., Suite 300, Orlando, Florida 32809 (“Best”) and City of Dublin, California (“Buyer”), a municipality with its principal place of business at 100 Civic Plaza, Dublin, California 94568. 1. PURCHASE AND SALE. Best, on the terms and conditions of this Agreement, agrees to sell to Buyer, and Buyer agrees to purchase from Best, the security lockers (the “Lockers”) and related kiosk(s) and other equipment (the “Kiosks” and, together with the Lockers, the “Equipment”) described in the order attached to this Agreement as Exhibit A and the additional orders, if any, that the parties execute from time to time (each, an “Order”). Buyer acknowledges that Buyer, to use the software associated with the Equipment (the “Best Software”) and operate the Equipment, must enter into and maintain a separate License and Maintenance Agreement (numbered L-15 / 08-05 LM) with Best. 2. DELIVERY; TITLE; RISK OF LOSS; SECURITY INTEREST. Except as otherwise specified by the Order, shipping and delivery of the Equipment will be on or about February 20, 2017, F.O.B. to the Buyer’s facilities identified by the Order (each, a “Facility”). Title and ownership to the Equipment will remain in Best until payment is made in full, including any additional charges provided for in this Agreement, and Buyer will keep in full force fire, theft, and accident insurance for the benefit of both parties from delivery until payment in full is received by Best. Best reserves a security interest in the Equipment sold as security for performance of the Buyer’s obligations. 3. INSTALLATION AND TRAINING. 3.1. INSTALLATION. Best, subject to Buyer’s performance of its obligations under this Agreement will install the Equipment in the areas of the Facilities designated by this Agreement (each, a “Location”), in each case substantially on the time schedule specified by the Order. This Agreement refers to the date on which Best notifies Buyer that installation is complete and the Equipment is ready for use as the “Installation Date.” 3.2. TRAINING. Best will provide to Buyer training for a reasonable number of Buyer’s staff regarding use, maintenance and repair of the Equipment. The training will be conducted at the Facilities at a mutually agreeable time. Best, as between Best and Buyer, will be responsible for the travel costs incurred by the trainers, provided, that if the training is rescheduled at Buyer’s request on less than forty-five (45) days’ prior notice or because Buyer personnel are not available at the agreed time, Best will provide the rescheduled training on a time and materials basis. 4. OBLIGATIONS OF BUYER. 4.1. SITE PREPARATION; UTILITIES. Buyer, prior to the scheduled date for installation of the Equipment, will prepare the Location for installation of the Equipment. Without limiting the foregoing, Buyer will (i) remove any obstructions interfering with access to the Location, (ii) provide a flat, true and plumb 4 inch tall raised base on which to install the Locker System being provided, per Best CAD drawings provided after tech site visit (may be constructed of wood, plastic or concrete so long as the material used in construction provides sufficient load bearing strength to support the equipment to be installed upon it for the duration of equipment installation), (iii) install or have installed at the Location the utility and communications connections described by the Order or, in the absence of such a description, appropriate light ing, electric connections, switches and outlets, and a dedicated broadband Internet connection, and (iv) receive the Locker System components up to thre e weeks prior to the installation date and store them in a secure place at the Facilities. 4.2. COOPERATION WITH INSTALLATION AND TRAINING. Buyer, at its option and expense following the Installation Date, may install such additional facades, framing and other aesthetic improvements as it deems appropriate, provided, that such improvements do not impede the user or operation of the Equipment. 5. PAYMENT. 5.1. PURCHASE PRICE. Buyer will pay the purchase price and other charges specified by the Order on the schedule specified by the Order or, if no schedule is specified, within thirty (30) days of Best’s invoice. 5.2. TAXES. All prices are exclusive of all sales taxes, use taxes, value added taxes and any other similar taxes imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon Best’s net income. When Best has the legal obligation to pay or collect such taxes, the amount shall be invoiced to and paid by Buyer unless Buyer provides Best with a valid tax exemption certificate authorized by the appropriate taxing identity. 