HomeMy WebLinkAboutCAG2021-381 - Amendment - #1 - MySeniorCenter - Equipment, Hardware, Software License & Maintenance - 11/24/2021ApprovalOriginator:Department:
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rev. 20210513
FOR CITY OF KENT OFFICIAL USE ONLY
Agreement Routing Form
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Amendment No. 1
My SeniorCenter – Equipment and Hardware Purchase, Software License,
and Maintenance Agreement
AMENDMENT NO. 1- Page 1 OF 2
(Xavus Solutions, LLC – MySeniorCenter)
AMENDMENT NO. 1
NAME OF VENDOR: Xavus Solutions, LLC
CONTRACT NAME & PROJECT NUMBER: MySeniorCenter – Equipment and Hardware Purchase,
Software License, and Maintenance Agreement
ORIGINAL AGREEMENT DATE: October 1, 2021
This Amendment is made between the City and the above-referenced Vendor and amends the original
Agreement and all prior Amendments. All other provisions of the original Agreement or prior Amendments
not inconsistent with this Amendment shall remain in full force and effect. For valuable consideration and
by mutual consent of the parties, Vendor’s work is modified as follows:
1.Revise Description of Work Provision. Section 1 of the Agreement, entitled “Description of
Work,” is hereby modified as follows:
1.Description of Work. Vendor shall provide the City with the equipment,
hardware, software licenses, and maintenance services identified within the parties’
Quote #S-090917-7819, dated July 19, 2021, copies of which are attached and
incorporated as Exhibit A.
Additionally, Vendor shall provide the City with additional equipment, hardware,
software licenses, and maintenance services on an as-needed basis. Upon the City’s
request, Vendor will provide the City with an estimate that describes: (1) the
equipment, hardware, software, or maintenance services desired by the City, (2)
the total cost for those items, inclusive of Washington State sales tax, and (3) an
estimate as to when those items will be delivered to the City and implemented by
the Vendor, if such implementation is applicable to the City’s purchase. If the City
accepts the pricing provided for in the Vendor’s estimate, Vendor shall provide
those items under the terms provided for in this Agreement. Upon acceptance of
the estimate by the City, such estimate shall form an addendum to this Agreement
and shall be subject to its terms and conditions. However, the estimate shall
provide only for the product and its associated cost; no additional purchase terms
or contract provisions included on any estimate shall be given effect or shall
otherwise alter the provisions of this Agreement or apply to the City’s purchase.
2.Revise Change Orders Provision. Section 3 of the Agreement, entitled “Change Orders” is
amended as follows:
3.Change Orders. No changes or revisions to the equipment, hardware,
software, or maintenance services provided by Vendor under this Agreement,for in
Exhibit A, and no additional payment therefore, will be made except pursuant to
the express terms of this Agreement.
3.Revise Grant of License Provision. Section 5 of the Agreement, entitled “Grant of License to
Access and Use Software” is amended as follows:
5.Grant of License to Access and Use Software. For the term of this
Agreement including any renewal or extension, Vendor hereby grants to City,
including to all its Authorized Users, a non-exclusive, non-sublicensable, non-
assignable, royalty-free, and worldwide license to access and use Vendor’s
MySeniorCenter programs (the "software") for the City’s non-commercial
AMENDMENT - 2 OF 6
government operations as further described in the attached and incorporated Exhibit
A, and any other software programs Vendor may make available to the City under
this Agreement in the future under the provisions provided for in Section 1 above.
City shall refrain from taking any steps such as reverse assembly or reverse
compilation, to derive a source code equivalent to the software as further described
in Section 10.3.
