HomeMy WebLinkAboutC-3691(A) - Document Management and Support Services AgreementCMS Inc.
Document Management and Support
Services Agreement
Newport Beach Public
Libraries
0
This agreement is entered into this tenth day of March 2004, by and between Newport Beach Public
Libraries and /or City of Newport Beach (hereinafter referred to as "Customer"), and CMS, Inc.
(hereinafter referred to as "CMS "), 1104 N Anita Avenue, Tucson, Arizona 85705.
The Customer and CMS agree as follows with regard to the installation and operation of the following
Outsourcing Services by CMS for the Customer.
Article I. Customer Requirements
The following documents are included and made part of this agreement that are required in order for CMS
to fulfill obligations as outlined in this Document Services Agreement. (Signatory must be a
CorporateBoard Officer):
• CMS Document Services Agreement
• Key Government Finance, Inc. — Tax Exempt Lease/Purchase Agreement dated 12115/2003
Customer will additionally provide the following documentation:
• Board /council approval Letter authorizing acceptance and signing of these agreements
Article I. GENERAL SERVICES
Section 1.01 Installation Plan
Upon acceptance and consummation of these Agreements, CMS will provide the Customer with a
complete installation plan detailing all periods and schedules. After installation customer will sign
additional delivery/acceptance documents as provided by CMS.
Section 1.02 Equipment
CMS will provide the services outlined in this agreement to all equipment listed in Attachment A of
this agreement.
CMS may add equipment as needed as determined by Customer and /or CMS and as agreed to
in writing. Additional equipment charges may apply and will automatically made part of this
Agreement by signing of Addendum.
Section 1.03 Revenue Reporting
CMS' personnel will download the information from CMS equipment each month. CMS will
compile the information and detailed reports will be provided to the customer the following month.
These reports will include listing of the equipment by location number; volume on each copier,
laser printer or reader printer and revenue, and network print volumes. Reports will be provided
and are reflective of the month's activity.
Invoices for charges in excess of the monthly allowance will be invoiced separately once
collections /accounting reconciliation's are complete.
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Section 1.04 Electronic Controls and Cash Collection Services
CMS's personnel will routinely replenish the coin supplies for all equipment as well as the debit
card supplies for the card dispensers on a scheduled basis. The Customer will provide these
services outside of the scheduled times. During periods of peak activity, supplies may be
replenished on a more frequent basis to ensure that the needs of the end user are met on a
mutually agreed schedule.
CMS will collect and process all cash from vend devices and will process all funds for the
Customer and remit monthly to the Customer the reimbursable revenue as agreed in the pricing
section of this Agreement. Customer agrees CMS will not be responsible for any cash variances.
Section 1.05 Billing and Reporting
(a) Usage Reports
CMS personnel will download all electronically stored information from each unit morithly.
CMS will compile the information and detailed reports will be provided to the Customer
the following month. These reports will include listing of the equipment by location
number, volume on each copier, printer, or reader - printer; revenues by equipment type
by coin, card type (public, staff, or CMS service) and pricing level; total account volume
by equipment type; and summary of staff usage by individual, department, and /or budget
number, if applicable.
(b) Revenue Report(s)
Revenue report(s) identify machine locations, gross revenue, applicable revenue return,
and charges for staff copies/prints, overages /shortages and the net amount due the
Customer or CMS.
Reports will be provided monthly to the Customer approximately 30 days from the last
day of each month's end.
(c) Equipment Performance Reports
CMS will provide equipment performance reports on a monthly basis to the Customer
that includes number of service calls, type of service calls and average response time.
Section 1.06 Hours of Service
CMS will provide equipment maintenance from:
Monday through Friday 8:00 AM to 7:00 PM
These hours may be adjusted by CMS with the written approval of the Customer and/or as
mutually requested by the Customer and agreed upon in writing by both parties, dependent upon
volume, workload, and other requirements.
The Customer understands and acknowledges that service hours for holidays will be adjusted to
CMS's calendared holidays indicated below:
• Christmas Day
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• Thanksgiving Day
• Independence Day
• New Year's Day
• Memorial Day
• Labor Day
• Martin Luther Kn Jr. Day
• President's Day
• Easter
• Veteran's Day
• Columbus Day
Section 1.07 Personnel
(a) Operations Manager
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CMS will provide an experienced Operations Manager to oversee the Agreement. The
Operations Manager will coordinate all team efforts.
(b) Account Manager
An experienced Account Manager will supervise the account. This professional will have
account responsibility for the customer for all services included in this "agreement.
The Account Manager will be responsible for all operations including management of
service. The Account Manager will distribute and collect CMS' Customer Surveys and
meet with the Agreement Administrator(s) and /or assigned staff members at the Libraries
on a frequent basis and will track all customer feedback to discuss the outcomes. The
Account Manager will oversee the Programs offered by CMS and will coordinate the
ongoing training for the Customer's staff on CMS equipment. The Account Manager will
set up a contact program whereby he will routinely call and /or visit with the designated
Customer contacts. In addition, the Account Manager will inform the Customer of new
products, advancements, and CMS policy updates and will foster an open line of
communication with the Customer. The Account Manager will be responsible for all
technical staff. The Account Manager will meet with the Customer at least once each
quarter to review CMS' Track -it service program, review Cabot billing and discuss any
other issues as they arise.
(c) Technicians
CMS will provide technician(s) that are factory- trained in operation and repair of all
equipment covered in this agreement.
To maximize equipment productivity, CMS technician(s) will visit the equipment on a
scheduled basis to supply, repair and perform preventive maintenance. These preventive
maintenance visits are not considered or calculated into the service response times or
call numbers.
(d) Uniforms
CMS personnel will be uniformed and carry CMS ID Cards for easy identification by the
Customer.
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(e) Service Tools
CMS service personnel will be equipped with a cell phone /pager, a vehicle that is stocked
with the parts, supplies and paper.
Section 1.08 Performance Guarantee
CMS also offers its Performance Guarantee that states, "If the equipment supplied by CMS for
the Customer is not performing within the machine's design specifications and cannot be repaired
by CMS or its assigned servicing dealer and our team of Factory Trained Technical personnel,
CMS will replace the equipment with a like model with comparable features at no cost to the
Customer. (Excluding the Minolta Reader Printers) The Performance Guarantee begins the day
of installation and all machines must be serviced by CMS or it's assigned servicing dealer and
operated using only genuine parts and supplies. The guarantee is applicable only to machines
that have not been damaged by accident or misuse and that are supplied with proper voltage.
Section 1.09 Service Response
CMS will respond to service calls dependent upon the call requirement within an average of four
(4) hour(s) from dispatch of call via onsite, e-mail, and /or phone response to all Customers sites
designated and included within this agreement. Additional locations and services may only be
added in writing and made as an Addendum to this agreement.
Section 1.10 Response Time Guarantee
CMS guarantees Service Response times of a maximum of four (4) hours. If CMS fails to respond
to a service call acknowledging a service request within 4 hours for reasons directly attributed to
causes directly within CMS' control (excluding and not limited to natural disasters, major traffic
delays, power outages, out of coin /change, manufacturing delays etc.), CMS will issue the
Customer a monthly credit according to the following schedule of penalties:
Over 4 hours: $100.00 (one hundred dollars) of non - response per instance credited
against billings.
Section 1.11 Preventive Maintenance
CMS will provide service maintenance to all copiers, printers, meters, card equipment and
DigiNet Network Print Vend Solution, listed on Attachment (A), on a predetermined schedule and
on an emergency service basis and supplied or provided by CMS.
To ensure trouble free operation and maximize equipment productivity, the following steps are
performed at each visit.
1. Paper supply checkedistocked.
2. Toner refilled and waste toner checked and emptied.
3. Exteriors of the equipment cleaned.
4. Inspect copy /print quality and adjust, if necessary.
5. Inspect operation of equipment for proper functionality.
6. Perform copier /printer diagnostic routines.
7. Communicate with attending staff and end user.
8. Perform ongoing preventive maintenance.
9. Collections /fund replenishment
10. Card machines loaded
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CMS technicians are trained to provide all preventive maintenance with a minimum amount of
interruption to end users, and will work with staff to coordinate the most convenient maintenance
schedule.
Customer understands and acknowledges that holiday's hours will be coordinated with CMS
holiday schedule accordingly.
Section 1.12 Loaner Equipment
CMS will maintain loaner equipment to rotate in the event of major failure. This spare equipment
will be used in the event equipment cannot be repaired in the required period as outlined in this
Agreement. The loaner equipment is limited to copiers and metering equipment only.
Section 1.13 Fix in Four Hours after Response or Replace
CMS will replace any copier /printer that cannot be returned to service within four (4) hours of a
technician's arrival with the appropriate parts/supply items to correct the problem. CMS will
coordinate replacement of the affected equipment accordingly with one of CMS' loaner machines.
Equipment will be scheduled for install from the closest CMS Service Center maintaining the
replacement units.
Section 1.14 Training
CMS will conduct ongoing training (or as requested by the Customer) in use of equipment placed
or supported by CMS. CMS will train the staff on how to effectively operate all equipment
provided; including clearing, paper jams, change replenishment, adding paper and toner, etc.
CMS will maintain supply inventory at both campuses where staff may be able to add supplies in
the event of an emergency. CMS will also leave keys to all vend equipment in the event a runs
out of change.
Training for staff will be coordinated on a scheduled or as needed basis as well. Additionally,
when any new equipment is installed, one or more comprehensive training sessions will be
coordinated with the end - users, and subsequent sessions will be scheduled as needs warrant.
Section 1.15 Supplying Equipment
As part of CMS's program, CMS will provide the necessary parts and supplies except paper for all
CMS supported equipment listed in this agreement. The Customer must provide all paper for this
equipment and must be of the type and quality as required by CMS and/or the manufacturer as
requested by CMS. Customer may purchase said supplies from CMS at CMS current published
price list in effect at time of purchase.
Section 1.16 Handling Refunds to System End -User
CMS will reimburse Customer for any refunds issued by the customer to a patron for a
malfunctioning piece of equipment, but not for operator- induced errors. In the event an end -user
requests a refund for printed or copied documents, Customer will use its best judgment on
whether to issue the refund or not. Customer will keep a log of refunds detailing end -user name,
phone number, email address (if available), amount refunded, reason for refund and Customer's
staff member name issuing refund. CMS will collect refund log on a monthly basis and will
reimburse the Customer.
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Section 1.17 Program Development
The Customer agrees to meet with CMS at least quarterly to review services that are being
provided to the Customer, and to provide input on CMS's performance. CMS will use these
meetings to gauge its level of performance and make adjustments accordingly.
Article II. UPGRADES /ADDITIONS
Under CMS' Document Services programs your copy and print volumes may increase or decrease. In the
event increased demands are of such proportions that additional equipment is needed, Customer may
request CMS to add additional equipment and CMS may add additional equipment only upon written
acceptance of a new agreement covering this equipment and services. Customer may not remove
equipment from this Agreement.
Article 111. FINANCIAL CONSIDERATION
Section 3.01 Term of Agreement
The initial term of this Agreement shall be for a period of sixty (60) months. This agreement may
be renewed for an additional one (1) year term upon the written mutual consent of both parties.
Section 3.02 Payment for services
The pricing is based upon information furnished by both parties that is believed to be accurate
and complete. If such information should prove to be inaccurate or incomplete in any material
respect, the parties will negotiate in good faith to make appropriate adjustments to the provisions,
services, or pricing under this agreement. In the event the parties decide to revise the services in
the agreement, the pricing will be amended as agreed in writing by both parties.
Prices include all proposed equipment, service, supplies, (excluding paper) parts, and labor for all
components included in Agreement.
Customer agrees to pay as agreed below:
(a) Monthly Payment for term of Agreement
• Customer pays CMS a flat fee of $4,785.90 per month. This price includes
33,000 black- and -white copies /prints and 1,000 color copies /prints each per month at no
additional cost. The Customer keeps the difference between what it charges for copies
and the $4,785.90.
(b) Minimum Volume included in monthly payment
Minimum of 33,000 (thirty -three thousand) black and white copies /prints and
1,000 color copies /prints each per month.
The break -even point is 23,930 black & white copies. Anything over that the
Customer makes a monthly income, while anything under that, the Customer
pays out more than it takes in revenue.
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(c) Per Page Charges /Overages and Revenue Reimbursement
• Copies /Prints up to 33,000 a month will be billed as detailed above. There will be no
revenue reimbursement for the initial copies /prints up to 33,000 per month, as all
funds will be applied to the Customer's monthly investment.
• Black- and -white copies over 33,000 in a month will be billed at $0.10 per copy.
• Color copies over 1,000 in a month will be billed at $0.35 per copy.
• All cash collected by CMS will be remitted to the Customer. Customer will use the
revenue to apply to the monthly payment.
Pricing includes sales tax
(d) Staff Copy Charges
• CMS will provide a Copier with service and supplies for staff usage at a per page
price of $0.045.
