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HomeMy WebLinkAboutXerox/DOCS a )a. /6, o7, 0 XEROX APPROVED, AS TO Department of Community Services 2009 ZOt Appropriation #43530 -04; P.O. #20665 BY: Contract Not To Exceed $4.516.68 AGREEMENT FOR PURCHASE OF GOODS AND SERVICES THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES "Agreement") is hereby entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety "City and XEROX an entity duly authorized to do business in the State of Indiana "Vendor"). TERMS AND CONDITIONS 1. ACKNOWLEDGMENT, ACCEPTANCE: Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of same constitutes its acceptance of all of the Agreement's terms and conditions. 2. PERFORMANCE: City agrees to purchase the goods and /or services (the "Goods and Services from Vendor using City budget appropriation number 43- 530 -04 funds. Vendor agrees to provide the Goods and Services and to otherwise perform the requirements of this Agreement by applying at all times the highest technical and industry standards. 3. PRICE AND PAYMENT TERMS: 3.1 Vendor estimates that the total price for the Goods and Services to be provided to City hereunder shall be no more than Four Thousand Five Hundred Sixteen Dollars and Sixty Eight Cents ($4,516.68), excluding any excess meter usage (the "Estimate Vendor shall submit an invoice to City no more than once every thirty (30) days detailing the Goods and Services provided to City within such time period. City shall pay Vendor for such Goods and Services within forty -five (45) days after the date of City's receipt of Vendor's invoice detailing same, so long as and to the extent such Goods and Services are not disputed, are in accordance with the specifications set forth in Exhibit A, are submitted on an invoice that contains the information contained on attached Exhibit B, and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement. 3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless City has previously agreed, in writing, to pay an amount in excess thereof. 4. WARRANTY: Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to those certain specifications, descriptions and /or quotations regarding same as were provided to Vendor by City and /or by Vendor to and accepted by City, which includes the Xerox Lease Agreement (worksheet #X42414) and price proposal, includes as Exhibit "A" and that the Goods and Services will be delivered in a timely, good and workmanlike manner and free from defect. Vendor acknowledges that it knows of City's intended use and expressly warrants that the Goods and Services provided to City pursuant to this Agreement have been selected by Vendor based upon City's stated use and are fit and sufficient for their particular purpose. i(':'S>.t nncui.. ti;im;±.V;,l'YV >nI ».I.R'.I Gmp.irnq,uay Iilltfncl f ik-.O1 Ki('til'FROI (....I. ti:n i:..J::l_'/YPyIN 1?-1 i V \tl XEROX Department of Community Services 2009 Appropriation #43530 -04: P.O. #20665 Contract Not To Exceed $4.516.68 5. TIME AND PERFORMANCE: This Agreement shall become effective as of the last date on which a party hereto executes same "Effective Date and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the essence of this Agreement. 6. DISCLOSURE AND WARNINGS: If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of all chemicals, materials, substances and items used in or during the provision of the Goods and Services provided hereunder, including the quantity, quality and concentration thereof and any other information relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to furnish to City sufficient written warning and notice (including appropriate labels on containers and packing) of any hazardous material utilized in or that is a part of the Goods and Services. 7. LIENS: Vendor shall not cause or permit the filing of any lien on any of City's property. In the event any such lien is filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding, City shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense. 8. DEFAULT: In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Vendor's warranties; (b) fails to provide the Goods and Services as specified herein; (c) fails to make progress so as to endanger timely and proper provision of the Goods and Services and does not correct such failure or breach within twenty (20) business days (or such shorter period of time as is agreed to by the parties) after receipt of notice from City specifying such failure or breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder. City shall have the right to (1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to City at law and /or in equity, providing that Vendor has uncured performance failure following the allowable cure period. 9. INSURANCE AND INDEMNIFICATION: Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and Vendor from all claims for damages under any workers' compensation, occupational disease and /or unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness, disease or death of or to any of Vendor's agents, officers, employees, contractors and subcontractors; and, for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall cause its insurers to name City as an additional insure on the General and Automotive Liability polices, shall promptly provide City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and /or damages to any person or property arising from or in connection with Vendor's provision of Goods and Services pursuant to or under this Agreement or Vendor's use of City property. 