CONTRACT 6540 Service AgreementAgreement No. 6540
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SOFTWARE SERVICES AGREEMENT
BETWEEN THE CITY OF EL SEGUNDO
AND
OVERDRIVE, INC.
THIS AGREEMENT, is entered into this 4m day of November 2022, by and
between CITY OF EL SEGUNDO, a municipal corporation ("CITY") and
OVERDRIVE, INC., a Delaware corporation ("CONSULTANT").
1. CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform the scope of
services attached as Exhibit 'A" and incorporated by reference
("SERVICES"). The SERVICES include installing and maintaining a
software program for various tasks associated with Overdrive, Inc.
Application Services ("SOFTWARE").
B. As additional consideration, CONSULTANT and CITY agree to abide by
the terms and conditions contained in this Agreement;
C. As additional consideration, CITY will pay CONSULTANT the
compensation set forth in Exhibit A, but in no event not to exceed more
than three thousand dollars ($3,000.00) from January 1, 2023 to
December 31, 2023.
D. CITY will not be liable for any costs or expenses exceeding the sum paid
to CONSULTANT pursuant to Section 1(C) unless otherwise agreed to by
the Parties and by written amendment to this Agreement.
2. TERM. The term of this Agreement will be for one (1) year. This Agreement will
automatically renew, on an annual basis, on its anniversary date unless
otherwise terminated. Unless otherwise determined by written amendment
between the parties, this Agreement will terminate in the following instances:
A. Completion of the work specified in Exhibit "A";
B. Termination as stated in Section 7.
3. "SELF-HELP" AND "MALICIOUS" CODES PROHIBITED.
A. CONSULTANT understands and agrees that CONSULTANT's use of any
"self-help" or "malicious" codes, as defined by this Section, is prohibited
and constitutes an "unfair business practice" as defined by California law.
Notwithstanding any other provision of this Agreement that limits
CONSULTANT's liability, CONSULTANT will be fully liable for all penalties
and damages arising from use of a self-help or malicious code.
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B, "Self-help code" means any back -door, time -bomb, drop -dead, time-out,
lock -up, slow -down, data freezing, logic bombs, or other software routine,
code, devices, techniques intended to disable, slow, prevent operation of,
or otherwise interfere with or change any operation of any computer
system, software or other property automatically with the passage of time
or under the prior instruction, triggering event or control of someone other
than Client.
C. "Malicious Code" means any virus, "spyware,"'Trojan horse," "worm,"
"Easter egg," "cancelbot," "trapdoor," or other unapproved or malicious
software routine, code, command, device, technique, or instruction or
other contaminant intended to
Permit unauthorized access to, detection of, modification of, or
monitoring of any code, system, or data;
ii. Alter, supplement, disable, erase, limit, threaten, infect, assault,
vandalize, defraud, disrupt, damage, disable, shut down or delete,
threaten, slow or otherwise inhibit the functioning of, or otherwise
harm any of the code, documentation or data or any computer
system, software or other property;
iii. Render any data irretrievable, modified, or disrupted so as to be
unreliable in any regard;
iv. Perform any other unauthorized action, or prevent, limit, condition
or inhibit performance of authorized actions or any function
including, without limitation, to its security or end user data.
4. LAWS AND REGULATIONS. CONSULTANT will be responsible for complying
with any and all applicable Federal, State, County, and Municipal laws and regulations
and the conditions of any required licenses and permits before entering into this
Agreement. Such compliance will be at CONSULTANT's sole cost and without any
increase in price or time on account of such compliance, regardless of whether
compliance would require additional labor, equipment, and/or materials not expressly
provided for in the Agreement or CONSULTANT's proposal.
5. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
L Indemnification for Professional Services. CONSULTANT will
save harmless and indemnify and at CITY's request reimburse
defense costs for CITY and all its officers, volunteers,
employees and representatives from and against any and all
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suits, actions, or claims, of any character whatever, brought
for, or on account of, any injuries or damages sustained by
any person or property resulting or arising from any negligent
or wrongful act, error or omission by CONSULTANT or any of
CONSULTANT's officers, agents, employees, or
representatives, in the performance of this Agreement, except
for such loss or damage arising from CITY's sole negligence
or willful misconduct.
ii. Indemnification for other Damages. CONSULTANT indemnifies
and holds CITY harmless from and against any claim, action,
damages, costs (including, without limitation, attorney's fees),
injuries, or liability, arising out of this Agreement, or its
performance, except for such loss or damage arising from
CITY's sole negligence or willful misconduct. Should CITY be
named in any suit, or should any claim be brought against it
by suit or otherwise, whether the same be groundless or not,
arising out of this Agreement, or its performance,
CONSULTANT will defend CITY (at CITY's request and with
counsel satisfactory to CITY) and will indemnify CITY for any
judgment rendered against it or any sums paid out in
settlement or otherwise.
iii. Intellectual Property Infringement. Notwithstanding any
provision to the contrary, CONSULTANT will, at its own
expense, indemnify and defend CITY against any claim that
CONSULTANT's Application Services product furnished under
this Agreement infringes a patent or copyright in the United
States or Puerto Rico. In such event, CONSULTANT will pay
all costs damages and attorney's fees that a court finally
awards as a result of such claim. To qualify for such defense
and payment, CITY must (a) give CONSULTANT prompt written
notice of any such claim; and (b) allow CONSULTANT to
control, and fully cooperate with CONSULTANT in the defense
and all related settlement negotiations. CITY agrees that if the
use of CONSULTANT's Application Services becomes, or
CONSULTANT believes is likely to become, the subject of such
an intellectual property claim, CITY will permit CONSULTANT,
at its option and expense, either to secure the right for CITY to
continue using CONSULTANT's Application Services or to
replace it with comparable services.
B. For purposes of this section "CITY" includes CITY's elected and appointed
officials, officers, employees, and volunteers.
C. It is expressly understood and agreed that the foregoing provisions will
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survive termination of this Agreement.
D, The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 6, and any approval
of said insurance by CITY, are not intended to and will not in any manner
limit or qualify the liabilities and obligations otherwise assumed by
CONSULTANT pursuant to this Agreement, including, without limitation, to
the provisions concerning indemnification.
6. INSURANCE.
A. Before commencing performance under this Agreement, and at all other
times this Agreement is effective, Consultant will procure and maintain the
following types of insurance with coverage limits complying, at a minimum,
with the limits set forth below:
Type of Insurance
Commercial general liability:
Professional Liability
Workers compensation
$1,000,000
$1,000,000
Statutory requirement.
B. Commercial general liability insurance will meet or exceed the
requirements of the most current ISO-CGL Form. The amount of
insurance set forth above will be a combined single limit per occurrence
for bodily injury, personal injury, and property damage for the policy
coverage. Liability policies will be endorsed to name City, its officials, and
employees as "additional insureds" under said insurance coverage and to
state that such insurance will be deemed "primary" such that any other
insurance that may be carried by City will be excess thereto. Such
insurance will be on an "occurrence," not a "claims made,' basis and will
not be cancelable or subject to reduction except upon thirty (30) days prior
written notice to City.
C. Professional liability coverage will be on an "occurrence basis" if such
coverage is available, or on a "claims made" basis if not available. When
coverage is provided on a "claims made basis," Consultant will continue to
maintain the insurance in effect for a period of three (3) years after this
Agreement expires or is terminated ("extended insurance"). Such
extended insurance will have the same coverage and limits as the policy
that was in effect during the term of this Agreement, and will cover
Consultant for all claims made by City arising out of any errors or
omissions of Consultant, or its officers, employees or agents during the
time this Agreement was in effect.
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D. Consultant will furnish to City duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement,
endorsements as required herein, and such other evidence of insurance
or copies of policies as may be reasonably required by City from time to
time. Insurance must be placed with insurers with a current A.M. Best
Company Rating equivalent to at least a Rating of WVII."
E. Should Consultant, for any reason, fail to obtain and maintain the
insurance required by this Agreement, City may terminate.
