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HomeMy WebLinkAboutResolution - 2018-R0433 - Benchmark Business Solutions - 12/06/2018Resolution No. 2018-RO433 Item No. 6.11 December 6, 2018 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, Service Contract No. 14220 for Workcentre printers and consumable supplies, by and between the City of Lubbock and Benchmark Business Solutions, of Lubbock, 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 December 6, 2018 k�7-1 � DANIEL M. POPE, MAYOR ATTEST: Rebecca Garza, City gecretary APPROVED AS TO CONTENT: Mark arkwo d, Assis nt City Manager APPROVED AS TO FORM: an rooke, Assistant City Attorney ccdocs/RES.Contract 14220 — Workcentre printers and consumable supplies November 15, 2018 Resolution No. 2018-RO433 At&, Benchmark A Vbusl Edge T-N—bgy Corr"t?y Contract 14220 LEASE AGREEMENT NUMBER: 1406485 RI PS180103 CUSTOMER•^ • ULL LEGAL NAME: OF CUSTOMER ubbock City of TREET ADDRESS 62513th St ITY STATE ZIP PHONE FAX Lubbock,TX 79401-3830 806-775-3000 ILLINGNAME IF DIFFERENT FROM ABOVE BILLING STREET ADDRESS ITY STATE ZIP FEDERAL TAX I.D. # LOCATION (IF DIFFERENT FROM ABOVE) s Stated Above Ws EQUIPMENTDESCRIPTION TYPE, MAKE, MODEL NUMBER, SERIAL NUMBER, AND INCLUDED ACCESSORIES NOT FINANCED UNDER THIS AGREEMENT BEGINNING METER READING MONTHLY IMAGE ALLOWANCE CONTRACT USAGE PER IMAGE CHARGE PLUS TAX B&W COLOR B&W COLOR B&W COLOR TOTAL CONSOLIDATED MONTHLY IMAGE ALLOWANCE AND CONTRACT USAGE PER IMAGE CHARGES IF CONSOLIDATED METER FREQUENCY: Monthly TERM ! PA YMENT SCHEDULE ERM IN MONTHS: 48 MONTHLY BASE PAYMENT AMOUNT': $14,636.31 _ '(PLUS APPLICABLE TAXES) PAYMENT PERIOD IS MONTHLY UNLESS OTHERWISE ORIGINATION FEE": $125.00 INDICATED TERMS ! CONDITIONS: (THIS AGREEMENT C• • •NS SET FORTH ON • OF AGREEMENT, ALL OF OF 1. Definitions. The words "you" and "your' mean the legal entity identified in "Customer Information" above, and "we." "us" and "our" means Benchmark Business Solutions Inc. 'Party' means you or us, and "Parties" means both you and us. "UCC" means the Uniform Commercial Code. "Equipment" means the items identified in the Item Description section above and in any attached Equipment Schedule. "Lease" means this Cost Per Copy Agreement "Lease Payment" means the Monthly Lease Payment specified above. "Inception Date" will be the date the Equipment is delivered to you or any later date we designate. If we designate a later Inception Date, you agree to pay us an additional amount equal to the periodic payments due under this Agreement prorated for the period between the date the Equipment is delivered to you and the Inception Date. CUSTOMER Y YOUR SIGNATURE BELOW, YOU ACKNOWLEDGE THAT YOU ARE ENTERING INTO A NON -CANCELLABLE LEASE AND THAT YOU HAVE READ AND AGREE TO ALL TERMS ND CONDITIONS SET FORTH ON PAGES 1 AND 2 OF THIS TWO -PAGE LE City of Lubbock Daniel M. Pope, Mayor Z CUSTOMER SIGNATURE PRINT NAME & TITLE DATE— OF DELIVERY he Customer hereby certifies that all the Equipment: 1) has been received, installed, and inspected, and 2) is fully operational and uncondifionally accepted. IGNATURE: X NAME AND TITLE: DATE: LESSOR ACCEPTANCE enchmark Business Solutions �• — ; LESSOR 11 S GNA U E I PRINI NAME & TITLE DATE 1607 Broadway, Lubbock, TX 79401 The partir a ree to he terms f birA attached Attest: Approved as to Form: Ryan Brooke, Assistan Cit ttorney hereto and incorporated herein by reference. Approved as to Content: Mark Yearwood, Assistant City knager 230 ADDITIONAL . CONDITiONS 2 Lease. Payments Taxes and Late Payments. You agree and represent all Equipment was selected by you based upon your own judgment and you want us to provide you the Equipment, and you agree to lease the same from us. You agree to pay us each Lease Payment and all other amounts that become due and payable under this Lease. The first Lease Payment is due the 20M of the following month after installation and each subsequent Lease Payment is due on the same date each month thereafter, whether or not we invoice you. If any payment is not paid in full by five (5) days after its due date, you will pay a late charge of the greatest of ten percent (/0%) of the amount due or $26.00, not to exceed the maximum amount permitted by law For each dishonored or returned payment instrument, you will be assessed the applicable returned item fee. which shall not exceed $35 Restrictive covenants on any payment instrument will not reduce your obligations or affect our rights You will pay when due, either directly or by reimbursing us, all taxes and fees relating to the Equipment and this Agreement. Sales or use lax due upfront will be payable over the term with a finance charge 3 Meter Readings Image Charges, and Annual Adjustments. Each month during the term of this Agreement. you are entitled to make the total number of images shown under Image Allowance (or Total Consolidated Image Allowance, if applicable) each period during the term of this Agreement If you make mare than the allowed images in any period. you will pay us an additional amount equal to the number of the excess images made during such period multiplied by the applicable Contract Usage Per Image Charge Regardless of the number of images made in any period, you will never pay less than the Base Payment Amount. You agree to provide us with the actual meter readings on any business day as designated by us. provided that we may estimate the number of images used if such meter readings are not received within five days after being requested We will adjust the estimated charge for excess images upon receipt of actual meter readings You agree that the Base Payment Amount and the Contract Usage Per Image Charges may be proportionately increased at any time if our estimated average page coverage is exceeded After the end of the first year of this Agreement and not more than once each successive twelve-month period thereafter the Base Payment Amount and the Contract Usage Per Image Charges (and, at our election. the Base Payment Amount and Contract Usage Per Image Charges under any subsequent agreements between you and us that incorporate the terms hereof) may be increased by a maximum of 10% of the then existing payment or charge Images made on equipment marked as not financed under this Agreement will be included in determining your image and