1Cd, O. cuncnh .mJScuu.psYas95xSSLn -.,1s, ungaTcupn.a, <mnF'ac,S>LAICXI:ROx in.r. �rrvH<,.dct_'Pr F,J215"11 XEROX Department of Community Services 2009 Appropriation #43530 -04: P.O. #20665 Contract Not To Exceed S4.516.68 Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, caused by any act or omission of Vendor and /or of any of Vendor's agents, officers, employees, contractors or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. This indemnification excludes any negligent or willful act on the part of the City, its employees, agents or volunteers. 10. GOVERNMENT COMPLIANCE: Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to Vendor's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless City from any loss, damage and /or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement. 11. NONDISCRIMINATION: Vendor represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment or other person in the provision of any Goods and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and /or Vietnam era veteran status. 12. NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. 13. NON- ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement without City's prior written consent. However, Vendor can assign the contract to a subsidiary providing the Vendor continues to provide all services and all payments are made to the Vendor. 14. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price set forth herein shall be the full and maximum compensation and monies required of City to be paid to Vendor under or pursuant to this Agreement. 15. GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. j/':'Ihuw::WVnJ Sru:nj:IiYp9 IAi...4 Sclhng. \i_n vn'lulcmcl9J,'iIKJ('\IKOX(i,,h Scn .,ti a:,:ai,n_yir e:5r. XEROX Department of Community Services 2009 Appropriation #43530 -04: P.O. #20665 Contract Not To Exceed 54.516.68 16. SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 17. NOTICE: Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: If to City: City of Carmel One Civic Square Carmel, Indiana 46032 ATTN: Michael Hollibaugh AND Douglas C. Haney, City Attorney, Department of Law One Civic Square Carmel, Indiana 46032 If to Vendor: XEROX 9100 Keystone Crossing, Suite 500 Indianapolis, Indiana 46240 Telephone: 317- 513 -6536 E -Mail: www.xerox.com!AccountManagement ATTENTION: Lauren Frazier Notwithstanding the above, notice of termination under paragraph 18 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 18. TERMINATION: 18.1 Notwithstanding anything to the contrary contained in this Agreement, in the event and consistent with paragraph #3 of Exhibit "A City may, upon notice to Vendor, immediately terminate this Agreement for cause, of a default hereunder by Vendor and /or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount representing conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. (':ti>• nMnl nnr(Siini,, ;litiYYX it'll ,..rl S.i1ng liiem tle,xlLAi('1\[RO\ G .J, S•rv. e...6x 13ivrl!,wi I?:1. P,\tl XEROX Department of Community Services 2009 Appropriation #43530 -04: P.O. #20665 Contract Not To Exceed $4.516.68 18.2 City may terminate this Agreement only in such a manner as is consistent with Exhibit "A 19. REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 20. ADDITIONAL GOODS AND SERVICES Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods and services to City. When City desires additional goods and services from Vendor, the City shall notify Vendor of such additional goods and services desired, as well as the time frame in which same are to be provided. Only after City has approved Vendor's time and cost estimate for the provision of such additional goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in writing, to provide such additional goods and services, shall such goods and services be provided by Vendor to City. A copy of the City's authorization documents for the purchase of additional goods and services shall be numbered and attached hereto in the order in which they are approved by City. 21. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 18 hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2014, and shall, on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless otherwise agreed by the parties hereto. 22. HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 23. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. 24. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 25. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. C'9A.uoi: rn,,mJ Scunig.l:5 %vS ±I-'1 .,,ltituuq.Cicm,nr:r)'Lurmit PAc.Cfl.KlCAt`ROS(...h S.n,. c..a,a L ^i.,,i1fN 1 '_:S PSiI XEROX Department of Community Services 2009 Appropriation #43530 -04: P.O. #20665 Contract Not To Exceed $4.516.68 26. ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA XEROX by and through its Board of Public Works and Safety t mes Brainard Presiding Officer Authorized Sigf t re Date: G C7" Susan McGlinchey y Printed Name Ma Ann B k Me r Date: Ib e9 Controller Title Lori S. Wats. Member FID/TIN: 16 0468020 Date: (01-4 i e i p q SSN if Sole Proprietor: ATTEST: 4 Date: December 9, 2009 T ana Cordray, I C, Clerk Treasurer Date: (o� /d I (':dl.. mu.vu, .nui Srump. \I iSxv x i.4 n.d $.ed mr x.v y inirma r- itca,)I K (RFNOX r:. vl. scn,:c..gr: i inyxl 5 Vkt Le Agreenie 90, rit. xerox Customer: CARMEL, CITY OF Bill To: COMMUNITY SERVICES Install: COMMUNITY SERVICES 1 Civic Sq 1 Civic Sq Indianapolis, IN 46240 Indianapolis, IN 46240 Product Description i '.'...•AgreeMerit Information Trade Information Requested Item InstaliDate 1. 3CQ9201 (3 MTR COLORQUBE 9201) Office Finisher Lease Term: 60 months Konica Minolta Bizhub Pro C500 11/5/2009 Analyst Services Purchase Option: FMV Return to Vendor (CRP) v‘ Customer Ed ti. 99 Item Lease' Print Charges t• Maintenance 'Plan Features F..-:-:::,.-,-_ r joinimuln:Paymerit-,, :•,1.4IPV.i•;-• 1. 