5.3. LATE FEES. If Buyer fails to pay any amount within fifteen (15) days following the due date, Best may impose a late fee of one and one-half percent (1.5%) for each month or part thereof the amount remains past due. 6. WARRANTY, DISCLAIMER. Best represents and warrants that (i) it owns or has sufficient rights in the Equipment to enter into and perform this Agreement, (ii) the Equipment, as of the date delivered to Buyer and for a period of one year thereafter, will be free of material defects in workmanship, and (iii) Best’s installation services provided will be of workmanlike quality and performed in workmanlike manner. The warranties set forth in subparagraphs (ii) and (iii) are conditioned on Buyer (a) keeping the Equipment (including the bill acceptors and card readers) clean, under cover and otherwise protected from wind, rain, snow, sand, excessive temperatures and other adverse environmental conditions, (b) keeping each Location and surrounding areas reasonably safe from theft, vandalism, fire and water hazards, and other dangers to persons or property, (c) not power washing the Location(s) or applying water or other liquids to the Location or Equipment beyond the minimum amounts necessary or appropriate for cleaning purposes; (d) not removing, disconnecting or transporting the Equipment from the Location, (e) not exposing the Equipment to unusual vibrations or other similar stresses, or (f) not permitting any third party to do the foregoing, in each case other than as Best may expressly authorize in advance. If Buyer notifies Best of a breach of the foregoing warranty within the warranty period, and Buyer has met the conditions set forth in in this section, Best will repair, replace or re-perform the defective Equipment, Best Software or services or, if Best determines the foregoing remedies are not commercially practicable, Best will accept return of the affected Equipment and refund Buyer’s purchase price therefor. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, AND BEST HEREBY DISCLAIMS ALL OTHER WARRANTIES TO BUYER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE EQUIPMENT AND ANY COMPONENTS THEREOF, AND WITH RESPECT TO ANY SERVICES HEREUNDER, INCLUDING BUT NOT Best Initial ________ 2 Agreement L-15 / 08-05 S Buyer Initial ________ LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES OF NONINFRINGEMENT. 7. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE OTHER PARTY (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS OR DAMAGES TO BUSINESS REPUTATION), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT A PARTY WAS ADVISED SUCH DAMAGES MIGHT ARISE. IN NO EVENT SHALL BEST BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY DAMAGES, DIRECT OR OTHERWISE, IN EXCESS OF THE AMOUNTS PAID BY BUYER TO BEST FOR THE EQUIPMENT OR SERVICES GIVING RISE TO THE DAMAGES, PRORATED OVER A PERIOD OF FIVE (5) YEARS FROM THE DATE SUCH EQUIPMENT IS DELIVERED. THIS LIMITATION IS CUMULATIVE; THE SUM OF MULTIPLE CLAIMS MAY NOT EXCEED THIS LIMIT. THE PROVISIONS OF THIS SECTION WILL APPLY IF LOSS, DAMAGE OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF BEST, ITS AGENTS OR EMPLOYEES. BUYER WAIVES ALL OTHER REMEDIES THAT MIGHT OTHERWISE BE AVAILABLE UNDER THE LAWS OF ANY JURISDICTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO BUYER. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 8. RETURNS. Best will not be required to accept return of any Equipment or Best Software properly delivered under this Agreement. If Best, in its sole discretion, accepts return of Equipment or Best Software, and the Equipment is returned in its original packaging in saleable condition, Best will credit Buyer for the purchase price (excluding shipping and related delivery charges) net of a restocking and write-down fee equal to 20% of the original purchase price for the Equipment and Best Software. Buyer will not incur a restocking and write-down fee for any returns made under Section 6 of this Agreement. 9. RELATIONSHIP OF PARTIES. In making and performing this Agreement, the parties act and shall act as independent contractors, and nothing contained shall be construed or implied to create an agency, association, partnership or joint venture between the pa rties. At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party. 10. APPLICABLE LAW, JURISDICTION, AND ATTORNEY’S FEES. This Agreement shall be construed under the laws of the State of Florida. Exclusive jurisdiction and venue in any action related to or arising from this Agreement shall be in state or federal courts sitting in Orange County, Florida, and the parties waive any right to a jury trial in any such matter. Buyer shall reimburse Best for any attorney’s fees, costs, and collection agency fees, incurred by Best to obtain compliance with this Agreement and, in any action to enforce this Agreement, including post judgment and appellate proceedings, the prevailing party shall recover its reasonable attorney’s fees and costs. 