Loading...
HomeMy WebLinkAboutResolution - 2011-R0245 - Contract - Xerox Corp.- Lease Agreement - 06/09/2011Resolution No. 2011-RO245 June 9, 2011 Item No. 5.5 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Contract No. 10229 for a lease agreement, by and between the City of Lubbock and Xerox Corporation of Dallas, Texas, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on June 9, 2011 TOM MARTIN, MAYOR ATTEST: Rebe a Garza, City Secret APPROVED AS TO CONTENT: Andy B rcham, Chief Financial Officer APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocs/RES.Contract-Xerox Corporation May 11, 2011 TCPN CONTRACT R50081CONTRACT 10229 xeroxWEA) customer. LUBBOCK, CITY OF ailiTa CITY OF LUBBOCK instar: CITY OF LUBBOCK 162513th St Rm Lob Lubbock, TX 79401.0001 162513th St Lubbock TX 75401.0001 State or Local Government Negotiated Contract : 072535300 1.41VCPC (4127 COPIER/PRINTER) High Capacity Feeder Lease Term: 60 months Xerox 6115 SIN H21.111926 6/23(2011 D5 Bkltfinshr Xc 213 Purchase Option: FMV Trade -In as of Payment 59 Customer Ed Xerox FFLOW MONO SIN Analyst Services VOB001195 Trade -1n as of Payment 59 2. LPFFSVRC (FREEFLOW 4112127 SVR) - 4127cp Enablement Lease Term: 60 months None 6(2312011 Operating System Sw Purchase Option: FMV Controller Stand Customer Ed Analyst Services 3. X700XV (EXTERNAL XRX 700'V') - X700 Offset CVrw K1 Lease Term: 60 months Xerox SBMF SIN 1-1812=285 60011 Purchase Option: FMV Trade -In as of Payment 59 Xerox PPS2MKR SIN VCP002938 Trade -In as of Payment 59 4. X70FFSPRO (X700 FFPS PRO VERS.) Customer Ed Lease Term: 60 months None 612312011 Analyst Services W Purchase Option: FMV r Customer ackno+ladges receipt of the terms of this agreement Thank You for your businessl W h ransislsnf a pages inaudxg sus face pogo Trus Agreement Is proudly presented by Xerox and Signer: Phone: (605)715.2204 Sondra Henley (8O6)744.8744 � For Irtformatlan on your Xerox Account, go to Signature: Date: www.xerox.comlAccountManaoernent xerox Product Description Information 1.4127CPC Item install `. - 5. X700XV (EXTERNAL XRX 700'V') $467.67 NIA Convenience Stapler Lease Term: 60 months Xerox DCOL250X SIN 6123/2011 Over Hicap Feed-2try Purchase Option; FMV VGW617909 1: Meter 1 700 Interface Module Trade-in as of Payment 68 - Consumable Supplies Included for ail prints Lt Prod C Book Maker Xerox DIGIPATNPC SIN 2: Meter 2 All Prints HHK299474 Pricing Fixed for Term 4. X70FFSPRO Trade -In as of Payment 59 NIA 6. X70FFSPRO (X700 FFPS PRO VERS.) *A Full Service Maintenance included 5. X700XV Stand Lease Term: 60 months Xerox EXP250O SIN 612312011 Customer Ed Purchase Option: FMV WYM913587 2: !Neter 2 Analyst Services $0.0147 Trade -fn as of Payment 68 a 7.4127CPC (4127 COP1ERIPRINTER) N!A N/A NIA Full Service Maintenance Included Bypass Chute Lease Term: 60 months Xerox 41 10C SIN WEY077697 6x'23+2011 04 Stapler Finisher 2.3 Hole Purchase Option: FMV Trade-in as of Payment 58 125,001+ Customer Ed Pricing Fixed for Term Xerox 61 XX CNTRL SIN Analyst Services VNH993903 Trade -In as of Payment 59 8. LPFFSVRC (FREEFLOW 4112127 SVR) 4127cp Enablement Lease Term: 60 months Xerox EPSCNTRL SIN6123`2011 Operating System Sw Purchase Option: FMV YKN001402 Customer Ed Trade -In Analyst Services Pricing Item Chargesklonthity Lease Print 1.4127CPC $1,747.85 1: Total 1 -125,000 included Consumable Supplies Included for all prints 125,001+ $0.0057 Pricing Fixed for Term 2. LPFFSVRC $467.67 NIA NIA NIA Full Service Maintenance Included 3. X700XV $765.99 1: Meter 1 All Prints $0.0559 - Consumable Supplies Included for ail prints 2: Meter 2 All Prints $0,0147 Pricing Fixed for Term 4. X70FFSPRO $552.61 NIA NIA *A Full Service Maintenance included 5. X700XV $1,121.30 1: Meter 1 All Prints $0.0559 Consumable Supplies Included for all prints 2: !Neter 2 All Prints i $0.0147 Pricing Fixed for Term 6. X70FFSPRO $578.82 N!A N/A NIA Full Service Maintenance Included 7.4127CPC $1,613.73 1: Total 1 -125,1700 Included Consumable Supplies Included for all prints 125,001+ $0.0057 Pricing Fixed for Term xerox B. LPFFSVRG Total $462.04 $7,310.01 N. A Ni.4 N .A Full Service Maintenance Included Minimum Payments (Excluding Applicable Taxes) IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date. CITY OF LUBBOCK, TX Tom Martin, Mayor ATTEST Rebecla Garza, City Secretary APPROVED AS TO CONTENT: Andy Burcham, hief Finance Officer APP Q' O FARM: Chad Weaver, Assistant City Attorney Title O,0 4 &-.-E'' _ Benchmark Service that's unduplicated. TCPN CONTRACT NO. R5008 26 -May -1 I Current Costs Equipment Base Charge Xerox 6115 S 2,972.83 FFLOW Mona S 150.26 PPS2MKR S 410.05 SBMF S 1,604.88 DCOL25OX S 831.09 DIGIPATHPC S 686.87 FXP2500 S 625.81 41 10C S 2,130.20 61 XX CNiTP L S 831.83 Xerox Total S 10,243.82 Proposed Costs Equipment Base Charge Xerox 4127 S 1,747.85 LPFFSVRC S 467.67 700 ' S 765.99 X70FFSPRO S 552.61 700 W External S 1,121.30 X70FFSPRO S 578.82 Xerox 4127 S 1,613.73 LPFFSVRC S 462.04 Xerox Total S 7,310.01 Monthly Savings S 2,933.81 Annual Savings S 35,205.72 Contract Savings S 176,528.60 xe rox J_,� Xerox Corporation Terms and Conditions Attachment The Cooperative Purchasing Network Request for Proposal / Solicitation Number 10-02 for Copiers & Printers Opening Date. April 20, 2010 GENERAL CONDITIONS 1. Equipment Status. Unless you are acquiring "Previously Installed" Equipment, Equipment will be (i) "Newly Manufactured," which may contain some reconditioned components; (ii) "Factory Produced New Model", which is manufactured and newly serialized at a Xerox factory, adds functions and features to a product previously disassembled to a Xerox predetermined standard, and contains new and reconditioned components; or (iii) "Remanufactured", which has been factory produced following disassembly to a Xerox predetermined standard and contains new and reconditioned. 