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HomeMy WebLinkAbout203943 3M LIBRARY SYSTEMS - CONTRACT - RFP - 7296 AUTOMATED MATERIALS HANDLING SORTERLIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS THIS SALES AGREEMENT ("Agreement") is made and effective as of theQa day of December, 2011 between 3M Company, a Delaware corporation, 3M Center, Bldg 225-4N-14, St. Paul, MN 55144 (" 3M" or "Service Provider"), and City of Fort Collins, Colorado, a municipal corporation, with a place of business at 215 North Mason Street, Fort Collins, CO 80524 ("Customer"), as agent on behalf of the Poudre River Public Library District, a political subdivision of the State of Colorado, 201 E. Peterson St., Fort Collins, CO 80524 ("Customer"). City of Fort Collins, District and 3M are individually referred to herein as a "Party" and collectively referred to herein as the "Parties". Terms and Conditions: 1. Definition. The definitions below shall have the same meaning throughout the Agreement and the attached Exhibits. A. "Agreement" means this 3M Purchase Agreement and the following attachments: Exhibit A — Equipment, Services and Pricing Exhibit B — Software License Agreement(s): Exhibit C — Sample Service Agreement Exhibit D— Product Warranty Exhibit E--- Work Schedule Exhibit F--- Special Provisions B. "System" means all software, hardware, tags and related supplies as set forth in Exhibit A. 2. Installation 3M will provide installation. Site preparation to be provided by the customer prior to installation to include the following: electrical power, data drop, conduit runs, hole drilling, and moving of existing fixtures that may be required. 3. Term. This Agreement shall be in effect twelve (12) months from the date it is fully executed. 4. Software. Software included in the Equipment listed above is licensed to Customer pursuant to the applicable license agreements which are attached hereto as Exhibit B. In no event will Customer permit concurrent use by more than the number of users for which applicable license fees have been paid. A breach of the applicable license agreement shall be considered a breach of this Agreement. 5. Software Ownership. The Software is and shall remain at all times the personal property of 3M (or its suppliers), irrespective of how the Software may be installed or used by Customer. 3M (or its suppliers) retains all ownership rights in the Software and Customer recognizes and agrees that it does not acquire, by this Agreement, any ownership rights, including copyright rights in the Software. 6. Support. Support obligations are as set forth in Exhibit C — Service Agreement. 7. Purchase Orders. Buyer shall place POs for all component purchases under this Agreement. The only terms in such PCs that will bind 3M will be the Buyer's name and address, dates, quantities, and description of components, provided that such terms do not conflict with nor add to the terms of this Agreement. 8. Pricing. Prices include installation, a twelve (12) month Service Agreement and Product Warranty as set forth in Exhibits C and D. 9. Payment. All payments due under the Agreement shall be made net 30 days from date on invoice. Invoice is generated at time of shipment. 10. Title and Risk of Loss. 3M retains sole ownership and Customer is solely responsible for any damage or loss, of the System until Customer makes full payment therefore or until 3M receives possession of the System. Title to the System, other than Software, will transfer to Customer upon 3M's receipt of full payment therefore. 11. Taxes. Prices do not include applicable taxes which shall be paid by Customer. 12. Non -Disclosure Obligations. Customer acknowledges that the System contains valuable trade secrets and proprietary information owned by 3M or those claiming through 3M. Proprietary and confidential information directly and indirectly {00001054 2) LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS Service Agreement Terms and Conditions WHAT WE WILL DO: Hardware: In consideration of payment of the agreement price, 3M will furnish labor and replacement parts necessary to maintain the Equipment specified in this agreement in proper operating condition during the term of this agreement, provided that the Equipment is installed by an authorized 3M Service Provider and used as directed. This Service Agreement covers Equipment failure during normal usage. 3M agrees to provide: • On -site remedial maintenance during On -Site Coverage Hours When 3M is notified that the Equipment is not in good working order 3M will provide a toll -free telephone number for Customer to place, and 3M will receive, Equipment maintenance service calls twenty-four (24) hours per day, seven (7) days per Week. • All labor, service parts and Equipment modifications 3M deems necessary to maintain the Equipment in good working order. All service parts will be famished on an exchange basis and will be new parts or parts of equal quality. For certain Equipment, 3M reserves the right to replace the entire unit with new equipment or equipment of equal quality when 3M determines that replacement is more economical than on -site repair. All Equipment and service parts removed for replacement become the property of 3M. Software: In consideration of payment of the agreement price, 3M will furnish over -the -phone software support and remote troubleshooting of the 3M Software specified in this agreement as well as updates necessary to maintain the 3M Software specified in this agreement in proper operating condition during the term of this agreement, provided that the 3M Software is installed and used as directed. 