HomeMy WebLinkAboutAM 2023-009 Kelly Connect Services Agreement City of Seward
Action Memorandum 2023-009
Meeting Date: July 24,2023
To: City Council
Through: Norm Regis,Acting City Manager
From: Dustin Phillips
Subject: Action Memorandum 2023-009: Authorizing The City Manager To Approve A
Services Agreement With Kelly Connect For The Provision Of Xerox Services
Background and justification:
The original service agreement approved by Council in January of 2019 for 10 Xerox brand multi-function
printers expired in February of 2023. Through evaluation of current usage levels,it has been determined that
moving to a higher grade of devices will better serve the current and future needs of the City's departments.
The proposed 60-month service agreement would replace 8 of the machines with newer and higher-grade
machines to better meet the needs of the City's departments. One machine will be eliminated from the
agreement, and one machine was replaced earlier this year and is included in a separate agreement.
Kelly Connect holds the current support agreement for the City's Xerox machines and continuing with Kelly
Connect and Xerox devices is in the best interest of the City. By upgrading our machines,we will be using
the same models of devices that Kelly Connect supports for several other organizations in the Seward area.
This will help ensure local availability of parts and supplies when the need arises. Kelly Connect holds the
state SOURCEWELL contract#030321-XOX for these services. By utilizing this pricing contract,we are
able to ensure the City is receiving the best pricing for these services.
Approval of this action memorandum will authorize the City Manager to enter into a 60-month service
agreement with Kelly Connect for Xerox multi-function printers and support.
Comprehensive and Strategic Plan Consistency Information
This legislation is consistent with(citation listed):
Comprehensive Plan:
Strategic Plan:
Other:
Certification of Funds
Total amount of funds listed in this legislation: $ 0
This legislation(✓):
Creates revenue in the amount of: $
x Creates expenditure in amount of: $ $1,186.51 /month for 60 months
Creates a savings in the amount of: $
Has no fiscal impact
Funds are (✓):
x Budgeted Line item(s):
Not budgeted
Not applicable
Fund Balance Information
Affected Fund(✓):
x General SMIC Electric Wastewater
Boat Harbor Parking Water Healthcare
Motor Pool Other
Note: amounts are unaudited
Available Fund Balance/Net Position $6,414,949
Finance Director Signature: ► �kY4°S-"
Attorney Review
RxYes Attorney Signature:
Not applicable Comments:
Administration Recommendation
eAdopt AM
Other:
Disposition:
Approved by City Council on July 24, 2023
KELLEY MASTER AGREEMENT
CONNECT
AGREEMENT NO.:
CUSTOMER • or •
FULL LEGAL NAME:City of Seward
ADDRESS:410 Adams St Seward,AK 99664
CONTACT NAME Dustin Phillips PHONE#:(907)224-4062 FEDERAL TAX ID#:
EQUIPMENT ❑ SEE ATTACHED SCHEDULE
NOT BEGINNING METER MONTHLY IMAGE EXCESS PER IMAGE
FINANCED READING ALLOWANCE CHARGE PLUS TAX
TYPE,MAKE,MODEL NUMBER,SERIAL NUMBER, UNDER THIS
AND INCLUDED ACCESSORIES AGREEMENT B&W COLOR B&W COLOR B&W COLOR
Xerox AltaLink B8145 H2 1 ❑
Xerox AltaLink C8130 T2 3 ❑
Xerox AltaLink C8130 T2 3 ❑
Xerox AltaLink C8145 H2 1 ❑
El
El
El
TOTAL CONSOLIDATED MONTHLY IMAGE ALLOWANCE AND EXCESS PER IMAGE CHARGES IF CONSOLIDATED 10,000 0 $0.0070 $0.0650
MONTHLY BASE PAYMENT AMOUNT:$1,186.51(PLUS TAX) TERM IN MONTHS:60 METER FREQUENCY:Quarterly
SECURITY DEPOSIT:$0.00 ADVANCE PAYMENT: (PLUS TAX)to be applied to first Payment due ORIGINATION FEE:
$75.00(PLUS TAX) METER FEE:$
EQUIPMENT LOCATION:As Stated Above ❑SEE ATTACHED SCHEDULE
THIS AGREEMENT IS NON-CANCELABLE AND IRREVOCABLE.IT CANNOT BE TERMINATED. PLEASE READ CAREFULLY BEFORE SIGNING.
