Sacramento Public Library Authority

Sacramento Public Library Authority September 25, 2014 Agenda Item 10.0: Service Contract Amendment: Acquisition of Library Books and Related Services, Baker & Taylor TO: FROM: RE: Sacramento Public Library Authority Board Nina Biddle, Collection Services Manager Service Contract Amendment: Acquisition of Library Books and Related Services, Baker & Taylor RECOMMENDED ACTION(S): Adopt Resolution 14-38, amending the term of the current agreement with Baker & Taylor, Inc., for the acquisition of collection materials and services to one year, with four one-year renewal options, from the effective date of October 1, 2012. The total of all fees paid by the Library to Baker & Taylor for services shall not exceed the total of sum of $2,200,000 annually. BACKGROUND The Board awarded a purchase contract to Baker & Taylor, Inc., in 2012 for a term of one year, with a oneyear renewal option, for an annual amount not to exceed $1,800,000. The contract was awarded following a Request for Proposals (RFP) and evaluation by a staff team as part of the procurement process. Vendor selection was based on cost, breadth of resources available and comprehensiveness of the response. Baker & Taylor received top ratings from each team member. The Board authorized exercising the one-year renewal option for purchases between October 1, 2013, and September 2014. Amending the term of the Agreement for three additional years, through September 2017, ensures continuity of service and a continuation of current pricing for a minimum of one additional year. FISCAL IMPACT The proposed materials budget for the Sacramento Public Library in the amount of $3,827,000 was approved in May 2014 and includes purchases through Baker & Taylor, Inc. REASON FOR RECOMMENDATION The Library saved a minimum of $400,000 in Fiscal Year 2013-14 in the acquisition of books, based on volume discounts and streamlined efficiencies in the ordering, receiving and processing of materials through Baker & Taylor. During the past year, the vendor s performance has exceeded contract quality and quantity specifications and is fully satisfactory. ATTACHMENT(S): Resolution 14-38, amending the term of the current agreement with Baker & Taylor, Inc., for the acquisition of collection materials and services to one year, with four one-year renewal options, from the effective date of October 1, 2012. The total of all fees paid by the Library to Baker & Taylor for services shall not exceed the total of sum of $2,200,000 annually.

Sacramento Public Library Authority RESOLUTION NO. 14-38 Adopted by the Governing Board of the Sacramento Public Library Authority on the date of: September 25, 2014 AMENDING THE TERM OF THE CURRENT AGREEMENT WITH BAKER & TAYLOR, INC., FOR THE ACQUISITION OF COLLECTION MATERIALS AND SERVICES TO ONE YEAR, WITH FOUR ONE- YEAR RENEWAL OPTIONS, FROM THE EFFECTIVE DATE OF OCTOBER 1, 2012. THE TOTAL OF ALL FEES PAID BY THE LIBRARY TO BAKER & TAYLOR FOR SERVICES SHALL NOT EXCEED THE TOTAL OF SUM OF $2,200,000 ANNUALLY. NOW THEREFORE BE IT RESOLVED BY THE GOVERNING BOARD OF THE SACRAMENTO PUBLIC LIBRARY AUTHORITY AS FOLLOWS: 1. Amend the term of the current Agreement with Baker & Taylor, Inc., for the acquisition of Collection Materials and Services as shown in Exhibit A. 2. The Library Director is authorized to sign all documents related to this contract within the approved terms. Angelique Ashby, Chair Jeffrey Slowey, Vice Chair ATTEST: Rivkah K. Sass, Secretary By: Linda J. Beymer, Assistant Secretary ATTACHMENT(S): Exhibit A: First Amendment to the Agreement, Baker & Taylor, Inc. Exhibit B: Collection Materials and Services Agreement, Baker & Taylor, Inc., October 1, 2012

