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HomeMy WebLinkAboutContract 54381 CSC No. 54381 McNaughton Subscription Agreement THIS AGREEMENT to be effective October 2020 between MCNAUGHTON,A DIVISION OF BRODART CO., ("Company')and FORT WORTH PUBLIC LIBRARY(B/T 829108)at 500 WEST THIRD ST, FORT WORTH TX 76102 (" Customer"). 1.Allowance usage and allotment 1.1 For Book Allowance, each item supplied will be charged as one allowance unless the book retails for more than the cutoff subscribed to, in which case the charge will be higher. 1.2 For Point Allowance, the number of items supplied will be determined by the point values corresponding to the list price of the item(s), provided in each monthly selection list. 1.3 Allowance will be allotted in accordance with the Customer's invoice schedule. That is, if the Customer elects to receive and pay invoices monthly, allowance will be allotted monthly; if the Customer elects to receive and pay invoices annually, allowance will be allotted annually. 1.4 Unused allowance will 'roll over' into the next subscription year as long as you continue your service. Unused allowance will be lost when the service is terminated. 2. Returning leased items 2.1 The Customer shall return to the Company any leased items in excess of the Allowable Inventory subscribed to. 2.2 Return shipping expenses will be paid by the Company, using Company supplied shipping labels. Return shipments made without Company supplied labels may be subject to shipping charges. 2.3 Returning leased items does not affect the number of items available to order. 3. Purchasing leased items 3.1 If the subscription includes leased materials, the Customer will have the privilege of transferring leased items to its permanent collection by purchasing them at the volume discount sale prices. 3.2 Purchasing leased items does not affect the number of items available to order. 4. Lost or Stolen leased items 4.1 The Customer shall report, at least twice annually, any items lost or stolen from the leased collection. 4.2 Up to 10% of the Customer's annual Allowance for leased items lost or stolen in circulation will be adjusted at no cost. Any item beyond that amount will be invoiced according to the current McNaughton inventory purchase price. 5. Payment 5.1 The Customer shall make payment to the Company the monthly amount agreed to, plus applicable taxes, within 30 days from date of invoice. 5.2 Payments made annually will be allowed a discount of 2%, provided payment is made within 60 days from the date of invoice. 6.Term 6.1 This Agreement to be in effect for a period of 12 months and to renew itself thereafter unless canceled. 6.2 The subscription plan may be increased at any time at the Customer's request. 6.3 The subscription plan may be decreased with the provision of 60 days notice due to potential pre-publication orders. 6.4 The Customer will be price protected during the year specified by the Agreement, provided signed Agreement is returned to the Company 30 days prior to specified effective date.Afterwards, the Customer will be subject to any necessary price increase at the expiration of the Agreement or end of the prepayment period, whichever comes first. 7.Termination 7.1 This Agreement may be canceled by the Customer at the expiration of specified contract period, with the provision of 60 days notice. 7.2 The Customer will return and/or purchase all leased materials in inventory within 90 days after the effective date of termination. 7.3 The Company reserves the right to cancel service to the Customer with the provision of 60 days written notice and to approve or disapprove any large purchases of leased materials at the time of termination. Al— 4945� Dana Burghdoff(Aug 31,20 17:37 CDT661 Customer signature Company signature Dana Burghdoff Assistant City Manager Robert Donnelly Vice President, McNaughton Printed name and title Printed name and title 08/31/2020 08/26/20 Date Date OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX CSC No. 54381 ADDENDUM TO MCNAUGHTON SUBSCRIPTION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND MCNAUGHTON, A DIVISION OF BRODACT CO. This Addendum to the McNaughton Subscription Agreement ("Addendum") is entered into by and between McNaughton, a Division of the Brodart Co. ("Company")and the City of Fort Worth ("City"), collectively the "parties", for a purchase of licenses. The Contract documents shall include the following: 1. The McNaughton Subscription Agreement; and 2. This Addendum. Notwithstanding any language to the contrary in the attached the McNaughton Subscription Agreement (the "Agreement"), the Parties hereby stipulate by evidence of execution of this Addendum below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Term. The Agreement shall become effective upon the signing of the Agreement by an Assistant City Manager of the City(the"Effective Date")and shall expire one (1)years after the Effective Date (the Expiration Date"), unless terminated earlier in accordance with the provisions of the Agreement or otherwise extended by the parties. The Agreement maybe renewed for an unlimited amount of annual renewals at City's option, each a"Renewal Term." 2. Termination. a Convenience. Either City or Company may terminate the Agreement at any time and for any reason by providing the other party with 60 days written notice of termination. b. Breach. If either party commits a material breach of the Agreement,the non- breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten (10) calendar days after receipt of notice from the non-breaching party, or other time frame as agreed to by the parties. If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under the Agreement, law, or equity, immediately terminate this Agreement by giving written notice to the breaching party. C. Fiscal Funding. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Company of such occurrence and the Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of OFFICIAL RECORD Addendum CITY SECRETARY Page 1 of 5 FT.WORTH,TX any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. d Duties and Obligations of the Parties. In the event that the Agreement is terminated prior to the Expiration Date, City shall pay Company for services actually rendered up to the effective date of termination and Company shall continue to provide City with services requested by City and in accordance with the Agreement up to the effective date of termination. 