(e) After hours Service Charges
Monday through Fr ida
No char a
8:00 AM to 7:00 PM
Emergency Saturday
$150.00 per call
I 10:00 AM to 5:00 PM
Emergency Sunday
$150.00 per call
I 12:OOPM to 6:00 PM
Section 3.03 Patron prices
(a) Copy and Laser Print Public Pricing
The Customer can set the copy and print -vend price or charge anything it chooses.
Article IV. ADDITIONAL AGREEMENT COMPONENTS
Section 4.01 Additional Obligations of the Customer
I. The Customer agrees to be responsible for the costs of electricity necessary to operate
the equipment and to maintain in good repair the electrical outlets and facilities from
which the equipment operates, and as specified by the Manufacture or CMS. The
Customer shall also provide, at the Customer's expense, dedicated outlets with
appropriate ampere's and electrical as certain equipment may also require a dedicated
outlet for the operation of the equipment.
Il. The Customer agrees to allow CMS access to the equipment during its business hours in
order to repair and service it. The Customer further agrees to give immediate notice to
CMS once it has learned that the equipment is malfunctioning or otherwise not producing
good quality documents.
III. The Customer agrees to provide a secure environment for CMS' equipment.
IV. The Customer agrees to reimburse CMS for lost or stolen supplies or components that
have been released directly to Customer(s) or Customer(s) personnel. The Customer
agrees to reimburse CMS at the then - published price list for reimbursement for these
Items.
V. The Customer agrees not to hire or solicit for hire any of CMS's employees, contractors,
and /or those related to the performance of this agreement without the express written
consent of CMS. Customer agrees to a reimbursement of two times the annual salary of
the individual(s) hired by the customer.
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VI. The Customer provides paper.
Section 4.02 Payment Terms
Invoices are payable upon receipt. A 1.5% per month charge will be assessed for delinquent
payments. Customer is liable for and shall pay to CMS all taxes imposed on the billing for
Services by CMS to Customer at the same time and in the same manner that Customer pays
CMS for the provision of Services. Customer shall provide CMS any resale certificates,
information regarding out of state use of materials, Services or sales of other exception
certificates or information. "Tax" includes, but is not limited to, sales and use, rental, excise, gross
receipts, transfer, service, and occupational or privilege Taxes.
Customer agrees to remit all payments for charges incurred through this program and for services
rendered.
Section 4.03 Appropriation of Funds
Customer states and represents that it is the Customers intent to make all payments hereunder
for that full term of this agreement. In the event, through no action initiated by Customer, its
funding body does not appropriate funds for the continuation of this Agreement for any fiscal year
after the first fiscal year of this Agreement, and it has no funds to continue this Agreement from
other sources, Customer may, at the beginning of the fiscal year for which it provides written
notice to CMS that such funds will no longer be appropriated, terminate the Services portion of
the Agreement and shall pay all valid sums due and wing to CMS through the Agreement
effective date.
Section 4.04 Insurance
CMS shall carry Worker's Compensation Insurance in compliance with the laws of the State of
California as well as, public liability and property damage insurance, including automotive liability
in the following amounts.
Bodily injury including death: limits of one million dollars ($1,000,000) for each person
and one million dollars ($1,000,000) for each accident.
Property damage: limits of one million ($1,000,000) for each accident and one million
dollars ($1,000,000) for the aggregate of operations.
CMS shall indemnify and hold harmless the Customer, employees and agents of each, from any
and all property damage or loss claims, liability, damages, expenses (including attorney's fees
and expenses) and any other amounts arising out of the performance of this agreement.
Section 4.05 Confidentiality
The contents of this agreement and all attachments to it are CMS' Private Data and are provided
for the exclusive use of the Customer. The contents herein are not to be reproduced, divulged, or
disclosed without the prior written permission of CMS. Further, Customer and CMS mutually
agree that any information they may acquire concerning technical developments, business
operations, methods or costs of the other shall be kept in strictest confidence, and shall not be
divulged or disclosed to any other person or firm for a period of 3 years after expiration or
termination of this Agreement.
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Section 4.06 Exclusivity
The Customer shall grant CMS an exclusive right to provide the services as described herein for
the term of this Agreement, under the terns and conditions of this Agreement except where
Agreement or services are already in place.
Section 4.07 Force Majeure
CMS shall not be liable under the provision of this Agreement for damages or default on account
of strikes, lockouts, accidents, fires, delays in manufacturing, delays of carriers, vendors,
supplier's acts of God, governmental actions, state of war, or any other causes beyond the
control of CMS, whether or not similar to those enumerated.
CMS is also no responsible for delays attributed to 3rc party manufacturer delays.
Section 4.08 Notice
Any notice of other communication given hereunder shall be in writing and mailed to CMS Inc.,
1104 N Anita Avenue, Tucson, AZ 65705 and Newport Beach Public Library, 1000 Avocado
Ave., Newport Beach, CA 92660.
Section 4.09 Assignment
No assignment by Customer without the prior written consent of CMS. Customer shall not (a)
assign, transfer, pledge or hypothecate this Agreement, the equipment or any part thereof, or any
interest therein, or (b) sublet or rent the equipment or any part thereof or permit the equipment or
any part thereof to be used by anyone other than Customer or Customer's employees. Consent
to any of the foregoing prohibited acts applies only in the given instance; and is not consent to
any subsequent like act by Customer or ay other person.
Section 4.10 CMS' Assignment
CMS agrees not to assign or transfer any of its obligations under this agreement without the prior
written consent of the Customer, whose consent shall not be unreasonably withheld.
Section 4.11 Warranties
CMS will warrant all equipment provided by CMS for the term of this agreement for all equipment,
products and software provided as part of this agreement as either the manufacturer, Dealer,
servicing agent, or distributor of all products provided. In the event there is a defect, malfunction
or failure, CMS will within a commercially reasonable time period, repair, replace or remedy any
malfunctioning equipment and software products provided by CMS as part of this agreement.
CMS warranty does not cover damage caused by abuse, misuse, mishandling, misapplication
and computer viruses, unless these situations are caused or contributed to by CMS.
Section 4.12 Governing Law
This Agreement shall be governed by the laws of the State of California.
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Section 4.13 Severability
In the event of the covenants, terms or conditions of this Agreement are found or deemed to be
invalid or unenforceable; this Agreement shall in all other respects remain binding on the parties.
Section 4.14 Cancellation for Cause
The Customer may cancel the CMS Service portion of this agreement upon 60 days written
notice to CMS. Customer reserves the right to cancel this agreement due to failure on the part of
CMS to carry out any term, promise or condition of this agreement. The Customer will issue sixty -
day (60) notice of default to CMS if CMS fails to carry out any term, or condition of this
agreement.
If CMS does not correct the problem(s) within thirty days (30) after receiving the notice of default,
the Customer may cancel this agreement if the Customer cancels this agreement pursuant to this
clause.
Section 4.15 Entry/Access
The Customer agrees to grant CMS access to the Customer place of business at all times in
order to complete any necessary work.
Customer hereby grants to CMS, and its agents and employees a license to enter upon the
premises of Customer and for an unimpeded access to any and all equipment placed thereon by
CMS, at all reasonable business hours, for the purpose of servicing, repairing, replacing,
substituting, and /or removing any and all of said equipment. The license granted hereunder shall
be irrevocable during the term of this Agreement and a reasonable time after termination thereof,
not to exceed ninety (90) days.
Section 4.16 Parking
Customer shall provide adequate parking for all CMS vehicles associated with the services of this
program with the locations being of the greatest ease into the facility as allowed by law.
Customer will provide and arrange for vendor parking permits, if necessary. CMS shall be
subject to all current and future Customers parking regulations and restrictions for the term of this
agreement.
Section 4.17 Mutual Consent
From time to time, certain aspects of this program may need to be altered, changed, or may be
modified to incorporate other services. Both CMS and/or Customer may effect these changes or
make alterations only upon the written mutual consent and acceptance of both parties and upon
incorporation into this agreement.
Section 4.18 Loss or Damage
CMS is not responsible for any physical damage done to any of the equipment for the duration of
this agreement and agrees to perform all necessary repairs as defined in this agreement.
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Section 4.19 Entire Agreement
The Customer acknowledges that it has read this Agreement, understands it and agrees to be
bound by its terms and conditions. Further, the Customer acknowledges that this Agreement is
the complete and exclusive statement of the understanding between the parties and it
supersedes all proposals or prior agreements, oral or written, and all other communications
between the parties relating to the subject matter of this agreement.
IN WITNESS WHEREOF, the parties have caused this agreement to be signed by their duly authorized
representatives on the dates set for below.
CUSTOMER
CMS Inc.
Typed Name: Tod idgewa Typed Name:
Title: Mayor, City of Newport Beach Title: kuzs- Fab.cxtm-
Date: March 11, 2004 Date: & 49—Cq i � i zo �
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Accepted by Lessor.
Key Government Finance, Inc.
1000 South McCaslin Blvd.
Superior, CO 27
B.
Na le4,-
Title:
Date: 31-X-1
Tax - Exempt Lease/Purchase Agreement Dated 12/15/2003
Agreed to b y Lessee:
City of Newport Beach
3300 Newport Blvd.
Newport Beach,.CA 926Q3-3884
B.
Name: Tod. W. Rid e
Title: Mao City of Newport Beach
bate: March 11, 2004
AGREEMENT: Lessor hereby leases to Lessee and Lessee hereby rents from Lessor all the Property described in Property Schedule incorporated
herein by reference, upon the terms and conditions set forth herein and as supplemented by the terms and conditions set forth in the Property Schedule.
This Tax- Exempt Lease / Purchase Agreement together with the Property Schedule shall be defined as the Agreement.
LEASE TERM: The Lease Term of the Property fisted in the Property Schedule shall commence upon the date of acceptance of the Property by Lessee
and continue for the time period set forth in the Property Schedule. This Agreement cannot be canceled or terminated by Lessee except as expressly
provided herein. This Agreement is a triple net lease.
LEASE PAYMENTS: Lessee shall pay rent. to Lessor for the Property In the amounts, and on the dates specified, in the Property Schedule. Lessor and
Lessee intend that the obligation of Lessee to pay Lease Payments hereunder shag not in any way be construed to be a debt of Lessee in contravention
of any applicable consti coal or statutory limitations or requirements concerning the creation of indebtedness by Lessee, nor shall anything contained
herein constitute a pledge of the general tax revenues, funds or monies of Lessee.
NO OFFSET: SUBJECT TO THE RIGHT TO NON - APPROPRIATE, THE OBLIGATIONS OF LESSEE TO PAY THE LEASE PAYMENTS DUE UNDER THE
PROPERTY SCHEDULE AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED IN THIS AGREEMENT
SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET -OFF OR DEFENSE, FOR
ANY REASON, INCLUDING WITHOUT LIMITATION, ANY DEFECTS, MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN THE PROPERTY OR ANY
ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES. THIS PROVISION SHALL NOT LIMIT LESSEE'S RIGHTS OR ACTIONS
AGAINST ANY VENDOR Lessee shall pay when due all taxes and governmental charges assessed or levied against or with respect to the Property.
LATE CHARGES: Should Lessee fag to duly pay any part of any Lease Payment or other sum to be paid to Lessor under this Agreement on the date on
which such amount is due hereunder, then Lessee shall pay late charges on such delinquent payment from the due date thereof until paid at the rate of
12% per annum or the highest rate peandad by law, whichever is less.
MAINTENANCE OF PROPERTY: At all times during the Lease Tenn, Lessee shall, at Lessee's own cost and expense, maintain, preserve, and keep
the Property in good working order, and condition, and from time to time make or cause to be made all necessary and proper repairs, replacements, and
renewals to the Property, which shag become part of the Property. The Property is and will remain personal property.
INSURANCE OF PROPERTY: Ali risk of loss to the Property shall be borne by the Lessee. At all times during the Lease Term, Lessee shall, at Lessee's
own cost and expense, cause casualty, public liability, and property damage insurance to be carded and maintained (or shall provide Lessor with a
certificate stating that adequate self- insurance has been provided) with respect to the Property, suffldent to protect the full replacement value of the
Property and to protect from liability in all events for which insurance is customarily available. Lessee shall furnish to Lessor certificates evidencing such
coverage throughout the Lease Tenn. Any insurance policy to be carried and maintained pursuant to this Agreement shall be so written or andorsed as
to make losses, if any, payable to Lessee and Lessor as their respective interests may appear. All such liability insurance shall name Lessor as an
additional insured. Each insurance policy carried and maintained pursuant to this Agreement shall contain a provision to the effect that the insurance
company shag not cancel the policy, or modify it materially or adversely to the interest of the Lessor without first giving written notice thereof to Lessor at
least 30 days in advance of such change of status.
