CM-2023-142 - 6/30/2023DocuSign Envelope ID: F14486EB-FOE9-439A-AF68-407269518522
CITY OF ROUND ROCK AGREEMENT
FOR SUBSCRIPTION SERVICES
WITH
PRO QUEST LLC
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 subscription services to O'Reilly for the
t ' Library (referred to here' as the "Agreement"), is made and entered into on this the
day of the month of , 2023 by and between the CITY OF ROUND
ROCK, a Texas home -rule mun ipality, whose offices are located at 221 East Main Street,
Round Rock, Texas 78664-5299 (referred to herein as the "City"), and PRO QUEST LLC,
whose offices are located at 789 East Eisenhower Parkway, Ann Arbor, Michigan 48108
(referred to herein as "Vendor").
RECITALS:
WHEREAS, City desires to purchase a license for subscription services to O'Reilly for
the City's Library; 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;
4884-793111790lss2
DocuSign Envelope ID. F14486EB-FOE9-439A-AF68-407269518522
NOW, THEREFORE, WITNESSETH:
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 AND TERM
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 thirty-six (36) months from the effective
date of this Agreement with no automatic renewals.
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 purposes. Exhibit "A," together
with this Agreement, comprise the total Agreement and they are fully a part of this Agreement as
DocuSign Envelope ID F14486EB-FOE9-439A-AF68-407269518522
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 the attached Exhibit "A,"
City agrees to pay Vendor an amount not -to -exceed Thirty -Six Thousand and No/100 Dollars
($36,000.00) for the term of the Agreement.
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. Any early
termination due to non -appropriation of funds shall not obligate Vendor to refund any prepaid
fees.
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
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DocuSign Envelope ID: F14486EB-FOE9439A-AF68407269518522
which the performance of services was complete, or within thirty (30) days of the day on which
City receives a correct invoice for the performance and/or deliverables or services, whichever is
later. Vendor may charge interest on an overdue payment at the "rate in effect" on September 1
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 represents it is exempt from Federal Excise and State Sales Tax; therefore, tax shall
not be included in Vendor's charges. Upon Vendor's request, City shall provide evidence of tax
exempt status. If City does not provide requested evidence of tax exempt status upon Vendor's
request, taxes may 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
DocuSign Envelope 0: F14486E8-FOE9-439A-AF68-407269518522
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
200 East Liberty Avenue
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://www.roundrocktexas.gov/wi2-content/uploads!2014/12/corr insurance 07.20l 12.pdf
subject to the following modifications:
A. The language in subsection 1.5.2 is deleted in its entirety and replaced
with "Intentionally Omitted."
B. The language in subsection 1.5.6 is deleted in its entirety and replaced
with "Intentionally Omitted."
C. The language in Section 2.0 is deleted in its entirety and replaced with
"Intentionally Omitted."
14.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
parry'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 time 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 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;
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docu$ign Envelope IQ: F14486E8-FOE9-439A-AF68-407269518522
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. In the event of default by Vendor as described in 15.01 above and not cured by
Vendor within thirty (30) days from the City's written notice, City has the right to immediately
terminate this Agreement for cause, in whole or in part as to the affected service.
B. Vendor has the right to terminate this Agreement only for cause, that being in the
event of a material and substantial breach by City as further described in the License Agreement,
or by mutual agreement to terminate evidenced in writing by and between the parties.
C. In the event City terminates under subsection (A) of this section, the following
shall apply: Vendor shall discontinue all services in connection with the performance of this
Agreement. Upon termination, Vendor shall issue City a pro-rata refund of prepaid fees
corresponding to the unused balance of the subscription term as its sole and exclusive remedy.
Upon termination, each party reserves the right to pursue all available legal remedies.
17.01 INDEMNIFICATION
Vendor shall indemnify and hold harmless from liability for all costs or damages incurred
by City in an action or threatened action for infringement of an intellectual property right of a
third party, relating to or caused by the Vendor's products and services ("Service") in the form in
which it is furnished hereunder, provided that City gives Vendor notice of any suit or threatened
suit for infringement brought within twenty (20) days of the day of service of the complaint upon
City or from the receipt by City of notice of a threatened suit and further provided that Vendor
shall control the defense of any such suit. Vendor shall not be liable hereunder if: (1) any
infringement or violation claim is based solely upon the use of the Service in combination with
the programs, equipment or devises not of Vendor origin, design or selection; or (2) any
infringement or violation claim arises out of use of the Service in a manner contrary to the rights
granted in this Agreement, including use contrary to the Copyright Act of 1976, Title 17 U.S.C.
or other intellectual property law. Nothing herein shall be deemed to limit the rights of City or
Vendor (including, but not limited to the right to seek 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
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DocuSign Envelope ID: F14486ES-FOE9-439A-AF68-407269518522
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. In accordance with Chapter 2271, 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: (I) 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 except that Vendor may assign this Agreement in whole or in part as part of a
corporate reorganization, consolidation, merger or sale of substantially all of its assets related to
this Agreement without the City's prior consent.
