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..
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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
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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.
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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
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for OCLC and they in turn sent it to their at-
torneys for a response. A copy of this is also
attached.
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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
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GEORGINA D. COLE
LIBRARY DIRECTOR '
GDC/b
attach.
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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.
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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
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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
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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:
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RpA E. ADAMS, City Clerk
(SEAL)