CUSTOMER'S • '
BY SIGNING THIS PAGE,YOU REPRESENT TO US THAT YOU HAVE RECEIVED, READ,AND ACKNOWLEDGED THE ADDITIONAL TERMS AND
CONDITIONS APPEARING ON THE SECOND PAGE OF THIS TWO-PAGE AGREEMENT.THIS AGREEMENT IS BINDING UPON OUR ACCEPTANCE
HEREOF.
(As Stated Above) X
CUSTOMER SIGNATURE PRINT NAME&TITLE DATE
• •
Kelley Connect
OWNER SIGNATURE PRINT NAME&TITLE DATE
22710 72nd Ave S Kent, WA 98032-1926
UNCONDITIONAL GUARANTY
The undersigned,jointly and severally if more than one,unconditionally guarantee(s)that the Customer will timely perform all obligations,including all and any debts,liabilities,and obligations of every
nature or form,now existing or hereafter arising or acquired,under the Agreement or any supplements hereto.The undersigned also waive(s)any notification if the Customer is in default and consent(s)
to any extensions or modifications granted to the Customer.In the event of default,the undersigned will immediately pay all sums due under the terms of the Agreement without requiring us or our
assignee,if applicable,to proceed against Customer or any other parry or exercise any rights in the Equipment.The undersig ned hereby binds any respective administrators,representatives,successors,
and authorized assigns.THE UNDERSIGNED,AS TO THIS GUARANTY,AGREE(S)TO THE DESIGNATED FORUM AND CONSENT(S)TO PERSONAL JURISDICTION,VENUE,AND CHOICE OF
LAW AS STATED IN THE AGREEMENT,AGREE(S)TO PAY ALL COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, INCURRED BY US OR OUR ASSIGNEE RELATED TO THIS
GUARANTY AND THE AGREEMENT,WAIVE(S)A JURY TRIAL AND TRANSFER OF VENUE,AND AUTHORIZE(S)OBTAINING CREDIT REPORTS.
SIGNATURE: X INDIVIDUAL: DATE
SIGNATURE: X INDIVIDUAL: DATE
CERTIFICATE OF
The Customer hereby certifies that all the Equipment:1)has been received,installed,and inspected,and 2)is fully operational and unconditionally accepted.
SIGNATURE: X NAME&TITLE: DATE:
018861-ZUP03A(RL)_0218 PAGE 9 1 295
ADDITIONAL • •
1. AGREEMENT:For business purposes only,you agree to rent from us the goods,together with all replacements,parts,repairs,additions,and accessions incorporated therein or attached thereto and any and all proceeds of the foregoing,
including,without limitation,insurance re cove des(the"Equipment")and/or to finance certain licensed software and services("Financed Items',which are included in the word"Equipment"unless separately stated),all as described on page
1 of this Agreement,excluding equipment marked as not financed under this Agreement,as it may be supplemented from time to time.You agree to all of the terms and conditions contained in this Agreement and any supplement,which
(with the acceptance certification)is the entire agreement regarding the Equipment("Agreement")and which supersedes any purchase order or invoice.You authorize us to correct or insert missing Equipment identification information and
to make corrections to your proper legal name and address.This Agreement becomes valid upon execution by us.This Agreement is binding upon our acceptance hereof and will begin on the date the Equipment is delivered to you or any
later date we designate.Unless otherwise stated in an addendum hereto,this Agreement will renew month to month unless you send us written notice at least 30 days(before the end of any term)that you want to return the Equipment,and
you timely return the Equipment(according to the conditions herein).Any security deposit will be commingled with our assets,will not earn interest,and will be returned at the end of the term, provided you are not in default.If any provision
of this Agreement is declared unenforceable in any jurisdiction,the other provisions herein shall remain in full force and effect in that jurisdiction and all others.You shall deliver all information requested by us which we deem reasonably
necessary to determine your current financial condition and faithful performance of the terms hereof.
