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HomeMy WebLinkAboutAgreement - ePlus Technology, Inc. - PD Data Center UPS Replacement - Signed 2021-05-25City of Gilroy Agreement/Contract Tracking Today’s Date: May 25, 2021 Your Name: Scott Golden Contract Type: Services over $5k - Contractor - NO ENG OR DESIGN Phone Number: 408-763-9106 Contract Effective Date: (Date contract goes into effect) 6/1/2021 Contract Expiration Date: 12/31/2021 Contractor / Consultant Name: (if an individual’s name, format as last name, first name) ePlus Technology, inc. Contract Subject: (no more than 100 characters) PD Data Center UPS Replacement Contract Amount: (Total Amount of contract. If no amount, leave blank) 76492 By submitting this form, I confirm this information is complete: Date of Contract Contractor/Consultant name and complete address Terms of the agreement (start date, completion date or “until project completion”, cap of compensation to be paid) Scope of Services, Terms of Payment, Milestone Schedule and exhibit(s) attached Taxpayer ID or Social Security # and Contractors License # if applicable Contractor/Consultant signer’s name and title City Administrator or Department Head Name, City Clerk (Attest), City Attorney (Approved as to Form) Routing Steps for Electronic Signature Risk Manager City Attorney Approval As to Form City Administrator or Department Head City Clerk Attestation DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E TYPE OF PROCURMENT DOLLAR THRESHOLD / SIGNING AUTHORITY STAFF LEVEL DEPARTMENT HEAD CITY ADMINISTRATOR COUNCIL APPROVAL $0-$999.99 $1,000-$49,999.99 $50,000-$99,999.99 $100,000-Above EQUIPMENT /SUPPLIES/ MATERIALS Furniture, hoses, parts, pipe manholes, office supplies, fuel, tools, PPE items, etc…  Vendor selection at discretion of staff Payment Method Purchase Card or Payment Request (if vendor does not accept credit cards)  Informal bid/quotation – 3 quotes (verbal or written)  Purchasing Summary form w/ Purchasing Approval  Purchase Requisition Payment Method Purchase Order*  Informal bid/quotation – 3 written quotes  Purchasing Summary form w/ City Administrator Approval  Purchase Requisition Payment Method Purchase Order  Formal Bid  Advertisement  Council Approval  Purchase Requisition signed by City Administrator Payment Method Purchase Order GENERAL SERVICES Janitorial, landscape maintenance, equipment repair, installation, graffiti abatement, service inspections, uniform cleaning, etc…  Vendor selection at discretion of staff  May require insurance documents depending on scope/ nature of work Payment Method Purchase Card (if incorporated) Signed Payment Request (if sole proprietor or partner)  Informal bid/quotation – 3 quotes (verbal or written)  Purchasing Summary form w/ Department Head Approval  Standard Agreement  Purchase Requisition Payment Method Purchase Order*  Informal Bid/RFP quotation – 3 written quotes  Purchasing Summary form w/ City Administrator Approval  Standard Agreement  Purchase Requisition Payment Method Purchase Order  Formal Bid/RFP/RFQ  Advertisement  Council Approval  Standard Agreement  Purchase Requisition Payment Method Purchase Order PROFESSIONAL SERVICES Consultants, architects, designers, auditors, etc...  Vendor selection at the discretion of staff  Purchase Summary Form w/ Purchasing Approval  Standard Agreement signed by Department Head  Purchase Requisition Payment Method Purchase Order  RFP/RFQ to at least 3 consultants  Purchase Summary Form w/ Department Head Approval  Standard Agreement  Purchase Requisition Payment Method Purchase Order  RFP/RFQ to a list of consultants  Evaluation Spreadsheet w/ City Administrator Approval  Standard Agreement  Purchase Requisition Payment Method Purchase Order  Formal RFP/RFQ  Advertisement  Council Approval  Standard Agreement signed by City Administrator  Purchase Requisition Payment Method Purchase Order DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -1- AGREEMENT FOR SERVICES (For contracts over $5,000 – NON-DESIGN, NON-ENGINEERING TYPE CONTRACTOR) This AGREEMENT made this 25th day of May, 2021, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONTRACTOR: ePlus Technology, inc., having a principal place of business at 13595 Dulles Technology Drive, Herndon, VA 20171. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on June 1, 2021 and will continue in effect through December 31, 2021 unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall terminate this Agreement regardless of any other provision stated herein. Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONTRACTOR is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR or any employee or agent of CONTRACTOR. Both parties acknowledge that CONTRACTOR is not an employee for state or federal tax purposes. CONTRACTOR shall not be entitled to any of the rights or benefits afforded to CITY’S employees, including, without limitation, disability or unemployment insurance, workers’ compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONTRACTOR shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES AND PRODUCT TO BE PROVIDED BY CONTRACTOR A. Professional Services and SKU Services CONTRACTOR agrees to provide professional services (“Professional Services”) and/or, other third-party services that are resold by CONTRACTOR to CITY under a Stock-Keeping Unit (“SKU Services”). Professional Services and SKU Services are collectively referred to as the “Services” as set forth in this Agreement. These Terms and Conditions, together with the attached Exhibits, shall be referred to as this Agreement (the “Agreement”). CONTRACTOR agrees to perform the services in accordance with Exhibit “A” (“Specific Provisions”) and Exhibit “B” (“Scope of Services. B. Method of Performing Services DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -2- CONTRACTOR shall determine the method, details and means of performing the above-described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR’S services. C. Product Purchases Terms and conditions related to the purchase of third-party IT related hardware equipment, peripherals and/or software licenses, software maintenance and/or support as listed in Exhibit “C” (“Contractor Quotation”)(collectively, “Products”) are set forth in “Exhibit E” (“Product Purchases”) and unless expressly superseded in Exhibit E, the terms in this Agreement will apply to Product purchases. All Products are sold separately from Services. No Products shall be deemed Deliverables, as defined in Exhibit “A”. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -3- D. Employment of Assistants CONTRACTOR may, at the CONTRACTOR’S own expense, employ such assistants as CONTRACTOR deems necessary to perform the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONTRACTOR’S assistants in the performance of those services. CONTRACTOR assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. E. Place of Work CONTRACTOR shall perform the services required by this Agreement at any place or location and at such times as CONTRACTOR shall determine is necessary to properly and timely perform CONTRACTOR’S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR the amounts set forth in Exhibit “D” (“Payment Schedule”). In no event however shall the total compensation paid to CONTRACTOR exceed the amount set forth in Exhibit “D”. B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment will be made unless CONTRACTOR has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit “A”, Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. SKU Services Invoicing and Payment Notwithstanding anything to the contrary in this Agreement, CONTRACTOR shall invoice CITY for SKU Services upon CONTRACTOR’S acceptance of CITY’S order for such SKU Services. Payment for such SKU Services shall be made in accordance with Exhibit “D” of this Agreement or as set forth in any order. Notwithstanding the foregoing and for the avoidance of doubt, SKU Services are not considered Products under this Agreement. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -4- E. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONTRACTOR, all fees, fines, licenses, bonds or taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR’S costs of doing business. CITY shall not be responsible for any expenses incurred by CONTRACTOR in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -5- ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. Tools and Instrumentalities CONTRACTOR shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from CITY. B. Workers’ Compensation CONTRACTOR agrees to provide workers’ compensation insurance for CONTRACTOR’S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys’ fees, arising out of any injury, disability, or death of any of CONTRACTOR’S employees. C. Indemnification of Liability, Duty to Defend, Limitation of Liability As to all liability, to the fullest extent permitted by law, CONTRACTOR shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all su its, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, arising or resulting directly from any gross negligent act or omission of CONTRACTOR or CONTRACTOR’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any tangible property in the performance of the Services under this Agreement. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOST PROFITS OF ANY KIND, EVEN IF FORESEEABLE, ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT. CONTRACTOR’S AGGREGATE LIABILITY IN CONNECTION WITH THE SERVICES, IF ANY, SHALL BE LIMITED TO DIRECT DAMAGES, WHICH SHALL NOT EXCEED THE AMOUNT PAID FOR THE SERVICE CAUSING SUCH DAMAGES, AS ESTABLISHED BY A FINAL JUDGMENT. D. Insurance In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to CITY’S obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming CITY, its officers and DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -6- employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and will use commercially reasonable efforts to provide at least thirty (30) days’ notice of any material adverse change to a required policy. . E. Warranty 1. CONTRACTOR warrants that Services it performs pursuant to a SOW will be done in a skillful and workmanlike manner according to industry standards generally prevailing among providers of similar services under similar circumstances. CITY shall notify CONTRACTOR of any noncompliance with the foregoing warranty prior to completion of the Services or within five (5) business days thereafter. Notwithstanding anything to the contrary, CITY understands CONTRACTOR shall bear no responsibility for the performance, repair or warranty of CITY’S software or equipment or of any software, hardware product or service provided to CITY by a third party, and CITY shall look solely to the third party provider for all remedies and support with regard to such products or service. 2. WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF, CITY AND DO NOT EXTEND TO ANY THIRD PARTY. CONTRACTOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH PRODUCTS SOLD OR SERVICES OR DELIVERABLES PROVIDED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR OTHERWISE. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -7- F. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. G. State and Federal Taxes As CONTRACTOR is not CITY’S employee, CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR acknowledges and agrees that:  CITY will not withhold FICA (Social Security) from CONTRACTOR’S payments;  CITY will not make state or federal unemployment insurance contributions on CONTRACTOR’S behalf;  CITY will not withhold state or federal income tax from payment to CONTRACTOR;  CITY will not make disability insurance contributions on behalf of CONTRACTOR;  CITY will not obtain workers’ compensation insurance on behalf of CONTRACTOR. ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONTRACTOR and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR’S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder upon written notice to CONTRACTOR to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR’S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR’s Business CONTRACTOR shall notify CITY of the proposed sale of CONTRACTOR’s business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONTRACTOR set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY’ receipt of such notice of sale. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -8- B. Termination by City for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY’S option, may terminate this Agreement by giving thirty (30) days written notification to CONTRACTOR. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONTRACTOR’S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONTRACTOR’S breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C” which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONTRACTOR’S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies CITY may have, CONTRACTOR shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONTRACTOR for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed-Upon Payments Should CITY fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR’S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONTRACTOR to CITY. D. Transition after Termination Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incur no further expenses in connection with this Agreement. CONTRACTOR shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONTRACTOR’s duties by any new CONTRACTOR hired by the CITY to complete such services. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -9- ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 (“the Act”) in its current form and as it may be amended from time to time. CONTRACTOR shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys’ fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys’ Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONTRACTOR shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 - 10 - F. Conflict of Interest CONTRACTOR certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONTRACTOR for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit “A”, Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. . DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 - 11 - K. Waiver CONTRACTOR agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: CITY: CITY OF GILROY By: By: Name: Name: Title: Title: Social Security or Taxpayer Identification Number Approved as to Form ATTEST: City Attorney City Clerk DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E SVP ePlus Technology inc Steve Mencarini 54-1904151 City Administrator Jimmy Forbis 4835-2267-0361v1 LAC\04706083 -1- EXHIBIT “A” SPECIFIC PROVISIONS I. PROJECT MANAGER CONTRACTOR shall provide the services indicated on the attached Exhibit “B”, Scope of Services (“Services”). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign personnel, who will act in the capacity of Project Manager, and who will personally direct such Services. If applicable, such personnel will be listed on Exhibit “B”. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written “Notice to Proceed”, which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. (“Notices”) of this Exhibit “A”. B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within five (5) business days of such request, or if CITY determines that CONTRACTOR has not completed all of such Services as required by this Agreement, CITY shall so inform CONTRACTOR within this five (5) business day period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit “C”. IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -2- Direct expenses are charges and fees not included in Exhibit “B”. CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONTRACTOR shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONTRACTOR’S representations and warranties regarding its skills, qualifications and licenses. CONTRACTOR shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONTRACTOR shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY’S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action ar ising out of the performance of this Agreement, and CONTRACTOR shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONTRACTOR’S gross negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, but not more than once per calendar year and upon written notice to CONTRACTOR, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR, all of which shall be made available to CITY at the CITY’s offices within five (5) business days after CITY’s request. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -3- D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed or received by or for CONTRACTOR and all other written and oral information submitted to CONTRACTOR in connection with the performance of this Agreement shall be held confidential by CONTRACTOR and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONTRACTOR’S disclosure thereof) shall be deemed confidential. CONTRACTOR shall not use CITY’S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY’S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. Subject to full and final payment, except for any confidential or proprietary materials in which CONTRACTOR or its suppliers have a pre-existing intellectual property interest (“Existing Materials”), all material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement in the performance of Services by CONTRACTOR specifically for the CITY (“Deliverables”), shall be deemed “work for hire” if consistent with the requirements of Section 101 of the Copyright Act and shall be the property of CITY, but CONTRACTOR may retain and use copies thereof subject to Section V.D of this Exhibit “A”. To the extent that Existing Materials are incorporated in Deliverables, CONTRACTOR grants to CITY a royalty-free, irrevocable, worldwide, nontransferable, non-exclusive, internal use, perpetual license to use, modify and prepare derivative works of such Existing Mate rials and to use and display such Existing Materials to the extent required to utilize the Deliverables in accordance with this Agreement. Nothing in this Agreement shall be deemed to (i) permit C ITY to disclose, provide access to, sublicense, disassemble, decompile, reverse engineer, modify, create derivative works of, or transfer Existing Materials to an affiliate or third party without the prior written consent of CONTRACTOR or (ii) limit CONTRACTOR’S ownership of patent, copyright or other intellectual property or trade secret rights in any information developed independently of this Agreement, even though such information may have been used in connection with CONTRACTOR’S performance under this Agreement. CONTRACTOR may provide similar services to others and use or disclose to others the general knowledge, skill and experience CONTRACTOR has developed over the years. CONTRACTOR shall not be responsible for, and City shall indemnify CONTRACTOR from, DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -4- damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -5- H. NOTICES. Notices are to be sent as follows: CITY: Scott Golden City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONTRACTOR: ePlus Technology, inc. 13595 Dulles Technology Drive Herndon, VA 20171 Attn: General Counsel with copy to VP of Contracts I. FEDERAL FUNDING REQUIREMENTS. If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. 1. DBE Program CONTRACTOR shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City-adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONTRACTOR warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -1- EXHIBIT “B” SCOPE OF SERVICES Scope of Work for QWINSTALL-QBED71837-00 1. Customer to receive equipment and have staged for Criterion to perform installation. 