3CQ9201 $376.39 1: BW CLR All Prints $0.0089 Consumable Supplies Included for all prints 2: CLR LVL2 All Prints $0.0290 3: CLR LVL3 All Prints $0.0790 Total $376.39 Minimum Payments (Excluding Applicable Taxes) gle Customer acknowledges receipt of the terms of this agreement Thank You for your business! which consists of 5 pages including this face page. This Agreement is proudly presented by Xerox and Signer: Lisa Stewart Phone: (317)571-2417 Lauren Frazier TOTAL (317)513-6536 SATI SFACTION For information on your Xerox Account, go to 111111 GUARANT,e fti Signature: Date: www xerox com/AccountManagement WS X42414 11/5/2009 09:37:23 Confidential Copyright© 2008 XEROX CORPORATION. All rights reserved. Page 1 of 5 r t xe fox „3-4.,fil Presented to City of Carmel By Lauren Frazier On 11/512009 r ,-rr"'",„r 2 7 FZTeteti ci Product DekriptiOn r "-lAgreeririerit intOrmatiori TridelitfOrniation I tem '..1 Install.pateAt.-' 1. 3CQ9201 (3 MTR COLORQUBE 9201) Office Finisher Lease Term: 60 months Konica Minolta Bizhub Pro C500 11/5/2009 Analyst Services Purchase Option: FMV Return to Vendor (CRP) Customer Ed 7 ...9 Mkilliirt31442 ileiiiiIrt .",-",;,1';',',..=:":::-'4'1''''''''''':--"rfeti''''''::..": Item Lease Print Print:Charges, Mamtenance:,Planfeatures: ivithirn. p MeVolume Bard-4 P er Print Rate-' n ;:":"..-1. ..tja....„.% ',Ai .;.,......4:,,::,,:,„;±„..,;.,,,,,j,.., 1. 3CQ9201 $376.39 1: BW CLR All Prints $0.0089 Consumable Supplies Included for all prints 2: CLR LVL2 All Prints $0.0290 3: CLR LVL3 All Prints $0.0790 Total $376.39 Minimum Payments (Excluding Applicable Taxes) All information in this proposal is considered confidential and is for the sole use of City of Carmel. If you would like to XEROX acquire the solution described in this proposal, we would be happy to offer a Xerox order agreement. Pricing is subject iorAL to credit approval and is valid until 12/5/2009. SATISFACTION II- GU ARANTEE For any questions, please contact me at (317)513-6536 z-, r:.y.:313 WS X42414 11/5/2009 09:17:00 Confidential Copyright© 2008 XEROX CORPORATION. All rights reserved. J Page 1 of 2 If EMIBIL Lease Prlcing PROPOSAL xerox Introductory Pricing You are receiving special Introductory Pricing. Your Minimum Payment for Products identified in the Pricing Detail table below will be adjusted during the Introductory Pricing period as set forth in the Pricing Detail table, and will be different from the Minimum Payment during the balance of this Agreement. The Pricing Detail table illustrates how the Minimum Payment will be affected during the Introductory Pricing period. Monthly; Minimum.Pncing'Summary for the; item to be installed at -this location during the 3 Month introductory Period Month 1 Month 2 Month 3 Full Amount Product $0.00 $0.00 $0.00 $376.39 Total $0.00 $0.00 $0.00 $376.39 Introductory Pricing Detail for Each Applicable Item i L� a- wrr�..- .t x w c L• !gym- W yei i' R„7tai ,.,u R .4 Y a F. r"'ry;xi-u«•;:�_ '"+4 Item Contract Product .3 Print:Charges Maintenance Plan Features k Months Minmium Pa ment Meter r^ ,Volume Band Per Print Rate r :e u^ 1. 3CQ9201 1: BW CLR All Prints $0.0034 Full Service Maintenance Included for all prints 1 3 $0.00 2: CLR LVL2 All Prints $0.0110 Consumable Supplies charge only 3: CLR LVL3 All Prints $0.0300 WS X42414 11/5/2009 09:17:01 Confidential Copyright® 2008 XEROX CORPORATION. All rights reserved. age 2 of 2 "EXHIBIT xerox _Lease�Agreernent Introductory Pricing You are receiving special Introductory Pricing. Your Minimum Payment for Products identified in the Pricing Detail table below will be adjusted during the Introductory Pricing period as set forth in the Pricing Detail table, and will be different from the Minimum Payment during the balance of this Agreement. The Pricing Detail table illustrates how the Minimum Payment will be affected during the Introductory Pricing period. Monthly Minimum Pricing Summary for the item to be installed at this location dunng the 3 Month Introductory'Penod Month 1 Month 2 Month 3 Full Amount Product $0.00 $0.00 $0.00 $376.39 Total $0.00 $0.00 $0.00 $376.39 Introductory Pricing Detail for Each Applicable Item Item Contract Product Pnnt Charges Maintenance Plan Features Months ry Meter Volume Band, Per Print Rate ;Mlmmum Payment 1. 3CQ9201 1: BW CLR All Prints $0.0034 Full Service Maintenance Included for all prints 1 3 $0.00 2: CLR LVL2 All Prints $0.0110 Consumable Supplies charge only 3: CLR LVL3 All Prints $0.0300 WS X42414 11/5/2009 09:37:24 Confidential Copyright® 2008 XEROX CORPORATION. All rights reserved. Page 2 of 5 "EXHIBIT 48 Lease Ag reement a xerox Terms and Conditions INTRODUCTION: and developer. For Phaser Products, Consumable Supplies may also include, if 1. TOTAL SATISFACTION GUARANTEE. If you are not totally satisfied with any applicable, black solid ink, color solid ink, imaging units, waste cartridges, transfer rolls, Xerox -brand Equipment delivered under this Agreement, Xerox will, at your request, transfer belts, transfer units, belt cleaner, maintenance kits, print Cartridges, drum replace it without charge with an identical model or, at Xerox's option, with Xerox Cartridges, waste trays and cleaning kits. Consumable Supplies are Xerox's property Equipment with comparable features and capabilities. This Guarantee applies only to until used by you, and you will use them only with the Equipment for which Xerox -brand Equipment that has been continuously maintained by Xerox under this "Consumable Supplies" is identified in Maintenance Plan Features, If Consumable Agreement or a Xerox maintenance agreement. For "Previously Installed" Equipment, Supplies includes Cartridges that are furnished with pre -paid shipping labels, you will this Guarantee will be effective for 