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HomeMy WebLinkAboutRes2019-007 Sponsored by: Bridges CITY OF SEWARD,ALASKA RESOLUTION 2019-007 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A 48-MONTH FAIR MARKET VALUE LEASE AGREEMENT WITH OFFICETECH/XEROX FOR TEN COPIERS FOR A BASE AMOUNT OF $1,072 PER MONTH WHEREAS, the City has nine copy machines that have reached the end of their lease agreements; and WHEREAS, the City has identified that the need for the machine in the City Hall basement no longer exists; and WHEREAS, the City Clerk's Office and the Parks and Recreation Department wish to realize savings by acquiring a leased copier/printer and discontinuing the use of stand-alone machines; and WHEREAS, the City of Seward issued a Request for Proposals and received five proposals for lease, maintenance and supplies, with various levels service and response times; and WHEREAS, proposals were evaluated on the basis of service and maintenance response times, cost and references; and WHEREAS, the proposal by OfficeTECH/Xerox received the highest score, offering 6- hour response time, excellent local references, and a base cost of$1,072 and $0.0071 per black and white print/copy and $0.0505 per color print/copy; and WHEREAS,total annual savings based on previous contract and usage is $3,750. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is hereby authorized to enter into a 48-month lease agreement with OfficeTECH/Xerox for ten copier/printers in accordance with the proposal submitted by OfficeTECH/Xerox in response to the City's Request for Proposals for Copier/Printer services, in substantial form as attached hereto and incorporated herein. The contract is let in a base amount not to exceed $1,072 per month for ten copier/printers. Section 2. There are sufficient monies within the current operating budget to pay for the new copier/printer contract and no new appropriation is needed. CITY OF SEWARD, ALASKA RESOLUTION 2019-007 Section 3. This resolution shall take effect immediately upon adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 28th day of January, 2019. THE CITY OF SEWARD, ALASKA David Squires, Ma r AYES: McClure, Towsley, Horn, Seese, Osenga, Lane, Squires NOES: None ABSENT: None ABSTAIN: None ATTEST: /‘ / f/./ , J renda J. Ba lo,r 74°C City Clerk (City Seal) ••`"" •*• eC' ___777�•, o a • -•"-- • I SEAL = * _ . s . .tigTF OF Arps 88 ATTORNEY REVIEW: Yes __ X __ No __ _ RECOMMENDATION: Approve Resolution 2019-007 authorizing the city to enter into a 48- month lease agreement with Office TECH to replace nine copier/printers with ten copier/printers, including consumable supplies, maintenance, and support. 89 Page 1 of 2 CITY OF SEWARD XFS-FMV 04.05.18 Lease Agreement Xerox Financial Services LLC 201 Merritt 7 Norwalk, CT 06851 1. Definitions. The words “you” and “your” mean the legal entity identified in “Customer Information” above, and “XFS,” “we,” “us”, “Owner” and “our” mean Xerox Financial Services LLC. “Party” means you or XFS, and “Parties” means both you and XFS. “Supplier” means the entity identified as “Supplier” above. “Acceptance Date” means the date you irrevocably determine Equipment has been delivered, installed and operating satisfactorily. “Agreement” means this Lease Agreement, including any attached Equipment schedule. “Commencement Date” will be a date after the Acceptance Date, as set forth in our first invoice, for the purpose of facilitating an orderly transition and to provide a uniform billing cycle. “Discount Rate” means 3% per annum. “Equipment” means the items identified in “Equipment” above and in any attached Equipment schedule, plus any Software (as defined in Section 3 hereof), attachments, accessories, replacements, replacement parts, substitutions, additions and repairs thereto. “Interim Period” means the period, if any, between the Acceptance Date and the Commencement Date. “Interim Payment” means one thirtieth of the Lease Payment multiplied by the number of days in the Interim Period. “Payment” means the Lease Payment specified above, Taxes and other charges you, Supplier and XFS agree will be invoiced by XFS. “Maintenance Agreement” means a separate agreement between you and Supplier for maintenance and support purposes. “Origination Fee” means a one-time fee of $125 billed on your first invoice, which you agree to pay, covering origination, documentation, processing and other initial costs. “Term” means the Interim Period, if any, together with the Initial Term plus any subsequent renewal or extension terms. “UCC” means the Uniform Commercial Code of the State(s) where XFS must file UCC-1 financing statements to perfect its security interest in the Equipment. 2. Agreement, Payments and Late Payments. You agree and represent that the Equipment was selected, configured and negotiated by you based on your judgment and supplied by Supplier. At your request, XFS will acquire same from Supplier to lease to you hereunder and you agree to lease same from XFS. The Initial Term commences on the Commencement Date. You agree to pay XFS the first Payment plus any applicable Interim Payment no later than 30 days after the Commencement Date; each subsequent Payment shall be payable on the same date of each month thereafter. You agree to pay us all sums due under each invoice via check, Automated Clearing House debit, Electronic Funds Transfer or direct debit from your bank account by the due date. If any Payment is not paid in full within 5 days after its due date, you will pay a late charge of the greater of 10% of the amount due or $25, not to exceed the maximum amount permitted by law. For each dishonored or returned Payment, you will be assessed the applicable fee, not to exceed $35. Restrictive covenants on any method of payment will be ineffective. 