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CM-2024-333 - 12/20/20244899-1794-4323/ss2 AGREEMENT BETWEEN THE CITY OF ROUND ROCK AND NICHE ACADEMY FOR THE PURCHASE OF TUTORIAL SUBSCRIPTION SERVICES THE STATE OF TEXAS § § CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS: § COUNTY OF WILLIAMSON § COUNTY OF TRAVIS § This Agreement for the purchase of tutorial subscription services for the Library is made and entered into on this the _____ day of__________, 2024, by and between the CITY OF ROUND ROCK, TEXAS, a home-rule municipality whose offices are located at 221 East Main Street, Round Rock, Texas 78664, referred to herein as the “City,” and NICHE ACADEMY, whose offices are located at 139 Hunters Grove Lane, Suite 308, Lehi, Utah 84043 referred to herein as “Vendor.” RECITALS: WHEREAS, City desires to purchase tutorial subscription services for the Library (“Goods and/or Services”); and WHEREAS, the City has determined that the Vendor is the sole source provider for these Goods and/or Services; and WHEREAS, expenditures that are for the procurement of goods and/or services that are available from a sole source are exempt from competitive requirements pursuant to Section 252,022 of the Texas Local Government Code; and WHEREAS, the Vendor has provided its Proposal to the City to provide the requested Goods and/or Services; and WHEREAS, City has determined the Vendor’s Proposal is in the best interest of the City; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties mutually agree as follows: December 28th CM-2024-333 2 1.0 DEFINITIONS A. Agreement means this binding legal contract between City and Vendor whereby City is authorized to buy specified services and Vendor is obligated to sell same. The Agreement includes the following: (a) Vendor’s Proposal; and (b) any exhibits and/or addenda thereto. Any inconsistencies or conflicts in the contract documents shall be resolved by giving preference in the following order: (1) This Agreement; (2) Vendor’s Proposal; (3) Any addenda, exhibits, and attachments. B. City means the City of Round Rock, Williamson and Travis Counties, Texas. C. Effective Date means the date set out in the introductory paragraph above. D. Goods and Services mean the specified services, supplies, materials, commodities, or equipment, as described in the Proposal. E. Vendor means Niche Academy, or any successors or assigns. 2.0 EFFECTIVE DATE AND TERM A. This Agreement shall remain in full force and effect until it expires as indicated herein or is terminated in accordance with Section 16.0. B. The term of this Agreement shall be for sixty (60) months from the Effective Date. 3.0 CONTRACT DOCUMENTS AND EXHIBITS City selected Vendor to supply the Goods and Services as outlined in the Proposal; any Addenda as contained in Exhibit “A,” incorporated herein by reference for all purposes. The intent of these documents is to formulate an Agreement listing the responsibilities of both parties as outlined in the Proposal and any Addenda. The Goods and Services which are the subject matter of this Agreement are described in Exhibit “A” and, together with this Agreement, comprise the total Agreement and Exhibit A is a part of this Agreement as if repeated herein in full. 4.0 SCOPE OF WORK Vendor shall satisfactorily provide all Goods and Services described in Exhibit “A,” attached hereto, within the contract term specified in Section 2.0. Vendor’s undertakings shall be 3 limited to Goods and Services for City and/or advising City concerning those matters on which Vendor has been specifically engaged. Vendor shall provide its Goods and Services in accordance with this Agreement and Exhibit A and with due care, and in accordance with prevailing industry standards for comparable Goods and Services. 5.0 COSTS A. In consideration for the Goods and Services to be provided by Vendor, City agrees to pay Vendor the amounts set forth in Exhibit “A.” B. The City is authorized to pay the Vendor an amount not-to-exceed $16,800.00, for the term of this Agreement. 6.0 INVOICES All invoices shall include, at a minimum, the following information: 1. Name and address of Vendor; 2. Purchase Order Number; 3. Description and quantity of items received; and 4. Delivery dates. 7.0 INTERLOCAL COOPERATIVE CONTRACTING / PURCHASING Authority for local governments to contract with one another to perform certain governmental functions and services, including but not limited to purchasing functions, is granted under Government Code, Title 7, Chapter 791, Interlocal Cooperation Contracts, Subchapter B and Subchapter C, and Local Government Code, Title 8, Chapter 271, Subchapter F, Section 271.101 and Section 271.102. Other governmental entities within the State of Texas may be extended the opportunity to purchase off of the City’s bid, with the consent and agreement of the Vendor and the City. Such agreement shall be conclusively inferred for the Vendor from lack of exception to this clause in the service provider’s response. However, all parties hereby expressly agree that the City is not an agent of, partner to, or representative of those outside agencies or entities and that the City is not obligated or liable for any action or debts that may arise out of such independently negotiated “piggyback” procurements. 8.0 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 if the governing body of City does not appropriate funds sufficient to purchase the Goods and Services as determined by City’s 4 budget for the fiscal year in question. City may affect such termination by giving the Vendor written notice of termination. 9.0 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by City to Vendor will be made within thirty (30) days of the date City receives Goods and Services under this Agreement, the date the performance of the services under this Agreement are completed, or the date City receives a correct invoice for the Goods and 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). This Prompt Payment Policy does not apply to payments made by City in the event: 1. 