1 year after installation. For all other Equipment, this return used Cartridges to Xerox for remanufacturing. Upon expiration of this Agreement Guarantee will be effective for 3 years after installation unless the Equipment is being you will return to Xerox any unused Consumable Supplies that are furnished with pre financed under this Agreement for more than 3 years, in which event it will expire at the paid shipping labels and destroy all other unused Consumable Supplies. If your use of end of the initial Term of this Agreement. Consumable Supplies exceeds Xerox's published yield by more than 10 Xerox will GOVERNMENT TERMS: notify you of such excess usage. If such excess usage does not cease within 30 days 2. REPRESENTATIONS WARRANTIES. You represent and warrant, as of the date after such notice, Xerox may charge you for such excess usage. Upon request, you of this Agreement, that: (1) you are a State or a fully constituted political subdivision or will provide an inventory of Consumable Supplies in your possession. agency of the State in which you are located and are authorized to enter into, and carry 7. CARTRIDGES. If Xerox is providing Maintenance Services for Equipment utilizing out, your obligations under this Agreement and any other documents required to be cartridges designated by Xerox as customer replaceable units, including copy /print delivered in connection with this Agreement (collectively, the "Documents (2) the cartridges and xerographic modules or fuser modules "Cartridges you agree to use Documents have been duly authorized, executed and delivered by you in accordance only unmodified Cartridges purchased directly from Xerox or its authorized resellers in with all applicable laws, rules, ordinances and regulations (including all applicable laws the U.S. Cartridges packed with Equipment and replacement Cartridges may be new, governing open meetings, public bidding and appropriations required in connection with remanufactured or reprocessed. Remanufactured and reprocessed Cartridges meet this Agreement and the acquisition of the Products) and are valid, legal, binding Xerox's new Cartridge performance standards and contain new or reprocessed agreements, enforceable in accordance with their terms; (3) the person(s) signing the components. To enhance print quality, Cartridge(s) for many models of Equipment have Documents have the authority to do so, are acting with the full authorization of your been designed to cease functioning at a predetermined point. In addition, many governing body and hold the offices indicated below their signatures, each of which are Equipment models are designed to function only with Cartridges that are newly genuine; (4) the Products are essential to the immediate performance of a manufactured original Xerox Cartridges or with Cartridges intended For use in the U.S. governmental or proprietary function by you within the scope of your authority and will 8. MAINTENANCE SERVICES. Except for Equipment identified as "No Svc. Xerox be used during the Term only by you and only to perform such function; and (5) your (or a designated servicer) will keep the Equipment in good working order "Maintenance payment obligations under this Agreement constitute a current expense and not a debt Services"). Maintenance Services will be provided during Xerox's standard working under applicable state law and no provision of this Agreement constitutes a pledge of hours in areas open for repair service for the Equipment. Maintenance Services your tax or general revenues, and any provision that is so construed by a court of excludes repairs due to: (i) misuse, neglect or abuse; (ii) failure of the installation site or competent jurisdiction is void from the inception of this Agreement. the PC or workstation used with the Equipment to comply with Xerox's published 3. FUNDING. You represent and warrant that all payments due and to become due specifications; (iii) use of options, accessories or products not serviced by Xerox; (iv) during your current fiscal year are within the fiscal budget of such year and are included non -Xerox alterations, relocation, service or supplies; or (v) failure to perform operator within an unrestricted and unencumbered appropriation currently available for the maintenance procedures identified in operator manuals. Replacement parts may be purchase /maintenance of the Products, and it is your intent to use the Products for the new, reprocessed or recovered and all replaced parts become Xerox's property. Xerox entire term and to make all payments required under this Agreement. If (1) through no will, as your exclusive remedy for Xerox's failure to provide Maintenance Services, action initiated by you, your legislative body does not appropriate funds for the replace the Equipment with an identical model or, at Xerox's option, another model with continuation of this Agreement for any fiscal year after the first fiscal year and has no comparable features and capabilities. There will be no additional charge for the funds to do so from other sources, and (2) you have made a reasonable but replacement Equipment during the remainder of the initial Term. If meter reads are a unsuccessful effort to find a creditworthy assignee acceptable to Xerox in its sole component of your Maintenance Plan, you will provide them using the method and discretion within your general organization who can continue this Agreement, this frequency identified by Xerox. If you do not provide a meter reading, Xerox may Agreement may be terminated. To effect this termination, you must, at least 30 days estimate the reading and bill you accordingly. prior to the beginning of the fiscal year for which your