3. Equipment and Software. To the extent that Equipment includes intangible property or associated services such as software licenses, such intangible property shall be referred to as “Software.” You acknowledge and agree that XFS is not the licensor of such Software, and therefore has no right, title or interest in it, and you will comply throughout the Term with any license and/or other agreement (‘Software License”) with the supplier of the Software (“Software Supplier”). You are responsible for determining with the Supplier whether any Software Licenses are required, and entering into them with Software Supplier(s) no later than 30 days after the Acceptance Date. YOU AGREE THE EQUIPMENT IS FOR YOUR LAWFUL BUSINESS USE IN THE UNITED STATES, WILL NOT BE USED FOR PERSONAL, HOUSEHOLD OR FAMILY PURPOSES, AND IS NOT BEING ACQUIRED FOR RESALE. You will not attach the Equipment as a fixture to real estate or make any permanent alterations to it. 4. Non-Cancellable Agreement. THIS AGREEMENT CANNOT BE CANCELLED OR TERMINATED BY YOU PRIOR TO THE END OF THE INITIAL TERM. YOUR OBLIGATION TO MAKE ALL PAYMENTS 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 THE EQUIPMENT, SUPPLIER, ANY THIRD PARTY OR XFS. Any pursued claim by you against XFS for alleged breach of our obligations hereunder shall be asserted solely in a separate action; provided, however, that your obligations hereunder shall continue unabated. 5. End of Agreement Options. If a $1 Purchase Option is designated, you will be deemed to have exercised your option to purchase the Equipment as of the Acceptance Date. If an FMV purchase option is designated, if you are not in default and if you provide no greater than 150 days and no less than 60 days’ prior written notice to XFS, you may, at the end of the Initial Term or any renewal term (“End Date”), either (a) purchase all, but not less than all, of the Equipment by paying its fair market value, as determined by XFS in its sole but reasonable discretion (“Determined FMV”), plus Taxes, or (b) return the Equipment within 30 days of the End Date, at your expense, fully insured, to a continental US location XFS shall specify. You cannot return Equipment more than 30 days prior to the End Date without our consent. If we consent, we may charge you, in addition to all undiscounted amounts due hereunder, an early termination fee. If you have not elected one of the above options, this Agreement shall renew for successive 3-month terms. Either party may terminate the Agreement as of the end of any 3-month renewal term on 30 days’ prior written notice and by taking one of the actions identified in (a) or (b) in the preceding sentence of this section. Any FMV purchase option shall be exercised with respect to each item of Equipment on the day immediately following the date of expiration of the Term of such item, and by the delivery at such time by you to XFS of payment, in form acceptable to XFS, of the amount of the applicable purchase price. Upon payment of the applicable amount, XFS shall transfer our interest in the Equipment to you on an “AS IS, WHERE IS,” “WITH ALL FAULTS” basis, without representation or warranty of any kind. 6. Equipment Delivery and Maintenance. You should arrange with Supplier to have the Equipment delivered to you at the location(s) specified herein, and you agree to execute a Delivery & Acceptance Certificate at XFS’s request (and confirm same via telephone and/or electronically) confirming when you have received, inspected and irrevocably accepted the Equipment, and authorize XFS to fund the Supplier for the Equipment. If you fail to accept the Equipment, you shall no longer have any obligations hereunder; however, you remain liable for any Equipment purchase order or other contract issued on your behalf directly with Supplier. Equipment may not be moved to another physical address without XFS’s prior written consent, which shall not be unreasonably withheld or delayed. You agree that you will not take the Equipment out of service during the Term. You shall permit XFS or its agent to inspect Equipment and any maintenance records relating thereto during your normal business hours upon reasonable notice. You represent you have entered into a Maintenance Agreement to maintain the Equipment in good working order in accordance with the manufacturer’s maintenance guidelines and to provide you with Equipment supplies. You acknowledge that XFS is acting solely as an administrator for Supplier with respect to the billing and collecting of the charges under any Maintenance Agreement. XFS IS NOT LIABLE FOR ANY BREACH BY SUPPLIER OF ANY OF ITS OBLIGATIONS TO YOU, NOR WILL ANY OF YOUR OBLIGATIONS HEREUNDER BE MODIFIED, RELEASED OR EXCUSED BY ANY ALLEGED BREACH BY SUPPLIER. 7. Equipment Ownership, Labeling and UCC Filing. If and to the extent a court deems this Agreement to be a security agreement under the UCC, and otherwise for precautionary purposes only, you grant XFS a first priority security interest in your interest in the Equipment as defined above in order to secure your performance hereunder. Unless a $1 Purchase Option is applicable, XFS is and shall remain the sole owner of the Equipment, except the Software. You authorize XFS to file 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. You agree to keep the Equipment free from any liens or encumbrances and to promptly notify XFS if there is any change in your organization such that a refiling or amendment to XFS’s financing statement against you becomes necessary. Supplier Name & Address: Owner: XEROX FINANCIAL SERVICES LLC - 201 Merritt 7, Norwalk, CT 06851 Agreement Number: 0060640 CUSTOMER INFORMATION Full Legal Name: CITY OF SEWARD Phone: Billing Address: Contact Name: City: State: Zip