HomeMy WebLinkAbout2025-06-10; City Council; Resolution 2025-121Exhibit 1 RESOLUTION NO. 2025-121
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE DOCUMENTS
NECESSARY TO APPROVE THE SIRSI CORPORATION MASTER SERVICE
AGREEMENT FOR THE SIRSIDYNIX SYMPHONY INTEGRATED LIBRARY
SYSTEM THROUGH MAY 31, 2028, FOR AN AMOUNT NOT TO EXCEED
$340,570.80 OVER A THREE-YEAR PERIOD
WHEREAS, the City of Carlsbad has an integrated library system that provides an online public
library catalog, and facilitates the management of materials and patron records for the effective
operations of the library that requires annual maintenance to support these operations; and
WHEREAS, the City of Carlsbad has used the SirsiDynix Symphony application since 2002 for its
integrated library system; and
WHEREAS, the City of Carlsbad currently purchases SirsiDynix Symphony maintenance on an
annual basis from Sirsi Corporation; and
WHEREAS, a new agreement is required to continue with the annual maintenance for an
additional three years; and
WHEREAS, the new agreement will be over $100,000 annually; and
WHEREAS, Carlsbad Municipal Code 3.28.060 – Procurement of Professional Services and
Services requires the City Council’s approval for the procurement of professional services or services
that cost more than $100,000 per agreement year; and
WHEREAS, the budget to procure the maintenance and licensing services is available in the
Information Technology Department’s fiscal year 2024-25 Operating Budget; and
WHEREAS, the funding for future years’ maintenance and licensing services will be considered
on an annual basis in the Information Technology Department’s annual budget requests.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1.That the above recitations are true and correct.
2.The proposed action is not a “project” as defined by California Environmental Quality
Act, or CEQA, Section 21065 and CEQA Guidelines Section 15378(a) and does not
require environmental review under CEQA Guidelines Section 15060(c)(2) because the
action is limited to the extension of a master service agreement for library software.
The action has no potential to cause either a direct physical change in the environment
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or a reasonably foreseeable indirect physical change in the environment.
3.That the City Manager, or designee, is authorized to execute all required documents
necessary to approve the Sirsi Corporation Master Service Agreement for SirsiDynix
Symphony integrated library system through May 31, 2028, in an amount not to exceed
$340,570.80 over a three-year period as provided in Attachment A.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City
of Carlsbad on the 10th day of June, 2025, by the following vote, to wit:
AYES: Blackburn, Bhat-Patel, Acosta, Burkholder, Shin.
NAYS: None.
ABSTAIN: None.
ABSENT: None.
______________________________________
KEITH BLACKBURN, Mayor
______________________________________
SHERRY FREISINGER, City Clerk
(SEAL)
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File: Carlsbad City Library GC#: 330040
MASTER AGREEMENT
City of Carlsbad and
SirsiDynix
1.DEFINITIONS. All capitalized terms used in this
Agreement have the meanings described on the attached
Exhibit A.
2.INTRODUCTION AND SCOPE.
2.1 Parties and Purpose. This Agreement is
entered into between SirsiDynix and City of Carlsbad
(“Customer”), effective on the Effective Date to establish
the general terms and conditions under which SirsiDynix
will provide Products and Services to Customer.
2.2 Additional Terms and Conditions. Additional
terms and conditions applicable to the purchase of specific
Products and Services may be included in Quotes. No pre-
printed or standard terms included in any purchase order
or other transactional document provided by Customer will
have any effect unless specifically accepted in writing by an
authorized SirsiDynix representative, and SirsiDynix hereby
rejects such terms.
2.3 Third-Party EULAs. Customer’s use of any
Third-Party Products may be subject to EULAs required by
the owners of such Products. Customer will comply with all
such EULAs and will sign them if requested by SirsiDynix.
2.4 Order of Precedence. To the extent any terms
or conditions of this Agreement conflict with the terms or
conditions of a Quote, the terms and conditions of this
Agreement will control, except where the Quote expressly
states an intent to supersede a specified provision of this
Agreement. To the extent any terms and conditions of this
Agreement conflict with the terms and conditions of any
EULA, the terms and conditions of the EULA will control.
3.LICENSE GRANTS, SUBSCRIPTION RIGHTS, AND
OWNERSHIP.
3.1 Customer-Hosted Software License.
3.1.1 If Customer purchases a Customer-
Hosted Software Subscription, then, subject to Customer’s
timely payment of the applicable Software Subscription
fees, SirsiDynix hereby grants to Customer a limited, non-
exclusive, non-transferable, and non-sublicensable license,
only during the term of the Subscription, to install, run, and
use the Software in the Operating Environment, solely for
Customer’s Internal Business Purposes. Customer will not
make copies of any Software, except for a reasonable
number of machine-readable copies solely for internal
backup or archival purposes. Customer will reproduce all
Intellectual Property rights notices on such copies, and
Customer will maintain accurate records of the number
and location of all copies which it will provide to SirsiDynix
upon request.
3.1.2 Unless otherwise set forth in a
Quote, Customer will not simultaneously load and operate
Software on more than one server, unless (i) Customer purchases Subscriptions for additional test servers, or (ii)
Customer requires multiple temporary installations during
a platform migration.
3.2 SaaS Access.
3.2.1 If Customer purchases a SaaS
Subscription, then, subject to Customer’s timely payment
of the applicable fees, Customer and its Users are
authorized to access and use the Saas Software during the
term of the Subscription set forth in the Quote solely for
Customer’s Internal Business Purposes. SirsiDynix will use
commercially reasonable efforts to make SaaS access
available without interruption except for scheduled
downtime events, emergency downtime events, or
internet service provider failures or delays. SirsiDynix will
use commercially reasonable efforts to schedule downtime
events outside of normal business hours. Customer
acknowledges that SaaS Subscriptions may be subject to
limitations, delays, and other problems inherent in the use
of the internet and electronic communications. SirsiDynix is
not responsible for any delays, delivery failures, or other
damage resulting from such problems.
3.2.2 Customer is responsible for
maintaining the confidentiality of all SaaS passwords and
for ensuring that each password is used only by the
authorized User. Customer is responsible for all activities
that occur under Customer's and Users’ accounts.
Customer agrees to immediately notify SirsiDynix of any
unauthorized use of Customer's or Users’ accounts or any
other breach of security known to Customer.
3.2.3 Customer understands that SaaS
communications may traverse unencrypted public internet
connections and that use of the internet provides the
opportunity for unauthorized third parties to gain access to
Customer Data. Customer will not encrypt Subscription
traffic except as may be available through the SirsiDynix
VPN solution and other web-based applications as
applicable.
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3.3 Reservation of Rights. All rights in the
Products and Services not expressly granted in this
Agreement are reserved by SirsiDynix and its third-party
providers. Customer acknowledges that: (i) all Customer-
Hosted Software is licensed (for the associated Subscription
term) and not sold; and (ii) SirsiDynix and its third-party providers retain sole and exclusive ownership and all rights,
title, and interest in, including Intellectual Property
embodied or associated with, the Software and all copies
and derivative works thereof (whether developed by
SirsiDynix, Customer or a third party).
4. CUSTOMER RESPONSIBILITIES
4.1 Unless otherwise specifically agreed in a
Quote, Customer is solely responsible for obtaining and
maintaining at its own expense all equipment, system
software, and services that may be needed to host
Customer-Hosted Software or to access SaaS Software,
including internet connections.
