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HomeMy WebLinkAbout065083 - General - Contract - OverDrive, Inc.CSC No. 65083 FORTWORTH®R VENDOR SERVICES AGREEMENT This VENDOR SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a Texas home -rule municipal corporation, acting by and through its duly authorized Assistant City Manager, and OVERDRIVE, INC ("Vendor"), a corporation, acting by and through its duly authorized representative, each individually referred to as a "parry" and collectively referred to as the "parties." 1. Scope of Services. Vendor shall provide the City digital book technology and services including those related to management and copyright protection of content in eBook, audio book, and multimedia in digital formats ("Services") which are set forth in more detail in Exhibit "A," attached hereto and incorporated herein for all purposes. 2. Term. The term of this Agreement is for one (1) year, beginning on the date that this Agreement is executed by the City's Assistant City Manager ("Effective Date"), unless terminated earlier in accordance with this Agreement. City will have the option, in its sole discretion, to renew this Agreement under the same terms and conditions, for unlimited renewal option(s) (each a "Renewal Term"). 3. Compensation. 3.1 Total compensation under this Agreement will not exceed three million four hundred thousand dollars and zero cents ($3,400,000.00). 3.2 City will pay Vendor in accordance with the Prompt Payment Act (Chapter 2251 of the Texas Government Code) and the provisions of this Agreement, including Exhibit "A." 3.3 Vendor will 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 will not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. 4. Termination. 4.1. Written Notice. City or Vendor may terminate this Agreement at any time and for any reason by providing the other party with 30 days' written notice of termination. 4.2 Non -Appropriation of Funds. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Vendor of such occurrence and this Agreement will terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. Vendor Services Agreement OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 1 of 14 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, City will pay Vendor for services actually rendered up to the effective date of termination and Vendor will continue to provide City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Vendor will provide 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 will return all City -provided data to City in a machine-readable format or other format deemed acceptable to City. 5. Disclosure of Conflicts and Confidential Information. 5.1 Disclosure of Conflicts. Vendor hereby warrants to 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 City in writing. 5.2 Confidential Information. Vendor, for itself and its officers, agents and employees, agrees that it will treat all information provided to it by City ("City Information") as confidential and will not disclose any such information to a third party without the prior written approval of City. 5.3 Public Information Act. City is a government entity under the laws of the State of Texas and all records held or maintained for City are subject to disclosure under the Texas Public Information Act. In the event there is a request for information marked Confidential or Proprietary, City will promptly notify Vendor. It will be the responsibility of Vendor to submit reasons objecting to disclosure to the Texas Attorney General. 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. 5.4 Unauthorized Access. Vendor must store and maintain City Information in a secure manner and will not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Vendor must notify City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised, in which event, Vendor will, in good faith, use all commercially reasonable efforts to cooperate with City in identifying what information has been accessed by unauthorized means and will fully cooperate with City to protect such City Information from further unauthorized disclosure. 6. Right to Audit. Vendor agrees that City will, until the expiration of three (3) years after final payment under this Agreement, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records, including, but not limited to, all electronic records of Vendor involving transactions relating to this Agreement at no additional cost to City. Vendor agrees that City will have access during normal working hours to all necessary Vendor facilities and will be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City will give Vendor reasonable advance notice of intended audits. 