Code: Contact Email: EQUIPMENT Quantity Model and Description Quantity Model and Description Equipment Location (if different from Billing Address): TERM LEASE PAYMENT - (Monthly frequency unless otherwise noted) PURCHASE OPTION - (‘FMV’ unless otherwise noted) Initial Term: (in months) Lease Payment (plus applicable taxes): $ ☐ Fair Market Value Purchase Option (“FMV”) Frequency: ☐ Monthly ☐ Quarterly ☐ Annually ☐ $1 Purchase Option CUSTOMER ACCEPTANCE BY YOUR SIGNATURE BELOW, YOU ACKNOWLEDGE THAT YOU ARE ENTERING INTO A NON-CANCELLABLE AGREEMENT AND THAT YOU HAVE READ AND AGREED TO ALL APPLICABLE TERMS AND CONDITIONS SET FORTH ON PAGES 1 AND 2 HEREOF. Authorized Signer X: Date: Federal Tax ID # (Required): Print Name: Title: OWNER ACCEPTANCE Accepted By: Xerox Financial Services LLC Name and Title: Date: TERMS & CONDITIONS 90 Page 2 of 2 CITY OF SEWARD XFS-FMV 04.05.18 8. Equipment Return. If the Equipment is returned to XFS, it shall be in the same condition as when delivered to you, except for “ordinary wear and tear” and, if not in such condition, you will be liable for all expenses XFS incurs to return the Equipment to such condition. IT IS SOLELY YOUR RESPONSIBILITY TO SECURE ANY SENSITIVE DATA AND PERMANENTLY DELETE SUCH DATA FROM THE INTERNAL MEDIA STORAGE PRIOR TO RETURNING THE EQUIPMENT TO XFS. YOU SHALL HOLD XFS HARMLESS FROM YOUR FAILURE TO SECURE AND PERMANENTLY DELETE ALL SUCH CUSTOMER DATA AS OUTLINED IN THIS SECTION. 9. Assignment. YOU MAY NOT ASSIGN, SELL, PLEDGE, TRANSFER, SUBLEASE OR PART WITH POSSESSION OF THE EQUIPMENT, THIS AGREEMENT OR ANY OF YOUR RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT (COLLECTIVELY “ASSIGNMENT”) WITHOUT XFS’S PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD, BUT SUBJECT TO THE SOLE EXERCISE OF XFS’S REASONABLE CREDIT DISCRETION AND EXECUTION OF ANY NECESSARY ASSIGNMENT DOCUMENTATION. If XFS agrees to an Assignment, you agree to pay the applicable assignment fee and reimburse XFS for any costs we incur in connection with that Assignment, which in the aggregate shall not exceed $250. XFS may sell, assign or transfer all or any part of the Equipment, this Agreement and/or any of our rights (but none of our obligations except for invoicing and tax administration) hereunder. XFS’s assignee will have the same rights that we have to the extent assigned. YOU AGREE NOT TO ASSERT AGAINST SUCH ASSIGNEE ANY CLAIMS, DEFENSES, COUNTERCLAIMS, RECOUPMENTS, OR SET-OFFS THAT YOU MAY HAVE AGAINST XFS, and you agree to remit Payments to such Assignee if so designated. XFS agrees and acknowledges that any Assignment by us will not materially change your obligations hereunder. 10. Taxes. You will be responsible for, indemnify and hold XFS harmless from, all applicable taxes, fees or charges (including sales, use, personal property and transfer taxes (other than net income taxes), plus interest and penalties) assessed by any governmental entity on you, the Equipment, this Agreement, or the amounts payable hereunder (collectively, “Taxes”), which will be included in XFS’s invoices to you unless you timely provide continuing proof of your tax exempt status. Regardless of your tax-exempt status, XFS reserves the right to pass through, and you agree to pay, any such Taxes that are actually assessed by the applicable State on XFS as lessor of the Equipment. For jurisdictions where certain taxes are calculated and paid at the time of agreement initiation, you authorize XFS to finance and adjust your Payment to include such Taxes over the Term. Unless and until XFS notifies you in writing to the contrary, the following shall apply to personal property taxes and returns. If an FMV purchase option is applicable, XFS will file all personal property tax returns covering the Equipment, pay the personal property taxes levied or assessed thereon, and collect from your account all personal property taxes on the Equipment. If a $1 purchase option is applicable, you will file all personal property tax returns covering the Equipment, pay the personal property taxes levied or assessed thereon, and provide us proof thereof upon our request. XFS MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE TAX OR ACCOUNTING TREATMENT OF THIS AGREEMENT. 11. Equipment Warranty Information and Disclaimers. XFS HAS NO INVOLVEMENT IN THE DESIGN, MANUFACTURE, SALE, DELIVERY, INSTALLATION, USE OR MAINTENANCE OF THE EQUIPMENT. THEREFORE, XFS DISCLAIMS, AND YOU WAIVE SOLELY AGAINST XFS, ALL EQUIPMENT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE, AND XFS MAKES NO REPRESENTATIONS WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE EQUIPMENT’S SUITABILITY, FUNCTIONALITY, DURABILITY OR CONDITION. Since you have selected the Equipment and Supplier, you acknowledge that you are aware of the name of the manufacturer of each item of Equipment, Supplier’s contact information, and agree that you will contact manufacturer and/or Supplier for a description of any warranty rights you may have under the Equipment supply contract, sales order, or otherwise. Provided you are not in default hereunder, XFS hereby assigns to you any Equipment warranty rights we may have against Supplier or manufacturer. If the Equipment is returned to XFS or you are in default, such rights are deemed reassigned by you to XFS. IF THE EQUIPMENT IS NOT PROPERLY INSTALLED, DOES NOT OPERATE AS WARRANTED, BECOMES OBSOLETE, OR IS UNSATISFACTORY FOR ANY REASON WHATSOEVER, YOU SHALL MAKE ALL RELATED CLAIMS SOLELY AGAINST MANUFACTURER OR SUPPLIER AND NOT AGAINST XFS, AND YOU SHALL NEVERTHELESS CONTINUE TO PAY ALL PAYMENTS AND OTHER SUMS PAYABLE UNDER THIS AGREEMENT. 