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2. 02/16/2016 Agreement �p�vt CC RTd.- 1 -1 ; Kevin Madok, CPA ' Clerk of the Circuit Court& Comptroller—Monroe County, Florida DATE: March 3, 2022 TO: Kimberly Matthews, Sr. Director of Strategic Planning&Libraries ATTN: Lisa Booker, Library Business Manager i FROM: Pamela G. Hanco .C. SUBJECT: February 16th BOCC Meeting Attached is a copy of the following item for your handling.: C12 Agreement with Overdrive, Inc. for the Monroe County Public library System to access and use their digital media platform to provide access to eContent purchased through and licensed by Overdrive, Inc.The agreement is for two years, at a cost of$12,000.00 per year,with $6,000.00 of material purchase credit. And granted approval to expend up to $220,000.00 in library funds for the purchase of eContent lending materials from Overdrive, Inc.; and granted approval of delegation of the purchasing authority to Kimberly Matthews to sign individual invoices for the library's digital material collection, the cumulative value of which will not exceed $220,000.00.This cost is already budgeted in the library's materials cost centers. Should you have any questions please feel free to contact me at(305) 292-3550. cc: County Attorney Finance File KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING 500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070 305-294-4641 305-289-6027 305-852-7145 305-852-7145 MONROE COUNTY ATTORNEY PPROVCD AS TO FORM OverDrive JANIESMro...4...e.„....._ AR ASSISTgor y, OverDrive Digital Library Reserve Order Form Date: Molenaar.Esa. o ri 1.15014 asoo Library information Name of Library:Monroe County Public Library System Address: 700 Fleming Street City,State/Province,Postal Code:V-ey W es- , F L 330.40 Country: U.S. Primary Contact: Name: Ashrne. 12_1.ae. Title: A$Asko."1- Dr.(ea bi•-SOPpor}- Se r/&$ Telephone: 305- 29 Z- 3sem Email: r;0e.-O�.r►r ®nnonroe-c-owni'y-�i•30V Accounting Contact(all invoices will be emailed to-the contact listed below) Name: A'- e. R,ce- Title: Ass;s4.o. Direc.rot - Su fP'r# Se_r.i.ae,S Telephone: 505 -29z- 359 Email: r►ct- ox.iNe_. 0 re.en`oe-ee.,.,4.7-C 1 . 3ov Bill To Address: 100 c le�::ne5 S -—4 City,State/Province,Postal Code. li F Io,r,da. 33040 Country: kit,S, U OverDrive sends emails about promotions,new productsand services: By checking this box,you consent to receiving OverDrive's communications and;promotional emails to your Primary Contact'email address. These emails also include an easy method to manage your subscription(s),including unsubscribing to future emails. Annual Fee My Library will be invoiced an Annual Fee of$12,000(USD)within thirty(30)-days from the start of the Term. The Annual Fee includes an allocation of$6,000(USD)to use toward the selection of Digital Content. In addition to the Annual Fee, Library requests to be invoiced in the amount of$ (USD)to be put on deposit with OverDrive for future Digital Content purchases. All payments due to OverDrive under this Agreement are due within thirty(30)days of presentation of invoice. Over_Drive Terms and Conditions: The Term of this Agreement shall be for a twenty-four(24)month term,commencing on February 1,2022. This Agreement shall automatically renew for successive terms of twelve(12) months unless either party provides wrrrttgg ._,_; notice of intention not to renew ninety(90)days prior to the expiration of the then-current term. �, f r, OverDrive Digital Library Reserve is licensed pursuant to the OverDrive Digital Library Reserve Access Agreement, ' attached hereto,the terms of which are incorporated herein.Upon the start of the Term,this OverDrive:Digital c<3 Library Reserve Order Form will supersede and replace the previous Digital Library Reserve Content Ser lice Plan Application Services Agreement executed by and between OverDrive and Library. �z ,Acknowledeemertand Acceptance: -n CD On ha10.My L�m,�y Library,I represent and warrant that I have the authority to enter into this Agreement and my signatures e w• dica @s; y Library's agreement and acceptance of the OverDrive.Digital Library Reserve Access Agreement. 4-, BOARD OF COUNTY COMMISSIONERS �' ', OF MONROE COUNTY, FLORIDA�By pat ..-' Title Mayor David Rice iar , �* t\a r lil AO' °' ATTEST KE 'ADOK, C RK ° I tame(Pr mt) .: Date 714r " ' eR,, .o.;\,,•,/As Deputy lerk ©2022 OverDrive,Inc. • One OverDrive Way • Cleveland,OH 44125 • P:+1216-573-6886 • F:+1216-573-6889 page 1.of 7 verDriv Di i al Librgoj Leature§in lu e*d with Annu 1 F es Co Ilection _ _ __.._ __... _._ . ...___w_ __.._ _,....