COLLECTION MATERIALS AND SERVICES AGREEMENT Item 10.0, Exhibit B This Collection Materials and Services Agreement (the Agreement ) is made and entered into as of the 1st day of October 2012 by and between, Baker & Taylor, Inc. ( Baker & Taylor), a Delaware corporation having an office at 2550 West Tyvola Road, Suite 300, Charlotte, North Carolina, 28217 and [Sacramento Public Library Authority] ( Library ), located at 828 I Street, Sacramento, California 95814 for the purchase of books and audiovisual materials and cataloging and processing services as provided herein. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. BACKGROUND 1.1 The Library issued two Requests for Proposal under the names Library Books and Related Value-Added Services, and Juvenile Library Books and Related Value-Added Services,, dated June 8, 2012] (the RFPs ), for ongoing Collection Materials and Services. Baker & Taylor issued a proposal in response to the RFPs dated [June 28, 2012] (the Proposals ) which have been accepted by the Library. 1.2 The following documents will comprise the Agreement, and, in the event of any inconsistency, shall have the following order of precedence: (a) The Agreement (b) Proposals (c) RFPs 1.3 As used in this Agreement: (a) "Effective Date" means the date of signature by the parties as shown on the signature page of this Agreement; if the signatures of the parties bear different dates, then the Effective Date means the later of the two dates of signature as shown on the signature page of this Agreement. (b) "Losses" means all losses, liabilities, damages and claims (including taxes), and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties). (c) "Original Cataloging" means performing cataloging activities for titles for which no Library of Congress record exists. (d) "Adaptive Cataloging" means performing cataloging activities for titles for which a Library of Congress record exists. (e) Cataloging means the performance of either Original Cataloging or Adaptive Cataloging, as the case may be, to a Unit, as required by this Agreement. 1

(f) Processing means the performance with respect to a Unit of some or all of the processing functions as required by the Agreement terms. (g) "Supply" means the selection, ordering and shipment of a Unit and/or the completion of any Cataloging and/or Processing required by the Agreement. (h) Services means the Supply by Baker & Taylor of Units and Baker & Taylor s performance of any other obligations as required by this Agreement, the RFPs and the Proposals. (i) "Unit" means any separate book or non-book item supplied to Library under the Agreement. 2. TERM The term of the Agreement (the "Term") shall be for one year, with a one year renewal option, from the Effective Date, subject to the parties express rights to terminate the Agreement as set forth herein. The total of all fees paid by the Library to Baker & Taylor for Services shall not exceed the total sum of $1,800,000, annually. 3. METHOD OF PAYMENT 3.1 (a) Baker & Taylor will invoice Library for amounts due under the Agreement. The invoice will be reasonably itemized to establish the charges payable by Library. (b) Baker & Taylor will send all billing invoices to Library at its address set forth in Section 12.1 below for notices unless Library provides Baker & Taylor with written notice that a different billing address should be used. (c) Library will make all payments to Baker & Taylor by delivery to the address to which Baker & Taylor directs such payments from time to time, provided that payment will be made directly to Baker & Taylor. 3.2 (a) Baker & Taylor may invoice Library for each Unit at such time as the Unit has been Supplied or placed into storage for Library. Title to each Unit shall pass to Library at such time as Baker & Taylor has Supplied each Unit. Baker & Taylor will invoice Library for Cataloging services as the same are completed in accordance with the terms of the Agreement. (b) The amount shown on each invoice will be due and payable within 30 days after the date of the invoice. (c) Any invoice that is past due will bear interest at the rate of one percent (1%) per calendar month (or any portion thereof), which is a 12% annual interest rate, until paid. (d) Library may not set off against any amount to be paid by it hereunder any amount that Baker & Taylor is obligated to pay or credit Library hereunder. 4. EVENTS BEYOND THE CONTROL OF BAKER & TAYLOR; PERFORMANCE TARGETS 2