12. Liability and Indemnification. XFS IS NOT RESPONSIBLE FOR ANY LOSSES, DAMAGES, EXPENSES OR INJURIES OF ANY KIND OR TYPE, INCLUDING, BUT NOT LIMITED TO, ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (COLLECTIVELY, “CLAIMS”) TO YOU OR ANY THIRD PARTY CAUSED BY THE EQUIPMENT OR ITS USE. You assume the risk of liability for, and hereby agree to indemnify and hold safe and harmless, and covenant to defend, XFS, its employees, officers and agents from and against: (a) any and all Claims (including legal expenses of every kind and nature) arising out of the acceptance or rejection, ownership, leasing, possession, operation, use, return or other disposition of the Equipment; and (b) any and all loss or damage of or to the Equipment. Neither sentence in this Section shall apply to Claims arising directly and proximately from XFS’s gross negligence or willful misconduct. 13. Default and Remedies. You will be in default hereunder if XFS does not receive any Payment within 10 days after its due date, or you breach any other material obligation hereunder or any other agreement with XFS. If you default, and such default continues for 10 days after XFS provides notice to you, XFS may, in addition to other remedies (including disabling or repossessing the Equipment and/or requesting Supplier to cease performing under the Maintenance Agreement), immediately require you to do one or more of the following; (a) as liquidated damages for loss of bargain and not as a penalty, pay the sum of (i) all amounts then past due, plus interest from the due date until paid at the rate of 1.5% per month; (ii) the Payments remaining in the Term (including the fixed maintenance component thereof, if permitted under the Maintenance Agreement), discounted at the Discount Rate to the date of default, (iii) the Equipment’s booked residual, and (iv) Taxes; and (b) require you to return the Equipment as provided in Sections 5 and 8 hereof. You agree to pay all reasonable costs, including attorneys’ fees and disbursements, incurred by XFS to enforce this Agreement. 14. Risk of Loss and Insurance. You assume and agree to bear the entire risk of loss, theft, destruction or other impairment of the Equipment upon delivery. You, at your own expense, (i) shall keep Equipment insured against loss or damage at a minimum of full replacement value thereof, and (ii) shall carry liability insurance against bodily injury, including death, and against property damage in the amount of at least $2 million (collectively, “Required Insurance”). All such Equipment loss/damage insurance shall be with lender’s loss payable to “XFS, its successors and/or assigns, as their interests may appear,” and shall be with companies reasonably acceptable to XFS. XFS shall be named as an additional insured on all liability insurance policies. The Required Insurance shall provide for 30 days’ prior notice to XFS of cancellation. YOU MUST PROVIDE XFS OR OUR DESIGNEES WITH SATISFACTORY WRITTEN EVIDENCE OF REQUIRED INSURANCE WITHIN 30 DAYS OF THE ACCEPTANCE DATE AND ANY SUBSEQUENT WRITTEN REQUEST BY XFS OR OUR DESIGNEES. You must promptly notify XFS of any loss or damage to Equipment which makes any item of Equipment unfit for continued or repairable use. You hereby irrevocably appoint XFS as your attorney-in-fact to execute and endorse all checks or drafts in your name to collect under any such Required Insurance. Insurance proceeds from Required Insurance or Equipment Insurance received shall be applied, at XFS’s option, to (x) restore the Equipment so that it is in the same condition as when delivered to you (normal wear and tear excepted), or (y) if the Equipment is not restorable, to replace it with like-kind condition Equipment from the same manufacturer, or (z) pay to XFS the greater of (i) the total unpaid Payments for the entire Term hereof (discounted to present value at the Discount Rate) plus, if an FMV purchase option is designated on the first page hereof, XFS’s residual interest in such Equipment (herein agreed to be 20% of the Equipment’s original cost to XFS) plus any other amounts due to XFS hereunder, or (ii) the Determined FMV immediately prior to the loss or damage. NO LOSS OR DAMAGE TO EQUIPMENT, OR XFS’S RECEIPT AND APPLICATION OF INSURANCE PROCEEDS, SHALL RELIEVE YOU OF ANY OF YOUR REMAINING OBLIGATIONS UNDER THIS AGREEMENT. Notwithstanding procurement of Equipment Insurance or Required Insurance, you remain primarily liable for performance under this Section in the event the applicable insurance carrier fails or refuses to pay any claim. 15. Finance Lease and Customer Waivers. The parties agree this Agreement shall be construed as a “finance lease” under UCC Article 2A. Customer waives its rights as a lessee under UCC 2A sections 508-522. 16. Authorization of Signer and Credit Review. You represent that you may lawfully enter into, and perform, this Agreement, that the individual signing this Agreement on your behalf has all necessary authority to do so, and that all financial information you provide accurately represents your financial condition. You agree to furnish financial information that XFS may request now, including your Federal Tax ID, and you authorize XFS to obtain credit reports on you in the future should you default or fail to make prompt payments hereunder. 