7. TERMINATION OF AGREEMENT
A. During the term of this Agreement, CITY may, in its sole discretion,
terminate this Agreement with or without cause by giving written notice to
CONSULTANT. Termination will become effective thirty days after
Consultant's receipt of termination as provided in this section of the
Agreement. The City Manager may exercise such right of termination on
behalf of CITY.
B. Except as otherwise provided, upon termination of this Agreement, CITY
will be liable to CONSULTANT only for all work done by CONSULTANT
up to and including the date of termination of this Agreement unless the
termination is for cause, in which event CONSULTANT need be
compensated only to the extent required by law.
8. NOTICES
A. CONSULTANT will notify CITY of changes in address. All notices given or
required to be given pursuant to this Agreement will be in writing and may
be given by personal delivery or by mail. Notice sent by mail will be
addressed as follows:
To CITY:
CITY OF EL SEGUNDO
350 MAIN STREET
EL SEGUNDO, CA 90245-3813
To CONSULTANT:
OVERDRIVE, INC.
ATTN: ERICA LAZZARO,
EXECUTIVE VICE PRESIDENT & GENERAL COUNSEL
ONE OVERDRIVE WAY
CLEVELAND, OHIO 44125
and, when addressed in accordance with this paragraph, will be deemed
given upon deposit in the United States mail, postage prepaid. In all other
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instances, notices will be deemed given at the time of actual delivery.
Changes may be made in the names or addresses of persons to whom
notices are to be given by giving notice in the manner prescribed in this
paragraph.
9. AUDIT AND ACCESS TO RECORDS. CONSULTANT, including
CONSULTANT's subcontractors, will maintain records and other evidence of all
expenses incurred in the performance of this Agreement for a period of three (3) years
after completion. CITY or any of its duly authorized representatives will, upon thirty
(30) days written advanced notice for the purpose of audit and examination, haveaccess
to and be permitted to inspect such records and other evidence of expenses andcosts
charged to CITY and/or incurred for work related to SERVICES. For purposes ofaudit,
the date of completion of the Agreement will be the date of CITY'S payment for
CONSULTANT's final billing (so noted on invoice) under this Agreement.
10. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT
for current services are within the current budget and within an available, unexhausted
and unencumbered appropriation of the CITY. In the event the CITY has not
appropriated sufficient funds for payment of CONSULTANT services beyond the current
fiscal year, this Agreement will cover only those costs incurred up to the conclusion of
the current fiscal year.
11. INDEPENDENT CONTRACTOR. CONSULTANT, CONSULTANT's
subconsultants, employees, agents, and representatives, will act as independent
contractors while performing the SERVICES and will have control of CONSULTANT's
work and the manner in which it is performed, except as is otherwise provided herein.
CONSULTANT will be free to contract for other services performed during the term of
this Agreement. CONSULTANT is not an agent or employee of CITY and is not entitled
to participate in any pension plan, insurance, bonus or similar benefits CITY provides for
its employees.
12. ASSIGNMENT. An essential element of this Agreement is the skill and creativity
of CONSULTANT. CONSULTANT may not, therefore, assign the creative portions of
the work to a third party for the production of the work without CITY's prior written
consent. Failure to conform to this provision may result in termination of the
Agreement. Notwithstanding the foregoing, without securing such prior consent, either
party may upon written notice to the other party assign this Agreement and its rights and
obligations to any successor of such first party by way of merger, consolidation, or the
acquisition of substantially all of such first party's business and relating assets. Subject
to the foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties to this Agreement and their respective heirs, legal representatives, successors
and permitted assigns.
13.CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the
main body of this Agreement takes precedence over the attached Exhibits; this
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Agreement supersedes any conflicting provisions. Any inconsistency between the
Exhibits will be resolved in the order in which the Exhibits appear below:
A. Exhibit A; Quote Q-000110322
14. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the
Parties' entire understanding. There are no other understandings, terms or other
agreements expressed or implied, oral or written. There are is one attachment to this
Agreement. Except as otherwise provided, this Agreement will bind and inure to the
benefit of the Parties to this Agreement and any subsequent successors and assigns.
