R-2018-6093 - 11/20/2018 RESOLUTION NO. R-2018-6093
WHEREAS, the City of Round Rock ("City") desires to purchase digital content materials for
the City's Public Library, and
WHEREAS, Section 252.022(4) of the Texas Local Government states that expenditures for
items available from only one source are exempt from competitive bidding requirements, and
WHEREAS, OverDrive, Inc. is the sole source distributor for the OverDrive Digital reserve
system, and
WHEREAS, the City desires to enter into an Agreement with OverDrive, Inc. to purchase
digital content materials for the City's Public Library,Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on behalf of the City an
Agreement for Digital Library Services with OverDrive, Inc., a copy of same being attached hereto as
Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 20th day of November, 2018.
CRAIG IRGA ayor
City of Round R k, Texas
ATTEST:
<3� , 9 tw
SARA L. WHITE, City Clerk
0112.1784;00413170
EXHIBIT
CITY OF ROUND ROCK AGREEMENT FOR
DIGITAL LIBRARY SERVICES
WITH
OVERDRIVE INC.
THE STATE OF TEXAS §
CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
THAT THIS AGREEMENT for the purchase of digital content materials for the City's
Public Library (referred to herein as the "Agreement"), is made and entered into on this the
day of the month of , 2018 by and between the CITY OF ROUND
ROCK, a Texas home-rule municipality, whose offices are located at 221 East Main Street,
Round Rock, Texas 78664-5299 (referred to herein as the "City"), and OVERDRIVE, INC.,
whose offices are located at One OverDrive Way, Cleveland, Ohio 44125 (referred to herein as
"Vendor").
RECITALS:
WHEREAS, City desires to purchase digital content materials for the City's Public
Library, and City desires to procure same from Vendor; and
WHEREAS, Vendor agrees to provide City with digital content materials; and
WHEREAS, expenditures that are for procurement of items from only one source,
including books, papers, and other library materials for a public library that are available only
from the persons holding exclusive distribution rights to the materials, are exempt from
competitive bidding requirements pursuant to Section 252.022 of the Texas Local Government
Code; and
WHEREAS, the City has determined that Vendor is a sole source provider for these
goods and services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties,and obligations;
NOW, THEREFORE, WITNESSETH:
004 117 0 9/s_Q2
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Vendor whereby
City is obligated to buy specified goods and services and Vendor is obligated to provide said
goods and services. The Agreement includes the attached exhibit.
B. City means the City of Round Rock, Williamson and 'Travis Counties, Texas.
C. Effective Date means the date upon which the binding signatures of both parties
to this Agreement are affixed.
D. Force Majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind from the government of the United
States or the State of Texas or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government
and the people, civil disturbances, explosions, or other causes not reasonably within the control
of the party claiming such inability.
E. Goods and services mean the specified services, supplies, materials,
commodities, or equipment.
2.01 EFFECTIVE DATE, TERM, ALLOWABLE RENEWALS, PRICES FIRM
A. This Agreement shall be effective on the date this Agreement has been signed by
each party hereto, and shall remain in full force and effect unless and until it expires by operation
of the term indicated herein,or is terminated or extended as provided herein.
B. The term of this Agreement shall be for sixty (60) months from the effective date
hereof.
C. City reserves the right to review the relationship with Vendor at any time, and
may elect to terminate this Agreement with or without cause or may elect to continue.
3.01 CONTRACT DOCUMENTS AND EXHIBITS
The goods and services which are the subject of this Agreement are described in Exhibit
"A,"attached hereto and incorporated herein by reference for all put-poses. Exhibit "A,"together
with this Agreement, comprise the total Agreement and they are fully a part of this Agreement as
if repeated herein in full.
4.01 SCOPE OF WORK
Vendor shall satisfactorily provide all services described under the attached Exhibit"A."
Vendor's undertakings shall be limited to performing services for the City and/or advising City
concerning those matters on which Vendor has been specifically engaged. Vendor shall perform
its services in accordance with this Agreement, in accordance with the appended exhibit, in
accordance with due care, and in accordance with prevailing industry standards for comparable
services.
