Loading...
HomeMy WebLinkAboutContract 44504-,.•jp.,- � Y•. � j o :�' BOOKS AND MATERIAL DISPOSITION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FRIENDS OF THE FORT WORTH PUBLIC LIBRARY, INC. This AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Charles Daniels, its duly authorized Assistant City Manager, and FRIENDS OF THE FORT WORTH PUBLIC LIBRARY, INC, ("FRIENDS"), a Texas non-profit corporation, acting by and through Bunny Gardner its duly authorized President, each individually referred to as a"party" and collectively referred to as the "parties." Recitals WHEREAS, the City Library has books, publications and other materials that are outdated, excess or for other reasons are no longer useful to the Library and would be discarded; and, WHEREAS, FRIENDS, a nonprofit 501(3)(c) volunteer support organization of the Library, proposes to arrange for appropriate storage and disposal of such books, publications and other materials by sale and/or other means; and WHEREAS, FRIENDS has the experience, expertise and demonstrated ability to conduct book sales or other dispositions of books and material and thereby provide assistance and support to the Library. THEREFORE, the parties agree as follows: 1. SCOPE OF SERVICES. Friends agrees to receive and dispose (recycle) of the City Library's books and materials, which the City Library would otherwise discard, in accordance with the terms of this Agreement. The scope of services as well as the roles and responsibilities of the City and Friends is more particularly described in Exhibit "A". '� - f - � ` ,�: Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 1 of 11 .r -,p ., + �.�';- - 2. TERM, COMPENSATION and OWNERSHIP OF DISPOSED ITEMS. 2.1 Term. This Agreement shall commence upon the date that both the City and the Friends have executed this Agreement ("Effective Date") and shall continue in fuil force and effect for three years ("Initial Term"), unless terminated earlier in accordance with the provisions of this Agreement. Following the Initial Term, this Agreement shall be renewable at the option of the City for two additional terms of one year each (each a "Renewal Term"). The City shall provide Friends with written notice of its intent to renew at least one year (365) days prior to the end of each term. 2.2 No Compensation. The City will not be paying Friends for any of the services listed in Attachment "A". Friends will not perForm any additional services for the City not specified by this Agreement unless the City requests and approves performance of such additional services in writing. The City will not be liable for any expenses of Friends unless the City first approves such expenses in writing. 2.3 Ownership of Disposed Items. The books and material that the City gives to the Friends will become the property of the Friends upon their receipt from the City Library. 3. TERMINATION. 3.1. Written Notice. The City or Friends may terminate this Agreement at any time and for any reason by providing the other party with 365 days' written notice of termination. 4. RIGHT TO AUDIT. Friends agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said inree years, nave acce5s co ana tne rigiit to examine ai reasonapie iiRies a��y direciiy ��rii�ie��i books, documents, papers and records of the Friends involving transactions relating to this Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 2 of 11 Contract at no additional cost to the City. Friends agrees that the City shall have access during normal working hours to all necessary Friends 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 Friends reasonable advance notice of intended audits. 5. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Friends shall operate as an independent contractor as to all rights and privileges and work perFormed under this agreement, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Friends 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. Friends acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Friends, its officers, agents, employees, servants, contractors and subcontractors. Friends further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Friends. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Friends or any officers, agents, servants, employees or subcontractors of Friends. Neither Friends, nor any officers, agents, servants, employees or subcontractors of Friends shall be entitled to any employment benefits from the City. Friends 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. 6. LIABILITY AND INDEMNIFICATION. A. LIABILITY - FRIENDS SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 3 of 11 CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF FRIENDS, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES WHILE ENGAGING IN ACTIVITIES COVERED IN THIS AGREEMENT. B. INDEMNIFICATION - FRIENDS HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE 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 FRIENDS'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF EMPLOYEES. 7 ASSIGNMENT FRIENDS, ITS OFFICERS, AGENTS, SERVANTS OR Friends shall not assign 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 Friends under which the assignee agrees to be bound by the duties and obligations of Friends under this Agreement. The Friends and Assignee shall be jointly liable for all obligations of the Friends under this Agreement prior to the effective date of the assignment. The Friends shall provide the City with a fully executed copy of any such subcontract. Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 4 of 11 8. INSURANCE. Friends shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 8.1 Coveraqe and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $2,000,000 Aggregate (b) Automobile Liability $1,000,000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Friends, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non- owned. (c) Commercial Crime coverage $100,000 Each occurrence This policy shall cover Money, Securities and property to the City for loss or damage as a result of dishonest acts of any employee or volunteer on behalf of Friends. 8.2 General Requirements (a) The commercial general liability and automobile liability policies 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. Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 5 of 11 (b) All policies shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) 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, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (d) 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- VII 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. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (� Certificates of Insurance evidencing that the Friends has obtained all required insurance shall be delivered to the City prior to Friends proceeding with any work pursuant to this Agreement. 9. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS. Friends agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Friends of any violation of such laws, ordinances, rules or regulations, Friends shall immediately desist from and correct the violation. Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 6 of 11 10. NON-DISCRIMINATION COVENANT. Friends, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Friends' 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 Friends, its personal representatives, assigns, subcontractors or successors in interest, Friends agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 11. 