2. RENT,TAXES AND FEES:You will pay the Monthly Base Payment Amount(as adjusted)when due,plus any applicable sales,use and property taxes with respect to this Agreement and the Equipment.The Monthly Base Payment
amount will be adjusted proportionately upward or downward:(1)by up to 10%to accommodate changes in the actual Equipment cost,(2)if the shipping charges or taxes differ from the estimate given to you,and(3)to comply with the tax
laws of the state in which the Equipment is located. If we pay any taxes,insurance or other expenses that you owe hereunder,you agree to reimburse us when we request and to pay us a processing fee for each expense or charge we pay
on your behalf.We may charge you for any filing fees required by the Uniform Commercial Code(UCC)or other laws,which fees vary state-to-state.We own the Equipment(excluding any Software).You agree to indemnify us for the loss
of any U.S.federal income tax benefits resulting from your acts or omissions inconsistent with this Agreement or our ownersh ip of the Equipment.By the date the first Payment is due,you agree to pay us a origination fee,as shown on our
invoice or addendum,to cover us for all closing costs.We will have the right to apply all sums,received from you,to any amounts due and owed to us underthe terms of this Agreement.If for any reason your check is returned for nonpayment,
you will pay us a bad check charge of$30 or,if less,the maximum charge allowed by law.We may make a profit on any fees,estimated tax payments and other charges paid under this Agreement.You cannot pay off this Agreement or
return the Equipment prior to the end date without our consent.If we consent,we may charge you,in addition to other amounts owed,an early termination fee up to 10%of the Fair Market Value of the Equipment on the date of this Agreement.
3. MAINTENANCE AND LOCATION OF EQUIPMENT;SECURITY INTEREST;SOFTWARE/DATA:At your expense,you agree to keep the Equipment:(1)in good repair,condition and working order,in compliance with applicable
manufacturers'and regulatory standards;(2)free and clear of all liens and claims;and(3)only at the installation address,and you agree not to move it unless we agree in writing.As long as you have given us the written notice as required
in paragraph 1 prior to the expiration or termination of this Agreement's term,you will return all but not less than all of the Equipment and all related manuals and use and maintenance records to a location we specify,at your expense,in
retail re-saleable condition,full working order and complete repair.If this Agreement is deemed to be a secured transaction,you grant us a security interest in the Equipment to secure all amounts you owe us under any agreement with us,
and you authorize us to file a financing statement(UCC-1).You will not change your state of organization,headquarters or residence without providing prior written notice to us so that we may amend or file a new UCC-1.You will notify us
within 30 days if your state of organization revokes or terminates your existence.Except as provided in this paragraph,references to"Equipment"include any software referenced above or installed on the Equipment.We do not own the
software and cannot transfer any interest in it to you.We are not responsible for the software or the obligations of you or the licensor under any license agreement.You are solely responsible for removing any data that may reside in
the Equipment you return,including but not limited to hard drives,disk drives or any other form ofinemory.
4. COLLATERAL PROTECTION;INSURANCE;INDEMNITY;LOSS OR DAMAGE:You agree to keep the Equipment fully insured against risk and loss,with us as lender's loss payee,in an amount not less than the original cost until this
Agreement is terminated.You also agree to obtain a general public liability insurance policy with such coverage and from such insurance carrier as shall be satisfactory to us and to include us as an additional insured on the policy.Your
insurance policy(s)will provide for 10 days advance written notice to us of any modification or cancellation.You agree to provide us certificates or other evidence of insurance acceptable to us.If you fail to comply with this requirement within
30 days after the start of this Agreement,we may(A)secure property loss insurance on the Equipment from a carder of our choosing in such forms and amounts as we deem reasonable to protect our interests.If we place insurance on the
Equipment,we will not name you as an insured and your interests may not be fully protected.If we secure insurance on the Eq uipment,you will pay us an amount for the premium which may be higher than the premium that you would pay
if you placed the insurance independently and an insurance fee which may result in a profit to us through an investment in reinsurance or(B)charge you a monthly property damage surcharge of up to.0035 of the Equipment cost as a result
of our credit risk and administrative and other costs,as would be further described on a letter from us to you.We may make a profit on this program.NOTHING IN THIS PARAGRAPH WILL RELIEVE YOU OF RESPONSIBILITY FOR
LIABILITY INSURANCE ON THE EQUIPMENT.We are not responsible for,and you agree to hold us harmless and reimburse us for and,if requested,to defend us against,any claim for any loss,expense,liability or injury caused by or in
anyway related to delivery,installation,possession,ownership,use,condition,inspection,removal,return or storage of the Equipment.You are responsible for the risk of loss orfor any destruction of or damage to the Equipment.You agree
to promptly notify us in writing of any loss or damage. If the Equipment is destroyed and we have not otherwise agreed in writing,you will pay to us the unpaid balance of this Agreement,including any future rent to the end of the term plus
the booked residual of the Equipment(both discounted at 4%).Any proceeds of insurance will be paid to us and credited,at our option,against any loss or damage.You authorize us to sign on your behalf and appoint us as your attorney-m-
fact to endorse in your name any insurance drafts or checks issued due to loss or damage to the Equipment.No loss or damage shall relieve you of your payment obligations under this Agreement.All indemnities will survive the expiration
or termination of this Agreement.