5.01 CONTRACT AMOUNT
In consideration for the goods and related services set forth in Exhibit"A," City agrees to
pay Vendor:
A. An annual not-to-exceed amount of Eighty Thousand and No/100 Dollars
($80,000.00) for a total not-to-exceed amount of Four Hundred Thousand and No/100 Dollars
($400,000.00) for the term of the Agreement.
B. The City shall be required to pay the Vendor for digital content services a
minimum of Fifty Thousand and No/100 Dollars ($50,000.00) each year for term of the
Agreement. This minimum amount is included in the not-to-exceed amounts set forth in
Paragraph A above.
6.01 INVOICES
All invoices shall include, at a minimum, the following information:
A. Name and address of Vendor;
B. Purchase Order Number;
C. Description and quantity of items received or services provided; and
D. Delivery or performance dates.
7.01 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Vendor a written notice of termination at the end of its then current fiscal year.
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8.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Vendor will be made within thirty (30) days of the day on which City receives the performance,
supplies, materials, equipment, and/or deliverables, or within thirty(30) days of the day on which
the performance of services was complete, or within thirty (30) days of the day on which City
receives a correct invoice for the perfon-nance and/or deliverables or services, whichever is later.
Vendor may charge interest on an overdue payment at the "rate in effect" on September I of the
Fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b); however, this Policy does not apply to payments made
by City in the event:
A. There is a bona fide dispute between City and Vendor, a contractor, subcontractor
or supplier about the goods delivered or the service performed that cause the
payment to be late; or
B. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
C. There is a bona fide dispute between Vendor and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late; or
D. Invoices are not mailed to City in strict accordance with instructions, if any, on the
purchase order or the Agreement or other such contractual agreement.
9.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without liability to Vendor
if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or otherwise
were offered or given by Vendor or its agents or representatives to any City officer, employee or
elected representative with respect to the performance of this Agreement. In addition, Vendor
may be subject to penalties stated in Title 8 of the Texas Penal Code.
10.01 TAXES
City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be
included in Vendor's charges.
11.01 ORDERS PLACED WITH ALTERNATE SERVICES PROVIDERS
If Vendor cannot provide the goods as specified, City reserves the right and option to
obtain the products from another supplier or suppliers
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12.01 CITY'S REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Michelle Cervantes
Library Director
216 East Main Street
Round Rock, Texas 78664
(512) 218-7010
13.01 INSURANCE
Vendor shall meet all City of Round Rock Insurance Requirements as set forth at:
http:/,Iwww.roundrocktexas.gov/wp-content/UDloads/2014/12/corr insurance 07 20112 pdf.
14.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable tirne specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
15.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City purchasing
the specified goods elsewhere, Vendor agrees that it may be charged the difference in cost, if any,
and that it will not be considered in the re-advertisement of the service and that it may not be
considered in future bids for the same type of work unless the scope of work is significantly
changed.
Vendor shall be declared in default of this Agreement if it does any of the following:
A. Fails to fully, timely and faithfully perform any of its material obligations
under this Agreement;
B. Fails to provide adequate assurance of performance under the "Right to
Assurance"section herein; or
C. Becomes insolvent or seeks relief under the bankruptcy laws of the United
States.
16.01 TERMINATION AND SUSPENSION
A. City has the right to terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon thirty(30)days' written notice to Vendor.
B. In the event of any default by Vendor, City has the right to terminate this
Agreement for cause, upon ten (10) days' written notice to Vendor.
C. Vendor has the right to terminate this Agreement only for cause, that being in the
event of a material and substantial breach by City, or by mutual agreement to terminate
evidenced in writing by and between the parties.
D. In the event City terminates under subsections (A) or (B) of this section, the
following shall apply: Upon City's delivery of the referenced notice to Vendor, Vendor shall
discontinue all services in connection with the performance of this Agreement and shall proceed
to cancel promptly all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement. Within thirty (30) days after such notice of termination, Vendor
shall submit a statement showing in detail the goods and/or services satisfactorily performed
under this Agreement to the date of termination. City shall then pay Vendor that portion of the
charges, if undisputed. The parties agree that Vendor is not entitled to compensation for services
it would have performed under the remaining term of the Agreement except as provided herein.
