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HomeMy WebLinkAboutContract 49307 �ry City Secretary Contract No. RF�FI�FD o o p� 18 X117 FORT WORTH CITY SECRETARY C < 9 CONTRACT NO. LICENSE AGREEMENT ELECTRONIC RESOURCE SUBSCRIPTION (Library) This LICENSE AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH, a Texas home rule municipal corporation, hereafter referred to as (the "City") and Cengage Learning, Inc. a Delaware corporation, hereafter referred to as ("Vendor"). All parties to this Agreement may, from time to time, individually be referred to as a "party" and collectively referred to as the "parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 9. This Agreement for Chilton Library, an online automotive database 2. Exhibit A— Description of Chilton Library 3. Exhibit B—Service Pricing Schedule 4. Exhibit C—Statement of Work 5. Exhibit D— Sample Contract Renewal Notice 6. Exhibit E—Signature Verification Form All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this License Agreement shall prevail. The term "Vendor' shall include the Vendor and its officers, agents, employees, representatives, servants, contractors or subcontractors. The term"City"shall include its officers, employees, agents, and representatives. RECITALS: A. WHEREAS Vendor owns and operates Chilton Library, a database service that enables Authorized Users to download and/or view automotive repair information by way of the Vendor website B. WHEREAS Vendor wishes to sell the right to use the Service to the City subject to the terms and conditions described in this Agreement C. WHEREAS City desires to purchase the right to use the Service from the Vendor subject to the terms and conditions described in this Agreement NOW,THEREFORE, in consideration of the provisions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Definitions. OFFICIAL RECORD CITY SECRETTAW Cengage Learning ��'��en TX Chilton Library Electronic Resources ubs�!Rev. �r8."? Page 1 of 22 05 City Secretary Contract No. In addition to terms elsewhere defined in the Agreement, the following terms shall have the meanings set forth in this Section 1 for purposes of this Agreement: 1.1. "Agreement" shall mean this Agreement by and between Vendor and the City 1.2. "Authorized Sites" shall mean all branches and outlets of the Fort Worth Library 1.3. "Authorized Users" shall mean employees, Library cardholders, walk-in patrons, or other persons affiliated with the Library 1.4. "City" shall mean the City of Fort Worth 1.5. "Vendor" shall have the meaning set forth in the preamble to this Agreement 1.6. "Content" shall mean both the textual and graphic information that is transmitted 1.7. "Effective Date" Unless otherwise agreed to in writing by the Parties, "Effective Date" of this Agreement shall mean the date signed by both Parties 1.8. "Library" shall mean the Fort Worth Library system 1.9. "License" shall mean a revocable permission given to an individual or entity which allows that individual or entity the right to use or access the property of the rightful owner or legal distributor of the property 1.10. "Licensed Content"shall mean digital files,titles,websites, and supporting material copyrighted by the Vendor or its licensor(s) that is made available to Library patrons under the terms of this Agreement 1.11. "Nonresident Cardholders" shall mean people who live outside the Fort Worth City limits who pay an annual fee for access to Library services 1.12. "Patron"shall mean Fort Worth Library Resident and Nonresident cardholders and visitors using services at a Fort Worth Library facility 1.13. "Personal Use" shall mean use which is of a personal nature and used only by the person who is authorized to use such media, and prohibits the sharing of said media with the public or placing such media in the public domain. This Agreement adopts the definitions of "personal use" as established by the Courts and U. S. Copyright laws 1.14. "Purchase Agreement" shall mean the right to access Vendor's Chilton Library Service for a specified price ("Purchase Agreement Price") and expiring after a specified length of time ("Subscription Agreement Term") 1A5. "Purchase Agreement Price" shall mean the price established for access to the Service 1.16. "Remote access" shall mean access by Authorized Users to the Service content from locations other than the Fort Worth Library's physical facilities Cengage Leaming Chilton Library Electronic Resources Subscription Agreement Page 2 of 22 Rev.05/2017 City Secretary Contract No. 1.17. "Service" shall mean Chilton Library and is related to City's ongoing access to and use of such service via the Internet 1.18. "Subscription Agreement Term" refers to the right to access the Vendor Service for a limited period of time. Except as otherwise specifically agreed to in writing by the Parties, the Subscription Agreement Term of this Agreement commences on the Effective Date and continues in effect for one (1) year 1.19. "Third party" shall mean any person, business, or organization other than Vendor and City 1.20. "Unlimited simultaneous access" shall mean immediate, concurrent access for all Authorized Users 2. Responsibilities. 