5. ASSIGNMENT:YOU HAVE NO RIGHT TO SELL,TRANSFER,ASSIGN OR SUBLEASE THE EQUIPMENT OR THIS AGREEMENT,without our prior written consent.Without our prior written consent,you shall not reorganize or
merge with any other entity or transfer all or a substantial part of your ownership interests or assets.We may sell,assign,or transfer this Agreement without notice.You agree that if we sell,assign or transfer this Agreement,our assignee
will have the same rights and benefits that we have now and will not have to perform any of our obligations.You agree that the assignee will not be subject to any claims,defenses,or offsets that you may have against us.You shall cooperate
with us in executing any documentation reasonably required by us or our assignee to effectuate any such assignment.This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.
6. DEFAULT AND REMEDIES:You will be in default if:(a)you do not pay any Payment or other sum due to us or any other person when due or ifyou fail to perform in accordance with the covenants,terms and conditions ofthis Agreement or any
other agreement with us or any of our affiliates,(b)you make or have made any false statement or misrepresentation to us,(c)you or any guarantor dies,dissolves or terminates existence,(d)there has been a material adverse change in your or any
guarantor's financial,business or operating condition,or(e)any guarantor defaults under any guaranty for this Agreement.If any amount payable to us is not paid when due,you will pay a late charge equal to:1)the greater often(10)cents for each
dollar overdue or twenty-sic($26.00)dollars,or 2)the highest lawful charge,if less.If you are ever in default,at our option,we can terminate this Agreement and require that you pay the unpaid balance of this Agreement,including any future
Payments to the end of the term plus the booked residual of the Equipment(both discounted at 4%).We may recover default interest on any unpaid amount at the rate of 12%per year. Concurrently and cumulatively,we may also use any or all of
the remedies available to us under Articles 2A and 9 of the UCC and any other law,including requiring that you:(1)return the Equipment to us to a location we specify,and(2)immediately stop using any Financed Items.In addition,we will have the
right,immediately and without notice or other action,to set-off against any of your liabilities to us any money,including depository account balances,owed by us to you,whether or not due. In the event of any dispute or enforcement of rights under
this Agreement or any related agreement,you agree to pay our reasonable attorney's fees(including any incurred before or at trial,on appeal or in any other proceeding),actual court costs and any other collection costs,including any collection
agency fee.If we have to take possession of the Equipment,you agree to pay the costs of repossession,moving,storage,repair and sale.The net proceeds of the sale of any Equipment will be credited against what you owe us under this
Agreement.YOU AGREE THAT WE WILL NOT BE RESPONSIBLE TO PAY YOU ANY CONSEQUENTIAL,INDIRECT OR INCIDENTAL DAMAGES FOR ANY DEFAULT,ACT OR OMISSION BY ANYONE.Any delay or failure to enforce our
rights under this Agreement will not prevent us from enforcing any rights at a later time.You agree that this Agreement is a"Finance Lease"as defined by Article 2A of the UCC and your rights and remedies are governed exclusively by this
Agreement.You waive all rights under sections 2A-507 through 522 of the UCC.If interest is charged or collected in excess of the maximum lawful rate,we will not be subject to any penalties.