__,r. Thousands of classic ebooks from Project Gutenberg—free Web-based staff training to use collection development tools in OverDrive's Marketplace catalog of popular&educational ebooks,audlobooks,digital magazines&video Services Library-branded website plus system-wide updates Authentication options Web based staff training lead by expert trainer(live) _.,. Web-based staff training—access to online Learning Center(recordings) Reporting module Customizable marketing resources to promote service to staff and community both inside& outside the library Secondary-level user support Technology u. _.... _ ... . ._ . .. _.. OverDrive apps for ebooks,audiobooks,video Support for KindleO(US only),iPad",plus all major devices Configuration and license fee Third-party licenses for digital rights management Maintenance,hosting&support services Bandwidth for all downloads Please complete this order farm and return by email to your OverDrive Account Manager. Thank you for your order! D2022 OverDrive,Inc. i One OverDrive Way • Cleveland,OH 44125 • P:+1 216-573-6886 F +1216- 73-6889 page 2 of 7 diver Digital_UibraM-Reserve Access,Agreement 1. Digital Library Reserve Application Services 1.1 OverDrive will create and host a Library Website for Library's use of the Application Services. OverDrive shall provide the Application Services to the Library under the terms of the Order Form and this Access Agreement(collectively referred to as the"Agreement"). 1.2 OverDrive shall create an account in OverDrive's content selection platform, OverDrive Marketplace,for Library to select Digital Content to make available at the Library Website to Authorized Patrons and to access reports. 1.3 OverDrive will use commercially reasonable efforts to make the Application Services perform substantially in accordance with the terms herein. From time to time, OverDrive may make modifications or updates to the operation, performance, or functionality of the Application Services as it sees fit or as required by OverDrive's suppliers. Library may be required to complete additional forms, documents or other associated materials provided by OverDrive. Library shall use commercially reasonable efforts to complete the documents in a timely manner. 1.4 OverDrive will use commercially reasonable efforts to provide Secondary Support to Library. 1.5 OverDrive shall have sole discretion to approve any and all libraries that seek to participate in Library's DLR Service, as well as approve any other terms and conditions related to such expansion of the DLR Service to additional libraries. OverDrive shall have sole discretion to honor any prior version of an order form, participation form or related material completed by Library. OverDrive may require Library to complete an updated version of the same. 1.6 If Library seeks a modification of the Application Services or integration of the Application Services beyond those offered on the Order Form, the Parties shall cooperate to agree on the specifications for the additional services and any associated terms and conditions. 1.7 Nothing under the Agreement grants any right to Library to the use of, or access to, any Application Services source code. Library does not have the right to reproduce the Application Services,to distribute copies or versions of any modules of the Application Services to any third parties including its Authorized Patrons, or to make and/or sell variations or derivative works of the Application Services. Sole ownership of copyrights and other intellectual proprietary rights shall remain solely with OverDrive or its suppliers, OverDrive reserves the right,at its sole discretion,to display its branding,trademarks,logos, and/or third party marketing or promotional materials on the Library Website. 2. Library Website 2.1 Library shall use commercially reasonable efforts to ensure that use of the Applications Services, the Library Website and the Digital Content are in compliance with this Agreement and with permitted uses as communicated by OverDrive to Library. Library shall use commercially reasonable efforts to prevent unauthorized use of the Digital Content from OverDrive by their users and Authorized Patrons. 2.2 OverDrive grants the Library and Authorized Patrons a non-assignable, non-transferable,limited license to use the Digital Content provided by OverDrive's suppliers for personal, non-commercial use. Authorized Patrons and/car Library may access and/or download, the Digital Content: (a) On Library-issued devices or computers with exclusive and individual unique user accounts; (b) On Library-issued devices which are circulated in accordance with the OverDrive Test Drive program; (c) On Authorized Patrons personal devices directly; Ver. May 20210 OverDrive, Inc. page 3 of 7 (d) On shared Library computers which employ an application that restores the computer to its original configuration after use by an individual Authorized Patron (e.g. Deep Freeze, Windows SteadyState, or other similar application);and (e) For any use consistent with the relevant fair use doctrine or similar law in your jurisdiction. 