4.1 Events Beyond the Control of Baker & Taylor. (a) Baker & Taylor will not be liable for any failure to perform, or the delay in the performance of, any Services,), if and to the extent the failure or delay is caused, directly or indirectly, by wars, acts of public enemies, strikes, fires, floods, acts of God, or for any other act not within the reasonable control of Baker & Taylor. Baker & Taylor will not be liable for any failure to perform, or the delay in the performance of, any Services, if and to the extent the failure or delay is caused, directly or indirectly, by the failure or delay by Library. Any of the events described in the preceding two sentences are referred to in this Agreement as an Event of Force Majeure. (b) If an Event of Force Majeure occurs, Baker & Taylor will be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and if Baker & Taylor continues to use reasonable commercial efforts to recommence performance or observance whenever and to whatever extent possible without delay. 4.2 Performance Targets. Library acknowledges and agrees that the dates by which Services will be completed are target goals only and Baker & Taylor's failure to achieve any or all of them will not constitute a breach of the Agreement. 5. RESPONSIBILITIES OF LIBRARY 5.1 Selection. (a) At no additional cost to Library, prior to or after the Effective Date, Baker & Taylor may conduct a site visit to Library s facility in (library Location). The purpose of the site visit, if needed, will be for Baker & Taylor and Library to (i) develop a mutually acceptable project schedule (the Project Schedule ) pursuant to which the Services will be performed under the Agreement, and (ii) to conduct and develop profiling specifications and requirements for Units to be Supplied. In connection with the conduct and development of such profiling specifications and requirements, Library will promptly provide to Baker & Taylor all supporting documents necessary for Baker & Taylor to perform its profiling functions and to prepare the selection lists. (b) After the profiling specifications and requirements have been agreed upon between the parties, Baker & Taylor will prepare selection lists based on such specifications and requirements. (c) Library expressly acknowledges that Baker & Taylor s obligation to supply Units is subject to Library s delivery of its approval of selection lists to Baker & Taylor in accordance with the terms hereof and in accordance with the Project Schedule. Accordingly, Library will review proposed selection lists submitted to it by Baker & Taylor and will notify Baker & Taylor of its approval or disapproval of titles within such lists in accordance with the Project Schedule. Library acknowledges that Baker & Taylor will not be able to purchase Units until Library has approved the selection lists and has selected quantities of Units. Baker & Taylor will use reasonable commercial efforts, not later than the dates specified in the Project Schedule, to purchase, and perform Cataloging and Processing on, any Units on selection lists which Library approves. Further, Library acknowledges and agrees that if, between the time Baker & Taylor submits a selection list to Library and the time that Library approves the selection list, a Unit becomes unavailable for purchase for any reason whatsoever from the publisher 3

or other vendor (other than for Baker & Taylor s breach of its contractual obligations to such publisher or vendor), such unavailability will not constitute a breach by Baker & Taylor of its obligations hereunder and Baker & Taylor will have no obligation to supply such Unit to Library hereunder. In such event, Baker & Taylor promptly will notify Library of the unavailability of such Unit and Library promptly will select an alternative Unit from the selection list. 5.2 Cataloging and Processing. (a) Library may not change any Cataloging or Processing specifications set forth in the Agreement without the prior written consent of Baker & Taylor. (b) In order to assure that performance targets are achieved, Library will (i) actively participate with Baker & Taylor in performance monitoring; (ii) join with Baker & Taylor in the development of mechanisms and processes to identify errors in the Cataloging and Processing functions and promptly inform Baker & Taylor of any such errors upon discovery (and in no event more than 60 days after discovery of the same); and (iii) participate with Baker & Taylor in periodic review of, and modifications to, performance measures. 6. COOPERATION WITH BAKER & TAYLOR Library will do all that is reasonably necessary to cooperate with Baker & Taylor in the performance of Services in a timely manner as defined in the RFPs and Proposals. 7. KEY PERSONNEL 7.1 Key Baker & Taylor Personnel As of the Effective Date, Baker & Taylor's "Key Personnel" are set forth in the Proposal. Library hereby approves the assignment of these persons as Baker & Taylor's Key Personnel. Each Project Director will serve as the single point of accountability for the Services and will have day-to-day authority for undertaking customer satisfaction. 7.2 Key Library Personnel As of the Effective Date, Library s "Key Personnel" are the following persons: Nina Biddle, Library Materials Manger; Michelle Alvarado, Library Supervisor I, Kathleen Nelson, Acquisitions Librarian; Roberta Boegel, Collection Development Coordinator. Baker & Taylor hereby approves the assignment of these persons as Library s Key Personnel. Baker & Taylor hereby approves Library's assignment of [Nina Biddle] as its Project Director who will serve as the single point of accountability, and to have day-to-day authority, for project matters on behalf of Library. 8. THE SCOPE OF SERVICES 8.1 If Library reasonably determines that a deliverable under the Proposals (a Deliverable ) materially fails to comply with the written criteria established by virtue of the RFPs and Proposals with respect to the Deliverable or with any subsequent Project Specifications as may be mutually agreed in writing by duly authorized representatives of the parties (collectively, the "Acceptance Criteria"), Library promptly will so inform Baker & Taylor, describing the alleged 4

