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HomeMy WebLinkAbout2012 CON Konica Minolta Business Solutions - Copier Lease & ServiceAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC. THIS AGREEMENT is entered into this 19th day of June, 2012, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Konica Minolta Business Solutions U.S.A. Inc., a Corporation (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to provide 20 leased multifunctional copiers, staff training, delivery, installation, and maintenance of said copiers utilizing Western States Contracting Alliance ("WSCA") contract number 7-09-36-01 — for multifunctionalcopiers and related software and the State of California (Participating State) to the extent that the WSCA contract does not conflict with this Agreement. WHEREAS, the CITY has determined that the CONTRACTOR is a multifunctional copier vendor and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY agrees to engage the CONTRACTOR, and the CONTRACTOR agrees to perform the services set forth here in accordance with all terms and conditions contained in this agreement. The CONTRACTOR represents that all services shall be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. Deliver, install and provide maintenance and training for 20 leased multifunctional copiers at City facilities. The CONTRACTOR will perform delivery and installation at City facilities as set forth in the attached Exhibit "A". CONTRACTOR shall deliver and install within 30 days following contract execution, all copiers and necessary equipment to the City. CONTRACTOR shall provide training within two days following mulitfunctional copier delivery. CONTRACTOR shall provide preventive maintenance assessments biannually and perform any remedial/reparative maintenance as required. Contractor shall respond to service calls within 2 hours and contact requestor with an estimated time of arrival. The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONTRACTOR shall keep staff and City Council advised of the progress on the Project. 1 The CITY may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 15% from the Base Amount. 3. PROJECT COORDINATION AND SUPERVISION. Ron Williams hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Gene Elwell thereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and materials, if any. The cost per copy shall not exceed the amounts set forth in Exhibit "A". For the first three years of this Agreement, the total "monthly service" and "library service" costs shall not exceed the amounts set forth in Exhibit "A". Thereafter, the "monthly service" and "library service" costs may be adjusted pursuant to Section 24. A. 6. of this Agreement. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Section 2 of this Agreement and Exhibit "A", as determined by the CITY. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 5. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONTRACTOR and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR in this Agreement, the City or the CONTRACTOR shall give to the other written notice. Within ten (10) business days, the CONTRACTOR and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR. 6. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on June 19, 2012. The duration of this Agreement is for the period of 60 months, through June 19, 2017. 2 2012 Ap-eemeni: Cily of National City Konica Minolta Business Solutions USA, Inc. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. Not Applicable. 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY' S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or SUBCONTRACTORS, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its SUBCONTRACTOR(S) shall require the SUBCONTRACTOR(S) to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR'S employees, except as herein set forth, and the CONTRACTOR or the CONTRACTOR'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONTRACTOR its agents, servants, and employees are as to the CITY wholly independent CONTRACTOR, and that the CONTRACTOR'S obligations to the CITY are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR and each of its SUBCONTRACTOR(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the terns of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 12. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions 3 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. necessary to protect the CONTRACTOR'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR'S professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. 4 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR'S acts and omissions; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established acts or omissions of the City, its agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 16. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement, unless such claims, demands, payments, suits, actions, proceedings, and judgements are caused by the established negligent act, omission or willful misconduct of the CITY or its officers, employees, or volunteers. 17. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONTRACTOR(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A. ❑ If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising 5 2012 Agreement: City of National City Konica Minolta Business Solutions USA. Inc. out of its operations under this Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. Such limits may be satisfied using any combination of underlying and excess umbrellsliability policies.Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. If CONTRACTOR has no employees subject to the California Workers' Compensation and Labor laws, CONTRACTOR shall execute a Declaration to that effect. Said Declaration shall be provided to CONTRACTOR by CITY. D. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. E. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. F. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY' S Risk Manager. In the event coverage is provided by non -admitted `'surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. G. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. H. All deductibles and self -insured retentions Shall be the responsibility of the CONTRACTOR. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 6 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. This section shall not apply to claims for collection of payments from the CITY. 20. TERMINATION. A. Should CONTRACTOR fail to cure any defaults within 30 days from receipt of written notice from CITY, this Agreement may be terminated by the CITY for cause in the event of 1) a material breach of this Agreement, 2) misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or 3) the failure to perform services as directed by the CITY, that have not been cured with said 30 day cure period B. The CITY may also terminate this Agreement, without penalty, if funds to effect such continued payment are not appropriated. Termination for lack of appropriation shall be effective 30 days from the date of service of written notice of lack of appropriation. Upon termination for lack of appropriation, the CITY shall be relieved of any further obligation under this Agreement, except that deliverables shall be returned to the CONTRACTOR' s nearest facility in substantially the same condition in which delivered to the CITY, subject to normal wear and tear. C. Any services portion of this Agreement may be terminated by the CITY, without penalty, for convenience,with or without cause, upon service of written notice. Such termination will be effective 30 days from the date of service of written notice, or after such longer period as set forth in the notice. Upon termination of any services portion of this Agreement, the CITY shall be relieved of any further obligation under this Agreement except that CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed up to the effective date of the termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONTRACTOR's breach, if any. D. Termination shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. E. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR except for those documents considered confidential or proprietary to CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the 7 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONTRACTOR'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. F. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Ron Williams IT Manager Administrative Services City of National City 1243 National City Boulevard National City, CA 91950-4301 To CONTRACTOR: Gene Elwell Senior Account Executive Konica Minolta Business Solutions U.S.A., Inc. 5659 Cornerstone Court W. #200 San Diego, CA 92121 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 8 2012 Agreement: City of National City Konica Minolta Business Solutions USA. Inc. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 22 by the CONTRACTOR. 23. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. CONTRACTOR is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 24. OPTIMIZED PRINT SERVICES. A. The following terms and conditions apply to the service and maintenance of the leased and other equipment referred to as Optimized Print Service ("OPS") provided by CONRACTOR to CITY during the term of this Agreement for the equipment listed on Exhibit "A" ("Equipment") of the Agreement. 1. PAYMENT: Payment is pursuant to the payment terms provided under this Agreement. Compensation shall be limited as set forth in Section 4 of this Agreement, and the cost for all work performed pursuant to Optimized Print Services, combined with the cost for all work performed pursuant to the Agreement, shall not exceed the amount set forth in Section 4 of the Agreement. 2. METER READINGS: CONTRACTOR charges for each copy or print performed by the Equipment included in the Optimized Print Services contract, attached hereto as Exhibit "A". A copy or print shall be defined as the generation of any document or image on the Equipment. For purposes of this Agreement, all such uses of Equipment shall be 9 2012 Agreement: City of National City Konica Minolta Business Solutions USA. Inc. referenced herein as a "print". CITY agrees to pay for supplies and maintenance services based on KMBS's monitoring software meter readings. CITY shall not alter or attempt to alter actual meter reading. A monochrome print is one page of hard copy generated by printing, copying, faxing, or utilizing black toner only. A color print is one page of hard copy generated by printing, copying, faxing, or utilizing any amount of toner that is not black, even if it also uses black toner. Each 8 1/"x 11" print will be recorded as a single meter click. 11" x 17" prints count as double clicks. Duplexed prints shall be counted as two meter clicks. For models equipped with banner printing capabilities, the following meter click charges shall apply: 18"x 27" = 3 clicks; 27"x 36" = 4 clicks; 36"x 47" — 5 clicks. 3. SITE PREPARATION: CITY shall ensure that Equipment is placed in an environment that conforms with the manufacturer's specifications and requirements and will bear all cost and expense for any additional necessities required for installation such as telephone and electrical wiring, remodeling, and noise and power filters. Any electrical work external to the Equipment (i.e. associated peripheral equipment, power, transmission and phone lines, and modems) and equipment line cord is not covered by this Agreement. 4. SERVICE INCLUDED: In addition to the Scope of Services as provided in Section 2 of this Agreement, CONTRACTOR agrees to provide labor or routine, remedial and break/fix service as well as remedial parts. All part replacements shall be on an exchange basis with new or refurbished items. Unless otherwise indicated, normal business hours are 8:30 am to 5:00 pm, Monday through Friday, exclusive of holidays observed by KMBS. Overtime charges, at CONTRACTOR's then current rate, will be charged for all service calls outside normal business hours. In addition to any other rights hereunder, CONTRACTOR reserves the right to delete discontinued equipment from this Agreement if parts and or supplies become unavailable for discontinued equipment. 5. OPTIMIZED PRINT SERVICES DEVICE MONITORING: As a requirement to the service and maintenance provided herein, the CITY agrees to allow CONTRACTOR to install, monitoring, software on the CITY's network for the term of the contract for the purpose of automated meter collection, service alerts, and automated supplies replenishment notification. CITY agrees to not interfere with operation or sizable CONTRACTOR monitoring software. 6. ESCALATION: Unless otherwise stated in the Agreement, at the end of the first three years of this agreement and once each successive twelve month period, we may increase the service charges by a maximum of 10% of the existing charge. 7. NETWORK INTEGRATION: If Network Integration services are provided by KMBS, CITY warrants that the CONTRACTOR Digital Needs Analysis ("DNA") has been accurately completed and CONTRACTOR may rely on the information contained in the DNA in providing network integration services. CONTRACTOR reserves the right to assess additional charges for service due to CITY's modification of its network, software, or operating system(s). 8. SUPPLIES INCLUDED IN THE BASE/PRINT CHARGE: If the Konica Minolta Multifunctional ("MFP's") option on the front of this Agreement has been 10 2012 Agreement: City of National City Konica Minolta Business Solutions USA. Inc. selected, CONTRACTOR (or designated services) will provide CITY with supplies, including but not limited to toner, developer, copy cartridges, staples and PM kits ("Consumable Supplies") throughout the term of this Agreement for Konica Minolta MFP's listed on Exhibit "A". If the Konica Minolta desktop printer and/or non -Konica Minolta desktop printer option is selected, CONTRACTOR will provide CITY with supplies including OEM toner cartridges for Konica Minolta desktop printers, and "Compatible" toner cartridges for non -Konica Minolta desktop printers. CITY agrees that the Consumable Supplies are CONTRACTOR property until used by CITY. CITY will use Consumable Supplies only with the Equipment and run them to their cease -function point. CITY shall not remove the Consumable Supplies from the location designated as CITY's address on the first page of this Agreement. CITY will return any unused Consumable Supplies to CONTRACTOR at the end of this Agreement. CITY shall use reasonable care to store and protect CONTRACTOR Consumable Supplies located at CITY's location for CITY's convenience. CITY bears risk of loss of CONTRACTOR unused Consumable Supplies in the event of theft, fire, or other mishap. Should CITY's use of Consumable Supplies exceed the typical use pattern (as determined solely by CONTRACTOR) for these items by more than 50% per device under contract, or should CONTRACTOR, in its sole discretion, determine that Consumable Supplies are being abused in any fashion, CITY agrees that CONTRACTOR shall have the right to change the per page rate and minimum monthly charge for this contract. 9. "COMPATIBLE" TONER CARTRIDGES: For Non -Konica Minolta devices included in the contract, the CITY agrees to allow CONTRACTOR to utilize "Compatible" toner cartridges for supplies fulfillment. 10. CATRIDGE LIMITATIONS: Each device included in this contract will have a pre -determined maximum number of allowable cartridges included per year based on assessed volumes per device. Should the CITY exceed the maximum number of cartridges on any contracted device(s), additional cartridge charges determined by CONTRACTOR will be incurred. 11. TERMINATION: Termination of Optimized Print Services, in whole or in part, shall have no effect on any existing equipment lease agreement. Termination shall be governed by Section 20 of the Agreement. 25. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, statc or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. 11 2012 Agreement: City of National City Knnica Minolta Business Solutions USA. Inc. D. No Obligations to Third Parties. Except as otherwise expressly provided. herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. L Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. The terms and conditions of this Agreement, supplemented by (1) the terms and conditions of that certain MASTER SERVICE AGREEMENT FOR SERVICES OF INDEPENDENT CONTRACTOR (RFP/CONTRACT # 1715) (the "MSA"), which is attached hereto as Exhibit "B" and made a part hereof, (2) the teens and conditions of that certain CALIFORNIA PARTICIPATING ADDENDUM (7-09-36-01) (the "CPA"), which is attached hereto as Exhibit "C", (3) the WESTERN STATES CONTRACTING ALLIANCE GENERAL PROVISIONS (the "WSCA GENERAL PROVISIONS"), which is attached hereto as Exhibit "D", and (4) Exhibit "A", collectively represent the entire agreement of the CONTRACTOR and the CITY with respect to the subject matter hereof, and all agreements entered into prior hereto with respect to the subject matter hereof are revoked and superseded by this Agreement, and no representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein or in other contemporaneous written agreements. This Agreement may not be changed, modified or rescinded except in writing, signed by CONTRACTOR and the CITY, and any attempt at oral modification of this Agreement shall be void and of no effect. Notwithstanding any term or provision of the Agreement to the contrary, in the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of the MSA and CPA as described in Exhibits `B" and "C", the terms and provisions of this Agreement shall be controlling for all purposes and in all respects. Notwithstanding the foregoing, CONTRACTOR and the CITY hereby agree and acknowledge that (i) Section 21 — TERMINATION FOR NON - APPROPRIATION OF FUNDS, (ii) Section 22 - TERMINATION FOR THE CONVENIENCE OF THE STATE, (iii) Section 23 — TERMINATION FOR DEFAULT, (iv) Section 26 — LIMITATION OF LIABILITY, and (v) Section 28 — INDEMNIFICATION of the WSCA GENERAL PROVISIONS are each hereby rejected/deleted in their entirety. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) 12 2012 Agreement: City of National City Konica Minolta Business Solution USA. Inc. each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: n M'orrison, Mayor PROVED AS TO FORM: udia City Att aci mey a Silva KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC. (Corporation - signatures of two corporate officers required) By: By: (Print) (Title) (Name d/A-- I.77 C ��4 (Print) (Title) 13 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. Exhibit A Konica Minolta Proposal EXHIBIT A Current Fleet Cost vs. New Location Konica Minolta':` Recommendatlon; Service CPC Black White $ 0.0076 Service Color CPC, Finance C552 $ 0.0375 Copy Room CH1 C754 $ 0.0076 $ 0.0375 City Mgr/ City Attorney C452 $ 0.0081 $ 0.0382 Council/CH 2 C220 $ 0.0143 $ 0.0620 PD Traffic B223 $ 0.0136 PD Investigation B552 $ 0.0085 PD Records C654 $ 0.0076 $ 0.0375 PD Report Writing C552 $ 0.0076 $ 0.0375 Property/ Evidence C220 $ 0.0143 $ 0.0620 PD 2 Administration C654 $ 0.0076 $ 0.0375 HR C360 $ 0.0096 $ 0.0544 Community Service C754 $ 0.0076 $ 0.0375 Fire #34 C360 $ 0.0096 $ 0.0544 Fire #31 C360 $ 0.0096 $ 0.0544 Public Works B363 $ 0.0170 Library (2) C220 0.0143 0.062 Library (3)C360 0.0096 0.0544 Monochrome Desktop Printers $ 0.0193 Color Desktop Printers $ 0.0193 $ 0.1187 60 month Muncipal Lease (Monthly Payment) $ 4,178.04 Monthly Service * $ 1,653.98 Monthly Printer Service * $ 1,081.51 Library $ 1,570.85 Library Service $ 299.42 Total Monthly Cost $ 8,783.80: Revenue From Library $ (1,931.40) Revised Total Monthly Cost $ 6,852.40 Current Cost Equipment/Service $ 7,323.00 Printer Monthly Cost $ 1,787.51 Net Savings of New over Current $ 2,258.11 Savings from Printer Service Contract 414.98 *Estimated Service Cost based upon 201,746 Black White and 6,103 Current Copier Color usage *Estimated Printer Monthly Cost based upon Black White usage 37,123 and 3,062 Current Color usage The WSCA contract is a Cost per Copy (CPC) agreement with no committed volumes. Only paying for copies you use. Taxes not included. Includes Delivery, Installation and Training 14 New Library Konica Minolta Imaging SoiutEHIBIT A Staff Admin & Admin 2 Literacy & Wings Public Computer Lab Childrens Public Copy Room Average Monthly Current Unit Volume BW Color iMinolte Unit. CPC BW CPC Color 430 ST 5107 C360 430 DC's 11818 C360 N2w;Kanica' ': WC 24 7326 746 C360 426 ST 470 C220 426 ST 1350 C220 Estimated Public Service Cost Black White $ 96.36 Color $ 40.58 Total Public Cost $ 136.94 Estimated Staff Service Cost Black White $ 162.48 Color (Unknown) Total Monthly Service Cost $ 299.42 Equipment Lease Cost (Staff and Public) Includes: (5) new color copier, printer and scanners. New Coin Bill Cost Retrieval System 60 month lease $ New Library Total Cost $ Black White Color Total Montly Revenue Net Profit from Revenue 1,570.85 1,870.27 26071 746 26817 PublicCost. Per Copy 9146 $0.15 $1,371.90 746 $0.75 $559.50 $1,931.40 $ 0.0096 $ 0.0544 $ 0.0096 $ 0.0544 $ 0.0096 $ 0.0544 $ 0.0143 $ 0.0620 $ 0.0143 $ 0.0620 15 Exhibit A Desktop Printers Monochrome and Color Model Serial Number hp color LaserJet 5550 JPSC8110M5 HP Color LaserJet CP3525 CNCCB6508W HP Color LaserJet CP3525 CNCCB27105 HP Color LaserJet CP3525 CNCCC8Q0SQ HP Color LaserJet CP3525 CNCCB1L01B hp LaserJet 2430 CNGKC04535 hp LaserJet 2430 CNGKB01212 HP Lase rJet4050 Series USBB224981 HP LaserJet 4050 Series USCC094668 HP LaserJet 4100 Series USJNH17307 HP LaserJet 4100 Series USJNH17059 HP LaserJet 4100 Series USLND14145 HP LaserJet 4100 Series USBNG36341 HP LaserJet P2015N JPBFG03174 HP LaserJet P2055dn CNB9967254 HP LaserJet P2055dn CNB9N94016 HP LaserJet P2055dn CNB1740381 HP LaserJet P2055dn CNB9N94009 HP LaserJet P2055x CNB1740383 HP LaserJet P2055x VNB3T02664 HP LaserJet P3010 Series VNBCC4L4HG HP LaserJet P4015 CNDY854123 HP LaserJet P4015 CNDY853913 EXHIBIT A 16 EXHIBIT B Far Purchasing Usc Only: RFP/CONTRACT # 1715 MASTER SERVICE AGREEMENT FOR SERVICES OF INDEPENDENT CONTRACTOR A Contract between the Western States Contracting Alliance (WSCA) Acting by and through the State of Nevada Department of Administration Purchasing Division 515 E Musser Street, Room 300 Carson City NV 89701 Contact: Lyn Callison Telephone: (775) 684- 0198 • Fax: (775) 684-0188 and Konica Minolta Business Solutions USA Inc. 2120 Washington Blvd. Suite 450 Arlington VA 22204-5711 Contact: Kimberley Talbot Telephone: (703) 842-3231 • Fax: (703) 271-1188 Pursuant to Nevada Revised Statute (NRS) 277.100, NRS 277.110, NRS 333.162(1)(d), and NRS 333.480 the Chief of the Purchasing Division of Nevada is authorized to enter into cooperative group -contracting consortium. The Western States Contracting Alliance is a cooperative group -contracting consortium for state government departments, institutions, agencies and political subdivisions (i.e., colleges, school districts, counties, cities, etc.,) for the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Minnesota, Montana, Nevada, New Mexico, Oregon, South Dakota,. Utah, Washington and Wyoming. In consideration of the above premises, the parties mutually agree as follows: 1. REQUIRED APPROVAL. This contract shall not become effective until and unless approved by the Western States Contracting Alliance Board of Directors. 2. DEFINITIONS. "WSCA" means the Western States Contracting Alliance. "State" and/or "Lead State" means the State of Nevada and its state agencies, officers, employees and immune contractors as defined in NRS 41.0307. "Participating State(s)" means state(s) that have signed (arid not revoked) an Intent to Contract at the time of the award of this contract, or who have executed a Participating Addendum. "Buyer" means any WSCA agency or political subdivision participating under this contract. "Contractor" and/or Contracting Agency" means a person or entity that performs services and/or provides goods for WSCA .under the terms and conditions set forth in this contract. "Solicitation" means RFP 1715 incorporated herein as Attachment AA. "Fiscal Year" is defined as the period beginning July 1 and ending June 30 of the following year. 3. CONTRACT TERM. This contract shall be effective from June 1, 2009, upon execution by the State of Nevada on behalf of the Western States Contracting Alliance, sales may not be placed until the start Elective 04/07 Page 1 of 12 17 EXHIBIT B date set by a participation state in its Participation Addendum, to June 30 2012 with the option to extend for two (2) one (1) year terms, unless sooner terminated by either party as specified in paragraph (21). 4. CANCELLATION OF CONTRACT: NOTICE. Unless otherwise stated in the special terms and conditions, any contract entered into as a result of the Solicitation may be canceled by either party upon written notice sixty (60) days prior to the effective date of the cancellation. Further, any Participating State may cancel its participation upon thirty (30) clays written notice, unless otherwise limited or stated in the special terms and conditions of the Solicitation. Cancellation may be in whole or in part. Any cancellation under this provision shall not affect the rights and obligations attending orders outstanding at the time of cancellation, including any right of any Participating State to indemnification by the Contractor, rights of payment for goods/services delivered and accepted, and rights attending any warranty or default in performance in association with any order. Cancellation of the contract due to Contractor default may be immediate. 5. INCORPORATED DOCUMENTS. The parties agree that the scope of work shall he specifically described; this contract incorporates the following attachments in descending order of constructive precedence: ATTACHMENT AA: ATTACHMENT BB: ATTACHMENT CC ATTACHMENT DD: SOLICITATION # 1715 (Scope of Work) and AMENDMENT 1; SERVICE LEVEL AGREEMENT (SLA) WSCA FORMS INCLUDING ADDENDUM 1 CONTRACTORS RESPONSE A Contractor's attachment shall not contradict or supersede any WSCA specifications, terms or conditions without written evidence of mutual assent to such change appearing in this contract. 7. ASSENT. The parties agree that the terms and conditions listed on incorporated attachments of this contract are also specifically a part of this contract and are limited only by their respective order of precedence and any limitations specified. 8. BID SPECIFICATIONS. Contractor certifies that any deviation from the specifications in the scope of work, incorporated herein as part of Attachment AA, have been clearly indicated by Contractor in its response, incorporated herein as Attachment DD; otherwise, it will be considered that the bid is in strict compliance. Any BRAND NAMES or manufacturers' numbers are stated in the specifications are intended to establish a standard only and are not restrictive unless the Solicitation states "no substitute," and unless so stated, bids have been considered on other makes, models or brands having comparable quality, style, workmanship and performance characteristics. Alternate bids offering lower quality or inferior performance have not been considered. 9. ACCEPTANCE OR REJECTION OP BIDS, AND AWARD. WSCA has the right to accept or reject any or all bids or parts of bids, and to waive informalities therein. This contract is based the lowest responsive and responsible bid and meets the specifications of the Solicitation and terms and conditions thereof. Unless stated otherwise in the Solicitation, WSCA has the right to award items separately or by grouping items in a total lot. 10. BID SAMPLES. Any required samples have been specifically requested in the Solicitation. Samples, when required, have been furnished free of charge. Except for those samples destroyed or mutilated in testing, samples will be returned at a bidder's request, transportation collect. 11. CONSIDERATION. The parties agree that Contractor will provide the product services specified in paragraph (5) at a cost of $ Various Rates for Croups A and B Only per Attachment DD, Cost Proposal. Unless otherwise stated in the special terms and conditions, for the purpose of award, offers made in accordance with the Solicitation must be good and firm for a period of ninety (90) days from Effective 04/07 Page 2 of 12 18 EXHIBIT B the date of bid opening. Contracted prices represent ceiling prices for the supplies and services offered. The Contractor shall report to the Lead State any price reduction or discount, or other more favorable terms offered to any WSCA Purchasing Entity and the Contractor agrees to negotiate in good faith to re-establish ceiling prices or other more favorable terms and conditions applicable to future orders. Bid prices must remain firm for the full term of the contract. In the case of error in the extension of prices in the bid, the unit prices will govern. WSCA does not guarantee to purchase any amount under this contract. Estimated quantities in the Solicitation are for bidding purposes only and are not to be construed as a guarantee to purchase any amount. Unless otherwise stated in the special terms and conditions offers made in accordance with the Solicitation must be good and firm for a period of ninety (90) days from the date of bid opening. Bid prices must remain firm for the full term of the contract. In the case of error in the extension of prices in the bid, the unit prices will govern. If Contractor has quoted a cash discount based upon early payment; discounts offered for less than thirty (30) days have not been considered in making the award. The date from which discount time is calculated shall be the date a correct invoice is received or receipt of shipment, whichever is later; except that if testing is performed, the date shall be the date of acceptance of the merchandise. WSCA is not liable for any costs incurred by the bidder in proposal preparation. a. WSCA Administrative Fee. The Contractor will remit to the WSCA a WSCA Administrative Fee in the amount of one half of one percent (.5 %) of the total sales from this contract made payable to the "Western States Contracting Alliance". A statement verifying the total sales amount, incorporated herein as part of Attachment CC, must accompany the remittance. This remittance will be due not later than 30 days after the last day of each calendar quarter. 12. PAYMENT. Payment for completion of a contract is normally made within thirty (30) days following the date the entire order is delivered or the date a correct invoice is received, whichever is later. After forty-five (45) days the Contractor may assess overdue account charges up to a maximum rate of one (1) percent per month on the outstanding balance. Payments will he remitted by mail. Payments may be made via a Participating State's "Purchasing Card." 13. TAXES. Prices shall be exclusive of state sales and federal excise taxes. Where a Participating State is not exempt from sales taxes on sales within its state, the Contractor shall add the sales taxes on the billing invoice as a separate entry. Contractor will be responsible to pay all taxes, assessments, fees, premiums, permits, and licenses required by law. The Lead State's real property and personal property taxes are the responsibility of Contractor in accordance with NRS 361.157 and NRS 361.159. Contractor agrees to be responsible for payment of any such govemment obligations not paid by its subcontractors during perforrnance of this contract. Nevada may set-off against consideration due any delinquent government obligation in accordance with NRS 353C.190. 14. FINANCIAL OBLIGATIONS OF PARTICIPATING STATES. Financial obligations of Participating States are limited to the orders placed by the departments or other state agencies and institutions having available funds. Participating States incur no financial obligations on behalf of political subdivisions. Unless otherwise specified in the Solicitation, the resulting award(s) will be permissive. 15. ORDER NUMBERS. Contract order and purchase order numbers shall be clearly shown on all acknowledgments, shipping labels, packing slips, invoices, and on all correspondence. 16. REPORTS. The Contractor shall submit quarterly reports to the WSCA Contract Administrator showing the quantities and dollar volume of purchases by each Participating State, incorporated herein as part of Attachment CC. 17. DELIVERY. The prices bid shall be the delivered price to any WSCA state agency or political subdivision. All deliveries shall be F.O.B. destination with all transportation and handling charges paid by the Contractor. Responsibility and liability for loss or damage shall remain with the Contractor until final inspection and acceptance, when responsibility shall pass to the Buyer except as Effective 04/07 Page 3 of 12 19 EXHIBIT B to latent defects, fraud and Contractor's warranty obligations. The minimum shipment amount will be found in the special terms and conditions. Any order for less than the specified amount is to be shipped with the freight prepaid and added as a separate item on the invoice. Any portion of an order to be shipped without transportation charges that is back -ordered shall be shipped without charge. 18. HAZARDOUS CHEMICAL INFORMATION. The Contractor will provide one set of the appropriate material safety data sheet(s) and container label(s) upon delivery of a hazardous material to any Buyer. All safety data sheets and labels will be in accordance with each Participating State's requirements. 19. INSPECTIONS. Goods furnished under this contract shall be subject to inspection and test by the Buyer at times and places determined by the Buyer. If the Buyer finds goods furnished to be incomplete or in non-compliance with bid specifications, the Buyer may reject the goods and require Contractor to either correct them without charge or deliver them at a reduced price which is equitable under the circumstances. If Contractor is unable or refuses to correct such goods within a time deemed reasonable by the Buyer, the Buyer may cancel the order in whole or in part. Nothing in this paragraph shall adversely affect the Buyer's rights including the rights and remedies associated with revocation of acceptance under the Uniform Commercial Code. 20. INSPECTION & AUDIT. a. Books and Records. The Contractor will maintain, or supervise the maintenance of all records necessary to properly account for the payments made to the Contractor for costs authorized by this contract. Contractor agrees to keep and maintain under generally accepted accounting principles (GAAP) full, true and complete records, contracts, books, and documents as are necessary to fully disclose to WSCA, the State or United States Government, or their authorized representatives, upon audits or reviews, sufficient information to determine compliance with all state and federal regulations and statutes. b. Inspection & Audit. Contractor agrees that the relevant books, records (written, electronic, computer related or otherwise), including, without limitation, relevant accounting procedures and practices of Contractor or its subcontractors, financial statements and supporting documentation, and documentation related to the work product shall be subject, at any reasonable time, to inspection, examination, review, audit, and copying at any office or location of Contractor where such records may be found, with or without notice by WSCA; the United States Government; the State Auditor or its contracted examiners, the Department of Administration, Budget Division, the Nevada State Attorney General's Office or its Fraud Control Units, the State Legislative Auditor, and with regard to any federal funding, the relevant federal agency, the Comptroller General, the General Accounting Office, the Office of the Inspector General, or any of their authorized representatives. All subcontracts shall reflect requirements of this paragraph. c. Period of Retention. All books, records, reports, and statements relevant to this contract must be retained a minimum four (4) years after the contract terminates or or until all audits initiated within the four (4) years have been completed, whichever is later, and for five (5) years if any federal funds are used in the contract. The retention period runs from the date of payment for the relevant goods or services by the State, or from the date of termination of the Contract, whichever is later. Retention time shall be extended when an audit is scheduled or in progress for a period reasonably necessary to complete an audit and/or to complete any administrative and judicial litigation which may ensue. Effective 04/07 Page 4of12 20 EXHIBIT B 21. CONTRACT TERMINATION. Any of the following events shall constitute cause for WSCA to declare Contractor in default of the contract: (1) nonperformance of contractual requirements; and/or (2) a material breach of any term or condition of this contract. WSCA shall issue a written notice of default providing a period in which Contractor shall have an opportunity to cure. Time allowed for cure shall not diminish or eliminate Contractor's liability for liquidated or other damages. If the default remains, after Contractor has been provided the opportunity to cure, WSCA may do one or more of the following: (1) exercise any remedy provided by law; (2). terminate this contract and any related contracts or portions thereof; (3) impose liquidated damages; and/or (4) suspend Contractor from receiving future bid solicitations. Winding Up Affairs Upon Termination. In the event of termination of this contract for any reason, the parties agree that the provisions of this paragraph survive termination: i. The parties shall account for and properly present to each other all claims for fees and expenses and pay those which are undisputed and otherwise not subject to set off under this contract. Neither party may withhold performance of winding up provisions solely based on nonpayment of fees or expenses accrued up to the time of termination; ii. Contractor shall satisfactorily complete work in progress at the agreed rate (or a pro rata basis if necessary) if so requested by WSCA; iii. Contractor shall execute any documents and take any actions necessary to effectuate an assignment of this contract if so requested by WSCA; iv. Contractor shall preserve, protect and promptly deliver into WSCA's possession all proprietary information in accordance with paragraph (31). 22. REMEDIES. Except as otherwise provided for by law or this contract, the rights and remedies of the parties shall not be exclusive and are in addition to any other rights and remedies provided by law or equity, including, without limitation, actual damages, and to a prevailing party reasonable attorneys' fees and costs. It is specifically agreed that reasonable attorneys' fees shall include without limitation $125 per hour for attorneys employed by the Lead State. Nevada may set off consideration against any unpaid obligation of Contractor to any State agency in accordance with NRS 353C.190. 23. LIMITED LIABILITY. Nevada will not waive and intends to assert available NRS chapter 41 liability limitations in all cases. Contract liability of both parties shall not be subject to punitive damages. Liquidated damages shall not apply unless otherwise specified in the incorporated attachments. Damages for any breach by the Lead State shall never exceed the amount of funds appropriated for payment under this contract, but not yet paid to Contractor, for the fiscal year budget in existence at the time of the breach. Damages for any Contractor breach shall not exceed 150% of the contract maximum "not to exceed" value. Contractor's tort liability shall not be limited. 24. FORCE MAJEURE. Neither party to this contract shall be deemed to be in violation of this contract if it is prevented from performing any of its obligations hereunder due to strikes, failure of public transportation, civil or military authority, act of public enemy, accidents, fires, explosions, or acts of God, including, without limitation, earthquakes, floods, winds, or storms. In such an event the intervening cause must not be through the fault of the party asserting such an excuse, and the excused party is obligated to promptly perform in accordance with the terms of the contract after the intervening cause ceases. WSCA may terminate this contract after determining such delay or default will reasonably prevent successful performance of the contract., 25. INDEMNIFICATION. To the fullest extent permitted by law, Contractor shall indemnify, hold harmless and defend, not excluding the State's right to participate, Nevada from and against all liability, claims, actions, damages, losses, and expenses, including, without limitation, reasonable attorneys' fees Effective 04/07 Page 5 of 12 21 EXHIBIT B and costs, arising out of any alleged negligent or willful acts or omissions of Contractor, its officers, employees and agents. The Contractor shall release, protect, indemnify and hold WSCA and the respective states and their officers, agencies, employees, harmless from and against any damage, cost or liability, including reasonable attorney's fees for any or all injuries to persons, property or claims for money damages arising from acts or omissions of the contractor, his employees or subcontractors or volunteers. 26. INSURANCE SCHEDULE. Unless expressly waived in writing by the Lead State or Participating States, Contractor, as an independent contractor and not an employee of the Lead State or Participating States, must carry policies of insurance in amounts specified in this Insurance Schedule and/or any Insurance Schedule agreed by Contractor and a Participating State via a participating addendum, and pay all taxes and fees incident hereunto. The Lead State and Participating States shall have no liability except as specifically provided in the contract. The Contractor shall not commence work before: 1) Contractor has provided the required evidence of insurance to the Lead State. The Lead State's approval of any changes to insurance coverage during the course of performance shall constitute an ongoing condition subsequent this contract. Any failure of the Lead State to timely approve shall not constitute a waiver of the condition. Insurance Coverage: The Contractor shall, at the Contractor's sole expense, procure, maintain and keep in force for the duration of the contract the following insurance conforming to the minimum requirements specified below. Unless specifically stated herein or otherwise agreed to by the Lead State, the required insurance shall be in effect prior to the commencement of work by the Contractor and shall continue in force as appropriate until the latter of: I . Final acceptance by the Lead State of the completion of this contract; or 2. Such time as the insurance is no longer required by the Lead State under the terms of this contract. Any insurance or self-insurance available to the State shall be excess of and non-contributing with any insurance required from Contractor. Contractor's insurance policies shall apply on a primary basis. Until such time as the insurance is no longer required by the Lead State, Contractor shall provide the Lead State with renewal or replacement evidence of insurance no less than thirty (30) days before the expiration or replacement of the required insurance. If at any time during the period when insurance is required by the contract, an insurer or surety shall fail to comply with the requirements of this contract, as soon as Contractor has knowledge of any such failure, Contractor 'shall immediately notify the State and immediately replace such insurance or bond with an insurer meeting the requirements. Workers' Compensation and Employer's Liability Insurance 1) Contractor shall provide proof of worker's compensation insurance. 