17. Original and Sole Controlling Document. No Modifications Unless in Writing. This Agreement constitutes the entire agreement between the Parties as to the subjects addressed herein, and representations or statements not included herein are not part of this Agreement and are not binding on the Parties. You agree that an executed copy of this Agreement that is signed by your authorized representative and by XFS’s authorized representative (an original manual signature or such signature reproduced by means of a reliable electronic form, such as electronic transmission of a facsimile or electronic signature) shall be marked “original” by XFS and shall constitute the only original document for all purposes. To the extent this Agreement constitutes UCC chattel paper, no security interest in this Agreement may be created except by the possession or transfer of the copy marked “original” by XFS. IF A PURCHASE ORDER OR OTHER DOCUMENT IS ISSUED BY YOU, NONE OF ITS TERMS AND CONDITIONS SHALL BE BINDING ON XFS, AS THE TERMS AND CONDITIONS OF THIS AGREEMENT EXCLUSIVELY GOVERN THE TRANSACTION DOCUMENTED HEREIN. SUPPLIER AND ITS REPRESENTATIVES ARE NOT OUR AGENTS AND ARE NOT AUTHORIZED TO MODIFY OR NEGOTIATE THE TERMS OF THIS AGREEMENT. THIS AGREEMENT 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 XFS. You authorize XFS to insert or correct missing information on this Agreement, including but not limited to your proper legal name, agreement/numbers, serial numbers and other Equipment information, so long as there is no material impact to your financial obligations. 18. Governing Law, Jurisdiction, Venue and JURY TRIAL WAIVER. THIS AGREEMENT IS GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ALASKA. THE JURISDICTION AND VENUE OF ANY ACTION TO ENFORCE THIS AGREEMENT, OR OTHERWISE RELATING TO THIS AGREEMENT, SHALL BE IN A THE 3rd JUDICIAL DISTRICT OF ALASKA , OR, EXCLUSIVELY AT XFS’S OPTION, IN ANY OTHER FEDERAL OR STATE COURT WHERE THE EQUIPMENT IS LOCATED OR WHERE XFS’S OR YOUR PRINCIPAL PLACES OF BUSINESS ARE LOCATED, AND YOU HEREBY WAIVE ANY RIGHT TO TRANSFER VENUE. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION RELATED TO OR ARISING OUT OF THIS AGREEMENT. 19. Miscellaneous. Your obligations under the “Taxes” and “Liability” Sections commence upon execution, and survive the expiration or earlier termination, of this Agreement. Notices hereunder must be in writing. Notices to you will be sent to the “Billing Address” provided on the first page hereof, and notices to XFS shall be sent to our address provided on the first page hereof. Notices will be deemed given 5 days after mailing by first class mail or 2 days after sending by nationally recognized overnight courier. Invoices are not considered notices and are not governed by the notice terms hereof. You authorize XFS to communicate with you by any electronic means (including cellular phone, email, automatic dialing and recorded messages) using any phone number (including cellular) or electronic address you provide to us. If a court finds any term of this Agreement unenforceable, the remaining terms will remain in effect. The failure by either Party to exercise any right or remedy will not constitute a waiver of such right or remedy. If more than one party has signed this Agreement as Customer, each such party agrees that its liability is joint and several. The following four sentences control over every other part of this Agreement: Both Parties will comply with applicable laws. XFS will not charge or collect any amounts in excess of those allowed by applicable law. Any part of this Agreement that would, but for the last four sentences of this Section, be read under any circumstances to allow for a charge higher than that allowed under any applicable legal limit, is modified by this Section to limit the amounts chargeable hereunder to the maximum amount allowed under the legal limit. If, in any circumstances, any amount in excess of that allowed by law is charged or received, any such charge will be deemed limited by the amount legally allowed and any amount received by XFS in excess of that legally allowed will be applied by us to the payment of amounts legally owed hereunder or refunded to you. 20. Non-Appropriation. Your obligation to pay the Lease Payments and any other amounts due is contingent upon approval of the appropriation of funds by your governing body. In the event funds are not appropriated for any fiscal period equal to amounts due under the Lease, and you have no other funds legally available to be allocated to the payment of your obligations under this Lease, you may terminate the Lease effective on the first day of such fiscal period (“Termination Date”) if: (a) you have used due diligence to exhaust all funds legally available; and (b) XFS has received written notice from you at least 30 days before the Termination Date. At XFS’s request, you shall promptly provide supplemental documentation as to such non-appropriation. Upon the occurrence of such non-appropriation, you shall not be obligated for payment of any Lease Payment for any fiscal period for which funds have not been so appropriated, and you shall promptly deliver the Equipment to the Dealer (or such other party as we may designate) as set forth in the return provisions of the Lease. 91 XPPS Cost Per Print Agreement THIS IS A LEGALLY BINDING NON- CANCELABLE CONTRACT. Agreement No: CUSTOMER # Customer – Use EXACT registered name if a corp., LLC or LP Customer’s Contact Person: Contact Person’s E-mail: City of Seward Brennan Hickok bhickok@cityofseward.net Street City State County Zip Code Customer’s Telephone 410 Adams Street, P.O. Box 167 Seward AK 99664 (907) 224-4020 In this Cost Per Print Agreement, as it may be amended or supplemented from time to time (the “Agreement”), the word “Customer” means the Customer named above. “Company” means OfficeTech, Inc. an authorized Xerox Partner Print Services reseller. “Xerox” means Xerox Corporation. 