1.7.01 INDEMNIFICATION
Vendor shall defend (at the option of City), indemnify, and hold City, its successors,
assigns, officers, employees and elected officials harmless from and against all suits, actions,
legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all
other costs or fees arising out of, or incident to, concerning or resulting from the fault of Vendor,
or Vendor's agents, employees or subcontractors, in the performance of Vendor's obligations
under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be
deemed to limit the rights of City or Vendor (including, but not limited to the right to seep
contribution)against any third party who may be liable for an indemnified claim.
18.01 CONFIDENTIALITY
Each party agrees that it will not disclose to any third party or unauthorized personnel any
information concerning the customers, trade secrets, methods, processes, procedures or any other
confidential, financial or business information of the other party which it learns during the course
of its performance of this Agreement, without the prior consent of the other party unless such
disclosure is required by law. The parties recognize and understand that City is subject to the
Texas Public Information Act and its duties run in accordance therewith
19.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
A. Vendor, its agents, employees and subcontractors shall use best efforts to comply
with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock,
as amended, and with all applicable rules and regulations promulgated by local, state and national
boards, bureaus and agencies.
B. Vendor acknowledges and understands that City has adopted a Storm Water
Management Program (SWMP) and an Illicit Discharge Ordinance, Sections 14-139 through 14-
152 of the City's Code of Ordinances, to manage the quality of the discharges from its Municipal
Separate Storm Sewer System (MS4)and to be in compliance with the requirements of the Texas
Commission on Environmental Quality (TCEQ) and the Texas Pollutant Discharge Elimination
System (TPDES). The Vendor agrees to perform all operations on City-owned facilities in
compliance with the City's Illicit Discharge Ordinance to minimize the release of pollutants into
the MS4. The Vendor agrees to comply with of the City's stormwater control measures, good
housekeeping practices and any facility specific stormwater management operating procedures
specific to a certain City facility. In addition, the Vendor agrees to comply with any applicable
TCEQ Total Maximum Daily Load (TMDL) Requirements and/or I-Plan requirements.
C. In accordance with Chapter 2270, Texas Government Code, a governmental entity
may not enter into a contract with a company for goods and services unless the contract contains
written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott
Israel during the term of this contract. The signatory executing this Agreement on behalf of
Vendor verifies Vendor does not boycott Israel and will not boycott Israel at any time during the
term of this Agreement.
20.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
21.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
I. When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Vendor:
OverDrive, Inc.
One OverDrive Way
Cleveland, OH 44125
Notice to City:
City Manager Stephen L. Sheets, City Attorney
221 East Main Street AND TO: 309 East Main Street
Round Rock, TX 78664 Round Rock,TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
22.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County,Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
23.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Vendor and City. This Agreement may only be amended or supplemented by mutual agreement
of the parties hereto in writing, duly authorized by action of the City Manager or City Council.
24.01 DISPUTE RESOLUTION
City and Vendor hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
25.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
26.01 MISCELLANEOUS PROVISIONS
Standard of Care. Vendor represents that it employs trained, experienced and
competent persons to perform all of the services, responsibilities and duties specified herein and
that such services, responsibilities and duties shall be performed in a manner according to
generally accepted industry practices.
Time is of the Essence. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully
responsible for its delays or for failures to use best efforts in accordance with the terms of this
Agreement. Where damage is caused to City due to Vendor's failure to perform in these
circumstances, City may pursue any remedy available without waiver of any of City's additional
legal rights or remedies.
Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible as defined herein. However, notice of such impediment or delay in performance
must be timely given, and all reasonable efforts undertaken to mitigate its effects.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when taken
together, shall constitute one and the same instrument.
[Signatures on the following page.]