2. While existing UPS is in Maintenance bypass, demo and remove from site existing UPS. 3. Set and install new UPS in same location as old UPS. 4. Prep pipe and wire to new UPS to existing junction box and transformer. 5. During a time of the customers choosing, perform the following. a. Shut down critical load. b. Replace trip unit of existing UPS input breaker to 80 amps. c. Terminate new UPS wires in junction box and transformer. d. Provide electricians assistance for standard factory startup. 6. Return to the site to demo and remove the old maintenance bypass panel. Exclusions and Clarifications: 1. Load Bank testing of the new UPS has been excluded. 2. All building permits and associated costs have been excluded. 3. All labor to be non-union at prevailing wage rates. 4. All applicable taxes have been included in the quoted price. 5. Does not include performance or bid bond or fees. 6. Dumpster service has been excluded. 7. X-ray of concrete has been excluded. 8. All work has been figured for off hours. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 -1- EXHIBIT “C” CONSULTANT QUOTATION# SCHNEIDER E. ROOM COMPONENTS DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 EXHIBIT “D” PAYMENT SCHEDULE 1. Payments for Products and Services shall be due net thirty (30) days from the receipt of invoice or as indicated in any purchase document. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 EXHIBIT “E” PRODUCT PURCHASES 1. CITY acknowledges that CONTRACTOR is the reseller of Products and not the manufacturer or publisher of such Products. All Products are purchased on CITY’s issuance of a Purchase Order, subject to acceptance by CONTRACTOR. CITY shall not reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for software, nor remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels therein. CITY represents and warrants that any Products purchased pursuant to this Agreement are for CITY’S internal use only and are not for resale or further distribution. CITY agrees to indemnify, defend and hold harmless CONTRACTOR from and against any and all third party claims, liabilities, costs and expenses relating to or arising from a breach of the CITY’S obligations under this section 1. 2. Notwithstanding any termination provisions in the Agreement, cancellations, terminations, or modifications of Product orders require written confirmation from CONTRACTOR. All cancellations, terminations, or modifications of Product orders are subject to manufacturer policies and CONTRACTOR’S ability, pursuant to those policies, to cancel, terminate, or modify orders with its supplier s. 3. Delivery shall be FOB shipping point and CITY agrees to pay for shipping and handling. Loss or damage during shipment within the United States by a carrier specifically selected by CONTRACTOR shall be CONTRACTOR’S sole responsibility; otherwise such loss or damage shall be CITY’S responsibility. Title to Products shall pass to CITY on payment in full for the corresponding Products. CONTRACTOR shall have no responsibility to act as importer or exporter of record unless otherwise expressly agreed in writ ing. 4. Except for visibly damaged packaging, CITY shall not refuse delivery of Product shipments. CITY should save original Product packaging and notify CONTRACTOR to arrange for carrier inspection and pickup of damaged products. CITY shall notify its account executive of any visible damage within two (2) days of receipt and of order shortages or concealed damages within seven (7) business days of receipt. These timeframes are necessary for CONTRACTOR to provide timely assistance to CITY with manufacturer warranty claims and shipping claims. Failure to provide the foregoing notices to CONTRACTOR within the required timeframes shall be deemed acceptance of the corresponding Products. 5. Approvals for Product returns are subject to manufacturer return policies and guidelines and CONTRACTOR’S ability to return Product to its vendors. Except in the event of a CONTRACTOR or manufacturer error, CITY shall bear all shipping charges and restocking fees associated with Product return, exchange or replacement. If a Product is not returnable under manufacturer guidelines, CONTRACTOR will make commercially reasonable attempts to repair or replace the Product through the manufacturer warranty. 6. Pricing for each Product order shall be as set forth on the applicable Purchase Order. CONTRACTOR will invoice for Products upon shipment without regard to any related Services. Payments for Products shall be due net thirty (30) days from the receipt of invoice or as indicated in any Purchase Order, and shall be made in U.S. Dollars by (1) check drawn on a U.S. bank; or (2) wire transfer or automated clearing house (ACH) transfer to an account specified by CONTRACTOR. 