legislative body does not 9. EQUIPMENT STATUS. Unless you are acquiring "Previously Installed" Equipment, appropriate funds, notify Xerox in writing that your legislative body failed to appropriate Equipment will be (1) "Newly Manufactured which may contain some reconditioned funds and that you have made the required effort to find an assignee. Your notice must components; (2) "Factory Produced New Model which is manufactured and newly be accompanied by payment of all sums then owed through the current year under this serialized at a Xerox factory, adds functions and features to a product previously Agreement and must certify that the canceled Equipment is not being replaced by disassembled to a Xerox predetermined standard, and contains new and reconditioned equipment performing similar functions during the ensuing fiscal year. You will return components; or (3) "Remanufactured which has been factory produced following the Equipment, at your expense, to a location designated by Xerox and, when returned, disassembly to a Xerox predetermined standard and contains new and reconditioned the Equipment will be in good condition and free of all liens and encumbrances. You components. will then be released from any further payment obligations beyond those payments due 10. SOFTWARE LICENSE. Xerox grants you a non exclusive, non transferable license for the current fiscal year (with Xerox retaining all sums paid to date). to use in the U.S.: (a) software and accompanying documentation provided with Xerox SOLUTION /SERVICES: brand Equipment "Base Software) only with the Xerox -brand Equipment with which it 4. PRODUCTS. "Products" means the equipment "Equipment Software and was delivered; and (b) software and accompanying documentation identified in this supplies identified in this Agreement. You agree the Products are for your business Agreement as "Application Software" only on any single unit of equipment for as long use (not resale) in the United States and its territories and possessions ("U.S. and will as you are current in the payment of all applicable software license fees. "Base not be used for personal, household or family purposes. Software" and "Application Software" are referred to collectively as "Software You 5. COMPETITIVE REPLACEMENT PRODUCTS. You are acquiring the Products to have no other rights and may not: (1) distribute, copy, modify, create derivatives of, replace the product(s) identified as "CRP" "CRP Equipment You agree to return the decompile, or reverse engineer Software; (2) activate Software delivered with the CRP Equipment to your lessor no later than 60 days following installation of the Equipment in an inactivated state; or (3) allow others to engage in same. Title to, and Products that are replacing the CRP Equipment. Upon request, you will provide Xerox all intellectual property rights in, Software will reside solely with Xerox and /or its with documentation of such return. licensors (who will be considered third -party beneficiaries of this Section). Software 6. CONSUMABLE SUPPLIES. If "Consumable Supplies" is identified in Maintenance may contain code capable of automatically disabling the Equipment. Disabling code Plan Features, Maintenance Services will include black toner (excluding highlight color may be activated if: (x) Xerox is denied access to periodically reset such code; (y) you toner), black developer, Cartridges, and, if applicable, fuser agent "Consumable are notified of a default under this Agreement; or (z) your license is terminated or Supplies For full -color Equipment, Consumable Supplies will also include color toner expires. The Base Software license will terminate; (i) if you no longer use or possess WS X42414 11/5/2009 09:37:24 Confidential Copyright® 2008 XEROX CORPORATION. All rights res A cr t Page 3 of 5 gin. Lease Agreement s xerx gt. Terms and Conditions the Equipment; (ii) you are a lessor of the Equipment and your first lessee no longer included in Xerox's invoice unless you timely provide proof of your tax exempt status. uses or possesses it; or (iii) upon the expiration or termination of this Agreement, Taxes do not include personal property taxes in jurisdictions where Xerox is required to unless you have exercised your option to purchase the equipment. Neither Xerox nor pay personal property taxes, and taxes on Xerox's income. This Agreement is a lease its licensors warrant that Software will be free from errors or that its operation will be for all income tax purposes and you will not claim any credit or deduction for uninterrupted. The foregoing terms do not apply to Diagnostic Software or to depreciation of the Equipment, or take any other action inconsistent with your role as software /documentation accompanied by a clickwrap or shrinkwrap license agreement lessee of the Equipment. or otherwise made subject to a separate license agreement. 