2. Total Satisfaction Guarantee ("Guarantee"). If you are not totally satisfied with any Xerox -brand Equipment delivered under this Agreement, Xerox will, at your request, replace it without charge with an identical model or, at Xerox's option, with Xerox Equipment with comparable features and capabilities. For "Previously Installed" Equipment, this Guarantee will be effective for 1 year after installation. The Guarantee will be effective for 3 years after the Equipment's installation for purchased Equipment or during the entire initial finance term for leased Equipment and only applies to Xerox -brand Equipment which has been continuously maintained by Xerox under this Agreement or a Xerox Maintenance Agreement, and is not applicable to Equipment damaged or destroyed due to an Act of God. 3. Trade -In Equipment. If you are providing equipment to Xerox as part of this Agreement ("Trade -In Equipment"). You warrant that you have the right to transfer title to the Trade -In Equipment and that it has been installed and performing its intended function. Title and risk of loss to the Trade -In Equipment shall pass to Xerox when Xerox removes it from your premises. You warrant that the Trade -In Equipment is in good working order, has not been modified from its original configuration (other than by Xerox), and has a UL label attached. You agree to maintain the Trade -In Equipment at its present site and in substantially its present condition until removed by Xerox. You agree to pay all accrued charges for the Trade -In Equipment (up to and including payment of the final principal payment number) and to pay all maintenance, administrative, supply, and finance charges for this equipment through the date title passes to Xerox. 4. Equipment Delivery, Removal, and Relocation. Equipment prices include standard delivery and removal charges. Non-standard delivery and Equipment relocation for Xerox owned equipment must be arranged (or approved in advance) by Xerox and will be at your expense. Examples of non -typical charges would include the cost associated with any equipment delivery or removal where additional time or resources are required to disassemble equipment due to lack of adequate access, or the movement of Equipment up stairways or through windows requiring stair creepers, or cranes. 5. Equipment Installation Date. The Equipment installation will be (a) the delivery date for TCPN installable Equipment; or (b) the installation date for Xerox installable Equipment, which is the date Xerox, determines the equipment to be operating satisfactorily as demonstrated by the successful completion of diagnostic routines and is available for your use. b. Maintenance Services. Except for Equipment identified as "No Svc.", Xerox (or a designated servicer) will keep the Equipment in good working order ("Maintenance Services"). The service technicians assigned to provide Basic Services will have the expertise, skills, training, and professional education to perform the Basic Services in a professional manner A) Maintenance Services. Maintenance Services will be provided during Xerox's standard working hours, Monday through Friday, 8:00 AM to 5:00 PM, excluding Xerox recognized holidays. Maintenance Services excludes repairs due to: (i) misuse, neglect or abuse; (ii) failure of the installation site or the PC or workstation used with the Equipment to comply with Xerox's published specifications; (iii) use of options, accessories or products not serviced by Xerox; (iv) non -Xerox alterations, relocation, service or supplies; or (v) failure to perform operator maintenance procedures identified in operator manuals. B) Repairs & Parts. Replacement parts may be new, reprocessed or recovered and all replaced parts become Xerox's property. C) Extended Service Hours. If you elect "Extended Shift Coverage" Xerox will provide Maintenance Services for the indicated number of eight hour -shifts, with the first number indicating the number of eight-hour shifts and the second number indicating the days of the week (starting on Monday), e.g., 2 x 6 means 8:00 A.M. to 12:00 A.M., Monday through Saturday. Extended Shift Coverage will be billed separately. D) Installation Site. You agree to give Xerox reasonable access to the Equipment and to provide Xerox adequate storage space for a reasonable quantity of replacement parts and supplies. E) Cartridge Products. If Xerox is providing Maintenance Services for Equipment utilizing cartridges designated by Xerox as customer replaceable units, including copy/print cartridges and xerographic modules or fuser modules ("Cartridges"), you agree to use only unmodified Cartridges purchased directly from Xerox or its authorized resellers in the U.S. Cartridges packed with Equipment and replacement Cartridges may be new, remanufactured, or reprocessed. Remanufactured and reprocessed Cartridges meet Xerox's new Cartridge performance standards and contain new or reprocessed components. To enhance print quality, Cartridge(s) for many models of Equipment have been designed to cease functioning at a predetermined point. In addition, many Equipment models are designed to function only with Cartridges that are newly manufactured original Xerox Cartridges or with Cartridges intended for use in the U.S. F) Consumable Supplies included in BaselPrint Charges. If Consumable Supplies is identified in the Maintenance Plan Features. Maintenance Services will include black toner (excluding highlight color toner), black developer, copy Cartridges, and, if applicable, fuser ("Consumable Supplies"). For full-color Equipment, Consumable Supplies shall also include, as applicable, color toner and developer. For Products identified as "Phaser", Consumable Supplies may also include, if applicable, black solid ink, color solid ink, imaging units, waste cartridges, transfer rolls, transfer belts, transfer units, belt cleaner, maintenance kits, print Cartridges, drum Cartridges, waste trays and cleaning kits. You agree that the Consumable Supplies are Xerox's property until used by you, that you will use them only with the Equipment, that you will return all Cartridges to Xerox for remanufacturing once they have been run to their cease -function point (at Xerox's expense when using Xerox -supplied shipping labels), and that at the end of the term of this Agreement you will either (1) return any unused Consumable Supplies to Xerox (at Xerox's expense when using Xerox -supplied shipping labels), or (2) destroy them in a manner permitted by applicable law. Should your use of Consumable Supplies exceed Xerox's published yields for these items by more than 10%, you agree that Xerox shall have the right to charge you for any such excess usage. When requested by Xerox, you agree to provide meter readings and inventory of Consumable Supplies in your possession. G) Equipment Replacement. Xerox will, as your exclusive remedy for Xerox's failure to provide Maintenance Services, replace the Equipment with an identical model or, at Xerox's option, another model with comparable features and capabilities. There will be no additional charge for the replacement Equipment during the remainder of the initial Term. 7. Meter Readings. You agree to provide meter readings in the manner and frequency identified by Xerox. If you do not provide Xerox with meter readings as required, Xerox may reasonably estimate them and bill you accordingly. If meter readings have been estimated, Xerox after receiving the actual meter readings for the equipment shall make an appropriate adjustment on the subsequent invoice. 8. Remote Services. Certain models of Equipment are supported and serviced using data that is automatically collected by Xerox from the Equipment via electronic transmission from the Equipment to a secure off-site location. Examples of automatically transmitted data include product registration, meter read, supply level, Equipment configuration and settings, software version, and problem/fault code data. All such data shall be transmitted in a secure manner specified by Xerox. The automatic data transmission capability will not allow Xerox to read, view or download the content of any Customer documents residing on or passing through the Equipment or Customer's information management systems. 9. Warranty Disclaimer. Xerox disclaims, and you waive, the implied warranty of non -infringement. 10. Intellectual Property Indemnity. Xerox will defend, and pay any settlement agreed to by Xerox or any final judgment for, any claim that a Xerox -brand Product, including any Base Software or Diagnostic Software provided with or within the Xerox -brand Equipment, infringes a third party's U.S. intellectual property rights. You will promptly notify Xerox of any alleged infringement and permit Xerox to direct the defense. Xerox is not responsible for any non -Xerox litigation expenses or settlements unless it pre -approves them in writing. To avoid infringement, Xerox may modify or substitute an equivalent Xerox -brand Product, refund the price paid for the Xerox -brand Product (less the reasonable rental value for the period it was available to you), or obtain any necessary licenses. Xerox is not liable for any infringement based upon a Xerox -brand Product being modified to your specifications or being used or sold with products not provided by Xerox. For non -Xerox brand Products ordered under the Agreement, when you do not have a direct Intellectual Property Indemnity for the non -Xerox brand Product and Xerox does have an Intellectual Property indemnity for such non -Xerox brand Products and is contractually permitted to do so, Xerox will pass its Intellectual Property Indemnity for such Product through to you. 11. Force Majeure. Xerox will not be liable to you during any period in which its performance is delayed or prevented, in whole or in part, by a circumstance beyond its reasonable control. Xerox will notify you if such a circumstance occurs. 12. Notices. Notices must be in writing and will be deemed given 5 days after mailing, or 2 days after sending by nationally recognized overnight courier. Notices will be sent to you at the "Bill to" address identified in this Agreement, and to Xerox at the inquiry address set forth on your most recent invoice, or to such other address as either party may designate by written notice. SOFTWARE TERMS 1. Software License. Xerox grants you a non-exclusive, non -transferable license to use in the U.S.: (a) software and accompanying documentation provided with Xerox -brand Equipment ("Base Software") only with the Xerox -brand Equipment with which it was delivered; and (b) software and accompanying documentation identified in this Agreement as "Application Software" only on any single unit of equipment for as long as you are current in the payment of all applicable software license fees. A) "Base Software" and "Application Software" are referred to collectively as "Software". You have no other rights and may not: (i) distribute, copy, modify, create derivatives of, decompile, or reverse engineer Software; (ii) activate Software delivered with