QUIET ENJOYMENT AND TERMINATION OF LESSOR'S INTEREST: To secure Lessee's obligations hereunder, Lessor is granted a security interest
in the Property, including substitutions, repairs, replacements and renewals, and the proceeds thereof, which is a first lien thereon. Lessee hereby
authorizes Lessor to file all financing statements which Lessor deems necessary or appropriate to establish, maintain and perfect such security interest
Provided there does not exist an Event of Default as defined herein, the Lessee shag have the right of quiet enjoyment of the Property throughout the
Lease Tenn. If Lessee shall have performed all of its obligations and no default shall have occurred and be continuing under this Agreement, and this
Agreement shall not have been earlier terminated with respect to the Property, then, at the end of the Lease Term with respect to any item of Property,
Lessors interest in such Property shall terminate. Unless otherwise required by law, title to the Property shall be in the name of Lessee, subject to
Lessors interest hereunder.
TAX EXEMPTION: The parties contemplate that interest payable under this Agreement will be excluded from gross inconre for federal income tax
purposes under Section 103 of the Internal Revenue Code of 1986, as amended (the "Code "). The tax - exempt status of this Agreement provides the
inducement for the Lessor to offer financing at the interest rate set forth herein. Therefore, should this Agreement be deemed by any taxing authority not
to be exempt from taxation, Lessee agrees that the interest rate shall be adjusted, as of the date of loss of tax exemption, to an interest rate calculated to
provide Lessor or its assignee an after tax yield equivalent to the tax exempt rate and Lessor shag notify Lessee of the taxable rate. Provided, however,
that the provision of the preceding sentence shall apply only upon a final determination that the interest payments are not excludable from gross income
under Section 103(a) of the Code, and shall not apply B the determination is based upon the individual tax circumstances of the Lessor, or a finding that
the party seeking to exclude such payments from gross income is not the owner and holder of the obligation under the Code.
REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby represents and warrants to Lessor that (a) Lessee is a State, possession of
the United States, the District of Columbia, or political subdivision thereof as defined in Section 103 of the Code and Treasury Regulations and Rulings
related thereto. If Lessee is incorporated. It is duly organized and existing under the Constitution and laws of its jurisdiction of incorporation and will do or
cause to be done all things necessary to preserve and keep such organization and existence in full force and effect, (b) Lessee has been duly aufhortzed
by the Constitution and laws of the applicable jurisdiction and by a resolution of its governing body (which resolution, S requested by Lessor, is attached
hereto), to execute and deliver this Agreement and to carry out its obligations hereunder. (c) All legal requirements have been met, and procedures have
been followed, including pubic bidding, in order to ensure the enforceability of this AgreemenL (d) The Property will be used by Lessee only for essential
governmental or proprietary functions of Lessee consistent with the scope of lessee's authority and will not be used in a trade or business of any person
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or entity , by the federal government or for any personal, family or household use. Lessee's need for the Property is not expected to diminish during the
tens of the Agreement (e) Lessee has funds available to pay Lease Payments until the and of its current appropriation period, and it intends to request
funds to make Lease Payments in each appropriation period, from now until the end of the term of this Agreement (f) The Lessee shall comply at all
times with all applicable requirements of the Code, including but not limited to the registration and reporting requirements of Section 149, to maintain the
federal tax - exempt status of the Agreement. The Lessee shall maintain a system with respect to this Agreement which backs the name, and ownership
interest of each assignee who has both the responsibility for administration of, and ownership interest in this Agreement (g) Lessee's exact legal name
is as set forth on the first page of this Agreement Lessee will not change its legal name in any respect without giving thirty (30) days prior written notice
to Lessor.
INDEMNIFICATION OF LESSOR: To the extent permitted by law, Lessee shall indemnify and save Lessor harmless from and against all claims, losses,
costs, expenses, liability and damages, including legal fees and expenses, arising out of (a) the use, maintenance, condition or management of, the
Property by Lessee, (b) any breach or default on the part of Lessee in the performance of any of its obligations under this Agreement or any other
agreement made and entered in connection with the lease of the Property, (c) arry ad of negligence of Lessee, or its successors or assigns, or any of its
agents, contractors, servants, employees, or licensees with respect to the Property, (d) the acquisition, delivery, and acceptance of the Property, (e) the
actions of any other party including, but not limited to, the ownership, operation, or use of the Properly by Lessee, or (f) Lessor's exercise and
performance of its powers and duties hereunder. No indemnification will be made for negligence or breach of duty under this Agreement by Lessor, its
directors, officers, agents, employees, successors, or assignees. Lessee's obligations under this Section shall remain valid and binding notwithstanding
termination or assignment of this Agreement
NOWAPPROPRIATION: If sufficient funds are rot appropriated to make Lease Payments under this Agreement, this Agreement shall terminate and
Lessee shag not be obligated to make Lease Payments under this Agreement beyond the then current fiscal year for which funds have been
appropriated. Upon such an event Lessee shall, no later than the and of the fiscal year for which Lease Payments have been appmpriated, deliver
possession of the Property to Lessor. If Lessee falls to deliver possession of the Property to Lessor, the termination shag nevertheless be effective but
Lessee shall be responsible for the payment of damages in an arwunt equal to the potion of Laws Payments thereafter coming due that is attributable
to the number of days after the termination during which the Lessee fails to deliver possession and for any other loss suffered by Lessor as a result of
Lessee's failure to deliver possession as required. Lessee shall notify Lessor in writing within seven (7) days after the failure of the Lessee to appropriate
funds sufficient for the payment of the Lease Payments, but failure to provide such notice shag not operate to extend the Lease Term or result in any
liability to Lessee.
ASSIGNMENT BY LESSEE: Without Lessor's prior written conserd, Lessee may not, by operation of taw or otherwise, assign, transfer, pledge,
hypothecate or otherwise dispose of the Property, this Agreement or any interest therein.
ASSIGNMENT BY LESSOR: Lessor may assign, sell or encumber all or any part of this Agreement the Lease Payments and any other rights or
interests of Lessor hereunder. Such assignees may include trust agents for the benefit of holders of certificates of participation.
EVENTS OF DEFAULT: Lessee shag be in default under this Agreement upon the occurrence of any ofthe fogowing events or conditions ("Events of
Default), unless such Event of Default shall have been specifically waived by Lessor in writing: (a) Default by Lessee in payment of any Lease Payment
or any other Indebtedness or obligation now or hereafter owed by Lessee to Lessor under this Agreement or in the performance of any obligation,
covenant or liability contained in this Agreement and the continuance of such default for ten (10) consecutive days after written notice thereof by Lessor
to Lessee, or (b) any warranty, representation or statement made or furnished to Lessor by or on behalf of Lessee proves to have been false in any
material respect when made or furnished, or (c) actual or attempted sale, lease or encumbrance of any of the Property, or the making of any levy,
seizure or attachment thereof or thereon, m (d) dissolution, termination of existence, discontinuance of the Lessee, insolvency, business failure, failure to
pay debts as they mature, or appointment of a receiver of any part of the property of, or assignment for the benefit of creditors by the Lessee, or the
commencement of any proceedings under any bankruptcy, reorganization or arrangement laws by or against the Lessee.
REMEDIES OF LESSOR: Upon the occurrence of any Event of Default and at any time thereafter, Lassor may, without any further notice, exercise one
or more of the following remedies as Lessor in its sole discretion shag elect (a) terminate the Agreement and all of Lessee's rights hereunder as to any
or all Items of Property; (b) proceed by appropriate court action to personally, or by its agents, take possession from Lessee of any or all Items of
Property wherever found and for this purpose enter upon Lessee's premises where any item of Property is located and remove such item of Property
free from all claims of any nature whatsoever by Lessee and Lessor may thereafter dispose of the Property, provided, however, that any proceeds from
the disposition of the Property in excess of the sum required to (i) pay to Lessor an amount equal to the total unpaid principal component of Lease
Payments under the Property Schedule, including principal component not otherwise due until futirre fiscal years, (Ih) pay any other amounts then due
under the Property Schedule and this Agreement, and (ifi) pay Lessor's costs and expenses associated with the disposition of the Property and the Event
of Default (nduding attorneys fees), shall be paid to Lessee or such other creditor of Lessee as may be entitled thereto, and further provided that no
deficiency shall be allowed against Lessee; (c) proceed by appropriate court action or actions to enforce performance by Lessee of its obligations
hereunder or to recover damages for the breach hereof m pursue any other remedy available to Lessor at low or in equity or otherwise; (d) declare all
unpaid Lease Payments and other sums payable hereunder during the current fiscal year of the Lease Term to be immediately due and payable without
any presentment, demand or protest and / or take any and all actions to which Lessor shag be entitled under applicable law. No right or remedy herein
conferred upon or reserved to Lessor is exclusive of any right or remedy herein or at law or in equity or otherwise provided or permitted, but each shall
be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to time. Lessee agrees to pay to Lessor or reimburse Lessor for, in addition to all other amounts due
hereunder, all of Lessor's costs of collection, including reasonable attorney fees, whether or not suit or action is filed thereon. Lessee and Lessor hereby
irrevocably waive all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating
to this Agreement
NOTICES: AN notices; and other communications provided for herein shall be deemed given when delivered or mailed by certified mail, postage prepaid,
addressed to Lessor or Lessee at their respective addresses set forth herein or such other addresses as either of the parties hereto may designate in
writing to the other from time to time for such purpose.
AMENDMENTS AND WAIVERS: This Agreement and the Property Schedule executed by Lessor and Lessee constitute the entire agreement between
Lessor and Lessee with respect to the Property and this Agreement may not be amended except in writing signed by both parties.
CONSTRUCTION: This Agreement shall be governed by and construed in accordance with the laws of the Lessee's State. Titles of sections of this
Agreement are for convenience only and shall not define or limit the terms or provisions hereof. Time is of the essence under this Agreement. This
Agreement shat inure to the benefit of and shag be binding upon Lessor and Lessee and their respective successors and assigns. This Agreement may
be simultaneously executed in counterparts, each shag be an original with all being the same Instrument.
Page 2 of 2
0
0
Property Schedule to Tax - Exempt Lease/Purchase Agreement
This Property Schedule is entered into pursuant to Tax - Exempt Lease/Purchase Agreement dated as of 12115/2003 between Lessor
and Lessee.
1. Interpretation . The terms and conditions of the Tax - Exempt Lease/Purchase Agreement (the "Agreement") are incorporated herein.
2. Property Description. The Property subject to this Property Schedule is described in Exhibit A, attached hereto.
3. Term and Paymerds. Lease Term and Lease Payments are per the table below. if the Payment Due Dates are not defined, they shall
be defined as the last day of each monthly period in the table below commencing with the Acceptance Date as stated in the
Certificate of Acceptance, attached as Exhibit B, hereto. if the parties enter into an escrow agreement for the acquisition of the
Property, then the escrow agreement shall be attached hereto as Exhibit D. In lieu of the Acceptance Date for commencement of
Lease Payments, the date of deposit of the Property Cost into the escrow by Lessor shall be used. Lessee shall have the option to
prepay the Lease Payments due under this Property Schedule by paying the Concluding Balance shown in the table below, plus
any other amounts due and owing at the time of prepayment, subject to per diem adjustment.
4. Expiration. Lessor, at its sole determination, may choose not to accept this Property Schedule tf the fully executed, original Agreement
(including this Property Schedule and all ancillary documents) are not received by Lessor at its place of business by 48)112004.
5. Properly Cosl The total acquisidm cost of the Property is $260,763.51, this includes sales tax.
6. Opinion of Counsel: Lessee has provided the opinion of its legal counsel substantially in the form as attached as Exhibit C, hereto.
Payment No.
Due Date
Payment Amount
Principal Portion
Interest Portion
Prepayment
Balance
1
1 -Ma -2004
0.00
- 811.29
81129
268422.05
2
1-Jun-2004
4 785.90
3,972.08
813.82
265 330.80
3
1- Jul-2004
4 785.90
3,984.44
801.46
261,226.83
4
1 2004
4,785.90
3,996.