19. PURCHASE OPTION. If not in default, you may purchase the Equipment, "AS IS, 11. SOFTWARE SUPPORT. Xerox (or a designated servicer) will provide the software WHERE IS and WITHOUT ANY WARRANTY AS TO CONDITION OR VALUE, at the support set forth below ("Software Support"). For Base Software, Software Support will end of the initial Term for the "Purchase Option" indicated on the face of this Agreement be provided during the initial Term and any renewal period but in no event longer than 5 (i.e., either a set dollar amount or the fair market value of the Equipment at the years after Xerox stops taking customer orders for the subject model of Equipment. For expiration of the initial Term), plus all applicable Taxes. Application Software, Software Support will be provided as long as you are current in 20. DEFAULT REMEDIES. You will be in default under this Agreement if (1) Xerox the payment of all applicable software license and support fees. Xerox will maintain a does not receive any payment within 15 days after the date it is due, or (2) you breach web -based or toll -free hotline during Xerox's standard working hours to report Software any other obligation in this or any other agreement with Xerox. If you default, Xerox problems and answer Software- related questions. Xerox, either directly or with its may, in addition to its other remedies (including cessation of Maintenance Services), vendors, will make reasonable efforts to: (a) assure that Software performs in material remove the Equipment at your expense and require immediate payment, as liquidated conformity with its user documentation; (b) provide available workarounds or patches to damages for loss of bargain and not as a penalty, of: (a) all amounts then due, plus resolve Software performance problems; and (c) resolve coding errors for (i) the current interest from the due date until paid at the rate of 1.5% per month; (b) the Minimum Release and (ii) the previous Release for a period of 6 months after the current Payments (less the Maintenance Services and Consumable Supplies components Release is made available to you. Xerox will not be required to provide Software thereof, as reflected on Xerox's books and records) remaining in the Term, discounted Support if you have modified the Software. New releases of Software that primarily at 4% per annum; (c) the applicable Purchase Option; and (d) all applicable Taxes. You incorporate compliance updates and coding error fixes are designated as "Maintenance will pay all reasonable costs, including attorneys' fees, incurred by Xerox to enforce this Releases" or "Updates Maintenance Releases or Updates that Xerox may make Agreement. If you make the Equipment available for removal by Xerox within 30 days available will be provided at no charge and must be implemented within six months. after notice of default, in the same condition as when delivered (reasonable wear and New releases of Software that include new content or functionality "Feature Releases tear excepted), you will receive a credit for the fair market value of the Equipment as will be subject to additional license fees at Xerox's then current pricing. Maintenance determined by Xerox, less any costs incurred by Xerox. Releases, Updates and Feature Releases are collectively referred to as "Releases GENERAL TERMS CONDITIONS: Each Release will be considered Software governed by the Software License and 21. NON-CANCELABLE AGREEMENT. THIS AGREEMENT CANNOT BE Software Support provisions of this Agreement (unless otherwise noted). CANCELED OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN. Implementation of a Release may require you to procure, at your expense, additional YOUR OBLIGATION TO MAKE ALL PAYMENTS, AND TO PAY ANY OTHER hardware and /or software from Xerox or another entity. Upon installation of a Release, AMOUNTS DUE OR TO BECOME DUE, IS ABSOLUTE AND UNCONDITIONAL AND you will return or destroy all prior Releases. NOT SUBJECT TO DELAY, REDUCTION, SET -OFF, DEFENSE, COUNTERCLAIM 12. DIAGNOSTIC SOFTWARE. Software used to evaluate or maintain the Equipment OR RECOUPMENT FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF ("Diagnostic Software is included with the Equipment. Diagnostic Software is a XEROX'S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. ANY CLAIM valuable trade secret of Xerox. Title to Diagnostic Software will remain with Xerox or its AGAINST XEROX MAY BE ASSERTED IN A SEPARATE ACTION AND SOLELY licensors. Xerox does not grant you any right to use Diagnostic Software, and you will AGAINST XEROX. not access, use, reproduce, distribute or disclose Diagnostic Software for any purpose 22. REPRESENTATIONS. The individuals signing this Agreement are duly authorized (or allow third parties to do so). You will allow Xerox reasonable access to the to do so and all financial information you provide completely and accurately represents Equipment to remove or disable Diagnostic Software if you are no longer receiving your financial condition. Maintenance Services from Xerox. 23. LIMITATION OF LIABILITY. Except for liability under the indemnification PRICING PLAN/OFFERING SELECTED: obligations set forth in this Agreement, Xerox will not be liable to you for any direct 13. TERM. The Term for each unit of Equipment will commence upon: (a) delivery of damages in excess of S10,000 or the amounts paid hereunder, whichever is greater, customer installable Equipment; or (b) installation of Xerox installable Equipment. and neither party will be liable to the other for any special, indirect, incidental, Unless either party provides notice of termination at least thirty days before the consequential or punitive damages arising out of or relating to this Agreement, whether expiration of the initial Term, it will renew automatically on a month -to -month basis on the claim alleges tortious conduct (including negligence) or any other legal theory. Any the same terms and conditions. During this renewal period, either party may terminate action you take against Xerox must be commenced within 2 years after the event that the Equipment upon at least 30 days notice. Upon termination, you will make the caused it. Products available for removal by Xerox, At the time of removal, the Equipment will be 24. CREDIT REPORTS. You authorize Xerox or its agent to obtain credit reports from in the same condition as when delivered (reasonable wear and tear excepted). commercial credit reporting agencies. 