overage charges 4 Eguioment and Software. Equipment may contain or have software delivered with it. You agree that as to software only that (a) you will execute a separate license agreement with a third party for such software. (b) we do not own the software and cannot transfer any interest in it to you and (c) we have no responsibility whatsoever for any such software or license agreement under this Lease You agree the Equipment (including software) is for your business use in the United States (including its possessions and territories), will not be used for personal, household or family purposes and is not being acquired far resale You will not attach the Equipment as a fixture to real estate or make any permanent alterations to it 5 Non -Cancellable Lease. THIS LEASE CANNOT BE CANCELLED OR TERMINATED YOUR OBLIGATION TO MAKE ALL PAYMENTS. AND TO PAY ALL OTHER AMOUNTS DUE OR TO BECOME DUE. IS ABSOLUTE AND UNCONDITIONAL AND NOT SUBJECT TO DELAY, REDUCTION. SET-OFF. DEFENSE COUNTERCLAIM OR RECOUPMENT FOR ANY REASON WHATSOEVER. IRRESPECTIVE OF THE PERFORMANCE OF ANY THIRD PARTY OR US 6 Lease Term. The Initial Term which is indicated above or identified in any attached Equipment Schedule, commences on the Inception Date 7 End of Lease Options. At the end of the Initial Term, or any renewal term (the 'End Date'), this Lease will renew for successive month -to -month terms, unless you a) provide at least sixty (601 but no more than one hundred twenty (120) days poor written notice to us of your intent to return the Equipment (including software) and b) you return the Equipment at your expense, to a location we specify You cannot pay off this Agreement or return the Equipment poor to the End Date wdhoul our consent If we consent. we may charge you. in addition to other amounts owed an early termination fee equal to 5% of the amount we paid for the Equipment. 8 Equipment Delivery and Maintenance. Equipment (including software) will be delivered to you at the location specified above or in an Equipment Schedule Equipment (including software) may not be moved to another location without first obtaining our written consent You shall permit us to inspect Equipment and any maintenance records relating thereto during your normal business hours You are responsible for keeping the Equipment in good working order and you have entered into a separate maintenance agreement with us to fulfill that obligation Payments under the Agreement may include amounts owed under that agreement. which amounts may be invoiced as one payment for your convenience We may charge you a Monthly Supply Freight Fee to cover our costs of shipping supplies to you 9 Equipment Return. if the Equipment (including software) is returned to us it shall be in the same condition as when delivered to you (normal wear and tear excepted) and. if not in such condition. you will be hable for all expenses we incur to return the Equipment to such condition You are solely responsible for protecting and removing any confidential datalmages stored on the Equipment prior to its return for any reason 10 Equipment Owners h to, Labeling and UCC Filim If and to the extent that this Lease is deemed a secunty agreement under the UCC. and otherwise for precautionary purpose only. you grant us a first pnonty security interest in your interest in the Equipment (including software) and all proceeds thereof in order to secure your performance of this Lease We are and shall remain the sole owner of the Equipment. You agree to keep the Equipment (including software) free tram any hens or encumbrances and to notify us it there is a change in the jurisdiction of your organization. We may label the Equipment to identify our ownership Interest in it You authorize us to file by any permissible means a UCC financing statement to show and to do all other acts to protect our interest in the Equipment You agree to pay any filing fees and administrative costs for the filing of such financing statements 11 Assignment. YOU MAY NOT ASSIGN SELL. PLEDGE, TRANSFER, SUBLET OR PART WITH POSSESSION OF THE EQUIPMENT (INCLUDING SOFTWARE), THIS LEASE OR ANY OF YOUR RIGHTS OR OBLIGATIONS UNDER THIS LEASE (COLLECTIVELY "ASSIGNMENT) WITHOUT OUR PRIOR WRITTEN CONSENT If we agree to an Assignment. you agree to pay the applicable assignment fee and reimburse us for any costs we incur in connection with that Assignment without notice to you. We may sell, assign or transfer all or any part of the Equipment, this Lease and/or any of our rights or obligations under this Lease Our assignee will have the same rights that we have (to the extent assigned), but none of our obligations and you agree not to assert against such assignee any claims defenses counterclaims. recoupments. or set -offs that you may have against us You agree and acknowledge that any Assignment by us will not materially change your obligations under this Lease 12 Li . WE ARE NOT RESPONSIBLE FOR ANY LOSSES. DAMAGES OR INJURIES OF ANY KIND OR TYPE INCLUDING, BUT NOT LIMITED TO. ANY SPECIAL. INDIRECT. INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, TO YOU OR ANY THIRD PARTY CAUSED BY THE EQUIPMENT (INCLUDING SOFTWARE) OR ITS USE, WHETHER ARISING FROM TORTIOUS CONDUCT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY You agree to reimburse us for, and to defend. indemnify and hold us harmless on an after-tax basis against, any costs. expenses damages fines settlements, claims or liability arising out of or relating to this Lease or the Equipment (including software) or its useincluding reasonable attorneys fees and disbursements 13 Equipment Warranty Information and Disclaimers. WITH RESPECT TO EQUIPMENT (INCLUDING SOFTWARE), WE DISCLAIM. AND YOU WAIVE, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED. INCLUDING. BUT NOT LIMITED TO. THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON -INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE AND WE MAKE NO REPRESENTATIONS OF ANY KIND OR TYPE INCLUDING, BUT NOT LIMITED TO, ITS SUITABILITY, FUNCTIONALITY, DURABILITY, OR CONDITION We hereby assign to you any warranty rights given to us with respect to the Equipment and. if the Equipment is returned to us, such rights are deemed reassigned by you to us 14 Default and Remedies. You will be .n default under this Lease if (11 we do not receive any