7. Independent Contractor. It is expressly understood and agreed that Vendor will 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 City. Subject to and in accordance with the conditions and Vendor Services Agreement Page 2 of 14 provisions of this Agreement, Vendor will 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, vendors, and subcontractors. Vendor acknowledges that the doctrine of respondeat superior will not apply as between City, its officers, agents, servants and employees, and Vendor, its officers, agents, employees, servants, contractors, and subcontractors. Vendor further agrees that nothing herein will be construed as the creation of a partnership or joint enterprise between City and Vendor. It is further understood that City will in no way be considered a co -employer or a joint employer of Vendor or any officers, agents, servants, employees, contractors, or subcontractors. Neither Vendor, nor any officers, agents, servants, employees, contractors, or subcontractors of Vendor will be entitled to any employment benefits from City. Vendor will 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 contractors. 8. Liability and Indemnification. 8.1 LIABILITY - VENDOR WILL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, 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 OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF VENDOR, ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 8.2 GENERAL INDEMNIFICATION- VENDOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, REPRESENTATIVES, SERVANTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY BIND 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) AND PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, 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 VENDOR, ITS OFFICERS, AGENTS, REPRSENTATIVES, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 8.3 INTELLECTUAL PROPERTY INDEMNIFICATION — VENDOR AGREES TO DEFEND, SETTLE, OR PAY, AT ITS OWN COST AND EXPENSE, ANY CLAIM OR ACTIONAGAINST CITY FOR INFRINGEMENT OFANYPA TENT, COPYRIGHT, TRADE MARK, TRADE SECRET, OR SIMILAR PROPERTYRIGHT ARISING FROM CITY'S USE OF THE SOFTWARE OR DOCUMENTATION IN ACCORDANCE WITH THIS AGREEMENT, IT BEING UNDERSTOOD THAT THIS AGREEMENT TO DEFEND, SETTLE OR PAY WILL NOT APPLYIF CITYMODIFIES OR MISUSES THE SOFTWARE AND/OR DOCUMENTATION. SO LONG AS VENDOR BEARS THE COST AND EXPENSE OF PAYMENT FOR CLAIMS OR ACTIONS AGAINST CITY PURSUANT TO THIS SECTION, VENDOR WILL HAVE THE 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, CITY WILL HAVE THE RIGHT TO FULLY PARTICIPATE IN ANY AND ALL SUCH SETTLEMENT, NEGOTIATIONS, OR LAWSUIT AS NECESSARY TO PROTECT CITY'S INTEREST, AND CITYAGREES TO COOPERATE WITH VENDOR INDOINGSO. IN THE EVENT CITY, FOR WHATEVER REASON, ASSUMES THE RESPONSIBILITY FOR PAYMENT OF COSTS AND EXPENSES FOR ANY CLAIM OR ACTION BROUGHT Vendor Services Agreement Page 3 of 14 AGAINST CITY FOR INFRINGEMENT ARISING UNDER THIS AGREEMENT, CITY WILL HAVE THE SOLE RIGHT TO CONDUCT THE DEFENSE OF ANY SUCH CLAIM OR ACTIONAND ALL NEGOTIATIONS FOR ITS SETTLEMENT OR COMPROMISE AND TO SETTLE OR COMPROMISE ANY SUCH CLAIM, HOWEVER, VENDOR WILL FULLY PARTICIPATE AND COOPERATE WITH 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, CITY'S ASSUMPTION OF PAYMENT OF COSTS OR EXPENSES WILL NOT ELIMINATE VENDOR'S DUTY TO INDEMNIFY CITY UNDER THIS AGREEMENT. IF THE SOFTWARE AND/OR DOCUMENTATION 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 MA TERIALL YADVERSELY RESTRICTED, VENDOR WILL, AT ITS OWNEXPENSE AND AS CITY'S SOLE REMEDY, EITHER: (A) PROCURE FOR CITY THE RIGHT TO CONTINUE TO USE THE SOFTWARE AND/OR DOCUMENTATION, OR (B) MODIFY THE SOFTWARE AND/OR DOCUMENTATION TO MAKE IT NON -INFRINGING, PROVIDED THAT SUCH MODIFICATION DOES NOT MATERIALLY ADVERSELY AFFECT CITY'SAUTHORIZED USE OF THE SOFTWARE AND/OR DOCUMENTATION, OR (C) REPLACE THE SOFTWARE AND DOCUMENTATION WITH EQUALL YSUITABLE, COMPATIBLE, AND FUNCTIONALLY EQUIVALENT NON -INFRINGING SOFTWARE AND DOCUMENTATION AT NO ADDITIONAL CHARGE TO CITY, OR (D) IF NONE OF THE FOREGOING ALTERNATIVES IS REASONABLY AVAILABLE TO VENDOR TERMINATE THIS AGREEMENT, AND REFUND ALL AMOUNTS PAID TO VENDOR BY CITY, SUBSEQUENT TO WHICH TERMINATION CITY MA Y SEEK ANY AND ALL REMEDIES AVAILABLE TO CITY UNDER LAW. 9. Data Breach. Vendor further agrees that it will monitor and test its data safeguards from time to time, and further agrees to adjust its data safeguards from time to time in light of relevant circumstances or the results of any relevant testing or monitoring. If Vendor suspects or becomes aware of any unauthorized access to any financial or personal identifiable information ("Personal Data") by any unauthorized person or third party, or becomes aware of any other security breach relating to Personal Data held or stored by Vendor under the Agreement or in connection with the performance of any services performed under the Agreement or any Statement(s) of Work ("Data Breach"), Vendor shall immediately notify City in writing and shall fully cooperate with City at Vendor's expense to prevent or stop such Data Breach. In the event of such Data Breach, Vendor shall fully and immediately comply with applicable laws, and shall take the appropriate steps to remedy