14. PAYMENT. Payment (including applicable Taxes) is due within 30 days after the 25. FORCE MAJEURE. Xerox will not be liable to you during any period in which its invoice date, with all charges being billed in arrears. This Agreement will not be performance is delayed or prevented, in whole or in part, by a circumstance beyond its automatically renewed. reasonable control. Xerox will notify you if such a circumstance occurs. 15. OTHER CHARGES. You will pay a one -time documentation fee of $75 for this 26. PROTECTION OF XEROX'S RIGHTS. You authorize Xerox or its agent to file, by Agreement. If a payment is not received by Xerox within 10 days after the due date, any permissible means, financing statements necessary to protect Xerox's rights as Xerox may charge, and you will pay, a late charge of 5% of the amount due or $25, lessor of the Equipment. You will promptly notify Xerox of a change in ownership, or if whichever is greater. you relocate your principal place of business or change the name of your business. 16. PRICE INCREASES. Xerox may annually increase the maintenance component of 27. WARRANTY FINANCE LEASE DISCLAIMERS. XEROX DISCLAIMS THE the Minimum Payment and Print Charges, each such increase not to exceed 10 For IMPLIED WARRANTIES OF NON- INFRINGEMENT AND FITNESS FOR A Application Software, Xerox may annually increase the software license or support PARTICULAR PURPOSE. This Agreement is a "finance lease" under Article 2A of the fees, each such increase not to exceed 10 Uniform Commercial Code and, except to the extent expressly provided herein, and as 17. DELIVERY, REMOVAL RELOCATION. Equipment prices include standard permitted by applicable law, you waive all of your rights and remedies as a lessee delivery and removal charges. Non standard delivery and Equipment relocation must under Article 2A. be arranged (or approved in advance) by Xerox and will be at your expense. 28. INTELLECTUAL PROPERTY INDEMNITY. Xerox will defend, and pay any 18. TAXES. You will be responsible for all applicable taxes, fees or charges of any kind settlement agreed to by Xerox or any final judgment for, any claim that a Xerox -brand (including interest and penalties) assessed by any governmental entity on this Product infringes a third party's U.S. intellectual property rights. You will promptly notify Agreement or the amounts payable under this Agreement "Taxes which will be Xerox of any alleged infringement and permit Xerox to direct the defense. Xerox is not rr N WS X42414 11/5/2009 09:37:24 Confidential Copyright© 2008 XEROX CORPORATION. All rights reserves L1 11 Ag rage 4 of 5 s p .Lease Agreement xerox Terms and Conditions responsible for any non -Xerox litigation expenses or settlements unless it pre- approves held by Xerox will be considered an original. Xerox may accept this Agreement either them in writing. To avoid infringement, Xerox may modify or substitute an equivalent by signature or by commencing performance. Changes to this Agreement must be in Xerox -brand Product, refund the price paid for the Xerox -brand Product (less the writing and signed by both parties. Any terms on your ordering documents will be of no reasonable rental value for the period it was available to you), or obtain any necessary force or effect. The following four sentences control over every other part of this licenses. Xerox is not liable for any infringement based upon a Xerox -brand Product Agreement. Both parties will comply with applicable laws. Xerox will not charge or being modified to your specifications or being used or sold with products not provided collect any amounts in excess of those allowed by applicable law. Any part of this by Xerox. Agreement that would, but for the last four sentences of this Section, be read under any 29. TITLE RISK OF LOSS. Until you exercise your Purchase Option: (a) title to circumstances to allow for a charge higher than that allowed under any applicable legal Equipment will remain with Xerox; (b) Equipment will remain personal property; (c) you limit, is modified by this Section to limit the amounts chargeable under this Agreement will not attach the Equipment as a fixture to any real estate; (d) you will not pledge, sub- 10 the maximum amount allowed under the legal limit. If, in any circumstances, any lease or part with possession of it, or file or permit to be filed any lien against it; and, (e) amount in excess of that allowed by law is charged or received, any such charge will be you will not make any permanent alterations to it. Risk of loss passes to you upon deemed limited by the amount legally allowed and any amount received by Xerox in delivery and remains with you until Xerox removes the Equipment. You will keep the excess of that legally allowed will be applied by Xerox to the payment of amounts Products insured against loss or damage and the policy will name Xerox as a loss legally owed under this Agreement, or refunded to you. payee. 