7. FAXED OR SCANNED DOCUMENTS,MISC.:You agree to submit the original duly-signed documents to us via overnight courier the same day of the facsimile or scanned transmission of the documents.The parties agree that:(i)this
Agreement and any related documents hereto may be authenticated by electronic means,(ii)the"original"of this Agreement shall be the copy that bears your manual,facsimile,scanned or electronic signature and that also bears our manually
signed signature,and(iii)to the extent this Agreement constitutes chattel paper(as defined by the UCC),a security interest may only be created in the original.You agree not to raise as a defense to the enforcement of this Agreement or any related
documents thatyou executed or authenticated such documents by electronic or digital means or that you used facsimile or other electronic means to transmit your signature on such documents. Notwithstanding anything to the contrary herein,we
reserve the right to require you to sign this Agreement or any related documents hereto manually.By providing any telephone number,now or in the future,for a cell phone or other wireless device,you are expressly consenting to receiving
communications,regardless of their purpose,at that number,including,but not limited to,prerecorded or artificial voice message calls,text messages,and calls made by an automatic dialing system from us and our affiliates and agents.
These calls and messages may incur access fees from yourprovider.
8. WARRANTY DISCLAIMERS:YOU AGREE THAT YOU HAVE SELECTED ANY/ALL THIRD PARTY SUPPLIERS AND EACH ITEM OF EQUIPMENT BASED UPON YOUR OWN JUDGMENT AND YOU DISCLAIM ANY RELIANCE
UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY US.YOU WILL CONTINUE TO MAKE ALL PAYMENTS UNDER THIS AGREEMENT REGARDLESS OF ANY CLAIM OR COMPLAINT AGAINST ANY SUPPLIER,
LICENSOR OR MANUFACTURER,AND ANY FAILURE OF A SERVICE PROVIDER TO PROVIDE SERVICES WILL NOT EXCUSE YOUR OBLIGATIONS TO US UNDER THIS AGREEMENT.YOU ARE NOT ENTITLED TO REDUCE
OR SET-OFF AGAINST AMOUNTS DUE UNDER THIS AGREEMENT FOR ANY REASON.WE MAKE NO WARRANTIES,EXPRESS OR IMPLIED,OF,AND TAKE ABSOLUTELY NO RESPONSIBILITY FOR,MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR PURPOSE,CONDITION,QUALITY,ADEQUACY,TITLE,DATA ACCURACY,SYSTEM INTEGRATION,FUNCTION,DEFECTS,OR ANY OTHER ISSUE IN REGARD TO THE EQUIPMENT,ANY
ASSOCIATED SOFTWARE AND ANY FINANCED ITEMS.WE ASSIGN TO YOU ANY WARRANTIES GIVEN TO US.
9. LAW,JURY WAIVER:Agreements,promises and commitments made by Owner,concerning loans and other credit extensions must be in writing,express consideration and be signed by Owner to be enforceable. This
Agreement may be modified only by written agreement and not by course of performance.YOU AGREE THAT THIS AGREEMENT AND ANY CLAIM RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS
OF THE STATE IN WHICH OUR(OR,IF WE ASSIGN THIS AGREEMENT,OUR ASSIGNEE'S)PRINCIPAL PLACE OF BUSINESS IS LOCATED AND ANY DISPUTE CONCERNING THIS AGREEMENT WILL BE ADJUDICATED IN A
FEDERAL OR STATE COURT IN SUCH STATE.YOU HEREBY CONSENT TO PERSONAL JURISDICTION AND VENUE IN SUCH COURTS AND WAIVE TRANSFER OF VENUE. For any action arising out of or relating to this
Agreement or the Equipment,YOU AND WE WAIVE ALL RIGHTS TO A TRIAL BYJURY.