789.06
257,110.09
5
1-9e 2004
4,785.90
4,009.27
776.63
252,980.54
6
1- Oct -2004
4,785.90
4,021.75
764.15
248,838.14
7
1-Nov -2004
4,785.90
4,03426
751.64
244,682.85
8
1- Dec-2004
4,785.90
4,046.81
739.09
240514.64
9
1- Janr2005
4,785.90
4,059.40
726.50
236,333.46
10
1- Feb -2005
4785.90
4,072.03
713.87
232,13927
11
1 -Wr- -2005
4,785.90
4084.70
701.20
227,932.03
12
1 r -2005
4,785.90
4,097.41
688.49
223,711.70
13
1 2005
4,785.90
4,110.16
675.74
219,478.24
14
1-Jun -2005
4,785.90
4,122.94
662.96
215231.61
15
1.1ul -2005
4,785.90
4,135.77
650.13
210,971.76
16
1-Aug-2006
4,785.90
4,148.64
637.26
206,698.67
17
1 -Se 2005
4785.90
4,161.55
624.35
202,41227
18
1 -Oct-2005
4 785.90
4174.49
611.41
198,112.55
19
1- Nov -2005
4,785.90
4,187.48
598.42
193,799.44
20
1- Dec-2005
4,785.90
4,200.51
585.39
189472.82
21
1- Jan -2006
4,785.90
4,213.58
572.32
185,132.93
22
1- Feb -2006
4,785.90
4,226.69
559.21
180,779.45
23
1 -Mar -2006
4,785.90
4,239.84
546.06
176,412.41
24
1- -2006
4,785.90
4,253.03
532.87
172,031.80
25
1-May-
4,785.90
4,266.26
519.64
167,637.55
26
1- Jun -2006
4,785.90
4,279.53
506.37
163 229.63
27
1-Jul-2006
4,785.90
4,292.85
493.05
158,808.00
28
1 -Au 2006
4,785.90
4,306.20
479.70
154,372.61
29
1-Se 2006
4,7a5.90
4,319.60
466.30
149,923.42
30
1- Oct-2006
4785.90
4,333.04
452.86
145,460.38
31
1- Nov -2006
4,785.90
4,346.52
439.38
140,983.47
32
1 -Deo -2006
4,785.90
4,360.04
425.86
136,492.62
33
1-Jan -2007
4,785.90
4,373.61
412.29
131,987.80
34
1-Feb -2007
4,785.90
4,387.22
398.68
127 468.97
35
1-Mar -2007
4,785.90
4,400.87
385.03
122,936.06
36
1-Apr-2007
4 785.90
4,414.56
371.34
118,389.08
37
1-Ma 2007
4,785.90
4,428.29
357.61
113,827.94
38
1- Jun -2007
4,785.90
4,442.07
343.83
109,252.61
39
1-JuI -2007
4,785.901
4,455.89
3M21
104%3 04
40
1 -Au -2007
4,785.90
4,469.75
316.15
100,059.19
C-I
11
41
1Se 2007
4785.90
4,483.66
302.24
95,441.02
42
1- Ocl-2007
4,785.E
4,497.61
288.29
90,808.48
43
1- Nov -2007
4,785.90
4,511.60
274.30
86161.53
44
1- Dec -2007
4,785.90
4525.64
260.26
81,500.12
45
1 -Jan -2008
4 785.90
4,539.72
246.18
76,82421
46
1- Feb -2008
4,785.90
4,553.84
232.06
72133.75
47
1 -Mar -2008
4,785.90
4,568.01
217.89
67,428.70
48
1- r -2008
4,785.90
4,582.22
203.68
62,709.00
49
1-May-2008
4 785.90
4,596.48
189.42
57,974.63
50
1-Jun -2008
4,785.90
4,610.78
175.12
53,225.
51
1-Jul-2008
4,785.90
4625.13
160.77
48,461.64
52
1 2008
4,785.90
4,639.52
14638
43,682.94
53
1-Sep-2008
4,785.90
4,653.95
131.95
38,889.37
54
1- Oct -2008
4,785.
4,668.43
117.47
34,080.89
55
1 -Nov -2008
4,785.90
4,682.96
102.94
29,257.44
56
1- Dec-2008
4,785.90
4,697.521
88.381
24,418.99
57
1Jan -2009
4,785.90
4712.14
73.76
19,565.49
58
1-Feb -2009
4,785.90
4,726.80
59.10
14,696.89
59
1- Mar -2009
4 785.90
4,741.51
44.39
9,813.1 3
60
1- r -2009
4,785.90
4,756.26
29.64
4,914.19
IN WITNESS WHEREOF, lessor and lessee have caused this Property Schedule to be executed in their names by their duty auttroraed
representatives.
Lessor: Key Government Finance, Inc.
N e: ° Ak7;,-
Title:
r
Attest:
WE
WS
" -o 5— 11,11 0 PER "11-1- _,0
GG
0
Exhibit A
Equipment List
0
Description
Equipment Detail
• Platen Cover 1018
• PS450 Paper Bank (500 x 2)
• FAC17 Small Cabinet
Savin 2518 Copier with Coin, Card and Bill
CMS Meter Interface
Acceptance
CMS Model 100 DX Debit Card Reader
CMS 100CBC Coin/Bill Unit
• Includes Supplies for the tern of the agreement,
excluding paper
Magnetic Card Dispenser
Card dispenser with $1 or $5 cards
• DigiNet Print Release Station Solution
DigiNet e- Services Kiosk including Pay to
CMS Model 800 OX
Print, PC Time Self- Service, Cash Transfer
CMS 100CBC Coin/Bill Unit
Station with Coin, Card, Bill and Online
Kyocera 1900N Laser Printers
Account Acceptance, WITH Laser Printer
Includes Supplies for the term of the agreement,
excluding paper
PC Cop Time Management Solution
Unlimited PC Client Licenses
• Roll Fiche Carrier 200 (RFC200) Universal Fiche and
Film Camers
• ImageScan Touchscreen Control Software.
Canon Microform Digital Reader Printer Model
SCSI Board Kit & Cable
MS-400
Installation KR for RFC200
• EZ0216 -32X Zoom Lens
• PC w/ 15' Touchscieen Monitor
• Workstation Desk Unit
• Machine will also be used as a Black & White Copier/
Printer
Savin C2408SP Color MFP
Fully networked Color Copier /Printer
Copier /Printer /release station. accepting
Platen Cover Type 120
Coins, Bills, Cards, and Online Account.
PS520 Large Capacity Tray
• Post Script 3
DigiNet e- Services Kiosk including Pay to
CMS model Boo Meter
Print, PC Time Self-Service, Cash Transfer
DigiNet Print Release Station.
Station with Coin, Card, Bill and Online
CMS CBC 100 unit Coin/Bill Unit
Account Acceptance
Copier Controller
• CMS Meter Interface
• DigiNet Print Release Station Solution
Includes Supplies for the term of the agreement,
excluding paper
Card activated Typewriters
• Card Activated typewriters controlled with CMS model
100 meter
Card Activated Facsimile machine
Sharp Facsimile machine controlled with CMS model
100 meter
F
Savin 2518 Copier with Coin, Card, Bill and
Platen Cover 1018
PS450 Paper Bank (500 x 2)
Online Account Acceptance
FAC17 Small Cabinet
Copier /Printer
CMS Meter interface
DigiNet "ervices Krosk including Pay to
CMS Model 800 DX Debit Card Reader
Print, PC Time Self- Service, Cash Transfer
CMS 100CBC Coin/Bill Unit
Station with Coin, Card, Bill and Online
Includes Supplies for the term of the agreement,
Account Acceptance
excluding paper
• Di iNet Pri nt Release Station Solution
Pre - encoded Debit Cards
CMS will provide the initial 5,000 CMS a -Cards at no
cost to the Customer
f. usersfcatfsharedfag(CMS Utxary Agreement Revised M&04.doc
0
f
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
QO/103
9
Agenda Item No. S21
March 9, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COU
FROM: LIBRARY SERVICES
LINDA KATSOULEAS, LIBRARY DIRECTOR, 949 - 717 -3810
lindak@city.newport-beach.ca.us
,6 6�
II CA)
MAR U 9 2004
SUBJECT: APPROVAL OF AGREEMENT WITH KEY GOVERNMENT FINANCE,
INC. AND CARD METER SYSTEMS (CMS) TO PURCHASE NEW
COPIER EQUIPMENT AND PROVIDE PUBLIC PRINT, COPY AND
COMPUTER ACCESS AT THE NEWPORT BEACH PUBLIC LIBRARIES
RECOMMENDATION:
Approve a Lease /Purchase Agreement with Key Government Finance, Inc., and a
Document Management and Support Services Agreement with Card Meter Systems
• (CMS) to provide equipment, service and software for public copying, printing and
computer access/time management at the Libraries for a fee of $4,785.90 per month
and authorize the Mayor and City Clerk to execute the agreements subject to final
review and approval by the City Attorney.
DISCUSSION:
Library customers have had access to copying and printing services at the libraries
through Affiliated Photocopier Specialists (APS). This company's business has
declined in recent years due to their inability to keep abreast of current technology.
The equipment that was placed in our libraries was aging and APS would. not
upgrade the machines. The Library also needed a vendor with the software
technology for public PC management that would allow the customers access to our
Libraries' computers and databases for a scheduled amount of time. APS was not
able to offer this product. For these reasons the Library began a search for a new
vendor.
Based on vendor demonstrations and recommendations from other Library
jurisdictions, both public and academic, the Newport Beach Library has chosen the
vendor CMS to provide customer printing, copying and PC access /time
management. Under the agreement with CMS, the City will purchase the new copier
• equipment through a financing agreement with Key Government Finance, Inc.
Approval Agreement with Card Meter Systen*o Provide Public Print,
Copy & Computer Access at the Newport Beach Public Libraries
March 9, 2004
Page 2
CMS will install the new equipment, which includes copiers, printers, microform
reader /printers and payment stations, at our four libraries. CMS will provide service
maintenance to all pieces of equipment on a schedule determined mutually by the
vendor and the Library. It will also provide emergency service with a guaranteed
four- (4) hour response time at no additional charge. CMS will handle the collection
of money and provide the Library with a monthly accounting of use and remittance of
revenue.
The initial term of this agreement shall be for a period of sixty (60) months. The total
amount of the contract is $260,763.51. This agreement may be renewed for an
additional one (1) year term upon the written mutual consent of both parties.
The contract price is subject to a 13% price increase March 12, 2004.
Funding:
A customer use fee of $0.20 per black & white page will offset funds for the lease
and service of the equipment. At a monthly fee of $4,785.90, the break -even point for
this service would be 23,930 black & white copies. Based on historical statistics for
printing /copying services we should meet or exceed this number.
Funds have also been included in the Library's Maintenance and Operations account
4010 -8030 if expected revenues drop below the break -even point.
Prepared by:
Ii U� _
Melissa Kelly
Library Support Services Supervisor
Submitted by:
QUI Katsoule
Library Director
Attachment: Lease /Purchase Agreement
CMS Document Management and Support Services Agreement
0
•
CJ
(Ty
mey i ovemment rinance, inc.
1000 South McCaslin Blvd.
Superior. CO 80027
B.
Name:
Title:
Date:
c:rty of Newport tseacn
3300 Newport Blvd.
Newport Beach,.CA 926833884
BT-
Name:
Title:
Date:
AGREEMENT: Lessor hereby leases to Lessee and Lessee hereby rents from Lessor all the Property described in Property Schedule incorporated
herein by reference, upon the terms and conditions set forth herein and as supplemented by the terms and conditions set forth In the Property Schedule.
This Tax - Exempt Lease I Purchase Agreement together with the Property.Schedule shall be defined as the AgmemwL
LEASE TERM: The Lease Tenn of the Property listed in the Property Schedule shall commence upon the date of acceptance of the Proparlybry Lessee
and continue for the time period set forth in the Property Schedule. This Agreement cannot be canceled or temunated by Lessee except as expressly
provided herein. This Agreement is a triple net lease..
LEASE PAYMENTS: Lessee shall pay rent to Lessor for the Property in the amounts, and on the dates specified, in the Property Schedule. Lessor and
Lessee intend that the obligation of Lessee to pay Lease. Payments hereunder shall not in anyway be construed to be a debt of Lessee in contravention
of any applicable constitutional or statutory limitadons or requirements concerning the _creation of indebtedness by Lessee, norshall anything contained
herein constitute a pledge of the general tax revenues, funds or monies of Lessee.
NO OFFSET: SUBJECT TO THE RIGHT TO NOWAPPROPRIATE, THE OBLIGATIONS OF LESSEE TO PAY THE LEASE PAYMENTS DUE UNDER THE
PROPERTY SCHEDULE AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED IN THIS AGREEMENT
F;RALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET-OFF OR DEFENSE, FOR
iNY REASON, INCLUDING WITHOUT LIMITATION, ANY DEFECTS, MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN THE PROPERTY OR ANY
ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES. THIS PROViSiON SHALL NOT LIMIT LESSEES RIGHTS OR ACTIONS
AGAINST ANY VENDOR Lessee shall pay when due all taxes and governmental charges assessed or levied against or with respect to the Property.
LATE CHARGES: Should Lessee fail to duly pay any part of any Lease Payment or other sum to be paid to Lessor under this Agreement on the date on
which such amount is due hereunder, then Lessee shall pay late charges on such delinquent payment from the due date thereof until paid at the rate of
12% per annum or the highest rate permitted by law, whichever B less.
MAINTENANCE OF PROPERTY: At all times during the Lease Tenn, Lessee shall, at Lessee's own mgt and expertise, maintain, preserve, and keep
the Property in good working order, and condition, and from time to time make or cause to be made all necessary and proper repairs, replacements, and
renewals to the Property, which shall become part of the Property. The Property is and vid remain personal property.
INSURANCE OF PROPERTY: AN risk of loss to the Property shall be bome by the Lessee. At all times during the Lease Tenn, Lessee shall, at Lessee s
own cost and expense, cause casualty, public liability, and property damage insurance to be carried and maintained (or shall provide Lessor with a
certificate stating that adequate set- insurance has been provided) with respect to the Property, sufficient to protect the full replacement value of the
Property and to protect from liability in all events for which insurance is customarily available. Lessee shall furnish to Lessor certificates evidencing such
coverage throughout the Lease Term. Any insurance policy to be carded and maintained pursuant to this Agreement shall be so written or endorsed as
to make losses, if any, payable to Lessee and Lessor as their respective interests may appear. All such liability insurance shall name Lessor as an
additional insured. Each insurance policy carded and maintained pursuant to this Agreement shall contain a provision to the effect that the insurance
company shall not cancel the policy or modify it materially or adversely to the interest of the Lessor without first giving written notice thereof to Lessor at
least 30 days in advance of such change of status.