32. REMOTE SERVICES. Certain models of Equipment are supported and serviced 30. ASSIGNMENT. Except for assignment by Xerox to a parent, subsidiary or affiliate using data that is automatically collected by Xerox from the Equipment via electronic of Xerox, or to securitize this Agreement as part of a financing transaction "Permitted transmission from the Equipment to a secure off-site location. Examples of Assignment neither party will assign any of its rights or obligations under this automatically transmitted data include product registration, meter read, supply level, Agreement without the prior written consent of the other party. In the event of a Equipment configuration and settings, software version, and problem /fault code data. Permitted Assignment: (a) Xerox may, without your prior written consent, release to the All such data shall be transmitted in a secure manner specified by Xerox. The proposed assignee information it has about you related to this Agreement; (b) the automatic data transmission capability will not allow Xerox to read, view or download assignee will have all of the rights but none of the obligations of Xerox hereunder; (c) the content of any Customer documents residing on or passing through the Equipment you will continue to look to Xerox for performance of Xerox's obligations, including the or Customer's information management systems. provision of Maintenance Services; (d) you waive and release the assignee from any 33. COLORQUBE EQUIPMENT. claim relating to or arising from the performance of Xerox's obligations hereunder; (e) you shall not assert any defense, counterclaim or setoff you may have against an A. ColorQube Equipment identified in the Agreement will have one of the following assignee; and (f) you will remit payments in accordance with instructions of the billing plans: assignee. 31. MISCELLANEOUS. Notices must be in writing and will be deemed given 5 days i. A Tier 2 plan is billed using two meters, each with a different Print Charge or Charge after mailing, or 2 days after sending by nationally recognized overnight courier. Notices per Impression. The meter identified as "BW CLR" counts (1) black and white will be sent to you at the "Bill to" address identified in this Agreement, and to Xerox at impressions and (ii) color impressions that have up to 286,000 color pixels (also the inquiry address set forth on your most recent invoice, or to such other address as referred to as Useful Color). The meter identified as "CLR LVL2" counts color either party may designate by written notice. You authorize Xerox or its agents to impressions with more than 286,000 color pixels. communicate with you by any electronic means (including cellular phone, email, ii. A Tier 3 plan is billed using three meters, each with a different Print Charge or automatic dialing and recorded messages) using any phone number (including cellular) Charge per Impression. The meter identified as "BW CLR" counts (i) black and white or electronic address you provide to Xerox. This Agreement constitutes the entire impressions and (ii) color impressions that have up to 286,000 color pixels (also agreement as to its subject matter, supersedes all prior oral and written agreements, referred to as Useful Color). The meter identified as "CLR LVL2" counts color and will be governed by the laws of the State of New York (without regard to conflict -of- impressions with more than 286,000 color pixels and up to 1,900,000 color pixels (also law principles). In any action to enforce this Agreement, the parties agree (a) to the referred to as Everyday Color). The meter identified as "CLR LVL3" counts color jurisdiction and venue of the federal and state courts in Monroe County, New York, and impressions with more than 1,900,000 color pixels (also referred to as Expressive (b) to waive their right to a jury trial. If a court finds any term of this Agreement Color). unenforceable, the remaining terms will remain in effect. The failure by either party to exercise any right or remedy will not constitute a waiver of such right or remedy. Each B. The ColorQube Equipment automatically determines the color pixel count for each party may retain a reproduction (e.g., electronic image, photocopy, facsimile) of this impression and records the impression on the appropriate meter. Agreement which will be admissible in any action to enforce it, but only the Agreement WS X42414 11/5/2009 09:37:24 Confidential Copyright© 2008 XEROX CORPORATION. All rights reserv: I ,7 Page 5 of 5 xerox fa) Total Cost of Ownership Analysis for: g City of Carmel Zoning 9/15/09 Monthly Print Volume B/W 4,000 e',.si ra` W Monthly Print Volume Color 5,157 Useful Color Assumption 10% Everyday Color Assumption 65% /fr. Expressive Color Assumption 25% *Folder Finisher approx $80 /mo additional i 4. h x Figures based on 5 year lease. 3 year plan approximately $190 /mo tt additional -z 7 4 t *Pricing good through 9/25/09 d Konica Minolta ColorQube 9201 Color MFP Color MFD System Hardware Monthly Lease Cost $628.00 $372.06 Misc. Lease Charges $0.00 $0.00 TOTAL MONTHLY LEASE COST $628.00 $372.06 Service Maintenance Monthly Service Base Charge $0.00 $0.00 Misc. Monthly Service Maintenance Costs $0.00 $0.00 Service Cost Per Print B/W $0.010 $0.0089 Service Cost Per Print Color (Single Meter) $0.108 N/A Useful Color $0.000 $0.0089 Everyday Color $0.000 $0.029 Expressive Color $0.000 $0.079 Total Monthly Service Cost B/W $40.000 $35.60 Total Monthly Service Cost Color (Single Meter) $556.920 N/A Useful Color (based on assumption above) $0.000 $4.59 Everyday Color (based on assumption above) $0.000 $9720 Expressive Color (based on assumptions above) $0.000 $101.84 TOTAL MONTHLY SERVICE COST $596.92 $239.24 Supplies Estimated Supply Cost Per Print B/W Included w/ svc. Included w/ svc. Estimated Supply Cost Per Print Color (Single Meter) N/A N/A Useful Color Included w/ svc. Included w/ svc. Everyday Color Included w/ svc. Included w/ svc. Expressive Color Included w/ svc. Included w/ svc. Total Monthly Supply B/W $0.00 $0.00 Total Monthly Supply Cost Color (Single Meter) $0.00 $0.00 Useful Color (based on assumption above) $0.00 $0.00 Everyday Color (based on assumption above) $0.00 $0.00 Expressive Color (based on assumptions above) $0.00 $0.00 TOTAL MONTHLY SUPPLY COST $0.00 $0.00 ,h' F y y-,s rF"S^,b C,€ ac Nip'- 2 1f a "`,u' 'tLL.:s s .V 2,; ;41' TOTAL MO OF OWNERSHIP z} 3 I _...a., 1,22 4 92 tY ,z �y; $611 0 61362 TOATALA THIY SNOWS ..'4 r y. y fi x[1115 ___LE.2........_____