Xerox Corp/DOL
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Service Contr.l.ct
Legal Dept
APPROVED, AS TO
FORM BY:_ c..? c...,
AGREEMENT FOR PURCHASE OF GOODS AND SERVICES
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TillS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ("Agreement")
is hereby made and entered into by and between the City of Carmel, Indiana,acting by and
through its Board of Public Works and Safety, ("City") and Xerox Corporation, ("Vendor").
TERMS AND CONDITIONS
1. ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges that it has read and understands this Agreement, and agrees that its
execution of same and/or its provision of any goods and/or services ("Goods and
Services") hereunder shall constitute Vendor's acceptance of all of the Agreement's terms
and conditions.
2. PERFORMANCE:
City agrees to purchase the Goods and Services' described in attached Exhibit A, which is
incorporated herein by this reference, and Vendor agrees to provide same and to
otherwise perform the requirements of this Agreement and to execute its responsibilities
hereunder by following and applying at all times the highest professional and technical
guidelines and standards.
3. PRICE AND PAYMENT TERMS:
The total price for the Goods and Services contemplated herein shall be no more than
$474.00 annually paid quarterly in an amount not to exceed $118.50. 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 thirty (30) 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 and Vendor has
otherwise performed and satisfied all the terms and conditions of this Agreement. Subject
to the above, if the undisputed invoice amount. is not paid within thirty (30) days of its
receipt by City, Vendor shall so notify City. If such amount as is not disputed is not
thereafter paid within five (5) business days from the date such notice is received by City,
then a late charge in a sum equal to one percent (1%) of such tmpaid and undisputed
invoice amotmt shall accrue and be immediately due and payable by City to Vendor as a
separate debt for each month it remains unpaid. In the event an invoice amount is
disputed, City shall so notify Vendor. If such dispute is not resolved to City's satisfaction
within ten (10) business days after notice of such dispute is given, City shall pay such
amount as is in dispute, under protest, into the Carniel City Court, which court shall hold
such monies until provided with a settlement agreement signed by both parties hereto or a
final judgment has been entered thereon.
4. WARRANTY:
Vendor expressly warrants that the Goods and Services covered by this Agreement will
conform to the specifications, drawings, samples, instructions, directions and/or
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Xt:roxCorplration
Service Contract
upl Depl
descriptions thereof or thereon furnished to or by City, that the Goods and Services will
be delivered in a timely, good and workmanlike manner, and that the Goods and Services
will be free from defect. In addition, Vendor acknowledges that it knows of City's
intended use and expressly warrants that the Goods and Services covered by this
Agreement have been selected or provided by Vendor based upon City's stated use and
will be fit and sufficient for the particular purposes intended by City.
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, WARNINGS AND INSTRUCTIONS:
Ifrequested by City, Vendor shall promptly furnish io 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 and
concentration thereof. Upon delivery' of the Goods and Services provided hereunder,
Vendor shall furnish to City sufficient warning and notice (including appropriate labels
on containers and packing) of any hazardous. materials utilized in or that is a part of
Goods and Services, together with notice to the City how best to exercise that measure of
care and precaution as will prevent bodily injury or property damage with respect to such
hazardous materials.
7. FORCE MAJEURE:
Any delay or failure of either party to perform its obligations hereunder shall be excused
if, and to the extent, that it is caused by an event or occurrence beyond the reasonable
control of the party and without its fault or ,negligence, such as, by way of example and
not by way of limitation, acts of God, actions by any governmental authority (whether
valid or invalid), court injunction, fires, floods, windstorms, explosions, riots, natural
disasters, wars, sabotage, labor problems (including lockouts, strikes and slowdowns),
inability to obtain power, material, labor, equipment or transportation; provided that
notice of such delay (including the anticipated duration thereof) is given by the affected
party to the other party within five (5)'business days after discovery of the cause of such
delay. During the period of such delay or failure to perform by Vendor, City, at its
option, may purchase some or all of the same or similar Goods and Services from other
sources and reduce those Goods and Services provided by Vendor hereunder by such
quantity, without liability to Vendor, or have Vendor provide the Goods and Services
from other sources in quantities and at times requested by City and at the price set forth in
this Agreement.
8. 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
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Xerox Corporation
Service Contract
Lcg31 Dept
or obtain such bond, all at Vendor's sole cost and expense, Vendor shall indemnity and
hold harmless City from and against any and all liabilities, losses, claims, costs and
expenses, including attorney fees, incurred by City in connection with any such lien
and/or the removal thereof This indemnification obligation shall survive the termination
of this Agreement.