11. ENTIRE AGREEMENT. This Agreement (including the exhibits hereto) constitutes the entire Agreement of the parties and may not be modified except by a written document duly executed by the parties. Buyer certifies and warrants that Buyer has not relied upon any statements purporting to modify or which are otherwise inconsistent with or in addition to the written terms of this Agreement. 12. WAIVER AND AMENDMENT. This Agreement may not be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the pa rty waiving compliance. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. 13. CAPTIONS FOR CONVENIENCE ONLY. Captions are for convenience only and do not constitute part of this contract. No party will acquire any rights or defenses based upon the failure of any caption to adequately or fully describe the contents. 14. NOTICE. Any notice made under this Agreement shall be given by certified or registered first class mail at the parties’ respective addresses set out above or at such alternative address as the parties may designate in writing. Notice shall be deemed given upon receipt. 15. INVALIDITY OF CONTRACT PROVISION. If a court shall hold invalid or unenforceable any portion of this Agreement, such a holding shall not affect or invalidate the entire Agreement or other portions. 16. NO OTHER BENEFICIARIES. This Agreement is being made and entered into solely for the benefit of the parties hereto, and no party intends to create any rights in favor of any other person as a th ird party beneficiary of this Agreement or otherwise. 17. COUNTERPARTS; ELECTRONIC COPIES. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. A party’s execution or delivery of this Agreement by electronic mail or other electronic means shall bind on such party as had such party executed this Agreement in writing. 18. AUTHORITY TO EXECUTE CONTRACT. 18.1. The individual executing this Agreement represents and warrants he or she has the authority to execute this Agreement on behalf of Buyer and that the identifying information regarding Buyer set out in this Agreement correctly identifies the owner of the Facilities. 18.2. Buyer represents and warrants that (i) it has the corporate power and authority to execute and deliver this Agreement, to perform its obligations, and (ii) its execution and delivery of this Agreement, the performance of each of its obligations have been duly authorized by all requisite corporate action of the party, and do not and will not result in a violation or breac h of or default under (with or without giving notice or the lapse of time or both), any provision of its articles of incorporation or formation, bylaws, operating agreement or other organization documents, or any contract or any other agreement or instrument to which any of it is a party or by which any of their respective properties or assets may be bound. Best Initial ________ 3 Agreement L-15 / 08-05 S Buyer Initial ________ IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective authorized representatives as of the Effective Date. CITY OF DUBLIN, CALIFORNIA By: _____________________________________________ Name: _________________________________________ Title: _________________________________________ Date: _________________________________________ BEST LOCKERS, LLC By: __________________________________________ Name: ______________________________________ Title: ______________________________________ Date: _______________________________________ Best Initial ________ 4 Agreement L-15 / 08-05 S Buyer Initial ________ EXHIBIT A ORDER GoPod™ Electronic Locker System Description Product Cabinet Material Cabinet Dimension Openings/Cabinet Locker Dimension Locker-5T Steel 24”w x 74”h x 18”d 10/1 12”w x 14”h x 18”d Locker-4T Steel 30”w x 74”h x 18”d 8/1 12”w x 18”h x 18”d Kiosk** Metal-powder coat 20”w x 60”h x 24”d N/A N/A **includes credit card acceptor, bill acceptor & recycler (change maker) & hardwire LAN connection GoPod™ Electronic Locker System Purchase Property Name Locker 5T (Steel) Locker 4T (Steel) Locker 3T (Steel) Kiosk System Price Estimated Delivery Date Wave @ Emerald Glen 110 104 3 $155.012 February 20, 2017 Annual License & Maintenance Fee $12,412 Years 2-5 (2018 – 2022) System Price includes equipment (defined above), freight to project site and installation at project site. Tax not included. Payment for Equipment is due as follows: 20% of the Equipment purchase price upon execution of the Agreement which will cover design fees and initial site visits, 80% (which constitutes the total balance due) shall be paid on the day of delivery by Best Lockers. To be agreed upon between Best Lockers and City of Dublin, California. 