4.Revise Numbering of Sections to Correct Errors. The Agreement includes misnumbering that
begins on page 1 and continues through page 11. The Section numbers within the Agreement are corrected
and renumbered as referenced below:
Section Renumbering
Original Section Reference Error
Renumbered To
Corrected Section Reference
3. Term 6. Term
4. Subscription Fees/Taxes 7. Subscription Fees/Taxes
4.1 Fees for Goods and Services 7.1 Fees for Goods and Services
4.2 Undisputed Fees 7.2 Undisputed Fees
4.3 Taxes 7.3 Taxes
4.4 Card Payment Program 7.4 Card Payment Program
5. System Availability and Support
Services
8. System Availability and Support
Services
6.Representation and Warranties 9. Representation and Warranties
6.1 Mutual Representations and
Warranties
9.1 Mutual Representations and
Warranties
6.2 Vendor Warranties and
Representations
9.2 Vendor Warranties and
Representations
7 Vendor Maintenance Services 10 Vendor Maintenance Services
7.1 10.1
7.2 Ownership 10.2 Ownership
7.3 Data Protection 10.3 Data Protection
7.4 Data Restrictions 10.4 Data Restrictions
7.5 Data Backup 10.5 Data Backup
8 Intellectual Property Ownership 11 Intellectual Property Ownership
9 Non-Disclosure of Confidential
Information
12 Non-Disclosure of Confidential
Information
10 City Obligations 13 City Obligations
10.1 Equipment, Hardware, and
Software Obligations
13.1 Equipment, Hardware, and
Software Obligations
10.2 Anti-Virus Obligations 13.2 Anti-Virus Obligations
10.3 Restricted Uses 13.3 Restricted Uses
11 Indemnification Obligations 14 Indemnification Obligations
11.1 City Indemnification Obligations 14.1 City Indemnification Obligations
11.2 Vendor Indemnification
Obligations
14.2 Vendor Indemnification
Obligations
11.3 14.3
12. Limitation of Liability 15
12.1 15.1
12.2 15.2
12.3 15.3
13. Insurance 16. Insurance
14.Termination of Agreement 17. Termination of Agreement
14.1 Termination for Convenience 17.1 Termination for Convenience
14.2 Termination for Cause 17.2 Termination for Cause
14.3 Termination by Vendor for Cause 17.3 Termination by Vendor for Cause
14.4 No Suspension of Service 17.4 No Suspension of Service
14.5 Effect of Termination 17.5 Effect of Termination
15. Remedies 18. Remedies
16. Non-Discrimination 19. Non-Discrimination
17. General Provisions 20. General Provisions
17.1 Governing Law and Venue 20.1 Governing Law and Venue
17.2 Dispute Resolution 20.2 Dispute Resolution
AMENDMENT - 3 OF 6
17.3 Severability
Renumbered To
20.3 Severability
17.4 Nonwaiver 20.4 Nonwaiver
17.5 No Assignment 20.5 No Assignment
17.6 Notice 20.6 Notice
17.7 Legal Fees 20.7 Legal Fees
17.8 Force Majeure 20.8 Force Majeure
17.9 Independent Contractor 20.9 Independent Contractor
17.10 Problem Notification 20.10 Problem Notification
17.11 Entire Agreement/Modification 20.11 Entire Agreement/Modification
17.12 Public Records Act 20.12 Public Records Act
17.13 City Business License Required 20.13 City Business License Required
17.14 Counterparts and Signatures by
Fax or Email
20.14 Counterparts and Signatures by
Fax or Email
Update Section References in Corrected Sections
1. In Section 5, titled “Grant License to Access and Use Software” the reference to Section 10.3 is changed to reference
Section 13.3
2. In corrected Section 7.2, titled “Undisputed Fees” the reference to Section 17.2 is changed to reference Section
20.2
3. In corrected Section 14.1, titled “City Indemnification Obligations”, the reference to Section 11.3 is changed to
reference Section 14.3
4. In corrected Section 14.2, titled “Vendor Indemnification Obligations”, the reference to Section 11.3 is changed to
reference 14.3.
5. In corrected Section 20.2, titled “Dispute Resolution,” the reference to Section 17.1 is changed to reference to
20.1
6. In corrected Section 20.7, titled “Legal Fees,” the reference to Section 11 is changed to reference Section 14
5.Revise Payment Provision. Renumbered Section 7.1 of the Agreement is amended as follows:
7.Subscription Fees/Taxes.
7.1 Fees for Goods and Services. In consideration of the Vendor providing
the City with the equipment, hardware, software licenses, and maintenance services
provided for within Exhibit A, as provided for in this Agreement, the City agrees to
pay the Vendor the amounts provided for in Exhibit A. Vendor shall be paid in
accordance with the following schedule:
•Upon full execution of this Agreement, Vendor shall remit a payment
invoice to the City in the amount of $5,225.00, plus any tax due, which
amount represents 50% of the cost of the equipment, hardware, software
licenses, and maintenance services for the Initial Term.