2.3 Library shall reasonably cooperate with OverDrive to limit access to the DLR Service to end users who are Authorized Patrons. In the event Library desires to provide access to the DLR Service to users other than Authorized Patrons, OverDrive reserves the right to limit availability of certain Digital Content, as may be required by supplying publishers. Online library card applications, with or without fees, that provide access, temporary or permanent,to the DLR Service to users who do not otherwise qualify as Authorized Patrons shall not be permitted. 2.4 Library represents and warrants that it will not make any representations or create any warranties, expressed or implied, concerning the Application Services and Digital Content, and will take reasonable steps to ensure that its employees, agents, and others under its direction abide by the Agreement. 2.5 Library agrees to perform Primary Support for its Authorized Patrons, unless Library has completed the Front Line Tech Support Order Form and paid for Front Line Tech Support services. OverDrive will provide Library with training and documentation for Library's provision of Primary Support. Library will cooperate with OverDrive to implement customer support practices recommended by OverDrive, including but not limited to directing Authorized Patrons to OverDrive-supplied FAQs and support pages on its Library Website. 2.6 Library shall not access the Application Services in a manner not explicitly permitted by the Agreement, including but not limited to scraping the Library Website and/or web traffic or data to and from the Library Website, intercepting, redirecting, capturing or holding OverDrive-initiated email or other electronic communications, nor shall it allow any third party to access the Application Services in a manner as described in this paragraph. 2.7 OverDrive may employ commercially reasonable efforts to monitor and maintain the availability of its Application Services, including review of traffic for request volume levels, unusual behaviors or patterns, attempts to create a denial of service response, and/or excessive or abusive usage as determined by OverDrive, in its sole discretion. 3. Payments 3.1.1 Payment will be made pursuant to Local Government Prompt Payment Act 218.70, Florida Statutes. 3.1.2 If OverDrive duties, obligations and responsibilities are materially changed by amendment to this Agreement after execution of this Agreement, compensation due to OverDrive may be adjusted, upon mutual agreement by and between OverDrive and Library. 3.1.3 As a condition precedent for any payment due under this Agreement, OverDrive shall submit monthly, unless otherwise agreed in writing by the Monroe County Board of County Commissioners ("BOCC"), a proper invoice to the BOCC requesting payment for goods and services properly rendered and reimbursable expenses due hereunder. The OverDrive invoice shall describe with reasonable particularity the goods and service rendered. The OverDrive invoice shall be accompanied by such supporting documentation or data in support of expenses for which payment is sought that is acceptable to the Monroe County Clerk of the Circuit Court and Comptroller ("Clerk")based on generally accepted account principles and such laws, rules and regulations as may govern the Clerk's disbursal of funds. 3.2 This Agreement is a commitment of the current revenues of the Library. If Library's governing body or similarly related entity fails to appropriate sufficient funds in any fiscal year for payments due under this Agreement,then a non-appropriation event shall be deemed to have occurred. If a non-appropriation event occurs, (1) Library shall give OverDrive immediate notice of such non-appropriation event and provide written evidence of such failure by Library's applicable governing body and (2) on or before sixty (60) days from OverDrive's receipt of notice of non-appropriation,the parties shall cooperate to determine an appropriate course of action as it relates to the OverDrive services provided under this Agreement. In the event that after such sixty (60)day period, no determination is reached on payment and continued provision of services is not Ver. May 20219 overDrive,Inc. page 4 of 7 possible, then the Agreement and all services hereunder shall terminate on the first day of the fiscal year in which funds are not appropriated. 