such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their respective officers, directors, employees and agents, harmless from and against any and all claims, suits, causes of action, liability, loss, costs and damages, including reasonable attorney fees, arising out of or relating to any third -party claim arising from breach by Vendor of its obligations contained in this Section, except to the extent resulting from the acts or omissions of City. All Personal Data to which Vendor has access under the Agreement, as between Vendor and City, will remain the property of City. City hereby consents to the use, processing and/or disclosure of Personal Data only for the purposes described herein and to the extent such use or processing is necessary for Vendor to carry out its duties and responsibilities under the Agreement, any applicable Statement(s) of Work, or as required by law. Vendor will not transfer Personal Data to third parties other than through its underlying network provider to perform its obligations under the Agreement, unless authorized in writing by City. Vendor's obligation to defend, hold Vendor Services Agreement Page 4 of 14 harmless and indemnify City shall remain in full effect if the Data Breach is the result of the actions of a third party. All Personal Data delivered to Vendor shall be stored in the United States or other jurisdictions approved by City in writing and shall not be transferred to any other countries or jurisdictions without the prior written consent of City. 10. Assignment and Subcontracting. 10.1 Assignment. Vendor will not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment, the assignee will execute a written agreement with City and Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement. Vendor and Assignee will be jointly liable for all obligations of Vendor under this Agreement prior to the effective date of the assignment. 10.2 Subcontract. If City grants consent to a subcontract, the subcontractor will execute a written agreement with Vendor referencing this Agreement under which subcontractor agrees to be bound by the duties and obligations of Vendor under this Agreement as such duties and obligations may apply. Vendor must provide City with a fully executed copy of any such subcontract. 11. Insurance. 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: I.I.I. Commercial General Liability: 1.1.1.1. Combined limit of not less than $2,000,000 per occurrence; $4,000,000 aggregate; or 1.1.1.2. 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. 1.1.1.3. Defense costs shall be outside the limits of liability. 1.1.2. 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. 1.1.3. Professional Liability (Errors & Omissions) in the amount of $1,000,000 per claim and $1,000,000 aggregate limit. 1.1.4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. 1.1.5. Technology Liability (Errors & Omissions) 1.1.5.1. Combined limit of not less than $2,000,000 per occurrence; $4million aggregate or 1.1.5.2. Combined limit of not less than $1,000,000 per occurrence; Vendor Services Agreement Page 5 of 14 $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. 1.1.5.3. Coverage shall include, but not be limited to, the following: 1.1.5.3.1. Failure to prevent unauthorized access; 1.1.5.3.2. Unauthorized disclosure of information; 1.1.5.3.3. Implantation of malicious code or computer virus; 1.1.5.3.4. Fraud, Dishonest or Intentional Acts with final adjudication language; 1.1.5.3.5. Intellectual Property Infringement coverage, specifically including coverage for intellectual property infringement claims and for indemnification and legal defense of any claims of intellectual property infringement, including infringement of patent, copyright, trade mark or trade secret, brought against the City for use of Deliverables, Software or Services provided by Vendor under this Agreement; 1.1.5.3.6. 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 $50,000 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 and for two (2) years following completion of services provided. An annual certificate of insurance, or a full copy of the policy if requested, shall be submitted to the City to evidence coverage; and 1.1.5.3.7. Any other insurance as reasonably requested by City. 1.2. General Insurance Requirements: 1.2.1. All applicable 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. Vendor Services Agreement Page 6 of 14 1.2.2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. 1.2.3. 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. 1.2.4. 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- 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. 1.2.5. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 1.2.6. 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. Compliance with Laws, Ordinances, Rules and Regulations. Vendor 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 City notifies Vendor of any violation of such laws, ordinances, rules or regulations, Vendor must immediately desist from and correct the violation. 