2) Employer's Liability insurance with a minimum limit of $500,000 each employee per accident for bodily injury by accident or disease. Commercial General Liability Insurance 1) Minimum Limits required: $2,000,000.00 General Aggregate $1,000,000.00 Products & Completed Operations Aggregate $1,000,000.00 Personal and Advertising Injury $1,000,000.00 Each Occurrence 2) Coverage shall be on an occurrence basis and shall be at least as broad as ISO 1996 form CG 00 01 (or a substitute form providing equivalent coverage); and shall cover liability arising from Effective 04/07 Page 6 o(12 22 EXHIBIT B premises, operations, independent contractors, completed operations, personal injury, products, civil lawsuits, Title VII actions and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). Business Automobile Liability Insurance 1) Minimum Limit required: $1,000,000.00. Each Occurrence for bodily injury and property damage. 12) Coverage shall be for "any auto" (including owned, non -owned and hired vehicles). The policy shall be written on ISO form CA 00 01 or a substitute providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. Professional Liability Insurance 1) Minimum Limit required: $ Waived. Each Claim 2) Retroactive date: Prior to commencement of the performance of the contract 3) Discovery period: Three (3) years after termination date of contract. 4) A certified copy of this policy may be required. Umbrella or Excess Liability Insurance 1) May be used to achieve the above minimum liability limits. 2) Shall be endorsed to state it is "As Broad as Primary Policy" Commercial Crime Insurance Minimum Limit required: $Waived. Per Loss for Employee Dishonesty This insurance shall be underwritten on a blanket form amending the definition of "employee" to include all employees of the Vendor regardless of position or category. General Requirements: b. Waiver of Subrogation: Each liability insurance policy shall provide for a waiver of subrogation as to additional insureds. c. Cross -Liability: All required liability policies shall provide cross -liability coverage as would be achieve under the standard ISO separation of insureds clause. d. Deductibles and Self -Insured Retentions: Insurance maintained by Contractor shall apply on a first dollar basis without application of a deductible or self -insured retention unless otherwise specifically agreed to by the Lead State or Participating States. Such approval shall not relieve Contractor from the obligation to pay any deductible or self -insured retention. Any deductible or self -insured retention shall not exceed fi-o4 thousand dollars ($50,000.00) per occurrence, unless otherwise approved. C e. Policy Cancellation: Except for ten (10) days notice for non-payment of premium, each insurance policy shall be endorsed to state that; without thirty (30) days prior written notice to the Lead State, the policy shall not be canceled, non -renewed or coverage and /or limits reduced or materially altered, and shall provide that notices required by this paragraph shall be sent by certified mailed to the address identified on page 1 of the contract. f. Approved Insurer: Each insurance policy shall be: 1) Issued by insurance companies authorized to do business in the Lead State and Participating States or eligible surplus lines insurers acceptable to the Lead State and Participating States and having agents upon whom service of process may be made, and 2) Currently rated by A.M. Best as "A- VII" or better. Effective 044.17 Page 7 of 12 23 EXHIBIT B Evidence of Insurance: Prior to the start of any Work, Contractor must provide the following documents to the Lead State: 1) Certificate of Insurance: The Acord 25 Certificate of Insurance form or a form substantially similar must be submitted to the State to evidence the insurance policies and coverages required of Contractor. 2) Schedule of Underlying Insurance Policies: If Umbrella or Excess policy is evidenced to comply with minimum limits, a copy of the Underlyer Schedule from the Umbrella or Excess insurance policy may be required. Review and Approval: Documents specified above must be submitted for review and approval by the Lead State prior to the commencement of work by Contractor. Neither approval by the Lead State nor failure to disapprove the insurance furnished by Contractor shall relieve Contractor of Contractor's full responsibility to provide the insurance required by this contract. Compliance with the insurance requirements of this contract shall not limit the liability of Contractor or its sub -contractors, employees or agents to the Lead State or others, and shall be in addition to and not in lieu of any other remedy available to the Lead State or Participating States under this contract or otherwise. The Lead State reserves the right to request and review a copy of any required insurance policy or endorsement to assure compliance with these requirements. Mail all required insurance documents to the Lead State identified on page one of the contract. 27. COMPLIANCE W[TH LEGAL OBLIGATIONS. Any and all supplies, services and equipment bid and furnished shall comply fully with all applicable Federal and State laws and regulations. Contractor shall procure and maintain for the duration of this contract any state, county, city or federal license, authorization, waiver, permit, qualification or certification required by statute, ordinance, law, or regulation to be held by Contractor to provide the goods or services required by this contract. The Lead State may set-off against consideration due any delinquent government obligation in accordance with NRS 353C.190. 28. WAIVER OF BREACII. Failure to declare a breach or the actual waiver of any particular breach of the contract or its material or nonmaterial teams by either party shall not operate as a waiver by such party of any of its rights or remedies as to any other breach. 29. SEVERABILITY. If any provision of this contract is declared by a court to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected; and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the particular provision held to be invalid. 30. ASSIGNMENT/DELEGATION. To the extent that any assignment of any right under this contract changes the duty of either party, increases the burden or risk involved, impairs the chances of obtaining the performance of this contract, attempts to operate as a novation, or includes a waiver or abrogation of any defense to payment by State, such offending portion of the assignment shall be void, and shall be a breach of this contract. Contractor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this contract, in whole or in part, without the prior written approval of the WSCA Contract Administrator. Effective 04/07 Page 8 of 12 24 • EXHIBIT B 31. OWNERSHIP OF PROPRIETARY INFORMATION. Any reports, histories, studies, tests, manuals, instructions, photographs, negatives, blue prints, plans, maps, data, system designs, computer code (which is intended to be consideration under the contract), or any other documents or drawings, prepared or in the course of preparation by Contractor (or its subcontractors) in performance of its obligations under this contract shall be the exclusive property of WSCA and all such materials shall be delivered into WSCA possession by Contractor upon completion, termination, or cancellation of this contract. Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than performance of Contractor's obligations under this contract without the prior written consent of WSCA. Notwithstanding the foregoing, WSCA shall have no proprietary interest in any materials licensed for use that are subject to patent, trademark or copyright protection. 32. PATENTS, COPYRIGHTS, ETC. The Contractor shall release, indemnify and hold WSCA, the State, and Participating States and their officers, agents and employees harmless from liability of any kind or nature, including the Contractor's use of any copyrighted or un-copyrighted composition, secret process, patented or unpatented invention, article or appliance furnished or used in the performance of this contract. 33. PUBLIC RECORDS. Pursuant to NRS 239.010, information or documents received from Contractor may be open to public inspection and copying. The State will have the duty to disclose unless a particular record is made confidential by law or a common law balancing of interests. Contractor may label specific parts of an individual document as a "trade secret" or "confidential" in accordance with NRS 333.333, provided that Contractor thereby agrees to indemnify and defend the State for honoring such a designation. The failure to so label any document that is released by the State shall constitute a complete waiver of any and all claims for damages caused by any release of the records. 34. CONFIDENTIALITY. Contractor shall keep confidential all information, in whatever form, produced, prepared, observed or received by Contractor to the extent that such information is confidential by law or otherwise required by this contract. 35. NONDISCRIMINATION. Contractor agrees to abide by the provisions of Title VI and Title VII of the Civil Rights Act of 1964 (42 USC 2000e), which prohibit discrimination against any employee or applicant for employment, or any applicant or recipient of services, on the basis of race, religion, color, or national origin; and further agrees to abide by Executive Order No. 11246, as amended, which prohibits discrimination on basis of sex; 45 CFR 90 which prohibits discrimination on the basis of age, and Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990 which prohibits discrimination on the basis of disabilities. Contractor further agrees to furnish information and reports to requesting Participating Entities, upon request, for the purpose of determining compliance with these statutes. Contractor agrees to comply with each individual Participating State's certification requirements, if any, as stated in the special terms and conditions. This contract may be canceled if the Contractor fails to comply with the provisions of these laws and regulations. Contractor must include this provision in very subcontract relating to purchases by the States to insure that subcontractors and vendors are bound by this provision. 36. FEDERAL FUNDING. In the event federal funds are used for payment of all or part of this contract: a. Contractor certifies, by signing this contract, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. This certification is made pursuant to the regulations implementing Executive Order 12549, Debarment and Suspension, 28 C.F.R. pt. 67, § 67.510, as published as pt. VII of the May 26, 1988, Federal Register (pp. 19160-19211), and any relevant program -specific regulations. This provision shall be required of every subcontractor receiving any payment in whole or in part from federal funds. Effective 04/07 Page 9 of 12 25 EXHIBIT B b. Contractor and its subcontractors shall comply with all terms, conditions, and requirements of the Americans with Disabilities Act of 1990 (P.L. 101-136), 42 U.S.C. 12101, as amended, and regulations adopted thereunder contained in 28 C.F.R. 26.101-36.999, inclusive, and any relevant program -specific regulations. c. Contractor and its subcontractors shall comply with the requirements of the Civil Rights Act of 1964, as amended, the Rehabilitation Act of 1973, P.L. 93-112, as amended, and any relevant program -specific regulations, and shall not discriminate against any employee or offeror for employment because of race, national origin, creed, color, sex, religion, age, disability or handicap condition (including AIDS and AIDS -related conditions.) 37. LOBBYING. The parties agree, whether expressly prohibited by federal law, or otherwise, that no funding associated with this contract will be used for any purpose associated with or related to lobbying or influencing or attempting to lobby or influence for any purpose the following: a. Any federal, state, county or local agency, legislature, commission, counsel or board; b. Any federal, state, county or local legislator, commission member, counsel member, board member, or other elected official; or c. Any officer or employee of any federal, state, county or local agency; legislature, commission, counsel or board. 38. NON -COLLUSION. Contractor certifies that this contract and the underlying bid, have been arrived at independently and have been without collusion with, and without any agreement, understanding or planned common course of action with, any other vendor of materials, supplies, equipment or services described in the invitation to bid, designed to limit independent bidding or competition. 39. WARRANTIES. a. Uniform Commercial Code. The Contractor acknowledges that the Uniform Commercial Code applies to this contract. In general, the contractor warrants that: (a) the product will do what the salesperson said it would do, (h) the product will live up to all specific claims that the manufacturer makes in their advertisements, (c) the product will be suitable for the ordinary purposes for which such product is used, (d) the product will be suitable for any special purposes that the Buyer has relied on the Contractor's skill or judgment to consider. b. General Warranty. Contractor warrants that all services, deliverables, and/or work product under this contract shall be completed in a workmanlike manner consistent with standards in the trade,. profession, or industry; shall conform to or exceed the specifications set forth in the incorporated attachments; and shall be fit for ordinary use, of good quality, with no material defects. c. System Compliance. Contractor warrants that any information system application(s) shall not experience abnormally ending and/or invalid and/or incorrect results from the application(s) in the operating and testing of the business of the State. This warranty includes, without limitation, century recognition, calculations that accommodate same century and multicentury formulas and data values and date data interface values that reflect the century. 40. CONFLICT OF INTEREST. Contractor certifies that it has not offered or given any gift or compensation prohibited by the state laws of any WSCA participants to any officer or employee of WSCA or participating states to secure favorable treatment with respect to being awarded this contract. 41. INDEPENDENT CONTRACTOR. Contractor shall be an independent contractor, and as such shall have no authorization, express or implied to bind WSCA or the respective states to any agreements, settlements, liability or understanding whatsoever, and agrees not to perform any acts as agent for WSCA or the states, except as expressly set forth herein. Effective 04/07 Page 10 of 12 26 EXHIBIT B 42. POLITICAL SUBDIVISION PARTICIPATION. Participation under this contract by political subdivisions (i.e., colleges, school districts, counties, cites, etc.,) of the WSCA Participating States shall be voluntarily determined by the political subdivision. The Contractor agrees to supply the political subdivisions based upon the same terms, conditions and prices. 43. PROPER AUTHORITY. The parties hereto represent and warrant that the person executing this contract on behalf of each party has full power and authority to enter into this contract. Contractor acknowledges that as required by statute or regulation this contract is effective only after approval by the WSCA Board of Directors and only for the period of time specified in the contract. Any services performed by Contractor before this contract is effective or after it ceases to be effective are performed at the sole risk of Contractor. The Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction (contract) by any governmental department or agency. 44. GOVERNING LAW; JURISDICTION. This contract and the rights and obligations of the parties hereto shall be governed and construed in accordance with the laws of the state of Nevada. without giving effect to any principle of conflict -of -law that would require the application of the law of any other jurisdiction. The parties consent to the exclusive jurisdiction of the First Judicial District Court, Carson City, Nevada for enforcement of this contract. The construction and effect of any Participating Addendum or order against the contract(s) shall be governed by and construed in accordance with the laws of the Participating State. Venue for any claim, dispute or action concerning an order placed against the contract(s) or the effect of a Participating Addendum or shall be in the Purchasing State. 45. SIGNATURES IN COUNTERPART. Contract may be signed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one in the same instrument. 46. ENTIRE CONTRACT AND MODIFICATION. This contract and its integrated attachment(s) constitute the entire agreement of the parties and such are intended as a complete and exclusive statement of the promises, representations, negotiations, discussions, and other agreements that may have been made in connection with the subject matter hereof Unless an integrated attachment to this contract specifically displays a mutual intent to amend a particular part of this contract, general conflicts in language between any such attachment and this contract shall be construed consistent with the terms of this contract. The terms of this contract shall not be waived, altered, modified, supplemented or amended in any manner whatsoever without prior written approval of the WSCA Contract Administrator. IN WITNESS WHEREOF, the parties hereto have caused this contract to be signed and intend to be legally bound thereby. Effective 04/07 Pose 11 of /2 27 EXHIBIT B ractor's Signature Signature Greg Sfnith, Administrator, State of Nevada Approved as to form by: avw� 6-00e. C h 1ttiA+. \ lSI AMA tb Date Independent's Contractor's Title Date Title APPROVED BY WSCA BOARD OF DIRECTORS On //2), 3/4 (Date) On 2- 3 U T Deputy tlarne General for Attorney General (Date) Effective 04/07 Page 11 of 17 28 EXHIBIT C CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNCTION COPIERS & RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. MASTER PRICE AGREEMENT 7-09-36-01 1. Scope: This Participating Addendum covers the rental, lease or purchase of Multifunction Copier & Related Software for all State Agencies and will include all California political subdivisions/local governments. A subdivision/local government is defined as any city, county, city and county, district, or other local governmental body or corporation, including the California State Universities (CSU) and University of California (UC) systems, K-12 schools and community colleges empowered to expend public funds. Each political subdivision/local government should make its own determination whether the WSCA program is consistent with its procurement policies and regulations. STATE AGENCIES ARE RESTRICTED FROM USING THIS WSCA CONTRACT IN ACCORDANCE WITH MANAGEMENT MEMO #05-11, EXCEPT FOR THOSE ITEMS/CATEGORIES NOT OFFERED UNDER CALIFORNIA'S STATEWIDE COMMODITY CONTRACT FOR MULTIFUNCTION COPIER & RELATED SERVICES. IF ANY STATE DEPARTMENT WANTS TO USE THE CONTRACT TO PURCHASE ITEMS NOT ON THE CALIFORNIA STATEWIDE COMMODITY CONTRACT FOR MULTIFUNCTION COPIER & RELATED SERVICES, THEY MUST COMPLETE A STATEWIDE CONTRACT EXEMPTION REQUEST FORM SIGNED BY THEIR PROCUREMENT AND CONTRACTING OFFICIER (PCO) OR PURCHASING AUTHORITY CONTACT (PAC) AND SUBMIT IT TO THE DEPARTMENT OF GENERAL SERVICES (DGS) FOR APPROVAL. PLEASE SEND ALL EXEMPTION REQUEST •TO THE ATTENTION OF THE WSCA CONTRACT ADMINISTRATOR. INFORMATION ABOUT THE STRATEGICALLY SOURCED COPIER, DIGITAL & ASSOCIATED SERVICES CONTRACTS IS AVAILABLE AT: www.pd.clas.camov/StratSourcinci/MROcontract.htrn THE SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING ARRA FUNDS APPLY TO THE ORDERING AGENCY. IF OR WHEN KONICA MINOLTA, AS A VENDOR, IS NOTIFIED BY ORDERING AGENCY THAT A SPECIFIC PURCHASE OR PURCHASES ARE BEING MADE WITH ARRA FUNDS, KONICA MINOLTA AGREES TO COMPLY WITH THE DATA ELEMENT AND REPORTING REQUIREMENTS THAT ARE LEGALLY REQUIRED OF PROVIDERS OF GOODS AND RELATED SERVICES. KONICA MINOLTA, AS IT RELATES TO PURCHASES UNDER THIS CONTRACT IS NOT A SUBCONTRACTOR OR SUBGRANTEE, BUT SIMPLY A PROVIDER OF GOODS AND RELATED SERVICES 2. Leasing, Rental & Purchase Funding to purchase or lease products available under this contract may be available to State agencies via the GS $Mart (purchases) or Lease $Mart program. Local agencies are able to take advantage of all options in the WSCA Master Price Agreement without restrictions. 3. Changes: For usage under this Participating Addendum by any Eligible Entity listed in Section 1, Scope, the following Changes apply: a. The California General Provisions (CAGP) (GSPD-4011T based on April 12, 2007 standard) for Western States Contracting Alliance (WSCA) Multifunction Copiers & Related Software as attached become a part of this Participating Addendum. b. The California General Provisions (CAGP) shall prevail if'there is a conflict between the terms and conditions of the contractor's WSCA State of Nevada, Master Price Agreement, packaging, invoices, catalogs, brochures and technical data sheets. c. State of Nevada, Master Price Agreement number 1715 changed for California to Contract Number 7-09-36-01. d. Delivery: As negotiated between agency and contractor and included in the purchase order, or as otherwise stipulated in the contract. Revised 8/28/08 Page 1 of 4 29 EXHIBIT C CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNCTION COPIERS & RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. MASTER PRICE AGREEMENT 7-09-36-01 f. DGS Termination of Contract: The State may terminate this contract at any time upon 30 day prior written notice. Upon termination or other expiration of this contract, each party will assist the other party in orderly termination of the contract and the transfer of all assets, tangible and intangible, as may facilitate the orderly, nondisrupted business continuation of each party. This provision shall not relieve the contractor of the obligation to perform under any purchase order or other similar ordering document executed prior to the termination becoming effective. g. Reports & Administrative Fee: Contractor shall submit report to the California Contract Administrator for all California purchases providing the following information: Agency Name Purchase Order Number Purchase Order Date WSCA Contract Number WSCA Administrative Fee Dollar Amount Agency Contact Name Agency Address Agency Telephone Number Total Dollars for the quarter The Contractor shall submit a check, in addition to the report, payable to the State of California, Contract Administrator for the calculated administrative fee for an amount equal to one percent (0.01) of the sales for the quarterly period. This fee shall be included as an adjustment to contractors WSCA pricing and not invoiced or charged to the purchasing entity. Payment of the administrative fee by Contractor due Irrespective of status of payments on orders from users to Contractor. A report is due even when there is no activity. Any report that does not follow the required format or that excludes information will be deemed incomplete. Failure to submit reports and fees on a timely basis shall constitute grounds for suspension of this agreement. Reports and fee delivery will be in accordance with the following schedule. Calendar Quarter 1 (JUL 1 to SEP 30) Calendar Quarter 2 (OCT 1 to DEC 31) Calendar Quarter 3 (JAN 1 to MAR 31) Calendar Quarter 4 (APR 1 to JUN 30) Due OCT 31 Due JAN 31 Due APR 30 Due JUL 31 The administrative fee check and report should be submitted to the following address: Cynthia Okoroike Department of General Services Procurement Division Multiple Award Program - WSCA 707 Third Street, 2nd Floor, MS # 202, West Sacramento, CA 95605-2811 h. The primary state government contact for this Participating Addendum is as follows: Department of General Services, Procurement Division Multiple Award Program - WSCA 707 Third Street, 2nd Floor, MS # 202 West Sacramento, CA 95605 Revised 8/28/08 Page 2 of 4 30 EXHIBIT C CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNCTION COPIERS &RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. MASTER PRICE AGREEMENT 7-09-36-01 Contact: Cynthia Okoroike E-mail: cvnthia.okoroikeadgs.ca.gov Phone: (916) 375-4389 Fax: (916) 375-4663 Lead State: Name: Lyn Callison Address: 515 East Musser Street Telephone: (775) 684-0198 Fax: (775) 684-0188 E-mail: lcalliso@purchasing.state.nv.us Contractor's Contact: Name: Kim Talbot Address: 2120 Washington Boulevard, Suite 450, Arlington, VA 22204 Telephone: (703) 842-3213 Fax: (703) 271-1188 E-mail: talbotk@kmbs.konicaminolta.us i. The primary Konica Minolta Business Solution U.S.A, Inc. CUSTOMER contact for this Participating Addendum is as follows: J• Konica Minolta Business Solution U.S.A, Inc. Address: 2120 Washington Boulevard, Suite 450 Arlington, VA 22204 Contact: Michelle Lovely E-Mail: mlovelv@kmbs.konicaminolta.us Phone: (303) 717-3108 Fax: (703) 271-1188 Price Agreement Number: The Master Price Agreement number for the Participating State is 7-09-36-01. The Master Price Agreement Number MUST be shown on all Purchase Orders issued against this Master Price Agreement. k. Effective Dates: This Participating Addendum shall be effective upon approval by the Department of General Services and will continue until the End Date of the Master Price Agreement. Lead State amendments to extend the term date are automatically incorporated into this Participating Addendum unless terminated early in accordance with the terms and conditions of the Master Price Agreement or this Participating Addendum. Revised 8/28/08 Page 3 of 4 31 EXHIBIT C CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNCTION COPIERS & RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. MASTER PRICE AGREEMENT 7-09.36-01 I. Servicing Subcontractors: Please use web site below and type in zip code: http://kmbsarms.konicaminolta.us/wh eretobuv/home. i spx?productCategory=Office%2U Systems&printerBrand=&howToBuy=&howManv. &cat=&subcat=&model=&wtbPro dLine. This Addendum and the Price Agreement together with its exhibits and/or amendments, set forth the entire agreement between the parties with respect to the subject matter of all previous communications, representations or agreements, whether oral or written, with respect to the subject matter hereof. Terms and conditions inconsistent with, contrary or in addition to the terms and conditions of this Addendum and the Price Agreement, together with its exhibits and/or amendments, shall not be added to or incorporated into this Addendum or the Price Agreement and its exhibits and/or amendments, by any subsequent purchase order or otherwise, and any such attempts to add or incorporate such terms and conditions are hereby rejected. The terms and conditions of this Addendum and the Price Agreement and its exhibits and/or amendments shall prevail and govern in the case of any such inconsistent or additional terms. By Signing below Konica Minolta Business Solution U.S.A, Inc. agrees to offer the same products/and or services as on the State of Nevada at prices equal to or lower than the prices on this contract. IN WITNESS WHEREOF, the parties have executed this Participating Addendum as of the date of execution by both parties below. State of California: By: Name: Jim Butler Title: Deputy Director Date: //7U/U GENERAL SERVICES LEGAL SERVICES Revised 8/28/08 Page 4 of 4 Konica Mi 'lta Business Sol (*n U. .A, Inc. By. utr■ LT Title: Date: 32 EXHIBIT D - GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS 1. DEFINITIONS: Unless otherwise specified in the Statement of Work the following terms shall be given the meaning shown, unless context requires otherwise. "Acceptance Tests" means those tests performed during the Performance Period which are intended to determine compliance of Equipment and Software with the specifications and all other Attachments incorporated herein by reference and to determine the reliability of the Equipment. "Application Program" means a computer program which Is Intended to be executed for the purpose of performing useful work for the user of the information being processed. Application programs are developed or otherwise acquired by the user of the Hardware/Software system, but they may be supplied by the Contractor. "Attachment" means a mechanical, electrical, or electronic interconnection to the Contractor -supplied Machine or System of Equipment, manufactured by other than the original Equipment manufacturer, that is not connected by the Contractor. "Business entity" means any individual, business, partnership, joint venture, corporation, S-corporation, limited liability corporation, limited liability partnership, sole proprietorship, joint stock company, consortium, or other private legal entity recognized by statute. "Buyer" means the State's authorized contracting official. "Commercial Software" means Software developed or regularly used that: (i) has been sold, leased, or licensed to the general public; (II) has been offered for sale, lease, or license to the general public; (Iii) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, cr license in time to satisfy the delivery requirements of this Contract; or (iv) satisfies a criterion expressed in (i), (ii), or (iii) above and would require only minor modifications to meet the requirements of this Contract. "Contract" means this Contract or agreement (including any purchase order), by whatever name known or in whatever format used. "Custom Software" means Software that does not meet the definition of Commercial Software. "Contractor" means the Business Entity with whom the State enters into this Contract. Contractor shall be synonymous with "supplier", "vendor" or other similar term. "Data Processing Subsystem" means a complement of Contractor-fumished Individual Machines, including the necessary controlling elements (or the functional equivalent) and Operating Software, If any, which are acquired to operate as an integrated group, and which are interconnected entirely by Contractor -supplied power and/or signal cables; e.g., direct access controller and drives, a cluster of terminals with their controller, etc. "Data Processing System (System)" means the total complement of Contractor -furnished Machines, including one or more central processors (or instruction processors) and Operating Software, which are acquired to operate as an integrated group. "Deliverables" means Goods, Software, Information Technology, telecommunications technology, and other items (e.g. reports) to be delivered pursuant to this Contract, including any such items furnished incident to the provision of services. "Designated CPU(s)" means for each product, if applicable, the central processing unit of the computers or the server unit, including any associated peripheral units. If no specific "Designated CPU(s)" are specified on the, Contract, the term shall mean any and all CPUs located at the site Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) specified therein. "Documentation" means nonproprietary manuals and other printed materials necessary or useful to the State in its use or maintenance of the Equipment or Software provided hereunder. Manuals and other printed materials customized for the State hereunder constitute Documentation only to the extent that such materials are described in or required by the Statement of Work. "Equipment" is an all-inclusive term which refers either to individual Machines or to a complete Data Processing System or subsystem, including its Hardware and Operating Software (if any). "Equipment Failure" is a malfunction in the Equipment, excluding all external factors, which prevents the accomplishment of the Equipment's intended function(s). If microcode or Operating Software residing in the Equipment is necessary for the proper operation of the Equipment, a failure of such microcode or Operating Software which prevents the accomplishment of the Equipment's intended functions shall be deemed to be an Equipment Failure. "Facility Readiness Date" means the date specified in the Statement of Work by which the State must have the site prepared and available for Equipment delivery and installation. "Goods" means all types of tangible personal property, including but not limited to materials, supplies, and Equipment (including "computer and telecommunications Equipment). "Hardware" usually refers to computer Equipment and is contrasted with Software. See also Equipment. "Installation Date" means the date specified in the Statement of Work by which the Contractor must have the ordered Equipment ready (certified) for use by the State. "Information Technology" Includes, but is not limited to, all electronic technology systems and services, automated information handling, System design and analysis, conversion of data, computer programming, information storage and retrieval, telecommunications which include voice, video, and data communications, requisite System controls, simulation, electronic commerce, and all related interactions between people and Machines. "Machine" means an individual unit of a Data Processing System or subsystem, separately identified by a type and/or model number, comprised of but not limited to mechanical, electrc-mechanical, and electronic parts, microcode, and special features installed thereon and including any necessary Software, e.g., central processing unit, memory module, tape unit, card reader, etc. "Machine Alteration" means any change to a Contractor - supplied Machine which is riot made by the Contractor, and which results in the Machine deviating from its physical, mechanical, electrical, or electronic (including microcode) design, whether or not additional devices or parts are employed in making such change, "Maintenance Diagnostic Routines" means the diagnostic programs customarily used by the Contractor to test Equipment for proper functioning and reliability. "Manufacturing Materials" means parts, tools, dies, Jigs, fixtures, plans, drawings, and information produced or acquired, or rights acquired, specifically to fulfill obligations set forth herein. "Mean Time Between Failure (MTBF)" means the average expected or observed time between consecutive failures in a System or component. "Mean Time to Repair (MTTR)" means the average expected or observed time required to repair a System or component and return it to normal operation. Page1 of 11 33 EXHIBIT D - GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS "Operating Software" means those routines, whether or not identified as Program Products, that reside in the Equipment and are required for the Equipment to perform its intended function(s), and which interface the operator, other Contractor -supplied programs, and user programs to the Equipment. "Operational Use Time" means for performance measurement purposes, that time during which Equipment is in actual operation by the State. For maintenance Operational Use Time purposes, that time during which Equipment is in actual operation and is not synonymous with power on time. "Performance Testing Period" means a period of time during which the State, by appropriate tests and production runs, evaluates the performance of newly installed Equipment and Software prior to Its acceptance by the State. "Period of Maintenance Coverage" means the period of time, as selected by the State, during which maintenance services are provided by the Contractor for a fixed monthly charge, as opposed to an hourly charge for services rendered. The Period of Maintenance Coverage consists of the Principal Period of Maintenance and any additional hours of coverage per day, and/or increased coverage for weekends and holidays. "Preventive Maintenance" means that maintenance, performed on a scheduled basis by the Contractor, which is designed to keep the Equipment in proper operating condition. "Principal Period of Maintenance" means any nine consecutive hours par day (usually between the hours of 7:00 a.m. and 6:00 p.m.) as selected by the State, including an official meal period not to exceed one hour, Monday through Friday, excluding holidays observed at the Installation. "Programming Aids" means Contractor -supplied programs and routines executable on the Contractor's Equipment which assists a programmer in the development of applications including language processors, sorts, communications modules, data base management systems, and utility routines, (tape -to -disk routines, disk -to -print routines, etc.). "Program Product" means programs, routines, subroutines, and related ttems which are proprietary to the Contractor and which are licensed to the State for Its use, usually on the basis of separately stated charges and appropriate contractual provisions. "Remedial Maintenance" means that maintenance performed by the Contractor which results from Equipment (including Operating Software) failure, and which is performed as required, i.e., on an unscheduled basis. "Site License" means for each product, the term "Site License" shall mean the license established upon acquisition of the applicable number of copies of such product and payment of the applicable license fees as set forth in the Statement of Work. "Software" means an all -Inclusive term which refers to any computer programs, routines, or subroutines supplied by the Contractor, including Operating Software, Programming Aids, Application Programs, and Program Products. "Software Failure" means a malfunction in the Contractor - supplied Software, other than Operating Software, which prevents the accomplishment of work, even though the Equipment (including its Operating Software) may still be capable of operating properly. For Operating Software failure, see definition of Equipment Failure. "State" means the government of the State of Califomia, Revision 9/30/2009 (GSPD-401iT based on April 12, 2007) its employees and authorized representatives, including without limitation any department, agency, or other unit of the govemment of the State of California, "System" means the complete collection of Hardware, Software and services as described in this Contract, integrated and functioning together, and performing in accordance with this Contract. "U.S. Intellectual Property Rights" means Intellectual property rights enforceable in the United States of America, including without limitation rights in trade secrets, copyrights, and U.S. patents. 2. CONTRACT FORMATION: a) If this Contract results from a sealed bid offered in response to a solicitation conducted pursuant to Chapters 2 (commencing with Section 10290), 3 (commencing with Section 12100), and 3.6 (commencing with Section 12125) of Part 2 of Division 2 of the Public Contract Code (PCC), then Contractor's bid is a firm offer to the State which is accepted by the issuance of this Contract and no further action Is required by either party. b) If this Contract results from a solicitation other than described in paragraph a), above, Contractor's quotation or proposal is deemed a firm offer and this Contract document is the State's acceptance of that offer. c) If this Contract resulted from a joint bid, it shall be deemed one indivisible Contract. Each such joint Contractor will be jointly and severally liable for the performance of the entire Contract. The State assumes no responsibility or obligation for the division of orders or purchases among joint Contractors. 3. COMPLETE INTEGRATION: This Contract, Including any documents Incorporated herein by express reference, is intended to be a complete integration and there are no prior or contemporaneous different or additional agreements pertaining to the subject matter of the Contract. 4. SEVERABILITY: The Contractor and the State agree that if any provision of this Contract is found to be illegal or unenforceable, such term or provision shall be deemed stricken and the remainder of the Contract shall remain in full force and effect. Either party having knowledge of such term or provislon shall promptly inform the other of the presumed non -applicability of such provision. 5. INDEPENDENT CONTRACTOR: Contractor and the agents and employees of Contractor, in the performance of this Contract, shall act in an Independent capacity and not as officers or employees or agents of the State. 6. APPLICABLE LAW: This Contract shall be governed by and shall be interpreted in accordance with the laws of the State of Califomia; venue of any action brought with regard to this Contract shall be in Sacramento County, Sacramento, California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract. 7. COMPLIANCE WITH STATUTES AND REGULATIONS: a) Contractor warrants and certifies that in the performance of this Contract, it will comply with all applicable statutes, rules, regulations and orders of the United States end the State of California and agrees to indemnify the State against any loss, cost, damage or liability by reason of the Contractor's violation of this provision. b) The State will notify Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and Page 2 of 11 34 EXHIBIT D - GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS c) Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of govemment or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (ii) the State will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (iii) the State will reasonably cooperate in the defense and in any related settlement negotiations. d) If this Contract Is In excess of $500,000, it is subject to the requirements of the World Trade Organization (WTO) Government Procurement Agreement (GPA). e) To the extent that this contract falls within the scope of Government Code Section 11135, Contractor hereby agrees to respond to and resolve any complaint brought to its attention, regarding accessibility of its products or services. 8. CONTRACTOR'S POWER AND AUTHORITY: The Contractor warrants that it has full power and authority to grant the rights herein granted and will hold the State harmless from and against any loss, cost, liability, and expense (including reasonable attorney fees) arising out of any breach of this warranty. Further, Contractor avers that it will not enter into any arrangement with any third party which might abridge any rights of the State under this Contract. The State will notify Contractor of any such claim in wilting and tender the defense thereof within a reasonable time; and Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (ii) the State will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (ill) the State will reasonably cooperate In the defense and in any related settlement negotiations. 9. ASSIGNMENT: This Contract shall not be assignable by the Contractor in whole or in part without the written consent of the State. For the purpose of this paragraph, State will not unreasonably prohibit Contractor from freely assigning its right to payment, provided that Contractor remains responsible for its obligations hereunder. 10. WAIVER OF RIGHTS: Any action or inaction by the State or the failure of the State on any occasion, to enforce any right or provision of the Contract, shall not be construed to be a waiver by the State of its rights hereunder and shall not prevent the State from enforcing such provision or right on any future occasion. The rights and remedies of the State herein are cumulative and are In addition to any other rights or remedies that the State may have at law or in equity. 