2.1. Vendor Responsibilities. The Parties agree that Vendor shall have the following responsibilities: a) Providing Chilton Library as described in Exhibit A b) Providing unlimited simultaneous access to Chilton Library for all Library facilities in the Fort Worth System c) Providing unlimited simultaneous remote access to Chilton Library for Authorized Users d) Establishing, hosting, and administering the Library's Website Portal to the Chilton Library Service e) Additional responsibilities as described in Exhibit C Statement of Work 2.2. City Responsibilities. The Parties agree that the City shall have the following responsibilities: a) Providing Vendor with the annual Purchase Agreement Price as described herein in Exhibit B b) Informing Vendor of any suggested modification, variation, or improvements to the Service and operating procedures c) Maintaining network infrastructure that supports use of the Service d) Restricting remote access to the Service to Authorized Users Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 3 of 22 Rev.05/2017 City Secretary Contract No. 3. License. 3.1. Vendor hereby grants to the City a nontransferable and non-exclusive right to access and use the Vendor's Licensed Content and services, during the term of this Agreement, according to the terms and conditions of this Agreement. 3.2. The Content and Services made available to Authorized Users are the subject of copyright protection and the original copyright owner (Vendor and its licensors) retains the ownership of the Content and Services and all portions thereof. Vendor does not transfer any ownership. The Library may use the Service and Content for training, reference, promotion, and other internal business purposes. The City assumes no responsibility for Authorized Users' use of the Service and Content. 3.3. The Library is authorized to provide electronic links to the Service and Licensed Content from its website. The Library will establish and maintain login or other authorization protocols that allow only Authorized Users to access the Vendor's Licensed Content. 3.4. The City will be solely responsible for determining Authorized Users who will have access to the Service under this agreement, within the conditions outlined in the Purchase Agreement Price. 3.5. The City is authorized to provide remote access and on-site access through its Authorized Sites to the Content and Service to any Authorized Users on an unlimited simultaneous basis, within the conditions outlined in the Purchase Agreement Price. 3.6. Authorized Sites may be added to or deleted from this Agreement as mutually agreed upon by Vendor and City. 4. Term. This Agreement shall be effective on the Effective Date and, unless terminated sooner as provided herein, shall expire one (1) year thereafter. Following the Initial Term, this Agreement may be renewed annually at the City's discretion (Renewal Term). The City shall provide Vendor with a Contract Renewal Notice indicating its intent to renew at least thirty (30) days prior to the end of each term. Both the City and Vendor must sign this Notice, a copy of which is attached as Exhibit D for informational purposes only. The City shall provide Vendor with written notice of its intention not to renew at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. 5. Compensation and Invoicing. The City shall pay Vendor an annual amount in accordance with the provisions of this Agreement and the Service Pricing Schedule attached as Exhibit B. Annual price for the Service shall not increase by more than two percent(2%)for any Renewal Term unless both Parties agree in writing. Vendor must provide City at least ninety (90) days' written notice if the Renewal Term price will increase by more than 2%. Vendor shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Vendor not specified by this License unless the City first approves such expenses in writing. Vendor shall not Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 4 of 22 Rev.05/2017 City Secretary Contract No. invoice City for Renewal Terms until both Parties have signed the City's Contract Renewal Notice. 6. Termination. 6.1. Convenience. Either the City or Vendor may terminate this Agreement at any time and for any reason by providing the other party with thirty (30) days written notice of termination. 6.2. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, the City will notify Vendor of such occurrence, and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 6.3. Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Vendor for services actually rendered up to the effective date of termination and Vendor shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Vendor shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Vendor has received access to City information or data as a requirement to perform services hereunder, Vendor shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 7. Disclosure of Conflicts and Confidential Information. 