15. MODIFICATION. No alteration, change or modification of the terms of the
Agreement will be valid unless made in writing and signed by both Parties hereto and
approved by appropriate action of CITY. The city manager may exercise this authority
on behalf of CITY.
16. ELECTRONIC SIGNATURES FOR SUBSEQUENT AGREEMENTS. . This
Agreement may be executed by the Parties on any number of separate counterparts,
and all such counterparts so executed constitute one Agreement binding on all the
Parties notwithstanding that all the Parties are not signatories to the same counterpart.
In accordance with Government Code § 16.5, the Parties agree that this Agreement,
Agreements ancillary to this Agreement, and related documents to be entered into in
connection with this Agreement will be considered signed when the signature of a party
is delivered by electronic transmission. Such electronic signature will be treated in all
respects as having the same effect as an original signature.
17. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with
CONSULTANT's Taxpayer Identification Number.
18. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that CONSULTANT has demonstrated trustworthiness and possesses the
quality, fitness, and capacity to perform the Agreement in a manner satisfactory to
CITY. CONSULTANT represents that CONSULTANT's financial resources, surety and
insurance experience, service experience, completion ability, personnel, current
workload, experience in dealing with private parties, and experience in dealing with
public agencies all suggest that CONSULTANT is capable of performing the proposed
contract and has a demonstrated capacity to deal fairly and effectively with and to
satisfy a public agency.
19. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition
contained in this Agreement will not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant, or condition contained in this
Agreement whether of the same or different character. The payment or acceptance of
fees for any period after a default will not be deemed a waiver of any right or
acceptance of defective performance.
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20. SEVERABILITY. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, then such portion will be deemed
modified to the extent necessary in the opinion of the court to render such portion
enforceable and, as so modified, such portion and the balance of this Agreement will
continue in full force and effect.
21. TIME IS OF ESSENCE. Time is of the essence for each and every provision of
this Agreement.
22. FORCE MAJEURE. Should performance of this Agreement be prevented due to
fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military
authority, the natural elements, or other similar causes beyond the Parties' reasonable
control, then the Agreement will immediately terminate without obligation of either party
to the other.
23. INTERPRETATION; VENUE. This Agreement and its performance will be
governed, interpreted, construed and regulated by the laws of the State of California.
Exclusive venue for any action involving this Agreement will be in Los Angeles County.
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Agreement No. 6540
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IN WITNESS WHEREOF the parties hereto have executed this contract the day
and year first hereinabove written.
CITY OF EL SEGUNDO
Technology Services Department
Date '�//y//'
ATTEST:
Tracy Weaver,
City Clerk
Date I t I 1 -1 1 7A 7 "
APPROVED AS TO FORM:
MARK D. HENSLEY, CITY ATTORNEY
Joaquin V' que,
Deputy C y Attorney
Date I 1 I I -1
Hank Lu,
Date. 1l— %—
OVERDRIVE, INC.
DacuSlgned Dy:
Fiwres. ww
Erica 9 ro
Executive V.P. & General Counsel
Date
11/11/2022
DocuSign Envelope ID: 2F078BD7-6066-449A-8485-75EOE866A5F9
Agreement No. 6540
EXHIBIT - "A"
One OverDrive Way
Cleveland OH 44125
Phone: (216) 573-6886 Fax: (216) 573-6888
Website: httpJlwww.overdrive.com
Email: invoicing@overdrive.com
Quoted To:
El Segundo Public Library
111 W Mariposa Ave
El Segundo, CA 90245
Service For:
El Segundo Public Library
EI Segundo, CA
QUOTE
9uote 1400141 Q-000110322-ElSegundo
i3at 11/312022
ust in r III
OuMOrr e' r,EniWl
1✓'i8t hasci0fder,N6.
Parneh Tern
On File
N/A
e a:�i' tli rl
MOU6t
OverDrive Digital Library
Annual Fee for SCDL participation with $2.000 allocated for content credit
(covers the period 1/1/2023 to 12/31/2023)
$ 3,000.00
Total Quote $ 3,000.00