11. ORDER OF PRECEDENCE: In the event of any Inconsistency between the articles, attachments, specifications or provisions which constitute this Contract, the following order of precedence shall apply: Revision 9/30/2009 (GSPD-401iT based on April 12, 2007) a) these General Provisions — Information Technology (In the instances provided herein where the paragraph begins: `Unless otherwise specified In the Statement of Work" provisions specified in the Statement of Work replacing these pargaraphs shall take precedence over the paragraph referenced In these General Provisions); b) contract form, i.e., Purchase Order STD 65, Standard Agreement STD 213, etc., and any amendments thereto; c) information technology special provisions; d) statement of work, including any specifications incorporated by reference herein; and e) all other attachments incorporated in the contract by reference. 12. PACKING AND SHIPMENT: a) All Goods are to be packed in suitable containers for protection in shipment and storage, and in accordance with applicable specifications. Each container of a multiple container shipment shall be identified to: i) show the number of the container and the total number of containers in the shipment; and it) the number of the container In which the packing sheet has been enclosed. b) All shipments by Contractor or its subcontractors must include packing sheets identifying: the State's Contract number; item number; quantity and unit of measure; part number and description of the Goods shipped; and appropriate evidence of Inspection, if required. Goods for different Contracts shall be listed on separate packing sheets. c) Shipments must be made as specified in this Contract, as it may be amended, or otherwise directed in writing by the State%' Transportation Management Unit within the Department of General Services, Procurement Division. 13. TRANSPORTATION COSTS AND OTHER FEES OR EXPENSES: No charge for delivery, drayage, express, parcel post, packing, cartage, insurance, license fees, permits, cost of bonds, or for any other purpose will be paid by the State unless expressly included and itemized In the Contract. a) Contractor must strictly follow Contract requirements regarding Free on Board (F.O.B.), freight terms and routing instructions. The State may permit use of an alternate carrier at no additional cost to the State with advance written authorization of the Buyer. b) If "prepay and add" is selected, supporting freight bills are required when over $50, unless an exact freight charge is approved by the Transportation Management Unit within the Department of General Services Procurement Division and a waiver is granted. c) On "F.O.B. Shipping Point" transactions, should any shipments under the Contract be received by the State in a damaged condition and any related freight loss and damage claims filed against the carrier or carriers be wholly or partially declined by the carrier or carriers with the inference that damage was the result of the act of the shipper such as inadequate packaging or loading or some inherent defect in the Equipment and/or material, Contractor, on request of the State, shall at Contractor's own expense assist the State in establishing carrier liability by supplying evidence that the Equipment and/or material was properly constructed, manufactured, packaged, and secured to withstand normal transportation conditions. 14. DELIVERY: Contractor shall strictly adhere to the delivery and completion schedules specified in this Contract. Time, if stated as a number,of days, shall mean calendar days unless otherwise specified. The quantities specified herein are the only quantities required. If Contractor delivers in excess of the quantities specified herein, the State shall not be required to make any payment for the excess Deliverables, and may retum them to Contractor at Contractor's expense or utilize any other rights available to the State at law or in Page 3 of 11 35 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS equity. 15. SUBSTITUTIONS: Substitution of Deliverables may not be tendered without advance written consent of the Buyer. Contractor shall not use any specification in lieu of those contained in the Contract without written consent of the Buyer. 16. INSPECTION, ACCEPTANCE AND REJECTION: Unless otherwise specified in the Statement of Work: a) Contractor and its subcontractors will provide and maintain a quality assurance system acceptable to the State covering Deliverables and services under this Contract and will tender to the State only those Deliverables that have been Inspected and found to conform to this Contract's requirements. Contractor will keep records evidencing inspections and their result, and will make these records available to the State during Contract performance and for three years after final payment. Contractor shall permit the State to review procedures, practices, processes, and related documents to determine the acceptability of Contractor's quality assurance System or other similar business practices related to performance of the Contract. b) All Deliverables may be subject to inspection and test by the State or its authorized representatives. c) Contractor and its subcontractors shall provide all reasonable facilities for the safety and convenience of inspectors at no additional cost to the State. Contractor shall furnish to inspectors all information and data as may be reasonably required to perform their inspection. d) All Deliverables may be subject to final Inspection, test and acceptance by the State at destination, notwithstanding any payment or inspection at source. e) The State shall give written notice of rejection of Deliverables delivered or services performed hereunder within a reasonable time after receipt of such Deliverables or performance of such services. Such notice of rejection will state the respects In which the Deliverables do not substantially conform to their specifications. If the State does not provide such notice of rejection within thirty (30) days of delivery, such Deliverables and services will be deemed to have been accepted. Acceptance by the State will be final and Irreversible, except as it relates to latent defects, fraud, and gross mistakes amounting to fraud. Acceptance shall not be construed to waive any warranty rights that the State might have at law or by express reservation in this Contract with respect to any nonconformity. 17. SAMPLES: a) Samples of items may be required by the State for inspection and specification testing and must be furnished free of expense to the State. The samples furnished must be identical in all respects to the products bid and/or specified in the Contract. b) Samples, if not destroyed by tests, may, upon request made at the time the sample is furnished, be retumed at Contractor's expense. 18. WARRANTY: a) Unless otherwise specified in the Statement of Work, the warranties in this subsection a) begin upon delivery of the goods or services In question and end one (1) year thereafter. Contractor warrants that (i) Deliverables and services furnished hereunder will substantially conform to the requirements of this Contract (including without limitation all descriptions, specifications, and drawings identified in the Statement of Work), and (ii) the Deliverables will bey -free from material defects in materials and workmanship. Where the parties have agreed to design specifications (such as a Revision 9/30/2009 (GSPD-401iT based on April 1Z 2007) Detailed Design Document) and incorporated the ,same or equivalent in the Statement of Work directly or by reference, Contractor will warrant that its Deliverables provide all material functionality required thereby. In addition to the other warranties set forth herein, where the Contract calls for delivery of Commercial Software, Contractor warrants that such Software will perform in accordance with its license and accompanying Documentation. The States approval of designs or specifications furnished by Contractor shall not relieve the Contractor of its obligations under this warranty. Contractor warrants that Deliverables furnished hereunder (i) will be free, at the time of delivery, of harmful code (i.e. computer viruses, worms, trap doors, time bombs, disabling code, or any similar malicious mechanism designed to interfere with the intended operation of, or cause damage to, computers, data, or Software); and (ii) will not infringe or violate any U.S. Intellectual Property Right. Without limiting the generality of the foregoing, if the State believes that harmful code may be present in any Commercial Software delivered hereunder, Contractor will, upon the State's request, provide a master copy of the Software for comparison and correction. Unless otherwise specified in the Statement of Work: (i) Contractor does not warrant that any Software provided hereunder is error -free or that it will run without Immaterial interruption. (ii) Contractor does not warrant and will have no responsibility for a claim to the extent that it arises directly from (A) a modification made by the State,' unless such modification is approved or directed by Contractor, (B) use of Software in combination with or on products other than as specified by Contractor, or (C) misuse by the State. (ill) Where Contractor resells Hardware or Software it purchased from a third party, and such third party offers additional or more advantageous warranties than those set forth herein, Contractor will pass through any such warranties to the State and will reasonably cooperate in enforcing them. Such warranty pass - through will be supplemental to, and not relieve Contractor from, Contractor's warranty obligations set forth above. All warranties, including special warranties specified elsewhere herein, shall inure to the State, its successors, assigns, customer agencies, and governmental users of the Deliverables or services. e) Except as may be specifically provided In the Statement of Work or elsewhere in this Contract, for any breach of the warranties provided in this Section, the State's exclusive remedy and Contractor's sole obligation will be limited to: (i) re -performance, repair, or replacement of the nonconforming Deliverable (including without limitation an infringing Deliverable) or service; or (ii) should the State in its sole discretion consent, refund of all amounts paid by the State for the nonconforming Deliverable or service and payment to the State of any additional amounts necessary to equal the State's Cost to Cover. "Cost to Cover° means the cost, properly mitigated, of procuring Deliverables or services of equivalent capability, function, and performance. The payment obligation in subsection (e)(ii) above will not exceed the limits on Contractor's liability set forth in the Section entitled "Limitation of Liability." f) EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION, CONTRACTOR MAKES NO Page 4 of 11 36 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 19. SAFETY AND ACCIDENT PREVENTION: In performing work under this Contract on State premises, Contractor shall conform to any specific safety requirements contained In the Contract or as required by law or regulation. Contractor shall take any additional precautions as the State may reasonably require for safety and accident prevention purposes. Any violation of such rules and requirements, unless promptly corrected, shall be grounds for termination of this Contract in accordance with the default provisions hereof. 20. INSURANCE: When performing work on property in the care, custody or control of the State, Contractor shall maintain all commercial general liability Insurance, workers' compensation insurance and any other Insurance the State deems appropriate under the Contract. Contractor shall furnish an Insurance certificate evidencing required Insurance coverage acceptable to the State. Upon request by the Buyer, the Contractor may be required to have the State shown as en "additional insured" on selected policies. 21.TERMiNATION FOR NON -APPROPRIATION OF FUNDS: a) If the term of this Contract extends into fiscal years subsequent to that in which it is approved, such continuation of the Contract is contingent on the appropriation of funds for such purpose by the Legislature. If funds to effect such continued payment are not appropriated, Contractor agrees to take back any affected Deliverables furnished under thls Contract, terminate any services supplied to the State under this Contract, and relieve the State of any further obligation therefore. b) STATE AGREES THAT IF PARAGRAPH a) ABOVE IS INVOKED, DELIVERABLES SHALL BE RETURNED TO THE CONTRACTOR IN SUBSTANTIALLY THE SAME CONDITION IN WHICH DELIVERED TO THE STATE, SUBJECT TO NORMAL WEAR AND TEAR. STATE FURTHER AGREES TO PAY FOR PACKING, CRATING, TRANSPORTATION TO CONTRACTOR'S NEAREST FACILITY AND FOR REIMBURSEMENT TO THE CONTRACTOR FOR EXPENSES INCURRED FOR THEIR ASSISTANCE IN SUCH PACKING AND CRATING. 22. TERMINATION FOR THE CONVENIENCE OF THE STATE: e) The State may terminate performance of work under this Contract for its convenience in whole or, from time to time, in part, if the Department of General Services, Deputy Director Procurement Division, or designee, determines that a termination is in the State's interest. The Department of General Services, Deputy Director, Procurement Division, or designee, shall terminate by delivering to the Contractor a Notice of Termination specifying the extent of termination and the effective date thereof. b) After receipt of a Notice of Termination, and except as directed by the State, the Contractor shall immediately proceed with the following obligations, as applicable, regardless of any delay in determining or adjusting any amounts due under this clause. The Contractor shall: (I) Stop work as specified in the Notice of Termination. (II) Place no further subcontracts for materials, services, or facilities, except as necessary to complete the continuing portion of the Contract. (iii) Terminate all subcontracts to the extent they relate to the work terminated. (iv) Settle all outstanding liabilities and termination settlement proposals arising from the termination of Revision 9/30/2009 (GSPD-401iT based on April 12, 2007) subcontractsi— Unless otherwise set forth in the Statement of Work, if the Contractor and the State fall to agree on the amount to be paid because of the termination for convenience, the State will pay the Contractor the following amounts; provided that In no event will total payments exceed the amount payable to the Contractor if the Contract had been fully performed: The Contract price for Deliverables or services accepted by the State and not previously paid for, adjusted for any savings on freight and other charges; and The total of: A) The reasonable costs incurred in the performance of the work terminated, including initial costs and preparatory expenses allocable thereto, but excluding any cost attributable to Deliverables or services paid or to be paid; B) The reasonable cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the Contract; and C) Reasonable storage, transportation, demobilization, unamortized overhead and capital costs, and other costs reasonably incurred by the Contractor in winding down and terminating its work. The Contractor will use generally accepted accounting principles, or accounting principles otherwise agreed to in writing by the parties, and sound business practices' In determining all costs claimed, agreed to, or determined' under this clause. 23. TERMINATION FOR DEFAULT: a) The State may, subject to the clause titled "Force Majeure" and to sub -section d) below, by written notice of default to the Contractor, terminate this Contract in whole or in part if the Contractor fails to: i) Deliver the Deliverables or perform the services within the time specified in the Contract or any amendment thereto; it) Make progress, so that the lack of progress endangers performance of this Contract; or iii) Perform any of the other provisions of this Contract. b) The State's right to terminate this Contract under sub- section a) above, may be exercised if the failure constitutes a material breach of this Contract and if the Contractor does not cure such failure within the time frame stated in the State's cure notice, which in no event will be less than fifteen (15) days, unless the Statement of Work calls for a shorter period. c) If the State terminates this Contract in whole or in part pursuant to this Section, it may acquire, under terms and In the manner the Buyer considers appropriate, Deliverables or services similar to those terminated, and the Contractor will be liable to the State for any excess costs for those Deliverables and services, including without limitation costs third party vendors charge for Manufacturing Materials (but subject to the clause entitled "Limitation of Liability"). However, the Contractor shall continue the work not terminated. d) If the Contract is terminated for default, the State may require the Contractor to transfer title, or in the case of licensed Software, license, and deliver to the State, as directed by the Buyer, any: (i) completed Deliverables,— (ii) partially completed Deliverables, and, Page 5 of 11 37 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS (iii) subject to —provisions of sub -section e) below, Manufacturing Materials related to the terminated portion of this Contract. Nothing in this sub -section d) will be construed to grant the State rights to Deliverables that it would not have received had this Contract been fully performed. Upon direction of the Buyer, the Contractor shall also protect and preserve property in its possession in which the State has an interest. e) The State shall pay Contract price for completed Deliverables delivered and accepted. Unless the Statement of Work calls for different procedures or requires no -charge delivery of materials, the Contractor and Buyer shall attempt to agree on the amount of payment for Manufacturing Materials and other materials delivered and accepted by the State for the protection and preservation of the property;provided that where the Contractor has billed the Stale for any such materials, no additional charge will apply Failure to agree will constitute a dispute under the Disputes clause. The State may withhold from these amounts any sum it determines to be necessary to protect the State against loss because of outstanding liens or claims of former Ilen holders. f) If, after termination, it is determined by a final ruling in accordance with the Disputes Clause that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the State. g) The rights and remedies of the State in this clause are In addition to any other rights and remedies provided by law or under this Contract, and are_ subject to the clause titled "Limitation of Liability." 24. FORCE MAJEURE Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes Include, but are not limited to: a) Acts of God or of the public enemy, and b) Acts of the federal or State government in either its sovereign or contractual capacity. If the failure to perform Is caused by the default of a subcontractor at any tier, and if the cause of the default Is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform. 25. RIGHTS AND REMEDIES OF STATE FOR DEFAULT: a) In the event any Deliverables fumished or services provided by the Contractor in the performance of the Contract should fall to conform to the requirements herein, or to the sample submitted by the Contractor, the State may reject the same, and it shall become the duty of the Contractor to reclaim and remove the Item promptly or to correct the performance of services, without expense to the State, and Immediately replace all such, rejected items with others conforming to the Contract. b) In addition to any other rights and remedies the State may have, the State may require Contractor, at Contractor's expense, to ship Deliverables via air freight or expedited routing to avoid or minimize actual or potential delay if the delay is the fault of the Contractor. c) In the event of the termination of the Contract, either in whole or in part, by reason of default or breach by the Contractor, any loss Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) or damage sustained by the State in procuring any items which the Contractor agreed to supply shall be borne and paid for by the Contractor (but subject to the clause entitled "Limitation of Liability"). d) The State reserves the right to offset the reasonable cost of all damages caused to the State against any outstanding invoices or amounts owed to Contractor or to make a claim against the Contractor therefore. 26. LIMITATION OF LIABILITY: a) Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to two times the Purchase Price. For purposes of this sub -section a), "Purchase Price" will mean the aggregate Contract price; except that, with respect to a Contract under which multiple purchase orders will be issued (e.g., a Master Agreement or Multiple Award Schedule contract), "Purchase Price" will mean the total price of the purchase order for the Deliverable(s) or service(s) that gave rise to the loss, such that Contractor will have a separate limitation of liability for each purchase order. b) The foregoing limitation of liability shall not apply (I) to liability under the General Provisions, entitled "Patent, Copyright, and Trade Secret Protection" or to any other liability (including without limitation indemnification obligations) for infringement of third party Intellectual property rights; (ii) to claims covered by any specific provision herein calling for liquidated damages; (iii) to claims arising under provisions herein calling for Indemnification for third party claims against the State for • bodily injury to persons or damage to real or tangible personal property caused by Contractor's negligence or willful misconduct; or (iv) to -costs or attomey's fees that the State becomes entitled to recover as a prevailing party in -any action. c) The State's liability for damages for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to the Purchase Price, as that term is defined in subsection a) above. Nothing herein shall be construed to waive or limit the State's sovereign Immunity or any other immunity from suit provided by law. - d) In no event will either the Contractor or the State be liable for consequential, Incidental, Indirect, special, or punitive damages, even if notification has been given as to the possibility of such damages, except (i) to the extent that Contractor's liability for such damages is specifically set forth in the Statement of Work or (ii) to the extent that Contractor's liability for such damages arises out of sub- section b)(I), b)(ii), or b)(iv) above. 27. CONTRACTOR'S LIABILITY FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY: a) The Contractor shall be liable for damages arising out of injury to the person and/or damage to the property of the State, employees of the State, persons designated by the State for training, or any other person(s) other than agents or employees of the Contractor, designated by the State for any purpose, prior to, during, or subsequent to delivery, installation, acceptance, and use of the Deliverables either at the Contractor's site or at the State's place of business, provided that the injury or damage was caused by the fault or negligence of the Contractor. b) Contractor shall not be liable for damages arising out of or caused by an alteration or an Attachment not made or installed by the Page 6 of 11 38 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS Contractor, or for damage to alterations or Attachments that may result from the normal operation and maintenance of the Deliverables provided by the Contractor during the Contract. 28. INDEMNIFICATION: Contractor agrees to Indemnify, defend and save harmless the State, its officers, agents and employees from any and all third party claims, costs (including without limitation reasonable attorneys" fees), and losses due to the injury or death of any individual, or the loss or damage to any real or tangible personal property, resulting from the willful misconduct or negligent acts or omissions of Contractor or any of its agents, subcontractors, employees, suppliers, laborers, or any other person, firm, or corporation furnishing or supplying work, services, materials, or supplies in connection with the performance of this Contract. Such defense and payment will be conditional upon the following: a) The State will notify Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and b) Contractor will have sole control of the defense of any action on such claim and all negotiations for Its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State Is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (ii) the State will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (fit) the State will reasonably cooperate in the defense and in any related settlement negotiations. 29. INVOICES: Unless otherwise specified, invoices shall be sent to the address set forth herein. Invoices shall be submitted in triplicate and shall include the Contract number, release order number (If applicable); item number; unit price, extended item price and invoice total amount. State sales tax and/or use tax shall be itemized separately and added to each invoice as applicable. 30. REQUIRED PAYMENT DATE: Payment will be made In accordance with the provisions of the California Prompt Payment Act, Government Code Section 927 et. seq. Unless expressly exempted by statute, the Act requires State agencies to pay properly submitted, undisputed invoices not more than 45 days after (I) the date of acceptance of Deliverables or performance of services; or (ii) receipt of an undisputed invoice, whichever is later. 31. TAXES: Unless otherwise required by law, the State of California is exempt from Federal excise taxes. The State will only pay for any State or local sales or use taxes on the services rendered or Goods supplied to the State pursuant to this Contract. 32. NEWLY MANUFACTURED GOODS: All Goods furnished under this Contract shall be newly manufactured Goods; used or reconditioned Goods are prohibited, unless otherwise specified. 33. CONTRACT MODIFICATION: No amendment or variation of the terms of this Contract shall be valid unless made In writing, signed by the parties end approved as required. No oral understending or agreement not incorporated in the Contract is binding on any of the parties. 34. CONFIDENTIALITY OF DATA: All financial, statistical, personal, technical and other data and information relating to the State's operation which are designated confidential by the State and made Revision 9/30/2009 (GSPD-4011T based on April 92, 2007) available to the Contractor in order to carry out this Contract, or which become available to the Contractor in carrying out this Contract, shall be protected by the Contractor from unauthorized use and disclosure through the observance of the same or more effective procedural requirements as are applicable to the State. The identification of all such confidential data and information as well as the State's procedural requirements for protection of such data and information from unauthorized use and disclosure shall be provided by the State in writing to the Contractor. If the methods and procedures employed by the Contractor for the protection of the Contractor's data and information are deemed by the State to be adequate for the protection of the State's confidential information, such methods and procedures may be used, with the written consent of the State, to carry out the intent of this paragraph. The Contractor shall not be required under the provisions of this paragraph to keep confidential any data or information which Is or becomes publicly available, is already rightfully in the Contractor's possession, Is Independently developed by the Contractor outside the scope of this Contract, or Is rightfully obtained from third parties. 35. NEWS RELEASES: Unless otherwise exempted, news releases pertaining to this Contract shall not be made without prior written approval of the Department of General Services. 36. DOCUMENTATION a) The Contractor agrees to provide to the State, at no charge, a number of all nonproprietary manuals and other printed materials, as described within the Statement of Work, and updated versions thereof, which are necessary or useful to' the State in its use of the Equipment or Software provided hereunder. The Contractor agrees to provide additional Documentation at prices not in excess of charges made by the Contractor to its other customers for similar Documentation. • b) If the Contractor is unable to perform maintenance or the State desires to perform its own maintenance on Equipment purchased under this Contract then upon written notice by the State the Contactor will provide at Contractor's then current rates and fees adequate and reasonable assistance including relevant Documentation to allow the State to maintain the Equipment based on Contractor's methodology. The Contractor agrees that the State may reproduce such Documentation for its own use in maintaining the Equipment. If the Contractor is unable to perform maintenance, the Contractor agrees to license any other Contractor that the State may have hired to maintain the Equipment to use the above noted Documentation. The State agrees to include the Contractor's copyright notice on any such Documentation reproduced, in accordance with copyright instructions to be provided by the Contractor. 37. RIGHTS IN WORK PRODUCT: a) All inventions, discoveries, intellectual property, technical communications and records originated or prepared by the Contractor pursuant to this Contract including papers, reports, charts, computer programs, and other Documentation or improvements thereto, and including Contractor's administrative communications and records relating to this Contract (collectively, the "Work Product"), shall be Contractor's exclusive property. The provisions of this sub -section a) may be revised in a Statement of Work. b) Software and other materials developed or otherwise obtained by or for Contractor or Its affiliates independently of this Contract or applicable purchase order ("Pre -Existing Materials") do not constitute Work Product. If Contractor Page 7 of 11 39 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS creates derivative works of Pre -Existing Materials, the elements of such derivative works created pursuant to this Contract constitute Work Product, but other elements do not. Nothing In this Section 37 will be construed to interfere with Contractor's or its affiliates' ownership of Pre - Existing Materials. The State will have Government Purpose Rights to the Work Product as Deliverable or delivered to the State hereunder. "Government Purpose Rights" are the unlimited, irrevocable, worldwide, perpetual, royalty -free, non-exclusive rights and licenses to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product. "Government Purpose Rights" also include the right to release or disclose the Work Product outside the State for any State govemment purpose and to authorize recipients to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product for any State govemment purpose. Such recipients of the Work Product may include, without limitation, State Contractors, California local governments, the U.S. federal govemment, and the State and local governments of other states. "Government Purpose Rights" do not include any rights to use, modify, reproduce, perform, release, display, create derivative works from, or disclose the Work Product for any commercial purpose. The ideas, concepts, know-how, or techniques relating to data processing, developed during the course of this Contract by the Contractor or jointly by the Contractor and the State may be used by either party without obligation of notice or accounting. This Contract shall not preclude the Contractor from developing materials outside this Contract that are competitive, irrespective of their similarity to materials which might be delivered to the State pursuant to this Contract. 38. PROTECTION OF PROPRIETARY SOFTWARE AND OTHER PROPRIETARY DATA a) State agrees that all material appropriately marked or identified in writing as proprietary, and furnished hereunder are provided for State's exclusive use for the purposes of this Contract only. All such proprietary data shall remain the property of the Contractor. State agrees to take all reasonable steps to Insure that such proprietary data are not disclosed to others, without prior written consent of the Contractor, subject to the Califomia Public Records Act. b) The State will insure, prior to disposing of any media, that any licensed materials contained thereon have been erased or otherwise destroyed. c) The State agrees that it will take appropriate action by instruction, agreement or otherwise with its employees or other persons permitted access to licensed software and other proprietary data to satisfy its obligations under this Contract with respect to use, copying, modification, protection and security of proprietary software and other proprietary data.. 39. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY: a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third party claims, costs (including without limitation reasonable attorneys' fees), and losses for infringement or violation of any U.S. Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from computer Hardware or Software Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party ("Third Party Obligation") and will cooperate in enforcing them; provided that if the third party manufacturer fails to honor the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this Section 39a). The provisions of the preceding sentence apply only to third party computer Hardware or Software sold as a distinct unit and accepted by the State. Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section 39a) will be conditional upon the following: The State will notify Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and Contractor will have sole control of the defense of any action on such claim and ell negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attomeys' fees and costs (but not liability); (il) the State will have the right to approve or disapprove • any settlement or compromise, which approval will not • ° unreasonably be withheld or delayed; and (iii) the State will reasonably cooperate In the defense and in any related settlement negotiations, b) Contractor may be required to furnish a bond to the State against any and all loss, damage, costs, expenses, claims and liability for patent, copyright and trade secret Infringement. c) Should the Deliverables or Software, or the operation thereof, become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall permit the Contractor at its option and expense either to procure for the State the right to continue using the Deliverables or Software, or to replace or modify the same so that they become non -infringing. If none of these options can reasonably be taken, or if the use of such Deliverables or Software by the State shall be prevented by injunction, the Contractor agrees to take back such Deliverables or Software and make every reasonable effort to assist the State in procuring substitute Deliverables or Software. If, in the sole opinion of the State, the return of such infringing Deliverables or Software makes the retention of other Deliverables or Software acquired from the Contractor under this Contract impractical, the State shall then have the option of terminating such Contracts, or applicable portions thereof, without penalty or termination charge. The Contractor agrees to take back such Deliverables or Software and refund any sums the State has paid Contractor less any reasonable amount for use or damage. d) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon: (i) The combination or utilization of Deliverables furnished hereunder with Equipment or devices not made or furnished by the Contractor; or, (ii) The operation of Equipment furnished by the Contractor under the control of any Operating Software other than, or in addition to, the current version of Contractor -supplied Operating Software; or (iii) The modification by the State of the Equipment furnished Page 8 of 11 40 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS hereunder or of the Software; or (iv) The combination or utilization of Software furnished hereunder with non -contractor supplied Software. e) Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of computer Software in violation of copyright laws. 40. EXAMINATION AND AUDIT: Contractor agrees that the State, or its designated representative shall have the right to review and copy any records and supporting Documentation pertaining to performance of this Contract. Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. Contractor agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees or others who might reasonably have information related to such records. Further, Contractor agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Contract. 41. DISPUTES: — a) The parties shall deal in good faith and attempt to resolve potential disputes informally. If the dispute persists, Contractor shall submit to the Department Director or designee a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to or involving this Contract, unless the State, on its own initiative, has already rendered such a final decision. Contractor's written demand shall be fully supported by factual Information, and if such demand involves a cost adjustment to the Contract, Contractor shall Include with the demand a written statement signed by an authorized person indicating that the demand is made in good faith, that the supporting data are accurate and complete and that the amount requested accurately reflects the Contract adjustment for which Contractor believes the State is liable. If the Contractor is not satisfied with the decision of the Department Director or designee, the Contractor may appeal the decision to the Department of General Services, Deputy Director, Procurement Division. In the event that this Contract is for Information Technology Goods and/or services, the decision may be appealed to an Executive Committee of State and Contractor personnel. b) Pending the final resolution of any dispute arising under, related to or Involving this Contract, Contractor agrees to diligently proceed with the performance of this Contract, including the delivery of Goods or providing of services in accordance with the State's instructions. Contractor's failure to diligently proceed in accordance with the State's instructions shall be considered a material breach of this Contract. c) Any final decision of the Slate shall be expressly identified as such, shall be in writing, and shall be signed by the Department Director or designee or Deputy Director, Procurement Division If en appeal was made. If the State fails to render a final decision within 90 days after receipt of Contractor's demand, it shall be deemed a final decision adverse to Contractor's contentions. The State's final decision shall be conclusive and binding regarding the dispute unless Contractor commences an action in a court of competent jurisdiction to contest such decision within 90 days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later. 42. STOP WORK: a) The State may, at any time, by written Stop Work Order to the Contractor, require the Contractor to stop all, or any part, of the work called for by this Contract for a period up to 90 days after Revision 9/30/2009 (GSPD-4011T based on Aprif 12, 2007) the Stop Work Order is delivered to the Contractor, and for any further period to which the parties may agree. The Stop Work Order shall be specifically identified as such and shall indicate it is issued under this clause. Upon receipt of the Stop Work Order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Stop Work Order during the period of work stoppage. Within a period of 90 days after a Stop Work Order is delivered to the Contractor, or within any extension of that period to which the parties shall have agreed, the State shall either: (I) Cancel the Stop Work Order; or (ii) Terminate the work covered by the Stop Work Order as provided for in the termination for default or the termination for convenience clause of this Contract. b) If a Stop Work Order issued under this clause Is canceled or the period of the Stop Work Order or any extension thereof expires, the Contractor shall resume work. The State shall make an equitable adjustment in the delivery schedule, the Contract price, or both, and the Contract shall be modified, in writing, accordingly, if: (i) The Stop Work Order results in an increase in the time required for, or in the Contractor's cost properly allocable to the performance of any part of this Contract; and (ii) The Contractor asserts its right to an equitable adjustment within 30 days after the end of the period of work stoppage; provided, that If the State decides the facts justify the action, the State may receive and act upon a proposal submitted at any time before final payment under this Contract. c) If a Stop Work Order is not canceled and the work covered by the Stop Work Order Is terminated in accordance with the provision entitled Termination for the Convenience of the State, the State shall allow reasonable costs resulting from the Stop Work Order in arriving at the termination settlement. d) The State shall not be table to the Contractor for loss of profits because of a Stop Work Order issued under this clause. 43. FOLLOW-ON CONTRACTS: If the Contractor or its affiliates provides Technical Consulting and Direction (as defined below), the Contractor and its affiliates: (i) will not he awarded a subsequent Contract to supply the service or system, or any significant component thereof, that Is used for or in connection with any subject of such Technical Consulting and Direction; and (ii) will not act as consultant to any person or entity that does receive a Contract described in sub -section (i). This prohibition will continue for one (1) year after termination of this Contract or completion of the Technical Consulting and Direction, whichever comes later. "Technical Consulting and Direction" means services for which the Contractor received compensation from the State and includes: (i) development of or assistance in the development of work statements, specifications, solicitations, or feasibility studies; (ii) development or design of test requirements; (ili) evaluation of test data; (iv) direction of or evaluation of another Contractor; (v) provision of formal recommendations regarding the acquisition of information Technology products or services; or (vi) provisions of formal recommendations regarding any Page 9of11 41 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS of the above. For purposes of this Section, "affiliates" are employees, directors, partners, joint venture participants, parent corporations, subsidiaries, or any other entity controlled by, controlling, or under common control with the Contractor. Control exists when an entity owns or directs more than fifty percent (50%) of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority. To the extent permissible by law, the Director of the Department of General Services, or designee, may waive the restrictions set forth in this Section by written notice to the Contractor if the Director determines their application would not be in the State's best interest. Except as prohibited by law, the restrictions of this Section will not apply; to follow-on advice given by vendors of commercial off -the -shelf products, including Software and Hardware, on the operation, integration, repair, or maintenance of such products after sale; or where the State has entered into a master agreement for Software or services and the scope of work at the time of Contract execution expressly calls for future recommendations among the Contractor's own products. The restrictions set forth in this Section are in addition to conflict of interest restrictions imposed on public Contractors by California law ("Conflict Laws"). In the event of any inconsistency, such Conflict Laws override the provisions of this Section, even if enacted after execution of this Contract, 44. PRIORITY HIRING CONSIDERATIONS: If this Contract includes services in excess of $200,000, the Contractor shall give priority consideration in filling vacancies in positions funded by the Contract to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with PCC Section 10353. 