4.2 Customer will be solely responsible for the
accuracy, quality, integrity and legality of Customer Data
and for the means by which Customer acquires Customer
Data. Customer acknowledges and agrees that SirsiDynix
does not monitor or police the content of Customer’s or
Users’ communications or data transmitted through
Subscriptions, and that SirsiDynix will not be responsible for
the content of any such communications or transmissions.
Customer will use Subscriptions exclusively for authorized
and legal purposes, consistent with all applicable laws and
regulations. Customer agrees not to post or upload any
content or data that (a) is libelous, defamatory, obscene,
pornographic, abusive, harassing or threatening; (b)
contains viruses or other contaminating or destructive
components; (c) violates the rights of others, such as data
that infringes on any Intellectual Property rights or violates any right of privacy or publicity; or (d) otherwise violates
any applicable law. Customer further agrees not to
interfere with or disrupt networks connected to
Subscriptions, not to interfere with another customer’s use
and enjoyment of similar services and to comply with all
regulations, policies and procedures of networks
connected to Subscriptions. SirsiDynix may remove any
violating content posted or transmitted on or through
Subscriptions without notice to Customer. SirsiDynix may
suspend or terminate any User’s access to Subscriptions
upon notice if SirsiDynix reasonably determines that such
User has violated these terms and conditions.
4.2.1 Customer will use Third-Party
Products, including any Software components, solely in
conjunction with SirsiDynix Software, and Customer will
have no broader rights with respect to Third-Party Products
than it has with respect to SirsiDynix Software. SirsiDynix
may add or substitute functionally equivalent products for
any Third-Party Products in the event of unavailability,
end- of-life, or changes to Software requirements.
4.2.2 The provision of Third-Party Product
Subscriptions is subject to availability from third-party
providers, and SirsiDynix will have no liability should such
Subscriptions become unavailable for any reason or if they
are no longer available under reasonable commercial
terms.
4.3 Updates and Support.
4.3.1 SirsiDynix will provide Updates and
Support during the Subscription Term as described in the
applicable Quote. With respect to Software that is a Third-
Party Product, SirsiDynix’s obligation respecting Updates
and Support is limited to using commercially reasonable
efforts to provide information regarding how to obtain
them from the providers of such Third-Party Products.
4.3.2 Updates will be provided when made
generally available by SirsiDynix. SirsiDynix is under no
obligation to develop any Updates or new functionality.
4.3.3 SirsiDynix is under no obligation to
provide Support with respect to: (i) Products that have
been altered or modified by anyone other than SirsiDynix
or its licensors; (ii) a Software release for which Support has
been discontinued; (iii) Software used other than in
accordance with the Documentation or other than on the
Operating Environment; (iv) discrepancies that do not
significantly impair or affect the operation of a Product; or
(v) any products not supplied by SirsiDynix.
4.3.4 For avoidance of doubt, Updates are
minor or maintenance releases to standard Products,
excluding custom development or customizations whether
such customizations are performed by SirsiDynix, by
Customer or by a third party. SirsiDynix reserves the right
to charge Customer for any reintegration work required to
make customizations compatible with new Product
releases.
4.3.5 If purchased, premium levels of
Support must be purchased for all Products purchased by
Customer. Customer may not purchase or renew Support
for a subset of Products only.
4.3.6 If an Error is corrected or is not
present in a more current release of any Software,
SirsiDynix will have no obligation to correct such Error in
prior releases of the Software.
4.3.7 Fees paid for Support do not include
implementation, training, or other Professional Services.
4.3.8 Customer is responsible to ensure
that all Users receive initial training sufficient to enable
them to effectively use Products. Failure to do so may result
in additional Support fees, at SirsiDynix’s discretion, if
Support requests are deemed excessive due to insufficient
training.
4.3.9 For SaaS Subscriptions, SirsiDynix is
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responsible for the implementation of Updates and will no
longer provide access to any previous release after the date
SirsiDynix migrates to a new Product Update in SirsiDynix’s hosted environment.
4.4 Hardware and Hardware Support.
4.4.1 Title to Hardware identified in a
Quote, if any, will pass to Customer on SirsiDynix’s
placement of the Hardware with a common carrier or
licensed trucking company, which will constitute delivery to
Customer. Thereafter Customer will be responsible for risks
of loss or damage, except for loss or damage caused by
SirsiDynix in the process of installation.
4.4.2 SirsiDynix does not provide Support
for Hardware unless Customer purchases any available
Support associated with such Hardware, which may be
provided through a third party and subject to that third
party’s standard terms, conditions, and warranties, if any.
4.5 Access Metrics. Customer may not use
Products in excess of the Access Metrics specified in the
applicable Quote. If actual usage exceeds the authorized
quantities, additional Access Metrics must be purchased at
the pricing in effect when purchased, prorated for the
remainder of the Subscription term. The Subscription term
for additional Access Metrics purchased will terminate on
the same date as the Subscription term for pre-existing
Access Metrics. Prices are based on Access Metrics
purchased and not actual usage. The Access Metrics
quantities provided in each Quote are a minimum amount
to which Customer has committed for the Subscription
term, and there will be no fee adjustments or refunds for
any lesser usage.
4.6 Restrictions. Unless specifically permitted or
licensed in writing by SirsiDynix, Customer will not itself, or
through any affiliate, employee, consultant, contractor,
agent or other third party: (i) sell, resell, distribute, host,
lease, rent, license or sublicense, in whole or in part, the Products; (ii) decompile, disassemble, modify, translate,
reverse engineer or otherwise attempt to derive source
code, algorithms, tags, specifications, architecture,
structure or other elements of the Products, including the
license keys, in whole or in part, for competitive purposes
or otherwise; (iii) write or develop any derivative works
based on the Products; (iv) modify, adapt, translate or
otherwise make any changes to the Products or any part
thereof; (v) use the Products to provide processing services
to third parties, or otherwise use the same on a ‘service
bureau’ basis; (vi) disclose or publish, without SirsiDynix’s
prior written consent, performance or capacity statistics or
the results of any benchmark test performed on the
Products; or (vii) otherwise use or copy the Products
except as expressly permitted herein.
4.7 Customer Data. Customer Data.
SirsiDynix disclaims ownership of all Customer Data,
including, without limitation, all bibliographic, authority,
item, fine, patron, and other data loaded to, or entered into
Customer’s database or supplied to SirsiDynix by Customer. Upon expiration of this Agreement, SirsiDynix’s sole
obligation to Customer with respect to Customer Data
stored in either a Horizon or Symphony ILS will be, upon
Customer’s written request, to extract the entire ILS data
set in a database backup file that can be restored to the
corresponding database and to store the resulting file on
Customer’s server (or on a hosted SFTP server for SaaS
Subscription customers). Customer data must be securely
deleted consistent with SirsiDynix’s normal backup deletion
protocols after Agreement termination. Secure deletion methods include, but are not limited to, data wiping,
degaussing, and physical destruction of storage media.
Such obligation is further limited only to databases supplied
by SirsiDynix to Customer. Note that Symphony ILS
customers can extract authority and bibliographic records
themselves (including items) in MARC21 format using
utilities in the Symphony ILS. SirsiDynix may offer additional
extraction and exit services at additional cost.