13. Federal Copyright Act. Vendor agrees to assume full responsibility for complying with the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.) and any Regulations issued thereunder including, but not limited to, the assumption of any and all responsibilities for paying royalties which are due for the use of copyrighted works in Vendor's performances or exhibitions to the copyright owner, or representative of said copyright owner. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the performance, reproduction, or other use of copyrighted materials by Vendor or its agents or licensees without the appropriate licenses or permission being secured by Vendor in advance. It is further agreed that VENDOR WILL DEFEND, INDEMNIFY AND HOLD CITY HARMLESS FOR ANY CLAIMS ARISING FROM NONPAYMENT TO LICENSING AGENCIES, INCLUDING, BUT NOT LIMITED TO, ASCAP, BMI, AND SESAC OR DAMAGES ARISING OUT OF VENDOR'S INFRINGEMENT OR VIOLATION OF THE COPYRIGHT LAW AND/OR REGULATIONS. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing will be the exclusive obligation of the Vendor. Vendor understands that they are responsible for securing any and all licenses by artists/performers giving permission for the recordings. Vendor is responsible for both reporting and payment of any music licensing fees that may be required by law. Vendor understands and agrees that without the proper license obtained by Vendor, there is a risk of an injunction or money damages arising from a copyright lawsuit brought by ASCAP, BMI, SESAC or any other licensing agency. Vendor Services Agreement Page 7 of 14 14. Non -Discrimination Covenant. Vendor, for itself, its personal representatives, assigns, contractors, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Vendor's duties and obligations hereunder, it will 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, CONTRACTORS, SUBCONTRACTORS, OR SUCCESSORS IN INTEREST, VENDOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM. 15. Notices. Notices required pursuant to the provisions of this Agreement will be conclusively determined to have been delivered when (1) hand -delivered to the other party, its agents, employees, servants or representatives or (2) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To CITY: I To VENDOR: City of Fort Worth Overdrive, Inc Attn: Assistant City Manager One Overdrive Way 100 Fort Worth Trail Cleaveland, OH 44125 Fort Worth, TX 76102 With copy to Fort Worth City Attorney's Office at same address 16. Solicitation of Employees. Neither City nor Vendor will, 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. Notwithstanding the foregoing, this provision will not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 17. Governmental Powers. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 18. No Waiver. The failure of City or Vendor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein does not constitute a waiver of City's or Vendor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 19. Governing Law / Venue. This Agreement will 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 will lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 20. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired. Vendor Services Agreement Page 8 of 14 21. Force Majeure. City and Vendor will exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but will 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; epidemics or pandemics; government action or inaction; orders of government; material or labor restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the party whose performance is affected (collectively, "Force Majeure Event"). The performance of any such obligation is suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected party provides notice of the Force Majeure Event, and an explanation as to how it prevents or hinders the parry's performance, as soon as reasonably possible after the occurrence of the Force Majeure Event, with the reasonableness of such notice to be determined by the City in its sole discretion. The notice required by this section must be addressed and delivered in accordance the notice section of this Agreement. 22. Headings Not Controlling. Headings and titles used in this Agreement are for reference purposes only, will not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 23. Review of Counsel. The parties acknowledge that each parry 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 will not be employed in the interpretation of this Agreement, Exhibit A, and Exhibit B. 24. Amendments / Modifications / Extensions. No amendment, modification, or extension of this Agreement will be binding upon a party hereto unless set forth in a written instrument, which is executed by an authorized representative of each party. 25. Entirety of Agreement. This Agreement, including Exhibits A and B, contains the entire understanding and agreement between 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. 26. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart will, for all purposes, be deemed an original, but all such counterparts will together constitute one and the same instrument. 27. Warranty of Services. Vendor warrants that its services will be of a high 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 will either (a) use commercially reasonable efforts to re -perform the services in a manner that conforms with the warranty, or (b) refund the fees paid by City to Vendor for the nonconforming services. 28. Immigration and Nationality Act. Vendor must 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, Vendor will provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor must adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Vendor employee who is not legally eligible to Vendor Services Agreement Page 9 of 14 perform such services. VENDOR WILL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, OR AGENTS. City, upon written notice to Vendor, will have the right to immediately terminate this Agreement for violations of this provision by Vendor. 29. Ownership of Work Product. City will be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation that are created, published, displayed, or produced in conjunction with the services provided under this Agreement (collectively, "Work Product"). Further, City will be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product will inure to the benefit of City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product will be considered a "work -made - for -hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is not considered a "work -made -for -hire" within the meaning of the Copyright Act of 1976, as amended, Vendor hereby expressly assigns to City all exclusive right, title and interest in and to the Work Product, and all copies thereof, and in and to the copyright, patent, trademark, trade secret, and all other proprietary rights therein, that City may have or obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of City. 30. Signature Authority. The person signing this Agreement hereby warrants that they have 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 hereto, may be executed by any authorized representative of Vendor. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 31. Change in Company Name or Ownership. Vendor must notify City's Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of Vendor or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director's resolution approving the action, or an executed merger or acquisition agreement. Failure to provide the specified documentation may adversely impact invoice payments. 32. No Boycott of Israel. If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the 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" has the meanings ascribed to those terms in Chapter 2271 of the Texas Government Code. By signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 33. Prohibition on Boycotting Energy Companies. If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the Vendor that it: (1) does not boycott energy companies; and (2) will not Vendor Services Agreement Page 10 of 14 boycott energy companies during the term of this Agreement. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 34. Prohibition on Discrimination Against Firearm and Ammunition Industries. If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the Vendor that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. 35. Electronic Signatures. This Agreement may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and effect as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. (signature page follows) (remainder of this page intentionally left blank) Vendor Services Agreement Page 11 of 14 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples. CITY OF FORT WORTH: 'bqAal 8ynkdaff By: Dana Burghdoff (Apr 22,2026 15:29: CDT) Name: Dana Burghdoff Title: Assistant City Manager Date: 04/22/2026 VENDOR: Overdrive, Inc By. Erica Lo (Apr 8, 2026 09:19:30 EDT) Name: Erica Lazzaro Title: Executive Vice President, General Counsel 04/08/2026 Date: FOR CITY OF FORT WORTH INTERNAL PROCESSES: Approval Recommended: XZt- By: Midori Clark (Apr 22, 2026 14:56:06 CDT) Name: Midori Clark Title: Library Director Attest: on, A fFortr°aa q } Q pu'J �pro��9dd a°oaa�zpg444 By: Name: Jannette Goodall Title: City Secretary Contract Authorization: M&C: 26-0209 Date M&C Approved: 3/31/2026 Form 1295: 2026-1414554 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. 