45. COVENANT AGAINST GRATUITIES: The Contractor warrants that no gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent or representative of the Contractor, to any officer or employee of the State with a view toward securing the Contract or securing favorable treatment with respect to any determinations concerning the performance of the Contract. For breach or violation of this warranty, the State shall have the right to terminate the Contract, either in whole or in part, and any loss or damage sustained by the State in procuring on the open market any items which Contractor agreed to supply shall be borne and paid for by the Contractor. The rights and remedies of the State provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or in equity. 46. NONDISCRIMINATION CLAUSE: a) During the performance of this Contract, Contractor and its subcontractors shall not unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, sexual orientation, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS), medical condition (cancer), age, marital status, and denial of family care leave. Contractor and subcontractors shall Insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12990 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Revision 9/30/2009 (GSPD-401iT based on April 12, 2007) Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this Contract by reference and made a part hereof as If set forth in full. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. b) The Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Contract. 47. NATIONAL LABOR RELATIONS BOARD CERTIFICATION: Contractor swears under penalty of perjury that no more than one final, unappealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding two-year period because of the Contractor's failure to comply with an order of the National Labor Relations Board. This provision is required by, and shall be construed in accordance with, PCC Section 10296. 48. ASSIGNMENT OF ANTITRUST ACTIONS: Pursuant to Government Code Sections 4552, 4553, and 4554, the following provisions are incorporated herein: a) In submitting a bid to the State, the supplier offers and agrees that if the bid Is accepted, it will assign to the State all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising froth' purchases of Goods, material or other Items, or services by the supplier for sale to the State pursuant to the solicitation. Such assignment shall be made and become effective at the time the State tenders final payment to the supplier. b) If the State receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the State any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the State as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. c) Upon demand In wilting by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (i) the assignee has not been injured thereby, or (ii) the assignee declines to file a court action for the cause of action. 49. DRUG -FREE WORKPLACE CERTIFICATION: The Contractor certifies under penalty of perjury under the laws of the State of California that the Contractor will comply with the requirements of the Drug -Free Workplace Act of 1990 (Government Code Section 8350 et seq.) and will provide a drug -free workplace by taking the following actions: a) Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code Section 8355(a). b) Establish a Drug -Free Awareness Program as required by Government Code Section 8355(b) to inform employees about all of the following: (I) the dangers of drug abuse in the workplace; Page 10of11 42 EXHIBIT D GSPD-401IT WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS (if) the person's or organization's policy of maintaining a drug - free workplace; (iii) any available counseling, rehabilitation and employee assistance programs; and, (iv) penalties that may be Imposed upon employees for drug abuse violations. c) Provide, as required by Government Code Section 8355(c), that every employee who works on the proposed or resulting Contract: (I) will receive a copy of the company's drug -free policy statement and, (ii) will agree to abide by the terms of the company's statement as a condition of employment on the Contract. 50. FOUR -DIGIT DATE COMPLIANCE: Contractor warrants that it wit provide only Four -Digit Date Compliant (as defined below) Deliverables and/or services to the State. "Four Digit Date Compliant" Deliverables and services can accurately process, calculate, compare, and sequence date data, Including without limitation date data arising out of or relating to leap years and changes in centuries. This warranty and representation Is subject to the warranty terns end conditions of this Contract and does not limit the generality of warranty obligations set forth elsewhere herein. 51. SWEATFREE CODE OF CONDUCT: a) Contractor declares under penalty of perjury that no equipment, materials, or supplies furnished to the State pursuant to the contract have been produced in whole or in part by sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children In sweatshop labor, or with the benefit of sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor. Contractor further declares under penalty of perjury that they adhere to the Sweatfree Code of Conduct as set forth on the California Department of Industrial Relations website located at www.dir.ca.gov, and Public Contract Code Section 6108. b) Contractor agrees to cooperate fully in providing reasonable access to its records, documents, agents or employees, or premises if reasonably required by authorized officials of the State, the Department of Industrial Relations, or the Department of Justice to determine Contractor's compliance with the requirements under paragraph (a). 52. RECYCLING: The Contractor shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post consumer material as defined in the Public Contract Code Section 12200, in products, materials, goods, or supplies offered or sold to the State regardless of whether the product meets the requirements of Section 12209. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (PCC 12205). 53. CHILD SUPPORT COMPLIANCE ACT: For any Contract in excess of $100,000, the Contractor acknowledges in accordance with PCC Section 7110, that: a) The Contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable State and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with eamings assignment orders, as provided In Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the Family Code; and Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) b) The Contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. 54. AMERICANS WITH DISABILITIES ACT: Contractor assures the State that Contractor complies with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq). 55. ELECTRONIC WASTE RECYCLING ACT OF 2003: The Contractor certifies that it complies with the requirements of the Electronic Waste Recycling Act of 2003, Chapter 8.5, Part 3 of Division 30, commencing with Section 42460 of the Public Resources Code, relating to hazardous and solid waste. Contractor shall maintain documentation and provide reasonable access to its records and documents that evidence compliance. 56. USE TAX COLLECTION: In accordance with PCC Section 10295.1, Contractor certifies that it complies with the requirements of Section 7101 of the Revenue and Taxation Code. Contractor further certifies that it will immediately advise State of any change in its retailer's seller's permit or certification of registration or applicable affiliate's seller's permit or certificate of registration as described in subdivision (a) of PCC Section 10295,1. 57. EXPATRIATE CORPORATIONS: Contractor hereby declares that it is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of PCC Sections 10286 and 10286.1, and Is eligible to contract with the State. 58. DOMESTIC PARTNERS: For contracts over $100,000 executed or amended after January 1, 2007, the contractor certifies that the contractor is in compliance with Public Contract Code section 10295.3. Page 11 of 11 43 A�m/5> CERTIFICATE OF LIABILITY INSURANCE °AT061 3/202YYY, THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Aon Risk Services Northeast, Inc. NeW York NY offi ce 199 water Street New York NY 10038-3551 USA CONTACT NAME: PHONE (866) 283-7122 FAX (847) 953-5390 (NC. No. Ext):(A/C. No.): E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC N INSURED Konica Minolta Business Solutions Attn: Lynne Ransom 500 Day Hill Road Windsor CT 06095 USA INSURER A: Sompo Japan Insurance Company of America 11126 INSURERB: Mits Ui Sumitomo Insurance Co of America 20362 INSURER C: Continental Ins Co Of NJ 42625 INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 570046543135 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Limits shown are as requested INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF (MMIDD/YYYY1 POLICY EXP (MMIDD/YYYY) OMITS B GENERAL LIABILITY GL2121579 10/01/2011 10/01/2012 EACH OCCURRENCE $1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE 70 RENTED PREMISES (Ea occurrence) $100, 000 CLAIMS -MADE X OCCUR MED EXP (Any one person) S10, 000 PERSONAL 8 ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG 12,000,000 ) POLICY I —I PRO-LOC I IJECT A AUTOMOBILE LIABILITY ADV40004E0 AOS 10/01/2011 10/01/2012 COMBINED SINGLE LIMIT (Ea accident) S1,000,000 A X ANY AUTO ADV40003D0 10/01/2011 10/01/2012 BODILY INJURY( Per person) ALL OWNED SCHEDULED A NON -OWNED AUTOS PROPERTY DAMAGE (Per accident) — _ B X UMBRELLA UAB X OCCUR UMB5400622 10/01/2011 10/01/2012 EACH OCCURRENCE $10,000,000 EXCESS LIAR CLAIMS -MADE UMBRELLA SIR applies terns & conditions AGGREGATE S10,000,000 DED X RETENTION S10 000 per policy A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY WCD40000A0 10/01/2011 10/01/2012 X WC STATU- TORY LIMITS OTH- ER A ANY PROPRIETOR/PARTNER/EXECUTIVE IY'/�N' I " I NIA AOS WCN40006G0 10/01/2011 10/01/2012 E.L. EACH ACCIDENT S1,000,000 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) LLLJJJ OR, UT ,WI E.L. DISEASE -EA EMPLOYEE S1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $1, 000 000 C E&O-MPL-Primary 287233832 SIR applies per policy terns 10/01/2011 & condi 10/01/2012 :ions per claim/aggregate S2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) The City of National City, its elected officials, officers, agents and employees are included as Additional Insured as their interests may appear with respect to General Liability and Automobile Liability policies Konica Minolta's work and/or operations as agreed to in a written contract, agreement, or permit entered into between the Certificate Holder and the insured as shown on the certificate. A waiver of subrogation is granted in favor of certificate Holder as required by written contract but limited to the operations of the Insured under said contract, with respect to the Workers' Compensation policy. CERTIFICATE HOLDER CANCELLATION City of National City c/o City Attorney's Office 1243 National City Blvd. National City CA 91950-4301 USA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE t sZit c/LfGrfP e�/GLIfL c-/ /It al JJLl ACORD 25 (2010/05) ©1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Holder Identifier : Certificate No : 570046543135 A Ers Attachment to ACORD Certificate for Konica Minolta Business Solutions The terms, conditions and provisions noted below are hereby attached to the captioned certificate as additional description of the coverage afforded by the insurer(s). This attachment does not contain all terms, conditions, coverages or exclusions contained in the policy. INSURED Konica Minolta BUsi ness Solutions Attn: Lynne Ransom 500 Day Hi11 Road windsor CT 06095 USA ADDITIONAL POLICIES INSURER INSURER INSURER INSURER INSURER If a policy below does no include limit information, refer to the corresponding policy on the ACORD certificate form for policy limits. INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER/ POLICY DESCRIPTION POLICY EFF (MM/DD/YYYY) POLICY EXP (NIM/DD/YYYY) LOUTS OTHER LTech & Telecom Certificate No : 570046543135 Policy Number: GL2121579 MSIG THIS ENDORSEMENT CHANGES YOUR POLICY. PLEASE READ IT CAREFULLY. ENHANCED COMMERCIAL GENERAL LIABILITY COVERAGE FORM ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART COMMON POLICY CONDITIONS This endorsement modifies coverage and provides increased limits of insurance to enhance your insurance program. The Limits of Insurance stated below are granted by us as enhancements to your insurance program and are subject to the terms and conditions of this endorsement and the COMMERCIAL GENERAL LIABILITY COVERAGE FORM and COMMON POLICY CONDITIONS. If these Limits of Insurance are not sufficient, you may purchase additional Limits of Insurance. The premium charge will be based on the additional Limits of Insurance you purchase. When you purchase additional Limits of Insurance for any coverage, the Limit of Insurance stated in the Declarations will be in addition to any Limit of Insurance we have granted below. Summary Of Coverage 1. Broad Form Named Insured 2. Nonowned Watercraft 3. Property Damage — Property Loaned To You 4. Property Damage Liability - Elevators 5. Damage To Premises Rented To You 6. Personal and Advertising Injury Assumed By Contract 7. Medical Payments - Increased Period 3 Years 8. Supplementary Payments - Increased Limits Cost of Bail Bonds Up To $2,500 Loss of Earnings Up To $500 Per Day 9. Automatic Additional Insureds By Contract, Agreement Or Permit 10. Who Is An Insured Redefined - Fellow Employee Coverage and Incidental Medical Malpractice 11. Duties In The Event Of Occurrence, Claim Or Suit Redefined 12. Unintentional Failure To Disclose All Hazards 13. Waiver Of Transfer Of Rights Of Recovery Against Others To Us 14. Liberalization 15. Bodily Injury Redefined 16. Insured Contract Redefined 17. Mobile Equipment Redefined (This provision Is not applicable in New York or Virginia) 18. Personal and Advertising Injury Redefined 19. Additional Definitions 20. Cancellation Condition 90 Days The following OPTIONAL COVERAGE applies only if a YES is indicated next to the coverage below. YES Additional Insured — Broad Form Vendors MS 6401 01 10 Page 1 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) 4 MSIG 1. Broad Form Named Insured a. The second paragraph of the preamble of this Coverage Form is replaced by the following: Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations, any other person or organization qualifying as a Named Insured under this policy, and any "controlled business entity". The words "we", "us" and "our" refer to the company providing this insurance. As used in this endorsement, the term "controlled business entity" means any business entity in which the Named Insured owns an interest of more than 50 percent during the policy period and for which similar coverage is not otherwise more specifically provided. However, we will not pay any sums such a "controlled business entity" must pay as damages because of "bodily injury" or "property damage" to which this insurance applies caused by an "occurrence" that occurred before the Named Insured acquired or formed the "controlled business entity", or because of "personal and advertising injury" to which this insurance applies caused by an offense committed before the Named Insured acquired or formed the "controlled business entity." Notwithstanding the foregoing, we will not pay any sums or perform any acts or services on behalf of any person or organization for which coverage is specifically excluded by endorsement. b. Paragraph 3. of Section I1— Who Is An Insured of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is deleted in its entirety. 2. Nonowned Watercraft Paragraph g.(2) of 2. Exclusions of Section I — Coverage A Bodily Injury And Property Damage Liability of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: MS 6401 01 10 (2) A watercraft you do not own that is: (a) Less than 75 feet long; and (b) Not being used to carry persons or property for a charge; 3. Property Damage — Property Loaned To You Paragraph j.(3) of 2. Exclusions of Section I — Coverage A Bodily Injury And Property Damage Liability of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: This exclusion j.(3) does not apply to property loaned to you, which is not being used by you to perform "your work". Our obligation to pay for damages because of such "property damage" is excess over any valid and collectible insurance (including any deductible), whether primary, excess, contingent or on any other basis. 4. Property Damage Liability - Elevators Exclusions j. and k. of Section I — Coverage A Bodily Injury And Property Damage Liability of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM are amended as follows: a. Exclusion j. is amended to add the following: Paragraphs (3), (4) and (6) of this exclusion j. do not apply to "property damage" arising out of the use of an elevator at premises you own, rent or occupy. b. Exclusion k. is amended to add the following: This exclusion k. does not apply to: (1) The use of elevators; or (2) Liability assumed under a sidetrack agreement. Page 2 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) 4MSIG Our obligation to pay sums for damages because of such "property damage" is excess over any other valid and collectible insurance (including any deductible), whether primary, excess, contingent or on any other basis. 5. Damage To Premises Rented To You Paragraph 6. of Section III — Limits Of Insurance of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: a. Subject to Paragraph 5. above, the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning, or "explosion", while rented to you or temporarily occupied by you with permission of the owner. b. The most we will pay for Damage To Premises Rented To You will be the greater of: (1) $300,000; or (2) The amount shown in the Declarations. 6. Personal and Advertising Injury Assumed by Contract Paragraph e. Contractual Liability of 2. Exclusions of Section I — Coverage B Personal And Advertising Injury Liability of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: "Personal and advertising injury" for which the insured has assumed liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) That the insured would have in the absence of the contract or agreement; or (2) Assumed in an "insured contract", provided the "personal and advertising MS 6401 01 10 injury" arises out of an offense committed subsequent to the execution of the "insured contract". Solely for the purpose of liability assumed in an "insured contract", where the "personal and advertising injury" arises out of an offense committed subsequent to the execution of the "insured contract", reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "personal and advertising injury", provided that: (a) Liability to such party for, or for the cost of, that party's defense has also been assumed in the same "insured contract"; and (b) Such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. 7. Medical Payments - Increased Period Paragraph a. of 1. Insuring Agreement of Section I — Coverage C Medical Payments of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: a. We will pay medical expenses as described below for "bodily injury" caused by an accident: (1) On premises you own or rent; (2) On ways next to premises you own or rent; or (3) Because of your operations; provided that: (a) The accident takes place in the "coverage territory" and during the policy period; (b) The expenses are incurred and reported to us within three years of the date of the accident; and Page 3 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) MSIG (c) The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require. 8. Supplementary Payments - Increased Limits Paragraphs 1.b. and 1.d. of Section I — Supplementary Payments — Coverages A and B of the COMMERCIAL GENERAL LIABILITY COVEAGE FORM are replaced by the following: b. Up to $2,500 for the cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to furnish these bonds. d. All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. 9. Automatic Additional Insureds By Contract, Agreement Or Permit a. Paragraph 2. of Section II — Who Is An Insured of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: Any person or organization with whom you agreed, in a written contract, agreement or permit, to provide insurance such as is afforded under this Coverage Form, but only with respect to your operations, "your work" or facilities owned or occupied by, or rented or loaned to you. b. The following additional exclusions apply to the insurance afforded by Paragraph a. above. This insurance does not apply: (1) Unless the written contract, agreement or permit has been issued prior to the "bodily injury", MS 6401 01 10 "property damage" or "personal and advertising injury"; (2) To any person or organization included as an insured by any other endorsement issued by us and made part of this Coverage Form; (3) To any lessor of equipment: (a) After the equipment lease expires; or (b) If the "bodily injury", "property damage" or "personal and advertising injury" arises out of the sole negligence of the lessor. (4) To any engineer, architect or surveyor if the "bodily injury", "property damage" or "personal and advertising injury" arises out of the rendering or the failure to render professional architectural, engineering or surveying services by or for you, including: (a) The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, or drawings and specifications; and (b) Supervisory, inspection, architectural or engineering activities. (5) To any: (a) Owners or other interests from whom land has been leased; or (b) Managers or lessors of premises If: (i) The "occurrence" takes place after you cease to be a tenant of such land or premises; or (ii) The "bodily injury", "property damage" or "personal and advertising injury" arises out of structural alterations, new Page 4of8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG construction or demolition operations performed by or on behalf of the owner, manager or lessor. 10. Who Is An Insured Redefined - Fellow Employee Coverage and Incidental Medical Malpractice Paragraph 2.a.(1) of Section II — Who Is An Insured of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: (1) "Bodily injury" or "personal and advertising injury": (a) To you, to your partners or members (if you are a partnership or joint venture) or to your members (if you are a limited liability company); (b) For which there is an obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraph (1)(a) above; or (c) Arising out of his or her providing or failing to provide professional health care services. However, this exclusion does not apply to nurses, emergency medical technicians or paramedics who are employed by you to provide medical or paramedical services. 11. Duties In The Event Of Occurrence, Offense, Claim, or Suit Redefined Paragraph 2. Duties In The Event Of Occurrence, Offense, Claim or Suit of Section IV — Commercial General Liability Conditions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following:: e. With respect to an "occurrence", offense, claim or "suit": (1) Knowledge of an "occurrence", offense, claim or "suit" by an agent, MS 6401 01 10 servant or "employee" of any insured, and receipt of any demand, notice, summons or other legal paper in connection with a claim or "suit" by any agent, servant or "employee" of any insured, shall not in itself constitute knowledge or receipt of such information by you or by an involved insured, unless and until you, or an "executive officer", in-house or outside counsel, risk manager or "employee" assigned to the risk management, insurance or safety department (other than clerical staff), or any other agent or "employee" designated to receive or handle notices of an "occurrence" or offense which may result in a claim or "suit" shall have such knowledge or shall have received such demand, notice, summons or legal paper from the agent, servant or "employee." (2) Failure of any agent, servant or "employee" of any insured to notify us of a known "occurrence", offense, claim or "suit" shall not prejudice coverage afforded by this policy, provided that we are notified of the "occurrence", offense, claim or "suit" once it is known to you, or to an "executive officer", in-house or outside counsel, risk manager, or "employee" assigned to the risk management, insurance or safety department (other than clerical staff) or any other agent or "employee" designated to receive or handle notices of an "occurrence" or offense which may result in a claim or "suit." 12. Unintentional Failure To Disclose All Hazards Paragraph 6. Representations of Section IV — Commercial General Liability Conditions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: Your failure to disclose hazards existing as of the inception date of this policy shall not prejudice you with respect to the insurance Page 5 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG provided by this Coverage Form, provided such failure or omission was not intentional. However, this provision does not affect our right to collect additional premium for any such hazard or to exercise our right of cancellation or nonrenewal 13. Waiver Of Transfer Of Rights Of Recovery Against Others To Us Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us of Section IV — Conditions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: We waive any right of recovery we may have against a person or organization because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products -completed operations hazard", if: a. The waiver of such rights is required in a written contract or agreement with that person or organization; and b. You have assumed the liability of that person or organization in that same contract, and it is an "insured contract"; but, these provisions only apply to the person or organization addressed in a. and b. above, and only if the injury or damage occurs after the execution of the written contract of agreement. 14. Liberalization Section IV — Commercial General Liability Conditions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: Liberalization If we adopt a change in the insurance provided by this policy that would broaden the scope of insurance afforded to you without additional premium charge, then the broader insurance will apply. It will apply MS 6401 01 10 when the change becomes effective in your state. 15. Bodily Injury Redefined The definition of "bodily injury" in Paragraph 3. of Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: 3. "Bodily injury" means bodily injury, sickness, disease or "incidental medical malpractice" sustained by a person, including mental anguish or injury, humiliation, embarrassment, or death resulting from any of these at any time. 16. Insured Contract Redefined The definition of " insured contract" in Paragraph 9. of Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended as follows: Paragraph a. is replaced by the following: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by water, fire, lightning, explosion, or smoke to premises while rented to you or temporarily occupied by you with permission of the owner is not an "insured contract"; Paragraph c. is replaced by the following: c. Any easement or license agreement; Paragraph f. is replaced by the following: f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury," "property damage" or "personal and advertising injury" to a third person or organization. Tort liability means a Page 6 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. does not include that part of any contract or agreement: (1) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or (2) Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in Paragraph (1) above and supervisory, inspection, architectural or engineering activities. 17. Mobile Equipment Redefined - This provision is not applicable in New York or Virginia. Paragraph f.(1) of the definition of "Mobile Equipment" in Paragraph 12. of Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM does not apply to self-propelled vehicles of less than 1,000 pounds gross vehicle weight, designed for use principally off highways. 18. Personal and Advertising Injury Redefined The definition of "Personal and Advertising Injury" in Paragraph 14. of Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: MS 6401 01 10 h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is: (1) Not done intentionally by or at the direction of; (a) An insured; or (b) Any "executive officer", director, stockholder, partner or member of the insured; and (2) Not directly or indirectly related to the employment, prospective employment or termination of employment of any person or persons by any insured. 19. Additional Definition Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following definitions: "Incidental medical malpractice" means injury arising out of the negligent rendering of, or failure to render medical or paramedical services to persons by any physician, dentist, nurse, emergency medical technician or paramedic who is employed by you to provide such services provided you are not engaged in the business or occupation of providing any services referred to in this definition. "Explosion" means a sudden release of expanding pressure accompanied by a noise, a bursting forth of material and evidence of the scattering of debris to locations further than would have resulted by gravity alone. "Explosion" does not include any of the following: a. Artificially generated electrical current including electrical arcing, that disturbs electrical devices, appliances or wires; b. Rupture or bursting of water pipes; Page 7of8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG c. Explosion of steam boilers, steam pipes, steam engines or steam turbines owned or leased by you, or operated under your control; or d. Rupture or bursting caused by centrifugal force. 20. Cancellation Condition Paragraph 2.b. of Section A. Cancellation of the COMMON POLICY CONDITIONS is replaced by the following: a. 90 days before the effective date of cancellation if we cancel for any other reason. OPTIONAL COVERAGE The COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended to provide the following Optional Coverage only if a YES is indicated next to Additional Insured — Broad Form Vendors on the first page of this endorsement. Additional Insured - Broad Form Vendors 1. Section II — Who Is An Insured is amended to include as an additional insured any person(s) or organization(s) (referred to below as vendor) with whom you have agreed, in a written contract or written agreement to provide insurance, but only with respect to "bodily injury" or "property damage" arising out of "your product" which is distributed or sold in the regular course of the vendor's business. 2. The insurance afforded by this paragraph does not apply to: a. "Bodily Injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; MS 6401 01 10 c. Any physical or chemical change in "your product" made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution or parts under instructions from the manufacturer, and then repackaged in the original container; e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in connection with the sale of "your product"; f. Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of "your product"; or g• "Your product" which, after distribution or sale by you, has been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or h. "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its "employees" or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions contained in Paragraphs d. or f. above; or (2) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in connection with the sale of "your product." 3. This insurance does not apply to any insured person or organization, from whom you have acquired such products or any ingredient, part or container, entering into, accompanying or containing such products. All other terms and conditions remain unchanged. Page 8 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 POLICY NUMBER: WCD40000A0 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT- CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be INCL % of the California workers' compensation premium otherwise due on such remuneration. SCHEDULE PERSON OR ORGANIZATION JOB DESCRIPTION PARTIES WITH WHOM THE INSURED HAS ENTERED INTO WRITTEN AGREEMENT PRIOR TO THE DATE OF LOSS. DATE OF ISSUE: 10-26-11 ©1998 by the Workers' Compensation Insurance Rating Bureau of California. All rights reserved. From the WCIRB's California Workers' Compensation Insurance Forms Manual @ 1999. Policy Number: GL2121579 • MSIG THIS ENDORSEMENT CHANGES YOUR POLICY. PLEASE READ IT CAREFULLY. ENHANCED COMMERCIAL GENERAL LIABILITY COVERAGE FORM ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART COMMON POLICY CONDITIONS This endorsement modifies coverage and provides increased limits of insurance to enhance your insurance program. The Limits of Insurance stated below are granted by us as enhancements to your insurance program and are subject to the terms and conditions of this endorsement and the COMMERCIAL GENERAL LIABILITY COVERAGE FORM and COMMON POLICY CONDITIONS. If these Limits of Insurance are not sufficient, you may purchase additional Limits of Insurance. The premium charge will be based on the additional Limits of Insurance you purchase. When you purchase additional Limits of Insurance for any coverage, the Limit of Insurance stated in the Declarations will be in addition to any Limit of Insurance we have granted below. Summary Of Coverage 1. Broad Form Named Insured 2. Nonowned Watercraft 3. Property Damage — Property Loaned To You 4. Property Damage Liability - Elevators 5. Damage To Premises Rented To You 6. Personal and Advertising Injury Assumed By Contract 7. Medical Payments - Increased Period 3 Years 8. Supplementary Payments - Increased Limits Cost of Bail Bonds Up To $2,500 Loss of Earnings Up To $500 Per Day 9. Automatic Additional Insureds By Contract, Agreement Or Permit 10. Who Is An Insured Redefined - Fellow Employee Coverage and Incidental Medical Malpractice 11. Duties In The Event Of Occurrence, Claim Or Suit Redefined 12. Unintentional Failure To Disclose All Hazards 13. Waiver Of Transfer Of Rights Of Recovery Against Others To Us 14. Liberalization 15. Bodily Injury Redefined 16. Insured Contract Redefined 17. Mobile Equipment Redefined (This provision is not applicable in New York or Virginia) 18. Personal and Advertising Injury Redefined 19. Additional Definitions 20. Cancellation Condition 90 Days The following OPTIONAL COVERAGE applies only if a YES is indicated next to the coverage below. YES Additional Insured — Broad Form Vendors MS 6401 01 10 Page 1 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG 1. Broad Form Named Insured a. The second paragraph of the preamble of this Coverage Form is replaced by the following: Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations, any other person or organization qualifying as a Named Insured under this policy, and any "controlled business entity". The words "we", "us" and "our" refer to the company providing this insurance. As used in this endorsement, the term "controlled business entity" means any business entity in which the Named Insured owns an interest of more than 50 percent during the policy period and for which similar coverage is not otherwise more specifically provided. However, we will not pay any sums such a "controlled business entity" must pay as damages because of "bodily injury" or "property damage" to which this insurance applies caused by an "occurrence" that occurred before the Named Insured acquired or formed the "controlled business entity", or because of "personal and advertising injury" to which this insurance applies caused by an offense committed before the Named Insured acquired or formed the "controlled business entity." Notwithstanding the foregoing, we will not pay any sums or perform any acts or services on behalf of any person or organization for which coverage is specifically excluded by endorsement. b. Paragraph 3. of Section II — Who Is An Insured of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is deleted in its entirety. 2. Nonowned Watercraft Paragraph g.(2) of 2. Exclusions of Section I — Coverage A Bodily Injury And Property Damage Liability of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: MS 6401 01 10 (2) A watercraft you do not own that is: (a) Less than 75 feet long; and (b) Not being used to carry persons or property for a charge; 3. Property Damage — Property Loaned To You Paragraph j.(3) of 2. Exclusions of Section I — Coverage A Bodily Injury And Property Damage Liability of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: This exclusion j.(3) does not apply to property loaned to you, which is not being used by you to perform "your work". Our obligation to pay for damages because of such "property damage" is excess over any valid and collectible insurance (including any deductible), whether primary, excess, contingent or on any other basis. 4. Property Damage Liability - Elevators Exclusions j. and k. of Section 1 — Coverage A Bodily Injury And Property Damage Liability of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM are amended as follows: a. Exclusion j. is amended to add the following: Paragraphs (3), (4) and (6) of this exclusion j. do not apply to "property damage" arising out of the use of an elevator at premises you own, rent or occupy. b. Exclusion k. is amended to add the following: This exclusion k. does not apply to: (1) The use of elevators; or (2) Liability assumed under a sidetrack agreement. Page 2 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG Our obligation to pay sums for damages because of such "property damage" is excess over any other valid and collectible insurance (including any deductible), whether primary, excess, contingent or on any other basis. 5. Damage To Premises Rented To You Paragraph 6. of Section III — Limits Of Insurance of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: a. Subject to Paragraph 5. above, the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning, or "explosion", while rented to you or temporarily occupied by you with permission of the owner. b. The most we will pay for Damage To Premises Rented To You will be the greater of: (1) $300,000, or (2) The amount shown in the Declarations. 6. Personal and Advertising Injury Assumed by Contract Paragraph e. Contractual Liability of 2. Exclusions of Section I — Coverage B Personal And Advertising Injury Liability of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: "Personal and advertising injury" for which the insured has assumed liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) That the insured would have in the absence of the contract or agreement; or (2) Assumed in an "insured contract", provided the "personal and advertising MS 6401 0110 injury" arises out of an offense committed subsequent to the execution of the "insured contract". Solely for the purpose of liability assumed in an "insured contract", where the "personal and advertising injury" arises out of an offense committed subsequent to the execution of the "insured contract", reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "personal and advertising injury", provided that: (a) Liability to such party for, or for the cost of, that party's defense has also been assumed in the same "insured contract"; and (b) Such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. 7. Medical Payments - Increased Period Paragraph a. of 1. Insuring Agreement of Section I — Coverage C Medical Payments of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: a. We will pay medical expenses as described below for "bodily injury" caused by an accident: (1) On premises you own or rent; (2) On ways next to premises you own or rent; or (3) Because of your operations; provided that: (a) The accident takes place in the "coverage territory" and during the policy period; (b) The expenses are incurred and reported to us within three years of the date of the accident; and Page 3of8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG (c) The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require. 8. Supplementary Payments - Increased Limits Paragraphs 1.b. and 1.d. of Section I — Supplementary Payments — Coverages A and B of the COMMERCIAL GENERAL LIABILITY COVEAGE FORM are replaced by the following: b. Up to $2,500 for the cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to furnish these bonds. d. All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. 9. Automatic Additional Insureds By Contract, Agreement Or Permit a. Paragraph 2. of Section II — Who Is An Insured of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: Any person or organization with whom you agreed, in a written contract, agreement or permit, to provide insurance such as is afforded under this Coverage Form, but only with respect to your operations, "your work" or facilities owned or occupied by, or rented or loaned to you. b. The following additional exclusions apply to the insurance afforded by Paragraph a. above. This insurance does not apply: (1) Unless the written contract, agreement or permit has been issued prior to the "bodily injury", MS 6401 01 10 "property damage" or "personal and advertising injury"; (2) To any person or organization included as an insured by any other endorsement issued by us and made part of this Coverage Form; (3) To any lessor of equipment: (a) After the equipment lease expires; or (b) If the "bodily injury", "property damage" or "personal and advertising injury" arises out of the sole negligence of the lessor. (4) To any engineer, architect or surveyor if the "bodily injury", "property damage" or "personal and advertising injury" arises out of the rendering or the failure to render professional architectural, engineering or surveying services by or for you, including: (a) The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, or drawings and specifications; and (b) Supervisory, inspection, architectural or engineering activities. (5) To any: (a) Owners or other interests from whom land has been leased; or (b) Managers or lessors of premises If: (i) The "occurrence" takes place after you cease to be a tenant of such land or premises; or (ii) The "bodily injury", "property damage" or "personal and advertising injury" arises out of structural alterations, new Page 4 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG construction or demolition operations performed by or on behalf of the owner, manager or lessor. 10. Who Is An Insured Redefined - Fellow Employee Coverage and Incidental Medical Malpractice Paragraph 2.a.(1) of Section I1— Who Is An Insured of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: (1) "Bodily injury" or"personal and advertising injury": (a) To you, to your partners or members (if you are a partnership or joint venture) or to your members (if you are a limited liability company); (b) For which there is an obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraph (1)(a) above; or (c) Arising out of his or her providing or failing to provide professional health care services. However, this exclusion does not apply to nurses, emergency medical technicians or paramedics who are employed by you to provide medical or paramedical services. 