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HomeMy WebLinkAboutJoann Stores LLC; 2021-08-03; PSALCA-23021LIB-1City Attorney Approved Version 6/12/18 AGREEMENT FOR Creativebug™ SUBSCRIPTION SERVICES JOANN STORES, LLC THIS AGREEMENT is made and entered into as of the ______________ day of ___________________, 2021, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and JOANN Stores, LLC a limited liability company corporation, ("Contractor”). RECITALS City requires the professional services of a web service company that is experienced in customized library solutions which includes a subscription to Contractor’s website of arts and crafts classes and other creative content, www.creativebug.com. Contractor has the necessary experience in providing these professional software services, has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the “Services”) that are defined in Exhibit “A”, attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. 2. TERM This Agreement will be effective for a period from the date first written above, for a period of one (1) year with three (3) optional one (1) year extensions for a total of four (4) years. 3. COMPENSATION The total fee payable for the Services to be performed will be three thousand two hundred ninety- two ($3,292). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. 4. STATUS OF CONTRACTOR Contractor will perform the Services as an independent contractor and in pursuit of Contractor’s independent calling, and not as an employee of City. Contractor will be under the control of City only as to the results to be accomplished. 5. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including reasonable attorney’s fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, reasonable attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. DocuSign Envelope ID: EA196FBA-B300-44AF-97EB-C19CA4436F8B Debbie Jo McCool Joe Burch Devin Castel Sheila CrosbyDebbie Jo McCool Suzanne Smithson Ed Garbo 3rd August City Attorney Approved Version 6/12/18 6. INSURANCE Contractor will obtain and maintain policies of commercial general liability insurance, automobile liability insurance, a combined policy of workers' compensation, employers liability insurance, and professional liability insurance from an insurance company authorized to transact the business of insurance in the State of California which has 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, in an amount of not less than one million dollars ($1,000,000) each, unless otherwise authorized and approved by the Risk Manager or the City Manager. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims- made coverage. The insurance will be in force during the life of this Agreement and will not be canceled without thirty (30) days prior written notice to the City by certified mail. City will be named as an additional insured on General Liability which shall provide primary coverage to the City. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to City prior to City’s execution of this Agreement. 7. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Suzanne Smithson Name Ann Aber Title Library & Cultural Arts Director Title General Counsel Department Library & Cultural Arts Address 5555 Darrow Road City of Carlsbad Hudson, OH 44236 Address 1775 Dove Lane Phone No. 330-656-2600 Carlsbad, CA 92011 Email legal@joann.com Phone No. 760-602-2011 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 8. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes No 9. COMPLIANCE WITH LAWS Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and [IF APPLICABLE] will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. DocuSign Envelope ID: EA196FBA-B300-44AF-97EB-C19CA4436F8B City Attorney Approved Version 6/12/18 10. TERMINATION City or Contractor may terminate this Agreement at any time after a discussion, and written notice to the other party. City will pay Contractor's costs for services delivered up to the time of termination, if the services have been delivered in accordance with the Agreement. In the event this agreement is terminated, Contractor will make available to City a file of the Customer Data in XML format within 30 days of termination if City so requests at the time of termination but in no event will Contractor share individual library patron usage history. 11. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq., and Carlsbad Municipal Code Sections 3.32.025, et seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the City of Carlsbad to terminate this Agreement. 12. JURISDICTIONS AND VENUE Contractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, California. 