0�D Mj..'Q ()A" By: April Jacquez (Apr 7, 2026 16:45:08 CDT) Name: April Jacquez Title: Sr. Contract Compliance Specialist Approved as to Form and Legality: By: Name: Title: 7-a�GoY �a�ls Taylor aris (Apr 22, 2026 09:37:39 CDT) Taylor Paris Assistant City Attorney OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Vendor Services Agreement Page 12 of 14 EXHIBIT A SCOPE OF SERVICES AND PAYMENT TERMS Vendor will provide the City with digital book technology and services including those related to management and copyright protection of content in eBook, audio book, and multimedia in digital formats including the following: • A customized website for libraries and the award -winning, proprietary Libby app for patrons to access digital content • Vendor's proprietary browser -based formats for digital content, OverDrive Read for ebooks and OverDrive Listen for audiobooks • Vendor's proprietary online Marketplace for content ordering, content management, and customized usage reports • Vendor's proprietary Local Content feature, which enables institutions to upload locally produced and self -published digital content for lending to their users, with lending polices set by the institution • Vendor's proprietary Public Library Connect feature, which leverages cooperation between Vendor's library and school customers to enable students to access their public library's digital content collection via Vendor's student reading app, Sora • Vendor's Notes Me feature, which enables patrons to express interest in a title not currently offered by their library • OverDriveAPls, available via Vendor's Developer Portal, which allow for deep integration of digital content with library discovery tools • Download ebooks in the Kindle format and compatibility with all generations of Amazon Kindle (exclusive to Vendor) • Popular and educational streaming videos available through Kanopy (exclusive to Vendor) • Digital magazines available through Zinio (exclusive to Vendor) • Online music lessons from master musicians available through ArtistWorks (exclusive to Vendor) • Integration with the institution's ILS for real-time patron authentication • Support services for all platforms Payment: • City will pay Vendor for Services performed pursuant to this Agreement up to a total amount not to exceed $3,400,000.00. Vendor will 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 will not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. • On or before the 1 Oth day of each month of this Agreement, the Vendor will provide the City with a signed fee invoice summarizing (i) the portion of the Services that have been completed during the prior month and (ii) any outstanding costs owed to Vendor for the Services. Vendor must provide the City with an invoice in order to be paid. Invoices must be submitted to Supplierinvoicesnfortworthtexas.gov. • Prior to submitting an invoice to the City for payment of the applicable Services, Vendor must verify the quality of Services performed. . Vendor Services Agreement Page 13 of 14 • Vendor must provide the City with a signed, readable invoice summarizing (i) the Services, that have been completed; ii purchase order number, and (iii) requesting payment in a specified amount. If the City dispute an Invoice or whether Services have been adequately provided, it will notify the Vendor in writing as soon as the determination is made, listing specific reasons for rejection. The Vendor will have ten (10) dqys to correct any deficiencies, unless otherwise a rg ged by the Parties in writing. Payment to the Vendor will not be authorized unless the City accepts the Services in writing. The Ci , 's acceptance will not be unreasonably withheld. • If the City requires additional reasonable information, it will request the same promptly receiving the above information, and the Vendor must provide such additional reasonable information to the extent the same is available. Invoices must be submitted to Supplierinvoicesgfortworthtexas. gov Vendor Services Agreement Page 14 of 14 M&C Review Page 1 of 2 U Official site of the City of Fort Worth, Texas CITY COUNCIL AGEND FORT�� Create New From This M&C DATE: 3/31/2026 REFERENCE **M&C 26- LOG NAME: 840VERDRIVE, INC. SOLE - NO.: 0209 SOURCE AGREEMENT 2026 CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: (ALL) Authorize Execution of a Sole -Source Agreement with OverDrive, Inc. to Provide Digital Library Services in an Amount Up to $3,400,000.00 Annually for the Initial Term of Five Years and Unlimited Renewal Options of Two Years Each for the Same Annual Amount for the Library Department RECOMMENDATION: It is recommended that the City Council authorize execution of a sole -source agreement with OverDrive, Inc. to provide digital library services in an amount up to $3,400,000.00 annually for the initial term of five years and unlimited renewal options for terms of two years each for the same amount for the Library Department. DISCUSSION: This Mayor and Council Communication (M&C) requests authorization to execute a sole -source agreement with OverDrive, Inc. to provide digital library services for the Library Department. Services provided by OverDrive, Inc. include: digital materials (eBooks, eAudiobooks, and digital magazines) for Android, iOS, Kindle, Nook, Kobo, Windows, and Mac computers as well as maintenance, hosting and support for said digital materials. OverDrive, Inc. uniquely provides a series of services and