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
City of Round Rock,Texas OverDri e, I
By: By:_
Printed Name: Printed Name: , -
Title: Title: 6Ln
c--A
Date Signed: Date Signed:
Attest:
By:
Sara L. White, City Clerk
For City,Approved as to Form:
By:
Stephan L. Sheets, City Attorney
OverDrive Digital Library Reserve Order Form ver,Feb 2014(U.S.)
0 V quvrvrl V 11107,
GlverDriveO Digital Library Reserve Order Form
Library Information
Name of Library:Round Rock Public Library System
Address: 216 E. Main Ave.
City,State/Province, Postal Code: Round Rock,TX 78664 Country:USA
Primary Contact
Name: Title:
Telephone: Email:
Accounting Contact(all involves will be emailed to the contact listed below):
Name: Title:
Telephone: Email:
Sill To Address:
City, State/Province, Postal Code: Country:
❑OverDrive sends emails about promotions,new products and services. By checking this box,you consent to receiving
OverDrive's communications and promotional emails to your Primary Contact email address. These emails also include an easy
method to manage your subscription(s),including unsubscribing to future emails.
OverDrive Content Service Plan Fee Schedule
Library will be invoiced an Annual Fee of$ 12,000 within thirty(30)days from the Effective Date of this Order Form, The
Annual Fee includes an allocation of$ 8,000 to use toward the selection of Digital Content.
Library shall be required to spend a minimum of$50,000 each year(including the Annual Content Credit of$8,000) on
Digital Content purchases (the"Minimum Spending Requirement") and not to exceed $80,000 each year. In the event
that Library does not meet the Minimum Spending Requirement in any contract year under this Agreement,OverDrive will
invoice Library a retroactive Hosting Fee of$2,000 within thirty(30) days of the end of the contract year in which the
Minimum Spending requirement was not met.
All payments due to OverDrive under this Agreement are due within thirty(30) days of presentation of invoice.
OverDrive Terms and Conditions:
The initial Term of this Agreement shall be for five(5)years from the Effective Date.
OverDrive Digital Library Reserve is licensed pursuant to the OverDrive Digital Library Reserve Access Agreement,
available at htt www,overdrive.com dlr-aa. df the terms of which are incorporated herein and may be
modified from time to time. Upon the Effective Date below, this Agreement shall supersede and replace the
OverDrive Digital Library Reserve Agreement entered into by and between the Parties on October 20, 2014.
Acknowledgement and Acceptance:
On behalf of my Library, I represent and warrant that I have the authority to enter into this Agreement and my signature
below indicates my Library's agreement and acceptance of the OverDrive Digital Library Reserve Access Agreement.
By(signature) Title
Name (Print) Effective Date October 2.0, 2018
Exhibit "A"
02014 OverDrive,Inc. - One OverDrive Way - Cleveland,OH 44125 - P:+1216-573-6886 + F:+1216-573-6889
OverDrive Digital Library Reserve Order Form ver.Feb 2014(U.S.)
OverDrive Digital Library features included with Annual Fee:
Collection
Thousands of classic eBooks from Project Gutenberg—free
Web-based staff training to use collection development tools in Overdrive's Marketplace
catalog of 700,000+popular& educational eBooks,audiobooks,&video
Services
Library-branded website plus system-wide updates
Authentication options
Web-based staff training—lead by expert trainer(live)
Web-based staff training—access to online Learning Center(recordings)
Reporting module
Customizable marketing resources to promote service to staff and community both inside&
outside the library
Secondary-level user support
Technology
OverDrive apps for eBooks,audiobooks,video
Support for Kindle'*(US only), NOOK'""and iPadO,plus all major devices
Configuration and license fee
Third-party licenses for digital rights management
Maintenance,hosting&support services
Bandwidth for all downloads
Please complete this order form and return by fax to+1216-573-6889 or email to 5ale5(@overdriv!2.com.
Thank you for your orderl
Exhibit "A"
072014 OverDrive,Inc. • One OverDrive Way • Cleveland,OH 44125 • P:+1216-573-6886 • F:+1216-573-6889
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