9, DEFAULT:
If Vendor breaches a material term and condition of the Agreement and fails to cure such
material breach within thirty (30) days after receiving written notice from Vendor of such
breach, City may terminate this Agreement and receive a refund equal to the amount paid
under this Agreement minus the value of service already received under the Agreement.
In no event shall either party be liable to the other for consequential, punitive, special or
indirect damages arising under or related to this Agreement.
10. INSURANCE:
At a minimum, Vendor shall maintain (or self insure) the following insurance coverage
during the term of this Agreement:
a. Worker's compensation, at statutory limits;
b. Employers Liability, with $1,000,000 limit ofliability
c. Comprehensive General Liability, including Products - Completed Operations
coverage and Broad Form Contractual with the following limits ofliability:
-$5,000,000 per occurrence for Bodily Injury and Property Damage arising
out of Products, completed Operations and Broad Form Contractual.
d. Automobile Liability, with a combined single limit of liability of $5,000,000 per
occurrence.
11. SETOFF:
In addition to any right of setoff provided by law, all amounts due Vendor shall be
considered net of indebtedness of Vendor to City; and City may deductahy amounts due'
or to become due from Vendor to City from any sums due or to become due from City to
Vendor hereunder.
12. GOVERNMENT COMPLIANCE:
Vendor agrees to comply with all present and future federal, state and local laws,
executive orders, rules, regulations, codes lII1d ordinances 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, codes and ordinances. This indemnification
obligation shall survive the termination of this Agreement.
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Xerox Corporation
ServiceContruct
LegalDepL
\3. NONDISCRIMINATION:
Vendor represents and warrants that it and all of its professionals, employees, agents,
outside sources and other persons shall comply with all existing and future 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 the hire, tenure, terms, conditions or
privileges of employment and to any other matter directly or indirectly related to
employment or subcontracting because of race, religion, color, sex, handicap, national
origin, ancestry, age, disabled veterari status and/or Vietnam era veteran status. City
reserves the right to collect a penalty as provided in IC 5-16-6-1 for any person so
discriminated against.
14. NO IMPLIED WAIVER:
The failure of either party at any time to require performance by the other of any
provision of this Agreement shall in no way 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 thereof.
15. 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.
16. RELATIONSHIP OF PARTIES:
The relationship of the parties hereto shall be as provided for in this Agreement, and
Vendor shall in no fashion be deemed to be an employee of City. In such regard, Vendor
and all of its employees, contractors, agents, outside sources and other persons shall not
be and are not employees of City, and the sole responsibility to pay to or for same all
statutory, contractual and other benefits shall remain exclusively with Vendor. The
contract price set forth herein to be paid hereunder by City to Vendor shall be the full and
maximum compensation and'monies required of City to be paid to Vendor under or
pursuant to this Agreement. -'
17. 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 further agree that, in the
event a lawsuit is filed hereunder, they waive any rights to a jury trial they may have, 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.
18. 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
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Xerox Corporation
ServiceConC"act
Legal Depl.
deleted, but only to the extent .necessary to comply with such statute, regulation,
ordinance, order or rule, and the remaining provisions of this Agreement shall remain in
full force and effect.
19. NOTICE:
Subject to paragraph 21 hereinbelow, any notice provided for in this Agreement shall be
sufficient if given by postage prepaid certified mail, return receipt requested, to the party
to be notified at the address specified herein:
If to City: City of Carmel Legal Department
One Civic Square
Carmel, Indiana 46032
ATTN: City Attorney
If to Vendor: Xerox Corporation
Xerox Square
Rochester, NY 14644
A TTN: Harry Kennedy
Notwithstanding the above, notice of termination under paragraph 20 hereinbelow shall
be effective if given orally, as long as written notice is then provided as set forth
hereinabove within three (3) days from the date of such oral notice.
20. TERMINATION:
Notwithstanding anything to the contrary contained in this Agreement, City may, upon
notice to Vendor, immediately terminate this Agreement for cause, in the event of a
default hereunder by Vendor, and/or if sufficient funds are not appropriated 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 provided as of the date of termination, after deduction of
all of City's costs and expenses, including, without limitation, attorney fees, that may be
incurred in connection with same.
21. REPRESENTATIONS AND WARRANTIES
The parties represent and warrant that they are authorized to enter into this Agreement
and that the persons or entities executing this Agreement have the authority to bind the
party which they represent.