digital content materials that enable public libraries to lend popular audiobooks, eBooks, streaming video and other digital content via the library's website on a single platform. OverDrive, Inc. is the sole -source provider of the Library Department's digital materials and services under City Secretary Contract No. 035192 originally approved by M&C P-10542 on March 6, 2007. That agreement has been subsequently renewed for the maximum number of allowable terms (five) and is nearing the end of the last term. A new agreement is necessary to continue the services. Funding is budgeted in the General Operating & Maintenance category in the General Fund for the Library Department. AGREEMENT TERM: Upon City Council approval, this agreement shall begin upon execution and shall expire five years from that date, unless otherwise renewed. RENEWAL OPTIONS: This agreement may be renewed for unlimited two-year terms at the City's option. This action does not require specific City Council approval, provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. EXEMPT PROCUREMENT: The City Attorney's Office has determined that this sole -source is exempt from competitive bidding under the provisions of Chapter 252 of the Texas Local Government Code due to the unique services provided by and only available from this vendor. ADMINISTRATIVE CHANGE ORDER: An administrative change order to increase the agreement may be made by the City Manager up to the amount allowed by relevant law and the Fort Worth City Code and does not require specific City Council approval as long as sufficient funds have been appropriated. FISCAL INFORMATION/CERTIFICATION: http://apps.cfwnet.org/council_packet/mc_review.asp?ID=3425I&councildate=3/31/2026 4/3/2026 M&C Review Page 2 of 2 The Director of Finance certifies that funds are available in the current operating budget, as previously appropriated, in the General Fund to support the approval of the above recommendation and execution of the contract. Prior to any expenditure being incurred, the Library Department has the responsibility to validate the availability of funds. Fund Department Account Project Program Activity Budget Reference # Amount ID ID Year(Chartfield 2) FROM Fund Department Account Project Program Activity Budget Reference # Amount ID _ ID Year (Chartfield 2) Submitted for City Manager's Office by: Dana Burghdoff (8018) Originating Department Head: Midori Clark (7707) Additional Information Contact: Sherry Knight (7797) ATTACHMENTS 1295 (2026) OverDrive, Inc..pdf (CFW Internal) 840VERDRIVE, INC. SOLE -SOURCE AGREEMENT 2026 funds avail.docx (CFW Internal) FID Table Overdrive.xlsx (CFW Internal) http://apps.cfwnet.org/council_packet/mc_review.asp?ID=34251&councildate=3/31/2026 4/3/2026 Docusign Envelope ID: D103963A-7B41-493E-A1BF-C483BD64126D CERTIFICATE OF INTERESTED PARTIES FORM 1295 1of1 Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. 2026-1414554 OverDrive, Inc. Cleveland, OH United States Date Filed: 01/30/2026 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. Fort Worth Public Library Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 20260130 Digital Library Services 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling I Intermediary 5 Check only if there is NO Interested Party. X 6 UNSWORN DECLARATION My name is Erica Lazzaro and my date of birth is My address is One OverDrive Way Cleveland OH 44125 USA (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in Cuyahoga County, State of Ohio on the 30 day of January 20 26 (month) (year) by: �Q+DocuSigned sDFz�se ,Yl IIULUIU u, authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V4.1.0.22701b2a FORT WORTH, City Secretary's Office Contract Routing & Transmittal Slip Contractor's Name: Overdrive, Inc Subject of the Agreement: digital book technology M&C Approved by the Council? * Yes 9 No ❑ If so, the M&C must be attached to the contract. Is this an Amendment to an Existing contract? Yes ❑ No 8 If so, provide the original contract number and the amendment number. Is the Contract "Permanent"? *Yes ❑ No 8 If unsure, see back page for permanent contract listing. Is this entire contract Confidential? *Yes ❑ No ® If only specific information is Confidential, please list what information is Confidential and the page it is located. Effective Date: ACM signature date If different from the approval date. Expiration Date: 1 year from ACM signature date If applicable. Is a 1295 Form required? * Yes 8 No ❑ *If so, please ensure it is attached to the approving M&C or attached to the contract. Project Number: If applicable. *Did you include a Text field on the contract to add the City Secretary Contract (CSC) number? Yes 8 No ❑ Contracts need to be routed for CSO processing in the following order: 1. Katherine Cenicola (Approver) 2. Jannette S. Goodall (Signer) 3. Allison Tidwell (Form Filler) *Indicates the information is required and if the information is not provided, the contract will be returned to the department.