deficiencies in reasonably sufficient detail to allow Baker & Taylor to correct the same within a reasonable time period thereafter. 8.2 Within 30 days after receiving Library s notice that a Deliverable materially fails to comply with the Acceptance Criteria, Baker & Taylor either will (a) correct any deficiencies preventing acceptance thereof, or (b) develop a plan to correct such deficiencies within a period of time that is reasonable under the circumstances and diligently will proceed according to such plan until the deficiencies have been corrected. Library will not unreasonably withhold or delay its approval of corrections made by Baker & Taylor or a plan of correction submitted to it by Baker & Taylor. Upon receipt of a corrected Deliverable from Baker & Taylor, Library will have a reasonable period of time, not to exceed the originally specified acceptance period, to review the Deliverable. Subject to the provisions of Section 8.3 below, the preceding process will be repeated until acceptance of the Deliverable is achieved. 8.3 If, after two (2) repeated efforts, Baker & Taylor is unable to correct, in accordance with clause (b) above, any deficiencies preventing complete and final acceptance of a Deliverable, Library either may (1) mutually agree with Baker & Taylor on a written amendment to the Project Specifications to reflect new criteria for acceptance of a Deliverable together with an equitable adjustment to Baker & Taylor s charges to reflect such changes, or (2) terminate this Agreement.. 8.4 Any changes to the scope of the Services or to the tasks which comprise the Services may be made only by means of a writing signed by an authorized person of both Baker & Taylor and Library has designated in writing by each party. As of the date hereof, the Authorized Persons for Baker & Taylor are each of its Project Managers, and the Authorized Person for Library is the abovenamed Library Project Director. Either party from time to time may replace any of its personnel designated as an Authorized Person by delivery of a written notice of such change, signed by an Authorized Person of such party. Such notice will set forth the name, business address and telephone number of any replacement. 8.5 Any changes must include with reasonable detail the change(s) in scope and/or task, and must specify any changes in the period(s) of time within which the services will be performed (including any changes to the final completion date of all services) and/or costs of materials/services resulting from such change. 9. TERMINATION The Library may terminate the Agreement for convenience and without cause at any time upon advanced written notice of 60 days. The Library shall pay Baker &Taylor the reasonable value of Services rendered by Baker & Taylor prior to termination. The Library shall not in any manner be liable for anticipatory profits that might have been made by Baker & Taylor had the Agreement not been terminated or had Baker & Taylor completed the Services required by this Agreement. 10. LIABILITY 10.1 The parties intend that each party will be liable to the other only for Actual Damages (hereinafter defined) incurred by the non-breaching party as a result of the breaching party's failure to perform its obligations under this Agreement. As used herein, "Actual Damages" means actual, out-ofpocket expenses incurred as a result of the breaching party's failure to perform its obligations under this Agreement, but will not include indirect, consequential, incidental, or punitive damages or damages for 5