3M agrees to provide: All software configuration modifications 3M deems necessary to maintain the 3M Software in good working order 3M Software updates Internet Filter list updates (as applicable) • A toll -free telephone number for Customer to place, and 3M to receive, software support calls. Over -the -phone software support calls may be placed twenty-four (24) hours per day, seven (7) days per week. Calls will be addressed during 3M Software Support Coverage Hours in the order they were received. WHAT IS NOT COVERED: The basic maintenance fee does not include, and 3M is not obligated to provide or perform repair of damage or increase in service time caused by (i) failure of Customer to provide continually a proper operating environment and supply of power as prescribed by the Equipment manufacturer; (ii) accident; (iii) Acts of God, including but not limited to fire, flood, water, wind and lightning; (iv) neglect, abuse or misuse; (v) failure of Customer to follow 3M's published operating instructions; (vi) modification, service or repair of the Equipment by other than 3M authorized personnel; (vii) use of Equipment for purposes other than for which designed; (viii) painting or refinishing the equipment; (ix) relocation of the equipment; (x) replacement of broken or damaged cabinetry; to include items such as lattices, base covers, book check covers, etc.; (xi) electrical work external to the Equipment; (xii) cosmetic restoration (e.g., filling of holes in floor or walls, plugging or wire run openings, removal of tape residue, etc.) after removal or relocation of equipment for any reason; (xiii) restoration of Equipment performance when it has been degraded by placement of unauthorized interference sources within the affected range of said equipment; (xiv) service requests related to use of markers (strips) other than those manufactured by 3M or its authorized distributor(s), (xv) modification, or repair of the 3M Software by other than 3M authorized personnel; (xvi) use of the 3M Software for purposes other than for which designed; (xvii) virus / hacker activity; (xviii) Non-3M Software related updates and upgrades including, but not limited to, Operation System, Anti -Virus, Intrusion Detection RENEWAL: This agreement is NOT automatically renewable. If a renewal agreement is offered by 3M, the agreement price quoted will reflect the age of the product and the service costs at the time of renewal. ENTIRE AGREEMENT: This instrument sets forth the entire agreement between the parties, and no representation, promise or condition not contained herein shall modify these terms whether made prior to or subsequent to the execution of this agreement. t00001054 21 LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS Exhibit D T&TS — Library Systems Product Performance Guarantee and Standard Warranty One Year Library Systems Product Performance Guarantee: Subject to the Limitation of Liability below, 3M guarantees your satisfaction with the performance of any 3M Library System Product for 12 months from the date of installation provided that a) you are the original purchaser: b) you have executed a one (1) year 3M Service Agreement for maintenance of the Library System product: and c) the product has not been subjected to abuse, misuse, accident or neglect. Performance means the product meets 3M published product specifications. If you are not completely satisfied with the performance of your Library System Product, you may return the Library System product for a prompt refund. 3M will pay all reasonable de -installation and shipping charges to return the product to 3M. Note that all claims under this guarantee must be submitted to 3M within 12 months from the date of installation of the 3M Library Systems Product. Failure to submit a claim within this time frame will invalidate this guarantee. IMPORTANT: Consumables and non-3M branded products are excluded from this Guarantee. Warranty and Limited Remedy for Non -Software Library Systems Products Not Covered by Performance Guarantee: Unless stated otherwise in 3M product literature or packaging, 3M warrants that each 3M Library Systems Product meets the applicable specifications for a period of ninety (90) days from the date of shipment (or, in the case of hardware installed by 3M, from the date of installation). Any warranties related to 3M software are contained in separate 3M software licenses. Consumables and non-3M branded products are excluded from this Warranty and Limited Remedy. 