7. CONTRACTOR is a reseller of Products and not the manufacturer, and therefore makes no warranties with respect to Products. Without limiting the foregoing disclaimer, CONTRACTOR does not warrant that Products cannot cause or are free from susceptibility to security or data breaches. Any Product warranty and any rights to indemnification for claims or losses related to a Product must come from the manufacturer. To the full extent authorized, CONTRACTOR will pass through to CITY any transferable Product warranties, indemnities, and remedies provided to CONTRACTOR by the manufacturer. 8. NOTWITHSTANDING SECTION 5.C. “LIMITATION OF LIABILITY” THE FOLLOWING SHALL APPLY TO PRODUCT PURCHASES: IN NO EVENT SHALL CO NTRACTOR BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOST PROFITS OF ANY KIND, EVEN IF FORESEEABLE, ARISING OUT OF OR CONNECTED WITH THE PURCHASE OF PRODUCTS. CONTRACTOR’S AGGREGATE LIABILITY IN CONNECTION WITH PRODUCT PURCHASES, IF ANY, SHALL BE LIMITED TO DIRECT DAMAGES, WHICH SHALL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT CAUSING SUCH DAMAGES, AS ESTABLISHED BY A FINAL JUDGMENT. DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E 4835-2267-0361v1 LAC\04706083 DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E Quote issued by: Jacqueline Ellman Jonas Reiter Palm Springs, Ca 310-953-7897 jreiter@eplus.com jellman@eplus.com Date of Quote Valid for Terms May 25, 2021 30 Days Net 30 Days Room Components - EqRoom Components - Equipmentuipment ​G​V​S​U​P​S​4​0​K​B​4​G​S​Schneider Electric Galaxy VS UPS 40kW 480V, 2 internal 9Ah smart modular battery strings, expandable to 4, Start-up 5x8 1 20,978.00$ 20,978.00$ ​G​V​S​O​P​T​0​0​1​Schneider Electric Galaxy VS Air Filter Kit for 521mm wide UPS 1 included -$ ​G​V​S​O​P​T​0​0​2​Schneider Electric Galaxy VS Seismic Kit for Modular Battery Cabinet or 521mm wide UPS 1 included -$ ​G​V​S​O​P​T​0​0​3​Schneider Electric Galaxy VS Seismic Kit for Maintenance Bypass Cabinet 1 included -$ ​G​V​S​O​P​T​0​1​8​Schneider Electric Galaxy VS Cable and Conduit Box for 20.5in wide UPS w batteries and maintenance bypass cabinet 1 included -$ ​G​V​S​B​P​S​U​8​0​G​​Schneider Electric Galaxy VS Maintenance Bypass Cabinet, UL, Single-Unit 10-40kW 208V, 20-80kW 480V 1 included -$ ​G​V​S​B​T​H​4​Schneider Electric Galaxy VS 9Ah Smart Modular High Capacity Battery String 1 included -$ ​W​U​P​G​E​A​A​-​U​G​-​0​1​Schneider Electric 1 Yr EAA Upgrade to FW or Existing Srvc Plan for (1) 1 or 3P UPS 10 - 40kVA, Batt Frm, PDU or Acc.1 included -$ ​W​U​P​G​8​H​R​7​X​2​4​-​U​G​-​0​1​Schneider Electric 1 Year 8HR 7X24 Response Upgrade to Factory Warranty or Existing Service Contract for up to 40 kVA 1 included -$ WUPGSTRTUP7-UG-01 Schneider Electric Scheduling Upgrade to 7X24 for Existing Startup Service for up to 40 kVA UPS or Battery Frame 1 included -$ Custom Parts- Equipment QWINSTALL- QBED71837-00 Schneider Electric PRODUCT PROFESSIONAL SERVICES OTHER THIRD PARTY UPS REPLACEMENT 1 53,789.00$ 53,789.00$ TOTAL:74,767.00$ Est TAX: $ 1,625.80 Est SHIPPING: $ 100.00 GRAND TOTAL:76,492.80$ Authorization Acceptance and Date PO / Reference Number Print Name Title By placing an order with ePlus for products or services you agree to comply with the Terms and Conditions for Purchasing Products and Services located at http://www.eplus.com/terms-and- conditions/Pages/Products-Services-Terms-and-Conditions.aspx (the "Order Terms"). Unless there is a separate written agreement signed on behalf of both you and ePlus by a duly authorized officer, the Order Terms shall be the only terms and conditions applicable to transactions between you and ePlus, and no additional or contrary terms referenced in a purchase order, document, or electronic communication shall apply. In no event shall ePlus performance under a purchase order be deemed to constitute acceptance of any terms and conditions set forth therein. Thank you for your inquiry. Please note the following about this quotation: It will expire on the date stated above. Unless freight amount is indicated, or is zero, freight will be added to the invoice. Unless Bill-To company is exempt from Sales Tax, it will be added to the invoice. Extended Warranties and Professional Services are available. This quotation is confidential for your internal use only. This is a solicitation for an offer and is subject to credit approval. No contract is formed unless a purchase order or other offer is received and accepted by our office. If you accept this quotation with the intent to have your chosen leasing company to pay the costs directly, please note that if the Lessor does not pay ePlus for any reason, you will be responsible for payment to ePlus. Unit Price Extended Price Model Number Vendor Description Qty SCHNEIDER E. ROOM COMPONENTS Account Executive: Inside Sales Account Manager: Quote# Customer: City of Gilroy ePlus Technology Quote Page 1 of 1 DocuSign Envelope ID: F6CE4890-CC35-45D2-928A-A6BAFD57C83E