4.8 License Grant by Customer. Customer hereby
grants to SirsiDynix a non-exclusive, royalty-free license, to
use software, Customer Data or other material of Customer
and a right to access Customer’s systems and equipment
only as reasonably necessary to perform its obligations
under this Agreement and Quotes.
5. SERVICES.
5.1 Services are provided as described in Quotes.
SirsiDynix will be responsible for securing, managing,
scheduling, coordinating and supervising SirsiDynix
personnel, including its subcontractors, in performing
Services. Any change to the scope of Services must be in
writing signed by both parties. Once executed by both
parties, a change will become a part of the applicable
Quote. SirsiDynix agrees Customer processes changes in
price and scope of Services as an amendment to the
Agreement for records management purposes, but
Customer will not change material terms aside from price
and changes in Services.
5.2 Customer acknowledges and agrees that
SirsiDynix’s performance is dependent on Customer’s
timely and effective performance of its responsibilities
hereunder and on Customer’s timely decisions and
approvals in connection with Services. SirsiDynix will be
entitled to rely on all decisions and approvals of Customer. Customer Data must be provided to SirsiDynix in a format
reasonably approved by SirsiDynix or additional charges
will apply. Customer will be responsible for providing
SirsiDynix with secured access to Customer’s systems as
required to perform its obligations hereunder. SirsiDynix
alone will determine whether such access is sufficient for
the performance of Services.
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6. FINANCIAL TERMS
6.1 Fees and Payment Terms.
6.1.1 Customer will pay the amounts set
forth in Quotes.. Invoices will become past due 30 days after
the invoice date. If Customer fails to make payments of any
amount due under this Agreement, SirsiDynix will be entitled to suspend its performance upon 10 days written
notice to Customer.
6.1.2 Unless expressly provided otherwise
in writing, amounts paid or payable for Products are not
contingent upon SirsiDynix’s performance of any Services.
6.1.3 Except as specifically set forth in this
Agreement or the applicable Quote, all Quotes are non-
cancellable, in whole or in part, and all amounts paid by
Customer to SirsiDynix are non-refundable unless due to
SirsiDynix’s breach of the Agreement and non- transferable.
6.2 Taxes. Customer agrees to pay any sales tax,
use tax and similar taxes that SirsiDynix is required to
collect from Customer by any taxing authority in connection
with this Agreement. If Customer is tax-exempt, Customer
agrees to send SirsiDynix a copy of its tax-exempt certificate
upon execution of this Agreement.
6.3 No Contingencies. Customer agrees that its
purchases hereunder are neither contingent on the
delivery of any future functionality or features nor
dependent on any oral or written statements made by
SirsiDynix regarding future functionality or features.
7. CONFIDENTIALITY.
7.1 Non-Disclosure. Each party will protect the
other party’s Confidential Information from unauthorized
disclosure and will use the same degree of care that it uses
to protect its own Confidential Information, but in no event
less than a reasonable degree of care. Neither party will use
Confidential Information of the other party for purposes
other than those necessary to directly further the purposes
of this Agreement. Neither party will disclose to third
parties any Confidential Information of the other party
without the prior written consent of the other party.
7.2 Exceptions. The obligations set forth in
Section 7.1 will not apply to Confidential Information to the
extent that the receiving party can establish that such
information (i) is or becomes generally known or available
to the public through no fault of the receiving party; (ii) was
in the receiving party’s possession before receipt from the
disclosing party; (iii) is lawfully obtained from a third party
who has the right to make such disclosure on a non-
confidential basis; (iv) has been independently developed by a party without reference to any
Confidential Information of the other party; or (v) is
required to be disclosed by law. The parties
acknowledge that Customer is subject to the California
Public Records Act (California Government Code § 6250
et seq.) and further acknowledge that such legislation may
supersede the confidentiality provisions of this section as
they apply to Customer.
7.3 Aggregated information. SirsiDynix will have
the right to aggregate and retain information for purposes
of analyzing and improving Product performance and for
other similar purposes, provided that such aggregated
information does not include any Confidential Information
of Customer or any Personally Identifiable Information.
8. DATA PRIVACY. Customer represents and warrants
that before providing Personally Identifiable Information to
SirsiDynix or its agents or using any Products or Services to
store or process Personally Identifiable Information, it will
comply with all laws and regulations applicable to the
information, including providing notices to, or obtaining
consent from, individuals to allow processing of their
Personally Identifiable Information as contemplated by this
Agreement and applicable Quotes. SirsiDynix will comply
with all laws and regulations applicable to its processing of
Personally Identifiable Information in connection with this
Agreement. If applicable laws or regulations require the
parties to enter into a data processing agreement, they will
execute SirsiDynix’s form(s) of agreement applicable under
the circumstances.
9. INDEMNIFICATION
9.1 By SirsiDynix.
9.1.1 SirsiDynix will defend or settle, at its
option and expense, any Claim against Customer alleging
that a Product infringes a third party’s registered patent,
copyright, or registered trademark or any other U.S.
intellectual property right. SirsiDynix will indemnify and
hold harmless Customer against all damages, reasonable
attorney’s fees, and costs finally awarded which are
attributable exclusively to such Claim. SirsiDynix’s
obligations under this section 9.1 are contingent upon: (a)
Customer providing SirsiDynix with prompt written notice of the Claim; (b) Customer providing reasonable
cooperation to SirsiDynix in the defense or settlement of
the Claim at SirsiDynix’s expense; and (c) SirsiDynix having
sole authority to defend or settle the Claim.
9.1.2 Notwithstanding the foregoing,
SirsiDynix has no obligation to the extent any Claim results
from: (i) Customer having modified a Product or having
used a release other than the most current unaltered
release of such Product provided that such current
unaltered release was provided free of cost, if the
infringement would have been avoided by the use of such
current unaltered release, (ii) Third-Party Products, or (iii)
the combination, operation or use of SirsiDynix Software
with software not provided by SirsiDynix (excluding third-
party integration approved by SirsiDynix).
9.1.3 If it is finally adjudicated that the use of a
Product in accordance with this Agreement infringes any
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registered patent, copyright, or registered trademark,
SirsiDynix will, at its option: (i) procure for Customer the
right to continue using the infringing Product; (ii) replace or modify the same so it becomes non-infringing but
otherwise does not materially alter the service; or (iii)
terminate this Agreement and refund any prorated prepaid
fees. THIS SECTION 9.1 STATES SIRSIDYNIX’S ENTIRE
OBLIGATION TO CUSTOMER AND CUSTOMER’S SOLE
REMEDY FOR ANY CLAIM OF INFRINGEMENT.
9.2 By Customer. To the extent allowed by law,
Customer will defend or settle, at its option and expense,
any Claim brought against SirsiDynix by a third party arising
out of or in connection with: (i) any claim that Customer Data infringes on the Intellectual Property rights of a third
party. Customer’s obligations under this section 9.2 are
contingent upon: (a) SirsiDynix providing Customer with
prompt written notice of the Claim; (b) SirsiDynix providing
reasonable cooperation to Customer in the defense and
settlement of the Claim; and (c) Customer having sole
authority to defend or settle the Claim.
10. WARRANTIES; REMEDIES; DISCLAIMERS
10.1 Customer-Hosted Software. SirsiDynix
warrants that, for a period of 90 days from the Go Live Date,
Customer-Hosted Software, when used in the Operating
Environment and in accordance with the applicable
Documentation, will operate in all material respects in
conformity with the Documentation. The foregoing
warranty does not apply to any Customer-Hosted Software
that is a Third-Party Product.