payment within ten (10) days after the date It is due, or (2) you breach any other obligation in this Lease or any other agreement with us If you default. we may, in addition to other remedies, require you to promptly return the Equipment (including software) to a location we specify. at your expense. and require immediate payment, as liquidated damages for loss of bargain and not as penalty, of (a) all amounts then due. plus Interest from the due date until paid at the rate of one and one-half percent (1.5%) per month. (b) the sum of all Lease Payments remaining in the Initial Term (less the fixed maintenance component thereof as reflected on our books and records) and (c) Taxes If you rm not return the Equipment as required above, you agree to pay us the then determined fair market value thereof as of the end of the Initial Term You agree to pay all costsincluding attorneys fees and disbursements incurred by us to enforce this Lease 15 Risk of Loss and Insurance. You assume and agree to bear the entire risk of loss, theft destruction or other impairment of the Equipment (including software) upon delivery You agree to maintain commercial general liability insurance acceptable to us You shall, at your expense. (a) keep the Equipment insured against loss at damage for a minimum of Its full replacement value under a comprehensive policy of insurance or other equipment replacement coverage with an insurance tamer of your choice, which coverage and tamer is satisfactory to us. (b) name us as a loss payee under such policy. and (c) provide proof of insurance satisfactory to us within thirty (30) days after you execute this Lease If you fail to maintain property loss Insurance satisfactory to us and/or you fail to timely provide proof of such insurance, we have the option, but not the obligation, to secure property loss insurance on the Equipment from a carrier of our choosing in such forms and amounts as we deem reasonable to protect our interests If we secure insurance on the Equipment. we will not name you as an insured party your interests may not be fully protected, and you will reimburse us the premium which may be higher than the premium you would pay if you obtained insurance. and which may result in a profit to us through an investment in reinsurance If you are current in all of your obligations under the Agreement at the time of loss, any insurance proceeds received will be applied. at our option, to repair or replace the Equipment, or to pay us the remaining payments due or to become due under this Agreement. plus our booked residual. both discounted at 3% per annum No loss or damage to Equipment (Including software), or our receipt of insurance proceeds. shall relieve you of any of your obligations under this Lease 16 Finance Lease and Customer Waivers. You and we agree this Lease is a finance lease' govemed by UCC Article 2A To the extent you are permitted by law. you waive (a) all rights and remedies under Article 2A (Sections 508-522) of the UCC, and (b) any rights you now or later may have under any statute or otherwise which require us to sell, lease or otherwise use any Equipment to reduce our damages including our realization of the remaining value of the Equipment, or which may otherwise limit or modify any of our rights or remedies 17 Authorization of Signer and Credit Review. You represent that you may lawfully enter into and perform, this Lease, that the individual signing this Lease on your behalf has all the necessary authority to do so. and that all financial information you provide completely and accurately represents your financial condition By having your authorized representative sign this Lease. you agree to furnish financial information that we may request now and in the future, including your tax identification number and you authorize us to obtain credit reports on you now and in the future 18. Original Document The parties agree that the original hereof for enforcement and perfection purposes, and the sole 'record" constituting 'chattel paper' under the UCC. is the paper copy hereof bearing (i) the original or a copy of either your manual signature or an electronically applied indication of your intent to enter into this Agreement, and (ii) our anginal manual signature THIS LEASE MAY NOT BE AMENDED OR SUPPLEMENTED EXCEPT IN A WRITTEN AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF THE PARTIES AND NO PROVISIONS CAN BE WAIVED EXCEPT IN A WRITING SIGNED BY US. 19 Jurisdiction. Venue and JURY TRIAL WAIVER. This Lease shall be governed by the laws of the state in which our (of if we assign this Agreement. or our assignees) principle place of business is located You agree that any suit relating to this Lease shall be brought only in a state or federal court in such state You irrevocably consent and submit to the jurisdiction of such courts. and you waive any right to transfer of venue Each party waives any right to a jury trial 20 Miscellaneous. Your obligations under the "Liability" Section commence upon execution. and survive the expiration or earlier termination, of this Lease. This Lease constitutes the entire agreement between the Parties as to the subjects addressed herein, supersedes any poor agreements. any TIPS Vendor Agreementsany purchase orders. and any representations or statements not included herein are not part of this Lease and are not binding on the Parties If a court finds any term of this Lease unenforceable, the remaining tens will remain in effect The failure by either Party to exercise any nght or remedy will not constitute a waiver of such right or remedy 21 Citizens Tower Clause. Owner understands that Customer will be mowing some of its operations to a Citizens Tower location in 2019, and that the move could result in the Customer needing additional equipment or removing unneeded equipment. Customer and Owner agree that Customer may, at any time during the term of the Agreement and subject to our credit approval. add one or more items of Equipment as described in a Supplement to this Agreement for the additional amount set forth in the Supplement. Customer and Owner also agree that at any time during the 12-month period following its move to Citizens Tower Customer can return up to sue (6) Items of Equipment to us, and if sothe monthly base payment amount will be