the Equipment in an inactivated state; or (iii) allow others to engage in same. B) Title to, and all intellectual property rights in, Software will reside solely with Xerox and/or its licensors (who will be considered third -party beneficiaries of this Section). Q Software may contain code capable of automatically disabling the Equipment. Disabling code may be activated if: (i) Xerox is denied access to periodically reset such code; (ii) you are notified of a default under this Agreement; or (iii) your license is terminated or expires. D) The Base Software license will terminate; (i) if you no longer use or possess the Equipment; (ii) you are a Lessor of the Equipment and your first lessee no longer uses or possesses it; or (iii) upon the expiration or termination of this Agreement, unless you have exercised your option to purchase the Equipment. E) Neither Xerox nor its licensors warrant that Software will be free from errors or that its operation will be uninterrupted. F) The foregoing terms do not apply to Diagnostic Software or to software/documentation accompanied by a click - wrap or shrink-wrap license agreement or otherwise made subject to a separate license agreement. 2. Software Support. Xerox (or a designated servicer) will provide the software support set forth below ("Software Support"). For Base Software, Software Support will be provided during the initial Term and any renewal period but in no event longer than 5 years after Xerox stops taking customer orders for the subject model of Equipment. For Application Software, Software Support will be provided as long as you are current in the payment of all applicable software license and support fees. A) Xerox will maintain a web -based or toll-free hotline during Xerox's standard working hours to report Software problems and answer Software -related questions. B) Xerox, either directly or with its vendors, will make reasonable efforts to: (a) assure that Software performs in material conformity with its user documentation; (b) provide available workarounds or patches to resolve Software performance problems; and (c) resolve coding errors for (i) the current Release and (ii) the previous Release for a period of 6 months after the current Release is made available to you. Q Xerox wilt not be required to provide Software Support if you have modified the Software.. D) New releases of Software that primarily incorporate compliance updates and coding error fixes are designated as "Maintenance Releases" or "Updates". Maintenance Releases or Updates that Xerox may be available will be provided at no charge and must be implemented within six months. New releases of Software that include new content or functionality ("Feature Releases") will be subject to additional license fees at Xerox's then -current pricing. Maintenance Releases, Updates and Feature Releases are collectively referred to as "Releases." Each Release will be considered Software governed by the Software License and Software Support provisions of this Agreement (unless otherwise noted). Implementation of a Release may require you to procure, at your expense, additional hardware and/or software from Xerox or another entity. Upon installation of a Release, you will return or destroy all prior Releases. 3. Diagnostic Software. Software used to evaluate or maintain the Equipment ("Diagnostic Software") is included with the Equipment. Diagnostic Software is a valuable trade secret of Xerox. Title to Diagnostic Software will remain with Xerox or its licensors. Xerox does not grant you any right to use Diagnostic Software, and you will not access, use, reproduce, distribute or disclose Diagnostic Software for any purpose (or allow third parties to do so). You will allow Xerox reasonable access to the Equipment to remove or disable Diagnostic Software if you are no longer receiving Maintenance Services from Xerox. 3 LEASE TERMS 1, Non -Cancelable Agreement. THIS AGREEMENT CANNOT BE CANCELED OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN. YOUR OBLIGATION TO MAKE ALL PAYMENTS, AND TO PAY ANY OTHER AMOUNTS DUE OR TO BECOME DUE, 1S ABSOLUTE AND UNCONDITIONAL AND NOT SUBJECT TO DELAY, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF XEROX'S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. ANY CLAIM AGAINST XEROX MAY BE ASSERTED IN A SEPARATE ACTION AND SOLELY AGAINST XEROX. 2. Lease Commencement & Term. The Term for each unit of Equipment will continence upon; delivery of customer - installable Equipment; or the installation of Xerox -installable Equipment and will expire on the last day of the final full calendar month of the contracted term of the Lease Agreement. Unless either party provides notice of termination at least 30 days before the expiration of the initial Term, it will renew on a month-to-month basis on the same terms and conditions. During this renewal period, either party may terminate the Equipment upon at least 30 days notice. Upon termination, you will make the Products available for removal by Xerox. At the time of removal, the Equipment will be in the same condition as when delivered (reasonable wear and tear excepted). 3, invoicing. The Minimum Lease Payment, which may include a guaranteed number of copies (copy allowance), plus any additional Print Charges covers the cost of (1) the use of the equipment; (2) the equipment's maintenance; and (3) consumable supplies, if applicable. The Minimum Lease Payment will commence following Equipment installation and will be billed monthly. Charges for excess prints will be reconciled and billed monthly or quarterly, as applicable, in arrears. 