11. Duties In The Event Of Occurrence, Offense, Claim, or Suit Redefined Paragraph 2. Duties In The Event Of Occurrence, Offense, Claim or Suit of Section IV — Commercial General Liability Conditions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following:: e. With respect to an "occurrence", offense, claim or "suit": (1) Knowledge of an "occurrence", offense, claim or "suit" by an agent, MS 6401 01 10 servant or "employee" of any insured, and receipt of any demand, notice, summons or other legal paper in connection with a claim or "suit" by any agent, servant or "employee" of any insured, shall not in itself constitute knowledge or receipt of such information by you or by an involved insured, unless and until you, or an "executive officer", in-house or outside counsel, risk manager or "employee" assigned to the risk management, insurance or safety department (other than clerical staff), or any other agent or "employee" designated to receive or handle notices of an "occurrence" or offense which may result in a claim or "suit" shall have such knowledge or shall have received such demand, notice, summons or legal paper from the agent, servant or "employee." (2) Failure of any agent, servant or "employee" of any insured to notify us of a known "occurrence", offense, claim or "suit" shall not prejudice coverage afforded by this policy, provided that we are notified of the "occurrence", offense, claim or "suit" once it is known to you, or to an "executive officer", in-house or outside counsel, risk manager, or "employee" assigned to the risk management, insurance or safety department (other than clerical staff) or any other agent or "employee" designated to receive or handle notices of an "occurrence" or offense which may result in a claim or "suit." 12. Unintentional Failure To Disclose All Hazards Paragraph 6. Representations of Section IV — Commercial General Liability Conditions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: Your failure to disclose hazards existing as of the inception date of this policy shall not prejudice you with respect to the insurance Page 5of8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG provided by this Coverage Form, provided such failure or omission was not intentional. However, this provision does not affect our right to collect additional premium for any such hazard or to exercise our right of cancellation or nonrenewal 13. Waiver Of Transfer Of Rights Of Recovery Against Others To Us Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us of Section IV — Conditions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: We waive any right of recovery we may have against a person or organization because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products -completed operations hazard", if: a. The waiver of such rights is required in a written contract or agreement with that person or organization; and b. You have assumed the liability of that person or organization in that same contract, and it is an "insured contract"; but, these provisions only apply to the person or organization addressed in a. and b. above, and only if the injury or damage occurs after the execution of the written contract of agreement. 14. Liberalization Section IV — Commercial General Liability Conditions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: Liberalization If we adopt a change in the insurance provided by this policy that would broaden the scope of insurance afforded to you without additional premium charge, then the broader insurance will apply. It will apply MS6401 0110 when the change becomes effective in your state. 15. Bodily Injury Redefined The definition of "bodily injury" in Paragraph 3. of Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: 3. "Bodily injury" means bodily injury, sickness, disease or "incidental medical malpractice" sustained by a person, including mental anguish or injury, humiliation, embarrassment, or death resulting from any of these at any time. 16. Insured Contract Redefined The definition of " insured contract" in Paragraph 9. of Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended as follows: Paragraph a. is replaced by the following: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by water, fire, lightning, explosion, or smoke to premises while rented to you or temporarily occupied by you with permission of the owner is not an "insured contract"; Paragraph c. is replaced by the following: c. Any easement or license agreement; Paragraph f. is replaced by the following: f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury," "property damage" or "personal and advertising injury" to a third person or organization. Tort liability means a Page 6 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) •MSIG liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. does not include that part of any contract or agreement: (1) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or (2) Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in Paragraph (1) above and supervisory, inspection, architectural or engineering activities. 17. Mobile Equipment Redefined - This provision is not applicable in New York or Virginia. Paragraph f.(1) of the definition of "Mobile Equipment" in Paragraph 12. of Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM does not apply to self-propelled vehicles of less than 1,000 pounds gross vehicle weight, designed for use principally off highways. 18. Personal and Advertising Injury Redefined The definition of "Personal and Advertising Injury" in Paragraph 14. of Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following: MS 6401 01 10 h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is: (1) Not done intentionally by or at the direction of; (a) An insured; or (b) Any "executive officer", director, stockholder, partner or member of the insured; and (2) Not directly or indirectly related to the employment, prospective employment or termination of employment of any person or persons by any insured. 19. Additional Definition Section V — Definitions of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended by adding the following definitions: "Incidental medical malpractice" means injury arising out of the negligent rendering of, or failure to render medical or paramedical services to persons by any physician, dentist, nurse, emergency medical technician or paramedic who is employed by you to provide such services provided you are not engaged in the business or occupation of providing any services referred to in this definition. "Explosion" means a sudden release of expanding pressure accompanied by a noise, a bursting forth of material and evidence of the scattering of debris to locations further than would have resulted by gravity alone. "Explosion" does not include any of the following: a. Artificially generated electrical current including electrical arcing, that disturbs electrical devices, appliances or wires; b. Rupture or bursting of water pipes; Page 7 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) • MSIG c. Explosion of steam boilers, steam pipes, steam engines or steam turbines owned or leased by you, or operated under your control; or d. Rupture or bursting caused by centrifugal force. 20. Cancellation Condition Paragraph 2.b. of Section A. Cancellation of the COMMON POLICY CONDITIONS is replaced by the following: a. 90 days before the effective date of cancellation if we cancel for any other reason. OPTIONAL COVERAGE The COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended to provide the following Optional Coverage only if a YES is indicated next to Additional Insured — Broad Form Vendors on the first page of this endorsement. Additional Insured - Broad Form Vendors 1. Section II — Who Is An Insured is amended to include as an additional insured any person(s) or organization(s) (referred to below as vendor) with whom you have agreed, in a written contract or written agreement to provide insurance, but only with respect to "bodily injury" or "property damage" arising out of "your product" which is distributed or sold in the regular course of the vendor's business. 2. The insurance afforded by this paragraph does not apply to: a. "Bodily Injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; MS 6401 01 10 c. Any physical or chemical change in "your product" made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution or parts under instructions from the manufacturer, and then repackaged in the original container; e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in connection with the sale of "your product"; f. Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of "your product"; or g• "Your product" which, after distribution or sale by you, has been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or h. "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its "employees" or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions contained in Paragraphs d. or f. above; or (2) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in connection with the sale of "your product." 3. This insurance does not apply to any insured person or organization, from whom you have acquired such products or any ingredient, part or container, entering into, accompanying or containing such products. All other terms and conditions remain unchanged. Page 8 of 8 (Includes copyrighted material of Insurance Services Offices, Inc. with its permission) SOlvll'O JAPAN SCA 01 002 (03-2610 ed.) This Endorsement Changes the Policy. Please Fad It Carefully, COMMERCIAL AUTOMOBILE ENHANCEMENT This endorsement modWies coverage provided under the following: BUSINESS AUTO COVERAGE FORl 1 1. BROADENED INSURED COVERAGE Under Section It —LIABILITY COVERAGE the following changes are made: A. BROAD NAMED INSURED The following is added to A. Coverage, paragraph 1. Who is An Insured: d. Any pally incorporated entity of which you own more than 50% of the voting stock on the effective date of this coverage part is an insured. B. ADDITIONAL INSUREDS —BY CONTRACT, AGREEMENT OR PERMIT The following is added to A. Coverage, paragraph 1. Who Is An Insured: e. Any person or organization, not otherwise identified as an 'Insured" in this coverage or by endorsement to this coverage, that you are required by written contract, written agreement or written permit to name es an 'Insured". The insurance provided under item B, above applies on a primary basis if that is required by the written contract, written agreement or written permit. Coverage under this provision Is limited to the minimum limits of liability stipulated in that written contract, written agreement or written permit or the amount of loss not to exceed the Limit of Liability shown in the Declarations, whichever is less. C. EMPLOYEES AS INSUREDS . The following is added to A. Coverage, paragraph 1. Who is An insured: f. Any "employee" of yours is a►'insured'while using a covered "auto" you don't own, hire or borrow in your business or your personal affairs. D. FELLOW EMPLOYEE COVERAGE B. Exclusions, paragraph 5. Fellow Employee is deleted and replaced with the following: "Bodily injury" to: a. Any fellow "employee" of the 'Insured" arising out of and in the course of the fellow "employee s" employment or while performing duties related to the conduct of your business: or Includes copyrighted material of Insurance Services Office, Inc. with Its permission. Page 1of4 5OMPO JAPAN b. The spouse, child, parent, brother or sister of That fellow "employee' as a consequence of Paragraph a. above. However, we will cover "bodily injury" caused by your "employee" to his or her fellow "employee" if the "bodily injury" results from the use of a covered "auto" you own or hire. 2. ADDITIONAL SUPPLEMENTARY PAYMENTS Section II - LIABILITY COVERAGE, A. Coverage, paragraph 2.e. Coverage Extensions, Supplementary Payments, items (2) and {4) are deleted and replaced by the following: (2) Up to $5000 for the cost of bail bonds (including bonds for related traffic law violations) required because of an "accident" we cover. We do not have to furnish these bonds. (4) All reasonable expenses incurred by the'Snsured" at our request, including actual loss of earnings up to $500 a day because of time off from work. 3. KNOWLEDGE AND NOTICE OF OCCURRENCE Section IV- BUSINESS AUTO CONDITIONS, A. Loss Conditions, paragraph 2. Dutiees. in The Event Of Accident, Claim, Suit Or Loss, item a. is deleted and replaced by the following and item d. ig added: a. In the event of an "accident", claim, "suit" orloss" you must give us or our authorized representative promptnotice of the "accident" or 'toss" when the "accident", claim, "suit" or loss" is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership or joint venture; . (3) An 'executive officer" or director if you are a corporation; (4) A member, if you are a limited liability company; (5) A trustee if you are a trust; or (6) An "employee" designated by you to give us such a notice. This notice should include: (1) How, when and where the 'accident" or "loss" occurred; (2) The "insured's" name and address; and (3) To the extent possible, the names and addresses of any injured persons and witnesses. d. Your rights afforded under this policy will not be prejudiced if you fail to give us notice of an "accident", claim, "suit" or loss", solely due to your reasonable and documented belief that the "bodily injury" or 'property damage" is not covered under this policy. SCA 01 002 (03.2010 ed.) Includes copyrighted material of Insurance Services Office, Inc. with its permission. Page 2 of 4 SOMPO JAPAN SCA 01 002 (03-2010 ed.) 4: WAIVER OF SUBROGATION The following is added to Section IV -BUSINESS AUTO CONDITIONS. A. Loss Conditions, paragraph 5. Transfer of Rights of Recovery Against Other To Us: If the insured has waived those rights prior to the "accident" or 'loss", our rights are waived also. 5. UNINTENTIONAL ERRORS AND OMISSIONS The following is added to Section IV - BUSINESS AUTO CONDITIONS, B. General Conditions, paragraph 2. Concealment, Misrepresentation Or Fraud: We will not disclaim coverage under this Coverage Part if you fail to disclose all hazards existing as of the inception dale of the policy, provided such failure is not intentional. However, we reserve the right to charge additional premium for any such hazard. 6. BROADENED PHYSICAL DAMAGE COVERAGE Under Section III —PHYSICAL DAMAGE COVERAGE, the following changes are made: A WAIVER OF DEDUCTIBLE —GLASS REPAIR The following is added to D. Deductible: No deductible for a covered 'auto" will apply to glass damage if the glass is repaired rather than replaced. B. ADDTTIONALTRANSPORTATION EXPENSES A. Coverage, 4. Coverage Extensions, paragraph a Transportation Expenses Is deleted and replaced by the following: We will pay up to $50 per day to a maximum of $1500 for temporary transportation expense incurred by you because of the total theft of a covered "auto" of the private passenger type. We will pay only forttlose covered "autos" for which you carry either Comprehensive or Specified Causes Of Loss Coverage. VVe will pay for temporary transportation expenses incurred during the period beginning 48 hours after the theft anti ending, regardless of the policy's expiration, when the covered "auto" is returned to use or we pay for its 'toss'. C. ADDITIONAL LOSS OF USE EXPENSES A. Coverage, 4. Coverage Extensions, paragraph b. Loss Of Use Expenses is deleted and replaced by the following: For Hired Auto Physical Damage, we will pay expenses for which an 'insured' becomes legally responsible to pay for toss of use of a vehicle rented or hired without a driver under a written rental contract or agreement. We will pay for loss of use expenses if caused by: - (1) Other than collision only if the Declarations indicate, that Comprehensive Coverage is provided for any covered "auto', (2) Specified Causes of Loss only if the Declarations indicate that Specified Causes of Loss Coverage is provided for any covered "auto'; or Includescwpyriglned material of Insurance Services Office, Inc. with its perfr4ss1On. Page 3 of 4 461 SOMPO JAPAN (3) Collision only if the Declarations Indicate that Collision Coverage is provided for any covered 'auto". However, the most we will pay for any expenses for loss of use is $50 per day, to a maximum of $1500. D. COST TO RECOVER STOLEN AUTO The following Is added to A. Coverage, 4. Coverage Extensions. We will pay reasonable and necessary expenses incurred by you to return a stolen, covered "auto" from the place where it is recovered to its usual garaging place. The most we will pay for such expenses is $1000. This Coverage Extension does not apply if your business is selling, servicing or repairing "autos". E. PERSONAL EFFECTS COVERAGE The following is added to A. Coverage, 4. Coverage Extensions. In the event of a total theft of a covered "auto", we will pay for personal effects owned by an 'insured" and in the covered 'auto" at the time of loss. The most we will pay for such personal effects is $500 per loss. F. AIRBAGS —ACCIDENTAL DISCHARGE COVERAGE The following is added to B. Exclusions, paragraph 3. This exclusion does not apply to the accidental discharge of an airbag caused by or arising from mechanical or electrical breakdown, provided the covered "auto" does not also incur other physical damage. The most we will pay for such "foss" is $100D. This coverage Is excess aver any other collectible insurance or warranty. No deductibles apply to this Airbags —Accidental Discharge Coverage. 7. ADDITIONAL DEFINITIONS The following is added to Section V—DEFINITIONS: "Executive Officer" means a person hotding any of the officer positions created by your charter, constitution, by-laws or any similar governing document This endorsement forms a part of: Insured: KONICA MINOLTA HOLDINGS U.S.A. SCA 01 002 (03-2010 ed.) Effective Date: 10-01-11 Includes copyrighted material or insurance Services Ofnce, Inc. with its permission. Page 4 of 4 COMMERCIAL AUTOMOBILE ENHANCEMENT SPECIAL BROAD FORM ENDORSEMENT Date Issued: 11-09-11 Endorsement No. Insured: RONICA MINOLTA HOLDINGS U.S.A. Policy No_ ADV400CI4E0 Name of Company: SOMPO JAPAN Effective Date 10-01-2011- INSURANCE COMPANY OF AMERICA Producer AON RISK SERVICES NORTHEAST, INC. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY COMMERCIAL AUTOMOBILE ENHANCEMENT SPECIAL BROAD FORM ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM This endorsement changes the policy effective an the inception date of the policy unless another date is Indicated above. 1. BROAD FORM NAMED INSURED Section II, - LIABILITY COVERAGE, paragraph A.2. COVERAGE EXTENSIONS, subparagraphs The following is added to Section II - LIADILITY a.(2) and a;(4) are deleted and replaced by the COVERAGE, paragraph A. 1., WHO IS AN IN- following: SURED provision: (2) Up to S1,000 for the cost of bail bonds (includ- d. Any subsidiary and subsidiary thereof, of yours hng bonds for related traffic Iaw violations) which is a legally incorporated entity of which required because of an "accident" we cover. you own a financial interest of more than 50% We do not have to furnish these bonds, of the voting stock on the effective date of the Coverage Form. (4) All reasonable expenses incurred by the "in- sured" at our request, including actual loss of 2. COVERAGE EXTENSION -SUPPLEMENTARY earnings up to $300 a day because oftune off PAYMENT INCREASED LIMIT from work. Form YCA 01 002 (Ed. 03/99) includes Copyrighted materiel oflnsnrenee Services Office, lee. with its permission., Page 1 of 3 Copyright. Insurance Services Office, Inc.,199A 3. ADDITIONAL INSUREDS WHERE RE- QUIRED BY CONTRACT OR AGREEMENT Section II - LIABILITY COVERAGE, - para- graph A.1 - WITO IS AN INSURED, is amended to add: Any person or organization with whom you agreed, because of a Witten contract or agreement or per- mit, to provide insurance such as is afforded under this pulley. 4. AMENDMENT OF DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUITOR LOSS Section IV- BUSINESS AUTO CONDITIONS, A. Loss Conditions, 2. - DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SLJJT OR LOSS, sub- paragraph a., is hereby deleted and replaced by the following: a. In the event of an "accident", claim, suit" or loss" you must give us or our authorized repre-sentative notice as soon thereafter as prac-ticable of the "accident" or 'loss". Knowledge of an "accident" or loss" by an agent, servant or employee of yours will not in itself constitute knowledge to you unless the Corporate Risk Manager. (or anyone with equivalent title) or his/her designee at the address shown on the Declarations Page of the policy, will have re-ceived notice. Include: J 1. How, when and where the "accident", or "loss" occurred; 2. The "insured'' name and address; and 3. To the extent possible. the names and ad- dresses of any injured persons and wit- nesses. S. UNINTENTIONAI. ERRORS AND OMISSIONS Section IV - BUSINESS AUTO CONDITIONS, B. - General Conditions, 2. - CONCEALMENT, MISREPRESENTATION OR FRAUD, is deleted ` and replaced by. ' We will not disclaim coverage under this Coverage Form if you fail to disclose all hazards existing as of the inception date of the policy provided such failure is not intentional. b. LIBERALIZATION If we adopt a change in our forms or rules that would broaden the coverage of this policy without extra charge, the broader coverage will apply to this policy. It will apply when the change becomes effective in your state. 7. EMPLOYEES AS INSUREDS Section II - LIABILITY COVERAGE, A.I., WHO IS AN INSURED is amended to add: Any employee of yours is an "insured' while using a covered "auto" you don't own, hire or borrow in your business or your personal affairs S. HIRED AUTO - COVERAGE TERRITORY Paragraph e. is added to the definition of coverage territory in Section IV, B. - GENERAL CONDI- TIONS 7. - Policy Period, Coverage Territory: e. All parts of the world for a covered "auto" you hire for less than 30 consecutive days if the insured's responsibility to pay damages is Form YCA 01 002 (Ed. 03/99) Includes Copyrighted material of insurance Services Office, Inc. with its permission. Copyright, insurance Sc ,...cs Office, tee., 1994 Page 2 of 3 determined in a "suit" on the merits in the ter- ritory described in a - d above. 9. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Section IV - BUSINESS AUTO CONDITIONS, paragraph A. 5. is amended to add the following: However, we will waive any right of recovery we may have against any person or organization be- cause of payments we make for 'bodily injury' or "property damage" arising out of the operation of a covered "auto" when you have assumed liability for such "bodily injury' or " property damage' under an "insured contract" .11 Fora YCA 01 002 (Ed. 03/99) 1ueladesCopyrighicd material of Insurance Servics0ftice, Inc. with its permission. Copyright, Insurance Services °Me, tdc.,1994 Page 3 of 3 RESOLUTION NO. 2012 — 127 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY WAIVING THE BID PROCESS AND AUTHORIZING THE MAYOR TO EXECUTE A FIVE-YEAR LEASE AGREEMENT WITH KONICA MINOLTA BUSINESS SOLUTIONS, USA, INC., THROUGH A COOPERATIVE PURCHASE PROGRAM UNDER THE WESTERN STATE CONTRACTING ALLIANCE WHEREAS, the City desires to contract with a multifunctional copier vendor for the lease of 20 multifunctional copiers, including staff training, delivery, installation, and maintenance of said copiers utilizing Western States Contracting Alliance ("WSCA") Contract Number: 7-09-36-01 for multifunctional copiers and related software, and the State of California (Participating State) to the extent that the WSCA contract does not conflict with this Agreement; and WHEREAS, the City has determined that Konica Minolta Business USA, Inc., ("Konica Minolta") is a multifunctional copier vendor that is qualified by experience and ability to perform the services desired by the City, and Konica Minolta is willing to perform such services; and WHEREAS, Section 2.60.260 of the National City Municipal Code provides that the City may buy directly from a vendor at a price established through competitive bidding by another public agency whose procedures have been determined to be in substantial compliance with National City's procurement procedures, and the City has made such a determination in this case. It is therefore recommended that the lease purchase be made without complying with the competitive bidding procedure set forth in the Municipal Code. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby affirms the determination that State of California's procurement procedures are in substantial compliance with the City of National City's, and pursuant to Section 2.60.260 of the Municipal Code, authorizes the waiver of the bidding process for the lease of 20 multifunctional copiers, including staff training, delivery, installation, and maintenance of said copiers utilizing Western States Contracting Alliance ("WSCA") Contract Number: 7-09-36-01 for multifunctional copiers and related software, with the State of California (Participating State) to the extent that the WSCA contract terms do not conflict with this Lease Agreement. BE IT FURTHER RESOLVED that the City Council hereby authorizes the Mayor to execute the five-year Lease Agreement with Konica Minolta Business Solutions, USA, Inc., for the lease of 20 multifunctional copiers, including staff training, deliver, installation and maintenance of the copiers. Said Lease Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 19th day of June, ATTEST: /! Michael R. Dalla, y Clerk on Morrison, Mayor ROVED TO Fe f tit IIItrit AI udia Gacit City Attor ey Passed and adopted by the Council of the City of National City, California, on June 19, 2012 by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Rios, Sotelo-Solis, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California N A City CI rk of the City of N tional City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2012-127 the City of National City, California, passed and adopted by the Council of said City on June 19, 2012. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: June 19, 2012 AGENDA ITEM NO. 12 .. EM TITLE: Resolution of the City Council of the City of National City waiving the bid process by piggybacking Western States Contracting Alliance (WSCA) contract #1715 and authorizing the Mayor to execute a 5 year multifunction copier lease and service agreement with Konica Minolta Business Solutions USA INC. PREPARED BY: Ron Williams DEPARTMENT: PHONE: 619-336-4373 APPROVED EXPLANATION: See Attachment (Background) FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: Estimated annual cost for first three years is $112,000. Funds: 632-404-047-268-0000 ($88,800) 108-431-000-299-0000 ($23,200) ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt resolution BOARD / COMMISSION RECOMMENDATION: N/A "—TACHMENTS: :planation(Background) Contract and Exhibits A-D LNCORPdRATED City Council Staff Report June 19, 2012 ITEM Resolution of the City Council of the City of National City waiving the bid process by piggybacking Western States Contracting Alliance (WSCA) contract #1715 and authorizing the Mayor to execute a five (5) year multifunction copier lease and service agreement with Konica Minolta Business Solutions USA, Inc. BACKGROUND In May, 2012, the City's multi -year lease agreement for multifunction copiers expired. The agreement provided for the equipment necessary for copy, print and fax processing City-wide (with the exception of Fire Station 31 and the Library). Consistent with best business practices, prior to the expiration of the agreement, staff began researching options considering both pricing and functionality. During the research period, the current vendor agreed to a one month extension allowing staff the time necessary to complete this process with no interruption in service. Based on the research conducted, staff determined that the services of Konica Minolta Business Solutions, USA, Inc. (KMBS), as contracted through the Western States Contracting Alliance (WSCA), provides both competitive pricing and the needed functionality. As such, staff seeks the authority to enter into an agreement with KMBS via a piggy back of the existing WSCA agreement. DISCUSSION Staff seeks to leverage WSCA contract #1715 to meet the City's multifunction copier needs utilizing vendor, KMBS. The WSCA contract was created so that participating Western states as well as local cities, counties, public schools and institutions of higher learning could join together in cooperative multi -state contracting for competitively bid imaging equipment and services. The City of National City currently leases from Ikon Office Solutions Inc., fourteen (14) Canon multifunction copiers located at various City facilities. A new five year lease agreement with KMBS will result in a more advantageous pricing model (cost per copy). In addition to replacing the fourteen (14) copiers noted, the proposed lease agreement will include six (6) multifunction copiers for the Library [5] and Fire Station 31 [1] for a total of twenty (20) leased multifunction copiers. The Library currently owns five (5) Xerox copiers that are reaching the end of their projected life span at six (6) years old thus needing to be replaced. Konica Minolta is seeking an exception to the termination of convenience clause based on the following: "Konica Minolta would like to help in any way possible within reason to help the City of National City attain this savings. However, the terms pertaining to cancellation found in Section 22, "Termination for the Convenience of The State", are preventing us from moving forward. We at Konica Minolta would like to express how this would have a great financial hardship and great risk if the City would move forward with a cancellation midterm. The products and services that Konica Minolta offers, as well as our rivals, who offer similar products and services, are all technology -based. Like computers, phones and other technology hardware, the market price of these products greatly diminishes once unboxed, delivered and hen used. In addition, the slow collection of payments over 5 years does not keep up with the depreciation of the product. This situation is not much different than it is for the City's leased automobiles. When a car dealer leases a vehicle, the contract is signed and the hardware asset is delivered. If the City had a cancellation for convenience contract and chose to invoke that option mid- term, the amount owed would be more than the payments received. If the dealer was forced to take back the automobile, the resale value would not match up to the amount owed. This would create a financial hardship on the dealer. This analogy is similar to the photocopier industry. The cost to take back used equipment mid-term would present a financial hardship. The risk within this opportunity is far different than the risk, say a construction contractor would have to bare, in that if the City cancelled a construction contract all that the contractor would lose is future business not yet rendered. The'City, most likely would have to pay for work rendered up to the moment of cancellation, but not in the future. This is quite different with a hardware / technology lease, because the equipment is delivered, partially used and it loses its value with every click, or if a car, it loses its value with every mile drive, Konica Minolta respectfully requests the termination for convenience he removed and that we keeping place the termination for Non - Appropriation and termination for cause in its place." Staff finds the justification provided by KMBS to be valid based on the commodity under consideration. As drafted in the proposed agreement, the City would retain the right to terminate the agreement for cause including terminal breach, misrepresentation by the vendor and/or failure to perform services as directed by the City. The agreement can also be terminated in the event that funds to continue payment are not appropriated by the City. FISCAL IMPACT The total estimated cost is $112,000 per year for the first three (3) years. The agreement allows for a price escalation of up to ten percent (10%) in years four (4) and five (5). The six (6) multifunction copiers for the Library would be funded via Library Fund # 108-431-000-299- 0000. Through a copy fee charged to patrons (consistent with current authorized business practices), the Library is estimated to generate enough revenue to cover the cost of its portion of the lease. The remaining copiers would be funded via Fund # 632-4040-047-268-0000. The estimated cost will result in cost savings of approximately $24,000 compared to the current multifunction copier lease with Ikon Office Solutions Inc. RECOMMENDATION Staff recommends and that Council waiving the formal bidding requirements as allowed in Section 2.60.260 of the City of National City Municipal Code, and awarding the contract to Konica Minolta Business Solutions USA, Inc. (including exempting the termination for convenience provision), for the following reasons: 1. Piggyback Western States Contracting Alliance(WSCA) contract #1715 2. The price has been determined to be competitive within the industry. 3. No further purpose would be served by issuing a formal bid at this point in the process. RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY WAIVING THE BID PROCESS AND AUTHORIZING THE MAYOR TO EXECUTE A FIVE-YEAR LEASE AGREEMENT WITH KONICA MINOLTA BUSINESS SOLUTIONS, USA, INC., THROUGH A COOPERATIVE PURCHASE PROGRAM UNDER THE WESTERN STATE CONTRACTING ALLIANCE WHEREAS, the City desires to contract with a multifunctional copier vendor for the lease of 20 multifunctional copiers, including staff training, delivery, installation, and maintenance of said copiers utilizing Western States Contracting Alliance ("WSCA") Contract Number: 7-09-36-01 for multifunctional copiers and related software, and the State of California (Participating State) to the extent that the WSCA contract does not conflict with this Agreement; and WHEREAS, the City has determined that Konica Minolta Business USA, Inc., ("Konica Minolta") is a multifunctional copier vendor that is qualified by experience and ability to perform the services desired by the City, and Konica Minolta is willing to perform such services; and WHEREAS, Section 2.60.260 of the National City Municipal Code provides that the City may buy directly from a vendor at a price established through competitive bidding by another public agency whose procedures have been determined to be in substantial compliance with National City's procurement procedures, and the City has made such a determination in this case. It is therefore recommended that the lease purchase be made without complying with the competitive bidding procedure set forth in the Municipal Code. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby affirms the determination that State of California's procurement procedures are in substantial compliance with the City of National City's, and pursuant to Section 2.60.260 of the Municipal Code, authorizes the waiver of the bidding process for the lease of 20 multifunctional copiers, including staff training, delivery, installation, and maintenance of said copiers utilizing Western States Contracting Alliance ("WSCA") Contract Number: 7-09-36-01 for multifunctional copiers and related software, with the State of California (Participating State) to the extent that the WSCA contract terms do not conflict with this Lease Agreement. BE IT FURTHER RESOLVED that the City Council hereby authorizes the Mayor to execute the five-year Lease Agreement with Konica Minolta Business Solutions, USA, Inc., for the lease of 20 multifunctional copiers, including staff training, deliver, installation and maintenance of the copiers. Said Lease Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 19th day of June, 2012. Ron Morrison, Mayor ATTEST: APPROVED AS TO FORM: Michael R. Dalla, City Clerk Claudia Gacitua Silva City Attorney AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC. THIS AGREEMENT is entered into this 19th day of June, 2012, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Konica Minolta Business Solutions U.S.A. Inc., a Corporation (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to provide 20 leased multifunctional copiers, staff training, delivery, installation, and maintenance of said copiers utilizing Western States Contracting Alliance ("WSCA") contract number 7-09-36-01 — for multifunctionalcopiers and related software and the State of California (Participating State) to the extent that the WSCA contract does not conflict with this Agreement. WHEREAS, the CITY has determined that the CONTRACTOR is a multifunctional copier vendor and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY agrees to engage the CONTRACTOR, and the CONTRACTOR agrees to perform the services set forth here in accordance with all terms and conditions contained in this agreement. The CONTRACTOR represents that all services shall be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. Deliver, install and provide maintenance and training for 20 leased multifunctional copiers at City facilities. The CONTRACTOR will perform delivery and installation at City facilities as set forth in the attached Exhibit "A". CONTRACTOR shall deliver and install within 30 days following contract execution, all copiers and necessary equipment to the City. CONTRACTOR shall provide training within two days following mulitfunctional copier delivery. CONTRACTOR shall provide preventive maintenance assessments biannually and perform any remedial/reparative maintenance as required. Contractor shall respond to service calls within 2 hours and contact requestor with an estimated time of arrival. The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONTRACTOR shall keep staff and City Council advised of the progress on the Project. 1 The CITY may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 15% from the Base Amount. 3. PROJECT COORDINATION AND SUPERVISION. Ron Williams hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Gene Elwell thereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and materials, if any. The cost per copy shall not exceed the amounts set forth in Exhibit "A". For the first three years of this Agreement, the total "monthly service" and "library service" costs shall not exceed the amounts set forth in Exhibit "A". Thereafter, the "monthly service" and "library service" costs may be adjusted pursuant to Section 24. A. 6. of this Agreement. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Section 2 of this Agreement and Exhibit "A", as determined by the CITY. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 5. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONTRACTOR and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR in this Agreement, the City or the CONTRACTOR shall give to the other written notice. Within ten (10) business days, the CONTRACTOR and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR. 6. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on June 19, 2012. The duration of this Agreement is for the period of 60 months, through June 19, 2017. 2 2012 Agreement. City of National City Konica Minolta Business Solutions USA. Inc. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. Not Applicable. 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or SUBCONTRACTORS, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its SUBCONTRACTOR(S) shall require the SUBCONTRACTOR(S) to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR'S employees, except as herein set forth, and the CONTRACTOR or the CONTRACTOR'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONTRACTOR its agents, servants, and employees are as to the CITY wholly independent CONTRACTOR, and that the CONTRACTOR'S obligations to the CITY are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR and each of its SUBCONTRACTOR(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 12. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions 3 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. necessary to protect the CONTRACTOR'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR'S professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. 4 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR'S acts and omissions; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established acts or omissions of the City, its agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 16. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement, unless such claims, demands, payments, suits, actions, proceedings, and judgements are caused by the established negligent act, omission or willful misconduct of the CITY or its officers, employees, or volunteers. 17. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONTRACTOR(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A. ❑ If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising 5 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. out of its operations under this Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. Such limits may be satisfied using any combination of underlying and excess umbrellsliability policies.Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. If CONTRACTOR has no employees subject to the California Workers' Compensation and Labor laws, CONTRACTOR shall execute a Declaration to that effect. Said Declaration shall be provided to CONTRACTOR by CITY. D. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. E. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. F. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. G. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY' S Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. H. All deductibles and self -insured retentions Shall be the responsibility of the CONTRACTOR. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 6 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. This section shall not apply to claims for collection of payments from the CITY. 20. TERMINATION. A. Should CONTRACTOR fail to cure any defaults within 30 days from receipt of written notice from CITY, this Agreement may be terminated by the CITY for cause in the event of 1) a material breach of this Agreement, 2) misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or 3) the failure to perform services as directed by the CITY, that have not been cured with said 30 day cure period B. The CITY may also terminate this Agreement, without penalty, if funds to effect such continued payment are not appropriated. Termination for lack of appropriation shall be effective 30 days from the date of service of written notice of lack of appropriation. Upon termination for lack of appropriation, the CITY shall be relieved of any further obligation under this Agreement, except that deliverables shall be returned to the CONTRACTOR's nearest facility in substantially the same condition in which delivered to the CITY, subject to normal wear and tear. C. Any services portion of this Agreement may be terminated by the CITY, without penalty, for convenience,with or without cause, upon service of written notice. Such termination will be effective 30 days from the date of service of written notice, or after such longer period as set forth in the notice. Upon termination of any services portion of this Agreement, the CITY shall be relieved of any further obligation under this Agreement except that CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed up to the effective date of the termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONTRACTOR's breach, if any. D. Termination shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. E. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR except for those documents considered confidential or proprietary to CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the 7 2012 Agreement City of National City Konica Minolta Business Solutions USA, Inc. Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONTRACTOR'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. F. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Ron Williams IT Manager Administrative Services City of National City 1243 National City Boulevard National City, CA 91950-4301 To CONTRACTOR: Gene Elwell Senior Account Executive Konica Minolta Business Solutions U.S.A., Inc. 5659 Cornerstone Court W. #200 San Diego, CA 92121 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 8 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter corning before the CITY in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. U If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 22 by the CONTRACTOR. 23. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. CONTRACTOR is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 24. OPTIMIZED PRINT SERVICES. A. The following terms and conditions apply to the service and maintenance of the leased and other equipment referred to as Optimized Print Service ("OPS") provided by CONRACTOR to CITY during the term of this Agreement for the equipment listed on Exhibit "A" ("Equipment") of the Agreement. 1. PAYMENT: Payment is pursuant to the payment terms provided under this Agreement. Compensation shall be limited as set forth in Section 4 of this Agreement, and the cost for all work performed pursuant to this Addendum, combined with the cost for all work performed pursuant to the Agreement, shall not exceed the amount set forth in Section 4 of the Agreement. 2. METER READINGS: CONTRACTOR charges for each copy or print performed by the Equipment included in the Optimized Print Services contract, attached hereto as Exhibit "A". A copy or print shall be defined as the generation of any document or image on the Equipment. For purposes of this Agreement, all such uses of Equipment shall be 9 2012 Agreement City of National City Konica Minolta Dusiness Solutions USA, Inc. referenced herein as a "print". CITY agrees to pay for supplies and maintenance services based on KMBS's monitoring software meter readings. CITY shall not alter or attempt to alter actual meter reading. A monochrome print is one page of hard copy generated by printing, copying, faxing, or utilizing black toner only. A color print is one page of hard copy generated by printing, copying, faxing, or utilizing any amount of toner that is not black, even if it also uses black toner. Each 8 %"x 11" print will be recorded as a single meter click. 11" x 17" prints count as double clicks. Duplexed prints shall be counted as two meter clicks. For models equipped with banner printing capabilities, the following meter click charges shall apply: 18"x 27" = 3 clicks; 27"x 36" = 4 clicks; 36"x 47" = 5 clicks. 3. SITE PREPARATION: CITY shall ensure that Equipment is placed in an environment that conforms with the manufacturer's specifications and requirements and will bear all cost and expense for any additional necessities required for installation such as telephone and electrical wiring, remodeling, and noise and power filters. Any electrical work external to the Equipment (i.e. associated peripheral equipment, power, transmission and phone lines, and modems) and equipment line cord is not covered by this Agreement. 4. SERVICE INCLUDED: In addition to the Scope of Services as provided in Section 2 of this Agreement, CONTRACTOR agrees to provide labor or routine, remedial and break/fix service as well as remedial parts. All part replacements shall be on an exchange basis with new or refurbished items. Unless otherwise indicated, normal business hours are 8:30 am to 5:00 pm, Monday through Friday, exclusive of holidays observed by KMBS. Overtime charges, at CONTRACTOR's then current rate, will be charged for all service calls outside normal business hours. In addition to any other rights hereunder, CONTRACTOR reserves the right to delete discontinued equipment from this Agreement if parts and or supplies become unavailable for discontinued equipment. 5. OPTIMIZED PRINT SERVICES DEVICE MONITORING: As a requirement to the service and maintenance provided herein, the CITY agrees to allow CONTRACTOR to install, monitoring, software on the CITY's network for the term of the contract for the purpose of automated meter collection, service alerts, and automated supplies replenishment notification. CITY agrees to not interfere with operation or sizable CONTRACTOR monitoring software. 6. ESCALATION: Unless otherwise stated in the Agreement, at the end of the first three years of this agreement and once each successive twelve month period, we may increase the service charges by a maximum of 10% of the existing charge. 7. NETWORK INTEGRATION: If Network Integration services are provided by KMBS, CITY warrants that the CONTRACTOR Digital Needs Analysis ("DNA") has been accurately completed and CONTRACTOR may rely on the information contained in the DNA in providing network integration services. CONTRACTOR reserves the right to assess additional charges for service due to CITY's modification of its network, software, or operating system(s). 8. SUPPLIES INCLUDED IN THE BASE/PRINT CHARGE: If the Konica Minolta Multifunctional ("MFP's") option on the front of this Agreement has been 10 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. selected, CONTRACTOR (or designated services) will provide CITY with supplies, including but not limited to toner, developer, copy cartridges, staples and PM kits ("Consumable Supplies") throughout the term of this Agreement for Konica Minolta MFP's listed on Exhibit "A". If the Konica Minolta desktop printer and/or non -Konica Minolta desktop printer option is selected, CONTRACTOR will provide CITY with supplies including OEM toner cartridges for Konica Minolta desktop printers, and "Compatible" toner cartridges for non -Konica Minolta desktop printers. CITY agrees that the Consumable Supplies are CONTRACTOR property until used by CITY. CITY will use Consumable Supplies only with the Equipment and run them to their cease -function point. CITY shall not remove the Consumable Supplies from the location designated as CITY's address on the first page of this Agreement. CITY will return any unused Consumable Supplies to CONTRACTOR at the end of this Agreement. CITY shall use reasonable care to store and protect CONTRACTOR Consumable Supplies located at CITY's location for CITY's convenience. CITY bears risk of loss of CONTRACTOR unused Consumable Supplies in the event of theft, fire, or other mishap. Should CITY's use of Consumable Supplies exceed the typical use pattern (as determined solely by CONTRACTOR) for these items by more than 50% per device under contract, or should CONTRACTOR, in its sole discretion, determine that Consumable Supplies are being abused in any fashion, CITY agrees that CONTRACTOR shall have the right to change the per page rate and minimum monthly charge for this contract. 9. "COMPATIBLE" TONER CARTRIDGES: For Non -Konica Minolta devices included in the contract, the CITY agrees to allow CONTRACTOR to utilize "Compatible" toner cartridges for supplies fulfillment. 10. CATRIDGE LIMITATIONS: Each device included in this contract will have a pre -determined maximum number of allowable cartridges included per year based on assessed volumes per device. Should the CITY exceed the maximum number of cartridges on any contracted device(s), additional cartridge charges determined by CONTRACTOR will be incurred. 11. TERMINATION: Termination of Optimized Print Services, in whole or in part, shall have no effect on any existing equipment lease agreement. Termination shall be governed by Section 20 of the Agreement. 25. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. 11 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. The terms and conditions of this Agreement, supplemented by (1) the terms and conditions of that certain MASTER SERVICE AGREEMENT FOR SERVICES OF INDEPENDENT CONTRACTOR (RFP/CONTRACT # 1715) (the "MSA"), which is attached hereto as Exhibit "B" and made a part hereof, (2) the terms and conditions of that certain CALIFORNIA PARTICIPATING ADDENDUM (7-09-36-01) (the "CPA"), which is attached hereto as Exhibit "C", (3) the WESTERN STATES CONTRACTING ALLIANCE GENERAL PROVISIONS (the "WSCA GENERAL PROVISIONS"), which is attached hereto as Exhibit "D", and (4) Exhibit "A", collectively represent the entire agreement of the CONTRACTOR and the CITY with respect to the subject matter hereof, and all agreements entered into prior hereto with respect to the subject matter hereof are revoked and superseded by this Agreement, and no representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein or in other contemporaneous written agreements. This Agreement may not be changed, modified or rescinded except in writing, signed by CONTRACTOR and the CITY, and any attempt at oral modification of this Agreement shall be void and of no effect. Notwithstanding any term or provision of the Agreement to the contrary, in the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of the MSA and CPA as described in Exhibits "B" and "C", the teens and provisions of this Agreement shall be controlling for all purposes and in all respects. Notwithstanding the foregoing, CONTRACTOR and the CITY hereby agree and acknowledge that (i) Section 21 — TERMINATION FOR NON - APPROPRIATION OF FUNDS. (ii) Section 22 - TERMINATION FOR THE CONVENIENCE OF THE STATE, (iii) Section 23 — TERMINATION FOR DEFAULT, (iv) Section 26 — LIMITATION OF LIABILITY, and (v) Section 28 — INDEMNIFICATION of the WSCA GENERAL PROVISIONS are each hereby rejected/deleted in their entirety. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) 12 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: Ron Morrison, Mayor APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC. (Corporation — signatures of two corporate officers required) By: (Name) (Print) (Title) By: (Name) (Print) (Title) 13 2012 Agreement: City of National City Konica Minolta Business Solutions USA, Inc. Exhibit A Konica Minolta Proposal EXHIBIT A Current Fleet Cost vs. New Location Konica Minolta Recommendation Service CPC Black White White Service Color CPC Finance C552 $ 0.0076 $ 0.0375 Copy Room CH1 C754 $ 0.0076 $ 0.0375 City Mgr/ City Attorney C452 $ 0.0081 $ 0.0382 Council/CH 2 C220 $ 0.0143 $ 0.0620 PD Traffic B223 $ 0.0136 PD Investigation B552 $ 0.0085 PD Records C654 $ 0.0076 $ 0.0375 PD Report Writing C552 $ 0.0076 $ 0.0375 Property/ Evidence C220 $ 0.0143 $ 0.0620 PD 2 Administration C654 $ 0.0076 $ 0.0375 HR C360 $ 0.0096 $ 0.0544 Community Service C754 $ 0.0076 $ 0.0375 Fire #34 C360 $ 0.0096 $ 0.0544 Fire #31 C360 $ 0.0096 $ 0.0544 Public Works B363 $ 0.0170 Library (2) C220 0.0143 0.062 Library (3)C360 0.0096 0.0544 Monochrome Desktop Printers $ 0.0193 Color Desktop Printers $ 0.0193 $ 0.1187 60 month Muncipal Lease (Monthly Payment) $ 4,178.04 Monthly Service * $ 1,653.98 Monthly Printer Service * $ 1,081.51 Library $ 1,570.85 Library Service $ 299.42 Total Monthly Cost $ 8,783.80 Revenue From Library $ (1,931.40) Revised Total Monthly Cost $ 6,852.40 Current Cost Equipment/Service Printer Monthly Cost Net Savings of New over Current Savings from Printer Service Contract 7,323.00 1,787.51 2,258.11 414.98 *Estimated Service Cost based upon 201,746 Black White and 6,103 Current Copier Color usage *Estimated Printer Monthly Cost based upon Black White usage 37,123 and 3,062 Current Color usage The WSCA contract is a Cost per Copy (CPC) agreement with no committed volumes. Only paying for copies you use. Taxes not included. Includes Delivery, Installation and Training 14 New Library Konica Minolta Imaging SolutEXHIBIT A Staff Admin & Admin 2 Literacy & Wings Public Computer Lab Childrens Public Copy Room Average Monthly Current Unit Volume BW Color Minolta UnitCPC BW CPC Color 430 ST 5107 C360 430 DC's 11818 C360 :New Konica ` WC 24 7326 746 C360 426ST 470 C220 426 ST 1350 C220 Estimated Public Service Cost Black White $ 96.36 Color $ 40.58 Total Public Cost $ 136.94 Estimated Staff Service Cost Black White Color (Unknown) Total Monthly Service Cost $ 162.48 299.42 Equipment Lease Cost (Staff and Public) Includes: (5) new color copier, printer and scanners. New Coin Bill Cost Retrieval System 60 month lease $ 1,570.85 New Library Total Cost $ 1,870.27 Black White Color Total Montly Revenue Net Profit from Revenue 26071 746 26817 Public Cost Per Copy 9146 $0.15 $1,371.90 746 $0.75 $559.50 $1,931.40 15 $ 0.0096 $ 0.0544 $ 0.0096 $ 0.0544 $ 0.0096 $ 0.0544 $ 0.0143 $ 0.0620 $ 0.0143 $ 0.0620 Exhibit A Desktop Printers Monochrome and Color Model Serial Number hp color LaserJet 5550 JPSC81J0M5 HP Color LaserJet CP3525 CNCCB6S08W HP Color LaserJet CP3525 CNCCB27105 HP Color LaserJet CP3525 CNCCC8Q0SQ HP Color LaserJet CP3525 CNCCB1L01B hp LaserJet 2430 CNGKC04535 hp LaserJet 2430 CNGKB01212 HP LaserJet 4050 Series U5BB224981 HP LaserJet 4050 Series USCC094668 HP LaserJet 4100 Series USJNH17307 HP LaserJet 4100 Series USJNH17059 HP LaserJet 4100 Series USLND14145 HP LaserJet 4100 Series USBNG36341 HP LaserJet P2015N JPBFG03174 HP LaserJet P2055dn CNB9967254 HP LaserJet P2055dn CNB9N94016 HP LaserJet P2055dn CNB1740381 HP LaserJet P2055dn CNB9N94009 HP LaserJet P2055x CNB1740383 HP LaserJet P2055x VNB3T02664 HP LaserJet P3010 Series VNBCC4L4HG HP LaserJet P4015 CNDY854123 HP LaserJet P4015 CNDY853913 EXHIBIT A 16 EXHIBIT B For Purchasing Use Only: RFP/CONTRACT # 1715 MASTER SERVICE AGREEMENT FOR SERVICES OF INDEPENDENT CONTRACTOR A Contract between the Western States Contracting Alliance (WSCA) Acting by and through the State of Nevada Depai trnent of Administration Purchasing Division 515 E Musser Street, Room 300 Carson City NV 89701 Contact: Lyn Callison Telephone: (775) 684- 0198 • Fax: (775) 684-0188 and Konica Minolta Business Solutions USA Inc. 2120 Washington Blvd. Suite 450 Arlington VA 22204-5711 Contact: Kimberley Talbot Telephone: (703) 842-3231 • Fax: (703) 271-1188 Pursuant to Nevada Revised Statute (NRS) 277.100, NRS 277.110, NRS 333.162(1)(d), and NRS 333.480 the Chief of the Purchasing Division of Nevada is authorized to enter into cooperative group -contracting consortium. The Western States Contracting Alliance is a cooperative group -contracting consortium for state government departments, institutions, agencies and political subdivisions (i.e., colleges, school districts, counties, cities, etc.,) for the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Minnesota, Montana, Nevada, New Mexico, Oregon, South Dakota,. Utah, Washington and Wyoming. In consideration of the above premises, the parties mutually agree as follows: 1. REQUIRED APPROVAL. This contract shall not become effective until and unless approved by the Western States Contracting Alliance Board of Directors. 2. DEFINITIONS. "WSCA" means the Western States Contracting Alliance. "State" and/or "Lead State" means the State of Nevada and its state agencies, officers, employees and immune contractors as defined in NRS 41.0307. "Participating State(s)" means state(s) that have signed (and not revoked) an Intent to Contract at the time of the award of this contract, or who have executed a Participating Addendum. "Buyer" means any WSCA agency or political subdivision participating under this contract. "Contractor" and/or Contracting Agency" means a person or entity that performs services and/or provides goods for WSCA .under the terms and conditions set forth in this contract. "Solicitation" means RFP 1715 incorporated herein as Attachment AA. "Fiscal Year" is defined as the period beginning July 1 and ending June 30 of the following year. 3. CONTRACT TERM. This contract shall be effective from June 1, 2009 upon execution by the State of Nevada on behalf of the Western States Contracting Alliance, sales may not be placed until the start Effective 04/07 Page 1 of 12 17 EXHIBIT B date set by a participation state in its Participation Addendum, to June 30, 2012 with the option to extend for two (2) one (1) year terms, unless sooner terminated by either party as specified in paragraph (21). 4. CANCELLATION OF CON'I'RACF; NOTICE. Unless otherwise stated in the special terms and conditions, any contract entered into as a result of the Solicitation may be canceled by either party upon written notice sixty (60) days prior to the effective date of the cancellation. Further, any Participating State may cancel its participation upon thirty (30) days written notice, unless otherwise limited or stated in the special terms and conditions of the Solicitation. Cancellation may be in whole or in part. Any cancellation under this provision shall not affect the rights and obligations attending orders outstanding at the time of cancellation, including any right of any Participating State to indemnification by the Contractor, rights of payment for goods/services delivered and accepted, and rights attending any warranty or default in performance in association with any order. Cancellation of the contract due to Contractor default may be immediate. 5. INCORPORATED DOCUMENTS. The parties agree that the scope of work shall be specifically described; this contract incorporates the following attachments in descending order of constructive precedence: ATTACHMENT AA: ATTACHMENT BB: ATTACHMENT CC ATTACHMENT DD: SOLICITATION # 1715 (Scope of Work) and AMENDMENT 1; SERVICE LEVEL AGREEMENT (SLA) WSCA FORMS INCLUDING ADDENDUM 1 CONTRACTOR'S RESPONSE A Contractor's attachment shall not contradict or supersede any WSCA specifications, terms or conditions without written evidence of mutual assent to such change appearing in this contract. 7. ASSENT. The parties agree that the terms and conditions listed on incorporated attachments of this contract are also specifically a part of this contract and are limited only by their respective order of precedence and any limitations specified. 8. BID SPECIFICATIONS. Contractor certifies that any deviation from the specifications in the scope of work, incorporated herein as part of Attachment AA, have been clearly indicated by Contractor in its response, incorporated herein as Attachment DD; otherwise, it will be considered that the bid is in strict compliance. Any BRAND NAMES or manufacturers' numbers are stated in the specifications are intended to establish a standard only and are not restrictive unless the Solicitation states "no substitute," and unless so stated, bids have heen considered on other makes, models or brands having comparable quality, style, workmanship and performance characteristics. Alternate bids offering lower quality or inferior performance have not been considered. 9. ACCEPTANCE OR REJECTION OF BIDS, AND AWARD. WSCA has the right to accept or reject any or all bids or parts of bids, and to waive informalities therein. This contract is based the lowest responsive and responsible bid and meets the specifications of the Solicitation and terms and conditions thereof. Unless stated otherwise in the Solicitation, WSCA has the right to award items separately or by grouping items in a total lot. 10. BID SAMPLES. Any required samples have been specifically requested in the Solicitation. Samples, when required, have been furnished free of charge. Except for those samples destroyed or mutilated in testing, samples will be returned at a bidder's request, transportation collect. 11. CONSIDERATION. The parties agree that Contractor will provide the product services specified in paragraph (5) at a cost of $ Various Rates for Groups A and B Only per Attachment DD, Cost Proposal. Unless otherwise stated in the special terms and conditions, for the purpose of award, offers made in accordance with the Solicitation must be good and firm for a period of ninety (90) days from Effective 04/07 Page 2of12 18 EXHIBIT B the date of bid opening. Contracted prices represent ceiling prices for the supplies and services offered. The Contractor shall report to the Lead State any price reduction or discount, or other more favorable terms offered to any WSCA Purchasing Entity and the Contractor agrees to negotiate in good faith to re-establish ceiling prices or other more favorable terms and conditions applicable to future orders. Bid prices must remain firm for the full term of the contract. In the case of error in the extension of prices in the bid, the unit prices will govern. WSCA does not guarantee to purchase any amount under this contract. Estimated quantities in the Solicitation are for bidding purposes only and are not to he construed as a guarantee to purchase any amount. Unless otherwise stated in the special terms and conditions offers made in accordance with the Solicitation must be good and firm for a period of ninety (90) days from the date of bid opening. Bid prices must remain firm for the full term of the contract. In the case of error in the extension of prices in the bid, the unit prices will govern. If Contractor has quoted a cash discount based upon early payment; discounts offered for less than thirty (30) days have not been considered in making the award. The date from which discount time is calculated shall be the date a correct invoice is received or receipt of shipment, whichever is Iater; except that if testing is performed, the date shall be the date of acceptance of the merchandise. WSCA is not liable for any costs incurred by the bidder in proposal preparation. a. WSCA Administrative Fee. The Contractor will remit to the WSCA a WSCA Administrative Fee in the amount of one half of one percent (.5 %) of the total sales from this contract made payable to the "Western States Contracting Alliance". A statement verifying the total sales amount, incorporated herein as part of Attachment CC, must accompany the remittance. This remittance will be due not later than 30 days after the last day of each calendar quarter. 12. PAYMENT. Payment for completion of a contract is normally made within thirty (30) days following the date the entire order is delivered or the date a correct invoice is received, whichever is later. After forty-five (45) days the Contractor may assess overdue account charges up to a maximum rate of one (1) percent per month on the outstanding balance. Payments will be remitted by mail. Payments may be made via a Participating State's "Purchasing Card." 13. TAXES. Prices shall be exclusive of state sales and federal excise taxes. Where a Participating State is not exempt from sales taxes on sales within its state, the Contractor shall add the sales taxes on the billing invoice as a separate entry. Contractor will be responsible to pay all taxes, assessments, fees, premiums, permits, and licenses required by law. The Lead State's real property and personal property taxes are the responsibility of Contractor in accordance with NRS 361.157 and NRS 361.159. Contractor agrees to be responsible for payment of any such government obligations not paid by its subcontractors during performance of this contract. Nevada may set-off against consideration due any delinquent government obligation in accordance with NRS 353C.190. 14. FINANCIAL OBLIGATIONS OF PARTICIPATING STATES. Financial obligations of Participating States are limited to the orders placed by the departments or other state agencies and institutions having available funds. Participating States incur no financial obligations on behalf of political subdivisions. Unless otherwise specified in the Solicitation, the resulting award(s) will he permissive. 15. ORDER NUMBERS. Contract order and purchase order numbers shall be clearly shown on all acknowledgments, shipping labels, packing slips, invoices, and on all correspondence. 16. REPORTS. The Contractor shall submit quarterly reports to the WSCA Contract Administrator showing the quantities and dollar volume of purchases by each Participating State, incorporated herein as part of Attachment CC. 17. DELIVERY. The prices bid shall he the delivered price to any WSCA state agency or political subdivision. All deliveries shall be F.O.B. destination with all transportation and handling charges paid by the Contractor. Responsibility and liability for loss or damage shall remain with the Contractor until final inspection and acceptance, when responsibility shall pass to the Buyer except as Effective 04107 Page 3 of 12 19 EXHIBIT B to latent defects, fraud and Contractor's warranty obligations. The minimum shipment amount will be found in the special terms and conditions. Any order for less than the specified amount is to be shipped with the freight prepaid and added as a separate item on the invoice. Any portion of an order to be shipped without transportation charges that is back -ordered shall be shipped without charge. 18. HAZARDOUS CHEMICAL INFORMATION. The Contractor will provide one set of the appropriate material safety data sheet(s) and container label(s) upon delivery of a hazardous material to any Buyer. All safety data sheets and labels will be in accordance with each Participating State's requirements. 19. INSPECTIONS. Goods furnished under this contract shall be subject to inspection and test by the Buyer at times and places determined by the Buyer. If the Buyer finds goods furnished to be incomplete or in non-compliance with bid specifications, the Buyer may reject the goods and require Contractor to either correct them without charge or deliver them at a reduced price which is equitable under the circumstances. If Contractor is unable or refuses to correct such goods within a time deemed reasonable by the Buyer, the Buyer may cancel the order in whole or in part. Nothing in this paragraph shall adversely affect the Buyer's rights including the rights and remedies associated with revocation of acceptance under the Uniform Commercial Code. 20. INSPECTION & AUDIT. a. Books and Records. The Contractor will maintain, or supervise the maintenance of all records necessary to properly account for the payments made to the Contractor for costs authorized by this contract. Contractor agrees to keep and maintain under generally accepted accounting principles (GAAP) full, true and complete records, contracts, books, and documents as are necessary to fully disclose to WSCA, the State or United States Government, or their authorized representatives, upon audits or reviews, sufficient information to determine compliance with all state and federal regulations and statutes. b. Inspection & Audit. Contractor agrees that the relevant books, records (written, electronic, computer related or otherwise), including, without limitation, relevant accounting procedures and practices of Contractor or its subcontractors, financial statements and supporting documentation, and documentation related to the work product shall be subject, at any reasonable time, to inspection, examination, review, audit, and copying at any office or location of Contractor where such records may be found, with or without notice by WSCA; the United States Government; the State Auditor or its contracted examiners, the Department of Administration, Budget Division, the Nevada State Attorney General's Office or its Fraud Control Units, the State Legislative Auditor, and with regard to any federal funding, the relevant federal agency, the Comptroller General, the General Accounting Office, the Office of the Inspector General, or any of their authorized representatives. All subcontracts shall reflect requirements of this paragraph. c. Period of Retention. All books, records, reports, and statements relevant to this contract must be retained a minimum four (4) years after the contract terminates or or until all audits initiated within the four (4) years have been completed, whichever is later, and for five (5) years if any federal funds are used in the contract. The retention period runs from the date of payment for the relevant goods or services by the State, or from the date of termination of the Contract, whichever is later. Retention time shall he extended when an audit is scheduled or in progress for a period reasonably necessary to complete an audit and/or to complete any administrative and judicial litigation which may ensue. Effective 04107 Page4of12 20 EXHIBIT B 21. CONTRACT TERMINATION. Any of the following events shall constitute cause for WSCA to declare Contractor in default of the contract: (1) nonperformance of contractual requirements; and/or (2) a material breach of any term or condition of this contract. WSCA shall issue a written notice of default providing a period in which Contractor shall have an opportunity to cure. Time allowed for cure shall not diminish or eliminate Contractor's liability for liquidated or other damages. If the default remains, after Contractor has been provided the opportunity to cure, WSCA may do one or more of the following: (1) exercise any remedy provided by law; (2). terminate this contract and any related contracts or portions thereof; (3) impose liquidated damages; and/or (4) suspend Contractor from receiving future bid solicitations. Winding Up Affairs Upon Termination. In the event of termination of this contract for any reason, the parties agree that the provisions of this paragraph survive termination: i. The parties shall account for and properly present to each other all claims for fees and expenses and pay those which are undisputed and otherwise not subject to set off under this contract. Neither party may withhold performance of winding up provisions solely based on nonpayment of fees or expenses accrued up to the time of termination; ii. Contractor shall satisfactorily complete work in progress at the agreed rate (or a pro rata basis if necessary) if so requested by WSCA; iii. Contractor shall execute any documents and take any actions necessary to effectuate an assignment of this contract if so requested by WSCA; iv. Contractor shall preserve, protect and promptly deliver into WSCA's possession all proprietary information in accordance with paragraph (31). 22. REMEDIES. Except as otherwise provided for by law or this contract, the rights and remedies of the parties shall not be exclusive and are in addition to any other rights and remedies provided by law or equity, including, without limitation, actual damages, and to a prevailing party reasonable attomeys' fees and costs. It is specifically agreed that reasonable attorneys' fees shall include without limitation $125 per hour for attorneys employed by the Lcad State. Nevada may set off consideration against any unpaid obligation of Contractor to any State agency in accordance with NRS 353C.190. 23. LIMITED LIABILITY. Nevada will not waive and intends to assert available NRS chapter 41 liability limitations in all cases. Contract liability of both parties shall not be subject to punitive damages. Liquidated damages shall not apply unless otherwise specified in the incorporated attachments. Damages for any breach by the Lead State shall never exceed the amount of funds appropriated for payment under this contract, but not yet paid to Contractor, for the fiscal year budget in existence at the time of the breach. Damages for any Contractor breach shall not exceed 150% of the contract maximum "not to exceed" value. Contractor's tort liability shall not be limited. 24. FORCE MAJEURE. Neither party to this contract shall be deemed to be in violation of this contract if it is prevented from performing any of its obligations hereunder due to strikes, failure of public transportation, civil or military authority, act of public enemy, accidents, fires, explosions, or acts of God, including, without limitation, earthquakes, floods, winds, or storms. In such an event the intervening cause must not be through the fault of the party asserting such an excuse, and the excused party is obligated to promptly perform in accordance with the terms of the contract after the intervening cause ceases. WSCA may terminate this contract after determining such delay or default will reasonably prevent successful performance of the contract. 25. INDEMNIFICATION. To the fullest extent permitted by law, Contractor shall indemnify, hold harmless and defend, not excluding the State's right to participate, Nevada from and against all liability, claims, actions, damages, losses, and expenses, including, without limitation, reasonable attorneys' fees EJfec:ire 04/017 Page 5 of 12 21 EXHIBIT B and costs, arising out of any alleged negligent or willful acts or omissions of Contractor, its officers, employees and agents. The Contractor shall release, protect, indemnify and hold WSCA and the respective states and their officers, agencies, employees, harmless from and against any damage, cost or liability, including reasonable attorney's fees for any or all injuries to persons, property or claims for money damages arising from acts or omissions of the contractor, his employees or subcontractors or volunteers. 26. INSURANCE SCHEDULE. Unless expressly waived in writing by the Lead State or Participating States, Contractor, as an independent contractor and not an employee of the Lead State or Participating States, must carry policies of insurance in amounts specified in this Insurance Schedule and/or any Insurance Schedule agreed by Contractor and a Participating State via a participating addendum, and pay all taxes and fees incident hereunto. The Lead State and Participating States shall have no liability except as specifically provided in the contract. The Contractor shall not commence work before: 1) Contractor has provided the required evidence of insurance to the Lead State. The Lead State's approval of any changes to insurance coverage during the course of performance shall constitute an ongoing condition subsequent this contract. Any failure of the Lead State to timely approve shall not constitute a waiver of the condition. Insurance Coverage: The Contractor shall, at the Contractor's sole expense, procure, maintain and keep in force for the duration of the contract the following insurance conforming to the minimum requirements specified below. Unless specifically stated herein or otherwise agreed to by the Lead State, the required insurance shall be in effect prior to the commencement of work by the Contractor and shall continue in force as appropriate until the latter of: 1. Final acceptance by the Lead State of the completion of this contract; or 2. Such time as the insurance is no longer required by the Lead State under the terms of this contract. Any insurance or self-insurance available to the State shall be excess of and non-contributing with any insurance required from Contractor. Contractor's insurance policies shall apply on a primary basis. Until such time as the insurance is no longer required by the Lead State, Contractor shall provide the Lead State with renewal or replacement evidence of insurance no less than thirty (30) days before the expiration or replacement of the required insurance. If at any time during the period when insurance is required by the contract, an insurer or surety shall fail to comply with the requirements of this contract, as soon as Contractor has knowledge of any such failure, Contractor 'shall immediately notify the State and immediately replace such insurance or bond with an insurer meeting the requirements. Workers' Compensation and Employer's Liability Insurance 1) Contractor shall provide proot of worker's compensation insurance. 2) Employer's Liability insurance with a minimum limit of $500,000 each employee per accident for bodily injury by accident or disease. Commercial General Liability Insurance 1) Minimum Limits required: $2,000.000.00 General Aggregate $1,000.000.00 Products & Completed Operations Aggregate $1,000,000.00 Personal and Advertising Injury $1,000,000.00 Each Occurrence 2) Coverage shall be on an occurrence basis and shall be at least as broad as ISO 1996 form CG 00 01 (or a substitute form providing equivalent coverage); and shall cover liability arising from Effective 04/07 Pave 6 of 12 22 EXHIBIT B premises, operations, independent contractors, completed operations, personal injury, products, civil lawsuits, Title VII actions and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). Business Automobile Liability Insurance 1) Minimum Limit required: $1,000,000.00. Each Occurrence for bodily injury and property damage. ) Coverage shall be for "any auto" (including owned, non -owned and hired vehicles). The policy shall be written on ISO form CA 00 01 or a substitute providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. Professional Liability Insurance 1) Minimum Limit required: $ Waived. Each Claim 2) Retroactive date: Prior to conmmencernent of the performance of the contract 3) Discovery period: Three (3) years after termination date of contract. 4) A certified copy of this policy may be required. Umbrella or Excess Liability Insurance 1) May be used to achieve the above minimum liability limits. 2) Shall be endorsed to state it is "As Broad as Primary Policy" Commercial Crime Insurance Minimum Limit required: $Waived. Per Loss for Employee Dishonesty This insurance shall be underwritten on a blanket form amending the definition of "employee" to include all employees of the Vendor regardless of position or category. General Requirements: h. Waiver of Subrogation: Bach liability insurance policy shall provide for a waiver of subrogation as to additional insureds. c. Cross -Liability: All required liability policies shall provide cross -liability coverage as would be achieve under the standard ISO separation of insureds clause. d. Deductibles and Self -Insured Retentions: Insurance maintained by Contractor shall apply on a first dollar basis without application of a deductible or self -insured retention unless otherwise specifically agreed to by the Lead State or Participating States. Such approval shall not relieve Contractor fi-om the obligation to pay any deductible or self -insured retention. Any deductible or self -insured retention shall not exceed fri, thousand dollars ($50,000.00) per occurrence, unless otherwise approved. e. Policy Cancellation: Except for ten (10) days notice for non-payment of premium, each insurance policy shall be endorsed to state that; without thirty (30) days prior written notice to the Lead State, the policy shall not be canceled, non -renewed or coverage and /or limits reduced or materially altered, and shall provide that notices required by this paragraph shall be sent by certified mailed to the address identified on page 1 of the contract. f. Approved Insurer: Each insurance policy shall be: 1) Issued by insurance companies authorized to do business in the Lead State and Participating States or eligible surplus lines insurers acceptable to the Lead State and Participating States and having agents upon whom service of process may be made, and 2) Currently rated by A.M. Best as "A- VIl" or better. Effective 04/07 Page 7 of 12 23 EXHIBIT B Evidence of Insurance: Prior to the start of any Work, Contractor must provide the following documents to the Lead State: 1) Certificate of Insurance: The Acord 25 Certificate of Insurance form or a form substantially similar must be submitted to the State to evidence the insurance policies and coverages required of Contractor. 2) Schedule of Underlying Insurance Policies: If Umbrella or Excess policy is evidenced to comply with minimum limits, a copy of the tinderlyer Schedule from the Umbrella or Excess insurance policy may be required. Review and Approval: Documents specified above must be submitted for review and approval by the Lead State prior to the commencement of work by Contractor. Neither approval by the Lead State nor failure to disapprove the insurance furnished by Contractor shall relieve Contractor of Contractor's full responsibility to provide the insurance required by this contract. Compliance with the insurance requirements of this contract shall not limit the Iiability of Contractor or its sub -contractors, employees or agents to the Lead State or others, and shall be in addition to and not in lieu of any other remedy available to the Lead State or Participating States under this contract or otherwise. The Lead State reserves the right to request and review a copy of any required insurance policy or endorsement to assure compliance with these requirements. Mail all required insurance documents to the Lead State identified on page one of the contract. 27. COMPLIANCE WITII LEGAL OBLIGATIONS. Any and all supplies, services and equipment bid and furnished shall comply fully with all applicable Federal and State laws and regulations. Contractor shall procure and maintain for the duration of this contract any state, county, city or federal license, authorization, waiver, permit, qualification or certification required by statute, ordinance, law, or regulation to be held by Contractor to provide the goods or services required by this contract. The Lead State may set-off against consideration due any delinquent government obligation in accordance with NRS 353C.190. 28. WAIVER OF BREACH. Failure to declare a breach or the actual waiver of any particular breach of the contract or its material or nonmaterial terns by either party shall not operate as a waiver by such party of any of its rights or remedies as to any other breach. 29. SEVERA.BILITY. If any provision of this contract is declared by a court to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected; and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the particular provision held to be invalid. 30. ASSIGNMENT/DELEGATION. To the extent that any assignment of any right under this contract changes the duty of either party, increases the burden or risk involved, impairs the chances of obtaining the performance of this contract, attempts to operate as a novation, or includes a waiver or abrogation of any defense to payment by State, such offending portion of the assignment shall he void, and shall be a breach of this contract. Contractor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this contract, in whole or in part, without the prior written approval of the WSCA Contract Administrator. Effective 04/07 Page 8 of 12 24 EXHIBIT B 31. OWNERSHIP OF PROPRIETARY INFORMATION. Any reports, histories, studies, tests, manuals, instructions, photographs, negatives, blue prints, plans, maps, data, system designs, computer code (which is intended to be consideration under the contract), or any other documents or drawings, prepared or in the course of preparation by Contractor (or its subcontractors) in performance of its obligations under this contract shall be the exclusive property of WSCA and all such materials shall be delivered into WSCA possession by Contractor upon completion, termination, or cancellation of this contract. Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than performance of Contractor's obligations under this contract without the prior written consent of WSCA. Notwithstanding the foregoing, WSCA shall have no proprietary interest in any materials licensed for use that are subject to patent, trademark or copyright protection. 32. PATENTS, COPYRIGHTS, ETC. The Contractor shall release, indemnify and hold WSCA, the State, and Participating States and their officers, agents and employees harmless from liability of any kind or nature, including the Contractor's use of any copyrighted or un-copyrighted composition, secret process, patented or unpatented invention, article or appliance furnished or used in the performance of this contract. 33. PUBLIC RECORDS. Pursuant to NRS 239.010, information or documents received from Contractor may be open to public inspection and copying. The State will have the duty to disclose unless a particular record is made confidential by law or a common law balancing of interests. Contractor may label specific parts of an individual document as a "trade secret" or "confidential" in accordance with NRS 333.333, provided that Contractor thereby agrees to indemnify and defend the State for honoring such a designation. The failure to so label any document that is released by the State shall constitute a complete waiver of any and all claims for damages caused by any release of the records. 