10.2 SaaS Software. SirsiDynix warrants that SaaS
Software, when used in accordance with the applicable
Documentation, will operate in all material respects in
conformity with the Documentation. The foregoing
warranty does not apply to any SaaS Software that is a
Third-Party Product.
10.3 Remedies. If Customer-Hosted Software or
SaaS Software (other than Third-Party Products) does not
perform as warranted in Sections 10.1 or 10.2, as
applicable, Customer will promptly notify SirsiDynix in
writing and, as Customer's exclusive remedy, SirsiDynix will
use commercially reasonable efforts to correct reported
Errors. Provided that such Errors are determined by
SirsiDynix to be SirsiDynix’s responsibility, SirsiDynix will, at
its sole option, within 90 days of its receipt of Customer's
written notice (i) correct such Errors; (ii) provide Customer
with a plan reasonably acceptable to Customer for
correcting the Errors; or (iii) if neither of the foregoing
remedies can be accomplished with reasonable
commercial efforts by SirsiDynix, SirsiDynix or
Customer may terminate the affected SirsiDynix
Software Subscription and Customer will be entitled to
a prorated refund of any prepaid fees. The preceding
remedy will constitute SirsiDynix’s entire liability and
Customer's exclusive remedy under the warranties set forth
in Sections
10.1 and 10.2.
10.4 Exclusions. SirsiDynix is not responsible
for any claimed breach of any warranty caused by (i)
modifications made to Software by anyone other than
SirsiDynix, (ii) the combination, operation or use of
Software with any items that are not part of the Operating
Environment, (iii) Customer’s failure to use any new or
corrected releases of Software made available by SirsiDynix
provided free of cost, (iv) SirsiDynix’s adherence to
Customer’s specifications or instructions, or (v) Customer
deviating from the operating procedures described in
Documentation.
10.5 Third-Party Products. SirsiDynix warrants
that it is an authorized distributor of Third-Party Products
and that with the execution of this Agreement, the
applicable Quote (if any) and the applicable EULA (if any),
Customer will have the right to use such products in
accordance with such documents. SIRSIDYNIX MAKES NO
OTHER WARRANTY WITH RESPECT TO ANY THIRD-PARTY
PRODUCTS. CUSTOMER’S SOLE REMEDY WITH RESPECT TO
THIRD-PARTY PRODUCTS WILL BE PURSUANT TO THE
ORIGINAL LICENSORS’ OR OTHER SUPPLIERS’ WARRANTY,
IF ANY, TO SIRSIDYNIX, TO THE EXTENT PERMITTED BY THE
ORIGINAL LICENSOR OR SUPPLIER.
THIRD-PARTY PRODUCTS ARE MADE AVAILABLE BY
SIRSIDYNIX ON AN "AS IS, AS AVAILABLE" BASIS.
10.6 Hardware. SirsiDynix warrants that it is an
authorized distributor of the Hardware. Hardware
warranties will be governed by the manufacturer’s
warranty. SIRSIDYNIX MAKES NO WARRANTIES OF ANY
KIND WITH RESPECT TO HARDWARE OR HARDWARE
MAINTENANCE. CUSTOMER’S SOLE REMEDY WITH
RESPECT TO HARDWARE OR HARDWARE MAINTENANCE
WILL BE PURSUANT TO THE MANUFACTURER’S WARRANTY
APPLICABLE TO CUSTOMER, IF ANY.
10.7 Disclaimers. THE WARRANTIES SET FORTH IN
THIS AGREEMENT ARE IN LIEU OF, AND SIRSIDYNIX, ITS
LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE
MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY
THAT ANY PRODUCT IS ERROR-FREE OR WILL OPERATE
WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE
CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
OR NON-INFRINGEMENT, (iii) ANY WARRANTY THAT
THIRD-PARTY PRODUCTS WILL BE ACCURATE, RELIABLE OR
ERROR-FREE AND (iv) ANY AND ALL IMPLIED WARRANTIES
ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT
OR INFORMATION GIVEN BY SIRSIDYNIX, ITS AFFILIATES,
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CONTRACTORS OR EMPLOYEES WILL CREATE ANY
WARRANTY OR CHANGE ANY WARRANTY PROVIDED
HEREIN. CUSTOMER ACKNOWLEDGES THAT USE OF, OR CONNECTION TO, THE INTERNET PROVIDES THE
OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO
CIRCUMVENT SECURITY MEASURES AND TO GAIN
UNAUTHORIZED ACCESS TO PRODUCTS AND CUSTOMER
DATA.
11. EXCLUSION AND LIMITATION OF LIABILITY
11.1 TO THE FULLEST EXTENT PERMITTED BY LAW,
SIRSIDYNIX’S TOTAL LIABILITY (INCLUDING ATTORNEYS
FEES) TO CUSTOMER FOR ANY CLAIM BY CUSTOMER
UNDER THIS AGREEMENT, EXCLUDING LIABILITY
PURSUANT TO SECTION 9.1 (Indemnification), WILL BE
LIMITED TO THE FEES PAID BY CUSTOMER FOR PRODUCTS
AND SERVICES DURING THE 24 MONTHS PRIOR TO THE
DATE ON WHICH THE EVENTS LEADING TO THE CLAIM FIRST
OCCURED.
11.2 EXCEPT SECTION 9.1 (Indemnification), IN NO
EVENT WILL SIRSIDYNIX BE LIABLE TO CUSTOMER FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY PUNITIVE,
TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE,
PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER
ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH
OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT SIRSIDYNIX HAS PREVIOUSLY BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. TERM AND TERMINATION
12.1 Term of this Master Agreement. The term of
this Agreement (the “Term”) will commence on the
Effective Date and will continue in full force and effect until
the expiration or termination of all Quotes, unless
terminated earlier as provided herein, but in no event
longer than three years.
12.2 Terms of Subscriptions. The initial term of a
Subscription begins on its Go Live Date and expires after the
number of years specified in the applicable Quote.
12.3 Termination.
12.3.1 Either party may terminate this
Agreement immediately upon written notice if the
other party commits a non-remediable material breach
or if the other party fails to cure any remediable
material breach or to provide a written plan of cure
acceptable to the non- breaching party within 30 days
of being notified in writing of such breach. Where the
non-breaching party has a right to terminate this
Agreement, it may at its discretion terminate the
Master Agreement or only Quote(s) to which the breach
applies. Quotes that are not terminated will continue
in full force and effect under the terms of this
Agreement.
12.3.2 Upon termination of this Agreement,
Customer agrees to certify that it has returned or destroyed
all copies of the Documentation and SirsiDynix’s
Confidential Information, and Customer acknowledges that
its rights to use the same will them be relinquished.
SirsiDynix agrees to certify that it has destroyed all
customer Data, including but not limited to Confidential
Information, consistent with SirsiDynix’s normal backup
deletion protocols.
12.3.3 Non-Appropriation of Funds.
Customer is a public entity that cannot commit future funds beyond the current fiscal year, and therefore, cannot
guarantee that the legislative body of Customer will
appropriate the necessary funds to pay for this Master
Agreement beyond the current fiscal year. If for any given
fiscal year funds are not appropriated to continue paying
for the Products, the Master Agreement will be terminated
at no penalty to Customer, upon SirsiDynix’s receipt of
written notice. Such notice will not relieve Customer of
payments then owing up to the date of termination.