reduced by the amount of the monthly base payment attributable to the devices being returned (1406489.v4)018981-VFP0'AAi 1018 10/12/201p PAf=F 2 OF 2 2.10 Exhibit A A. Non -Arbitration The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. B. Nonappropriation All funds for payment by the City under this contract are subject to the availability of an annual appropriation for this purpose by the City. In the event of nonappropriation of funds by the City Council of the City of Lubbock for the goods or services provided under the contract, the City will terminate the contract, without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then -current year for the goods or services covered by this contract is spent, whichever event occurs first. If at any time funds are not appropriated for the continuance of this contract, cancellation shall be accepted by the Seller on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this contract beyond the date of termination. C. SB252 SB 252 prohibits the City from entering into a contract with a vendor that is identified by The Comptroller as a company known to have contracts with or provide supplies or service with Iran, Sudan or a foreign terrorist organization. The Contractor warrants that it complies with Chapter 2270, Subtitle F, Title 10 of the Texas Government Code by verifying that: (1) The Contractor does not boycott Israel; and (2) The Contractor will not boycott Israel during the term of the Agreement. Benchmark Business Solutions, Inc. r a n t s r� a rt BenchmarkYourOffice.com Phone: (800) 378-9179 by Benchmark Fax: (800) 640-5514 PrintSmart Maintenance Agreement CUSTOMER (hereinafter referred to as "You" or "Your") Initial Contract Number: TIPS Contract #180103 FULL LEGAL NAME City of Lubbock STREET ADDRESS City State and Zip County 1625 13th Street Lubbock, TX 79401 Lubbock METER READ CONTACT EMAIL ADDRESS PHONE NUMBER BILLING ADDRESS tlf different from above) City State and Zip County Supplier (hereinafter referred to as "We" or "Us") Name Billing Address City, State and 2Ip Phone Benchmark Business Solutions, Inc. 1607 Broadway Lubbock, TX 79401 800-378-9179 LOCAL ACCOUNT CONTACT Address Gry, State and Zip Phone Sandra Henley 1607 Broadway Lubbock, TX 79401 806-744-8744 Program Summary: (Additional Device Coverage Details based on selections listed on the Equipment Coverage & Site List) Covered Device Count': 83 Individual Rate Devices": 1 Combined Page Allowance Totals: Base Rate Charges: $0.00 Blended Rate Devices: 0 Mono: Bolt -On Option Charges: $0.00 Blended Mono Overage Rate: See Attached Color: - Total Monthly Base Charges: $0.00 Blended Color Overage Rate: See Attached Annual Bolt -On Option Charges: $ -Individual Rates & Term Lengths are listed on the Ecuioment Coverage & Site List Addendum Eauioment Site List Summary: PrintSmart Plan Selected: Contract Term Selected: Billing Option Selected: 1 Full -Service PrintSmart Plan X Lease Term X Monthly 0 PrintSmart Essentials 3-Year Term Quarterly (only monitored devices) 0 PrintSmart Support 1-Year Term Annual (only non -metered plans) 0 Hot Swap Bolt On Month -to -Month Contract Monthly & Annual (Multiple Plans Only) 1 Help Desk Bolt 01 Multiple Terms"' Annual and Quarterly Billing not available for all printSMART Maintenance Plans. Current device count is based on initial equipment review and may vary as customers add, dispose, or move devices under coverage during the tern. "Individual Rates & Term Lengths are listed on the Equipment Coverage & Site List Addendum •" If quantity of Help Desk Bolt On devices is less than total full -service PrintSmart Plan devices, customer acknowledges they are declined analyst(help desk support beyond the initial 90 days following new equipment installation ""Installation of meter collection software is required for all print devices as specified in the full terms and conditions. Failure to provide access to monitoring software, causing meter estimations for more than 2 consecutive months, will result in a $10 monthly collection fee until the software is active. THIS AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS PRINTED ON THIS PAGE, THE REVERSE SIDE, ATTACHED EQUIPMENT LIST ANY APPLICABLE ADDENDUMS, ALL OF WHICH PERTAIN TO THIS AGREEMENT AND WHICH YOU ACKNOWLEDGE HAVING READ. THIS AGREEMENT IS NOT BINDING UNTIL ACCEPTED BY US. YOU CERTIFY ALL ACTIONS REQUIRED TO AUTHORIZE EXECUTION OF THIS AGREEMENT INCLUDING YOUR AUTHORITY HAVE BEEN FULFILLED. SUPPL R., �As ktatied A ve) CUSTOMER: (A Stated Abov By Date Accepted By: X yDate Si atu Signature _ Daniel M. Pope, Mayor Print Name 8 Title Version PS 1.10; Page 1 of 7; 07-2016 PrintSmart Maintenance Terms & Conditions GENERAL TERMS 1. Definitions. The words "you" and "your" mean the legal entity identified in "Customer Information" fields above, and "we," "us" and "our" mean Benchmark Business Solutions, Inc. "Device(s)" means the items identified in "Equipment" above and in any attached Equipment Schedules, or future Addendums. "Base" rates refer to static monthly charges for service. "Allowance" means the number of copies included in the Base charge. "Overage Charges" means the applicable prints or copies made in excess of any stated allowance. "Live Date" means the date that maintenance and supply services are available for covered devices. "Safety Stock" refers to excess supply items provided to you for unusual printing usage or emergency shipping needs. "Working Order" means a device has no less than 10% supply levels for all toner and ink consumables, meets normal operating conditions based on device model, and does not require repair. 2. Payments and late Payments. You agree to pay us the full amount due for all Base charges, Overage charges, and billable service or supply charges by the due date listed on the invoice. If any amount payable to us is not paid when due, you will be subject to interruption of covered services and a late charge up to three (3) percent of the overdue balance. Billing disputes must be submitted to us no later than the due date listed on the invoice to avoid late charges or service interruption. ACH or Credit Card draft payment method may be required for certain coverage plans or contract terms. 