5 Year License and Maintenance Agreement to cover software license and parts required due to normal wear and tear: Software License Fee License Plan Software License $58.00/locker/year for a total of $12,412 annually (Payable annually years 2 through 5 prior to the anniversary date of final equipment installation.) Service and Maintenance Service Plan Annual Fee (per opening) Included above Annual Fee (per kiosk) Included above Annual Site Visit 2 included* Phone Support/hour** Included Parts required due to normal wear and tear No Charge Freight (parts) Standard Delivery Fees above and beyond the two site visits: On-site Daily Charge (after 2 included site visits) $415.00 On-Site Travel Rate $59.00/hour Buyer Obligations:  Site Preparation by Buyer (Describe): o Internet Connection: Required at each kiosk per layout drawing (attached) o Utilities: Required at each kiosk per layout drawing o Credit Card Processing: GoPod™ Kiosk requires a Payment Process Inc. (PPI) account to process credit card transactions. Owner to set up their own account; Phone 510.795.3642 (www.paypros.com). o Support Bases: Recommended that Buyer builds a 2-4” high base to set the lockers on a level surface. Best Initial ________ 1 Agreement L-15 / 08-05 LM Buyer Initial ________ LICENSE AND MAINTENANCE AGREEMENT THIS SALE AGREEMENT (the “Agreement”) made and entered into as of this 4th day of October, 2016 (the “Effective Date”), by and between BEST LOCKERS, LLC, a Delaware limited liability company with its principal place of business at 2126 W. Landstreet Rd., Suite 300, Orlando, Florida 32809 (“Best”) and City of Dublin, California (“Buyer”), a municipality with its principal place of business at 100 Civic Plaza, Dublin, California 94568. Buyer and Best are parties to a Sale Agreement and one or more Orders (as define by the Sale Agreement) under which Buyer has purchased, or has agreed to purchase, security locker components together with one or more kiosks and other equipment (collectively, the “Equipment”) for installation at the facilities and locations specified by the Orders (respectively, the “Facilities” and “Locations”). Buyer, on the terms and conditions of this Agreement, wishes to license certain related Best proprietary software (the “Best Software”) for installation and use with the Equipment, and to retain Best to maintain and support the Best Software and to support Buyer’s maintenance and repair of the Equipment. Best on the terms and conditions of this Agreement is pleased to provide such license, maintenance and repair services. In consideration of the foregoing and other good and valuable consideration, receipt of which is hereby acknowledged, IT IS THEREFORE AGREED as follows: 1. SOFTWARE LICENSE. For each kiosk included in the Equipment, (i) the Windows operating system and any other third party software products delivered with the Equipment will be governed by the terms of the vendor’s license as the same may be amended from time to time by the applicable vendor, and (ii) the Best Software will be governed by the following terms: 1.1. LICENSE GRANT. Best, subject to the terms and conditions of this Agreement, grants to Buyer a non-exclusive, non-assignable, non-sublicenseable, right and license during the Term (as defined below) to use the Best Software, in object code form, to operate the Equipment on which Best delivers it, and for no other purpose. If and to the extent Best provides or installs on the Equipment additional , different or replacement versions of the Best proprietary software, that software will be deemed Best Software for all purposes under this Agreement. 1.2. OWNERSHIP. Notwithstanding any other provision of this Agreement, Best retains all right, title and interest in and to the Best Software and associated intellectual property rights, including all patent, copyright, t rade secret, and trademark rights. Buyer acknowledges that it neither owns nor acquires any rights in any of the foregoing not expressly granted by this Agreement. 