7.1. Disclosure of Conflicts. Vendor hereby warrants to the City that Vendor has made full disclosure in writing of any existing or potential conflicts of interest related to Vendor's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Vendor hereby agrees immediately to make full disclosure to the City in writing 7.2. Confidential Information. The City acknowledges that Vendor may use products, materials, or methodologies proprietary to Vendor. The City agrees that Vendor's provision of services under this Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products, materials, or methodologies unless the parties have executed a separate written agreement with respect thereto. Vendor, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City ("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 7.3. Confidentiality of Library Records. Vendor understands and acknowledges that the State of Texas provides an exception to Texas Government Code Section 552.021 Availability of Public Information, for library records that identify or serve to identify a person who requested, obtained, or used a library material or service. Such records may be disclosed only if (1) the library determines that disclosure is reasonably necessary for the operation of the library and the record is not confidential under other state or federal law(2)under Section 552.003 of the Texas Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 5 of 22 Rev.05/2017 City Secretary Contract No. Government Code, or(3) to a law enforcement agency or prosecutor under a court order of subpoena obtained after a showing to a district court that(A)disclosure of the record is necessary to protect the public safety or(B) the record is evidence of an offense or constitutes evidence that a particular person committed an offense. Vendor, for itself and its officers, agents and employees, agrees that it shall treat all information about Fort Worth Library Patrons provided to it by Library Patrons or the City as confidential. Vendor agrees not to share or disclose Patron usage history or Patrons'Personally Identifiable Information (PII)to any third party without the prior written approval of the City. If Patron email addresses are collected for the purposes of establishing an account, the addresses will not be used by the Vendor for any other purpose without providing patrons an opt-out. The Vendor agrees not to email Patrons or disclose their email addresses to any third party. 7.4. Unauthorized Access. Vendor shall store and maintain Patron usage history, Patron's PII, and City Information in a secure manner using industry-standard technology such as firewalls, SSL encrypted connections where applicable, and data encryption. Vendor shall not allow unauthorized users to access, use, modify, delete or otherwise corrupt City Information in any way. Vendor shall notify the City immediately if it is required by law enforcement to release PII, or if the security or integrity of any Patron or City information has been compromised or is believed to have been compromised. In such event, Vendor shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 7.5. City and Member Usage—Limiting Access Measures. The City will be solely responsible for authenticating which Patrons will have access to Chilton Library under this Agreement. The City will implement and maintain reasonable measures to ensure that only Authorized Users are able to access Chilton Library in-house or remotely. 8. Right to Audit. Vendor agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Vendor involving transactions relating to this Agreement at no additional cost to the City. Vendor agrees that the City shall have access during normal working hours to all necessary Vendor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Vendor not fewer than 10 days' written notice of any intended audits. Vendor further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor not fewer than 10 days' written notice of any intended audits. Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 6 of 22 Rev.05/2017 City Secretary Contract No. 9. Independent Contractor. It is expressly understood and agreed that Vendor shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Vendor shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Vendor acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Vendor, its officers, agents, employees, servants, contractors and subcontractors. Vendor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Vendor. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Vendor or any officers, agents, servants, employees or subcontractors of Vendor. Neither Vendor, nor any officers, agents, servants, employees or subcontractors of Vendor shall be entitled to any employment benefits from the City. Vendor shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 10. LIABILITY AND INDEMNIFICATION. A. LIABILITY—VENDOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF VENDOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. B. INDEMNIFICATION—VENDOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS,AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO VENDOR'S BUSINESS, AND ANY RESULTING LOST PROFITS) PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, AND DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF VENDOR, ITS OFFICERS, AGENTS, SUBCONTRACTORS, SERVANTS OR EMPLOYEES. C. INTELLECTUAL PROPERTY INFRINGEMENT—(i) Vendor warrants that all Deliverables, or any part thereof, furnished hereunder, including but not limited to: programs, documentation, software, analyses, applications, methods, ways, and processes (in this section each individually referred to as a "Deliverable" and collectively as the "Deliverables,") do not infringe upon or violate any patent, copyrights, trademarks, service marks, trade secrets, or any intellectual property rights or other third party proprietary rights, in the performance of services under this Agreement. Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 7 of 22 Rev.05/2017 City Secretary Contract No. (ii) Vendor shall be liable and responsible for any and all claims made against City of infringement or any patent, copyright, trademark, service mark, trade secret, or other intellectual property rights by the use of or supplying any Deliverable(s) in the course of performance or completion of, or in any way connected with providing the services, or City's continued use of the Deliverable(s) hereunder. (iii)Vendor agrees to indemnify,defend, settle,or pay, at its own cost and expense, including the payment of attorney's fees, any claim or action against the City for infringement of any patent, copyright, trade mark, service mark, trade secret, or other intellectual property right arising from Vendor's use of the Deliverable(s), or any part thereof, in accordance with this Agreement, it being understood that this agreement to indemnify, defend, settle or pay shall not apply if City modifies or misuses the Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions against City pursuant to this section the Vendor shall have the right to conduct the defense of any such claims or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees to cooperate with Vendor in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expense for any claim or action brought against the City of infringement arising under this Agreement,the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, Vendor shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Vendor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of costs or expenses shall not eliminate Vendor's duty to indemnify the City under this Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the Deliverable(s) to make them/it non-infringing, provide that such modification does not materially adversely affect City's authorized use of the Deliverable(s); or(c) replace the Deliverable(s) with equally suitable, compatible, and functionally equivalent non-infringing Deliverable(s)at no additional charge to City; or (d) if none of the foregoing alternative is reasonable available to Vendor,terminate this Agreement, and refund all unused amounts paid to Vendor by the City, subsequent to which termination City may seek any and all remedies available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH BELOW: 11. Insurance. 11.1. The Vendor shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: 1. Commercial General Liability a. Combined limit of not less than $2,000,000 per occurrence; $4 million aggregate or Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 8 of 22 Rev.05/2017 City Secretary Contract No. b. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of$4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. c. Defense costs shall be outside the limits of liability. 2. Automobile Liability Insurance covering any vehicle used in providing services under this Agreement, including owned, non-owned, or hired vehicles, with a combined limit of not less than $1,000,000 per occurrence. 3. Professional Liability (Errors & Omissions) in the amount of $1,000,000 per claim and $1,000,000 aggregate limit. 4. Statutory Workers' Compensation requirements per the amount required by statute and Employers' Liability Insurance shall be maintained with a minimum limit of $1,000,000 policy limit each accident/occurrence. 5. Technology Liability (Errors & Omissions) a. Combined limit of not less than $2,000,000 per occurrence; $4million aggregate or b. Combined limit of not less than$1,000,000 per occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. The umbrella policy shall cover amounts for any claims not covered by the primary Technology Liability policy. Defense costs shall be outside the limits of liability. 