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HomeMy WebLinkAbout2014-281 1 RESOLUTION NO. 2014-281 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE ISSUANCE OF A PURCHASE ORDER 3 TO THE LIBRARY CORPORATION FOR ANNUAL MAINTENANCE OF ITS 4 LIBRARY SOLUTION INTEGRATED LIBRARY SYSTEM SOFTWARE AND TECHNICAL SUPPORT FOR THE CITY'S PUBLIC LIBRARY. 5 WHEREAS, the San Bernardino Public Library requires certain licensing and 6 maintenance of certain software for its circulation system; and 7 WHEREAS, on June 12, 2014, the Library Board of Trustees approved an agreement with The Library Corporation to provide those services; 8 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON 9 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 10 SECTION 1: That the Director of Finance or his/her designee is hereby authorized to 11 issue an Annual Purchase Order to The Library Corporation in an amount not to exceed 12 $34,500, pursuant to the agreement approved by the Library Board of Trustees and attached 13 hereto as Exhibit"A" and incorporated by reference as fully set forth at length. 14 SECTION 2: The Annual Purchase Order shall reference this Resolution Number and 15 16 shall read, "The Library Corporation for licensing and hardware/software maintenance, 17 Agreement not to exceed $34,500" and shall incorporate the terms and conditions of 18 Agreement. 19 /1/ 20 /// 21 /// 22 /// 23 /// 24 /// 25 /1/ 2014-281 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE ISSUANCE OF A PURCHASE ORDER TO THE 2 LIBRARY CORPORATION FOR ANNUAL MAINTENANCE OF ITS LIBRARY SOLUTION INTEGRATED LIBRARY SYSTEM SOFTWARE AND TECHNICAL 3 SUPPORT FOR THE CITY'S PUBLIC LIBRARY. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 joint regular Common Council of the City of San Bernardino at a meeting, thereof, held on 6 the 21st day of July , 2014, by the following vote to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ x 9 BARRIOS x 10 11 VALDIVIA x 12 SHORETT X 13 NICKEL x 14 JOHNSON x 15 MULVIHILL x 16 ._--- ,�4 17 Georgea Hanna, City Clerk 18 The foregoing resolution is hereby approved this ,, ,P.1.14/day of July , 2014. 19 6-)C 20 R. CAREY D,• VIS, Mayor City of San r:ernardino 21 Approved as to form: 22 GARY D. SAENZ, City Attorney 23 By: 24 25 2014-281 LICENSE AGREEMENT BETWEEN SAN BERNARDINO PUBLIC LIBRARY AND THE LIBRARY CORPORATION This License Agreement("Agreement") is entered into this eday of q.v\z- 2014 ("Effective Date"), by and between The Library Corporation ("Licensor") and the San Bernardino Public Library ("Licensee"). WITNESSETH: WHEREAS,Licensee is in need of the maintenance, software updates and technical support for its systems that provide circulation services for Licensee and its Patrons; and WHEREAS,Licensor agrees to provide the services herein described,and Licensor has the power to license the software as it is either proprietary or it is authorized to relicense by the software owner, NOW,THEREFORE, the parties hereto agree as follows: 1.0. SERVICES PROVIDED BY LICENSOR 1.1. Scope of Services. For the remuneration stipulated,LICENSOR grants to LICENSEE during the term of this Agreement,a non-exclusive right to use the software described in the Scope of Services attached hereto as Exhibit"A"and incorporated herein by this reference. Licensor shall further provide the software and hardware support described in the Scope of Services attached hereto as Exhibit "A" and incorporated by this reference as though fully set forth. If a conflict arises between the Scope of Services and this Agreement, the terms of the Agreement shall govern. 1.2. Obsolete Hardware. LICENSOR may terminate certain hardware support where the hardware manufacturer determines the hardware is obsolete and replacement parts are no longer available. In the event that any hardware is deemed obsolete, LICENSOR shall issue a refund to LICENSEE for the fair market value of the hardware at the time the hardware is determined obsolete, as determined by LICENSOR. 1.3. Professional Practices. All professional services to be provided by LICENSOR pursuant to this Agreement shall be provided in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional LICENSOR in similar fields and circumstances in accordance with sound professional practices. LICENSOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise LICENSEE Page 1 of 8 License Agreement between San Bernardino Public Library and The Library Corporation 37 2014-281 of any changes in any laws that may affect LICENSOR'S performance of this Agreement. LICENSOR further represents that no LICENSEE or City of San Bernardino employee will provide any services under this Agreement. 1.4. Warranty. LICENSOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including,but not limited to,those laws related to minimum hours and wages;occupational health and safety;fair employment and employment practices;workers'compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. LICENSOR shall indemnify and hold harmless LICENSEE and the City of San Bernardino from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys'fees and costs,presented, brought, or recovered against LICENSEE or City of San Bernardino for, or on account of any liability under any of the above-mentioned laws, arising from or related to LICENSOR'S performance under this Agreement. 1.5. Non-discrimination. In performing this Agreement,LICENSOR shall not engage in, nor permit its officers, employees or agents to engage in,discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition,marital status,sexual gender or sexual orientation,except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.6. Non-Exclusive Agreement. LICENSOR acknowledges that LICENSEE may enter into agreements with other licensors for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.7. Delegation and Assignment. This is a personal service contract,and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of LICENSEE. LICENSOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at LICENSOR'S sole cost and expense. 