13. ASSIGNMENT Contractor may assign neither this Agreement nor any part of it, nor any monies due or to become due under it, without the prior written consent of City. 14. AMENDMENTS This Agreement may be amended by mutual consent of City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ DocuSign Envelope ID: EA196FBA-B300-44AF-97EB-C19CA4436F8B City Attorney Approved Version 6/12/18 15.AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) SUZANNE SMITHSON Library & Cultural Arts Director As Authorized by City Manager (print name/title) ATTEST: By: (sign here) For BARBARA ENGLESON City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A. Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: For CELIA A. BREWER, City Attorney By: Deputy/Assistant City Attorney Edward Weinstein, VP, Jo-Ann Stores, LLC Renee Jefferson, Treasurer, Jo-Ann Stores, LLC DocuSign Envelope ID: EA196FBA-B300-44AF-97EB-C19CA4436F8B City Attorney Approved Version 6/12/18 EXHIBIT “A” SCOPE OF SERVICES AND FEE The Contractor will provide customized library solutions: enterprise subscription to Contractor’s website of arts and crafts classes and other creative content, www.creativebug.com. The following information must be adhered to by the Contractor as a part of the Agreement: 1.OWNERSHIP OF DATA. Contractor does not own any data, information or material that is submitted to the Software ("Customer Data"). The City, not Contractor, shall have sole responsibility for accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Contractor shall not be responsible or liable for the deletion, correction, destruction, damage, loss, and failure to store any Customer Data. 2.NON-DISCLOSURE. Contractor will not use City's Customer Data for purposes other than those necessary to directly further the purposes of the Agreement. Neither party will disclose to third parties Customer Data without the prior written consent of the non-disclosing party. 3.SERVICES. Contractor shall be responsible for securing, managing, scheduling, coordinating and supervising Contractor personnel, in performing any Services. Any change to the scope of Services must be in writing signed by both parties. The proposed Software Services must be securely hosted, and hosting locations will be in the United States. 4.RECORDS RETENTION. Contractor provides data scrubbing of personally identifiable information (PII) in [SOFTWARE]. All data scrub requests to be coordinated in writing by City's Technology Librarian or designee with the Contractor's support team. Data scrub requests to include Site ID, specific modules or data fields, and months or years of data retention {between one (1) month and five (5) years}. Once City notifies Contractor, the Contractor will schedule the data scrub in accordance to their published timeline(s). 5.PRIVACY. No personally identifiable information will be disseminated by Contractor to any third parties, except as consented to by City or required by law. If such dissemination is required by law, Contractor agrees to inform City before any such dissemination if permitted by law. In the event of a conflict between Contractor’s Website Privacy Policy for Enterprise Users and this Agreement, the terms of this Agreement shall take precedence. 6.AVAILABILITY. The contractor will use commercially reasonable efforts to ensure Contractor systems obtain an operational 99.8% uptime. Contractor agrees to notify City promptly of any factor, occurrence, or event coming to its attention that may affect uptime, or that is likely to cause any material interruption or disruption in Services. Notice of scheduled maintenance shall occur three (3) days prior to scheduled downtime. In the event planned emergency maintenance is required, Contractor will make commercially reasonable efforts to notify City in advance. In the event of a disaster of Contractor's primary data center, Contractor will restore services in its secondary center within four (4) hours of a disaster declaration. DocuSign Envelope ID: EA196FBA-B300-44AF-97EB-C19CA4436F8B Audra Mahoney City Attorney Approved Version 6/12/18 Postmortem meeting will be held as needed following any outages to identify root cause and specify corrective and/or preventative actions needed to prevent recurrence. Corrective and preventative action plans, as relevant, will be shared with City via email. 7.PRODUCTS AND SERVICES COST DETAIL DESCRIPTION. Creativebug Enterprise Subscription Includes: Custom URL with Carlsbad City Library branding Reporting Dashboard Unlimited access for all patrons of Carlsbad City In-Library & Remote Access Public Performance Rights Digital / Print Marketing materials to promote service 1-Year Service Price $3,292 8.INVOICING/PAYMENT. Contractor’s invoice shall be submitted to City for processing and be sufficiently detailed to include related activity for review and approval by both City’s Deputy Library Director or designee. Final invoice approval will be completed by City’s Library & Cultural Arts Director or designee. DocuSign Envelope ID: EA196FBA-B300-44AF-97EB-C19CA4436F8B Holder Identifier : 7777777707070700077763616065553330773617556304557607453136772406310073650566157330020762404113076110207562411776274556075626735320327700772241117205631207304011352270130077727252025773110777777707000707007 