21.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
1. 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:
ProQuest, LLC
789 East Eisenhower Parkway
Ann Arbor, MI 48108
Attn: Legal Department, General Counsel
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DocuSign Envelope ID: F14486E8-FOES-439A-AF68-407269518522
Notice to City:
City Manager
221 East Main Street
Round Rock, TX 78664
Stephanie L. Sandre, City Attorney
AND TO: 309 East Main Street
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, including the License Agreement attached
as Exhibit "A," 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.
DocuSign Envelope ID: F14486EB-FOES-439A-AF68-407269518522
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.]
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DocuSign Envelope ID: F14486ES-FOE9.439A-AF68407269518522
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
City of Round Rock, Texas
an
PrintedName: LA 'A {441W
Title: _ / A/V-4 4-et--
Date Signed:_
Attest:
B
Meagan Sp n , City Jerk
For City, Ap r as to Form:
By: ,
Stephanie L. Sandre, City Attorney
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ProQuest LLC 1pe•dby
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By: zsaaazz MAM...
Printed Name: Dawn Bran am
Title: Director, order Management
Date Signed: 13 June 2023
DocuSign Envelope ID: F14486EB-FOE9-439A-AF68-407269518522 Xillult "A"
License Agreement consists of: Pro est..
• This PraQuest Customer Order Form
• Your Clarivate Master Agreement or, where you have not entered a Clarivate Master Agreement,
the Clarivate Terms available at httpslldarivate.con terms-of•business; and Part of Clarivate
• The attached Addenda
LBy signing this Order Form ("Agreement") you agree to license the Products subject to the License Agreement described above
and you certify that you are authorized to enter into this Agreement on behalf of the Customer.
Customer: Round Rock Public Library
Authorization by Customer:
Signature:
Duly Authorized Signature
Name:
Title:
Date Signed:
Au 7-Zf
Pir*Quest LLC:
Signature: rMI "°
Order Form
Name: Dawn Brannad
Title: Director -
Date 13 June 2023
3ianed:
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Product Name
Code
Start Date
End Date
Price
O'Reilly for Public Libraries
SAFPLC
6/1/2023
5/31/2024
10,609.00
Link to Required O'Reilly Public Library 5etuo
USD
Information
O'Reilly for Public Libraries
SAFPLC
6/1/2025
5/31/2026
11,255.09
Link to Reouired O'Reilly Public Library Setup
USD
Information
O'Reilly for Public Libraries
SAFPLC
6/1/2024
5/31/2025
10,927.27
Link to Reouired O'Reilly Public Library Set
USD
Information
Product
O'Reilly for Public Libraries: AroQuest is an independent company acting as the sales agent for Safari Books Online
LLC with respect to the sales of Safori's service offerings and related matters. Publisher restrictions prohibit the
licensing of any Safari service as a replacement for textbook adoption in the classroom.
Additional
3-Year, Multi -Year Renewal Contract with 3% YOY.
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DocuSign Envelope ID: F14486EB-FOEg-439A-AF68-407269518522 (hibit "A"
Electronic Invoice Reciaient(s):
Electronic Renewal Recioient(s):
Rhonda Kuiper
Rhonda Kuiper
rkuiper@ round rocktexas.gov
rkuiper@roundrocktexas.gov
If your subscribing institution requires the use of Purchase
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Orders, please indicate below.
If tax exempt, please include copy of supporting
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documentation with signed agreement or email a copy to
ayn'crrnaziar@Lr ,2sr..ro
Invoices will be emailed to the bill -to-
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contact and renewals will be emailed to
check this box: ❑
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Customer's receipt of the renewal invoice, with such cancellation to be effective as
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iP Authentication: Barcode Scheme: Alternative Authentication: LIBCODE
Authentication Instructions:
Account Manager Information:
Dawn Ledwidge
dawn.ledwidge@proquest.com
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DocuSign Envelope ID: F14486EB-FOES-439A-AF68-407269518522 Khibit "A"
PRODUCT / SERVICE TERMS ADDENDUM
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ProQuest Platform & Ebooks
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websites.