•Upon Kent’s having completed installation and configuration of the
equipment, and Vendor’s completion of training services, the Vendor shall
invoice the City in the amount of $5,225.00, plus any tax due, which
amount represents the remaining 50% of the cost of the equipment,
hardware, software licenses, and maintenance services for the Initial
Term.
•45 days before the commencement of any Renewal Term, Vendor shall
invoice the City $1800, plus any tax due, which amount represents the
full cost for 12 months of access to the software and maintenance services
through the software licenses provided under this Agreement, from
October 1 through September 30 of each Renewal Term.
AMENDMENT - 4 OF 6
For any additional equipment, hardware, software licenses, and
maintenance services provided by Vendor on an as-needed basis as set forth in
Section 1, Description of Work, the City agrees to pay any invoice issued by the
Vendor that is consistent with a previously approved estimate or change order, and
upon the City’s receipt and acceptance of such items as conforming to the terms of
this Agreement. For any software license or maintenance fees due for those purchase
items, the Vendor shall invoice the City for those fees at least 30 days before the
commencement of the term applicable to those license and maintenance fees.
6.Revise Exhibit References Concerning Support Services. Renumbered Section 8 of the
Agreement is amended as follows:
8.System Availability and Support Services. The City’s license to access
and use any software will be available to the City throughout the term of this
Agreement, along with maintenance and support services as described in Section 10
and the attached and incorporated Exhibits B-1 and B-2.
7.Revise Exhibit References Concerning Maintenance Services. Renumbered Section 10.1 of the
Agreement is amended as follows:
10.Vendor Maintenance Services.
10.1 During the term of this Agreement, Vendor will provide maintenance
support and warranty services, as provided for in Exhibits B-1 and B-2, Exhibit A for
any software programs Vendor may make available to the City under this Agreement,
which include updates, upgrades, modifications, customized interfaces and
enhancements to the software, and any subsequent versions thereof. Subject to the
terms and conditions of this Agreement, Vendor shall provide software support via
telephone, web, remote access and electronic mail when necessary. To enable Vendor
to provide effective support, the City will establish remote access procedures. The
maintenance services provided by Vendor shall include the following:
a.Provide users with verbal or electronic telephone responses to
specific, discrete and descriptive inquiries on the use and operation of the equipment,
hardware, and software provided through this Agreement. Service shall be provided
by telephone contact with Vendor’s offices during the hours provided for in Exhibits
B-1 and B-2.
b.If errors of functional operation are identified by the City and
determined by the Vendor to exist in the software, corrections will be made and
corrected versions of the software will be provided to the City through media
acceptable to the City (web, remote access, email, or on CD).
c.If the City loses or destroys all copies of the supplied software
being maintained under this Agreement, Vendor will provide replacements for that
software, at Vendor’s cost. Such replacements will not include replacement of City
data.
de. After updates, upgrades, modifications, customized interfaces
or enhancements are made to the software, Vendor will make them available to the
City, at no additional charge, within 30 days of their release to other licensees of the
software, on media acceptable to the City (web, remote access, email, or on CD) so
that the maintained software is current with the latest version being sold while
maintaining for the City the same level of functionality that it had with respect to the
software immediately prior to the installation of such upgrade, update, modification,
customized interface or enhancement. All costs pertaining to the creation and
installation of such upgrades, updates, modifications, customized interfaces and
AMENDMENT - 5 OF 6
enhancements shall be borne by the Vendor. If Vendor has any third-party product(s)
embedded in its own product or system, and such third-party product has been
upgraded or a new release has been issued, vVendor certifies that its own product
or system will be upgraded, within 18 months, to integrate with the upgrade or
issuance of the new release of the third-party product.
ef. As needed to resolve problems or upon request from the City,
Vendor will be provided remote access to the equipment, hardware, and software.
The preferred method for Vendor access to City systems is through a VPN (virtual
private network) or any other designated connection. To enable Vendor to provide
effective support, the City will establish a dedicated 24 hour per day, 7 days per
week, unassisted remote access to allow Vendor to access the software effectively.
Vendor must agree to abide by the conditions set forth in any City network usage
policy and apply due diligence in maintaining security on Vendor’ own network.
fg. Vendor will comply with the service level and response
procedures provided for in Exhibits B-1 and B-2 for responding to incident reports
and targets for correcting software errors or otherwise responding to issues
concerning the software.