12.4 Suspension. SirsiDynix will be entitled to
suspend any or all performance hereunder upon 10 days
written notice to Customer in the event Customer is in
breach of this Agreement and has failed to cure such breach
within the 30-day cure period set forth in Section 12.3.1.
Further, SirsiDynix may suspend Customer’s use of, and access to, all or a portion of any Subscriptions if, and so long
as, in SirsiDynix’s sole judgment, Customer creates a
security risk that may interfere with the proper continued
provision of services or the operation of SirsiDynix’s
network or systems. SirsiDynix may impose an additional
charge to reinstate service following such suspension.
13. GENERAL PROVISIONS
13.1 Force Majeure. The parties will exercise every
reasonable effort to meet their respective obligations hereunder but will not be liable for delays resulting from
strike, fire, flood, earthquake, power outages,
governmental acts or orders or restrictions, failure of
suppliers, or any other circumstance where failure to
perform is beyond the reasonable control of and is not
caused by the negligence of the non-performing Party and
as long as such Party is diligently attempting to work
around the cause of the delay to minimize the impact of the
event. Customer may terminate this Agreement if
SirsiDynix cannot resume performance within thirty (30)
days and SirsiDynix will only be entitled to payment for
services rendered up to the termination date.
13.2 Assignment. SirsiDynix may assign this
Agreement and its rights and obligations hereunder to its parent company or other affiliated company, to a successor
by operation of law, or to another entity pursuant to the
sale or transfer of all or substantially all its stock or assets
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but only under the same terms and conditions of this
Agreement.
Neither party may otherwise assign or transfer this
Agreement without the prior written consent of the other
party, which will not be unreasonably delayed or withheld.
13.3 Cooperation. Customer agrees to provide
assistance, information, equipment, data, a suitable work
environment, timely access, and resources reasonably
necessary to enable SirsiDynix to perform all installation,
implementation, and Services required to fulfill its
obligations hereunder including but not limited to ensuring
SirsiDynix has remote access. Failure to grant such
cooperation will allow SirsiDynix to deem the Product in
question to be fully accepted and delivered. If any delay in
implementing Products caused by Customer results in
SirsiDynix incurring additional expenses, Customer will pay
to SirsiDynix the amount of such additional expenses. If any
act or omission of Customer delays SirsiDynix’s ability to
implement or deliver any Software, Subscription, or Service
ordered by Customer for more than one hundred twenty
(120) days following the later of (i) the date of the Quote
governing such items or (ii) the agreed Go Live Date (if any)
for such items as set forth in the governing Quote, then
SirsiDynix may, in its sole discretion, cancel the delivery and
implementation of such items. In such cases, SirsiDynix will
not refund any amounts prepaid by Customer for such
items, and SirsiDynix’s obligations respecting the Software,
Subscription or Services will be deemed completed.
13.4 Delegation. SirsiDynix may subcontract or
delegate any Services under any Quote to any third party
without Customer’s prior written consent, provided
however that SirsiDynix will remain responsible for the
performance of any such subcontractors and subject to
confidentiality obligations no less stringent than this
Agreement.
13.5 Notice of U.S. Government Restricted Rights.
The Software and its documentation are "Commercial
items," "Commercial computer software" and "Computer
software documentation" as defined by the Federal
Acquisition Regulations (“FAR”) and Defense Federal
Acquisition Regulations Supplement (“DFARS”). Pursuant
to FAR 12.211, FAR 12.212, DFARS, 227.7202-1 through
227.7202-4, and their successors. The U.S. Government
acquires the Software and its documentation subject to the
terms of this Agreement.
13.6 Export. Customer will comply fully with all
relevant export laws and regulations of the United States to
ensure that Software is not exported, directly or indirectly,
in violation of United States law.
13.7 Compliance With Laws. Notwithstanding any
clause to the contrary, SirsiDynix will at all times keep fully
informed, observe and comply with all laws, ordinances,
and regulations which in any manner affect the
performance of the services, and will be responsible for the
compliance of its services with all applicable laws, ordinances
and regulations.
13.8 Non-solicitation. [Intentionally omitted]
13.9 Notices. Any notice required or permitted to
be sent under this Agreement will be delivered by hand, by overnight courier, or by registered mail, return receipt
requested, to the address of the parties set forth in this
Agreement or to such other address of a party notified to
the other party in writing in accordance with this
subsection. For the City of Carlsbad notices will go to as
follows: IT Director, IT Department, 1635 Faraday Ave,
Carlsbad, CA 92008.
13.10 Relationship. The parties to this Agreement
are independent contractors. Neither party is an agent,
representative, or partner of the other party.
13.11 Invalidity. 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.
13.12 Survival. Expiration or termination of this
Agreement for any reason will not relieve either party of
any right or obligation accruing prior to such expiration or
termination. Further, any obligation, or liability of either
party under this Agreement or under any ancillary
agreement executed in connection herewith, or any
subsequent addenda hereto or thereto that by its nature
and intent remains valid after termination or expiration will
survive any termination or expiration of this Agreement.
13.13 No Waiver. Any waiver of the provisions of
this Agreement or of a party’s rights or remedies hereunder
must be in writing to be effective. Any such waiver will
constitute a waiver only with respect to the specific matter
described therein and will in no way impair the rights of the
party granting such waiver in any other respect or at any
other time. The waiver by either of the parties of a breach
or of a default under any of the provisions of this
Agreement will not be construed as a waiver of any other
breach or default of a similar nature, or as a waiver of any
of such provisions, rights, or privileges. The rights and
remedies herein provided are cumulative and none is
exclusive of any other, or of any rights or remedies that any
party may otherwise have at law or in equity. Failure,
neglect, or delay by a party to enforce the provisions of this
Agreement or its rights or remedies at any time, will not be
construed or deemed to be a waiver of such party’s rights
under this Agreement and will not in any way affect the
validity of the whole or any part of this Agreement or
prejudice such party’s right to take subsequent action.
13.14 Entire Agreement. This Agreement
constitutes the parties’ entire agreement relating to its
subject matter and it cancels and supersedes all prior or
contemporaneous oral or written communications,
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requests for proposals, proposals, conditions,
representations, warranties, and other
communications between the parties relating to its subject matter as well as any prior contractual
agreements between the parties respecting such
subject matter. No modification to this
Agreement will be binding unless in writing and signed by
an authorized representative of each party.
13.15 Governing Law and Venue; Attorneys’ Fees.
This Agreement will be governed by and construed in
accordance with the laws of the State of California without
giving effect to its principles of conflict of laws. Unless both
parties otherwise agree in writing, the exclusive venue and
jurisdiction for any controversy, dispute or claim arising out
of or relating to this Agreement will be in the County of San
Diego, State of California , and the parties waive all
provisions of law providing for a change of venue in these
proceedings to any other county. Each party submits to the
exclusive venue and jurisdiction of such courts, agrees that
it will not bring any suit or judicial proceeding in any forum other than such courts, and agrees not to assert any
objection that it may have to the venue or jurisdiction of
such courts.
13.16 Application of Laws. The parties agree that
this Agreement is not a contract for the sale of goods;
therefore, this Agreement will not be governed by any
codification of Article 2 or 2A of the Uniform Commercial
Code, or by the United Nations Convention on Contracts for
the International Sale of Goods.
13.17 Counterparts. This Agreement and all Quotes
may be executed in one or more counterparts, each of
which will constitute an enforceable original, and facsimile,
electronic or pdf scanned copies of signatures will be as
effective and binding as original signatures.