6666666606060600062606466204446200600022626024222006222026260262202062000240422602000622222424224222206222206040240022062200042600622020602022626204022206222006042000402066646062240664440666666606000606006Certificate No : 570087940703 CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 06/21/2021 IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. PRODUCER Aon Risk Services Northeast, Inc. Columbus OH Office445 Hutchinson AvenueSuite 900Columbus OH 43235 USA PHONE(A/C. No. Ext): E-MAILADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # (866) 283-7122 INSURED 23035Liberty Mutual Fire Ins CoINSURER A: 33600LM Insurance CorporationINSURER B: 42404Liberty Insurance CorporationINSURER C: 35289The Continental Insurance CompanyINSURER D: 26247American Guarantee & Liability Ins CoINSURER E: INSURER F: FAX(A/C. No.):(800) 363-0105 CONTACTNAME: Jo-Ann Stores, LLC5555 Darrow RoadHudson OH 44236 USA COVERAGES CERTIFICATE NUMBER:570087940703 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, Limits shown are as requested POLICY EXP (MM/DD/YYYY)POLICY EFF (MM/DD/YYYY)SUBRWVDINSR LTR ADDL INSD POLICY NUMBER TYPE OF INSURANCE LIMITS COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR POLICY LOC EACH OCCURRENCE DAMAGE TO RENTED PREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL & ADV INJURY GENERAL AGGREGATE PRODUCTS - COMP/OP AGG X X X GEN'L AGGREGATE LIMIT APPLIES PER: $1,000,000 $250,000 Excluded $1,000,000 $8,000,000 $2,000,000 $250,000Retention B 06/01/2021 06/01/2022 SIR applies per policy terms & conditions EB5641004362131 PRO-JECT OTHER: AUTOMOBILE LIABILITY ANY AUTO OWNED AUTOS ONLY SCHEDULED AUTOS HIRED AUTOS ONLY NON-OWNED AUTOS ONLY BODILY INJURY ( Per person) PROPERTY DAMAGE(Per accident) X X X BODILY INJURY (Per accident) $1,000,000A06/01/2021 06/01/2022 COMBINED SINGLE LIMIT(Ea accident)AS2-641-004362-121 EXCESS LIAB X OCCUR CLAIMS-MADE AGGREGATE EACH OCCURRENCE DED $2,000,000 $2,000,000 $10,000 06/01/2021UMBRELLA LIABD 06/01/20225094951297 RETENTIONX X E.L. DISEASE-EA EMPLOYEE E.L. DISEASE-POLICY LIMIT E.L. EACH ACCIDENT $1,000,000 X OTH-ERPER STATUTEB06/01/2021 06/01/2022 AOS WC5641004362151B 06/01/2021 06/01/2022 $1,000,000 Y / N (Mandatory in NH) ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER N / AN WI WORKERS COMPENSATION AND EMPLOYERS' LIABILITY If yes, describe under DESCRIPTION OF OPERATIONS below $1,000,000 WA564D004362161 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Carlsbad is included as Additional Insured in accordance with the policy provisions of the General Liability policy. CANCELLATIONCERTIFICATE HOLDER AUTHORIZED REPRESENTATIVECity of Carlsbad1775 Dove LaneCarlsbad CA 92011 USA ACORD 25 (2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. DocuSign Envelope ID: EA196FBA-B300-44AF-97EB-C19CA4436F8B AGENCY CUSTOMER ID: ADDITIONAL REMARKS SCHEDULE LOC #: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:ACORD 25 FORM TITLE:Certificate of Liability Insurance EFFECTIVE DATE: CARRIER NAIC CODE POLICY NUMBER NAMED INSUREDAGENCY See Certificate Numbe See Certificate Numbe 570087940703 570087940703 Aon Risk Services Northeast, Inc. 570000060045 ADDITIONAL POLICIES If a policy below does not include limit information, refer to the corresponding policy on the ACORD certificate form for policy limits. INSURER INSURER INSURER INSURER INSURER(S) AFFORDING COVERAGE Page _ of _ NAIC # Jo-Ann Stores, LLC TYPE OF INSURANCE POLICY NUMBER LIMITS WORKERS COMPENSATION C WA764D004362171 06/01/2021 06/01/2022 MA N/A ADDL INSD INSR LTR SUBR WVD POLICY EFFECTIVE DATE (MM/DD/YYYY) POLICY EXPIRATION DATE (MM/DD/YYYY) ACORD 101 (2008/01)© 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: EA196FBA-B300-44AF-97EB-C19CA4436F8B POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 28 12 19 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 20 28 12 19 © Insurance Services Office, Inc., 2018 Page 1 of 1 ADDITIONAL INSURED – LESSOR OF LEASED EQUIPMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A.Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). However: 1.The insurance afforded to such additional insured only applies to the extent permitted by law; and 2.If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B.With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after the equipment lease expires. C.With respect to the insurance afforded to these additional insureds, the following is added to Section III – Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1.Required by the contract or agreement; or 2.Available under the applicable limits of insurance; whichever is less. This endorsement shall not increase the applicable limits of insurance. Any person or organization who leases equipment to you and where required by a written contract provided such contract was executed prior to loss. EB5641004362131 DocuSign Envelope ID: EA196FBA-B300-44AF-97EB-C19CA4436F8B