3. Transfer and Renewal. This agreement is non -transferable, and will automatically renew as a month -to -month agreement 30 days before the renewal date at rates in effect at the time of renewal, not to exceed a ten percent (10%) increase from prior year, unless notified in writing of cancellation or price modification. We may annually increase both Base rate and Overage rates by amounts determined at our discretion, but not to exceed ten percent (10%) of the then current payment and/or rate in each year. 4. Term. The term of this agreement will be based on the length selected above or based on the length of active lease agreements, whichever is longer. Minimum term requirements may vary based on equipment lease agreements and selected coverage plans. Commencement date and coverage will begin on the date of new equipment installation or ten (business days) from the date of confirmed monitored status, whichever is later. S. Set up and Early Termination Fees. Set up fees vary based on contract term selection: Month -to -Month contracts are subject to a setup fee based on total initial fleet size - $SO per device for 1-5 devices, $30 per device for 6-20 devices, and $15 per device for 21 or more devices. 1-year, 3-year, and Lease -associated agreements are not subject to a setup fee. Early termination fees vary based on contract term selection: Month -to -Month contracts can be cancelled with 30-days written notice to the contact information listed below and will not be charged an early termination fee. 1-year contracts are subject to a $30 per device fee if cancelled prior to the end of the term; 3-year agreements are subject to a tiered early termination fee based on when the agreement is cancelled - if cancelled in the first year of the agreement, there will be a $30 per -device fee applied; If cancelled in the second year of the agreement, a $20 per -device fee will be applied; If cancelled in the third year of the agreement, a $10 per -device fee will be applied. 6. Covered Equipment. Services selected above will be provided to those devices listed under Equipment, on attached Equipment Lists or added at future dates. You can request coverage on non -covered devices at current billable rates or based on the terms listed in the "Added Devices" section below. 7. Corrective Action. If services provided do not comply with service levels set forth in this agreement, you will notify us in writing detailing your concerns. Within ten (10) days following receipt of said notice, we shall meet, clarify your concerns and develop a corrective action plan to remedy such alleged non-compliance. As your exclusive remedy for non-compliance, we will, within sixty (60) days of finalizing the plan or a time period as otherwise agreed in writing by the parties, then modify such services so they are compliant. If we are unable to satisfy the corrective action plan within the agreed to timeframe, customer has the right to terminate the contract without liability. Termination must be made in writing within 15 days of the end of the previously agreed to remedy period. The parties agree that all claims by Company that the service or goods of we as provider under this agreement are defective or otherwise nonconforming must be brought to the attention of us within (10) days of the discovery of the defect or nonconformance. Failure to timely notify us under the terms of this Paragraph will result in a final waiver of any such claim. a. Cancellation Notice. We maintain responsibility covered under customer selected services for the full term of this agreement until either party provides written notice of cancellation with 60-days' notice. Month -to -Month contracts can be cancelled with 30-days written notice. When cancelled, we shall be relieved of all obligations under this agreement. Ali notices must be mailed to the attention of Contract Cancellation, Benchmark, 1607 Broadway, Lubbock, TX 79401, faxed to 806-744-4707, or electronically to helpCabenchmarkvouroffice.com. If your agreement term is based on an active equipment lease agreement, all lease terms and conditions must be met before cancellation requests are accepted. If we elect to cancel this agreement, written notice will be sent to the contact and address listed above. 9. Liability. The parties agree that we will not be liable for any consequential damages of any nature caused to the business or property of Owner of Equipment ("Company") by any failure, defect, or malfunction of equipment to be maintained by us. 10. WARRANTY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, WE WARRANT (A) THAT ALL PERSONNEL PERFORMING SERVICES HEREUNDER BY OR ON BEHALF OF US WILL HAVE APPROPRIATE TRAINING AND EXPERIENCE AND (B) ALL EQUIPMENT IS IN ACCORDANCE WITH INDUSTRY STANDARDS, AND ALL SUPPLIES AND MATERIALS ARE OF GOOD QUALITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING (AND WITHOUT LIMITING ANY OBLIGATION OF US TO MAKE REPAIRS UNDER THIS AGREEMENT), YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT IN NO EVENT SHALL ANY MANUFACTURER'S WARRANTY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, BE DEEMED GIVEN BY OR OTHERWISE TRANSFERRED OR APPLIEDTO US. 11. EQUIPMENT WARRANTY DISCLAIMER. WE HAVE MADE NO AFFIRMATION OF FACT OR PROMISE RELATING TO THE GOODS AND SERVICES BEING PROVIDED THAT HAS BECOME ANY BASIS OF THIS BARGAIN, FUTHER, WE HAVE MADE NO AFFIRMATION OF FACT OR PROMISE RELATING TO THE GOODS OR SERVICES BEING PROVIDED THAT HAS CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE GOODS WOULD CONFORM TO ANY SUCH AFFIRMATION OR PROMISE. WE DISCLAIM ANY WARRANTY OF MERCHANTABILITY WITH RESPECT TO THE GOODS OR SERVICES PROVIDED BY THIS AGREEMENT. WE DISCLAIM ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSES WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES BEING PROVIDED UNDER THIS AGREEMENT. COMPANY AGREES THAT WE SHALL NOT BE LIABLE FOR DAMAGES RESULTING FROM AN ALLEGED BREACH OF THIS AGREEMENT BEYOND THE COST OF ONE YEARS SERVICE AND MAINTENANCE UNDER THIS AGREEMENT. 12. GOVERNING LAW, CONSENT TO JURISDICTION AND VENUE OF LITIGATION. THIS AGREEMENT AND EACH SCHEDULE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. YOU AGREE THAT ANY DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT WILL BE ADJUDICATED IN THE FEDERAL OR STATE COURT LOCATED IN LUBBOCK COUNTY TEXAS. YOU HEREBY CONSENT TO PERSONAL JURISDICTION AND VENUE IN THAT COURT AND WAIVE ANY RIGHT TO TRANSFER VENUE. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY. BREAK/FIX SERVICE TERMS. 1. We agree to maintain all equipment listed, in a normal operating condition. All costs for Labor, Parts, Travel and Service will be borne by us, subject to the terms of this agreement and based on specific plan options selected. Non -covered charges for labor, parts, or travel will be billed at the then current rates. 2. All necessary parts will be replaced, at no additional cost, provided the cost of those parts does not exceed the total value of the equipment. If the cost of necessary parts exceeds the total value of the equipment, we will notify you with suggested replacement options. Replacement cost is your responsibility. If the replacement is purchased from us, a trade-in credit may be offered toward the cost of a new device. 3. We will not be responsible for maintenance in the event of: Damage caused by Accident, Misuse, Act of God, Line Voltage Problems, Neglect or Failure To Follow Factory Operating Instructions, or if maintenance or repairs are performed by anyone other than our personnel. It also ceases if competitive supplies are used, or if the damage occurs as a result of your abuse or improper handling of the device or supplies. 4. All equipment will be serviced upon your request, during our normal business hours (8 a.m. to 5 p.m. local time, except weekends arld holidays). Request for service outside our normal business hours will be provided on a best effort basis and, if available, will be billed at overtime rates plus travel. S. We, at our discretion, may authorize our approved maintenance subcontractors or approved service providers to perform maintenance and repairs to the Devices. Devices located outside our local service areas will require subcontractor coverage for any onsite service needed.. ANALYST CONSULTING & HELP DESK TERMS 1. Analyst consulting and Help Desk services are considered separate and apart from Break/Fix technical services. Standard hourly billing plus travel rates are separate, and inclusion of these services must be expressly requested. 2. If Analyst Consulting services are included in the purchase of a printing device from us, our trained and certified employees will work with your IT personnel (if applicable) to setup all covered equipment and software, according to machine configuration, following equipment delivery for the first ninety (90) days following installation. Following the completion of those 90 days or in the case that Analyst services were not included in the Purchase Agreement, you will be responsible to complete the work yourselves or agree to pay us to provide the work at standard billable rates. 3. If IT personnel are not available, we will perform services accordingto the following guidelines: a. Setup print drivers on server for shared printing or on PCs for direct printing. Up to 10 PCs in the first 90 days following initial install. b. Install network scanning services on server if applicable. c. Install Scan -To -PC software on PCs if applicable. Up to 10 PCs in the first 90 days following install. d. Setup Scan -To -Email if applicable. e. Setup Fax & LAN Fax if applicable. f. Setup Equipment Accounting if applicable. g. Setup Meter Monitoring Software onto server or local Windows -based PC Version PS 1.10; Poge 2 of 7; 07-1016 PrintSmart Maintenance Agreement Terms & Conditions (continued) TONER AND SUPPLY TERMS 1. All cost or toner and ink consumables, and standard shipping will be borne by us for all devices covered by this agreement and actively reporting through the Monitoring Software. We agree to supply you with all toner and ink consumables required to operate the Devices. We agree to provide auto supply replenishment for those devices using Monitoring Software. You must purchase staples and paper separately. 2. All toner and ink consumables provided as a part of this agreement in the standard course of business or as Safety Stock shall at all times remain our property. You may use the toner and ink consumables pursuant to the terms of this Agreement, but you shall not have any ownership rights in or to the toner or ink consumables. You shall promptly return to us all unused items supplied by us under this agreement. You shall not be charged for any toner or ink consumables in use upon the expiration or termination of this Agreement. Any items not returned shall be billed by us to you at the then current cartridge retail purchase price. 3. Auto supply replenishment is provided using standard shipping and is scheduled based on individual device performance, coverage, and usage, and may vary. Waste Toner Containers are not available for auto shipment. Other certain items may not be eligible for auto shipment based on device model and supply item type. Covered items not eligible for auto shipment will be provided at no additional cost, but must be requested by you as needed to allow for standard shipping time. Additional requests for toner and ink consumables will be subject to approval based on current usage and shipment history. Any customer request for additional items will be considered Safety Stock unless otherwise approved. Flat rate overnight shipping amounts can be quoted at the time of order. 4. MICR toner consumables are considered non-standard items and must be priced as a separate cost -per -image rate at the time of adding the device to coverage or purchased by the cartridge as needed. MICR toner consumables are sent upon request only, and not proactively sent to you to avoid unnecessary charges. 5. Cost -per -image and cartridge pricing is based on an industry -standard 5% page coverage model. Toner and ink consumables ordered or requested based on excessive page coverage may be subject to a mid-term cost -per -image escalation or billing for additional cartridges. 6. Any defective toner or ink consumable items provided to you by us must be reported and returned to us within 30 days of receiving a replacement item. If defective item is not returned, the replacement item may be billed at then current retail price. Standard shipping for defective items and replacements will be covered by us. 7. Safety Stock.. Benchmark will maintain an emergency safety stock at our warehouse located at 14th and Avenue F for the duration of the contract. 