QUIET ENJOYMENT AND TERMINATION OF LESSORS INTEREST: To secure Lessee's obligations hereunder, Lessor is granted a security interest
in the Property, including substitutions, repairs, replacements and renewals, and the proceeds thereof, which is a first Non thereon. Lessee hereby
authorizes Lessor to file all financing statements which Lessor deems necessary or appropriate to establish, maintain and perfect such security interest
Provided there does not exist an Event of Default as defined herein, the Lessee shall have the right of quiet enjoyment of the Property throughout the
Lease Tenn. If Lessee shall have performed all of its obligations and no default shall have occurred and be continuing under this Agreement, and this
Agreement shall not have been earlier terminated with respect to the Property, then, at the end of the Lease Tenn with respect to any Nom of Property,
Lessor's interest in such Property shall terminate. Unless otherwise required by law, title to the Property shall be in the name of Lessee, subject to
Lassoes interest hereunder.
TAX EXEMPTION: The parties contemplate that interest payable under this Agreement will be excluded from gross income for federal income tax
purposes under Section 103 of the Internal Revenue Code of 1985, as amended (the "Codel. The tax-exempt status of this Agreement provides the
Inducement for the Lessor to offer financing at the interest rate set forth. herein. Therefore, should this Agreement be deemed by any taking authority not
to be exempt from taxation, Lessee agrees that the interest rate shall be adjusted, as of the date of loss of tax exemption, to an interest rate. calculated to
provide Lessor or its assignee an after tax yield equivalent to the tax exempt rate and Lessor shall notify Lessee of the taxable rate. Provided, however,
that the provision of the preceding sentence shall apply only upon a final determination that the interest payments are not excludable from gross income
under Section 103(a) of the Code, and shall not apply if the determination is based upon the indiuldual tax circumstances of the Lessor, or a finding that
the party seeking to exclude such payments from gross income is not the owner and holder of the'obligation under the Code.
REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby represents and warrants to Lessor that (a) Lessee is a State, possession of
the United States, the District of Columbia, or political subdivision thereof as defined in Section 103 of the Code and Treasury Regulations and Rulings
related thereto. If Lessee is incorporated, it is duly organized and existing under the Constitution and laws of its jurisdiction of incorporation and will do or
cause to be done all things necessary to preserve and keep such organization and existence in fug force and effect. (b) Lessee has been duly authorized
by the Constitution and laws of the applicable jurisdiction and by a resolution of its governing body (which resolution, if requested by Lessor, is attached
hereto), to execute and deliver this Agreement and to carry out its obligations hereunder. (c) All legal requirements have been met, and procedures have
been followed, including public bidding, in order to ensure the enforceability of this Agreement (d) The Property will be used by Lessee only for essential
governmental or proprietary functions of Lessee consistent with the scope of Lessee's authority and will not be used in a trade or business of any person
Rage 1 of 2
• i
or entity, by the federal government or for any personal, family or household use. Lessee's need for the Property is not expected to diminish during the
term of the Agreement (e) Lessee has funds available to pay Lease Payments until the end of its current appropriation period, and ff Intends to request
funds to make Lease Payments In each appropriation period, from now until the end of the term of this Agreement (f) The Lessee shall comply at all
times with all applicable requirements of the Code, including but not limited to the registration and reporting requirements of Section 149, to maintain the
federal tax - exempt. status of the Agreement The Lessee shall maintain a system vft respect to this Agreement, which tracks the name, and ownership
Interest of each assignee who has both the responsibility for administration of, and ownership interest in this Agreement (g) Lessee's exact legal name
Is as set forth on the first page of this Agreement. Lessee will not change Is legal name in any respect without giving thirty (30) days prior written notice
to Lessor. .
INDEMNIFICATION OF LESSOR: To the extent permitted by law. Lessee shag indemnify and save Lessor - harmless from and against all claims, losses,
costs, expenses, liability and damages, including legal fees and expenses, wising out of (a) the use, maintenance, condition or management of, the
Property by Lessee, (b) any breach or default on the part of Lessee in the performance of any of its obligations under this Agreement or any other
agreement made and entered in connection with the lease of the Property, (c) any act of negligence of Lessee, or its successors or assigns, or any of its
agents, contractors, servants, employees, or licensees with respect to the Property, (d) the acquisition, delivery, and acceptance of the Property, (e) the
actions of any other party including, but not limited to, the ownership, operation, or use of the Property by Lessee, or (f) Lessor's exercise and
performance of its powers and duties hereunder. No indemnification will be made for negligence or breach of duty under this Agreement by Lessor, its
directors, officers, agents, employees, successors, or assignees. Lessee's obligations under this Section shag remain valid and binding notwithstanding
termination or assignment of this Agreement
NON - APPROPRIATION: If sufficient funds are not appropriated to make Lease Payments under this Agreement, this Agreement shall terminate and
Lessee shag not be obligated to make Lease Payments under this Agreement beyond the then current fiscal year for which funds have been
appropriated. Upon such an event, Lessee shall, no later than the and of the fiscal year for which Lease Payments have been appropriated, deliver
possession of the Property to Lessor. If Lessee fails to deliver possession of the Property to Lessor, the termination shall nevertheless be effective but
Lessee shall be responsible for the payment of damages in an amount equal to the potion of Lease Payments thereafter coming due that is attributable
to the number of days after the termination during which the Lessee fails to defwer possession and for any other loss suffered by Lessor as a result of
Lessee's failure to deliver possession as required. Lessee shag notify Lessor in writing within seven (7) days after the failure of the Lessee to appropriate
funds sufficient for the payment of the Lease Payments, but failure to provide such notice shall not operate to extend the Lease Tenn or result in any
liability to Lessee.
ASSIGNMENT BY LESSEE: Without Lessors prior written consent, Lessee may rot, by operation of law or otherwise, assign, transfer, pledge,
hypothecate or otherwise dispose of the Property, this Agreement or any interest therein.
ASSIGNMENT BY LESSOR: Lessor may assign, sell or encumber all or any part of this Agreement, the Lease Payments and any other rights or
interests of Lessor hereunder. Such assignees may include trust agents for the benefit of holders of certificates of participation.
EVENTS OF DEFAULT: Lessee shall be in default under this Agreement upon the occurrence of any cf ;he following events or conditions ( "Everts of
Default"), unless such Event of Default shell have been specfically waived by Lessor in writing: (a) Default by Lessee in payment of any Lease Payment
or any other indebtedness m obligation now or. hereafter owed by Lessee to Lessor under this Agreement m in the performance of any obligation,
covenant or liability contained in this Agreement and the continuance of such default for ten (10) consecutive days after written notice thereof by Lessor
to Lessee, or (b) any warranty, representation or statement made or fumished to Lessor by or on behalf of Lessee proves to have been false In any
material respect when made or fumished, w (c) actual or attempted sale, tease or encumbrance of any of the Property, or the making of any levy, •
seizure or attachment thereof or thereon, or (d) dissolution, termination of existence, discontinuance of the Lessee, insolvency, business failure, failure to
pay debts as they mature, or appointment of a receiver of any part of the property of, or assignment for the benefit of creditors by the Lessee, or the
commencement of arty proceedings under any bankruptcy, reorgen'¢ation or arrangement laws by or against the Lessee.
REMEDIES OF LESSOR: Upon the occurrence of any Event of Default and at any time thereafter, Lessor may, without any further notice, exercise one
or more of the following remedies as Lessor in its sole discretion shall elect: (a) teminate the Agreement and all of Lessee's rights hereunder as to any
or all items of Property; (b) proceed by appropriate court action to personalty, or by its agents, take possession from Lessee of any w all items of
Property wherever found and for this purpose enter upon Lessee's premises where any hem of Property is located and remove such item of Property
free from all claims of any nature whatsoever by Lessee and Lessor may thereafter dispose of the Property; provided, however, that any proceeds Uom
the disposition of the Property in excess of the sum required to (i) pay to Lessor an amount equal to the total unpaid principal component of Lease
Payments under the Property Schedule, Including principal component not otherwise due until future fiscal years, (i) pay any other amounts Oren due
under the Properly Schedule and this Agreement, and (fl) pay Lessor's costs and expenses associated with the disposition of the Property and the Event
of Default (including attorneys fees), shall be paid to Lessee or such other creditor of Lessee as may be entitled thereto, and further provided that no
deficiency shall be allowed against Lessee; (c) proceed by appropriate court action or actions to enforce performance by Lessee of its obligations
hereunder or to recover damages for the breach hereof or pursue any other remedy available to Lessor at law or in equity or otherwise; (d) declare all
unpaid Lease Payments and other sums payable hereunder during the current fiscal year of the Lease Tam to be immediately due and payable without
any presentment, demand or protest and I or take any and all actions to which Lessor shall be entitled under applicable law. No right or remedy herein
conferred upon or reserved to Lessor is exclusive of any right or remedy herein or at law or in equity or otherwise provided or permitted, but each shall
be cumulative of every other right o remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to time. Lessee agrees to pay to Lessor or reimburse Lessor for, in addition to all other amounts due
hereunder, all of Lessors costs of collection, including reasonable attorney fees, whether or not suit or action is filed thereon. Lessee and Lessor hereby
irrevocably waive all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating
to this Agreement
NOTICES: AN notices, and other communications provided for herein shall be deemed given when delivered or mailed by certified mail, postage prepaid,
addressed to Lessor or Lessee at their respective addresses set forth herein or such other addresses as either of the parties hereto may designate in
writing to the other from time to time for such purpose. ._.
AMENDMENTS AND WAIVERS: This Agreement and the Property Schedule executed by Lessor and Lessee constitute One entire agreement between
Lessor and Lessee with respect to the Property and this Agreement may not be amended except in writing signed by both parties.
CONSTRUCTION: This Agreement shall be governed by and construed in accordance with the-laws of the Lessee's State. Titles of sections of this
Agreement are for conveniance only and shall not define or limit the terms or provisions hereof. Time is of the essence under this Agreement This
Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. This Agreement may
be simultaneously executed in counterparts, each shall be an original with all being the same instrument. •
Page 2 of 2
Schedule to
his Property Schedule is entered into pursuant to Tax - Exempt Lease/Purchase Agreement dated as of 12/15/2003 between Lessor
and Lessee.
1. Interpretation. The terns and conditions of the Tax - Exempt Lease /Purchase Agreement (the 'Agreement) are incorporated herein.
2. Property Description. The Property subject to this Property Schedule is described in Exhibit A. attached hereto.
3. Term and Payments. Lease Term and Lease Payments are per the table below. If the Payment Due Dates are not defined, they shall
be defined as the last day of each monthly period in the table below commencing with the Acceptance Date as stated in the
Certificate of Acceptance, attached as Exhibit B, hereto. It the parties enter into an escrow agreement for the acquisition of the
Property, then the escrow agreement shall be attached hereto as Exhibit D. In lieu of the Acceptance Date for commencement of
.Lease Payments, the date of deposit of the Property Cost into the escrow by Lessor shall be used. Lessee shall have the option to
prepay the Lease Payments due under this Property Schedule by paying the Concluding Balance shown in the table below, plus any
other amounts due and owing at the time of prepayment, subject to per diem adjustment.
4. Expiratio n. Lessor, at its sole determination, may choose not to accept this Property Schedule N the fully executed, original Agreement
(including this Property Schedule and all ancillary documents) are not received by Lessor at its place of business by 1115/2004.
5. Property Cast The total acquisition cost of the Property is $260,763.51, this includes sales tax.
6. Opinion of Counsel. Lessee has provided the opinion of its legal counsel substantially in the form as attached as Exhibit C, hereto.
•
•
Payment No.
Due Date
Payment Amount
Principal Portion
Interest Portion
Prepayment
Balance
1
15-Jan -2004
4,785.90
3,947.11
838.79
264,520.89
2
15- Feb =2003
- " "'3;785.90''
3,959.81
" - 826.09
260,44229'
3
15- Mar -2004
4,785.90
3,972.54.
813.36
256,350.57
4
15-Apr-2004
4,785.90
3,985.32
800.58
252,245.69
5
15-May-20
4,785.90
3,99814
787.76
248,127.60
6
15-Jun -2004
4,785.90
4,011.00
774.90
243,996.27
7
15- Jul -2004
4,785.90
4,023.91
761.99
239,851.65
8
15-Aug-2004
4,785.90
4,036.85
749.05
235 693.69
9
15Se 2004
4,785.90
4,049.83
736.07
231 522.36
10
15- Oct -2004
4,785.90
4,062.86
723.04
227,337.62
11
15- Nov -2004
4,785.90
4,075.93
709.97
223,139.41
12
15-Dec -2004
4,785.90
4,089.