34. CONFIDENTIALITY. Contractor shall keep confidential all information, in whatever form, produced, prepared, observed or received by Contractor to the extent that such information is confidential by law or otherwise required by this contract. 35. NONDISCRIMINATION. Contractor agrees to abide by the provisions of Title VI and Title VII of the Civil Rights Act of 1964 (42 USC 2000e), which prohibit discrimination against any employee or applicant for employment, or any applicant or recipient of services, on the basis of race, religion, color, or national origin; and further agrees to abide by Executive Order No. 11246, as amended, which prohibits discrimination on basis of sex; 45 CFR 90 which prohibits discrimination on the basis of age, and Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990 which prohibits discrimination on the basis of disabilities. Contractor further agrees to furnish information and reports to requesting Participating Entities, upon request, for the purpose of determining compliance with these statutes. Contractor agrees to comply with each individual Participating State's certification requirements, if any, as stated in the special terms and conditions. This contract may be canceled if the Contractor fails to comply with the provisions of these laws and regulations. Contractor must include this provision in very subcontract relating to purchases by the States to insure that subcontractors and vendors are bound by this provision. 36. FEDERAL FUNDING. In the event federal funds are used for payment of all or part of this contract: a. Contractor certifies, by signing this contract, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. This certification is made pursuant to the regulations implementing Executive Order 12549, Debannent and Suspension, 28 C.F.R. pt. 67, § 67.510, as published as pt. VII of the May26, 1988, Federal Register (pp. 19160-19211), and any relevant program -specific regulations. This provision shall be required of every subcontractor receiving any payment in whole or in part from federal funds. EfJ-eclice 04/07 Page 9 of I? 25 EXHIBIT B b. Contractor and its subcontractors shall comply with all teens, conditions, and requirements of the Americans with Disabilities Act of 1990 (P.L. 101-136), 42 U.S.C. 12101, as amended, and regulations adopted thereunder contained in 28 C.F.R. 26.101-36.999, inclusive, and any relevant program -specific regulations. c. Contractor and its subcontractors shall comply with the requirements of the Civil Rights Act of 1964, as amended, the Rehabilitation Act of 1973, P.L. 93-112, as amended, and any relevant program -specific regulations, and shall not discriminate against any employee or offeror for employment because of race, national origin, creed, color, sex, religion, age, disability or handicap condition (including AIDS and AIDS -related conditions.) 37. LOBBYING. The parties agree, whether expressly prohibited by federal law, or otherwise, that no funding associated with this contract will be used for any purpose associated with or related to lobbying or influencing or attempting to lobby or influence for any purpose the following: a. Any federal, state, county or local agency, legislature, commission, counsel or board; b. Any federal, state, county or local legislator, commission member, counsel member, board member, or other elected official; or c. Any officer or employee of any federal, state, county or local agency; legislature, commission, counsel or board. 38. NON -COLLUSION. Contractor certifies that this contract and the underlying bid, have been arrived at independently and have been without collusion with, and without any agreement, understanding or planned common course of action with, any other vendor of materials, supplies, equipment or services described in the invitation to hid, designed to limit independent bidding or competition. 39. WARRANTIES. a. Uniform Commercial Code. The Contractor acknowledges that the Uniform Commercial Code applies to this contract. In general, the contractor warrants that: (a) the product will do what the salesperson said it would do, (b) the product will live up to all specific claims that the manufacturer makes in their advertisements, (c) the product will be suitable for the ordinary purposes for which such product is used, (d) the product will be suitable for any special purposes that the Buyer has relied on the Contractor's skill or judgment to consider. b. General Warranty. Contractor warrants that all services, deliverables, and/or work product under this contract shall be completed in a workmanlike mamrer consistent with standards in the trade, profession, or industry; shall conform to or exceed the specifications set forth in the incorporated attachments; and shall be fit for ordinary use, of good quality, with no material defects. c. System Compliance. Contractor warrants that any infoiniation system application(s) shall not experience abnormally ending and/or invalid and/or incorrect results from the application(s) in the operating and testing of the business of the State. This warranty includes, without limitation, century recognition, calculations that accommodate same century and multicentury formulas and data values and date data interface values that reflect the century. 40. CONFLICT OF INTEREST. Contractor certifies that it has not offered or given any gift or compensation prohibited by the state laws of any WSCA participants to any officer or employee of WSCA or participating states to secure favorable treatment with respect to being awarded this contract. 41. INDEPENDENT CONTRACTOR. Contractor shall be an independent contractor, and as such shall have no authorization, express or implied to hind WSCA or the respective states to any agreements, settlements, liability or understanding whatsoever, and agrees not to perform any acts as agent for WSCA or the states, except as expressly set forth herein. Effective 04/07 Page l a of 12 26 EXHIBIT B 42. POLITICAL SUBDIVISION PARTICIPATION. Participation under this contract by political subdivisions (i.e., colleges, school districts, counties, cites, etc.,) of the WSCA Participating States shall be voluntarily determined by the political subdivision. The Contractor agrees to supply the political subdivisions based upon the same teams, conditions and prices. 43. PROPER AUTHORITY. The parties hereto represent and warrant that the person executing this contract on behalf of each party has full power and authority to enter into this contract. Contractor acknowledges that as required by statute or regulation this contract is effective only after approval by the WSCA Board of Directors and only for the period of time specified in the contract. Any services performed by Contractor before this contract is effective or after it ceases to be effective are performed at the sole risk of Contractor. The Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction (contract) by any governmental department or agency. 44. GOVERNING LAW; JURISDICTION. This contract and the rights and obligations of the parties hereto shall be governed and construed in accordance with the laws of the state of Nevada, without giving effect to any principle of conflict -of -law that would require the application of the law of any other jurisdiction. The parties consent to the exclusive jurisdiction of the First Judicial District Court, Carson City, Nevada for enforcement of this contract. The construction and effect of any Participating Addendum or order against the contract(s) shall be governed by and construed in accordance with the laws of the Participating State. Venue for any claim, dispute or action concerning an order placed against the contract(s) or the effect of a Participating Addendum or shall be in the Purchasing State. 45. SIGNATURES IN COUNTERPART. Contract may be signed in any number of counterparts, each of which shall be an original, hut all of which together shall constitute one in the same instrument. 46. ENTIRE CONTRACT AND MODIFICATION. This contract and its integrated attachment(s) constitute the entire agreement of the parties and such are intended as a complete and exclusive statement of the promises, representations, negotiations, discussions, and other agreements that may have been made in connection with the subject matter hereof. Unless an integrated attachment to this contract specifically displays a mutual intent to amend a particular part of this contract, general conflicts in language between any such attachment and this contract shall be construed consistent with the terms of this contract. The terms of this contract shall not be waived, altered, modified, supplemented or amended in any manner whatsoever without prior written approval of the WSCA Contract Administrator. IN WITNESS WHEREOF, the parties hereto have caused this contract to be signed and intend to be legally bound thereby. Effoclire 04/07 Page II of 12 27 EXHIBIT B ractor's Signature Signature J 666 APPROVED BY WSCA BOARD OF DIRECTORS Greg Si iith, Administrator, State of Nevada 6 t N (9-0Ott t\ i\ GAM,.Afi Date 1 j Independent's Contractor's Title Date Title Approved as to form by: On 3/ 4 (Date) On 23 d -c CI Deputy ne'General for Attorney General (Date) �ttor Effective 04/07 Page 12 of 12 28 EXHIBIT C CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNCTION COPIERS & RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. MASTER PRICE AGREEMENT 7-09-36-01 1. Scope: This Participating Addendum covers the rental, lease or purchase of Multifunction Copier & Related Software for all State Agencies and will include all California political subdivisions/local governments. A subdivision/local government is defined as any city, county, city and county., district, or other local governmental body or corporation, including the California State Universities (CSU) and University of California (UC) systems, K-12 schools and community colleges empowered to expend public funds. Each political subdivision/local government should make its own determination whether the WSCA program is consistent with its procurement policies and regulations. STATE AGENCIES ARE RESTRICTED FROM USING THIS WSCA CONTRACT IN ACCORDANCE WITH MANAGEMENT MEMO #05-11, EXCEPT FOR THOSE ITEMS/CATEGORIES NOT OFFERED UNDER CALIFORNIA'S STATEWIDE COMMODITY CONTRACT FOR MULTIFUNCTION COPIER & RELATED SERVICES. IF ANY STATE DEPARTMENT WANTS TO USE THE CONTRACT TO PURCHASE ITEMS NOT ON THE CALIFORNIA STATEWIDE COMMODITY CONTRACT FOR MULTIFUNCTION COPIER & RELATED SERVICES, THEY MUST COMPLETE A STATEWIDE CONTRACT EXEMPTION REQUEST FORM SIGNED BY THEIR PROCUREMENT AND CONTRACTING OFFICIER (PCO) OR PURCHASING AUTHORITY CONTACT (PAC) AND SUBMIT IT TO THE DEPARTMENT OF GENERAL SERVICES (DGS) FOR APPROVAL PLEASE SEND ALL EXEMPTION REQUEST TO THE ATTENTION OF THE WSCA CONTRACT ADMINISTRATOR. INFORMATION ABOUT THE STRATEGICALLY SOURCED COPIER, DIGITAL & ASSOCIATED SERVICES CONTRACTS IS AVAILABLE AT: www.pd.dqs.ca.qov/StratSourcinq/MROcontract.htm THE SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING ARRA FUNDS APPLY TO THE ORDERING AGENCY. IF OR WHEN KONICA MINOLTA, AS A VENDOR, IS NOTIFIED BY ORDERING AGENCY THAT A SPECIFIC PURCHASE OR PURCHASES ARE BEING MADE WITH ARRA FUNDS, KONICA MINOLTA AGREES TO COMPLY WITH THE DATA ELEMENT AND REPORTING REQUIREMENTS THAT ARE LEGALLY REQUIRED OF PROVIDERS OF GOODS AND RELATED SERVICES. KONICA MINOLTA, AS IT RELATES TO PURCHASES UNDER THIS CONTRACT IS NOT A SUBCONTRACTOR OR SUBGRANTEE, BUT SIMPLY A PROVIDER OF GOODS AND RELATED SERVICES 2. Leasing, Rental & Purchase Funding to purchase or lease products available under this contract may be available to State agencies via the GS $Mart (purchases) or Lease $Mart program. Local agencies are able to take advantage of all options in the WSCA Master Price Agreement without restrictions. 3. Changes: For usage under this Participating Addendum by any Eligible Entity listed in Section 1, Scope, the following Changes apply: a. The California General Provisions (CAGP) (GSPD-4011T based on April 12, 2007 standard) for Western States Contracting Alliance (WSCA) Multifunction Copiers & Related Software as attached become a part of this Participating Addendum. b. The California General Provisions (CAGP) shall prevail if there is a conflict between the terms and conditions of the contractor's WSCA State of Nevada, Master Price Agreement, packaging, invoices, catalogs, brochures and technical data sheets. c. State of Nevada, Master Price Agreement number 1715 changed for California to Contract Number 7-09-36-01. d. Delivery: As negotiated between agency and contractor and included in the purchase order, or as otherwise stipulated in the contract. Revised 8/28/08 Page 1 of 4 29 EXHIBIT C CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNCTION COPIERS & RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. MASTER PRICE AGREEMENT 7-09-36-01 f. DGS Termination of Contract: 9. The State may terminate this contract at any time upon 30 day prior written notice. Upon termination or other expiration of this contract, each party will assist the other party in orderly termination of the contract and the transfer of all assets, tangible and intangible, as may facilitate the orderly, nondisrupted business continuation of each party. This provision shall not relieve the contractor of the obligation to perform under any purchase order or other similar ordering document executed prior to the termination becoming effective. Reports & Administrative Fee: Contractor shall submit report to the California Contract Administrator for all California purchases providing the following information: Agency Name Purchase Order Number Purchase Order Date WSCA Contract Number WSCA Administrative Fee Dollar Amount Agency Contact Name Agency Address Agency Telephone Number Total Dollars for the quarter The Contractor shall submit a check, in addition to the report, payable to the State of Califomia, Contract Administrator for the calculated administrative fee for an amount equal to one percent (0.01) of the sales for the quarterly period. This fee shall be included as an adjustment to contractors WSCA pricing and not invoiced or charged to the purchasing entity. Payment of the administrative fee by Contractor due irrespective of status of payments on orders from users to Contractor. A report is due even when there is no activity. Any report that does not follow the required format or that excludes information will be deemed incomplete. Failure to submit reports and fees on a timely basis shall constitute grounds for suspension of this agreement. Reports and fee delivery will be in accordance with the following schedule. Calendar Quarter 1 Calendar Quarter 2 Calendar Quarter 3 Calendar Quarter 4 (JUL 1 to SEP 30) (OCT 1 to DEC 31) (JAN 1 to MAR 31) (APR 1 to JUN 30) Due OCT 31 Due JAN 31 Due APR 30 Due JUL 31 The administrative fee check and report should be submitted to the following address: Cynthia Okoroike Department of General Services Procurement Division Multiple Award Program - WSCA 707 Third Street, 2nd Floor, MS # 202, West Sacramento, CA 95605-2811 h. The primary state government contact for this Participating Addendum is as follows: Department of General Services, Procurement Division Multiple Award Program - WSCA 707 Third Street, 2nd Floor, MS # 202 West Sacramento, CA 95605 Revised 8/28/08 Page 2 of 4 30 EXHIBIT C CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNCTION COPIERS & RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. MASTER PRICE AGREEMENT 7-09-36-01 Contact: Cynthia Okoroike E-mail: cvnthia.okoroike(a�dgs.ca.gov Phone: (916) 375-4389 Fax: (916) 375-4663 Lead State: Name: Lyn Callison Address: 515 East Musser Street Telephone: (775) 684-0198 Fax: (775) 684-0188 E-mail: Icalliso@purchasing.state.nv.us Contractor's Contact: Name: Kim Talbot Address: 2120 Washington Boulevard, Suite 450, Arlington, VA 22204 Telephone: (703) 842-3213 Fax: (703) 271-1188 E-mail: talbotk@kmbs.konicaminolta.us i. The primary Konica Minolta Business Solution U.S.A, Inc. CUSTOMER contact for this Participating Addendum is as follows: J• Konica Minolta Business Solution U.S.A, Inc. Address: 2120 Washington Boulevard, Suite 450 Arlington, VA 22204 Contact: Michelle Lovely E-Mail: mlovelyAkmbs.konicaminolta.us Phone: (303) 717-3108 Fax: (703)271-1188 Price Agreement Number: The Master Price Agreement number for the Participating State is 7-09-36-01. The Master Price Agreement Number MUST be shown on all Purchase Orders issued against this Master Price Agreement. k. Effective Dates: This Participating Addendum shall be effective upon approval by the Department of General Services and will continue until the End Date of the Master Price Agreement. Lead State amendments to extend the term date are automatically incorporated into this Participating Addendum unless terminated early in accordance with the terms and conditions of the Master Price Agreement or this Participating Addendum. Revised 8/28/08 Page 3 of 4 31 EXHIBIT C CALIFORNIA PARTICIPATING ADDENDUM WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNCTION COPIERS & RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. MASTER PRICE AGREEMENT 7-09-36-01 I. Servicing Subcontractors: Please use web site below and type in zip code: http: //kmb sapps.konicaminolta. u s/wh eretobuy/home.i spx?productCategory=Office%20 Systems&printerBrand=&ho w ToBuy=&ho wMany=&cat=&subcat=&model=&wtb Pro dLine. This Addendum and the Price Agreement together with its exhibits and/or amendments, set forth the entire agreement between the parties with respect to the subject matter of all previous communications, representations or agreements, whether oral or written, with respect to the subject matter hereof. Terms and conditions inconsistent with, contrary or in addition to the terms and conditions of this Addendum and the Price Agreement, together with its exhibits and/or amendments, shall not be added to or incorporated into this Addendum or the Price Agreement and its exhibits and/or amendments, by any subsequent purchase order or otherwise, and any such attempts to add or incorporate such terms and conditions are hereby rejected. The terms and conditions of this Addendum and the Price Agreement and its exhibits and/or amendments shall prevail and govern in the case of any such inconsistent or additional terms. By Signing below Konica Minolta Business Solution U.S.A, Inc. agrees to offer the same products/and or services as on the State of Nevada at prices equal to or lower than the prices on this contract. IN WITNESS WHEREOF, the parties have executed this Participating Addendum as of the date of execution by both parties below. State of California: By: Name: Jim Butler Title: Deputy Director Date: ////o/o GENERAL SERVICES LEGAL SERVICES Konica Mi ..Ita Business Sol s�.n U...A, Inc. By. Title: \� - . 0 Date: T) _ 0 Revised 8/28/08 Page 4 of 4 32 GSPD-4011T EXHIBIT D WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS 1. DEFINITIONS: Unless otherwise specified in the Statement of Work the following terms shall be given the meaning shown, unless context requires otherwise. "Acceptance Tests" means those tests performed during Me Performance Period which are intended to determine compliance of Equipment and Software with the specifications and ail other Attachments incorporated herein by reference and to determine the reliability of the Equipment. "Application Program" means a computer program which is intended to be executed for the purpose of performing useful work for the user of the information being processed. Application programs are developed or otherwise acquired by the user of the Hardware/Software system, but they may be supplied by the Contractor. "Attachment" means a mechanical, electrical, or electronic interconnection to the Contractor -supplied Machine or System of Equipment, manufactured by other than the original Equipment manufacturer, that is not connected by the Contractor. "Business entity" means any individual, business, partnership, joint venture, corporation, S-corporation, limited liability corporation, limited liability partnership, sole proprietorship, joint stock company, consortium, or other private legal entity recognized by statute. "Buyer" means the State's authorized contracting official. "Commercial Software" means Software developed or regularly used that: (i) has been sold, leased, or licensed to the general public; (ii) has been offered for sale, lease, or license to the general public; (HI) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Contract; or (iv) satisfies a criterion expressed in (i), (ii), or (iii) above and would require only minor modifications to meet the requirements of this Contract. "Contract" means this Contract or agreement (including any purchase order), by whatever name known or in whatever format used. "Custom Software" means Software that does not meet the definition of Commercial Software. "Contractor" means the Business Entity with whom the State enters into this Contract. Contractor shall be synonymous with "supplier", "vendor or other similar term. "Data Processing Subsystem" means a complement of Contractor -furnished individual Machines, including the necessary controlling elements (or the functional equivalent) and Operating Software, if any, which are acquired to operate as an integrated group, and which are interconnected entirely by Contractor -supplied power and/or signal cables; e.g., direct access controller and drives, a cluster of terminals with their controller, etc. "Data Processing System (System)" means the total complement of Contractor -furnished Machines, including one or more central processors (or instruction processors) and Operating Software, which are acquired to operate as an integrated group. "Deliverables" means Goods, Software, Information Technology, telecommunications technology, and other items (e.g. reports) to be delivered pursuant to this Contract, Including any such items furnished incident to the provision of services. "Designated CPU(s)" means for each product, if applicable, the central processing unit of the computers or the server unit, including any associated peripheral units. If no specific "Designated CPU(s)" are specified on -the, Contract, the term shall mean any and all CPUs located at the site Revision 9/30/2009 (GSPD•401/T based on April 12, 2007) 33 specified therein. "Documentation" means nonproprietary manuals and other printed materials necessary or useful to the State in its use or maintenance of the Equipment or Software provided hereunder. Manuals and other printed materials customized for the State hereunder constitute Documentation only to the extent that such materials are described in or required by the Statement of Work. "Equipment" is an all-inclusive term which refers either to individual Machines or to a complete Data Processing System or subsystem, including its Hardware and Operating Software (if any). "Equipment Failure" is a malfunction in the Equipment, excluding all external factors, which prevents the accomplishment of the Equipment's intended function(s). If microcode or Operating Software residing in the Equipment is necessary for the proper operation of the Equipment, a failure of such microcode or Operating Software which prevents the accomplishment of the Equipment's intended functions shall be deemed to be an Equipment Failure. "Facility Readiness Date" means the date specified in the Statement of Work by which the State must have the site prepared and available for Equipment delivery and installation. "Goods" means all types of tangible personal property, including but not limited to materials, supplies, and Equipment (including computer and telecommunications Equipment). "Hardware" usually refers to computer Equipment and is contrasted with Software. See also Equipment. "Installation Date" means the date specified in the Statement of Work by which the Contractor must have the ordered Equipment ready (certified) for use by the State. "Information Technology" includes, but is not limited to, all electronic technology systems and services, automated information handling, System design and analysis, conversion of data, computer programming, information storage and retrieval, telecommunications which include voice, video, and data communications, requisite System controls, simulation, electronic commerce, and all related interactions between people and Machines. "Machine" means an individual unit of a Data Processing System or subsystem, separately identified by a type and/or model number, comprised of but not limited to mechanical, electro-mechanical, and electronic parts, microcode, and special features installed thereon and including any necessary Software, e.g., central processing unit, memory module, tape unit, card reader, etc. "Machine Alteration" means any change to a Con!ractor- supplied Machine which is not made by the Contractor, and which results in the Machine deviating from its physical, mechanical, electrical, or electronic (including microcode) design, whether or not additional devices or parts are employed in making such change. "Maintenance Diagnostic Routines" means the diagnostic programs customarily used by the Contractor to test Equipment for proper functioning and reliability. "Manufacturing Materials" means parts, tools, dies, jigs, fixtures, plans, drawings, and information produced or acquired, or rights acquired, specifically to fulfill obligations set forth herein. "Mean Time Between Failure (MTBF)" means the average expected or observed time between consecutive failures in a System or component. "Mean Time to Repair (MTTR)" means the average expected or observed time required to repair a System or component and return it to normal operation. Page 1 of 11 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS "Operating Software" means those routines. whether or not identified as Program Products, that reside in the Equipment and are required for the Equipment to perform its intended function(s), and which interface the operator, other Contractor -supplied programs, and user programs to the Equipment. "Operational Use Time" means for performance measurement purposes, that time during which Equipment is in actual operation by the State. For maintenance Operational Use Time purposes, that time during which Equipment is in actual operation and is not synonymous with power on time. "Performance Testing Period" means a period of time during which the State, by appropriate tests and production runs, evaluates the performance of newly installed Equipment and Software prior to its acceptance by the State. "Period of Maintenance Coverage" means the period of time, as selected by the State, during which maintenance services are provided by the Contractor for a fixed monthly charge, as opposed to an hourly charge for services rendered. The Period of Maintenance Coverage consists of the Principal Period of Maintenance and any additional hours of coverage per day, andfor increased coverage for weekends and holidays. "Preventive Maintenance" means that maintenance, performed on a scheduled basis by the Contractor, which is designed to keep the Equipment in proper operating condition. "Principal Period of Maintenance" means any nine consecutive hours per day (usually between the hours of 7:00 a.m. and 6:00 p.m.) as selected by the State, including an official meal period not to exceed one hour, Monday through Friday, excluding holidays observed at the installation. "Programming Aids" means Contractor -supplied programs and routines executable on the Contractor's Equipment which assists a programmer in the development of applications including language processors, sorts, communications modules, data base management systems, and utility routines, (tape -to -disk routines, disk -to -print routines, etc.). "Program Product" means programs, routines, subroutines, and related items which are proprietary to the Contractor and which are licensed to the State for Its use, usually on the basis of separately stated charges and appropriate contractual provisions. "Remedial Maintenance" means that maintenance performed by the Contractor which results from Equipment (including Operating Software) failure, and which is performed as required, i.e., on an unscheduled basis. "Site License" means for each product, the term ''Site License" shall mean the license established upon acquisition of the applicable number of copies of such product and payment of the applicable license fees as set forth in the Statement of Work. "Software" means an all-inclusive term which refers to any computer programs, routines, or subroutines supplied by the Contractor, including Operating Software, Programming Aids, Application Programs, and Program Products. "Software Failure" means a malfunction in the Contractor - supplied Software, other than Operating Software, which prevents the accomplishment of work, even though the Equipment (including its Operating Software) may still be capable of operating properly. For Operating Software failure, see definition of Equipment Failure. "State" means the government of the State of California, Revision 9/30/2009 (GSPD-40117 based on April 12, 2007) 34 its employees and authorized representatives, including without limitation any department, agency, or other unit of the government of the State of California. "System" means the complete collection of Hardware, Software and services as described in this Contract, integrated and functioning together, and performing in accordance with this Contract. "U.S. Intellectual Property Rights" means intellectual property rights enforceable in the United States of America, including without limitation rights in trade secrets, copyrights, and U.S. patents. 2. CONTRACT FORMATION: a) If this Contract results from a sealed bid offered in response to a solicitation conducted pursuant to Chapters 2 (commencing with Section 10290), 3 (commencing with Section 12100), and 3.6 (commencing with Section 12125) of Part 2 of Division 2 of the Public Contract Code (PCC), then Contractor's bid is a firm offer to the State which is accepted by the issuance of this Contract and no further action is required by either party. b) If this Contract results from a solicitation other than described in paragraph a), above, Contractor's quotation or proposal is deemed a firm offer and this Contract document is the State's acceptance of that offer. c) If this Contract resulted from a joint bid, it shall be deemed one indivisible Contract. Each such joint Contractor will be jointly and severally liable for the performance of the entire Contract. The State assumes no responsibility or obligation for the division of orders or purchases among joint Contractors. 3. COMPLETE INTEGRATION: This Contract, including any documents incorporated herein by express reference, Is Intended to be a complete integration and there are no prior or contemporaneous different or additional agreements pertaining to the subject matter of the Contract. 4. SEVERABILITY: The Contractor and the State agree that if any provision of this Contract is found to be illegal or unenforceable, such term or provision shall be deemed stricken and the remainder of the Contract shall remain in full force and effect. Either party having knowledge of such term or provision shall promptly inform the other of the presumed non -applicability of such provision. 5. INDEPENDENT CONTRACTOR: Contractor and the agents and employees of Contractor, in the performance of this Contract, shall act in an independent capacity and notes officers or employees or agents of the State. 6. APPLICABLE LAW: This Contract shall be governed by and shall be interpreted in accordance with the laws of the State of California; venue of any action brought with regard to this Contract shall be in Sacramento County, Sacramento, California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract. 7. COMPLIANCE WITH STATUTES AND REGULATIONS: a) Contractor warrants and certifies that in the performance of this Contract, it will comply with all applicable statutes, rules, regulations and orders of the United States and the State of California and agrees to indemnify the State against any loss, cost, damage or liability by reason of the Contractor's violation of this provision. b) The State will notify Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and Page 2 of 11 - GSPD-4011T EXHIBIT D WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS c) Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated, by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (ii) the State will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (iii) the State will reasonably cooperate in the defense and in any related settlement negotiations. d) If this Contract is in excess of $500,000, it is subject to the requirements of the World Trade Organization (WTO) Government Procurement Agreement (GPA). e) To the extent that this contract falls within the scope of Government Code Section 11135, Contractor hereby agrees to respond to and resolveany complaint brought to its attention, regarding accessibility of its products or services. 8. CONTRACTOR'S POWER AND AUTHORITY: The Contractor warrants that it has full power and authority to grant the rights herein granted and will hold the State harmless from and against any loss, cost, liability, and expense (including reasonable attorney fees) arising out of any breach of this warranty. Further, Contractor avers that it will not enter into any arrangement with any third party which might abridge any rights of the State under this Contract. The State will notify Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (ii) the State will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (iii) the State will reasonably cooperate in the defense and in any related settlement negotiations. 9. ASSIGNMENT: This Contract shall not be assignable by the Contractor in whole or in part without the written consent of the State. For the purpose of this paragraph, State will not unreasonably prohibit Contractor from freely assigning its right to payment, provided that Contractor remains responsible for its obligations hereunder. 10. WAIVER OF RIGHTS: Any action or inaction by the State or the failure of the State on any occasion, to enforce any right or provision of the Contract, shall not be construed to be a waiver by the State of its rights hereunder and shall not prevent the State from enforcing such provision or right on any future occasion. The rights and remedies of the State herein are cumulative and are in addition to any other rights or remedies that the State may have at law or in equity. 11. ORDER OF PRECEDENCE: In the event of any inconsistency between the articles, attachments, specifications or provisions which constitute this Contract, the following order of precedence shall apply: Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) 35 a) these General Provisions — Information Technology (In the instances provided herein where the paragraph begins: "Unless otherwise specified in the Statement of Work" provisions specified in the Statement of Work replacing these pargaraphs shall take precedence over the paragraph referenced in these General Provisions) ; b) contract form, i.e., Purchase Order STD 65, Standard Agreement STD 213, etc., and any amendments thereto; c) information technology special provisions; d) statement of work, including any specifications incorporated by reference herein; and e) all other attachments incorporated in the contract by reference. 12. PACKING AND SHIPMENT: a) All Goods are to be packed in suitable containers for protection in shipment and storage, and in accordance with applicable specifications. Each container of a multiple container shipment shall be identified to: i) show the number of the container and the total number of containers in the shipment; and ii) the number of the container in which the packing sheet has been enclosed. b) All shipments by Contractor or its subcontractors must include packing sheets identifying: the States Contract number; item number; quantity and unit of measure; part number and description of the Goods shipped; and appropriate evidence of inspection, if required. Goods for different Contracts shall be listed on separate packing sheets. c) Shipments must be made as specified in this Contract, as it may be amended, or otherwise directed in writing by the States' Transportation Management Unit within the Department of General Services, Procurement Division. 13. TRANSPORTATION COSTS AND OTHER FEES OR EXPENSES: No charge for delivery, drayage, express, parcel post, packing, cartage, insurance, license fees, permits, cost of bonds, or for any other purpose will be paid by the State unless expressly included and itemized in the Contract. a) Contractor must strictly follow Contract requirements regarding Free on Board (F.O.B.), freight terms and routing instructions. The State may permit use of an alternate carrier at no additional cost to the State with advance written authorization of the Buyer. b) If "prepay and add" is selected, supporting freight bills are required when over $50, unless an exact freight charge is approved by the Transportation Management Unit within the Department of General Services Procurement Division and a waiver is granted. c) On "F.O.B. Shipping Point" transactions, should any shipments under the Contract be received by the State in a damaged condition and any related freight loss and damage claims filed against the carrier or carriers be wholly or partially declined by the carrier or carriers with the inference that damage was the result of the act of the shipper such as inadequate packaging or loading or some inherent defect in the Equipment and/or material, Contractor, on request of the State, shall at Contractor's own expense assist the State in establishing carrier liability by supplying evidence that the Equipment and/or material was properly constructed, manufactured, packaged, and secured to withstand normal transportation conditions. 14. DELIVERY: Contractor shall strictly adhere to the delivery and completion schedules specified In this Contract. Time, if stated as a numberof days, shall mean calendar days unless otherwise specified. The quantities specified herein are the only quantities required. If Contractor delivers in excess of the quantities specified herein, the State shall not be required to make any payment for the excess Deliverables, and may return them to Contractor at Contractor's expense or utilize any other rights available to the State at law or in Page 3 of 11 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS equity. 15. SUBSTITUTIONS: Substitution of Deliverables may not be tendered without advance written consent of the Buyer. Contractor shall not use any specification in lieu of those contained in the Contract without written consent of the Buyer. 16. INSPECTION, ACCEPTANCE AND REJECTION: Unless otherwise specified in the Statement of Work: a) Contractor and its subcontractors will provide and maintain a quality assurance system acceptable to the State covering Deliverables and services under this Contract and will tender to the State only those Deliverables that have been inspected and found to conform to this Contract's requirements. Contractor will keep records evidencing inspections and their result, and will make these records available to the State during Contract performance and for three years after final payment. Contractor shall permit the State to review procedures, practices, processes, and related documents to determine the acceptability of Contractor's quality assurance System or other similar business practices related to performance of the Contract. b) At Deliverables may be subject to inspection and test by the State or its authorized representatives. c) Contractor and its subcontractors shall provide all reasonable facilities for the safety and convenience of inspectors at no additional cost to the State. Contractor shall furnish to inspectors all information and data as may be reasonably required to perform their inspection. d) All Deliverables may be subject to final inspection, test and acceptance by the State at destination, notwithstanding any payment or inspection at source. e) The State shall give written notice of rejection of Deliverables delivered or services performed hereunder within a reasonable time after receipt of such Deliverables or performance of such services. Such notice of rejection will state the respects in which the Deliverables do not substantially conform to their specifications. If the State does not provide such notice of rejection within thirty (30) days of delivery, such Deliverables and services will be deemed to have been accepted. Acceptance by the State will be final and irreversible, except as it relates to latent defects, fraud, and gross mistakes amounting to fraud. Acceptance shall not be construed to waive any warranty rights that the State might have at law or by express reservation in this Contract with respect to any nonconformity. 17. SAMPLES: e) Samples cf items may be required by the State for inspection and specification testing and must be furnished tree of expense to the State. The samples furnished must be identical in all respects to the products bid and/or specified in the Contract. b) Samples, if not destroyed by tests, may, upon request made at the time the sample is furnished, be returned at Contractor's expense. 