3. Compensation. City shall pay Company in accordance with this Agreement. Total payment made under this Agreement for each term by City shall not exceed three thousand dollars ($3,000). Company shall not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City shall not be liable for any additional expenses of Company not specified by this Agreement unless City first approves such expenses in writing. Company shall provide City with an annual invoice. 4. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 5. Law and Venue. The Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with the laws of the United States and state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a court of competent jurisdiction in Tarrant County,Texas. To the extent the Agreement is required to be governed by any state law other than Texas or venue in Tarrant County, City objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 6. Linked Terms and Conditions. If the Agreement contains a website link to terms and conditions, the linked terms and conditions located at that website link as of the effective date of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the extent that the linked terms and conditions conflict with any provision of either this Addendum or the Agreement, the provisions contained within this Addendum and the Agreement shall control. If any changes are made to the linked terms and conditions after the date of the Agreement, such changes are hereby deleted and void. Further, if Company cannot clearly and sufficiently demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the linked terms and conditions are hereby deleted and void. 7. Insurance. The City is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by Governmental Units," is self-insured and therefore is not required to purchase insurance. To the extent the Agreement requires City to purchase insurance, City objects to any such provision, the parties agree that any such requirement shall be null and void and is hereby deleted from the Addendum Page 2 of 5 Agreement and shall have no force or effect. City will provide a letter of self-insured status as requested by Company. 8. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign immunity. To the extent the Agreement requires City to waive its rights or immunities as a government entity; such provisions are hereby deleted and shall have no force or effect. 9. Limitation of Liability and Indemnity. To the extent the Agreement, in any way, limits the liability of Company or requires City to indemnify or hold Company or any third party harmless from damages of any kind or character, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. Each party shall be responsible for its own actions and the actions of its employees, officials, subcontractors, and agents. Company hereby warrant and represents that it has the legal right to provide the materials to the City pursuant to this Agreement and COMPANY AGREES TO INDEMNIFY. HOLD HARMLESS, AND DEFEND CITY AGAINST ANY AND ALL CLAIMS MADE BY A THIRD PARTY CONNECTED TO THIS AGREEMENT OR THE USE OF THE MATERIALS PROVIDED HEREUNDER. 10. No Debt. In compliance with Article II § 5 of the Texas Constitution, it is understood and agreed that all obligations of City hereunder are subject to the availability of funds. If such funds are not appropriated or become unavailable, City shall have the right to terminate the Agreement except for those portions of funds which have been appropriated prior to termination. 11. Confidential Information. City is a government entity under the laws of the State of Texas and all documents held or maintained by City are subject to disclosure under the Texas Public Information Act. To the extent the Agreement requires that City maintain records in violation of the Act, City hereby objects to such provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect. In the event there is a request for information marked Confidential or Proprietary, City shall promptly notify Company. It will be the responsibility of Company to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 12. Addendum Controlling. If any provisions of the attached Agreement, conflict with the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance of City, the terms in this Addendum shall control. 13. Immigration Nationality Act. Company shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Company shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Company shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Company employee who is not legally eligible to perform such services. COMPANY SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY Addendum Page 3 of 5 COMPANY, COMPANY'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES.City,upon written notice to Company, shall have the right to immediately terminate this Agreement for violations of this provision by Company. 14. No Boycott of Israel. If Company has fewer than 10 employees or the Agreement is for less than $100,000, this section does not apply. Company acknowledges that in accordance with Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Company certifies that Company's signature provides written verification to City that Company: (1) does not boycott Israel; and(2) will not boycott Israel during the term of the Agreement. 15. Right to Audit. Company agrees that City shall, until the expiration of three (3) years after final payment under the Agreement,have access to and the right to examine any directly pertinent books, documents,papers and records of Company involving transactions relating to the Agreement. Company agrees that City shall have access during normal working hours to all necessary Company facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Company reasonable advance notice of intended audits. (signature page follows) Addendum Page 4 of 5 ACCEPTED AND AGREED: CITY: City of Fort Worth Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration ras of this contract,including ensuring all By: Dana Burghdoff(Aug 31,20 17:37CD performance and reporting requirements. Name: Dana Burghdoff Title: Assistant City Manager Date: 08/31/2020 By: Name: TimothyShidal Approval Recommended: Title: Administrative Services Manager Approved as to Form and Legality: By. �i°K`��o�_ Name: Marilyn Marvin Title: Assistant Library Director By: Name: Jessika Williams C�FORT��d Attest: p,,o o�d� Title: Assistant City Attorney '' lo ° g Ordinance No.24161-04-2020 Pvo =d 0 a�Q��eza5aap act Authorization: By: U U M&C: Name: MaryKayser Title: City Secretary COMPANY: McNaughton, a Division of Brodart Co. By: rao --e--t ao� t�t c.y Name: Robert Donnelly Title: Vice President,McNaughton Date: 08/26/2020 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Addendum Page 5 of 5