1.8. Conflicts of Interest. During the term of this Agreement, LICENSOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the LICENSEE and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the LICENSEE. 1.9. City of San Bernardino Business Certificate. LICENSOR shall obtain and maintain during the term of this Agreement,a valid City of San Bernardino Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, Page 2 of 8 License Agreement between San Bernardino Public Library and The Library Corporation 38 2014-281 permits, qualifications, insurance and approvals of whatever nature that are legally required of LICENSOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. LICENSOR shall be paid an amount not to exceed$34,020.64,as set forth in Exhibit "A." 2.2. Additional Services. LICENSOR shall not receive compensation for any services provided outside the scope of services specified herein unless the LICENSEE,prior to LICENSOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. LICENSOR may submit invoices to LICENSEE for approval. Said invoice shall be based on the total of all LICENSOR'S services which have been completed to LICENSEE's sole satisfaction. LICENSEE shall pay LICENSOR'S invoice within forty-five (45) days from the date LICENSEE receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as"Additional Services"and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of LICENSOR'S services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to LICENSEE for inspection and/or audit at mutually convenient times for a period of three (3)years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and terminate on July 31, 2015, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. LICENSEE or LICENSOR may terminate the services provided under Section 1.1 of this Agreement upon thirty(30)days written notice to the other party. In the event of termination, LICENSOR shall be paid the reasonable value of services rendered to the date of termination. 4.0. INSURANCE 4.1. Minimum Scope and Limits of hsurance. LICENSOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: Page 3 of 8 License Agreement between San Bernardino Public Library and The Library Corporation 39 2014-281 (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars($1,000,000.00),combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles,hired,and non-owned vehicles,with a policy limit of not less than One Million Dollars($1,000,000.00),combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The San Bernardino Public Library and the City of San Bernardino and their elected and appointed boards, officers, agents, and employees are additional insureds with respect to this contract with San Bernardino Public Library." (b) Notice: "Said policy shall not terminate,nor shall it be materially changed or cancelled,nor the coverage reduced,until thirty(30)days after written notice is given to San Bernardino Public Library." (c) Other insurance: "Any other insurance maintained by the San Bernardino Public Library or City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. LICENSOR shall provide to LICENSEE certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by LICENSEE, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way,the indemnification provision contained in this Agreement,or the extent to which LICENSOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement: This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing,and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any Page 4 of 8 License Agreement between San Bernardino Public Library and The Library Corporation 40 2014-281 inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery or certified or registered mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a)at the time of delivery if such communication is sent by personal delivery;b) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO LICENSOR: IF TO LICENSEE: The Library Corporation San Bernardino Public Library 1 Research Park 555 West Sixth Street Inwood, WV 25428 San Bernardino, CA 92410 Attn: Calvin Whittington, Controller Attn: Ed Erjavek,Acting Director 5.3. Attorneys'Fees: In the event that litigation is brought by any party in connection with this Agreement,the prevailing party shall be entitled to recover from the opposing party all costs and expenses,including reasonable attorneys'fees,incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions,or provisions hereof. The costs,salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the LICENSEE shall be considered as"attorneys'fees"for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement,the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment: LICENSOR shall not voluntarily or by operation of law assign,transfer, sublet or encumber all or any part of LICENSOR's interest in this Agreement without LICENSEE's prior written consent. Any attempted assignment,transfer,subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of LICENSEE's consent, no subletting or assignment shall release LICENSOR of LICENSOR's obligation to perform all other obligations to be performed by LICENSOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. LICENSOR shall protect,defend, indemnify and hold harmless LICENSEE and City of San Bernardino and their elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable Page 5 of 8 License Agreement between San Bernardino Public Library and The Library Corporation 41 2014-281 attorney fees,damage to property or injuries to or death of any person or persons or damages of any nature including,but not limited to,all civil claims or workers'compensation claims arising from or in any way related to LICENSOR's performance under this Agreement,except when caused solely by the LICENSEE's negligence. 