18. WARRANTY: a) Unless otherwise specified in the Statement of Work, the warranties in this subsection a) begin upon delivery of the goods or services in question and end one (1) year thereafter. Contractor warrants that (i) Deliverables and services furnished hereunder will substantially conform to the requirements of this Contract (including without limitation all descriptions, specifications, and drawings identified in the Statement of Work), and (ii) the Deliverables will be —free from material defects in materials and workmanship. Where the parties have agreed to design specifications (such as a Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) 36 Detailed Design Document) and incorporated the same or equivalent in the Statement of Work directly or by reference, Contractor will warrant that its Deliverables provide all material functionality required thereby. In addition to the other warranties set forth herein, where the Contract calls for delivery of Commercial Software, Contractor warrants that such Software will perform in accordance with its license and accompanying Documentation. The States approval of designs or specifications furnished by Contractor shall not relieve the Contractor of its obligations under this warranty. Contractor warrants that Deliverables furnished hereunder (i) will be free, at the time of delivery, of harmful code (i.e. computer viruses, worms, trap doors, time bombs, disabling code, or any similar malicious mechanism designed to interfere with the intended operation of, or cause damage to, computers, data, or Software); and (ii) will not infringe or violate any U.S. Intellectual Property Right. Without limiting the generality of the foregoing, if the State believes that harmful code may be present in any Commercial Software delivered hereunder, Contractor will, upon the State's request, provide a master copy of the Software for comparison and correction. Unless otherwise specified in the Statement of Work: (i) Contractor does not warrant that any Software provided hereunder is error -free or that it will run without immaterial interruption. (ii) Contractor does not warrant and will have no responsibility for a claim to the extent that it arises directly from (A) a modification made by the State;' unless such modification is approved or directed by Contractor, (B) use of Software in combination with or on products other than as specified by Contractor, or (C) misuse by the State. (iii) Where Contractor resells Hardware or Software it purchased from a third party, and such third party offers additional or more advantageous warranties than those set forth herein, Contractor will pass through any such warranties to the State and will reasonably cooperate in enforcing them. Such warranty pass - through will be supplemental to, and not relieve Contractor from, Contractor's warranty obligations set forth above. All warranties, including special warranties specified elsewhere herein, shall inure to the State, Its successors, assigns, customer agencies, and governmental users of the Deliverables or services, e) Except as may be specifically provided in the Statement of Work or elsewhere in this Contract, for any breach of the warranties provided in this Section, the State's exclusive remedy and Contractor's sole obligation will be limited to: (I) re -performance, repair, or replacement of the nonconforming Deliverable (including without limitation an infringing Deliverable) or service; or (ii) should the State in its sole discretion consent, refund of al: amounts paid by the State for the nonconforming Deliverable or service and payment to the State of any additional amounts necessary to equal the State's Cost to Cover. "Cost to Cover" means the cost, properly mitigated, of procuring Deliverables or services of equivalent capability, function, and performance, The payment obligation in subsection (e)(ii) above will not exceed the limits on Contractor's liability set forth in the Section entitled "Limitation of Liability." f) EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION, CONTRACTOR MAKES NO Page 4of11 GSPD-4011T EXHIBIT D WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 19. SAFETY AND ACCIDENT PREVENTION: In performing work under this Contract on State premises, Contractor shall conform to any specific safety requirements contained in the Contract or as required by law or regulation. Contractor shall take any additional precautions as the State may reasonably require for safety and accident prevention purposes. Any violation of such rules and requirements, unless promptly corrected, shall be grounds for termination of this Contract in accordance with the default provisions hereof. 20. INSURANCE: When performing work on property in the care, custody or control of the State, Contractor shall maintain all commercial general liability insurance, workers' compensation insurance and any other insurance the State deems appropriate under the Contract. Contractor shall furnish an insurance certificate evidencing required insurance coverage acceptable to the State. Upon request by the Buyer, the Contractor may be required to have the State shown as an "additional insured" on selected policies. 21.TERMINATION FOR NON -APPROPRIATION OF FUNDS: a) If the term of this Contract extends into fiscal years subsequent to that in which it is approved, such continuation of the Contract is contingent on the appropriation of funds for such purpose by the Legislature. If funds to effect such continued payment are not appropriated, Contractor agrees to take back any affected Deliverables fumished under this Contract, terminate any services supplied to the State under this Contract, and relieve the State of any further obligation therefore. b) STATE AGREES THAT IF PARAGRAPH a) ABOVE IS INVOKED, DELIVERABLES SHALL BE RETURNED TO THE CONTRACTOR IN SUBSTANTIALLY THE SAME CONDITION IN WHICH DELIVERED TO THE STATE, SUBJECT TO NORMAL WEAR AND TEAR. STATE FURTHER AGREES TO PAY FOR PACKING, CRATING, TRANSPORTATION TO CONTRACTOR'S NEAREST FACILITY AND FOR REIMBURSEMENT TO THE CONTRACTOR FOR EXPENSES INCURRED FOR THEIR ASSISTANCE IN SUCH PACKING AND CRATING. 22. TERMINATION FOR THE CONVENIENCE OF THE STATE: a) The State may terminate performance of work under this Contract for its convenience in whole or, from time to time, in part, if the Department of General Services, Deputy Director Procurement Division, or designee, determines that a termination is in the State's interest. The Department of General Services, Deputy Director, Procurement Division, or designee, shall terminate by delivering to the Contractor a Notice of Termination specifying the extent of termination and the effective date thereof. b) After receipt of a Notice of Termination, and except as directed by the State, the Contractor shall immediately proceed with the following obligations, as applicable. regardless of any delay in determining or adjusting any amounts due under this clause. The Contractor shall: (i) Stop work as specified in the Notice of Termination. (ii) Place no further subcontracts for materials, services, or facilities, except as necessary to complete the continuing portion of the Contract. (iii) Terminate all subcontracts to the extent they relate to the work terminated. (iv) Settle at outstanding liabilities and termination settlement proposals arising from the termination of Revision 9/30/2009 (GSPD-401IT based on April 12, 2007) • subcontracts= Unless otherwise set forth in the Statement of Work, if the Contractor and the State fail to agree on the amount to be paid because of the termination for convenience, the State wit pay the Contractor the following amounts; provided that in no event will total payments exceed the amount payable to the Contractor if the Contract had been fully performed: The Contract price for Deliverables or services accepted by the State and not previously paid for, adjusted for any savings on freight and other charges; and The total of: A) The reasonable costs incurred in the performance of the work terminated, including initial costs and preparatory expenses allocable thereto, but excluding any cost attributable to Deliverables or services paid or to be paid; B) The reasonable cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the Contract; and C) Reasonable storage, transportation, demobilization, unamortized overhead and capital costs, and other costs reasonably incurred by the Contractor in winding down and terminating its work. The Contractor will use generally accepted accounting principles, or accounting principles otherwise agreed to In writing by the parties, and sound business practices in determining all costs claimed, agreed to, or determined' under this clause. 23. TERMINATION FOR DEFAULT: a) The State may, subject to the clause titled "Force Majeure" and to sub -section d) below, by written notice of default to the Contractor, terminate this Contract in whole or in part if the Contractor fails to: i) Deliver the Deliverables or perform the services within the time specified in the Contract or any amendment thereto; ii) Make progress, so that the lack of progress endangers performance of this Contract; or iii) Perform any of the other provisions of this Contract. b) The State's right to terminate this Contract under sub- section a) above, may be exercised if the failure constitutes a material breach of this Contract and if the Contractor does not cure such failure within the time frame stated in the State's cure notice, which ir. no event will be less than fifteen (15) days, unless the Statement of Work calls for a shorter period. c) If the State terminates this Contract in whole or in part pursuant to this Section, it may acquire, under terms and in the manner the Buyer considers appropriate, Deliverables or services similar to those terminated, and the Contractor will be liable to the State for any excess costs for those Deliverables and services, including without limitation costs third party vendors charge for Manufacturing Materials (but subject to the clause entitled "Limitation of Liability"). However, the Contractor shall continue the work not terminated. d) If the Contract is terminated for default, the State may require the Contractor to transfer title, or in the case of licensed Software, license, and deliver to the State, as directed by the Buyer, any: (i) completed Deliverables,— (ii) partially completed Deliverables, and, Page 5 of 11 37 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS (iii) subject to —provisions of sub -section e) below, Manufacturing Materials related to the terminated portion of this Contract. Nothing in this sub -section d) will be construed to grant the State rights to Deliverables that it would not have received had this Contract been fully performed. Upon direction of the Buyer, the Contractor shall also protect and preserve property in its possession in which the State has an interest. e) The State shall pay Contract price for completed Deliverables delivered and accepted. Unless the Statement of Work calls for different procedures or requires no -charge delivery of materials, the Contractor and Buyer shall attempt to agree on the amount of payment for Manufacturing Materials and other materials delivered and accepted by the State for the protection and preservation of the property:provided that where the Contractor has billed the State for any such materials, no additional charge will apply . Failure to agree will constitute a dispute under the Disputes clause. The State may withhold from these amounts any sum it determines to be necessary to protect the State against loss because of outstanding liens or claims of former lien holders. f) If, after termination, it is determined by a final ruling in accordance with the Disputes Clause that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the State. g) The rights and remedies of the State in this clause are in addition to any other rights and remedies provided by law or under this Contract, and are subject to the clause titled "Limitation of Liability." 24. FORCE MAJEURE Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include, but are not limited to: a) Acts of God or of the public enemy, and b) Acts of the federal or State government in either Its sovereign or contractual capacity. If the failure to perform is caused by the default of a subcontractor at any ter, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform. 25. RIGHTS AND REMEDIES OF STATE FOR DEFAULT: a) In the event any Deliverables furnished or services provided by the Contractor in the performance of the Contract should fail to conform to the requirements herein, or to the sample submitted by the Contractor, the State may reject the same, and it shall become the duty of the Contractor to reclaim and remove the item promptly or to correct the performance of services, without expense to the State, and immediately replace all such rejected items with others conforming to the Contract. b) In addition to any other rights and remedies the State may have, the State may require Contractor, at Contractor's expense, to ship Deliverables via air freight or expedited routing to avoid or minimize actual or potential delay if the delay is the fault of the Contractor. c) In the event of the termination of the Contract, either in whole or in part, by reason of default or breach by the Contractor, any loss Revision 9/30/2009 (GSPD-40117 based on April 12, 2007) 38 or damage sustained by the State in procuring any items which the Contractor agreed to supply shall be borne and paid for by the Contractor (but subject to the clause entitled "Limitation of Liability"). d) The State reserves the right to offset the reasonable cost of all damages caused to the State against any outstanding invoices or amounts owed to Contractor or to make a claim against the Contractor therefore. 26. LIMITATION OF LIABILITY: a) Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to two times the Purchase Price. For purposes of this sub -section a), "Purchase Price" will mean the aggregate Contract price; except that, with respect to a Contract under which multiple purchase orders will be issued (e.g., a Master Agreement or Multiple Award Schedule contract), "Purchase Price" will mean the total price of the purchase order for the Deliverable(s) or service(s) hat gave rise to the loss, such that Contractor will have a separate limitation of liability for each purchase order. h) The foregoing limitation of liability shall not apply (i) to liability under the General Provisions; entitled "Patent, Copyright, and Trade Secret Protection' or to any other liability (including without limitation indemnification obligations) for infringement of third party intellectual property rights; (ii) to claims covered by any specific provision herein calling for liquidated damages; (lit) td claims arising under provisions herein calling for indemnification for third party claims against the State for bodily injury to persons or damage to real or tangible personal property caused by Contractor's negligence or willful misconduct; or (iv) to —costs or attorneys fees that the State becomes entitled to recover as a prevailing party in —any action. c) The State's liability for damages for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to the Purchase Price, as that term is defined in subsection a) above. Nothing herein shall be construed to waive or limit the State's sovereign immunity or any other immunity from suit provided by law. - d) In no event will either the Contractor or the State be liable for consequential, incidental, indirect, special, or punitive damages, even if notification has been given as to the possibility of such damages, except (I) to the extent that Contractor's liability for such damages is specifically set forth in the Statement of Work or (ii) to the extent that Contractor's liability for such damages arises out of sub- section b)(i), b)(ii), or b)(iv) above. 27. CONTRACTOR'S LIABILITY FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY: a) The Contractor shall be liable for damages arising out of injury to the person and/or damage to the property of the State, employees of the State, persons designated by the State for training, or any other person(s) other than agents or employees of the Contractor, designated by the State for any purpose, prior to, during, or subsequent to delivery, installation, acceptance, and use of the Deliverables either at the Contractor's site or at the State's place of business, provided that the injury or damage was caused by the fault or negligence of the Contractor. b) Contractor shall not be fable for damages arising out of or caused by an alteration or an Attachment not made or installed by the Page 6 of 11 EXHIBIT D GSPD-401 IT WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS Contractor, or for damage to alterations or Attachments that may result from the normal operation and maintenance of the Deliverables provided by the Contractor during the Contract. 28. INDEMNIFICATION: Contractor agrees to indemnify, defend and save harmless the State, its officers, agents and employees from any and all third party claims, costs (including without limitation reasonable attorneys" fees), and losses due to the injury or death of any individual, or the loss or damage to any real or tangible personal property, resulting from the willful misconduct or negligent acts or omissions of Contractor or any of its agents, subcontractors, employees, suppliers, Laborers, or any other person; firm, or corporation furnishing or supplying work, services, materials, or supplies in connection with the performance of this Contract. Such defense and payment will be conditional upon the following: a) The State will notify Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and b) Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (ii) the State will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (iii) the State will reasonably cooperate in the defense and in any related settlement negotiations. 29. INVOICES: Unless otherwise specified, invoices shall be sent to the address set forth herein. Invoices shall be submitted in triplicate and shall include the Contract number; release order number (if applicable); item number; unit price, extended item price and invoice total amount. State sales tax and/or use tax shall be itemized separately and added to each invoice as applicable. 30. REQUIRED PAYMENT DATE: Payment will be made in accordance with the provisions of the California Prompt Payment Act, Government Code Section 927 et. seq. Unless expressly exempted by statute, the Act requires State agencies to pay properly submitted, undisputed invoices not more than 45 days after (i) the date of acceptance of Deliverables or performance of services; or (ii) receipt of an undisputed invoice, whichever is later. 31. TAXES: Unless otherwise required by law, the State of California is exempt from Federal excise taxes. The State will only pay for any State or local sales or use taxes on the services rendered or Goods supplied to the State pursuant to this Contract. 32. NEWLY MANUFACTURED GOODS: All Goods furnished under this Contract shall be newly manufactured Goods; used or reconditioned Goods are prohibited, unless otherwise specified. 33. CONTRACT MODIFICATION: No amendment or variation of the terms of this Contract shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in the Contract is binding on any of the parties. 34. CONFIDENTIALITY OF DATA: All financial, statistical, personal, technical and other data and information relating to the State's operation which are designated confidential by the State and made Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) 39 available to the Contractor in order to carry out this Contract, or which become available to the Contractor in carrying out this Contract, shall be protected by the Contractor from unauthorized use and disclosure through the observance of the same or more effective procedural requirements as are applicable to the State. The identification of all such confidential data and information as well as the State's procedural requirements for protection of such data and information from unauthorized use and disclosure shall be provided by the State in writing to the Contractor. If the methods and procedures employed by the Contractor for the protection of the Contractor's data and information are deemed by the State to be adequate for the protection of the State's confidential information, such methods and procedures may be used, with the written consent of the State, to carry out the intent of this paragraph. The Contractor shall not be required under the provisions of this paragraph to keep confidential any data or information which Is or becomes publicly available, is already rightfully in the Contractor's possession, is independently developed by the Contractor outside the scope of this Contract, or is rightfully obtained from third parties. 35. NEWS RELEASES: Unless otherwise exempted, news releases pertaining to this Contract shall not be made without prior written approval of the Department of General Services. 36. DOCUMENTATION a) The Contractor agrees to provide to the State, at no charge, a number of all nonproprietary manuals and other printed materials, as described within the Statement of Work, and updated versions thereof, which are necessary or useful to' the State in its use of the Equipment or Software provided hereunder. The Contractor agrees to provide additional Documentation at prices not in excess of charges made by the Contractor to its other customers for similar Documentation. • b) If the Contractor is unable to perform maintenance or the State desires to perform its own maintenance on Equipment purchased under this Contract then upon written notice by the State the Contractor will provide at Contractor's then current rates and fees adequate and reasonable assistance including relevant Documentation to allow the State to maintain the Equipment based on Contractor's methodology. The Contractor agrees that the State may reproduce such Documentation for its own use in maintaining the Equipment. If the Contractor is unable to perform maintenance, the Contractor agrees to license any other Contractor that the State may have hired to maintain the Equipment to use the above noted Documentation. The State agrees to include the Contractor's copyright notice on any such Documentation reproduced, in accordance with copyright instructions to be provided by the Contractor. 37. RIGHTS IN WORK PRODUCT: a) All inventions, discoveries, intellectual property, technical communications and records originated or prepared by the Contractor pursuant to this Contract including papers, reports, charts, computer programs, and other Documentation or improvements thereto, and including Contractor's administrative communications and records relating to this Contract (collectively, the "Work Product"), shall be Contractor's exclusive property. The provisions of this sub -section a) may be revised in a Statement of Work. b) Software and other materials developed or otherwise obtained by or for Contractor or its affiliates independently of this Contract or applicable purchase order ("Pre -Existing Materials") do not constitute Work Product. If Contractor Page 7 of 11 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S°A,, INC. GENERAL PROVISIONS creates derivative works of Pre -Existing Materials, the elements of such derivative works created pursuant to this Contract constitute Work Product, but other elements do not. Nothing in this Section 37 will be construed to Interfere with Contractor's or its affiliates' ownership of Pre - Existing Materials. The State will have Government Purpose Rights to the Work Product as Deliverable or delivered to the State hereunder. "Government Purpose Rights" are the unlimited, irrevocable, worldwide, perpetual, royalty -free, non-exclusive rights and licenses to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product. "Government Purpose Rights" also include the right to release or disclose the Work Product outside the Slate for any State government purpose and to authorize recipients to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product for any State government purpose. Such recipients of the Work Product may include, without limitation, State Contractors, California local governments, the U.S. federal government, and the State and local governments of other states. "Government Purpose Rights" do not include any rights to use, modify, reproduce, perform, release, display, create derivative works from, or disclose the Work Product for any commercial purpose. The ideas, concepts, know-how, or techniques relating to data processing, developed during the course of this Contract by the Contractor or jointly by the Contractor and the State may be used by either party without obligation of notice or accounting. This Contract shall not preclude the Contractor from developing materials outside this Contract that are competitive, irrespective of their similarity to materials which might be delivered to the State pursuant to this Contract. 38. PROTECTION OF PROPRIETARY SOFTWARE AND OTHER PROPRIETARY DATA a) State agrees that all material appropriately marked or identified in writing as proprietary, and furnished hereunder are provided for State's exclusive use for the purposes of this Contract only. All such proprietary data shall remain the property of the Contractor. State agrees to take all reasonable steps to insure that such proprietary data are not disclosed to others, without prior written consent of the Contractor, subject to the California Public Records Act. b) The State will insure, prior to disposing of any media, that any licensed materials contained thereon have been erased or otherwise destroyed. c) The State agrees that it will take appropriate action by instruction, agreement or otherwise with its employees or other persons permitted access to licensed software and other proprietary data 10 satisfy its obligations under this Contract with respect to use, copying, modification, protection and security of proprietary software and other proprietary data_. 39. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY: a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third party claims, costs (including without limitation reasonable attorneys' fees), and losses for infringement or violation of any U.S. Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from computer Hardware or Software Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) 40 manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party ("Third Party Obligation") and will cooperate in enforcing them; provided that if the third party manufacturer fails to honor the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this Section 39a). The provisions of the preceding sentence apply only to third party computer Hardware or Software sold as a distinct unit and accepted by the State. Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section 39a) will be conditional upon the following: The State will notify Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (ii) the State will have the right to approve or disapprove • any settlement or compromise, which approval will not • ° unreasonably be withheld or delayed; and (ili) the State will reasonably cooperate in the defense and in any related settlement negotiations. b) Contractor may be required to furnish a bond to the State against any and all loss, damage, costs, expenses, claims and liability for patent, copyright and trade secret infringement. c) Should the Deliverables or Software, or the operation thereof, become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall permit the Contractor at its option and expense either to procure for the State the right to continue using the Deliverables or Software, or to replace or modify the same so that they become non -infringing. If none of these options can reasonably be taken, or if the use of such Deliverables or Software by the State shall be prevented by injunction, the Contractor agrees to take back such Deliverables or Software and make every reasonable effort to assist the State In procuring substitute Deliverables or Software. If, in the sole opinion of the Slate, the return of such infringing Deliverables or Software makes the retention of other Deliverables or Software acquired from the Contractor under this Contract impractical, the State shall then have the option of terminating such Contracts, or applicable portions thereof, without penalty or termination charge. The Contractor agrees to take back such Deliverables or Software and refund any sums the State has paid Contractor less any reasonable amount for use or damage. d) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon: (i) The combination or utilization of Deliverables furnished hereunder with Equipment or devices not made or furnished by the Contractor; or, (ii) The uperation of Equipment furnished by the Contractor under the control of any Operating Software other than, or in addition to, the current version of Contractor -supplied Operating Software; or (ill) The modification by the State of the Equipment furnished Page 8 of 11 GSPD-4011T EXHIBIT D WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS hereunder or of the Software; or (v) The combination or utilization of Software furnished hereunder with non -contractor supplied Software. e) Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of computer Software in violation of copyright laws. 40. EXAMINATION AND AUDIT: Contractor agrees that the State, or its designated representative shall have the right to review and copy any records and supporting Documentation pertaining to performance of this Contract. Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. Contractor agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees or others who might reasonably have information related to such records. Further, Contractor agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Contract. 41. DISPUTES: — a) The parties shall deal in good faith and attempt to resolve potential disputes informally. If the dispute persists, Contractor shall submit to the Department Director or designee a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to or involving this Contract, unless the State, on its own initiative, has already rendered such a final decision. Contractor's written demand shall be fully supported by factual information, and if such demand involves a cost adjustment to the Contract, Contractor shall Include with the demand a written statement signed by an authorized person indicating that the demand is made in good faith, that the supporting data are accurate and complete and that the amount requested accurately reflects the Contract adjustment for which Contractor believes the State is liable. If the Contractor is not satisfied with the decision of the Department Director or designee, the Contractor may appeal the decision to the Department of General Services, Deputy Director, Procurement Division. In the event that this Contract is for Information Technology Goods and/or services, the decision may be appealed to an Executive Committee of State and Contractor personnel. b) Pending the final resolution of any dispute arising under, related to or involving this Contract, Contractor agrees to diligently proceed with the performance of this Contract, including the delivery of Goods or providing of services in accordance with the State's instructions. Contractor's failure to diligently proceed in accordance with the State's instructions shall be considered a material breach of this Contract. c) Any final decision of the State shall be expressly identified as such, shall be in writing, and shall be signed by the Department Director or designee or Deputy Director, Procurement Division if an appeal was made. If the State fails to render a final decision within 90 days after receipt of Contractor's demand, it shall be deemed a final decision adverse to Contractor's contentions. The State's final decision shall be conclusive and binding regarding the dispute unless Contractor commences an action in a court of competent jurisdiction to contest such decision within 90 days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later. 42. STOP WORK: a) The State may, at any time, by written Stop Work Order to the Contractor, require the Contractor to stop all, or any part, of the work called for by this Contract for a period up to 90 days after Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) the Stop Work Order is delivered to the Contractor, and for any further period to which the parties may agree. The Stop Work Order shall be specifically identified as such and shall indicate it is issued under this clause. Upon receipt of the Stop Work Order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Stop Work Order during the period of work stoppage. Within a period of 90 days after a Stop Work Order is delivered to the Contractor, or within any extension of that period to which the parties shall have agreed, the State shall either: (I) Cancel the Stop Work Order; or (ii) Terminate the work covered by the Stop Work Order as provided for in the termination for default or the termination for convenience clause of this Contract. b) If a Stop Work Order issued under this clause is canceled or the period of the Stop Work Order or any extension thereof expires, the Contractor shall resume work. The State shall make an equitable adjustment in the delivery schedule, the Contract price, or both, and the Contract shall be modified, in writing, accordingly, if: (i) The Stop Work Order results in an increase in the time required for, or in the Contractor's cost properly allocable to the performance of any part of this Contract; and (ii) The Contractor asserts its right to an equitable adjustment within 30 days after the end of the period of work stoppage; provided, that if the State decides the facts justify the action, the State may receive and act upon a proposal submitted at any time before final payment under this Contract. c) If a Stop Work Order is not canceled and the work covered by the Stop Work Order is terminated in accordance with the provision entitled Termination for the Convenience of the State, the State shall allow reasonable costs resulting from the Stop Work Order in arriving at the termination settlement. d) The State shall not be liable to the Contractor for loss of profits because of a Stop Work Order issued under this clause. 43. FOLLOW-ON CONTRACTS: If the Contractor or its affiliates provides Technical Consulting and Direction (as defined below), the Contractor and its affiliates: (i) will not be awarded a subsequent Contract to supply the service or system, or any significant component thereof, that Is used for or in connection with any subject of such Technical Consulting and Direction; and (ii) will not act as consultant to any persor or entity that does receive a Contract described in sub -section (i). This prohibition will continue for one (1) year after termination of this Contract or completion of the Technical Consulting and Direction, whichever comes later. "Technical Consulting and Direction" means services for which the Contractor received compensation from the State and includes: (i) development of or assistance in the development of work statements, specifications, solicitations, or feasibility studies; (ii) development or design of test requirements; (iii) evaluation of test data; (iv) direction of or evaluation of another Contractor; (v) provision of formal recommendations regarding the acquisition of Information Technology products or services; or (vi) provisions of formal recommendations regarding any Page 9 of 11 41 EXHIBIT D GSPD-401 IT WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS of the above. For purposes of this Section, "affiliates" are employees, directors, partners, joint venture participants, parent corporations, subsidiaries, or any other entity controlled by, controlling, or under common control with the Contractor. Control exists when an entity owns or directs more than fifty percent (50%) of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority. To the extent permissible by law, the Director of the Department of General Services, or designee, may waive the restrictions set forth in this Section by written notice to the Contractor if the Director determines their application would not be in the State's best interest. Except as prohibited by law, the restrictions of this Section will not apply: to follow-on advice given by vendors of commercial off -the -shelf products, including Software and Hardware, on the operation, integration, repair, or maintenance of such products after sale; or where the Slate has entered into a master agreement for Software or services and the scope of work at the time of Contract execution expressly calls for future recommendations among the Contractor's own products. The restrictions set forth in this Section are in addition to conflict of interest restrictions imposed on public Contractors by California law ("Conflict Laws"). In the event of any inconsistency, such Conflict Laws override the provisions of this Section, even if enacted after execution of this Contract, 44. PRIORITY HIRING CONSIDERATIONS: If this Contract includes services in excess of $200,000, the Contractor shall give priority consideration in filling vacancies in positions funded by the Contract to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with PCC Section 10353. 45. COVENANT AGAINST GRATUITIES: The Contractor warrants that no gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent or representative of the Contractor, to any officer or employee of the State with a view toward securing the Contract or securing favorable treatment with respect to any determinations concerning the performance of the Contract. For breach or violation of thls warranty, the State shall have the right to terminate the Contract, either in whole or in part, and any loss or damage sustained by the State In procuring on the open market any items which Contractor agreed to supply shall be borne and paid fee by the Contractor. The rights and remedies of the State provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or in equity. 46. NONDISCRIMINATION CLAUSE: a) During the performance of this Contract, Contractor and its subcontractors shall not unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, sexual orientation, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS). medical condition (cancer), age, marital status, and denial of family care leave. Contractor and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12990 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) 42 Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this Contract by reference and made a part hereof as if set forth in full. Contractor and its subcontractors shalt give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. b) The Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Contract. 47. NATIONAL LABOR RELATIONS BOARD CERTIFICATION: Contractor swears under penalty of perjury that no more than one foal, unappealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding two-year period because of the Contractor's failure to comply with an order of the National Labor Relations Board. This provision is required by, and shall be construed in accordance with, PCC Section 10296. 48. ASSIGNMENT OF ANTITRUST ACTIONS: Pursuant to Government Code Sections 4552, 4553, and 4554, the following provisions are incorporated herein: a) In submitting a bid to the State, the supplier offers and agrees that if the bid is accepted, it will assign to the State all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising frorn' purchases of Goods, material or other items, or services by the supplier for sale to the State pursuant to the solicitation. Such assignment shall be made and become effective at the time the State tenders final payment to the supplier. b) If tne State receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the State any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the State as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. c) Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part If the assignor has been or may have been injured by the violation of law for which the cause of action arose and (i) the assignee has not been injured thereby. or (ii) the assignee declines to file a court action for the cause of action. • 49. DRUG -FREE WORKPLACE CERTIFICATION: The Contractor certifies under penalty of perjury under the laws of the State of California that the Contractor will comply with the requirements of the Drug -Free Workplace Act of 1990 (Government Code Section 8350 et seq.) and will provide a drug -free workplace by taking the following actions: a) Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code Section 8355(a). b) Establish a Drug -Free Awareness Prograrn as required by Government Code Section 8355(b) to inform employees about all of the following: (I) the dangers of drug abuse in the workplace; Page 10 of 11 EXHIBIT D GSPD-4011T WESTERN STATES CONTRACTING ALLIANCE (WSCA) MULTIFUNTION COPIERS AND RELATED SOFTWARE KONICA MINOLTA BUSINESS SOLUTION U.S.A., INC. GENERAL PROVISIONS (ii) the person's or organization's policy of maintaining a drug - free workplace; (iii) any available counseling, rehabilitation and employee assistance programs; and, (iv) penalties that may be imposed upon employees for drug abuse violations. c) Provide, as required by Government Code Section 8355(c), that every employee who works on the proposed or resulting Contract: (i) will receive a copy of the company's drug -free policy' statement; and, (ii) will agree to abide by the terms of the company's statement as a condition of employment on the Contract. 50. FOUR -DIGIT DATE COMPLIANCE: Contractor warrants that it wit provide only Four -Digit Date Compliant (as defined below) Deliverables and/or services to the State. °Four Digit Date Compliant" Deliverables and services can accurately process, calculate, compare, and sequence date data, including without limitation date data arising out of or relating to leap years and changes in centuries. This warranty and representation is subject to the warranty terms and conditions of this Contract and does not limit the generality of warranty obligations set forth elsewhere herein. 51. SWEATFREE CODE OF CONDUCT: a) Contractor declares under penalty of perjury that no equipment, materials, or supplies furnished to the State pursuant to the contract have been produced in whole or in part by sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children In sweatshop labor, or with the benefit of sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive Corms of child labor or exploitation of children in sweatshop labor. Contractor further declares under penalty of perjury that they adhere to the Sweatfree Code of Conduct as set forth on the California Department of Industrial Relations website located at www.dir.ca.gov, and Public Contract Code Section 6108. b) Contractor agrees to cooperate fully in providing reasonable access to its records, documents, agents or employees, or premises if reasonably required by authorized officials of the State, the Department of Industrial Relations, or the Department of Justice to determine Contractor's compliance with the requirements under paragraph (a). 52. RECYCLING: The Contractor shall certify in writing under penalty of perjury, the minimum, if not exact, percentage o post consumer material as defined in the Public Contract Code Section 12200, in products, materials, goods, or supplies offered or sold to the State regardless of whether the product meets the requirements of Section 12209. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (PCC 12205). 53. CHILD SUPPORT COMPLIANCE ACT: For any Contract in excess of $100,000, the Contractor acknowledges in accordance with PCC Section 7110, that: a) The Contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable State and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the Family Code; and Revision 9/30/2009 (GSPD-4011T based on April 12, 2007) 43 b) The Contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. 54. AMERICANS WITH DISABILITIES ACT: Contractor assures the State that Contractor complies with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq). 55. ELECTRONIC WASTE RECYCLING ACT OF 2003: The Contractor certifies that it complies with the requirements of the Electronic Waste Recycling Act of 2003, Chapter 8.5, Part 3 of Division 30, commencing with Section 42460 of the Public Resources Code, relating to hazardous and solid waste. Contractor shall maintain documentation and provide reasonable access to its records and documents that evidence compliance. 56. USE TAX COLLECTION: In accordance with PCC Section 10295.1, Contractor certifies that it complies with the requirements of Section 7101 of the Revenue and Taxation Code. Contractor further certifies that it will immediately advise State of any change in its retailer's seller's permit or certification of registration or applicable affiliate's seller's permit or certificate of registration as described in subdivision (a) of PCC Section 10295.1. 57. EXPATRIATE CORPORATIONS: Contractor hereby declares that it is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of PCC Sections 10286 and 10286.1, and is eligible to contract with the State. 58. DOMESTIC PARTNERS: For contracts over $100,000 executed or amended after January 1, 2007, the contractor certifies that the contractor is in compliance with Public Contract Code section 10295.3. Page 11 of 11 OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 CORiPOILATED J Michael R. Dalla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax Konica Business Solutions, USA, Inc. Lease Agreement 20 Multifunctional Copiers Ron Williams (MIS) Forwarded Copy of Agreement to Konica Business Solutions