4. Refinance. The "Amount Refinanced" is included in the amount financed under this Agreement. If the Amount Refinanced is under an agreement with a third party, you acknowledge you have the right to terminate the agreement and you will provide Xerox with a statement from the third party identifying the equipment at issue, the amount to be paid off and the payee's name and mailing address. If the Amount Refinanced is under an agreement with Xerox, the refinancing will render your prior agreement null and void. If you breach any of your obligations under this Agreement, the full Amount Refinanced will be immediately due and payable. 5. Price Increases. Xerox may annually increase the maintenance component of the Minimum Payment and Print Charges, each such increase not to exceed 10%. For Application Software, Xerox may annually increase the software license or support fees, each such increase not to exceed 10%. These adjustments will occur at the commencement of each fiscal contract cycle. 6. Payment & Credit. Your payment is due within 30 days after the invoice date, with all charges being billed in arrears. Restrictive covenants on payment instruments will not reduce your obligations. You authorize Xerox, or its agent, to obtain credit reports from commercial credit reporting agencies. 7. Taxes, Unless you provide proof of your tax-exempt status, You will be responsible for all applicable taxes, fees or charges of any kind (including interest and penalties) assessed by any governmental entity on this Agreement or the amounts payable under this Agreement ("Taxes"), which will be included in Xerox's invoice unless you timely provide proof of your tax exempt status. $. Late Charges. If any payment is not received by Xerox within 10 days of the due date (40 days after the invoice date), Xerox may charge a late interest charge as allowed under New York law equal to the higher of 5% of the amount due or $25.00, not to exceed the maximum amount permitted by law, as a reasonable collection cost. 9. Default and Remedies. If you default or breach an individual Lease Agreement, Xerox may, in addition to its other remedies (including cessation of Maintenance Services), remove the Equipment at your expense and require immediate payment, as liquidated damages for loss of bargain and not as a penalty, of: (a) all amounts then due, plus interest from the due date until paid as allowed under law; at the rate of 1.5% per month; (b) the Minimum Lease Payments (less the Maintenance Services and Consumable Supplies components, as reflected on Xerox's records) remaining in the Term, discounted at 4% per annum; and (c) the applicable FMV or Purchase Option; and (d) all applicable Taxes. If you make the Equipment available for removal by Xerox within 30 days after notice of default, in the same condition as when delivered (reasonable wear and tear excepted), you will receive a credit for the fair market value of the Equipment as determined by Xerox, less any costs incurred by Xerox. You agree to pay all reasonable costs, including attorneys' fees, incurred by Xerox to enforce this Agreement. 10. Assignment. Except for assignment by Xerox to a parent, subsidiary or affiliate of Xerox, or to securitize this Agreement as part of a financing transaction ("Permitted Assignment"), neither party will assign any of its rights or obligations under this Agreement without the prior written consent of the other party. In the event of a Permitted Assignment: (a) Xerox may, without your prior written consent, release to the proposed assignee information it has about you related to this Agreement; (b) the assignee will have all of the rights but none of the obligations of Xerox hereunder; (c) the assignee will continue to look to Xerox for performance of Xerox's obligations, including the provision of Maintenance Services; (d) you waive and release the assignee from any 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 assignee; and (f) you will remit payments in accordance with instructions of the assignee. 4 11. Risk of Loss. You agree that: (t) the equipment will remain personal property; (ii) you will not attach the equipment as a fixture to any real estate; (iii) you will not pledge, sub -lease, or part with possession of the equipment or file, or permit to be filed, any lien against the equipment; and, (iv) you will not make any permanent alterations to the equipment. The risk of loss due to your fault or negligence, as well as theft, fire, or disappearance, shall pass to you upon delivery. Risk of loss passes to you upon delivery and remains with you until Xerox removes the Equipment. 12. FMV End of Term Purchase Option. Provide you are not in default, you may purchase the Equipment, "AS IS, WHERE IS" and WITHOUT ANY WARRANTY AS TO CONDITION OR VALUE, at the end of the initial Term for the fair market value of the Equipment at the expiration of the initial Term, plus all applicable Taxes. 13. FPO End of Term Purchase Option. Provide you are not in default, you may purchase the Equipment, "AS IS, WHERE IS" and WITHOUT ANY WARRANTY AS TO CONDITION OR VALUE, at the end of the initial Term for the "Purchase Option" indicated on the face of this Agreement (i.e., either a set dollar amount or the fair market value of the Equipment at the expiration of the initial Term), plus all applicable Taxes. 14. Waivers. The parties agree that this Agreement is: (i) a "finance lease" under Article 2A of the Uniform Commercial Code and, except to the extent expressly provided herein, and to the extent permitted by New York law, you waive all rights and remedies conferred upon a lessee by Article 2A; and (ii) a lease for all federal, state or local income tax purposes and you shall not claim any credit or deduction for depreciation in respect of the Equipment, or take any other action inconsistent with your role as lessee of the Equipment. 