10. MAINTENANCE AND SUPPLIES:The charges established by this Agreement include payment forthe use of the Equipment,accessories,maintenance during normal business hours,inspection,adjustment,parts replacement,drums,
cleaning material required for proper operation and black toner and developer.Paper and staples must be separately purchased by you.Facsimile maintenance is provided during normal business hours and includes inspection,adjustment,
parts replacement and cleaning material required forthe proper operation.Facsimile drums and toner cartridges must be purchased separately.Colortonerand developers,not included in this Agreement,will be billed separately.If necessary,
the service and supply portion of this Agreement may be assigned.An image is defined as an imaged one-sided sheet of 8.5"x 11"sheet of paper or smaller.When toner is part of this contract,we agree to provide toner(s)in sufficient
quantities as it relates to your usage,and the manufacturers published yields which are based on 6%page coverage of toner to page ratio for black and white and 20%page coverage of toner to page ratio for full color.In the event overall
toner use exceeds this,overages of toner expenses may be billed to you.
11. EXCESS CHARGES AND COST ADJUSTMENTS:You are entitled to make the total number of images shown under Image Allowance Per Machine(or Total Consolidated Image Allowance,if applicable)each period during the term of
this Agreement.If you make more than the allowed images in any period,you will pay us an additional amount equal to the number of the excess images made during such period multiplied by the applicable Excess Per Image Charge.
Regardless of the number of images made in any period,you will never pay less than the Monthly Base Payment Amount.You agree to comply with our billing procedures including,but not limited to,providing us with periodic meter readings
on the Equipment.You agree that we may install an automatic meter reading agent on the Equipment.We may charge you a Meter Fee to cover our administrative costs of obtaining a meter reading if such agent is not installed.At the end
of the first year of this Agreement and once each successive twelve-month period,the Monthly Base Payment Amount and the Excess Per Image Charges may be increased by a maximum of 15%of the then existing payment or charge.
Images made on equipment marked as not financed under this Agreement will be included in determining your usage and excess charges.
12. UPGRADE AND DOWNGRADE PROVISION:AFTER COMMENCEMENT OF THE AGREEMENT AND UPON YOUR WRITTEN REQUEST,AT OUR SOLE DISCRETION,WE MAY REVIEW YOUR COPY VOLUME AND PROPOSE
OPTIONS FOR UPGRADING OR DOWNGRADING THE EQUIPMENT TO ACCOMMODATE YOUR BUSINESS NEEDS.
13. TRANSITION BILLING:In order to facilitate an orderly transition,including installation and training,and to provide a uniform billing cycle,the start date of this Agreement(the"Effective Date")will be a date after the certification of
acceptance of the Equipment,as shown on the first invoice.You agree to pay us an additional amount equal to 1/30rh of the Monthly Base Payment Amount for each day between the date the Equipment is delivered and the Effective Date,
which will be added to your first invoice.
14. MISCELLANEOUS:You authorize us,our agent or our assignee to furnish your information,including credit application,payment history and account information,to credit reporting agencies and our assignees,potential purchasers or
investors and parties having an economic interest in this Agreement or the Equipment,including,without limitation,the seller,supplier or any manufacturer of the Equipment.For security purposes and to help the government fight terrorism
and money laundering activities,Federal law requires all financial institutions to obtain,verify,and record information that identifies each individual or commercial entity that enters into a customer relationship with the financial institution. For
this reason,we may request the following identifying information:name,address,date of birth.We may also ask other questions or request other documents meant to verify your individual or commercial identity.
018861-ZUP03A(RL)_0218 PAGE 9? 295
EQUIPMENT SCHEDULE
114 �
KELLEY
`�-^�' r T AGREEMENT NO.:
DESCRIPTIONOF •
TYPE,MAKE,MODEL NUMBER AND INCLUDED ACCESSORIES SERIAL NO.
1 Xerox Altal-ink B8145 H2,4 520-sheet Trays, Inner Finisher,Vend Interface
3 Xerox Altal-ink C8130 T2, 4 520-sheet Trays
3 Xerox Altal-ink C8130 T2, 4 520-sheet Trays, Inner Finisher
1 Xerox Altal-ink C8145 H2, 4 520-sheet Trays, Inner Finisher
VERIFICATION
The undersigned acknowledges having received a copy of this Schedule.A copy of this document containing your original or facsimile signature,or other
indication of your intent to agree to the terms set forth herein,shall be enforceable for all purposes.
X
CUSTOMER SIGNATURE PRINT NAME&TITLE DATE
018861-ZP02050716 103 295