1.3. RESTRICTIONS. The Best Software comprises Best confidential and proprietary information, and Buyer will not (a) use or disclose the Best Software other than as expressly contemplated by this Agreement, (b) authorize or permit access to the Best Software by persons other than Buyer’s trained personnel or for any purpose other than the operation of the Equipment as contemplated by this Agreement; (c) market, distribute or disclose the Best Software to any third party; (d) assign, sublicense, sell, lease or otherwise transfer or con vey Buyer’s rights under the licenses granted, except that Buyer may assign its rights to the Best Software to a purchaser of all of the Equipment who agrees in writing to be bound by the terms of this Agreement; (e) use the Best Software in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party; (f) modify or create derivative works of the Best Software; (g) combine or integrate the Best Software with hardware, software or technology not provided to Buyer by Best; (h) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Best Software is compiled or interpreted, and Buyer acknowledges that nothing in this Agreement shall be construed to grant Buyer any right to obtain or use such source code; or (i) make copies of the Best Software other than solely for archival purposes by making one copy. Buyer shall duplicate all proprietary notice s and legends of Best and its suppliers or licensors upon all copies of the Best Software made by Buyer. Buyer shall not remove, alter or obscure any such proprietary n otice or legend. 2. SERVICES. 2.1. Best, in exchange for the license and maintenance fees specified by Schedule A hereto and on the terms and conditions of this Agreement, will provide (i) routine maintenance and repair services for the Best Software, and (ii) support for Buyer’s maintenance and repair of the Equipment, in each case as specified by such Schedule A. 2.2. In addition to the services specified by Section 2.1, Best for its time and materials rates, may perform such additional maintenance and repair services as Buyer may request, including repairs and other services required because of excessive wear and tear, Buyer’s breach of this Agreement (including without limitation breach of any of Buyer’s obligations under Section 3 of this Agreement), or the negligent acts or omissions of Buyer or any of Buyer’s agents, employees or representatives. 3. OBLIGATIONS OF BUYER. Buyer, at its own expense throughout the Term, will: 3.1. Maintain lighting, electric service and Internet service at the Location. 3.2. Employ and maintain a staff trained in the operation of the Equipment; 3.3. Ensure that the Equipment is, and throughout the Term remains, connected to the Internet through a broadband connection . Note that Best’s ability to perform its obligations under this Agreement depends on this Internet connection ; 3.4. Purchase and maintain an inventory of receipt paper, and replace the paper rolls in the kiosk(s) as necessary. Note that the kiosks will not work without receipt paper; 3.5. As between Best and Buyer, be solely responsible for the processing of credit card, debit card and other payment transactions ; 3.6. Monitor the operation of the Equipment and its customers’ use of the same, and promptly report to Best any failure of, defect in or damage to the Equipment or any component thereof; 3.7. Perform on-site troubleshooting to address operational and performance issues, including (i) following troubleshooting procedures provided from time to time by Best, (ii) contacting and working with Best online and/or telephone technical support personnel , and (iii) if and when instructed by Best, installing repair and replacement parts supplied by Best. Best Initial ________ 2 Agreement L-15 / 08-05 LM Buyer Initial ________ 3.8. Keep the Equipment (including the bill acceptors and card readers) clean, under cover and otherwise protected from wind, rain, snow, sand, excessive temperatures and other adverse environmental conditions, and keep the Equipment location and surrounding areas reasonably safe from theft, vandalism, fire and water hazards, and other dangers to persons or property; 3.9. Not power wash the Location or apply water or other liquids to the Location or Equipment beyond the minimum amounts necessary or appropriate for cleaning; 3.10. Not remove, disconnect or transport the Equipment from the place of installation, expose the Equipment to unusual vibrations or other similar stresses, or permit any third party to do the foregoing, other than as Best may expressly authorize in advance ; and 4. FEES; PAYMENT. 4.1. FEES. Buyer will pay Best annual fees, and any time and materials and other fees contemplated by this Agreement, in each case in Schedule A. Annual fees will be due prior to the first day of the initial term of this Agreement (as defined below) and each anniversary thereof during the Term. All other fees and charges will be due within thirty (30) days of the date of Best’s invoice. 4.2. LATE FEES. If Buyer fails to pay any amount within fifteen (15) days following the due date, Best may impose a late fee of one and one-half percent (1.5%) for each month or part thereof the amount remains past due. 5. TERM; TERMINATION. 