8. Miscellaneous. Staples included. METER READING REQUIREMENTS Monthly meter readings are required for each covered device, unless otherwise indicated based on coverage plan selection. 1. Meter collection. Those devices reporting through Monitoring Software will be collected by us. Devices not reporting for any reason will require your submission until monitoring is restored. 2. Notification. Notification requests of meters due will be sent to the Meter Contact listed on the Equipment Coverage & Site List electronically on or about the 151h day of each month. You agree to provide the requested meters or resolve monitoring software issues by the 251h day of the month or be subject to estimated billing terms. Additional written notification will be sent if meters are estimated for two (2) consecutive billing cycles. 3. Estimated Meters. Estimated meters are based on historical volume usage. If historical volume usage is unavailable, a minimum estimation of 50 mono impressions will be applied. If estimated meters are issued for three (3) consecutive billing cycles, you may become subject to invoicing monthly data collection fees and prevailing hourly billable rate for labor and travel to collect accurate meter readings. 4. Meter Adjustments. Any billing issued based on estimated meters are not eligible for billing adjustments, but will not be responsible for additional overage charges until current meters exceed billed meters. Additional estimations will cease until such time that the current meters exceed previously billed estimates, as long as accurate meters are being submitted monthly. MONITORING SOFTWARE. If Monitoring Software is involved, You grant Permission to Install and Maintain. Monitoring so are installation and maintenance is provided by us and is required for all devices covered under a full -service PrintSmart plan, unless service plan is selected as a lease requirement. Monitoring software tools will be used to report monthly volumes and provide the basis for monthly image charges. Monitoring Software enables us to monitor the usage of, and the copy count produced on accessible printing equipment. 1. Customer Refusal or Non -Response. Customers refusing these Monitoring Software terms or not -responding to our requests for installations or updates may disqualify printing devices from certain coverage, delay existing services, or become subject to invoicing monthly data collection fees and prevailing hourly billable rate for labor to collect meter readings. 2. Access to Install and Maintain. You agree that we shall have the right, at any time during the term of this Agreement, to install the Monitoring Software on one or more of your computer networked station(s) and/or Network Servers or provide your IT Personnel to complete installation and future maintenance updates. You agree to provide us, during normal business hours, access to your computer -networked station(s) to enable us to upgrade, modify or maintain the Monitoring Software or to install new releases or additions to the Monitoring Software. Under no circumstances will the Monitoring Software provide us access to your information other than information directly related to this Agreement. You agree to not delete or remove the Monitoring Software or to alter, modify or otherwise render it unusable during the term of this Agreement without the prior written consent of us. 3. No License, other Prohibitions. We may use Third Party or Xerox Client Tools, and/or certain other proprietary software, to perform its obligations under this Agreement. Third Parry Software, Xerox Client Tools and Xerox Tools (collectively, "Tools") are considered trade secrets. Tools and any related documentation are licensed under a separate clickwrap or shrinkwrap license agreement that Customer must accept at the time of installation. The Tools will be installed and operated only by us, and Customer has no rights to use, access or operate the Tools. Customer will not decomplle or reverse engineer the Tools. The Tools will be removed by us at the expiration or termination of this Agreement. 4. Intellectual Property Rights. All rights (including all intellectual property rights, whether recognized currently or in the future) in and to the Monitoring Software (including any source code, executable code, object code, tools and/or libraries related to the Monitoring Software) will at all times be owned by Us. No modifications and/or use by You of the Monitoring Software shall under any circumstances transfer any right, title or interest in or to the Monitoring Software to You or any third party. S. Warranty disclaimer. You acknowledge that BENCHMARK/XEROX DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, XEROX TOOLS OR XEROX SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR -FREE OR THAT THE SOFTWARE, XEROX TOOLS OR XEROX SERVICES SHALL FUNCTION PROPERLY IN ANY COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. BENCHMARK/XEROX IS NOT RESPONSIBLE FOR LOST, INTERRUPTED OR UNAVAILABLE WEBSITE NETWORK SERVER OR OTHER CONNECTIONS, MISCOMMUNICATIONS, DELAYS, FAILED TELEPHONE OR COMPUTER OR TELEPHONE TRANSMISSIONS OR TECHNICAL FAILURE, JUMBLED, SCRAMBLED OR MISDIRECTED TRANSMISSIONS, SOFTWARE MALFUNCTIONS, OR OTHER ERROR OF ANY KIND WHETHER HUMAN, MECHANICAL OR ELECTRONIC, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SOFTWARE, XEROX TOOLS AND XEROX SERVICES ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS SCHEDULE AND THE OBLIGATIONS AND LIABILITIES OF XEROX, ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS SCHEDULE. XEROX DISCLAIMS ALL OTHER WARRANTIES, EXPRESSOR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW. EQUIPMENT All equipment addition, removal, and change requests or notification must be provided to us in writing on our PrintSmart Addendum Form to your assigned local account representative or to our contract support team via email at help(a�benchmarkvouroffice.com. 1. Citizens Tower- Benchmark will provide a one time equipment move for equipment under contract being relocated to Citizens Tower at no additional charge. Version P51.10; Page 3 of 7; 07-2016 No Text nt�lr �.krl Mr��H.anM, i.�.