Contract - Playaway Products - 9/28/2023 CITY OF ROUND ROCK AGREEMENT
FOR PURCHASE OF AUDIOBOOKS
AND EDUCATIONAL MATERIALS
WITH
PLAYAWAY PRODUCTS, 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 audiobooks and educational materials,
and related goods, for the City's Library (referred to herein as the "Agreement"), is made and
entered into on this the WI-4' day of the month of 2023 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
PLAYAWAY PRODUCTS,LLC, whose offices are located at 31999 Aurora Road, Solon, Ohio
44139 (referred to herein as "Vendor").
RECITALS:
WHEREAS,purchase of audiobooks and educational materials, and related goods,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;
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
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4859-1692-8361!ss2
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,
commod ities, 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 sixty (60) 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
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 a not-to-exceed amount of Thirty-Five Thousand and No/100
Dollars ($35,000.00) per year and a total of One Hundred Seventy-Five Thousand and
No/100 ($175,000.00) 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 perfonnance,
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
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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
12.01 CITY'S REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
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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:
htt ://www.roundrocktexas. ov/w -content/u loads/2014'l2'corr insurance 07.20112.12d
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 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;
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.
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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
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
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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.
C. In accordance with 2274, Texas Government Code, a governmental entity may
not enter into a contract with a company with at least ten (10) full-time employees for a value of
at least One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has a
provision verifying that it: (1) does not have a practice, policy, guidance, or directive that
discriminates against a firearm entity or firearm trade association; and (2) will not discriminate
during the term of the contract against a firearm entity or firearm trade association. The signatory
executing this Agreement on behalf of Vendor verifies Vendor does not have a practice, policy,
guidance, or directive that discriminates against a firearm entity or firearm trade association, and
it will not discriminate during the term of this Agreement against a firearm entity or firearm trade
association.
D. In accordance with 2274, Texas Government Code, a governmental entity may not
enter into a contract with a company with at least ten (10) full-time employees for a value of at least
One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has a provision
verifying that it: (l) does not boycott energy companies;and (2) will not boycott energy companies
during the term of this Agreement. The signatory executing this Agreement on behalf of Vendor
verifies Vendor does not boycott energy companies, and it will not boycott energy companies 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.
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Notice to Vendor:
Playaway Products, LLC
31999 Aurora Road
Solon, OH 44139
Notice to City:
City Manager Stephanie L. Sandre, 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, 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
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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
ind icated.
City of Round Rock,Texas Playaway Products, LLC
By: By: «�t�
Printed Na e: Printed arae: —toy-,v\ Cov�Q,
Title:til1A�Ac Title: 0 v e s k A4—* k?,h 7
Date Signed: 2 Z3 Date Signed: G 1 Iso-Z3
Attest:
By:
Meagan Spink ity Cle.
For City,Approved as to Form:
By:
Stephanie L. Sandre, City Attorney
ll]
Exhibit "A"
play,abUCtS
Custom Order Program
Playaway Products and Round Rock Public Library
Welcome to the Playaway Products Custom Order Program. This program is designed to give libraries
the most flexibility to serve their patrons.
By signing this agreement, Round Rock Public Library agrees to the following:
• Round Rock Public Library agrees to spend a minimum of $35,000 annually on Playaway Pre-
Loaded Products and Accessories at the following discount tiers:
Actual Playaway Playaway Playaway Playaway Wonderbook
Annual Audiobooks Product Recorded Launchpad Discount
Spend Discount Accessories Books Discount
Discount
$35,000- 28% 28% 5% 10% 7%
50,000
excluding Pottermore and Recorded Books content
• The monthly spend will accrue at the time order is placed, not at the point of shipmentfinvoice.
• An updated spend report will be sent to Round Rock Public Library monthly and as requested.
• Discounts will be assessed at the end of the month. When the dollars spent reach the next level,
the discount will increase and remain in effect until the renewal of this agreement.
• Discounts affiliated with the Playaway Products Custom Order Programs cannot be combined with
any other offers or discounts except where explicitly stated.
• Play It Forward: Round Rock Public Library may participate in the Play it Forward program.
Additional program details available at shop.playaway.com
• All processing services agreements will apply to titles shipped under this agreement.
• Additional program benefits include:
Free 2-year manufacturer's warranty on all purchased Launchpads following execution of
COP agreement.
Free 2-year manufacturer's warranty on all purchased Wonderbook following execution of
COP agreement
• The program can be cancelled at any time. Requests must be made in writing and sent by email to
Kristi Lawler at klawler@playaway.com
playaway.com 31999 Aurora Rd Solon,OH 44139 877.893.0808
Exhibit "A"
playgyy�y2
UG
• Upon cancellation of the program, discounts offered to Round Rock Public Library System will
revert to:
Playaway Playaway Playaway Playaway Playaway
Discount Product Recorded Wonderbook Launchpad
Accessories Books Discount Discount
Discount
25% 25% 0% 0% 0%
• Program shall be pro-rated initially with a start date of 0510112023. Pro-rated program end date shall
be 09/30/2023 (minimum spend $14,583 pro-rated for this term). This agreement will renew at
stated discount rates and spend levels for 5 successive twelve(12) month terms starting
10/01/2023 and ending 0913012028, unless written notice is given thirty (30) days prior to the end of
the preceding term to Kristi Lawler, Account Manager at klawler@playaway.com.
• if minimum spend level or terms of this agreement are not met by Round Rock Public Library,
Playaway Products reserves the right to cancel the renewal of this agreement. Playaway Products
will provide written notice to Rhonda Kuiper, rkuiper@roundrocktexas.gov of cancellation. Upon
cancellation of the program, discounts offered to Round Rock Public Library will revert to: [See
above table].
By signing below, I agree to the terms and conditions within this document and represent that I am an
authorized purchasing agent for Round Rock Public Library.
Authorized Agent Printed Name:
Authorized Agent Signature
Date :
playaway.f?am 31999 Aurora Rd Solon,OH 44139 877.893.0808