loss of business, business interruption or overhead costs. In no event will either party's liability for damages resulting from its breach of this Agreement exceed the amount payable by Library to Baker & Taylor under this Agreement. Notwithstanding any other provision to the contrary, Library preserves and does not waive any and all immunities provided by law. 10.2 Notwithstanding Section 10.1 above, except for the sole negligence or willful misconduct by Library, its officers and employees, Baker & Taylor shall defend, hold harmless and indemnify the Library, its officers and employees, and each and every one of them, from and against any and all claims, actions, damages, losses, demands and expenses including, but not limited to, actual and reasonable attorneys fees (both in-house and outside counsel) and cost of litigation, damages or liability of any nature whatsoever, for death or personal injury to any person including Baker & Taylor s employees and agents or damage or destruction of any real property or tangible personal property of either party hereto or of third parties, arising in any manner by reason of the negligent acts, errors or omissions or willful misconduct incident to or in any way connected with the performance of the Agreement by Baker & Taylor, its subcontractor or agent. Rights and remedies available to the Library under this provision are cumulative of those provided for elsewhere in this Agreement and those allowed under the law. This provision shall survive expiration or termination of this Agreement. 11. DISCLAIMER EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE PROPOSAL, THERE ARE NO EXPRESS WARRANTIES AND THERE ARE NO IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BAKER & TAYLOR, ITS AGENTS OR EMPLOYEES OR BY LIBRARY WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS PROVISION. 12. MISCELLANEOUS 12.1 All communications, notices, and the like required or given pursuant to any provision of the Agreement ("Notices") must be delivered by nationally recognized overnight courier (with provision for payment made by the sender), receipt acknowledged, or by certified mail, return receipt requested and postage prepaid. Any Notice will be deemed to have been properly made or given, if by courier, when received and, if by mail, five (5) days after deposit, postage prepaid, with the U.S. Postal Service, and when addressed as follows: If to Baker & Taylor: Baker & Taylor, Inc. 2550 West Tyvola, Suite 300 Charlotte, NC 28217 Attn.: Vice President, CLS If to Library: Sacramento Public Library 828 I Street 6

Sacramento, CA 95814 Attn: Library Materials Manager] Either party hereto may change its address by notification in writing to the other party, except that any such notification will only become effective upon actual receipt thereof. 12.3 The discounts set forth by Baker & Taylor in the Proposal vary based on the classification of book Units into general categories, some of which are determined by general marketing criteria. Baker & Taylor has utilized commercially reasonable efforts to categorize book Units for pricing purposes by considering such factors as binding, cost of acquisition, general marketing categories, publisher s discount, customer demand, returnability to publishers, and other factors. Baker & Taylor reserves the sole right to be the final determinant of the pricing category. Please note that Baker & Taylor provides a detailed invoice that identifies the publisher s current suggested list price, the discount offered, and the exact price charged for each title ordered. 12.4 The waiver or failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further right hereunder. 12.5 The parties agree that this Agreement shall be controlled by laws of the State of (California. If any of the terms or provisions of the Agreement conflict with the law under which the Agreement is to be construed or are ruled to be invalid or unenforceable, the remainder of the Agreement will not be affected and such term or provision will be deemed restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. 12.6 This Agreement, the Proposals and the RFPs constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, whether written or oral, with respect to the subject matter contained in the Agreement. No change, waiver or discharge hereof will be valid unless in writing and signed by an authorized representative of the party against which such change, waiver or discharge is sought to be enforced. 12.7 The article and section headings are for reference and convenience only and will not enter into the interpretation hereof. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written. BAKER & TAYLOR, INC., SACRAMENTO PUBLIC LIBRARY By: By: Title: Title: Date: Date: 7