6. Coverage shall include, but not be limited to, the following: (i) Failure to prevent unauthorized access (ii) Unauthorized disclosure of information (iii) Implantation of malicious code or computer virus Technology coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, a separate policy specific to Technology E&O, or an umbrella policy that picks up coverage after primary coverage is exhausted. Either is acceptable if coverage meets all other requirements. Technology coverage shall be written to indicate that legal costs and fees are considered outside of the policy limits and shall not erode limits of liability. Any deductible will be the sole responsibility of the Vendor and may not exceed $500,000 without the written approval of the City. Coverage shall be claims-made, with a retroactive or prior acts date that is on or before the effective date of this Agreement. Coverage shall be maintained for the duration of the contractual agreement. An annual certificate of insurance, or a full copy of the policy if requested, shall be submitted to the City to evidence coverage. 7. Any other insurance as reasonably requested by City. 11.2 General insurance Requirements: Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 9 of 22 Rev.05/2017 City Secretary Contract No. 1. All applicable policies, except Professional Liability, shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. 2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. 3. Except for casualty insurance, Vendor shall endeavor to provide a minimum of thirty(30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 200 Texas St., Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A-VI I in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. 5. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 6. Certificates of Insurance evidencing that the Vendor has obtained all required insurance shall be delivered to and approved by the City's Risk Management Division prior to execution of this Agreement. 12. Assignment and Subcontracting. Vendor shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement. The Vendor and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Vendor referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Vendor under this Agreement as such duties and obligations may apply. The Vendor shall provide the City with a fully executed copy of any such subcontract. However, Vendor may assign or transfer this Agreement to an affiliated company or to a third party that acquires substantially all of its assets upon thirty (30) days written notice to the City. If for some reason the City does not want to, or cannot transact with the new company, the City is entitled to a pro-rated refund of the price based upon the time used. 13. Successors &Assigns. This Agreement shall be binding on and inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns of the City, and the Vendor's successors and assigns. 14. Copyright. Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 10 of 22 Rev.05/2017 City Secretary Contract No. City acknowledges that the computer software utilized by the Vendor's service is protected by copyright law and international treaties. Unauthorized reproduction or distribution of the software is not allowed. The City will not reverse engineer, decompile, disassemble, modify, translate, attempt to discover the source code, or create derivative works from the software. 15. Compliance with Laws, Ordinances, Rules and Regulations. Vendor agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Vendor of any violation of such laws, ordinances, rules or regulations, Vendor shall immediately desist from and correct the violation. 16. Non-Discrimination Covenant. Vendor, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Vendor's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Vendor, its personal representatives, assigns, subcontractors or successors in interest, Vendor agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 17. Notices. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: TO THE CITY: City of Fort Worth With copy to: Attn: Deborah C. Duke City of Fort Worth Fort Worth Library City Attorney 500 W. 3rd Street 200 Texas Street Fort Worth, TX 76102 Fort Worth, TX 76102 Facsimile: 817-392-7734 TO VENDOR: Cengage Learning Attn: Michael Dalida 27500 Drake Road Farmington, Michigan 48331-3535 Facsimile No: (248) 699-8032 18. Solicitation of Employees. Neither the City nor Vendor shall, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the person's employer.This provision shall Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 11 of22 Rev.05/2017 City Secretary Contract No. not apply to an employee who responds to a general solicitation or advertisement of employment by either party. 19. Governmental Powers. It is understood and agreed that by the execution of this Agreement, the City does not waive or surrender any of its governmental powers. 20. No Waiver. The failure of the City or Vendor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Vendor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 21. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action,whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 22. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 23. Force Majeure. The City and Vendor shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority,transportation problems and/or any other similar causes. 24. Headings Not Controlling. Headings and titles used in this Agreement are for reference purposes online and shall not be deemed part of this Agreement. 