1. SERVICES. XEROX WILL PROVIDE THE SERVICES IDENTIFIED IN THE ATTACHED DESCRIPTION OF SERVICES (“SERVICES”) FOR THE DEVICES IDENTIFIED IN EXHIBIT A TO THIS AGREEMENT (“MANAGED DEVICES”). The Tools (as defined below) will be used to monitor the Networked Devices identified in Exhibit A. The Tools provide automatic service and supplies alerts to the Help Desk (e.g. low toner) and are used for automated meter collection, new device discovery, and device data collection for reporting. The Tools periodically scan approved ranges of Customer’s network for devices which may be eligible to be added as Managed Devices. Devices identified through this process may be added as Managed Devices and billed at the rates identified in Exhibit A. Customer promises to pay to Company the “Minimum Monthly Charges” set forth on Exhibit A, any excess print charges, monthly fees and consumable charges for Non-Networked Devices identified in Exhibit A, and all other amounts stated herein. 2. TERM AND TERMINATION. The agreement is effective from the commencement date and shall continue for an initial minimum term of Four (4) years. Thereafter, this Agreement shall automatically be renewed for successive one (1) year terms unless terminated sooner by either party on no less than ninety (90) days' prior written notice to the other party. The prices, terms and conditions for such successive term(s) shall be those in effect at the time of renewal. All Agreements shall be billed monthly in arrears. 3. BREAK FIX SERVICES. Except for Other Devices identified as “Supplies Only” in Exhibit A, Xerox will keep the Managed Devices in good working order ("Break Fix Services"). a) Break Fix Services may be initiated by the Tools for Networked Devices or by Customer calling the Help Desk. b) If a device fault cannot be resolved remotely, Xerox will dispatch a service technician to perform on-site Break Fix Services, which will usually be the next business day. On-site Break Fix Services are provided Monday through Friday (excluding New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day) from 8:00AM to 5:00PM local time (“Service Hours”). Break-Fix Services exclude repairs due to: (i) misuse, neglect, abuse or operation of a Managed Device outside the original equipment manufacturers (“OEM”) specifications; (ii) failure of the Customer’s PC to comply with the OEM’s published specifications; (iii) act of God or other force majeure event; (iv) relocation, alterations, or use of options, accessories, service or supplies not provided by Xerox; (v) failure to perform any Customer Responsibilities identified in the section titled “Customer Responsibilities”; or (vi) acts or omissions of Customer or any party not affiliated with Company or Xerox. c) If Xerox determines that a Managed Device is beyond repair, or is classified by the OEM as service discontinued, or parts or Supplies (defined below) are no longer commercially available, Customer may (i): replace the device at its own expense with a device that is then supported by Xerox, or (ii): notify Company to delete the device from the Agreement. d) Replacement parts may be new or used and all removed, replaced parts become Xerox’s property . e) If a maintenance kit or drum is required for a Managed Device, Xerox will provide Customer with the drum or maintenance kit component(s). Drums and maintenance kits are included in pricing. Technicians are not dispatched for preventative maintenance or cleaning or for installation of maintenance kits or drums if such items are designated as CRUs. 4. SUPPLIES. Xerox will furnish toner or ink (“Supplies”), as applicable, for Managed Devices as identified in Exhibit A. a) Supplies requests may be placed by the Tools or by Customer calling the Help Desk. b) Supplies are Xerox’s property until used by Customer, and Customer will use them only with the Managed Devices. Selling, transferring, bartering or otherwise conveying Supplies to anyone is strictly prohibited and is subject to civil and criminal penalties. c) Upon request, Customer will provide an inventory of Supplies in its possession. No “safety stock” of Supplies is permitted under this Agreement. “Safety Stock” means more than one consumable item (e.g. toner cartridge) that is not installed in a Managed Device. Upon expiration or termination of the Agreement Customer will, at Xerox’s option and expense, return any unused Supplies to X erox, permit access to its facilities to permit collection, or dispose of them as directed in writing by Xerox. d) To prevent excessive shipment of Supplies, when Supplies are ordered for Networked Devices, Xerox will: (i) check the current consumables level, if available, to validate a low consumables condition; and (ii) check the metered impression volume since the last Supplies shipment to determine if impression volume exceeds the expected yield. If these conditions are not satisfied, Supplies will be billed to Customer. e) Xerox may not provide Supplies if a current meter read is not received for a Networked Device. Pricing set forth on Exhibit A includes standard ground shipping. If Customer requests expedited shipping, the cost of second day, overnight, or other non-standard shipping will be billed to Customer. f) Customer must separately purchase all supplies other than those specifically listed on Exhibit A, including, without limitation, paper and staples, at Customer’s own cost. 5. HELP DESK. The Help Desk is available during the Service Hours to receive, track, escalate, process and close service issues, remotely resolve certain issues, and process Customer requests for Break Fix Services and Supplies. 6. CUSTOMER RESPONSIBILITIES. Customer will: a) Notify Company if Customer wishes to relocate a Managed Device, and Company will advise Customer if Services are available at the new location. b) Assure that Networked Devices are Simple Network Management Protocol (“SNMP”) enabled and can route SNMP over the network. c) Provide a dedicated PC (or server) that is connected to Customer’s network at all times (“Customer PC”); and allow Company and Xerox to install, use, access, update and maintain the Tools on the Customer PC. The Tools cannot be installed on a PC where other SNMP-based applications or other Xerox Tools are installed, because they may interfere with the Tools. 