13.18 Headings and Drafting. The headings in this
Agreement will not be used to construe or interpret this
Agreement. This Agreement will not be construed in favor
of or against a party based on a party’s drafting of the
document or any modifications hereof.
14.IT Addendum
Exhibit B – IT Addendum is hereby incorporated into the
Agreement.
15.City of Carlsbad Insurance Requirements. Exhibit C-City of Carlsbad Insurance Requirements is hereby
incorporated into the agreement.
************************************************************
City of Carlsbad
1635 Faraday Avenue
Carlsbad
California
92008
United States
Sirsi Corporation
3300 N. Ashton Blvd. – Suite 500
Lehi, UT 84043
Sign: Sign:
Print Name: Print Name:
Title: Title:
Date: Date:
APPROVED AS TO FORM: ATTEST:
CINDIE K. McMAHON, City Attorney SHERRY FREISINGER, City Clerk
BY: _____________________________ By:____________________________ Deputy City Attorney Morgen Fry, Assistant City Clerk
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Mike Nehren
6/4/2025
Executive Vice President
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Geoff Patnoe
6/17/25
City Manager
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Exhibit A - DEFINITIONS
“Access Metrics” means limits on Product usage as set
forth in a Quote such as limits on titles, circulation, Users,
students, seats, and reports.
“Agreement“ means this Master Agreement, including its
exhibits and any other attachments and Quotes
incorporated by reference.
“Claim” means all claims, damages, liabilities, costs, losses,
and expenses (including reasonable attorneys’ fees and all
related costs and expenses) arising from or relating to any
suit, proceeding, demand, or action brought by a third party
against an indemnified party.
“Confidential Information” means information of a party
including but not limited Personally Identifiable
Information, trade secrets, Software, source code, object
code, specifications, and results of testing and
benchmarking of the Products or Services, Product
roadmaps, and information relating to or embodied in
Software or Documentation, including but not limited to
information designated as confidential in writing and
information which ought to be reasonably considered
confidential and proprietary to the disclosing party.
Confidential Information does not include the fact that
Customer uses Products.
“Content” means any information, data, text, music, sound,
photographs, graphics, video messages or other material
that Customer receives through a Subscription.
“Credentials” means the authentication information, such
as passwords and API keys, necessary for Subscriber to
access and interact with the Web Services and the Test
Platform.
“Customer” is defined in Section 2.1.
“Customer Data” means any information provided by
Customer or by Customer’s Users to SirsiDynix under this
Agreement. Customer Data does not include data
aggregated by SirsiDynix that does not include any
Confidential Information of Customer or any Personally
Identifiable Information.
“Customer-Hosted Software” means Software hosted by
Customer on its own servers or on servers provided by third
parties contracted by Customer.
“Documentation” means the user instructions, release
notes, manuals, and on-line help files regarding the use of
Products.
“Effective Date” means the date on which the last party to
sign this Agreement does so.
“Error” means a material failure of a Product to conform to
its functional specifications as described in the
Documentation.
“EULA” means the end user license agreement that
accompanies a Third-Party Product and governs the use of
the Third-Party Product by Customer.
“Go Live Date” means the date on which Products are
substantially ready for operational use for normal daily
business, as documented by the Parties.
“Hardware” means physical hardware and equipment
manufactured by third-party providers and sold to Customers by SirsiDynix.
“Intellectual Property” means (i) copyrights and other
rights associated with works of authorship, (ii) trade secrets
and other confidential information; (iii) patents, patent
disclosures and all rights in inventions (whether patentable
or not); (iv) trademarks, trade names, Internet domain
names, and registrations and applications for the
registration thereof together with all of the goodwill
associated therewith; (v) all other intellectual and industrial
property rights of every kind and nature throughout the world and however designated, whether arising by
operation of law, contract, license, or otherwise; and (vi) all
registrations, applications, renewals, extensions,
continuations, divisions, or reissues thereof now or
hereafter in effect.
“Internal Business Purposes” means purposes directly
related to Customer’s own internal operations and
Customer’s provision of products and services to its own
end-user customers and patrons, but excludes sharing,
reselling, or otherwise making Products or Services
accessible to organizations who are not parties to the
Agreement or who are not otherwise made beneficiaries of
the Agreement by its terms.
“Operating Environment” means the SirsiDynix-
recommended hardware, operating system, middleware,
database products and other software with which the
Software will operate.
“Personally Identifiable Information” means information
relating to natural persons to the extent such information
is of a type protected by laws or regulations applicable to
the parties’ collection and processing thereof.
“Professional Services” means data conversion, Product
implementation, site planning, configuration, integration and
deployment of Software or Subscriptions, training, project
management and other consulting services.
“Product(s)” means Software, Content, and Hardware,
including associated Documentation provided by SirsiDynix
to Customer under this Agreement.
“Quote” means any document executed by the parties,
regardless of designation, that states that it is governed by
this Agreement and that describes order-specific
information, such as, without limitation, Product and
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Service descriptions, Access Metrics, fees, statements of
work, exhibits and milestones.
“ SaaS” means Software as a service hosted by SirsiDynix or
its providers that Customer and Users may access via
remote internet connections.
“Services” means those services provided or arranged by
SirsiDynix under this Agreement including but not limited
to Professional Services and Support.
“SirisDynix” means Sirsi Corporation dba SirsiDynix.
“SirsiDynix Software” means Software that is owned by
SirsiDynix and provided to Customer under this Agreement.
“Software” means computer software in machine-readable
object code (not source code), including SaaS software,
together with the Documentation for such software, and
any Updates thereto provided by SirsiDynix to Customer
under this Agreement.
“Subscription” means SirsiDynix’s provision of Products
and Services to Customer and Customer’s Users on a
subscription basis. Subscriptions are limited to, and
governed by, the Access Metrics, Subscription Term and
other parameters set forth in the applicable Quote. A
Subscription is not itself a license grant with respect to any
Software or Content.
“Support” means the support provided by SirsiDynix for
SirsiDynix Software at base or premium levels as described
in applicable Quotes and in accordance with SirsiDynix’s
Support policies in effect at the time the Support is
provided, which may be modified from time-to-time by
SirsiDynix in its sole discretion.
“Term” is defined in Section 12.1.
“Third-Party Products” means Products sourced from a
party other than SirsiDynix.
“Third-Party Services” means Services sourced from a
party other than SirsiDynix.
“Updates” means the Error corrections, releases, updates,
modifications and enhancements to Products that
SirsiDynix makes generally available to its customers.
Updates exclude new Products, modules, platform support
or functionality for which SirsiDynix charges a separate fee.
“Users” means Customer’s employees, customers or
patrons who have been authorized by Customer to use
Products. Each User will be one person; usernames and
passwords cannot be shared or used by more than one
person.