696.86
218,927.70
13
15- Jan -2005
4,785.90
4,102.19
683.71
214,702.44
14
15- Feb -2005
4,785.90
4,115.39
670.51
210,463.59
15
15- Mar -2005
4,785.90
4,128.63
657.27
206,211.10
16
15-Apr-2005
4,785.90
4,141.91
643.99
201,944.94
17
15-May-2005
4,785.90
4,155.23
630.57
197,665.05
18
15- Jun -2005
4,785.90
4,158.60
617.30
193,371.40
19
15- Ju62005
4,785.90
4,182.01
603.89
189,063.93
20
15-Aug-2005
4,785.90
4,195.46
590.44
184 742.61
21
15Se 2()05
4,785.9
4,208.95
576.95
180,407.39
22
15-Oct -2005
4,785.90
4,222.49
563.41
176,058.22
23
15-Nov -2005
4,785.90
4,236.07
549.83
171,695.07
24
15- Dec -2005
4,785.90
4,249.70
536.20
167,317.87
25
15- Jan -20D6
4,785.90
4,26337
522.53
162,926.60
26
15-Feb -2006
4,785.90
4,277.08
50812
158,521.21
27
15-Mar -2006
4,785.90
4,290.
495.06
154,10134
28
15-Apr-200
4,785.90
4,304.64
481.26
149,66736
29
15-May-2006
4,765.90
4,316.49
467.41
145,219.81
30
15- Jun -2D06
4,765.90
4,332.38
453.52
140,757.46
31
15-Jul -2006
4,785.90
4,346.32
439.58
136,280.75
32
15-Aug-20D6
4,765.90
4,360.30
425.60
131,789.64
33
15-Se 2006
4,785.90
4,374.32
411.58
127,284.09
34
15 -Oct-2006
4,785.90
4,388.39
397.51
122,764.04
35
15- Nov -2006
4,785.90
4,402.51
383.39
118,229.48
36
15-Dec-2006
4,785.90
4,416.67
369.23
113,68029
37
15-Jan-2007
4,785.90
4,430.88
355.02
109,116.48
38
15- Feb -2007
4,185.90
4,445.13
340.77
104,538.00
39
15- Mar -2007
4,785.90
4,459.43
326.47
99,944.78
40
15-Apr-21307
4,785.90
4,473.77
312.13
95,336.79
41
15-May-2007
4,785.90
4,488.17
297.73
90,713.98
42
15-Jun-2D07
4,785.90
4,502.60
283.30
86,076.30
'43
15-Jul-2D07
4,785.90
4,517.09
268.81
81,423.71
44
15-Aug-2007
4,785.90
4,531.62
254.28
76,756.14
45
15-Sep-2007
4,785.90
4,546.19
239.71
72,073.56
46
15-Oct -2007
4,785.90
4,560.82
225.D8
67,375.92
47
15- Nov -2007
.4,785.90
4,575.49
210.41
62,663.17
48
15-0ec•2007
4,785.90
41590.20
195.70
57,935.26
49
15-Jan-2D08
4,785.90
4,604.97
180.93
53,192.14
50
15- Feb -2008
4,785.90
4,619.78
166.12
48 433.77
51
15-Mar -2008
4,785.90
4,634.64
151.26
43,660.09
52
1 x2008
4,785.90
4,649.55
136.35
38,871.05
53
15-May-2008
4,785.90
4,664.51
121.39
34066.61
54
15-Jun-2008
4,785.90
4,679.51
106.39
29,246.71
55
1 15-Jul-20081
4.785.901
4.694.561
91.3411
24,411.31
56
15-Au -2008
4,785.90
4,709.66
76.24
19,560.36
57
15S 2008
4,785.90
4,724.81
61.09
14,693.80
58
15-Oe4 -2008
4,785.90
4,740.01
45.89
9,811.59
59
15-Nov -2008
4;785.90
4,755.26
30.64
4,913.67
60
15-0ec-2008
4,785.90
4,770.55
15.35
0.00
•
IN WITNESS WHEREOF, Lessor and Lessee have caused this Property Schedule to bra executed in their names by their duly authored
representatives.
Lessor:
Name:
Title:
. •
•
0
•
•
Attatinnent A - Equipment List
Description
Qty
Equipment Detail
Platen Cover 1018
• PS450 Paper Bank (500 x 2)
• FAC17 Small Cabinet
Sevin 2518 Copier with Coin, Card and Bill
4
. CMS Meter Interface
Acceptance
CMS Model 100 DX Debit Card Reader
• CMS 100CBC Coin/Bill Unit
Includes Supplies for the tens of the agreement, excluding
paper
Magnetic Card Dispenser
4
. Card dispenserwith $1 or $5 cards
• DigiNet Print Release Station Solution
DigiNet eServices Kiosk including Pay to Print,
• CMS Model 800 DX
PC Time Self-Service, Cash Transfer Station with
3
CMS 100CBC Coin/Bill Unit
Coln, Card, Bill and Online Account Acceptance,
Kyocera 1900N Laser Printers
WITH Laser Printer
Includes Supplies for the term of the agreement, excluding
paper
PC Cop Time Management Solution
Inc
Unlimited PC Client Licenses
• Roll Fiche Carrier 200 (RFC200) Universal Fiche and Film
Carriers
• ImageScan Touchscreen Control Software
Canon Microform Digital Reader Printer Model
3
SCSI Board Kit & Cable
MS-400
Installation Kit for RFC200
EZ021632X Zoom Lens
PC w/ 15' Touchscreen Monitor
Workstation Desk Unit
• Machine will also be used as a Black & White Copied
Printer
Fully networked Color Copier/Printer
Savin C2408SP Color MFP
Platen Cover Type 120
Copier /Printer /release station accepting Coins,
PS520 Large Capacity Tray
Bills, Cards, and Online A=unL
Post Script 3
DigiNet eS Kiosk including Pay to Print,
1
• CMS model 800 Meter
l f-Sers
PC Time Self-Service, ce, Cash Transfer Station with
. DigiNet Print Release Station
Coin, Cana, Bill and Online Account Acceptance
. CMS CBC 100 unit Coin/Bill Unit
Copier Controller
• CMS Meter Interface
• DigiNet Print Release Station Solution
Includes Supplies for the term of the agreement, excluding
paper
Card activated Typewriters
1
• Card Activated typewriters controlled with CMS model 100
meter
Card Activated Facsimile machine
1
Sharp Facsimile machine controlled with CMS model 100
meter
• Platen Cover 1018
Savin 2518 Copier with Coin, Card, Bill and
• PS450 Paper Bank (500 x 2)
..
Online Account Acceptance
• FAC17 Small Cabinet
Copier/Printer
. CMS Meter Interface
3
• CMS Model 800 DX Debit Card Reader
DigiNet e- Services Kiosk including Pay to Print,
CMS 100CBC Coin/Bill Unit
PC Time Self - Service, Cash Transfer Station with
Includes Supplies for the term of the agreement, excluding
Coin, Card, Bill and Online Account Acceptance
paper
DigiNet Print Release Station Solution
Pre - encoded Debit Carlos
5000
CMS will provide the initial 5,000 CMS a -Cards at no cost
to the Customer
• 0
EXHIBIT B .
Cerfficate of Acceptance to Tax - Exempt Lease/Purchase Agreement •
This Certificate of Acceptance is pursuant to Tax - Exempt Lease/Purchase Agreement dated as of 12115/2003 and the related Property
Schedule, between Lessor and Lessee (the "Agreement").
1. Property Acceptance. Lessee hereby certifies and represents to Lessor that the Property referenced in the Agreement. has. been
acquired, made, delivered, installed and accepted as of the date indicated below. lessee has conducted such inspection and/or
testing of the Property as it deems necessary and appropriate and hereby acknowledges that it accepts the Property for all purposes.
Lessee will immediately begin making Lease Payments in accordance with the times and amounts specified herein. LESSOR MAKES
NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUrr LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE
MATERIAL, EQUIPMENT OR WORKMANSHIP IN; THE PROPERTY, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY COMPONENT THEREOF, THE ABSENCE OF LATENT OR
OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND LESSOR HEREBY DISCLAIMS THE SAME: IT BEING
UNDERSTOOD THAT THE PROPERTY IS LEASED TO LESSEE "AS IS" ON THE DATE OF THIS AGREEMENT OR THE DATE OF
DELIVERY, WHICHEVER IS LATER, AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY LESSEE.
2. Bank Qualification. Lessee designates this Property Schedule as a 'qualified tax- exempt obligation' as defined in Section 265(b)(3)(B) of
the intemal Revenue Code of 1906, as amended. Lessee reasonably anticipates issuing tax-exempt obligations (excluding private activity
bonds other than qualified 501(cx3) bonds and including ail tax -exempt obligations of subordinate entitles of the Lessee) during the
calendar year this Property Schedule was funded, in an amount not exceeding $10,000,ODO.
Lessee initial here, only if Bank Qualification is applicable.
IN WITNESS WHEREOF, Lessee has caused this Certificate of Acceptance to be executed by their duly authorized representative
Acceptance Date:
1Z --i1-
17J
•
0
• Lessee's Counsel's Opinion
EXHIBIT C
E
[To be provided on letterhead of Lessee's counsel.]
[Address to Lessor and Lessee]
RE: Agreement between Key Government Finance, Inc. and City of Newport Beach.
Ladies and Gentlemen:
We have acted as special counsel to City of Newport Beach ( "Lessee "), in connection with the Tax - Exempt
Lease/Purchase Agreement, and Property Schedule dated as of 12/15/2003, between City of Newport Beach, as Lessee, and
Key Government Finance, Inc. as Lessor, and any amendment or addendum thereto, if any (together, the "Agreement "), We
have examined the law and such certified proceedings and other papers as we deem necessary to render this opinion.
Based upon the foregoing, we are of the opinion that, under existing law:
1. Lessee Is a public body corporate and politic, duly organized and'existing under the laws of the State, and has
a substantial amount of one or more of the following sovereign powers: (a) the power to tax, (b) the power of eminent domain,
and (c) the police power.
2. Lessee has all requisite power and authority to enter into the Agreement and to perform its obligations
• thereunder.
3. All proceedings of Lessee and its governing body relating to the authorization and approval of the Agreement,
the execution thereof and the transactions contemplated thereby have been conducted in accordance with all applicable open
meeting laws and all other applicable state and federal laws.
4. The Agreement has been duly executed and delivered by Lessee and constitute legal, valid and binding
obligations of Lessee, enforceable against Lessee in accordance with the terms thereof, except insofar as the enforcement
thereof may be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other laws of equitable
principles of general application, or of application to municipalities or political subdivisions such as the Lessee, affecting
remedies or creditors' rights generally, and to the exercise of judicial discretion in appropriate cases.
5. As of the date hereof, based on such inquiry and investigation as we have deemed sufficient, no litigation is
pending, (or, to our knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoin the delivery of the
Agreement; (b) questioning the authority of Lessee to execute the Agreement, or the validity of the Agreement, or the payment
of principal of or interest on, the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of any
proceedings, authorizing the execution of the Agreement or (d) affecting the provisions made for the payment of or security for
the Agreement
This opinion may be relied upon by Lessor, its successors and assigns, and any other legal counsel who provides an
opinion with respect to the Agreement and the Property Schedule.
Very truly yours,
• By.
Request for Certificate of Ins
fill out and fax this form to your insurance c
TO:
Insurance Company:
Contact Name:
Telephone Number.
Fax Number.
FROM:
Customer /Lessee Name: City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663 -3884
Contact Name: Mr. Sean Bearly
Telephone Number. 949- 717 -3820 .
Fax Number.
City of Newport Beach is in the process of financing certain equipment from Key Government Finance, Inc. In
order to facilitate this transaction, please submit a Certificate of Insurance to:
Key Government Finance, Inc. and its Assigns
1000 S. McCaslin Boulevard
Superior, CO 80027
City of Newport Beach requests that Key Government Finance, Inc. be listed as: "Key Government Finance,
Inc. and its Assigns" and named ADDITIONAL INSURED as to public liability coverage and SOLE LOSS
PAYEE as to property coverage. A copy of said certificate should be forwarded to Key Government Finance,
Inc. as described below.
NOTE: Coverage is to include (1) insurance against all risks of physical loss or damage to the Equipment
(including theft and collision for Equipment consisting of motor vehicles) and (2) commercial general liability
insurance (including blanket contractual liability coverage and products liability coverage) for personal and bodily
injury and property damage. In addition, Key Government Finance, Inc. is to receive 30 days' prior written notice
of cancellation or material change in coverage.
Please fax this completed information to:
Key Government Finance, Inc.
Attention: Cindy Sherwood
Fax Number: 720 -3D4 -1479
Phone Number. 720 -304 -1163 M
Please contact the person above if you have any questions. Thank you! •
0
Form 8038 -G I Information Return for Tax - Exempt Governmental Obligations
(Rev. NovBmber 2000) t (Under Internal Revenue Code section 149(x)) OMB No. 1545-0720
Depersnent at to Trmsury l' Sea separate Instructions.