15. Protection of Xerox's Rights. You authorize Xerox or its agent to file, by any permissible means, financing statements necessary to protect Xerox's rights as Lessor of the Equipment. You will promptly notify Xerox of a change in ownership, or if you relocate your principal place of business or change the name of your business. 16. State and Local Government Terms and Conditions. A) Tax Treatment (applicable to Fixed Purchase Option Leases). Xerox has accepted this Agreement based on your representation that Xerox may claim any interest paid by you as exempt from federal income tax under Section 103(c) of the Internal Revenue Code ("Code"). You will comply with the information reporting requirements of Section 149(e) of the Code. Such compliance includes the execution of 8038-G or 8038 -GC Information Returns. You appoint Xerox as your agent to maintain, and Xerox will maintain, or cause to be maintained, a complete and accurate record of all assignments of this Agreement in form sufficient to comply with the book entry requirements of Section 149(a) of the Code and the regulations thereunder from time to time. Should Xerox lose the benefit of this exemption as a result of your failure to comply with or be covered by Section 103(c) the Code or the regulations thereunder, then, subject to the availability of funds and upon demand by Xerox, you will pay Xerox an amount equal to its loss in this regard. You shall provide Xerox with a properly prepared and executed copy of US Treasury Form 8038 or 8038 -GC. 5 CASH PURCHASE TERMS 1. Invoicing. The invoice under a Cash Purchase Agreement consists of the Net Price amount for the Equipment purchased and all applicable Taxes. 2. Taxes. Unless you provide proof of your tax-exempt status, You will be responsible for all applicable taxes, fees or charges of any kind (including interest and penalties) assessed by any governmental entity on this Agreement or the amounts payable under this Agreement ("Taxes"), which will be included in Xerox's invoice unless you timely provide proof of your tax exempt status. 3. Payment. Your payment is due within 30 days after the invoice date, with all charges being billed in arrears. Restrictive covenants on payment instruments will not reduce your obligations. You authorize Xerox, or its agent, to obtain credit reports from commercial credit reporting agencies. 4. Default & Remedies. If you default an individual Cash Purchase Agreement, Xerox, in addition to its other remedies, including the cessation of Basic Services, may require immediate payment of all amounts then due (including all applicable Taxes), plus interest on all amounts due until paid as allowed under law: at the rate of one and one-half percent (1.5%) per month, not to exceed the maximum amount permitted by law. 5. Equipment Installation Date. The Equipment installation will be (a) the delivery date for customer installable Equipment; or (b) the installation date for Xerox installable Equipment, which is the date Xerox determines the equipment to be operating satisfactorily as demonstrated by the successful completion of diagnostic routines and is available for your use. 6. Title, Warranty, and Risk. Title, warranty, and risk of loss to the Equipment passes to you upon delivery of customer - installable Equipment; or installation of Xerox -installable Equipment. Until you have paid for the Equipment in full: (i) it will remain personal property; (ii) you will not attach it as a fixture to any real estate; (iii) you will not pledge, sub- lease or part with possession of it, or file or permit to be filed any lien against it; and (iv) you will not make any permanent alterations to it. Warranty coverage for any product utilizing Cartridges is conditioned upon you using only unmodified cartridges purchased directly from Xerox or its authorized resellers. f MAINTENANCE TERMS 1. Maintenance Commencement & Term. The Term for Maintenance Services will begin following the equipments installation and expire on the final day of the twelfth (12) full calendar months after installation or at the end of the customer's then current fiscal year as applicable. A) Xerox may annually increase the Minimum Payment and Print Charges, each such increase not to exceed 10%. For Application Software, Xerox may annually increase the software license or support fees, each such increase not to exceed 10%. These adjustments will occur at the commencement of each fiscal / annual contract cycle. 2. Invoicing. The Monthly Minimum Maintenance Charge will be billed monthly and Charges for excess prints will be reconciled at the account level and billed quarterly in arrears. 3. Payment. Your payment is due within 30 days after the invoice date, with all charges being billed in arrears. Restrictive covenants on payment instruments will not reduce your obligations. You authorize Xerox, or its agent, to obtain credit reports from commercial credit reporting agencies. 4. Taxes. Unless you provide proof of your tax-exempt status, You will be responsible for all applicable taxes, fees or charges of any kind (including interest and penalties) assessed by any governmental entity on this Agreement or the amounts payable under this Agreement ("Taxes"), which will be included in Xerox's invoice unless you timely provide proof of your tax exempt status. 