92 d) Ensure that proper virus protection is installed, maintained, and enabled on any servers, desktop workstations, laptop computers and other hardware attached to the Customer’s network and output environment, as well as on any server or computer hosting the Tools or any data on the Customer’s network. Neither Company nor Xerox is responsible for the disruption of Services or loss of functionality of the Tools caused by any of the foregoing. If the Tools become inoperable due to Customer implemented changes to its network, Company will work with Customer to remotely re-install Tools. e) Assist in implementation of the Tools by providing relevant network information such as the IP address ranges or subnets on which Managed Devices reside. f) Distribute Supplies within Customer’s site and install them in Managed Devices, clear paper jams, and resolve any network o r Customer PC issues, or any Managed Device software issues. g) Replace Managed Device cartridges and CRUs. Customer Replaceable Units (“CRUs”) are those items that an operator can instal l without service assistance, including but not limited to certain drums and maintenance kits. h) Provide reasonable access to Customer’s facilities and personnel as required for the performance of the Services. i) Ensure that Managed Devices are installed and operating within the OEM’s specifications and are readily accessible to the X erox authorized service representative. j) Submit meter data for Non-Networked Devices when such cannot be provided by the Tools. k) Request Break Fix Services and Supplies from the Help Desk for Managed Devices that are not compatible with the Tools. l) Grant or transfer to Xerox sufficient rights to use software owned, licensed or otherwise controlled by Customer, as required, solely for the purpose of providing the Services. m) Legally dispose of all hazardous wastes generated from use of Managed Devices and associated Supplies and CRUs Neither Company nor Xerox will be liable for delays or services failures, including but not limited to implementation delays if Customer does not perform or facilitate completion of its designated responsibilities. 7. PRINT CHARGES; LATE FEES AND TAXES. Each month, Customer agrees to pay Company, by the due date as set forth on the invoice, all Minimum Monthly Charges, excess print charges and all other amounts due under this Agreement (including all applicable taxes). If meter reads are not provided, Company (i) may estimate the number of prints used and invoice Customer accordingly, (ii) may charge a fee in the amount of $5.00 per Device that do not report meter readings for each month until meter readings are provided, and (iii) will adjust the estimated charge for excess prints upon receipt of actual meter readings. If Company does not receive payment in full on or before its due date, Customer shall pay (i) a fee equal to the greater of 1.5% of the amount that is late or $25, plus (ii) interest on the part of the payment that is late in the amount of 1.5% per month from the due date to the date paid. Customer is responsible for all taxes (including, without limitation, sales, use and personal property taxes, and excluding only taxes based on Our income), levies, assessments, license and registration fees and other governmental charges relating to this Agreement (collectively, “Taxes”). Company may periodically bill Customer for, and Customer agrees to promptly pay any Taxes. Customer authorizes Company to pay any Taxes when and as they may become due, and Customer agrees to reimburse Company promptly upon demand for the full amount (less any estimated amounts previously paid by Customer). 8. XEROX CLIENT TOOLS & XEROX TOOLS. Company will use certain Xerox software tools that are installed on Customer’s network (“Xerox Client Tools”), and/or certain other proprietary Xerox software (“Xerox Tools”), to perform Company’s obligations under this Agreement. Xerox Client Tools and Xe rox Tools (collectively, “Tools”) are Xerox trade secrets. Xerox Client Tools and any related documentation are licensed under a separate clickwrap or shrinkwrap license agreement that Company must accept at the time of installation. Xerox Tools are operated and used only by Company and Xerox, and Customer has no right to use, access or operate the Xerox Tools. Customer shall not decompile or reverse engineer the Tools. The Tools will be removed by Company at the expiration or termination of this Agreement. Xerox Client Tools facilitate performance of the Services through automatic collection and transmission of data 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 will be transmitted in a secure manner. The automatic data transmission capability does not allow Company or Xerox to read, view or download the content of any of Customer’s documents residing on or passing through the Managed Devices or Customer’s information management systems. If a meter reading is not generated by Xerox Client Tools or, upon request, Customer fails to provide a meter reading, Company may estimate the reading and bill Customer accordingly. 9. INTELLECTUAL PROPERTY INDEMNITY. Xerox will defend, and pay any settlement agreed to by Xerox or any final judgment for, any claim that the Tools infringe a third party’s U.S. intellectual property rights. Customer must promptly notify Company and Xerox of any alleged infringement and permit Xerox to direct the defense. Neither Company nor Xerox is responsible for any non-litigation expenses or settlements unless Xerox and Company pre-approve them in writing. To avoid infringement, Xerox may modify or substitute an equivalent tool, or obtain any necessary licenses. Xerox is not liable for any infringement based upon a modification of the Tools to Cu stomer’s specifications or the Tools being used by Customer in a manner not permitted by this Agreement. 