25. Review of Counsel. The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 26. Amendments, Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 12 of 22 Rev.05/2017 City Secretary Contract No. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, and duly executed by an authorized representative of each party. 27. Entirety of Agreement. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Vendor, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 28. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each party's original signature is not delivered. 29. Warranty of Services. Vendor warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty(30) days from the date that the services are completed. In such event, at Vendor's option, Vendor shall either(a) use commercially reasonable efforts to re-perform the services in a manner that conforms to the warranty, or (b) refund the unused fees paid by the City to Vendor for the nonconforming services. 30. Notice of Terms of "Click-Through" License Terms. In the event that Vendor requires Authorized Users to agree to terms relating to the use of the Licensed Content before permitting Authorized Users to gain access to the Licensed Content(commonly referred to as"click-through" licenses), the Vendor shall provide the Library with notice of and an opportunity to comment on such terms fourteen (14) days prior to their implementation. If the Vendor and Library cannot mutually agree upon the "click-through" license terms during this fourteen (14) day period, this shall constitute a material breach for which the Library may terminate this Agreement upon notice to the Vendor prior to the"click- through" implementation date. In no event shall the terms of such "click-through" licenses materially differ from the provisions of this Agreement. In the event of any conflict between the terms of such "click-through" licenses and this Agreement, the terms of this Agreement shall prevail. 31. Network Access. The Vendor does not require access to the City of Fort Worth Network to provide this service. The Library links to the web portal provided by and maintained by the Vendor. 32. Immigration Nationality Act. Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 13 of 22 Rev.05/2017 City Secretary Contract No. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination.Vendor shall verify the identity and employment eligibility of all employees who perform work under this Agreement.Vendor shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Vendor shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Vendor shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Vendor. 33. Customer Support. Vendor shall provide the Library with email and/or telephone technical and customer support(including feedback, problem-solving, and/or general questions) during standard business hours (8:OOAM-5:OOPM CST) with response by the Vendor within twenty-four (24) hours. 34. Downtime and Maintenance. Vendor shall use reasonable efforts to provide the Licensed Content to the Library and Authorized Users on a daily, twenty-four (24) hour, seven (7) days a week basis with an average of 98% up-time per month. The 2% down-time includes periodic unavailability due to maintenance of the server(s), the installation or testing of software, and the loading of additional Licensed Content as it becomes available. Scheduled down-time will be performed at a time to minimize inconvenience to Library and its Authorized Users. Vendor will make reasonable efforts to notify the Library five (5) business days in advance of scheduled interruption or suspension of service due to maintenance. Except where the force majeure provision applies, unscheduled or scheduled interruption or suspension of service caused by the Vendor lasting more than forty-eight (48) hours shall constitute a material breach of the agreement by the Vendor. A refund or a credit against future fees at the option of the Library, or a prorated credit or refund where interruption or suspension of service is partial, and where partial further adjusted in proportion to the loss of service, shall be due the Library where the aggregate time of interruption or suspension of service or partial service exceeds twenty-four(24) hours in any subscription Term. 35. Informal Dispute Resolution. Except in the event of termination pursuant to Section 4.2, if either City or Vendor has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim,dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach or other matter in question that may arise out of, or in Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 14 of 22 Rev.05/2017 City Secretary Contract No. connection with this Agreement. If the parties fail to resolve the dispute within sixty(60)days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non-binding mediation in Tarrant County, Texas, upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect. The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may, before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 36. Public Information Act. Vendor understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. Vendor shall clearly indicate to the City what information it deems proprietary. If the City is required to disclose any documents that may reveal any Propriety Information to third parties under the Texas Government Code, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, the City will notify Vendor prior to disclosure of such documents and give Vendor the opportunity to submit reasons for objections to disclosure. The City will use its best efforts to secure and protect Vendor's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by the Vendor will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. 