8.Revise City Obligations Due to Expanded Products and Services Provided under Amendment
No. 1. Renumbered Section 13 of the Agreement is amended as follows:
13.City Obligations.
13.1 Equipment, Hardware, and Software Obligations. Except for the
equipment, hardware, and software provided by Vendor under this Agreement,
identified in Exhibit A, the provision and maintenance of which is part of Vendor’s
required performance under this Agreement, the City shall be responsible for
obtaining and maintaining all other computer equipment, hardware, software, and
communications equipment needed to access and utilize any purchased or licensed
software.
13.2 Anti-Virus Obligations. The City will use commercially reasonable
efforts to safeguard against computer infection, viruses, worms, Trojan horses, and
other code that manifest contaminating or destructive properties (collectively
"Viruses") that may reasonably affect the performance of Vendor’s software.
13.3 Restricted Uses. The City will not:
a.knowingly upload or distribute any files that contain viruses,
corrupted files, or any other similar software or programs that may damage the
operation of the software,
b.modify, disassemble, decompile or reverse engineer the
software or pre-release equipment or hardware devices or software disclosed,
c.copy, reproduce, resell or commercially exploit the software,
d.reverse engineer, decompile or disassemble any software code
and/or pre-release equipment or hardware devices disclosed.
9.Vendor Acceptance of Amendment No. 1. The Vendor accepts all requirements of this
Amendment by signing below, by its signature waives any protest or claim it may have regarding this
Amendment, and acknowledges and accepts that this Amendment constitutes full payment and final
settlement of all claims of any kind or nature arising from or connected with any work either covered or
affected by this Amendment, including, without limitation, claims related to contract time, contract
acceleration, onsite or home office overhead, or lost profits. This Amendment, unless otherwise provided,
AMENDMENT - 6 OF 6
does not relieve the Consultant or Vendor from strict compliance with the guarantee and warranty provisions
of the original Agreement.
10.Ratification of Consistent Acts. All acts consistent with the authority of the Agreement,
previous Amendments (if any), and this Amendment, prior to the effective date of this Amendment, are
hereby ratified and affirmed, and the terms of the Agreement, previous Amendments (if any), and this
Amendment shall be deemed to have applied.
11.Parties Authorized to Sign Amendment No. 1. The parties whose names appear below swear
under penalty of perjury that they are authorized to enter into this Amendment, which is binding on the
parties of this contract.
IN WITNESS, the parties below have executed this Amendment, which will become
effective on the last date written below.
VENDOR:
XAVUS SOLUTIONS, LLC
By:
(signature)
Print Name:
Its
(title)
DATE:
CITY
CITY OF KENT
By:
(signature)
Print Name:
Its
(title)
DATE:
ATTEST:
___________________________
Kent City Clerk
APPROVED AS TO FORM:
Kent Law Department
ATTEST:
Kent City Clerk
Chris Hamilton
President
11/17/2021 11/24/2021
Dana Ralph
Mayor
Exhibit A: Q#s-090917-8268
All prices are in USD unless otherwise stated.
Xavus Solutions
PO Box 55071 #30713
Boston, MA 02205-5071
5088344113
tina@myseniorcenter.com
Quote
ADDRESS
Mr. Steven Barton
Kent Senior Activity Center
Attn: Information Technology
220 4th Ave. S.
Kent, WA 98032 United Stated
SHIP TO
Mr. Steven Barton
Kent Senior Activity Center
600 East Smith St.
Kent, WA 98030 United Stated
QUOTE #s-090917-8268
DATE 11/16/2021
EXPIRATION DATE 12/31/2021
ACTIVITY QTY RATE AMOUNT
MySeniorCenter Hand-held Scanner with USB cable, MySeniorCenter
synchronization software license and one hour of web-based training
1 820.00 820.00T
Voice Connect PREMIUM 1 year - unlimited calls; allows for Center's number to
show on caller id when using the service. Also includes access to text/SMS
broadcast function. This is an annual fee
1 300.00 300.00
The annual fee will increase $400 ($300 for voice connect premium and $100 for the
one handheld scanner)
1 0.00 0.00
Please sign fax to 508-834-4125 or scan/email to
tina@myseniorcenter.com.
SUBTOTAL 1,120.00
TAX (10.1%)82.82
TOTAL $1,202.82
Accepted By Accepted Date