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HomeMy WebLinkAbout1978-08-01; City Council; 3744-1; Revised Contract Agreement with OCLC1 CITY OF CARLS$AD AGENDA BILL NO. % �tf t, Initial: DATt: August 1, 1978 Dept. Hd. �, , . C. Atty.y DEPARTMENT: Library C. Mgr. Subj ect: Revised contract agreement with OCLC Statement of the Matter In August of 1976 a contract between the City of Carlsbad and the Ohio College Library Center was executed, which provided computerized cataloging and catalog ` card production for the Library. The agreement was written for a term of two years, with automatic extension thereafter on a year-to-year basis unless either partY expressed a wish in writing to terminate said agreement. As the .00LC network has continued to grow, changes in operations and modifications of the system have occurred. A new contract which reflects these changes has been drawn up and.00LC wishes to substitute it instead of extending the existing agreement. Exhibit OCLC/Library Agreement. Resolution No.. ?eNlem¢r0ttC,1-Z ty Manager from City Librarian, 7-24-78, with summary Recommendation If.t a pity Council concurs, the Mayor should be authorized .to execute the new contract with OCLC, upon the adoption of Resolution No. Council action 8-1-78 Resolution #5489 was adopted, authorizing and directing the Mayor to execute agreements for computerized Libhary cataloging a►id related services and Terminal Maintenance Service Agreement.. • r , I MUN71NGTON CARLILE RICHARD V. PATCHEN O£NIS J. MURPHY JAM CS H. ALLISON CRAIG M. STEWART TCRR£NCC J. MORSC JAMCS S. MOWERY. JR. TIMOTHY P. NAGY ROBERT B. BAPNCTT. JR. TMOMAS J. BONASCRA ALAN F. BERLINER JOHN H. SURKLEY YNOX M. STCWART, COU-SCL LAB. Orri cns CA.RLTLE PATCHEN MUPpny & ALLISON JOO EAST .BRO.&M STAnXT COLT✓MBUS, OHIO 43215 Jr Mrs. Georgina D. Cole City Librarian Carlsbad City Library 1250 Elm Avenue Carlsbad, CA 92008 Dear Mrs. Cole: June 23, 1.978 r TELEPHONE AREA COOS G14 220- 613S Re: OCLC Cooperative Agreement Renegotiation I would like to take the opportunity hereby to respond to the points raised by your City Attorney as reflected in your letter of June 1, 1978. The responses will be presented and numbered in the same order as the points to which they relate. , 1. It must be understood tnat the first full paragraph on page 2 ends PART I DESCRIPTIVE INFORMATION AND DECLARATION OF PURPOSE of the proposed agreement. Therefore, the statements therein do not add to or extend any contractual obligations set forth in the body of the agreement (for example, the term of the agreement), but state the general concerns and contemplated purposes with which the parties enter into those contractual obligations. It is certainly not to the disadvantage of your library to expressly state its awareness of those concerns and purposes. 2. Section 31.2.1 contractually recognizes the potential necessity to "temporarily suspend system avail- ability because of operational requirements." Certainly the term "temporarily" does denote a limited duration of such suspension. Further specific and prospective limitation of duration or definition of specific types and natures of operational requirements is not possible at the time of contracting. R , '__"1CAltL1L1: PAICHnN �41.lfl'llY h ALLISON^ Pace 2 Mrs. Georgina D. Cole June 23, 1978 However, it is unlikely that any such suspension would involve only a single individual institution, since the types of technical operational requirements envisioned would usually impact on the whole system or segments of the system. 3. Your attorney's interpretation of Section 32 is correct. 61 4. Your attorney's interpretation of Section 43 is also correct. 5. The warranties set forth in Section 51.1 do differ from the warranties in the prior agreement, and are the sole warranties which OCLC is willing to make in the new contract. 6. Section 54(b) conditions any obligation to undertake joint development projects proposed by either party on a mutual and consistent agreement of objectives by, the party, and also on financial capacity by the parties with regard to resources. Therefore, any actual negotiations of mutual projects would probably be -worked out between the parties by separate agreement. We trust that this letter satisfactorily responds to your questions and comments, and look forward to your execution of the new OCLC cooperative agreement as soon as possible. Thanks for your cooperation in this matter. Very truly yours, CARLILE PATCHEN MURPHY & ALLISON Ihn H. Burkley JHB:kpw cc: Thompson M. Little Myra White July 24, 1978 MEMORANDUM TO: City Manager FROM: Library Director SUBJECT: Revised contract with OCLC In response to your request for a summarization ; of the changes in the proposed contract with OCLC, we are furnishing you with a copy of the ? memorandum from the City Attorney which does an excellent job of eliciting the changes. The memorandum was also sent to the Western Center - for OCLC and they in turn sent it to their at- torneys for a response. A copy of this is also attached. i i We concur with Mr. Biondo in that it does seem to be a take it or leave it situation, but even with the changes -- it is still an economically sound venture. The OCLC cataloging and catalog card production has more than proven itself to be cost z effective. F i a � 7 V • r � �—Y�, } GEORGINA D. COLE LIBRARY DIRECTOR ' GDC/b attach. I MEMORANDUM DATE: May 23, 1978 TO: City