5. Default & Remedies. If you default or breach an individual Maintenance Agreement, Xerox, in addition to its other remedies, You will be in default under this Agreement if (1) Xerox does not receive any payment within 15 days after the date it is due, or (2) you breach any other obligation in this or any other agreement with Xerox. If you default, Xerox may, in addition to its other remedies (including the cessation of Maintenance Services), require immediate payment, as liquidated damages for loss of bargain and not as a penalty, of (a) all amounts then due, plus interest from the due date until paid as allowed under law; at the rate of 1.5% per month; and (b) the remaining Minimum Payments, not to exceed 6 such payments if this Agreement is for a one year Term, and twelve (12) such payments for a multi-year Term; and, (c) all applicable Taxes. You will pay all reasonable costs, including attorneys' fees, incurred by Xerox to enforce this Agreement. Termination Charges will not be assessed if you upgrade the Equipment to an alternative Xerox product or cancel an accessory. The Cooperative Purchasing Network Request for Proposal 1 Solicitation Number 10-02 for Copiers & Printers Opening Date: April 20, 2010 Please note that the following clarifications and the "Xerox Corporation Terms and Conditions Attachment" are a part of our bid proposal. In the event there is a conflict between the "Xerox Corporation Terms and Conditions Attachment" and those of the RFP, the latter shall prevail. Vendor Contract and Signature Form 1 General Terms and Conditions 2. Assignment of Contract; Assignment of Leases: Please note that Xerox automatically assigns all leases to a wholly owned subsidiary of Xerox. Such assignment shall be transparent to the TCPN. 4. Renewal of Contract; Individual Leases: Individual lease order placed against the contract will commence upon installation and continue for thirty-six (36), forty-eight (48), or sixty (60) months from the date of installation depending upon the term selected by the end user. 4. Contracts, Uniform Commercial Code (UCC): The TCPN agrees, to the extent permitted by law, to waive all right and remedies conferred upon the lessee under Article 2A of the UCC. Additionally, the TCPN further agrees, to the extent permitted by law, that any conflict between Xerox' Lease Terms and Conditions and the UCC will be resolved in favor of Xerox' Lease Terms and Conditions. 5. Funding Out Clause: This provision shall not apply to private not for profit users of the Contract. Additionally, these pre -conditions apply to any fund -outs: a) You provide written notice 30 days prior to the beginning of the fiscal year for which your legislative body does not appropriate funds; send Xerox written notice stating that your legislative body, though no action on your part, failed to appropriate funds for the next fiscal year. b) In addition, you agree at your expense to return the Equipment in good condition to a location designated by Xerox and that, when returned, the Equipment will be free of all liens and encumbrances. You will then be released from your obligations to make any further payments to Xerox (with Xerox retaining all sums paid to date). 12. Pricing: Xerox' pricing offer to TCPN is equivalent to those contained in the Federal Schedule between GSA and Xerox Corporation plus the cost of the two percent (2%) administration fee. If Xerox increases its prices or reduces prices offered to GSA these changes will also apply to TCPN. Such changes will be effective for TCPN at the same time as they become effective for GSA. Please note that prices contained in the Federal Schedule are subject to change each October 1, beginning October 1, 2010. 13. Warranty Conditions (applicable to outright purchase): Xerox provides warranty by way of a monthly billed maintenance agreement. Maintenance agreements commence upon installation of the equipment. Xerox will repair or replace defective parts or equipment at Xerox' expense as long as the equipment is being maintained by Xerox under a maintenance agreement. If the maintenance agreement is cancelled or it is not renewed Xerox' obligation to repair or replace equipment ceases. 13. Warranty Conditions (applicable to lease): Xerox provides warranty by way of a monthly billed maintenance agreement, which is a mandatory part of the monthly lease payment. Maintenance agreements commence upon installation of the equipment. Xerox will repair or replace defective parts or equipment at Xerox' expense for the duration of the lease agreement. 14. Indemnity: Xerox, to the extent permissible by law, submits the following with respect to Indemnity: (a) Xerox shall indemnify and hold the TCPN, its officers, agents and employees harmless from and against all third party claims, damages, losses or causes of action for personal injury (including death) or damage to tangible property to the extent such injury or damage was found by a court or administrative agency of competent jurisdiction to have been proximately caused by Xerox' performance pursuant to this Contract. The foregoing indemnity is contingent upon TCPN giving Xerox written notice, by registered mail, promptly after it becomes aware of any claim to be indemnified hereunder and permits Xerox to control the defense of any such claim or action at Xerox' own expense. Notice shall be sent to "Corporate Risk, Xerox Corporation, 45 Glover Avenue, P. O. Box 4505, Norwalk, Connecticut 06856- 4505." TCPN agrees that Xerox may employ attorneys of its own choice to appear and defend the claim or action and that TCPN shall do nothing to compromise the defense of such claim or action or any settlement thereof and shall provide Xerox with all reasonable assistance which Xerox may require. (b) Except for indemnified matters and to the extent permitted by applicable law, all other liability of Xerox to the TCPN for damages of any kind or type, including but not limited to direct, indirect, consequential, incidental, or special damages, arising from Xerox' performance or failure to perform under this Contract or by virtue of Xerox' tortious conduct (including negligence whether passive or active) shall be limited to the amounts paid by TCPN under this .Agreement. Provided, however, that the foregoing limitation of liability shall not apply to claims by the TCPN for damage to real or tangible property caused by Xerox' negligence. 