5.1. TERM. The term of this Agreement (the “Term”) will commence on the date Best first advises Buyer under the Sale Agreement that Equipment at any Facility has been installed and is ready for use, and will continue for five (5) years. This Agreement refers to the initial term together with all renewal terms as the “Term.” 5.2. TERMINATION. Either party may terminate this Agreement on immediate written notice if the other party (i) commits a material breach of this Agreement and fails to cure the breach within thirty (30) days of the nonbreaching party’s notice thereof, (ii ) makes a general assignment for the benefit of creditors, (iii) files a petition under any chapter of the Bankruptcy Code or any state insolvency statute, or (iv) is the subj ect of an involuntary petition in bankruptcy or insolvency and such petition is not dismissed within ninety (90) days. 6. WARRANTY, DISCLAIMER. Best represents and warrants that the services Best provides hereunder will be of workmanlike quality and performed in workmanlike manner. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, AND BEST HEREBY DISCLAIMS ALL OTHER WARRANTIES TO BUYER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE EQUIPMENT AND ANY COMPONENTS THEREOF, AND WITH RESPECT TO ANY SERVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. 7. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE OTHER PARTY (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS OR DAMAGES TO BUSINESS REPUTATION), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT A PARTY WAS ADVISED SUCH DAMAGES MIGHT ARISE. IN NO EVENT SHALL BEST BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY DAMAGES, DIRECT OR OTHERWISE, IN EXCESS OF THE AMOUNTS PAID BY BUYER TO BEST HEREUNDER IN RESPECT OF THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION IS CUMULATIVE; THE SUM OF MULTIP LE CLAIMS MAY NOT EXCEED THIS LIMIT. THE PROVISIONS OF THIS SECTION WILL APPLY IF LOSS, DAMAGE OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF BEST, ITS AGENTS OR EMPLOYEES. BUYER WAIVES ALL OTHER REMEDIES THAT MIGHT OTHERWISE BE AVAILABLE UNDER THE LAWS OF ANY JURISDICTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO BUYER. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 8. RELATIONSHIP OF PARTIES. In making and performing this Agreement, the parties act and shall act as independent contractors, and nothing contained shall be construed or implied to create an agency, association, partnership or joint venture between the pa rties. At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party. 9. CONTRACT BINDING ON SUCCESSORS. Neither party may assign this Agreement in whole or part without the prior written consent of the other party, except that, subject to Buyer’s obligations under Section 10, no consent will be required for either party to assign this Agreement in its entirety to a purchaser of substantially all of such party’s outstanding ownership interests or substantially all of such party’s assets to which this Agreement relates. This Agreement shall bind the parties’ heirs, successors, assigns, and personal representatives. 10. NOTICE OF SALE OR ASSUMPTION. Upon entering into any Agreement for the sale of the Facilities, but in no event later than thirty (30) days prior to the closing on any such sale, Buyer shall furnish Best with written notice of the sale and identify the purchaser and individuals authorized to act on behalf of the purchaser. Best may, but is not required to, contact and advise the purchaser regarding the contents of this Agreement. Buyer will obtain from the purchaser, on a form supplied by Best, a written assumption of Buyer’s obligations under this Agreement. Buyer’s failure to obtain such written assumption Agreement at closing or to provide notice of a pending sale shall constitute a material bre ach of this Agreement. 11. APPLICABLE LAW, JURISDICTION, AND ATTORNEY’S FEES. This Agreement shall be construed under the laws of the State of Florida. Exclusive jurisdiction and venue in any action related to or arising from this Agreement shall be in state or federal cour ts sitting in Orange County, Florida, and the parties waive any right to a jury trial in any such matter. Buyer shall reimburse Best for any attorney’s fees, costs, and collection agency fees, incurred by Best to obtain compliance with this Agreement and, in any action to enforce this Agreemen t, including post judgment and appellate proceedings, the prevailing party shall recover its reasonable attorney’s fees and costs. 12. ENTIRE AGREEMENT. This Agreement (including the schedules hereto) constitutes the entire Agreement of the parties and may not be modified except by a written document duly executed by the parties. Buyer certifies and warrants that Buyer has not relied upon any statements purporting to modify or which otherwise contradict or add to the written terms of this Agreement. 