', -- (Caution: Hthe Issue price is under $f00,000, use Form 8038 -GC)
1 Issuer's name
2 Issuers employer Identification number
City of Newport Beach -
95- 6000751
3 Number and street (or P. O. box if mail is not delivered to street address)
RooMSUite
4 Report number
3300 Newport Blvd.
3
5 City, town, or post office, slate, and ZIP code
6 Date of issue
Newport Beach, CA 92663.3884
7 Name of issue
8 CUSIP number
Property Schedule No. 01 to Tax - Exempt Lease/Purchase Agreement
9 Name and We of officer or legal representative whom the IRS may call for more information
10 Telephone number of officer or legal representative
Mr. Sean Beady,
1 949 -717 -3820
® Type of Issue (check applicable box(es) and enter the issue price for each) See instructions and attach schedule
44M cA.'n S— I 11 4:7Rn7R'i
12❑
13❑
14❑
15❑
16❑
17❑
Health and hospital .....................
Transportation .............................
Public Safety . ...............................
Environmental (including sewage
utilities
18❑ Other. Describe (see instructions) 0
19 If obligations are TANS or RANs, check box ❑ If obugalions. are BANS, check box ❑ .... .
20 If obligations are in the form of a lease or installment sale, check box ........................ t
is 21
price at maturity
23 Issue price of entire issue (enter amount fine 21, column ( b)) ................... ...............................
24 Proceeds used for bond issuance costs (including underwriters discount ) .............................
25 Proceeds used for credit enhancement .................................................... ...............................
26 Proceeds allocated to reasonably required reserve or replacement fund . ...............................
27 Proceeds used to currently refund prior issues ........................................ ...............................
28 Pmceeds used to advance refund prior issues ........................................ ...............................
29 (Total add lines 24 through 28)
30 Nonrefundina oroeeeds of the issue (subtract line 29 from line 23 and enter amount her:) ...
average maturity
5 years
N/A
® Description of Refunded Bonds (Complete this part only for refunding bonds.)
30 Enter the remaining weighted average maturity of the bonds to be currently refunded ................. ............................... 1, WA veers
31 Enter the remaining weighted average maturity of the bonds to be advance refunded ................. ............................... I N/A years
32 Enter the last date on which the refunded bonds will be called .................................................... ............................... r N/A
33 Enter the dates) the refunded bonds were issued N/A
Miscellaneous
35 Enter the amount of the state volume cap allocated to the issue under section 1 41( b)( 5) ....................... ............................... s5
36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions) 36a
b Enter the final maturity date of the guaranteed investment contract_
37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other gavemmental units 37a
b If this issue is a loan made from the proceeds of another tax - exempt issue, check box r ❑ 0 and enter the name of the
issuer � and the date of the issue
38 If the issuer has designated the issue under section 265(b)(3)(B)()(111) (small issuer exception), check box ................. ............................... r ❑
39 if the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box .............................................................. ............................... ❑
40 If the issuer has identified a hedge, check box .................................................. ............................................. :.................................. .............. ❑
Please Under penalties of pedury, I declare that I have examined this return, and accompanying schedules and statements, and
best of my knowledge and belief, they are true, correct, and complete.
Sign t
Here Signature of Issuers authorized representative Date Type or print name and title
For Paperwork Reduction Act Notice, see page 2 of the Instructions. Cat. No. 637735 Form 8038 -C (Rev. 11-2000)
Notification of Tax Treatment
Key Government Finance, Inc. is required to collect and remit sales/use tax in the taxing jurisdiction where your
equipment will be located. In the event we do not receive a valid sales tax exemption certificate prior to the date
your lease commences, you will be charged salestuse tax.
Personal property tax returns will be filed as required by local law. In the event that any tax abatements or
special exemptions are available on the equipment you will be leasing from us, please notify us as soon as
possible and forward the related documentation to us. This will ensure that your leased equipment will be
reported correctly.
Please indicate below if you feel that your lease is subject to tax or whether a valid exemption exists.
1 agree that my lease is subject to sales/use tax.
I am exempt from sales/use tax and I have attached a completed exemption certificate to Key
Government Finance, Inc.
1 have previously provided a completed exemption certificate to Key Government Finance, Inc.
which is valid for this transaction.
I am exempt from state tax but subject to local tax. 1 have. attached a completed exemption
certificate.
I have a valid abatement or property tax exemption (documentation. attached).
If applicable to the.tax rates in your state, are you outside the city limits or in an unincorporated area? •
Additional comments:
City of Newport Beach
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CMS Inc.
Document Management and Support
Services Agreement
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Newport Beach Public
Libraries
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This agreement is entered into this tenth day of March 2004, by and between Newport Beach Public •
Libraries and/or City of Newport Beach (hereinafter referred to as "Customer"), and CMS, Inc.
(hereinafter referred to as "CMS'), 1104 N Anita Avenue, Tucson, Arizona 85705.
The Customer and CMS agree as follows with regard to the installation and operation of the following
Outsourcing Services by CMS for the Customer.
Article 1. Customer Requirements
The following documents are included and made part of this agreement that are required in order for CMS
to fulfill obligations as outlined in this Document Services Agreement. (Signatory must be a
Corporate/Board Officer):
• CMS Document Services Agreement
• Key Government Finance, Inc. — Tax Exempt Lease/Purchase Agreement dated 12/1512003
Customer will additionally provide the following documentation:
• Board /council approval Letter authorizing acceptance and signing of these agreements
Article I. GENERAL SERVICES
Section 1.01 Installation Plan
Upon acceptance and consummation of these Agreements, CMS will provide the Customer with a •
complete installation plan detailing all periods and schedules. After installation customer will sign
additional delivery/acceptance documents as provided by CMS.
Section 1.02 Equipment
CMS will provide the services outlined in this agreement to all equipment listed in Attachment A of
this agreement.
CMS may add equipment as needed as determined by Customer and /or CMS and as agreed to
in writing. Additional equipment charges may apply and will automatically made part of this
Agreement by signing of Addendum.
Section 1.03 Revenue Reporting
CMS' personnel will download the information from CMS equipment each month. CMS will
compile the information and detailed reports will be provided to the customer the following month.
These reports will include listing of the equipment by location number; volume on each copier,
laser printer or reader printer and revenue, and network print volumes. Reports will be provided
and are reflective of the month's activity.
Invoices for charges in excess of the monthly allowance will be invoiced separately once
collections/accounting reconciliation's are complete.
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• Section 1.04 Electronic Controls and Cash Collection Services
CMS's personnel will routinely replenish the coin supplies for all equipment as well as the debit
card supplies for the card dispensers on a scheduled basis. The Customer will provide these
services outside of the scheduled times. During periods of peak activity, supplies may be
replenished on a more frequent basis to ensure that the needs of the end user are met on a
mutually agreed schedule.
CMS will collect and process all cash from vend devices and will process all funds for the
Customer and remit monthly to the Customer the reimbursable revenue as agreed in the pricing
section of this Agreement. Customer agrees CMS will not be responsible for any cash variances.
Section 1.05 Billing and Reporting
(a) Usage Reports
CMS personnel will download all electronically stored information from each unit monthly.
CMS will compile the information and detailed reports will be provided to the Customer
the following month. These reports will include listing of the equipment by location
number, volume on each copier, printer, or reader- printer; revenues by equipment type
by coin, card type (public, staff, or CMS service) and pricing level; total account volume
by equipment type; and summary of staff usage by individual, department, and/or budget
number, if applicable.
(b) Revenue Report(s)
• Revenue report(s) identify machine locations, gross revenue, applicable revenue return,
and charges for staff copies /prints, overages /shortages and the net amount due the
Customer or CMS.
Reports will be provided monthly to the Customer approximately 30 days from the last
day of each month's end.
(c) Equipment Performance Reports
CMS will provide equipment performance reports on a monthly basis to the Customer
that includes number of service calls, type of service calls and average response time.
Section 1.06 Hours of Service
CMS will provide equipment maintenance from:
Monday through Friday 8:00 AM to 7:00 PM
These hours may be adjusted by CMS with the written approval of the Customer and /or as
mutually requested by the Customer and agreed upon in writing by both parties, dependent upon
volume, workload, and other requirements.
The Customer understands and acknowledges that service hours for holidays will be adjusted to
CMS's calendared holidays indicated below:
• • Christmas Day
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• Thanksgiving Day
• Independence Day
• New Year's Day
• Memorial Day
• Labor Day
• Martin Luther Kin Jr. Day
• President's Day
• Easter
• Veteran's Day
• Columbus Day
Section 1.07 Personnel
(a) Operations Manager
CMS will provide an experienced Operations Manager to oversee the Agreement. The
Operations Manager will coordinate all team efforts.
(b) Account Manager
An experienced Account Manager will supervise the account. This professional will have
account responsibility for the customer for all services included in this agreement.
•
The Account Manager will be responsible for all operations including management of
service. The Account Manager will distribute and collect CMS' Customer Surveys and .
meet with the Agreement Administrator(s) and /or assigned staff members at the Libraries •
on a frequent basis and will track all customer feedback to discuss the outcomes. The
Account Manager will oversee the Programs offered by CMS and will coordinate the
ongoing training for the Customer's staff on CMS equipment. The Account Manager will
set up a contact program whereby he will routinely call and/or visit with the designated
Customer contacts. In addition, the Account Manager will inform the Customer of new
products, advancements, and CMS policy updates and will foster an open line of
communication with the Customer. The Account Manager will be responsible for all
technical staff. The Account Manager will meet with the Customer at least once each
quarter to review CMS' Track -it service program, review Cabot billing and discuss any
other issues as they arise.
(c) Technicians
CMS will provide technician(s) that are factory- trained in operation and repair of all
equipment covered in this agreement.
To maximize equipment productivity, CMS technician(s) will visit the equipment on a
scheduled basis to supply, repair and perform preventive maintenance. These preventive
maintenance visits are not considered or calculated into the service response times or
call numbers.
(d) Uniforms
CMS personnel will be uniformed and carry CMS ID Cards for easy identification by the
Customer.
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• (e) Service Tools
CMS service personnel will be equipped with a cell phonelpager, a vehicle that is stocked
with the parts, supplies and paper.
Section 1.08 Performance Guarantee
CMS also offers its Performance Guarantee that states, "If the equipment supplied by CMS for
the Customer is not performing within the machine's design specifications and cannot be repaired
by CMS or its assigned servicing dealer and our team of Factory Trained Technical personnel,
CMS will replace the equipment with a like model with comparable features at no cost to the
Customer. (Excluding the Minolta Reader Printers) The Performance Guarantee begins the day
of installation and all machines must be serviced by CMS or ifs assigned servicing dealer and
operated using only genuine parts and supplies. The guarantee is applicable only to machines
that have not been damaged by accident or misuse and that are supplied with proper voltage.
Section 1.09 Service Response
CMS will respond to service calls dependent upon the call requirement within an average of four
(4) hour(s) from dispatch of call via onsite, e-mail, and /or phone response to all Customers sites
designated and included within this agreement. Additional locations and services may only be
added in writing and made as an Addendum to this agreement.
Section 1.10 Response Time Guarantee
• CMS guarantees Service Response times of a maximum of four (4) hours. If CMS fails to respond
to a service call acknowledging a service request within 4 hours for reasons directly attributed to
causes directly within CMS' control (excluding and not limited to natural disasters, major traffic
delays, power outages, out of coin /change, manufacturing delays etc.), CMS will issue the
Customer a monthly credit according to the following schedule of penalties:
Over 4 hours: $100.00 (one hundred dollars) of non - response per instance credited
against billings.
Section 1.11 Preventive Maintenance
CMS will provide service maintenance to all copiers, printers, meters, card equipment and
DigiNet Network Print Vend Solution, listed on Attachment (A), on a predetermined schedule and
on an emergency service basis and supplied or provided by CMS.
To ensure trouble free operation and maximize equipment productivity, the following steps are
performed at each visit.
1.
Paper supply checked /stocked.
2.
Toner refilled and waste toner checked and emptied.
3.
Exteriors of the equipment cleaned.
4.
Inspect copy /print quality and adjust, if necessary.
5.
Inspect operation of equipment for proper functionality.
6.
Perform copier /printer diagnostic routines.
7.
Communicate with attending staff and end user.
8.
Perform ongoing preventive maintenance.
• 9.
Collections /fund replenishment
10.
Card machines loaded
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CMS technicians are trained to provide all preventive maintenance with a minimum amount of •
interruption to end users, and will work with staff to coordinate the most convenient maintenance
schedule.
Customer understands and acknowledges that holiday's hours will be coordinated with CMS
holiday schedule accordingly.
Section 1.12 Loaner Equipment
CMS will maintain loaner equipment to rotate in the event of major failure. This spare equipment
will be used in the event equipment cannot be repaired in the required period as outlined in this
Agreement. The loaner equipment is limited to copiers and metering equipment only.
Section 1.13 Fix in Four Hours after Response or Replace
CMS will replace any copier /printer that cannot be returned to service within four (4) hours of a
technician's arrival with the appropriate parts/supply items to correct the problem. CMS will
coordinate replacement of the affected equipment accordingly with one of CMS' loaner machines.