17. Supplemental Agreements; Value Added Services: Please note that Xerox also offers Managed Services. Many of the products quoted in our proposal offer greater value to TCPN when combined with managed services. Enclosed for your consideration is Xerox' Managed Services Agreements and relevant attachments. Subject to your acceptance of these terms, Xerox will make managed services offerings available to eligible users of the Contract. 19. Miscellaneous; Cancellation of Contract: Cancellation under this provision shall not apply to any orders received by Xerox prior to the expiration date of the Contract. Tab 2 - Ouestionnaire States Covered: Xerox is willing to extend prices to all member States. 7. Pricing information; 1. Future Product Introductions: New technology and products will be added at a price level that is equivalent to the GSA list price plus the cost of the participation fee. 7. Pricing information; 2 Administrative Fee: If Xerox is under contract with TCPN and Xerox sells equipment or services to authorized users of the contract using the contract and associated prices, Xerox will pay any applicable fees due TCPN. Prices quoted include the administrative fee. Tab 4 — Product / Services 2. Leases: Individual leases may not be cancelled without penalty until expiration of the Agreement. Early termination of the lease without cause will result in an early termination charge that is equal to the sum of the remaining payments. 3. Rentals: Xerox is proposing a rental plan that commences upon installation and runs for thirty-six (36) months from that date unless terminated prior to expiration. Rentals may be upgraded, downgraded, or cancelled without penalty upon thirty (30) days prior written notice. Tab 6 - Pricing Not to Exceed Pricing; 1 Prices Offered: Current and future products will be priced at a rate that is equivalent to the GSA list price plus the cost of the participation fee. Not to Exceed Pricing; 2 Lower Prices and 3 Additional Discounts for Large Quantity Orders: Additional discounts may be available to those members who place a one time large order with Xerox. The actual price will be determined on a case by case basis and will be contingent upon the size and revenue associated with the order. Pricing L Best Pricing: Xerox agrees with this provision providing the TCPN is procuring the identical items in the same or greater quantities under the same terms and conditions. Price reductions resulting from this provision shall only apply to orders received after the effective date of the price reduction. 7. OEM Software Upgrades: The software maintenance agreement includes the cost of patches or fixes for the software. Additional features and functionality are not included in any patches or fixes and will be subject to an additional charge for the added capabilities should the TCPN desire to purchase them. 8. Maintenance contracts for Leases: Please note that maintenance is mandatory for leased equipment. The base maintenance charge is built into the monthly minimum lease payment. 10. Business Hours, Maintenance: Xerox will provide maintenance to TCPN users who have purchased maintenance agreements or leased equipment Monday through Friday from 8:00 AM to 5:00 PM, excluding holidays observed by either the TCPN or Xerox. 13. Warranty Conditions (applicable to outright purchase): Xerox provides warranty by way of a monthly billed maintenance agreement. Maintenance agreements commence upon installation of the equipment. Xerox will repair or replace defective parts or equipment at Xerox' expense as long as the equipment is being maintained by Xerox under a maintenance agreement. If the maintenance agreement is cancelled or it is not renewed Xerox' obligation to repair or replace equipment ceases. 13. Warranty Conditions (applicable to lease): Xerox provides warranty by way of a monthly billed maintenance agreement, which is a mandatory part of the monthly lease payment. Maintenance agreements commence upon installation of the equipment. Xerox will repair or replace defective parts or equipment at Xerox' expense for the duration of the lease agreement. 14. Total Satisfaction Guarantee (applicable to outright purchased equipment): Xerox will keep purchased equipment in good working order for the initial thirty-six (36) months of installation in accordance with the specifications contained in the solicitation or Xerox will replace the equipment with a like model at Xerox' expense, providing Xerox is maintaining the equipment under a maintenance agreement. 14. Total Satisfaction Guarantee (applicable to leased equipment) and 16. Total Satisfaction Guarantee for Leased Equipment: Xerox will keep equipment in good working order for the full term of the lease agreement in accordance with the specifications contained in the solicitation or Xerox will replace the equipment with a like model at Xerox' expense. Thank you for the opportunity to propose Xerox products and services. Sincerely, Xerox Corporation