3 Best Initial ________ 3 Agreement L-15 / 08-05 LM Buyer Initial ________ 13. WAIVER AND AMENDMENT. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party wa iving compliance. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent b reach. 14. CAPTIONS FOR CONVENIENCE ONLY. Captions are for convenience only and do not constitute part of this contract. No party will acquire any rights or defenses based upon the failure of any caption to adequately or fully describe the contents. 15. NOTICE. Any notice made in connection with this Agreement shall be given by certified or registered first class mail at the partie s’ respective addresses set out above or at such alternative address as the parties may designate in writing. Notice shall be deeme d given upon receipt. 16. INVALIDITY OF CONTRACT PROVISION. If a court shall hold invalid or unenforceable any portion of this Agreement, such a holding shall not affect or invalidate the entire Agreement or other portions hereof. 17. NO OTHER BENEFICIARIES. This Agreement is being made and entered into solely for the benefit of the parties hereto, and no party intends to create any rights in favor of any other person as a third party beneficiary of this Agreement or otherwise. 18. COUNTERPARTS; ELECTRONIC COPIES. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. A party’s execution or delivery of this Agreement by electronic mail or other electronic means shall bind such party as if such party had executed this Agreement in writing. 19. AUTHORITY TO EXECUTE CONTRACT. 19.1. The individual executing this Agreement represents and warrants he or she has the authority to execute this Agreement on behalf of Buyer and that the identifying information regarding Buyer set out in this Agreement correctly identifies the owner of the Facilities. 19.2. Buyer represents and warrants that (i) it has the corporate power and authority to execute and deliver this Agreement, to perform its obligations, and (ii) its execution and delivery of this Agreement, the performance of each of its obligations have been duly authorized by all requisite corporate action of the party, and do not and will not result in a violation or breach of or default under (with or without g iving notice or the lapse of time or both), any provision of its articles of incorporation or formation, bylaws, operating agreement or other organization documents, or any contract or any other agreement or instrument to which any of it is a party or by which any of their respective properties or assets m ay be bound. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective authorized representatives as of the Effective Date. CITY OF DUBLIN, CALIFORNIA By: _____________________________________________ Name: _________________________________________ Title: _________________________________________ Date: _________________________________________ BEST LOCKERS, LLC By: __________________________________________ Name: ______________________________________ Title: ______________________________________ Date: _______________________________________ Witness: ____________________________________ Witness: __________________________________ Best Initial ________ 4 Agreement L-15 / 08-05 LM Buyer Initial ________ SCHEDULE A ADDITIONAL TERMS GoPod™ Electronic Locker System Property Name Locker 5T (Steel) Locker 4T (Steel) Locker 3T (Steel) Kiosk Estimated Start Date Wave @ Emerald Glen 110 104 3 Q2 2017 Maintenance Services Includes: Software Maintenance and Support:  Configuration and data backup  24 hour monitoring and troubleshooting via LOG ME IN  Unlimited remote computer and phone support  Maintenance upgrades are pushed-out to all kiosks via remote LOG ME IN on an as-needed basis and are typically undetected by customers Equipment Maintenance and Support:  All parts (for normal wear and tear, standard delivery)  Unlimited remote computer and phone support  2 site visits per year Available for Additional Charge:  Additional Site Visits (current charge: $_____ per day + $_____/hour of travel, plus travel and subsistence expenses)  Parts to address vandalism, abuse, etc.  Express shipping of parts Annual License and Maintenance $58.00 per opening = $12,412 annually  Payment to be made in full, due in advance, on or before the anniversary of final installation each year.  Payments due for years 2, 3, 4 and 5 of the term (after the expiration of the one year warranty).  Best, by or on 30 days’ notice to take effect on or after January 1, 2017, may increase the foregoing fees by the lesser of 5% per year or the percentage change in the percentage increase since the date prior fees were established in the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items.