10. Analytics. Some Products contain library collection analysis capabilities related to library holdings, or
functionality that allows Authorized Users to create reports, lists, or alerts. You and your Authorized Users may
create, download, store and retain any such analytics or lists delivered by the Product. Clarivate may use library
holdings and other information in the Product for comparison and metrics purposes and in order to better
understand its customers' needs.
Clarivate Americas No Easy Renew (rev. 81112022) Page 5 of 6
DocuSign Envelope ID: F14486EB-FOE9-439A-AF68-447269518522 KI Ilult "A"
11. Perpetual Archive License. Where you have perpetually licensed content from us through a
Perpetual Archive License (PAL), as set out in your Order, your PAL content may only be
revoked if you materially breach your Agreement, or if the licensed materials contain errors or
could be subject to an infringement or other adverse claim by a third party. Additionally, your
PAL content is maintained in the Clarivate platform subject to an annual Continuing Service Fee
(CSF). The CSF will be invoiced in arrears on your contract anniversary date. If you lose the
ability to access your PAL content online (e.g., if Clarivate discontinues online access services),
or if the PAL content are otherwise eligible for local loading, you may obtain digital copies upon
certifying that you will secure and restrict use of the PAL content as contemplated under your
Agreement, using systems and technology at least as protective as Clarivate's. In the case of
audio files, any local access must be restricted by DRM and be limited to one (1) simultaneous
user (unless you track playbacks and make all royalty payments to copyright holders for
mechanical and performance rights). All use of locally -loaded materials continues to be subject
to this Agreement. You are responsible for any file transfer costs.
12. Data Mining. You may not text mine, data mine or harvest metadata from the Product. Your
ability to extract and compile data from locally -loaded copies of your PAL content is subject to
any content -specific restrictions. Where permitted, you may use content solely for your
teaching, learning, and research purposes.
13. Supplemental Terms. Some content included in the product has terms of use applicable
solely to such content. Content -specific terms are clearly displayed with the associated content
or embedded in the systems and technologies incorporated into the product. Where third -party
databases or content are subject to supplemental terms, such terms shall be clearly referenced
on the order form. Such supplemental terms shall not materially alter use of the product.
14. Authorized Users. "Authorized User" means, as it relates to your principal location and any
additional sites on your Order:
(a) For public libraries: library staff, individual residents of your reasonably defined geographic
area served, and walk-in patrons while they are on -site; and
(b) For schools and other academic institutions: currently enrolled students, faculty, staff, and
visiting scholars, as well as walk-in patrons while they are on -site.
(c) For corporate organization, your employees and independent contractors while performing
their work.
For clarity, 'Authorized User' excludes corporate affiliates, academic bookstores, non -
subscribing institutions, and alumni unless expressly included on the Order.
15. Governing Law and Jurisdiction. If you are a United States company, the laws of Delaware
(without regard to conflicts of laws) govern all matters arising out of or relating to this
Agreement and you consent to the jurisdictional venue in Delaware. If you are a Canadian
company, the laws of the Province of Ontario (without regard to conflicts of laws), and the laws
of Canada applicable therein, govern all matters arising out of or related to this Agreement and
you consent to the jurisdictional venue in Toronto in the Province of Ontario. The United
Nations Convention on Contracts for the International Sale of Goods does not apply to this
Agreement.
Clarivate Americas No Easy Renew (rev. 8? 112022) Page 6 of 6
City of Round Rock
' ROUNO ROCK
TEXAS Agenda Item Summary
Agenda Number:
Title: Consider executing an Agreement with ProQuest LLC for subscription services for
the library.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 6/30/2023
Dept Director: Michelle Cervantes
Cost: $32,791.36
Indexes: General Fund
Attachments: ProQuest LLC Subsciption Agreement for O Reilly for the Library 05 26 23,
ProQuest Sole Source Letter 3.30.23
Department: Library
Text of Legislative File CM-2023-142
Agreement with sole source provider, ProQuest LLC, for thirty-six (36) months for the purchase of
electronic newspaper materials for the library. $32,791.36 paid annually, yr1$10,609.00, yr 2 $11,255.09,
yr 3 $10,927.27.
Cost: $32,791.36
Source of Funds: General Fund
City of Round Rock Page 1 of 1