4. Term and Termination 4.1 The Term of the Agreement shall be governed by the OverDrive Digital Library Reserve Order Form between OverDrive and Library. 4.2 Either party shall have the right to terminate this Agreement as a result of a material breach of the Agreement by the other party that is not cured within thirty(30) days after written notice of such breach. 43 Upon termination of this Agreement,the access granted to Library by this Agreement shall be terminated immediately and Library shall make no further use of all or any part of the Application Services, or any confidential information received from OverDrive. 5. Warranties 5.1 The parties represents and warrants to that each has the necessary permissions, ownership and intellectual property rights and licenses related to performance under this Agreement. 5.2 THE WARRANTIES SET FORTH UNDER THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN NO EVENT SHALL OVERDRIVE BE LIABLE TO LIBRARY OR ITS AUTHORIZED PATRONS AND OR END USERS FOR ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF THE APPLICATION SERVICES, OR FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFIT OR OPPORTUNITY, LOSS OF USE OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE LICENSE OR USE OF THE APPLICATION SERVICES. IN NO EVENT SHALL OVERDRIVE'S LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT RECEIVED BY OVERDRIVE UNDER THIS AGREEMENT. 6. General Terms 6.1 Confidential Information. The parties acknowledge that each will receive confidential information from the other relating to the Application Services, technical and operational affairs of the other. Subject to any state and/or federal laws and regulations permitting public access to documents and information that are considered public,each party agrees that all confidential information of the other party shall be held in confidence and shall not be disclosed to any third party. Library shall not share its passwords and login credentials of Library's account in OverDrive's content selection portal with anyone, including any third party. Library shall take reasonable steps to prevent unwarranted intrusion into such information. 6.2 Taxes. Library shall at its own expense comply with all applicable laws in connection with the use of the Application Services, The payment obligations under this Agreement are exclusive of any federal, state, municipal or other governmental taxes, sales taxes, excise taxes or tariffs now or hereafter imposed on the production, storage, sale,transportation, import, export, licensing or use of the Application Services, 6.3 No Waiver. The failure of either party to exercise any right or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of the Agreement. 6.4 Notice. All notices required to be given pursuant to the Agreement shall be in writing and shall be deemed to have been given, if sent by registered or certified mail, return receipt requested, postage prepaid, addressed to OverDrive at its' current address, Attention: General Counsel or addressed to Library at the address provided on the Order Form, Attention: Primary Contact (as designated on the Order Form), or as otherwise agreed by the parties. 6.5 Assignment, OverDrive may assign this Agreement. This Agreement may not be assigned by Library, nor any duty hereunder delegated by Library without the prior written consent of OverDrive,which shall not be unreasonably withheld. Subject to the foregoing,this Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective heirs, legal representatives, successors and permitted assigns. Ver.May 2021 ID OverDrive, Inc. page 5 of 7 0.6 Entire Agreement. The Order Form and this Access Agreement constitutes the entire Agreement and understanding of the parties and supersedes all prior and contemporaneous Aon*ements, uodarstandinge, negotiations and propoeo|s, oral or written. Section headings are provided for convenience purposes only and do not provide any modifications or substantive meaning to the terms and conditions of this Agreement. OverDr|\emay modify the Order Form and Access Agreement from time to time. QJ All Disputes Arising From the Agreement. This Agreement 3ho}| be governed bv the laws ofthe State of Ohio, United States of America without naQon1 to any conflict of laws principles. Any dispute regarding this Agreement or the relationship that has been established by this Agreement shall be brought in the state or federal courts residing in the State of Ohio, USA, and the local laws of Ohio will apply to any such action related to the above. Both parties submit to venue and jurisdiction in these courts. 