37. Section Partial Invalidity. If any provision of this Agreement shall be determined by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement, which shall be construed as if such invalid or unenforceable provision had never been a part of this Agreement but in a manner so as to carry out as nearly as possible the parties' original intent. 38. SiNnature Authority. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement, and any amendment(s) hereto, may be executed by any authorized representative of the Vendor whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit E and incorporated herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. Executed on this the day of .12017. Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 15 of 22 Rev.05/2017 City Secretary Contract No. CITY OF FORT WORT CENGAGE L NI , I By: �E' By: Fernando Costa Name: Paul afizz� Assistant City Manager Title: Ganaral MeGale Date:_7/18 f l7 Date: C� t AI'PROw'ED AS TO FORM AND LEGALITY: ATTEST: or- ' c By: By: aige ba e Mary . Kr ?0 Assista City Attorney City S era y Contract Compliance Manager: �AS By signing I acknowledge that am the person responsible for the monitoring and administration o contr , including ensuring performance erformance and reporting requirements. Name " ( Date OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 16 of22 Rev.05/2017 City Secretary Contract No. EXHIBIT A DESCRIPTION OF CHILTON LIBRARY During the Chilton Library Subscription Agreement Initial and Renewal Terms, Cengage Learning will establish, host, and administer the Library's Chilton Library website. Library and Patrons will access Vendor's collection through the website portal the Vendor maintains for the Library. The Library and its Patrons will access the Vendor's automotive collection either inside the library (if allowed and enabled by the Library) using the Library's own Internet connection or remotely from within the United States. Featu res: • Online, accurate, complete, detailed repair and service information for thousands of makes and models of cars, trucks, vans and SUVs • Monthly content updates • Easy-to-use City-branded website interface with no software to install • Simultaneous access to automotive information for all Patrons Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 17 of22 Rev.05/2017 City Secretary Contract No. EXHIBIT B SERVICE PRICING SCHEDULE Service Name Term Pricing Cardholder Limit Year 1: Chilton Library 6/30/2017-6/29/2018 $16,862.74 Unlimited Simultaneous Year 2: Chilton Library 6/30/2018-6/29/2019 $16,862.74 Unlimited Simultaneous Year 3: Chilton Library 6/30/2019-6/29/2020 $16,862.74 Unlimited Simultaneous Year 4: Chilton Library 6/30/2020-6/29/2021 $16,862.74 Unlimited Simultaneous Year 5: Chilton Library 6/30/2021 —6/29/2022 $16,862.74 Unlimited Simultaneous Subsequent years: Annual Renewal Term price may increase by no more than 2% unless both Parties agree in writing. Vendor must provide City at least 90 days' written notice if the Renewal Term price will increase by more than 2%. Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 18 of 22 Rev.05/2017 City Secretary Contract No. EXHIBIT C STATEMENT OF WORK CENGAGE LEARNING —CHILTON LIBRARYSERVICE Setup Within seven (7) days of Initial Term start date,Vendor shall set up hosted service to the Licensed Content for in-house and remote Authorized Users as described in Responsibilities and Exhibit A. The Vendor will offer installation support, including assisting with the implementation of any Vendor software. Authentication Vendor will provide in-house authentication through Library supplied Internet Protocol (IP) addresses. Remote Authorized Users will be authenticated by the Library through Polaris ILS. Vendor will either provide the Library with an institutional login page and credentials to be secured within Polaris ILS or work with the Library to establish SIP2 authentication. The Library's use of proxy servers is permitted as long as any proxy server IP address limits remote access to Authorized Users. Testing Vendor shall assist the Library with testing various Authorized User card types and remote and in-house access. If no formal rejection is issued to the Vendor within thirty(30) days of Term start date,the Licensed Content is deemed accepted by the Library. Branding The Vendor shall display the City's logo with an embedded hyperlink to the Fort Worth Library website (http://fortworthtexas.goy/library/) on the homepage of the Licensed Content. The Vendor may use the City's logo and website address exclusively as necessary to provide custom branding to the Vendor's Licensed Content, only during the Term of this Agreement. Usage Data Vendor shall provide usage statistics on the number of sessions, searches, users, and/or downloads on a monthly basis. Statistics shall be provided by the Vendor either via a secure online portal with login credentials for staff data extraction or via email to Digital Library(a)-fortworthtexas.gov, within the first five (5)days of each calendar month. Staff Training Vendor shall provide live and/or recorded online training for Library staff related to the use of the Licensed Content and any Vendor software. Vendor shall provide additional training to the Library staff if made necessary by any updates or modifications to the Licensed Content or any Vendor software. End User Guides The Vendor shall provide online Help or other user guides that are adaptable by the Library to include frequently asked questions (FAQs), troubleshooting, and basic and advanced product usage. Marketing The Vendor shall provide the Library with customizable marketing materials for the Licensed Content including but not limited to fact sheets, brochures, information sheets, posters, flyers, newsletters, and promotional materials. Timeframe/Milestones The following milestones outline the timeline for the Statement of Work. The Parties may adjust this schedule by mutual written consent at least 10 business days prior to the scheduled milestone. Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 19 of 22 Rev.05/2017 City Secretary Contract No. Task Finish Date Execute Contract Executed Contract Date Library supplies Ws or SIP2 connection information and City 3 business days from Executed logo to Vendor Contract date Vendor sets up hosted Licensed Content 7 business days from Executed Contract date Library&Vendor test in-house and remote access 9 business days from Executed Contract date Vendor provides training, End User Guides, and marketing 12 business days from Executed materials Contract date Library and Vendor complete Licensed Content setup and 15 business days from Executed access Contract date Library makes service available for patron use 30 business days from Executed Contract date Vendor supplies usage data extraction credentials 30 business days from Executed Contract date Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 20 of 22 Rev.05/2017 City Secretary Contract No. EXHIBIT D CITY OF FORT WORTH SAMPLE CONTRACT RENEWAL NOTICE DATE [Vendor] [Vendor Address] Re: NOTICE OF CONTRACT RENEWAL Contract No.CSC No.[)o=x](the"Contract') Renewal Term No.X:[Term Dates] The above referenced Contract expires on [Expiration Date]. Pursuant to the Contract, contract renewals are at the sole option of the City. This letter is to inform you that the City is exercising its right to renew CSC No. [xxxxx]for an additional one year period, which will begin immediately upon the expiration of the current term and will end on [new Expiration Date]. All other terms and conditions of CSC No. [xxxxx] remain unchanged. Please return this signed acknowledgement letter,along with a copy of your current insurance certificate,to the address set forth below, acknowledging receipt of the Notice of Contract Renewal. Please log onto BuySpeed Online at http://fortworthtexas.gov/purchasing to insure that your company information is correct and up-to-date. Sincerely yours, [City Purchasing Staff name], Contract Compliance Specialist FMS, Purchasing Division 817-392-[xxxx]-Direct 817-392-8440-Fax I hereby acknowledge receipt of the Contract Renewal Notice for CSC No.[xxxxx]for a one year period ending on new [Expiration Date]. By: Date: Printed Name and Title Signature CITY OF FORT WORTH: ATTEST: Fernando Costa,Assistant City Manager Mary J. Kayser,City Secretary Date: M&C No. N/A RECOMMENDED BY: [namel Assistant Library Director Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. [name],Assistant Library Director Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 21 of 22 Rev.05/2017 City Secretary Contract No. EXHIBIT E VERIFICATION OF SIGNATURE AUTHORITY Full Legal Name of Vendor: Cengage Learning Legal Address: 27500 Drake Road Farmington, Michigan 48331-3535 Service(s)to be provided: Chilton Library Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Vendor and to execute any agreement, amendment or change order on behalf of the Vendor. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Vendor. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Vendor. Vendor will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Vendor. 1. Name: Brian Risse Position:VP Sales Public Libraries Signature 2. Name: Jennifer Fritsch Position: VP Sales School Sales Signature 3. Name: Brian McDonough Position: SVP North America Sales Signature Name: Signature f Pre4R*ut/G%ft0l0 SVP, General Man r- Gale Other Title: Date: ell Cengage Learning Chilton Library Electronic Resources Subscription Agreement Page 22 of 22 Rev.05/2017