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LTA Renewal Quote: 33004020250407SG
Carlsbad City Library
Item Number Item Description Serial Number Qty Coverage Effective Dates
From To EOL Date Year 1 Year 2 Year 3
10774 SirsiDynix Symphony SaaS Unicode Server Extension 1 1-Jun - 31-May
11440 SirsiDynix Symphony SaaS Hosting Fee 1 1-Jun - 31-May
10755 SirsiDynix Symphony SaaS Core 1 1-Jun - 31-May
10773 SirsiDynix Symphony SaaS Test System 1 1-Jun - 31-May
11217 SirsiDynix Symphony SaaS SmartPORT, Unlimited Users 1 1-Jun - 31-May
10775 SirsiDynix Symphony SaaS Unicode Server Extension Test System 1 1-Jun - 31-May
10779 SaaS SSL Security Certificate Subscription 1 1-Jun - 31-May
11543 SirsiDynix Symphony SaaS 9xx, Per User 1 1-Jun - 31-May
10761 SirsiDynix Symphony SaaS Acquisitions 1 1-Jun - 31-May
10765 SirsiDynix Symphony SaaS Electronic Data Interchange (EDI) 1 1-Jun - 31-May
10766 SirsiDynix Symphony SaaS Materials Booking 1 1-Jun - 31-May
10767 SirsiDynix Symphony SaaS OutReach 1 1-Jun - 31-May
13710 SirsiDynix SymphonyWeb SaaS User, Annual Subscription 30 1-Jun - 31-May
10771 SirsiDynix Symphony SaaS Serials 1 1-Jun - 31-May
10777 SirsiDynix Symphony SaaS Universal SIP2 1 1-Jun - 31-May
10763 SirsiDynix Symphony SaaS Debt Collection Agency Interface 1 1-Jun - 31-May
13184 BLUEcloud Analytics, Annual Subscription 1 1-Jun - 31-May
14198 Platinum Services - Web Services Gateway for 3rd Party Apps - included with P 1 1-Jun - 31-May
13181 Platinum Services - Web Services SDK for Libraries Internal Use - included wit 1 1-Jun - 31-May
13182 SirsiDynix Web Services SDK for Libraries Internal Use, Annual Subscription 1 1-Jun - 31-May
13149 BLUEcloud MobileCirc, Annual Subscription 1 1-Jun - 31-May
12855 SirsiDynix Enterprise, SaaS Annual Subscription 1 1-Jun - 31-May
14016 SirsiDynix eRC Connector for OverDrive Magazines, Annual Subscription 1 1-Jun - 31-May
13040 SirsiDynix eResource Central Gateway Services - Annual Subscription 1 1-Jun - 31-May
13135 SirsiDynix eRC Connector for Baker and Taylor - Annual Subscription 1 1-Jun - 31-May
13137 SirsiDynix eRC Connector for OverDrive - Annual Subscription 1 1-Jun - 31-May
12936 SirsiDynix SMS Notification for Symphony SaaS, Annual Subscription - 100K M 1 1-Jun - 31-May
14220 Syndetics Unbound Base Package, Annual Subscription 1 1-Jun - 31-May
13966 SirsiDynix Symphony Data Control, Annual Subscription [Data Control Package 1 1-Jun - 31-May
12442 Platinum Services Package - Premier 1 1-Jun - 31-May
All prices are in U.S. Dollars and are
exclusive of taxes unless otherwise noted. Total $ 106,038.65 $ 113,355.32 $ 121,176.83
*****Due to changes in sales tax laws, we are requesting updated tax exemption certificates from all customers. Tax may be added to your
invoice even though you are exempt if we do not receive the exemption
This quote is based on a 6.9% uplift and is dependent upon the signing of a 3
year Long Term Agreement. SirsiDynix reserves the right to adjust pricing for
Third Party/Integrated products/services if a Third Party vendor increases
pricing for Third Party/Integrated products/services.
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EXHIBIT “B”
IT ADDENDUM TO CONTRACTOR’S AGREEMENT FORM
The City of Carlsbad (“City”) and Sirsi Corporation dba SirsiDynix (“Contractor”) are using the standard
form agreement provided by the Contractor. Nevertheless, the parties agree that this addendum is a
part of the form agreement (“Agreement”), and amends and modifies the Agreement as provided
below:
1. Independent Contractor. In its performance under this Agreement, the Contractor and
the agents and employees of Contractor act and will act in an independent capacity and
not as an agent or employee of the City.
2. Inapplicable Terms. Because the City cannot accept certain standard clauses that may
appear in the Agreement as a matter of law and policy, the Contractor agrees that no
provision described below which appears in the Agreement shall be of any force and effect
against the City:
a. Requiring the City to obtain or maintain any form of insurance.
b. Renewing or extending the Agreement beyond its initial term or duration other
than by mutual agreement of the parties.
c. Requiring or stating that the terms of this Agreement, or the terms of the
Contractor’s online forms or agreements, shall prevail over the terms of this addendum
in the event of conflict.
d. Requiring the City to indemnify, defend, or hold the Contractor harmless against claims
of any kind or nature.
e. Requiring the application of laws other than California law in interpreting or enforcing
the Agreement, including this addendum, or requiring or permitting litigation arising
under the Agreement in the courts of any state other than California, nor any venue
other than San Diego County.
f. Requiring the City to pay liquidated damages, indirect, special, punitive, incidental or
consequential damages, including without limitation lost profits, lost revenue, lost
business opportunities, loss of data, interruption of business, regardless of the theory of
liability, even if City has been advised of the possibility of such damages.
g. Requiring the City to pay any type of contract termination fee.
h. Limiting the liability of the Contractor for actual damage to City property or for personal
injury.
i. Disclaiming negligence in violation of public policy.
j. Permitting unilateral modification of this Agreement by the Contractor or deeming the
City to agree to a modification by means other than affirmatively signing a modification
to the Agreement.
k. Requiring the City to engage in binding arbitration.
l. Obligating the City to pay court costs, costs of collection, or attorneys’ fees.
m. Requiring the City to withhold information from the public contrary to the requirements
of the California Public Records Act (CA Government Code § 6250 et seq.) and the
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California Civil Discovery Act (California Code of Civil Procedure § 2016.010 et seq.).
n. Requiring City to provide notice prior to disclosure of government records subject to
California Public Records Act (CA Government Code § 6250 et seq.) and the California
Civil Discovery Act (California Code of Civil Procedure § 2016.010 et seq.).
o. Imposing interest on late payments or requiring interest to be paid on disputed
amounts.
3. Technology Terms and Conditions. In addition, the Agreement is hereby amended to
include the following Information Technology Terms and Conditions:
a. Sensitive Information. In instances where any agreement, purchase order, or Scope of
Work is for the provision of Public Cloud Services where City’s sensitive data may be
exchanged, Contractor shall maintain an independently certified System and
Organization Controls (SOC) 2 Type 2 Audit Report or a SOC Cybersecurity Report or
equivalent certification and all subcontractors will do the same during the term of the
Agreement.
b. Data Location and Ownership. The Contractor shall provide its services to the City and
its end users solely from data centers in the continental United States. Storage of City
Data at rest shall be located solely in data centers in the United States. Contractor will
notify the City of any plans to relocate its hosted services to another data center.