Equipment will be scheduled for install from the closest CMS Service Center maintaining the
replacement units.
Section 1.14 Training
CMS will conduct ongoing training (or as requested by the Customer) in use of equipment placed
or supported by CMS. CMS will train the staff on how to effectively operate all equipment
provided; including clearing, paper jams, change replenishment, adding paper and toner, etc. •
CMS will maintain supply inventory at both campuses where staff may be able to add supplies in
the event of an emergency. CMS will also leave keys to all vend equipment in the event a runs
out of change.
Training for staff will be coordinated on a scheduled or as needed basis as well. Additionally,
when any new equipment is installed, one or more comprehensive training sessions will be
coordinated with the end - users, and subsequent sessions will be scheduled as needs warrant.
Section 1.15 Supplying Equipment
As part of CMS's program, CMS will provide the necessary parts and supplies except paper for all
CMS supported equipment listed in this agreement. The Customer must provide all paper for this
equipment and must be of the type and quality as required by CMS and /or the manufacturer as
requested by CMS. Customer may purchase said supplies from CMS at CMS current published
price list in effect at time of purchase.
Section 1.16 Handling Refunds to System End -User
CMS will reimburse Customer for any refunds issued by the customer to a patron for a
malfunctioning piece of equipment, but not for operator- induced errors. In the event an end -user
requests a refund for printed or copied documents, Customer will use its best judgment on
whether to issue the refund or not. Customer will keep a log of refunds detailing end -user name,
phone number, email address (if available), amount refunded, reason for refund and Customer's
staff member name issuing refund. CMS will collect refund log on a monthly basis and will
reimburse the Customer.
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• Section 1.17 Program Development
The Customer agrees to meet with CMS at least quarterly to review services that are being
provided to the Customer, and to provide input on CMS's performance. CMS will use these
meetings to gauge its level of performance and make adjustments accordingly.
Article II. UPGRADESIADDITIONS
Under CMS' Document Services programs your copy and print volumes may increase or decrease. In the
event increased demands are of such proportions that additional equipment is needed, Customer may
request CMS to add additional equipment and CMS may add additional equipment only upon written
acceptance of a new agreement covering this equipment and services. Customer may not remove
equipment from this Agreement.
Article III. FINANCIAL CONSIDERATION
Section 3.01 Tenn of Agreement
The initial term of this Agreement shall be for a period of sixty (60) months. This agreement may
be renewed for an additional one (1) year term upon the written mutual consent of both parties.
Section 3.02 Payment for services
The pricing is based upon information furnished by both parties that is believed to be accurate
• and complete. If such information should prove to be inaccurate or incomplete in any material
respect, the parties will negotiate in good faith to make appropriate adjustments to the provisions,
services, or pricing under this agreement. In the event the parties decide to revise the services in
the agreement, the pricing will be amended as agreed in writing by both parties.
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Prices include all proposed equipment, service, supplies, (excluding paper) parts, and labor for all
components included in Agreement.
Customer agrees to pay as agreed below:
(a) Monthly Payment for term of Agreement
• Customer pays CMS a flat fee of $4,785.90 per month. This price includes
33,000 black- and -white copies/prints and 1,000 color copies /prints each per month at no
additional cast. The Customer keeps the difference between what it charges for copies
and the $4,785.90.
(b) Minimum Volume included in monthly payment
Minimum of 33,000 (thirty -three thousand) black and white copies /prints and
1,000 color copies /prints each per month.
The break -even point is 23,930 black & white copies. Anything over that the
Customer makes a monthly income, while anything under that, the Customer
pays out more than it takes in revenue.
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(c) Per Page Charges/Overages and Revenue Reimbursement
• Copies /Prints up to 33,000 a month will be billed as detailed above. There will be no
revenue reimbursement for the initial copies /prints up to 33,000 per month, as all
funds will be applied to the Customer's monthly investment.
• Black- and -white copies over 33,000 in a month will be billed at $0.10 per copy.
• Color copies over 1,000 in a month will be billed at $0.35 per copy.
• All cash collected by CMS will be remitted to the Customer. Customer will use the
revenue to apply to the monthly payment.
• Pricing includes sales tax
(d) Staff Copy Charges
• CMS will provide a Copier with service and supplies for staff usage at a per page
price of $0.045.
(e) After hours Service Charges
Monday through Friday
No charge
8:00 AM to 7:00 PM
Emerqency Saturday
$150.00 per call
10:00 AM to 5:00 PM
Emergency Sunday
$150.00 per call
12:OOPM to 6:00 PM
Section 3.03 Patron prices
(a) Copy and Laser Print Public Pricing
The Customer can set the copy and print -vend price or charge anything it chooses.
Article IV. ADDITIONAL AGREEMENT COMPONENTS
Section 4.01 Additional Obligations of the Customer
I. The Customer agrees to be responsible for the costs of electricity necessary to operate
the equipment and to maintain in good repair the electrical outlets and facilities from
which the equipment operates, and as specified by the Manufacture or CMS. The
Customer shall also provide, at the Customer's expense, dedicated outlets with
appropriate ampere's and electrical as certain equipment may also require a dedicated
outlet for the operation of the equipment.
II. The Customer agrees to allow CMS access to the equipment during its business hours in
order to repair and service it. The Customer further agrees to give immediate notice to
CMS once it has learned that the equipment is malfunctioning or otherwise not producing
good quality documents.
III. The Customer agrees to provide a secure environment for CMS' equipment.
IV. The Customer agrees to reimburse CMS for lost or stolen supplies or components that
have been released directly to Customer(s) or Customer(s) personnel. The Customer
agrees to reimburse CMS at the then - published price list for reimbursement for these
Items.
V. The Customer agrees not to hire or solicit for hire any of CMS's employees, contractors,
and /or those related to the performance of this agreement without the express written
consent of CMS. Customer agrees to a reimbursement of two times the annual salary of
the individual(s) hired by the customer.
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• VI. The Customer provides paper.
Section 4.02 Payment Terms
Invoices are payable upon receipt. A 1.5% per month charge will be assessed for delinquent
payments. Customer is liable for and shall pay to CMS all taxes imposed on the billing for
Services by CMS to Customer at the same time and in the same manner that Customer pays
CMS for the provision of Services. Customer shall provide CMS any resale certificates,
information regarding out of state use of materials, Services or sales of other exception
certificates or information. "Tax° includes, but is not limited to, sales and use, rental, excise, gross
receipts, transfer, service, and occupational or privilege Taxes.
Customer agrees to remit all payments for charges incurred through this program and for services
rendered.
Section 4.03 Appropriation of Funds
Customer states and represents that it is the Customer's intent to make all payments hereunder
for that full term of this agreement. In the event, through no action initiated by Customer, its
funding body does not appropriate funds for the continuation of this Agreement for any fiscal year
after the first fiscal year of this Agreement, and it has no funds to continue this Agreement from
other sources, Customer may, at the beginning of the fiscal year for which it provides written
notice to CMS that such funds will no longer be appropriated, terminate the Services portion of
the Agreement and shall pay all valid sums due and wing to CMS through the Agreement
effective date.
• Section 4.04 Insurance
•
CMS shall carry Worker's Compensation Insurance in compliance with the laws of the State of
California as well as, public liability and property damage insurance, including automotive liability
in the following amounts.
Bodily injury including death: limits of one million dollars ($1,000,000) for each person
and one million dollars ($1,000,000) for each accident.
Property damage: limits of one million ($1,000,000) for each accident and one million
dollars ($1,000,000) for the aggregate of operations.
CMS shall indemnify and hold harmless the Customer, employees and agents of each, from any
and all property damage or loss claims, liability, damages, expenses (including attorney's fees
and expenses) and any other amounts arising out of the performance of this agreement.
Section 4.05 Confidentiality
The contents of this agreement and all attachments to it are CMS' Private Data and are provided
for the exclusive use of the Customer. The contents herein are not to be reproduced, divulged, or
disclosed without the prior written permission of CMS. Further, Customer and CMS mutually
agree that any information they may acquire concerning technical developments, business
operations, methods or costs of the other shall be kept in strictest confidence, and shall not be
divulged or disclosed to any other person or firm for a period of 3 years after expiration or
termination of this Agreement.
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Section 4.06 Exclusivity •
The Customer shall grant CMS an exclusive right to provide the services as described herein for
the term of this Agreement, under the terms and conditions of this Agreement except where
Agreement or services are already in place.
Section 4.07 Force Majeure
CMS shall not be liable under the provision of this Agreement for damages or default on account
of strikes, lockouts, accidents, fires, delays in manufacturing, delays of carriers, vendors,
supplier's acts of God, governmental actions, state of war, or any other causes beyond the
control of CMS, whether or not similar to those enumerated.
CMS is also no responsible for delays attributed to 3`" party manufacturer delays.
Section 4.08 Notice
Any notice of other communication given hereunder shall be in writing and mailed to CMS Inc.,
1104 N Anita Avenue, Tucson, AZ 85705 and Newport Beach Public Library, 1000 Avocado
Ave., Newport Beach, CA 92660.
Section 4.09 Assignment
No assignment by Customer without the prior written consent of CMS. Customer shall not (a)
assign, transfer, pledge or hypothecate this Agreement, the equipment or any part thereof, or any
interest therein, or (b) sublet or rent the equipment or any part thereof or permit the equipment or •
any part thereof to be used by anyone other than Customer or Customer's employees. Consent
to any of the foregoing prohibited acts applies only in the given instance; and is not consent to
any subsequent like act by Customer or ay other person.
Section 4.10 CMS' Assignment
CMS agrees not to assign or transfer any of its obligations under this agreement without the prior
written consent of the Customer, whose consent shall not be unreasonably withheld.
Section 4.11 Warranties
CMS will warrant all equipment provided by CMS for the term of this agreement for all equipment,
products and software provided as part of this agreement as either the manufacturer, Dealer,
servicing agent, or distributor of all products provided. In the event there is a defect, malfunction
or failure, CMS will within a commercially reasonable time period, repair, replace or remedy any
malfunctioning equipment and software products provided by CMS as part of this agreement.
CMS warranty does not cover damage caused by abuse, misuse, mishandling, misapplication
and computer viruses, unless these situations are caused or contributed to by CMS.
Section 4.12 Governing Law
This Agreement shall be governed by the laws of the State of California.
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• Section 4.13 Severability
In the event of the covenants, terms or conditions of this Agreement are found or deemed to be
invalid or unenforceable; this Agreement shall in all other respects remain binding on the parties.
Section 4.14 Cancellation for Cause
The Customer may cancel the CMS Service portion of this agreement upon 60 days written
notice to CMS. Customer reserves the right to cancel this agreement due to failure on the part of
CMS to carry out any term, promise or condition of this agreement. The Customer will issue sixty -
day (60) notice of default to CMS if CMS fails to carry out any term, or condition of this
agreement.
If CMS does not correct the problem(s) within thirty days (30) after receiving the notice of default,
the Customer may cancel this agreement if the Customer cancels this agreement pursuant to this
clause.
Section 4.15 Entry/Access
The Customer agrees to grant CMS access to the Customer place of business at all times in
order to complete any necessary work.
Customer hereby grants to CMS, and its agents and employees a license to enter upon the
premises of Customer and for an unimpeded access to any and all equipment placed thereon by
CMS, at all reasonable business hours, for the purpose of servicing, repairing, replacing,
• substituting, and /or removing any and all of said equipment. The license granted hereunder shall
be irrevocable during the term of this Agreement and a reasonable time after termination thereof,
not to exceed ninety (90) days.
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Section 4.16 Parking
Customer shall provide adequate parking for all CMS vehicles associated with the services of this
program with the locations being of the greatest ease into the facility as allowed by law.
Customer will provide and arrange for vendor parking permits, if necessary. CMS shall be
subject to all current and future Customers parking regulations and restrictions for the term of this
agreement.
Section 4.17 Mutual Consent
From time to time, certain aspects of this program may need to be altered, changed, or may be
modified to incorporate other services. Both CMS and/or Customer may effect these changes or
make alterations only upon the written mutual consent and acceptance of both parties and upon
incorporation into this agreement.
Section 4.18 Loss or Damage
CMS is not responsible for any physical damage done to any of the equipment for the duration of
this agreement and agrees to perform all necessary repairs as defined in this agreement.
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Section 4.19 Entire Agreement •
The Customer acknowledges that it has read this Agreement, understands it and agrees to be
bound by its terms and conditions. Further, the Customer acknowledges that this Agreement is
the complete and exclusive statement of the understanding between the parties and it
supersedes all proposals or prior agreements, oral or written, and all other communications
between the parties relating to the subject matter of this agreement.
IN WITNESS WHEREOF, the parties have caused this agreement to be signed by their duly authorized
representatives on the dates set for below.
CUSTOMER CMS Inc.
By: By:
Typed Name:
Title:
Date:
f: users/cat/shared/aglCIAS & Library Agreement.doc
CMS Document Management and Support Services Agreement
Typed Name:
Title:
Date:
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