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: City of Fort Worth Friends of the Fart Worth Public Library, Inc. Attn: Susan Alanis, Assistant City Manager Attn: Bunny Gardner 1000 Throckmorton Street, 3`d Floor 533 West 3�d Street Fort Worth TX 76102-6311 Fort Worth, Texas 76102-7305 12. GOVERNMENTAL POWERS/IMMUNITIES It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 13. NO WAIVER. The failure of the City or Friends 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 or Friends' respective right to insist upon appropriate performance or to assert any such right on any future occasion. Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 7 of 11 14. GOVERNING LAW / 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 pursuant to 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. 15. 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. 16. FORCE MAJEURE. The City and Friends 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, 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. 17. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 18. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised 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 Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 8 of 11 or exhibits hereto. 19. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, which is executed by an authorized representative of each party. 20. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Friends, 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. 21. SIGNATURE 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. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. 22. 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. Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 9 of 11 IN WITNESS FNHEREOF, the parties hereto have executed this Agreement in multiples this �� tiay of ' 2� , .�89�2. ��Li � � ACCEPTED AND AGREED: CITY OF FORT WORTH: By: r•�� Charles Daniels �istant City Manager 0.5 30 . /,3 � ATTEST: By: Mary J. Kay: City Secreta FRIENDS OF THE FORT WORTH PUBLIC LIBRARY, INC. By: Date: S'-' Z� —/.3 � �� � APPROVED AS TO FORM AND LEGALITY: By: CONTRACT AUTHORIZATION: M&�: L--��►��t�.. Date Approved: � �� 1 � I� Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 10 of 11 ` � - .; � r ' � .. �.naiiene �ariuers Assistant City Attorney EXHIBIT A SCOPE OF SERVICES 1. Friends' Scope of Services/Roles and Responsibilities. Friends will perform the following: a. Move the sorted and boxed items to any book sale site, and organize, set-up and conduct any sale of such items; b. Advertise, market and sell books and materials at any sale site no less than annually. Provide access to these materials for non-profit groups, regional public libraries and public school districts; c. Solicit books and materials for said sales off-site of public library property or on site if managed by a Friends' volunteer; provide quit claims for individuals; and d. Use any sale proceeds that remain after paying administrative and operating expenses related to the sale for the benefit of the City Library in a manner agreed upon by the Friends and the City Library, and transfer net proceeds to the City Library on a regular basis as part of the Friends' budget cycle. 2. The Citv's Roles and Responsibilities. The Library will deliver ta the Friends at designated location all books, publications and other materials described above. The books, publications and other materials donated to Friends will become the property of Friends. Books and Material Disposition Agreement Between the City of Fort Worth and the Friends of the Fort Worth Public Library, Inc. Page 11 of 11 , 1V�&C Review Page 1 of 2 . , • ._ O�ciai site of the City of Fort Worth, Texas �t�K�r� F1 COUNCIL ACTION: Approved on 5/21/2013 DATE: CODE: 5/21 /2013 Ce� REFERENCE NO.: "`*G-17900 TYPE: CONSENT LOG NAME: PUBLIC HEARING: :� �� i�• � � SUBJECT: Authorize Execution of a Memorandum of Understanding with the Friends of the Fort Worth Public Library, Inc., and Authorize Execution of a Books and Materials Disposition Contract with the Friends of the Fort Worth Public Library, Inc. (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council: 1. Authorize execution of a Memorandum of Understanding with the Friends of the Fort Worth Public Library, Inc.; and 2. Authorize execution of a books and materials disposition Contract with the Friends of the Fort Worth Public Library, Inc. DISCUSSION: The Friends of the Fort Worth Public Library, Inc. (Friends), a non-profit 501(c)(3) volunteer support organization, was established more than 35 years ago. Its purpose is to improve the quality of life in the community by providing advocacy, additional funding, and volunteer services to the Fort Worth Public Library. Staff recommends execution of a Memorandum of Understanding (MOU) with the Friends that specifies mutually-agreed expectations befinreen the City of Fort Worth and the Friends as they work together toward the common objective of providing high-quality library services. The document covers how the two organizations will coordinate programming and fundraising for capital projects. The MOU will become effective on the date of its execution and remain in effect for five years or until either party initiates termination. Staff also recommends execution of a Books and Materials Disposition Contract (Disposition Contract), which will allow the Friends to sell withdrawn Library materials. A public library best practice is to remove outdated, unused, and worn-out materials from the collection. On April 9, 2002 the City Council approved M&C C-19041 authorizing an Agreement with the Friends to receive and sell materials discarded from the collections of the Fort Worth Public Library, and return net proceeds from the sales to the Library as part of the of the Friends' budget cycle. This successful Agreement serves a public purpose in support of the Fort Worth Public Library and its services. Proceeds from the sales have helped fund reading programs, the Library's System Master Plan, and the eSkills Library and Job Center. Funds have also contributed to the purchase of needed equipment such as a new delivery truck. Although the Books and Materials Disposition Contract entered into in 2002 does not have an expiration date, the parties concluded that an updated contract should be established. Under the Disposition Contract, the materials withdrawn from the Library will become the proper(y of the Friends for the purpose of sale and final disposition. The Friends will be required to conduct a book sale no less than annually, with net proceeds from the sale(s) to be returned to the �ibrary. The Agreement also gives the Friends the option of selling materials in their bookstore. The initial three- year term of the Agreement will begin upon execution. The Agreement may be renewed at the option http:l/apps.cfwnet.org/council_packet/mc_review.asp?ID=18367&councildate=5/21/20(3 5/23/2013 1V�&C Review of the City for up to two additional terms of one year each without additional Council action. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action wilf have no material effect on City funds. TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for Citv Manager's Office b� Originating Department Head: Additional Information Contact: ATTACHMENTS Charles Daniels (6199) Gleniece Robinson (7706) Adam Wright (8522) littp://apps.cfwnet.org/council�acket/mc_review.asp?(D=18367�ccouncildate=5/21/2013 Page 2 of 2 5/23/2013