Contractor shall not allow personnel or subcontractors to store City Data on portable
devices, including personal computers, except for devises that are used and kept only
at its U.S. data centers. The Contractor shall permit its personnel and subcontractors
to access City Data remotely only as required to provide technical user support or
other customer support. The City will own all right, title and interest in City Data that
is related to the services provided by this Agreement.
c. Data Protection. Contractor shall ensure there is no inappropriate or unauthorized use
of City Data at any time. To this end, Contractor shall safeguard the confidentiality,
integrity, and availability of City Data within its control using security technologies and
techniques in accordance with standard industry practices for such data. In no event
may Contractor’s action or inaction result in any situation that is less secure than the
security Contractor provides for its own systems and data.
d. Data Breach Responsibilities. This section only applies when there is a breach of City
Data within the possession or control of Contractor. Contractor shall: (1) promptly
notify City as required by applicable law, if it confirms that there is or reasonably
believes that there has been a data breach; (2) reasonably investigate and resolve the
data breach and provide timely updates; (3) quarantine the data breach and ensure
secure access to City Data; (4) promptly implement necessary remedial measures; and
(5) document responsive actions taken related to the data breach.
e. Background Checks. As permitted or required by law, the Contractor shall conduct
criminal background checks and not utilize any staff, including subcontractors, to fulfill
the obligations of the Agreement who have been convicted of any crime of dishonesty,
including but not limited to criminal fraud, or otherwise convicted of any felony or any
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misdemeanor offense for which incarceration for up to 1 year is an authorized penalty.
The Contractor shall promote and maintain an awareness of importance of securing
the City’s information among the Contractor’s employee and agents.
f. Information Technology Access. All electronic and information technology procured
through this Agreement must meet the applicable accessibility standards of Section
508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d) as amended and is viewable at
http://www.section508.gov. Further, the Contractor assures the City that the
Contractor complies with the American with Disabilities Act of 1990 (42 US.C. 12101
et seq.), including, once in force, the Department of Justice’s final rule revising the
regulation implementing title II of the Americans with Disabilities Act to establish
specific requirements, including the adoption of specific technical standards, for
making accessible the services, programs, and activities offered by State and local
government entities to the public through the web and mobile applications (“apps”)
which becomes effective June 24, 2024 (89 FR 31320.). To the extent applicable, under
California Government Code Section 7405(b), the Contractor shall have the ongoing
obligation to promptly respond to and resolve any complaint regarding accessibility
that is brought to the attention of the Contractor. The Parties agree and stipulate that Contractor’s noncompliance with this subsection
3(f) constitutes a material breach. Accordingly, City reserves the right to terminate
pursuant to Section 12.3 “Termination.”
g. Patent, Copyright and Trade Secret Indemnity. To the fullest extent permitted by law,
Contractor will indemnify, defend, and hold harmless the City, its officers, elected and
appointed officials, employees, and volunteers from any and all third-party claims,
costs (including without limitation reasonable attorneys’ fees), damages, and losses
for infringement or violation of any U.S. Intellectual Property Right by any product or
service provided by this Agreement. With respect to claims arising from software
manufactured by a third party and sold by Contractor as reseller, Contractor will pass
through to the City such indemnity rights as it receives from such third party and will
cooperate in its enforcement.
i. Aside from Contractor’s indemnification obligation, should the product or
services or any part thereof become, or in Contractor’s reasonable opinion be
likely to become, the subject of a claim for infringement of a third party
intellectual property right, then Contractor shall, at its sole option and
expense: (i) procure for City the right to use and access the infringing or
potentially infringing item(s) of the service or product (“Infringing Item”) free
of any liability for infringement; or (ii) replace or modify the Infringing Item
with a non-infringing substitute otherwise materially complying with the
functionality of the replaced system; or (iii) if neither of the foregoing is
reasonably practicable, terminate the right to use and access the Infringing
Item and refund a prorated amount of any amount already paid.
h. Warranty. Contractor warrants that the appliable product and services (1) will
substantially conform to the requirements of the Agreement; (2) will be free of
material defects and will be performed with professional care and skill; (3) will be
checked via industry-standard tools for harmful code (e.g., computer viruses, worms,
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trap doors, time bombs, disabling code, or any similar malicious mechanism designed
to interfere with the intended operation of, or cause damage to, computers, data, or
software; (4) will not infringe or violate any U.S. Intellectual Property Right; and (5) if
software, perform in accordance with the software license and accompanying
manuals and other printed documents. Further, to the extent Contractor is legally able
to do so, Contractor warrants it will pass through any applicable third-party warranties
to the City and will reasonably cooperate in enforcing them.
4. City’s Limitation on Liability. The City’s liability for damages to Contractor for any cause
whatsoever arising out of or relating to this Agreement, and regardless of the theory of
liability shall be limited to the total fees paid or payable by City to Contractor for the twelve-
month period immediately preceding the date the cause of action arose. The existence of
more than one claim shall not expand such limit. This limitation will apply notwithstanding
any failure of any essential purpose of any limited remedy.
IN WITNESS WHEREOF, the parties have obtained all necessary approvals and have caused the
Agreement and this addendum to the Agreement to be executed by their duly authorized
representatives.
CONTRACTOR CITY OF CARLSBAD
By: By:
(sign here) City Manager
(print name/title)
Attest:
SHERRY FREISINGER, City Clerk
By:
Morgen Fry, Assistant City Clerk
APPROVED AS TO FORM:
CINDIE K. McMAHON, City Attorney
BY: _____________________________
Deputy City Attorney
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Mike Nehren Executive Vice President
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Exhibit “C”
CITY OF CARLSBAD
INSURANCE REQUIREMENTS
1.0 INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all amendments,
insurance against claims for injuries to persons or damage to property which may arise out of or in
connection with performance of the services by Contractor or Contractor’s agents, representatives,
employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and
authorized to do business in the State of California. The insurance carrier is required to have a current
Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List
of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least
“A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners
(NAIC) latest quarterly listings report.
1.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum
limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's indemnification
obligations under this Agreement. City, its officers, agents and employees make no representation that
the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are
adequate to protect Contractor. If Contractor believes that any required insurance coverage is
inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate,
at Contractor's sole expense. The full limits available to the named insured shall also be available and
applicable to the City as an additional insured.
1.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an
“occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000
per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply
separately to this project/location or the general aggregate limit shall be twice the required
occurrence limit.
1.1.2 Automobile Liability. If the use of an automobile is involved for Contractor's
work for City, $2,000,000 combined single-limit per accident for bodily injury and property
damage.
1.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation
limits as required by the California Labor Code. Workers' Compensation will not be required if
Contractor has no employees and provides, to City's satisfaction, a declaration stating this.
1.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s
profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a
period of five years following the date of completion of the work.
1.1.5 Cyber Liability Insurance. At all times during the performance of work under
this Agreement and for sixty (60) months following the date of Agreement termination, the
Contractor will carry and maintain, at its own expense, Cyber Liability insurance with limits of
not less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate.
1.2 Additional Provisions. Contractor will ensure that the policies of insurance required
under this Agreement contain, or are endorsed to contain, the following provisions:
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Exhibit “C”
1.2.1 The City will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
1.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability,
which will be written as claims-made coverage.
1.2.3 If Contractor maintains higher limits than the minimums shown above, the City
requires and will be entitled to coverage for the higher limits maintained by Contractor. Any
available insurance proceeds in excess of the specified minimum limits of insurance and
coverage will be available to the City.”
1.2.4 This insurance will be in force during the life of the Agreement and any extensions
of it and will not be canceled without thirty (30) days prior written notice to City sent by certified
mail pursuant to the Notice provisions of this Agreement.
1.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
1.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach or may purchase replacement
insurance or pay the premiums that are due on existing policies in order to maintain the required
coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance
and City may collect these payments from Contractor or deduct the amount paid from any sums due
Contractor under this Agreement.
1.5 Submission of Insurance Policies. City reserves the right to require, at any time,
complete and certified copies of any or all required insurance policies and endorsements.
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