7' Definitions As used throughout the Agreement, the following definitions shall apply: 7.1 "Application Services" or~DLR Gerwioo° shall mean the Libnary\Aebsito and digital content distribution service provided to Library, which utilize OverDrive and other third party technologies and services. 7.2 "Authorized PatrVn(s)' mbaU mean those individuals who provide proof of nanidenny, ownership of property, emmokovment, or enrollment in school or similar institution in the Library's service area and which the Library authorizes Lo download and/or access Digital Content from the Library\Nebsitaorotherwise utilize the Application 8on/ioeu. 7.3 "Digital Content" shall mean the digital titles (e.g. eBooks, audinbnokm, magazines and video) made available from Over[)rk/eatthe LibmGryWebsite. 74 "Library" shall mean the organization or entity identified in the Library Information section of the Order Form. 7.5 "Library \Nebmihe~ shall mean the Internet-based application hosted and operated by Over[}dw9 that provides Authorized Patrons access to Digital Content. 7.8 "Order Form"shall mean the Oved]Mve Digital Library Reserve Order Form completed bv the Library. 7.7 ~OverDhxe"shall moamOver]rivg, |oo.. aDelaware Corporation, and its subsidiaries and affiliates. 7.8 °PrinmarySuppmrf' shall mean the services provided bv Library tn its Authorized Patrons for its day-bo- doyhe!p. nuppnrt,techmioo| midandotheroanistanceforthe|ruseoftheL|bmaryVVebaite and Digital Content. 7.0 "SeoondarySmpporr' shall mean the technical support services provided byQvad]riveto Library inthe English language, including reasonable efforts to assist Library in providing Primary Support. 0'1 PUBLIC ACCESS. PublicRecords Compliance, Over[}rive must comply with Florida public naoomdo |eume, including but not limited tn Chapter Y19. Florida Statutes and Section 24ofarticle Iof the Constitution of Florida. The County and OmarDhve shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other"public record" materials in its possession or under its control subject to the provisions of Chapter 118. Florida Statutes, and made nr received bv the County and OV8[Drivein conjunction vviththlo contract and related to contract performance. The County shall have the right b} unilaterally cancel this contract upon violation of this provision byOverOrive. Failure ofOverDrivobo abide bv the terms ofthis provision shall bedeemed a material breach of this contract and the Board nf Monroe County Board uf Commissioners ('Cnunty")may enforce the terms m0this provision |n the form ofecourt proceeding and eheU' as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. OverDrive is encouraged to consult with its advisors about Florida Public Records Law in order 10 comply with this provision. Pursuant toF.G. 119.0701 and the terms and conditions ofthis contract, OVerDhx8iorequired Vec May 2Q210OxerDr|ve, Inc. page 6 of to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if OverDrive does not transfer the records to the County. (4) Upon completion of the contract,transfer, at no cost, to the County all public records in possession of OverDrive or keep and maintain public records that would be required by the County to perform the service. If OverDrive transfers all public records to the County upon completion of the contract, OverDrive shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If OverDrive keeps and maintains public records upon completion of the contract, OverDrive shall meet all applicable requirements for retaining public records.All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5)A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify OverDrive of the request, and the CONTRACTOR must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If OverDdve does not comply with the County's request for records, the County shall enforce the public records contract provisions in accordance with the contract, notwithstanding the County's option and right to unilaterally cancel this contract upon violation of this provision by OverDrive. An OverDrive employee or agent who willfully and knowingly fails to provide the public records to the County or pursuant to a valid public records request within a reasonable time may be subject to penalties under section 119.10, Florida Statutes. OverDrive shall not transfer custody, release, alter, destroy or otherwise dispose of any public records unless or otherwise provided in this provision or as otherwise provided by law. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES,TO THE CONTRACTOR 'S DUTY TO PROVIDE PUBLICRECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY AT PHONE; 305-292- 3470 B RADLEY-BRIAN@MONROECOUNTY-FL.GOV, MONROE COUNTY ATTORNEY'S OFFICE 1111 12THStreet, SUITE 408, KEY WEST, FL 33040. Ver. May 20210 OverDrive, Inc. page 7 of 7