5.7. Independent Contractor. LICENSOR, at all times while performing under this Agreement, is and shall be acting at all times as independent contractors and not as agents or employees of LICENSEE or City of San Bernardino. LICENSOR shall secure,at its expense,and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation,and other payroll deductions for LICENSOR and its officers,agents,and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither LICENSOR nor its officers,agents and employees shall be entitled to receive any benefits which employees of LICENSEE or City of San Bernardino are entitled to receive and shall not be entitled to workers'compensation insurance,unemployment compensation,medical insurance, life insurance,paid vacations,paid holidays,pension,profit sharing or social security on account of LICENSOR and its officers', agents' and employees' work for the LICENSEE or City of San Bernardino. This Agreement does not create the relationship of agent,servant,employee partnership or joint venture between the LICENSEE or City of San Bernardino and LICENSOR. 5.8 Conflict of Interest Disclosure: LICENSOR or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose financial interests that may be materially affected by the work performed under this Agreement,and(2)prohibits such persons from making or participating in making decisions that will have a foreseeable financial affect on such interest. LICENSOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by LICENSEE. 5.9. Responsibility for Errors. LICENSOR shall be responsible for its work and results under this Agreement. LICENSOR,when requested,shall furnish clarification and/or explanation as may be required by the LICENSEE's representative, regarding any services rendered under this Agreement at no additional cost to LICENSEE. In the event that an error or omission attributable to LICENSOR occurs,then LICENSOR shall,at no cost to LICENSEE,provide all other LICENSOR professional services necessary to rectify and correct the matter to the sole satisfaction of LICENSEE and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. LICENSOR shall not employ any current employee of LICENSEE or City of San Bernardino to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and Page 6 of 8 License Agreement between San Bernardino Public Library and The Library Corporation 42 2014-281 negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of LICENSEE and LICENSOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in,under or to this Agreement. 5.13. Headings Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only in writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event,nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance,and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts: This Agreement may be executed in one or more counterparts,each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. /// I// /// /// /// //I Page 7 of 8 License Agreement between San Bernardino Public Library and The Library Corporation 43 2014-281 LICENSE AGREEMENT BETWEEN SAN BERNARDINO PUBLIC LIBRARY AND THE LIBRARY CORPORATION IN WITNESS WHEREOF,the parties hereto have caused.this Agreement to be executed by and through their respective authorized officers, as of the date first above written. Dated: ‘/I y , 2014 LICENSOR The Library Corporation Ay fa By: Its: Dated `k , 2014 LICENSEE San Bernardino Public Library By: w Dr. Milton Clark President,Library Board of Trustees Approved as to Form: GARY D. SAENZ, City Attorney By: �; � y .1__ Page 8 of 8 License Agreement between San Bernardino Public Library and The Library Corporation 44 2014-281 EXHIBIT A SCOPE OF SERVICES TO LICENSE AGREEMENT BETWEEN SAN BERNARDINO PUBLIC LIBRARY AND THE LIBRARY CORPORATION The Library Corporation shall provide to San Bernardino Public Library during the Term of this Agreement software subscriptions/licenses to the following services of The Library Corporation: OPAC Enrichment: This is added graphics and information about a specific item in the online public access catalogue. Subscription includes: Fiction and Biography Profile Data - Over 91,000 descriptions of subject, plot, and genre of adult novels, biographies, and memoirs, with approximately 10,000 new titles added annually. Summaries and annotations - Descriptions of adult and juvenile books by the publisher or from book jackets. Includes over 1.7 million summaries and annotations, with over 100,000 new records added annually. Author Notes - Over 90,000 descriptions of authors educational, professional, and personal backgrounds. Includes notes for adult and juvenile books. Excerpts - From books first chapters, forewords, or selections from over 47,000 prominently reviewed, current titles with over 800 new excerpts added monthly. Includes excerpts from adult and juvenile books. Series -Over 35,000 series titles in juvenile and adult fiction in the intended reading or Total Annual Cost: $4,829 Library• Solution: Software License,Technical Support and Updates. The Library Corporation grants San Bernardino Public Library a Non-Exclusive license to use the software during the term of this agreement. There are 68 user licenses for Staff. The Library Corporation will also provide Technical Support 24/7 during the term of this agreement and will also provide any software upgrades to the Licensed Software during the term of this agreement. Total Annual Cost: $25,509 Hardware Support: The Library Corporation will provide first level of technical support for various hardware components including Server, Printers and Scanners. Support will include repair or replacement of defective equipment during the term of this agreement. Total Annual Cost: $2,315.68 Exhibit A to License Agreement between San Bernardino Public Library and The Library Corporation Page45 of A2 2014-281 SIP SERVER: Standard Interchange Protocol allows Library • Solution to communicate with other applications such as Envisionware's print Management Solutions. The Library Corporation will support and provide technical support during this agreement. Total Annual Cost: $799.96 DELL SERVER SUPPORT: Hardware support for data server manufactured by Dell. Total Annual Cost: $567 Total Annual License and Support Cost: $34,020.64. This may be paid in one annual payment or in 4 Quarterly payments of$8,505.16. Exhibit A to License Agreement between San Bernardino Public Library and The Library Corporation PageIg of A2