10. NO WARRANTIES; LIMITATION OF LIABILITY. The Services will be performed in a skillful and workmanlike manner. NEITHER XEROX NOR COMPANY MAKE ANY OTHER WARRANTIES AND BOTH XEROX AND COMPANY DISCLAIM ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Any liability for any cause whatsoever shall be limited to amounts paid by Customer under this Agreement. This limitation shall apply regardless of the form of action, whether contract or tort, including without limitation negligence actions, provided, however, that this limitation shall not apply to damages resulting from personal injury caused by Company’s negligence. In no event shall Xerox or Company be liable to Customer for any special, indirect, incidental, consequential, exemplary or punitive damages in any way arising out of or relating to this Agreement. 11. LOSS AND DAMAGE. Customer bears the risk of loss and damage to the Managed Devices and Customer shall continue to perform its obligations even if it becomes damaged or suffers a loss. 12. ASSIGNMENT. CUSTOMER SHALL NOT SELL, ASSIGN, OR OTHERWISE TRANSFER (collectively, “TRANSFER”) THIS AGREEMENT, IN WHOLE OR IN PART, WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY. Any attempted assignment or delegation without the prior written consent of Company shall be void. Although Xerox is not a party to this Agreement, Xerox is a third party beneficiary of this Agreement. Customer acknowledges that Company may, without notice to Customer, Transfer this Agreement to Xerox or a third party reseller of Xerox products. 93 13. DEFAULT. Customer will be in default hereunder if Customer fails to pay any amount within 15 days of the due date as set forth in an invoice issued under this Agreement or if Customer fails to perform any other obligation under this Agreement. If Customer defaults, Company may do any or all of the following, at Company’s option: (a) terminate this Agreement, (b) require Customer to pay to Company, on demand, an amount equal to the sum of (i) all amounts then due and past due, (ii) all remaining Minimum Monthly Charges for the Term and (iii) all other amounts that may thereafter become due hereunder to the extent that Company will be obligated to collect and pay such amounts to a third party, and/or (c) exercise any other remedy available to Company under law. Customer also agrees to reimburse Company on demand for all reasonable expenses of enforcement (including, without limitation, reasonable attorneys’ fees and other legal costs). 14. NOTICES. Notices must be in writing and will be deemed given five (5) days after mailing, or two (2) days after sending by nationally recognized overnight courier, to the other party’s business address, or to such other address designated by either party to t he other by written notice given pursuant to this sentence. 15. APPLICABLE LAW; VENUE; JURISDICTION. Any action related to this Agreement shall be governed by the laws of Texas without regard tochoice of law principles, and any litigation hereunder shall take place in the state or federal courts located in Texas, Ector County. Each term hereof shall be interpreted to the maximum extent possible so as to be enforceable under applicable law. 16. MISCELLANEOUS. This Agreement may be executed in counterparts, all of which together shall constitute the same document. Customer agrees that a facsimile or other copy containing the signatures of both parties shall be as enforceable as the original executed Agreement. The failure of either party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision or the right thereafter to enforce each and every provision hereof. No waiver by either party, either express or implied, or any breach of these terms or conditions shall be construed as a waiver of any other term or condition. The provisions of this Agreement that by their nature continue in effect shall survive the termination or expiration of this Agreement. The Agreement represents the final and only agreement between Customer and Company and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements. The Agreement can be changed only by a written agreement between the parties . Customer hereby represents to Company that this Agreement is legally binding and enforceable against Customer in accordance with its terms. Accepted By: OfficeTech, Inc. Customer: City of Seward By: / (Date) By: / (Date) Print Name: Title: 94 EXHIBIT A Base Charge: see below B&W Meter see below Color Meter see below Serial Number Make Model Base Charge B&W Color Supplies Service TBD Xerox C7030/SM2 w/LX 8.00 .0071 .0505 YES YES TBD Xerox C7030/SM2 w/Int. Fin. 8.00 .0071 .0505 YES YES TBD Xerox C7025/SM2 w/Int. Fin. 8.00 .0071 .0505 YES YES TBD Xerox C7025/SM2 w/Int. Fin. 8.00 .0071 .0505 YES YES TBD Xerox C7025/SM2 w/Int. Fin. 8.00 .0071 .0505 YES YES TBD Xerox C7025/SM2 w/Int. Fin. 8.00 .0071 .0505 YES YES TBD Xerox C7020/SM2 w/Int. Fin. 8.00 .0071 .0505 YES YES TBD Xerox C7020/SM2 w/Int. Fin. 8.00 .0071 .0505 YES YES TBD Xerox C7020/SM2 w/Int. Fin. 8.00 .0071 .0505 YES YES TBD Xerox B7025/SM2 8.00 .0071 .0505 YES YES 95 XFS-EQUIP_SCHEDA – 08.09.16 Equipment Schedule “A”Xerox Financial Services LLC 45 Glover Avenue Norwalk, CT 06856 This Equipment Schedule “A” is attached to and becomes a part of the Agreement Number listed below, between Xerox Financial Services LLC and the undersigned Customer. Agreement Number: EQUIPMENT Quantity Model and Description This Schedule “A” is hereby verified as correct by the undersigned Customer ACCEPTANCE Customer: X: Date: Authorized Signer Name: Title: 96