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 2. 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 3. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or 4. The invoice is not mailed to City in strict accordance with any instruction on the purchase order relating to the payment. 10.0 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. 11.0 TAXES City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be included in Vendor’s charges. 12.0 INSURANCE Vendor shall meet all City insurance requirements set forth on the City’s website at: http://www.roundrocktexas.gov/wp-content/uploads/2014/12/corr insurance 07.20112.pdf. 5 13.0 CITY’S REPRESENTATIVE City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Michelle Cervantes Library Director 221 East Main Street Round Rock, TX 78664 (512) 218-7010 mcervantes@roundrocktexas.gov 14.0 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. 15.0 DEFAULT If Vendor abandons or defaults under this Agreement, Vendor shall be declared in default of this Agreement if it does any of the following and fails to cure the issue within thirty (30) days of receipt of written notice: 1. Fails to fully, timely and faithfully perform any of its material obligations under this Agreement; 2. Becomes insolvent or seeks relief under the bankruptcy laws of the United States and is unable to perform its material obligations under the Agreement. 16.0 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 written notice to Vendor, the “Date of Termination.” 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. 6 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 the Date of Termination, Vendor shall submit a statement showing in detail the goods and/or services satisfactorily performed under this Agreement up 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. 17.0 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 seek contribution) against any third party who may be liable for an indemnified claim. 18.0 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 or services unless the contract contains written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel and 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 during the term of this Agreement. C. In accordance with Chapter 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. 7 D. In accordance with Chapter 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 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. 19.0 ASSIGNMENT AND DELEGATION The parties 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. 20.0 NOTICES A. 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 recipient’s physical or email 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: Vendor: Niche Academy Address: 139 Hunters Grove Lane Suite 308 Lehi, Utah 84043 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 B. Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Vendor. 21.0 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. 8 22.0 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. 23.0 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. 24.0 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. 25.0 MISCELLANEOUS PROVISIONS A. 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. B. Time is of the Essence. The parties agree that, from time to time, certain unique transactions may have special requirements relative to timing and, accordingly, the parties will identify those transactions and exercise best efforts to accomplish those transactions within the stated timeframe. Other timing requirements will be met in a commercially reasonable manner. Where damage is caused to City due to Vendor’s failure to perform in the special timing requirement circumstances, City may pursue any remedy available without waiver of any of City’s additional legal rights or remedies. C. Binding Agreement. This Agreement shall extend to and be binding upon and inure to the benefit of the parties’ respective heirs, executors, administrators, successors and assigns. 9 D. 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. IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates indicated. Niche Academy By: ______________________________________ Printed Name: _____________________________ Title: ___________________________________ Date Signed: _______________________________ City of Round Rock, Texas By: ______________________________________ Printed Name: _____________________________ Title: ___________________________________ Date Signed: _______________________________ For City, Attest: By: _______________________ Ann Franklin, City Clerk For City, Approved as to Form: By: _____________________ Stephanie L. Sandre, City Attorney Jared Oates Chief Operating Officer 12/05/2024 Stephanie L. Sandre Brooks Bennett City Manager 12/28/2024 Ann Franklin Prepared for:Rhonda Kuiper Prepared by:Dan Oldham Date:October 18, 2024 Niche Academy Subscription Overview A Niche Academy subscription includes: ●Access and monthly upgrades to the Niche Academy software ●Business hours access to Customer Success via phone or email ●Unlimited training ●Over 40 tutorials published every year ●Access to the Niche Academy Marketplace with over 5,000 tutorials All tutorials created by Niche Academy are updated as needed to remain current. You can customize these ready-made tutorials—or create your own learning content with the platform’s easy-to-use tools. Powerful reports and integrations allow you to effortlessly track learner progress, integrate Niche Academy into your existing online presence, and more. Pricing Niche Academy LMS Cost Subscription Cost (20% Discount for a five-year proposal): 1st-year (October 8, 2024 - October 7, 2025)$3,360 2nd-year (October 8, 2025 - October 7, 2026)$3,360 3rd-year (October 8, 2026 - October 7, 2027)$3,360 4th-year (October 8, 2027 - October 7, 2028)$3,360 5th-year (October 8, 2028 - October 7, 2029)$3,360 Total/USD $16,800 Acceptance I accept this proposal and agree with the intent to do business. ___________________________________________________ Representative Round Rock Public Library Exhibit "A"