22. TERM
Subject to the termination provlSlons set forth in Paragraph 20 hereinabove, this
Agreement shall be in effect from the Effective Date through December 31, 1998,and
shall on the first day of each January thereafter automatically renew for a period of one
(I) calendar year, unless at least thirty (30) days prior to such automatic renewal date,
either party provides the other with written notice of its decision not to renew.
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s.ervi!:e COJ]ln;ct
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23, HEADINGS ,
Alllieading !illd sectJ6nsof tills AgreenienCare inserted for.. convenience only and do not
'[orm;a part of this Agreement nor limit, expand or othep,yise aIter.the lIjeaning of. any
provision hereof.
24. BINDING EFFECT
City and Vendo~; and their respective oflkers, officials, agents, partners, sTIcc'essors,
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assigns and legal representatives, are. houni:!.to the other with respect to this Agreement
and to such other party's officers,:officials, agents, partners, successors,assigns and''regal
representatives in all respects 'as to all covenants, agreements .ano obligations of this,
AgreemenL
25, NO THIRD PARTY BENEFIClARlES
Nothing contained herein',sl]all, be construed}o, giv'e;anj rights or' benefits hereunder to
anyone. other than..City or Vendor.
,26. ADVICE: OF.COUNSEL:
The parties warrant thanh~y have read this Agreemen.tanduhderst~nd it, ate fully aware
oftheir. respective rights"have,hadtl1e opportunity to obtain the'adyice'.and as~istahce.of
an attorney throughout the negotiation ,of this;Agreement, and enter 'into this Agreement
freely, voluhtanlY, ahd without any duress, undue -influence, coercion. or. promise of
benefit,iexsepns expressly)iet forth'h~teih.
27. ENTIRE :AGREEMENT:
This Agreement, together with any exhibits attached heretoor,referencedherein,
constitutes the entire iagreeii:Ient bet\):'een Vendor' and .City willi respect to the subjed
matter hereof, 'and supersedes all:prior oral or written'representations and agreements
regarding'same. NotWithstanding,any otherJerm or condition set forth herein, but subject
to paragraph 19 hereof, 'to the 'extent any term or condition contained in al\y.exhibit'
attached to this Agr~emeh! c1mflictS witJl any term or cQnditi(ln c(lntaihed.in this
Agreement, the term or condition contained in tlus Agreement, shall gov~m and prevail,
unless the parties hereto, ortheirsuccessorsih!interesf,expressjyand in writing, agree.
otherwise, This :Agreement..may only be modified by written amendment executed by
both,parties hereto; or their successors in interest:
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Xero~Corporati(lfl
Se!'ViceO.lTl~t
l!:!galn~'"Pt
IN WlTNESS WHEREOF, the parties hereto' have made and executed this Agreement as
follows:
CITY OF CARMEL, INDIANA
by and through its Board of Public
Works and Safety
XEROX CORPORATION
By:.
_fk;q~t2JJ ~N e 0'-1
P1)d Name ' " '
,1fl.!;'C\ l2egPt:WS(:' ~fVA-'} IdfJS
,Title
DaW 81 LSj. 9 ~
ATTEST:
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Diana Cordi-ay, Clerk-Treasurer
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Xerox CmiXlrllQOIl
Ser....icccontnict
Legal Depl
EXHIBIT A
Vendor will makeallnece~saryadjustthfmtsand repairs to keep the Ciumel Legal Department's
Xerox 5021 copier, Equipmentserial number OMW033834 (the "Equipment) in gobdworking
order. Parts required for repairmaybe'recovererl'or reprocessed, an&replacect' parts will.becolIle
the'property of Vendor at its option. Any developer used in iheEquipment may be installed and
removed orily byVe!ldbr ai1.d".ilpphtemoval"will becorrieiYeqdor'ptopertY
"Basic services" will J:,e provided during Vendor's established, service availabllityhours 'and only
within areas openedJor repair, service within tQeUnitedStates ani:Uts, tetiitories,and possessions.
Excluded from "b,!sic seryices" 'are' repairs caused oth.er ili.an bynoimal.wear and,tear--orby
defects in material orworkmanship.
If Yendor is unable to maintain the Equipmentin goo&wor]cing.order,under the c.onditions
described ab6ve,Vehdof \vill replae? Hie, Equ,iPrnent with eitl1.eran idel1ticaLp'roduct at anqther
product that provides equal. or greater capabilities; at the, option of Vendor, Wareptacement
product is providecLuncter this paragraph, there will'be no additionarEquipmerit'charge,~nor will
there be an additional "basic services" charge for'the remainder of the then currenLlerm of those
"qasic serVices".
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