Librarian FROM:, City Attorney SUBJECT: REVISED CONTRACT WITH OCLC We have your memorandum of May 19, 1978 requesting our review of the above -referenced agreement. We appreciate the amount of lead time and'the completeness of your request for advice. Some of our other departments could profit from your example. After reviewing the new agreement, one thing is obvious. That is, the Ohio College Library Center has a new lawyer who has done a good job of writing a lot of protection for his client into the new agreement. Assuming, as your memorandum indicates, that you are satisfied with the terms of the agreement, my office is prepared to approve it as to form and legality. You should recognize, however, that it is a bit one way, and that way does not favor the City. The new agreement contains a revised Appendix I, setting out the charges. Most of them have been increased. In particular, what appears to be the basic service, the first-time use Shared Cataloging, has been increased from $1.18 per use to $1.84 per use, an approximate 50% increase. Was this increase a result of a negotiation? If we are able to extend the existing agreement, it would certainly be to our financial advantage to do so rather than agreeing to the new form and the new set of charges. The following are some notes about the terms of the agreement: 1. ?age 2: The first full paragraph contains a purely gratutious and self-serving declaration that our accept- ance of the service will require us to use it in the future. It does not appear to be to our advantage to accept the clause. f i i 3 ►�12 Q i- T.i1- ri an —2— May 2.7 1978 2. Page 5: Section 31.2.1 gives OCLC the right to deny us the use of the system because of "operational require- ments." At a minimum, I would think there should be some limit to the duration of such a suspension and certainly the nature of the operational requirements that would justify denying us the service should be defined. 3. Page 5: Section 32 obligates you to OCLC's current standards, which is appropriate, but also obligates you to comply with them as OCLC may see fit to amend them in the future. 4. .Page 12: Section 43, regarding taxes, is substantially altered from the existing agreement. I assume that is because of the difficulty being experienced by some corporations who indulge in the leasing of equipment. In particular, I believe substantial tax deficiencies have recently resulted from Court action by the Counties in California against Xerox. The previous agreement made the Library responsible for all taxes. I assume that will continue under the revised clause and that you have taken that into consideration in reaching an agreement on our obligations to pay. 5. Pages 12-13: Section 51.1, which contains OCLC's warranties to us, is definitely not an improvement over the existing agreement. You should compare Section 51.1 with Paragraph 9, of Section 2, on Page 3. Several of OCLC's obligations have been qualified. Subsection (a) is poorly worded. The existing agreement is preferable. 6. Page 15: Section 54 appears to some extent to obligate the City to participate with OCLC in other programs. That appears to be a provision that is not found in the existing agreement. It seems to me it would be preferable to leave other projects to subsequent agreement. 7. Page 17: Section 62(e) contains a blank,for the number of days notice is required, which should be filled in. As indicated above, the agreement is substantially one way. For example, if we are delinquent in payment for ten days, they have the right to terminate the contract, but if they breach the contract, they have sixty days in which to remedy the matter before we have similar rights. It may be that it is a "take it or leave it" situation and if you want to take it, there's no legal reason why you may not. Please let me know if you need any further advice. VFB/mla \\./VINCENT F. BIONDO,.JR. City Attorney 1 RESOLUTION NO. 5489 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING 3 AND DIRECTING THE.MAYOR TO EXECUTE AGREt- MENTS FOR COMPUTERIZED'I,IBRARY CATALOGING 4 AND RELATED SERVICES AND A TERMINAL MAINTENANCE SERVICE AGREEMENT. 5 WHEREAS, the City Council of the City of Carlsbad has deter- { 8 mined that it is necessary and in the public interest to revise and 7 renew an existing agreement for computerized cataloging and related 8 services and a terminal maintenance service agreement; and � 9 WHEREAS, the requirements of the City for said computerized 10 cataloging and related services and terminal maintenance service 11 agreement can only be met by the Ohio College Library'Center, 12 1125 Kinnear Road, Columbus, Ohio; 13 NOW, THEREFORE, BE IT RESOLVED by the Council of the City of 14.Carlsbad, California, as follows: 15 1. ,That the above recitations are true and -correct. 16 2. That the Mayor of the City of Carlsbad is hereby authorized 3.7 and directed to execute said agreement for computerized cataloging- 18 and the related -services agreement and the terminal maintenance 19 service agreement on behalf of the City of Carlsbad. 20 PASSED, APPROVED AND ADOPTED by the City Council of the City i 21 of Carlsbad at a regular meeting held the lst day of August 22 1978, by the following vote, to wit: + AYES: Coun'&ilmen Packard, Skotnicki, Lewis and Anear 24 NOES: None 25 ABSENT: Councilwoman Casl.er 26 27 RONALD C. PACKARD, Mayor ATT2T: 28 j RpA E. ADAMS, City Clerk (SEAL)