�C'.Y n.m= ..a w�.i Lw !lw (dor Nl��o CWo. Yw��u i�•tS Yl.n � .._•� � xOt Swin u • ua,�• �mwrKe ..'I�nl i:�� eeu d. aoe m� �...., ni•i �1•sl, 1- Xerox B8055 System Mun Ctr - Front 915 Ave J; ❑ Administration - Front 0 0 .0059 1 - Xerox C8055 System Traffic Engineering 915 Avenue J ❑ 0 0 .0059 .0483 1- Xerox C8055 System Police Administration 916 Texas ❑ 0 0 .0059 .0483 1 - Xerox B8055 System Police - Records 916 Texas ❑ 0 0 .0059 1- Xerox C8055 System Police - Comm Ctr - Basement 916 ❑ Texas 0 0 .0059 .0483 1 - Xerox C8055 System Police - Patrol 916 Texas ❑ 0 0 .0059 .0483 1 - Xerox B8055 System Police - Admin 2nd Floor 916 Texas ❑ -Sergeant'sOffice 0 0 .0059 1- Xerox C8055 System Police- Juvenile 916 Texas Ave, ElRoom 207 0 0 .0059 .0483 1- Xerox C8055 System Police - Persons Crimes 916 Texas ❑ Ave; 2nd Floor 0 0 .0059 .0483 1- Xerox C8055 System Lubbock Metro Planning 916 Main ❑ Street Suite 531 0 0 .0059 .0483 1- Xerox C8055 System Police Property Crimes 1916 El1 Texas; 2nd Floor, Suite 209 0 1 0 .0059 .0483 1- Xerox C8055 System Landfill (Abernathy) Abernathy; El17304 NFM 2528 0 0 .0059 .0483 1- Xerox B8055 System Animal Services - Adoption Ctr El3323 SE Loop 289 0 0 .0059 1- Xerox B8055 System Silent Wings Museum 6202 North El127 0 0 .0059 TOTAL CONSOLIDATED MONTHLY IMAGE ALLOWANCE AND EXCESS PER IMAGE CHARGES IF CONSOLIDATED 0 0 1 $0.0059 $0.0483 VERIFICATION The undersigned acknowledges having received a copy of this Schedule. A of this document containing your original or facsimile signature, or other indication of your intent to agree to the terms set forth herein shall be enforg6abl4tor all rposes. X Daniel M. Pope, Mayor Z Lubbock, City of _ __ _ _ VP0305A o716 PACC- 3 OF 3 230 GOVERNMENTAL ENTITIES ADDENDUM This is an addendum ("Addendum") to and part of that certain agreement between Benchmark Business Solutions ("we", "us", "our") and Lubbock, City of ("Governmental Entity", "you", "your"), which agreement is identified in our records as agreement number 1406485 ("Agreement'). All capitalized terms used in this Addendum which are not defined herein shall have the meanings given to such terms in the Agreement. APPLICABLE TO GOVERNMENTAL ENTITIES ONLY You hereby represent and warrant to us that as of the date of the Agreement: (a) the individual who executed the Agreement had full power and authority to execute the Agreement on your behalf; (b) all required procedures necessary to make the Agreement a legal and binding obligation against you have been followed; (c) the Equipment will be operated and controlled by you and will be used for essential government purposes for the entire term of the Agreement; (d) that all payments due and payable for the current fiscal year are within the current budget and are within an available, unexhausted, and unencumbered appropriation; (e) you intend to pay all amounts payable under the terms of the Agreement when due, if funds are legally available to do so; (f) your obligations to remit amounts under the Agreement constitute a current expense and not a debt under applicable state law; (g) no provision of the Agreement constitutes a pledge of your tax or general revenues; and (h) you will comply with any applicable information reporting requirements of the tax code, which may include 8038-G or 8038-GC Information Returns. If funds are not appropriated to pay amounts due under the Agreement for any future fiscal period, you shall have the right to return the Equipment and terminate the Agreement on the last day of the fiscal period for which funds were available, without penalty or additional expense to you (other than the expense of returning the Equipment to the location designated by us), provided that at least thirty (30) days prior to the start of the fiscal period for which funds were not appropriated, your Chief Executive Officer (or Legal Counsel) delivers to us a certificate (or opinion) certifying that (a) you are a state or a fully constituted political subdivision or agency of the state in which you are located; (b) funds have not been appropriated for the applicable fiscal period to pay amounts due under the Agreement; (c) such non -appropriation did not result from any act or failure to act by you; and (d) you have exhausted all funds legally available for the payment of amounts due under the Agreement. You agree that this paragraph shall only apply if, and to the extent that, state law precludes you from entering into the Agreement if the Agreement constitutes a multi -year unconditional payment obligation. If and to the extent that the items financed under the Agreement is/are software, the above -referenced certificate shall also include certification that the software is no longer being used by you as of the termination date. The undersigned, as a representative of the Governmental Entity, agrees that this Addendum is made a part of the Agreement. I, THE UNDERSIGNED, HEREBY CERTIFY THAT, AS OF THE DATE OF THE AGREEMENT, (A) THE INDIVIDUAL WHO EXECUTED THE AGREEMENT HAD FULL POWER AND AUTHORITY TO EXECUTE THE AGREEMENT AND (B) THE REPRESENTATIONS SET FORTH ABOVE IN THE PARAGRAPH TITLED "APPLICABLE TO GOVERNMENTAL ENTITIESIONLY" ARE TWINANDA@CGRATE IN ALL MATERIAL RESPECTS. , / i SIGNATURE: I X Benchmark Business Solutions VP07NAMC_0818 NAME & TITLE: Daniel M. TURE DATE: L fi PRIN NAME 8 TITLE DATE CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3.5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 2018-424605 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Benchmark Business Solutions Lubbock, TX United States Date Filed: 11/12/2018 2 Name of governmental entity or state agency that Is a party to the contract for which the form is being filed. City of Lubbock Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 14220 Copier Multi -Function Solution Contract 4 Name of Interested Party City. , State, Country (place of business) Nature of interest (check applicable) Controlling 7 Intermediary 5 Check only if there is NO Interested Party. ❑ X 6 UNSWORN DECLARATION -: My address is isJ Q.L bi L (street) (City) (state) (zip code) (country) I declare under penalty of per) ry th t t e fore oing is true and correct. Exec _County, Stale of —' on the day of V V 201 �, R Notoly PublIC StolTOX08 (month) (year) °"°" RENEE PAYN4OW nny Commlli0on October 21, 9 •III M\N� f Silruturif of authorized agent of contracting business entity (Dedarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.6711