3M MAKES NO OTHER GUARANTEES, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OR CONDITION ARISING OUT OF A COURSE OF DEALING, CUSTOM OR USAGE OF TRADE. You are responsible for determining whether the 3M product is fit for a particular purpose and suitable for your application. If the 3M product is defective within the warranty period and provided that a) the product has not been subjected to abuse, misuse, accident or neglect and b) you have notified 3M within thirty (30) days after the defect was discovered, your exclusive remedy and 3M's and seller's sole obligation will be, at 3M's option, to replace or repair the defective 3M product. Limitation of Liability: EXCEPT WHERE PROHIBITED BY LAW, 3M AND SELLER WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM 3M LIBRARY SYSTEM, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY. Guarantee and Warranty Claims: For guarantee and warranty claims, and for service, call 1-800-328-0067 {00001054 2) Exhibit E to Library Systems Sales Agreement between 3M and City of Fort Collins/PRPLD Work Schedule Library Contract award - 1 week Vendor Shop Drawings - 4 week OZ/Library Review & approval - 2 weeks Vendor Revisions for Resubmittal - 2 weeks OZ/Library Review - 2 weeks Fabrication - 8 weeks Start Date 12/12 12/19 1 /16 1/30 2/13 2/27 Installation - 4 weeks 4/23 Operation & training - 1 week per master 5/21 Schedule Final Hand over 5/28 Completion Date 12/19 1 /16 1 /30 2/13 2/27 4/23 5/21 5/28 0 Exhibit F to Library Systems Sales Agreement between 3M and City of Fort Collins/PRPLD Special Provisions Section 1. Definition. The following exhibits are added: Exhibit E-Work Schedule Exhibit F-Special Provisions Indemnify/Insurance a. The Service Provider agrees to indemnify and save harmless the City and District, their officers, agents and employees against and from any and all third party actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of an}, person or persons, or damages to property arising out of, result from or occurring as a result of the negligence or willful misconduct of Service Provider. b. The Service Provider shall take all reasonable precautions in performing the work hereunder to prevent injury to persons and property. C. Without limiting any of the Service Provider's obligations hereunder, the Service Provider shall provide and maintain insurance coverage naming the City and District as additional insureds under this Agreement of the type and with the limits specified within Attachment F-1, consisting of one (1) page, attached hereto and incorporated herein by this reference. The Service Provider before commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk Management, P.O. Box 580 Fort Collins, Colorado 80522 one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. Section 17 is deleted in its entirety and replaced as follows: Remedies. In the event a party is in default under the terms of the Agreement and has been notified in writing as to the nature of the default by the non -defaulting party , such defaulting party shall be allowed a period often (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may electto (a) terminate the Agreement; (b) treat the Agreement as continuing or (c) avail himself of any remedy at law or equity. If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred because of the default. (00001032 2� 3M 10512580 4. Section 18 is revised to read as follows: Applicable Law and Venue. This Agreement shall be governed by the laws of the State of Colorado. 5. In Exhibit A to the Sales Agreement -"Equipment, Services and Pricing," the District declines the optional products (barcodes). 6. In Exhibit C to the Sales Agreement -"Service Agreement," the "Renewal" section shall be revised to read as follows: 3M shall offer to the District, a service agreement annually for 6 years from the date of expiration of the twelve month warranty period, which service agreement shall provide for a fixed annual service cost of $22,180, subject to an annual escalator of up to 5%. 7. In Exhibit C to the Sales Agreement -"Service Agreement," the following shall be added per Colorado State law, Section 8-17.5-101 el.seg., C.R.S.: PROHIBITION AGAINST EMPLOYING ILLEGAL ALIENS: Pursuant to Section 8-17.5-101, C.R.S., er. seq., Service Provider represents and agrees that: a. As of the date of this Agreement; 1. Service Provider does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Service Provider will participate in either the e-Verify program created in Public Law 208, 104'h Congress, as amended, and expanded in Public Law 156, 1081h Congress, as amended, administered by the United States Department of Homeland Security (the "e-Verify Program") or the Department Program (the "Department Program"), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of al newly hired employees to perform work under this Agreement. (00001032 21 2 3M 10512580 b. Service Provider shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. C. Service Provider is prohibited from using the e-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. d. If Service Provider obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Service Provider shall Notify such subcontractor and the City within three days that Service Provider has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Service Provider shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Service Provider shall comply with any reasonable request by the Colorado Department of Labor and Employment ( the "Department") made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5- 102, C.R.S. f. if Service Provider violates any provision of the Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is terminated, Service Provider shall be liable for actual and consequential damages to the City arising out of Service Provider's violation of Subsection 8-17.5-102, C.R.S. (00001032 2) 3M 10512580 g. The City will notify the Office of the Secretary of State if Service Provider violates this provision of this Agreement and the City terminates the Agreement for such breach. (00001032 2) 3M 10512580 Attachment F-1 City -required Insurance 1. The Service Provider will provide, from insurance companies acceptable to the City and District, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: "The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days within written notice has been received by the City of Fort Collins." In case of the breach of any provision of the Insurance Requirements, the City or District, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City of District may deem proper and may deduct the cost of such insurance from any monies which may be due the Service Provider under this Agreement. The City and District, its officers, agents and employees shall be named as additional insureds on the Service Provider's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employment's Liability. The Service Provider shall maintain during the life of this Agreement for all the Service Provider's employees engaged in work performed under this Agreement: Workers' Compensation insurance with statutory limits as required by Colorado Law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. The Service Provider shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. (00001032 2) 3M 10512580 Aia. K CERTIFICATE OF LIABILITY INSURANCE Page 1 of 1 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. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies)must 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). PRODUCER CONTACT Willie of Minnesota, Inc. c/o 26 Century Blvd. P. O. Box 305191 PHONE FA% 877-945-7378 888-467-2378 -MAIL certificates@W1111B.COm Nashville, ' 37230-5191 INSURER(5)AFFORDING COVERAGE NAICx INSURERA: Old Republic Insurance Cany 24147-001 INSURED 3M Company INSURER B: 3M Insurance Department INSURERC: Bldg 224-5S-29 St. Paul, MN 55144 INSURER D' INSURER E' NSURER F: COVERAGES CERTIFICATE NUMBER: 17337519 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 CR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INBR TYPEOFINSURANCE OD' SUB POLICY NUMBER POLICYEFDIYVF POLICY EXP LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL UABILITY CLAIMS-MAOE1—x1 OCCUR MWZY 59131 3/1/2011 3/1/2014 EACHOCCURRENCE $ 5,000,000 X PREMISESOEaEo curence $ 11000,000 MED EXP(Any one person) $ 10,000 PERSONAL B ADV I NJURY $ 5.000.000 GENERALAGGREGATE $ 5,000,000 GEN'L AGGREGATE U MIT APPLI ES PER: POLICY PRO- LOC PRODUCTS -COMPIOPAGG $ 5 ,000,000 $ A AUTOMOBILE LIABILITY NANYAUTO ALLOWNED SCHEDULED AUTOS AUTOS HIREDAUTOS NON -OWNED AUTOS MWTB 21146 3/l/2011 3/l/2014 (CEO a¢IideD)1NGLE UMIT $ 3,000,000 BODILY INJURY(Per person) $ BODILY INJURY(Por accitlen0 $ PROPERTY DAMAGE (Peraccidont) $ UMBRELLA LIAB EXCESS LIAB OCCUR CLAIMS -MADE EACHOCCURRENCE $ AGGREGATE $ DED I RETENTION$ $ A WORKERS COMPENSATION AND EMPLOYERSLIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE Y� OFFICERMIEMBER EXCLUDED? IfMarnikoryln NH) yes, descnbe under DESCRIPTION OF OPERATIONS halo" N/A MWC116992 00 /1/2011 3/1/2012 X EL EACH ACCIDENT $ 5, 000,000 E.L. DISEASE - EA EMPLOYEE $ 5, 000, 000 E.L. DISEASE -P000Y UMIT Is 5,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach Acord 101, Additonal Remarks Schedule, H more apace is required) Regarding "General Liability anfl Automobile Liability" only, 3M Company hereby grants Additional Insured status to City of Fort Collins and the Poudre River Public Library District its officers, agents and employees and limited to the operations of 3M Company. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Poudre River Public Library District 201 E. Peterson St. Fort Collins, CO 80524 Coll:3605272 TD1:1225264 Cert:17337519 491988-ROIOACORD CORPORATION. All rights reserved ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS related to the System ("3M Confidential Information") will be disclosed by 3M to Customer during the term of this Agreement. The relationship created under this Agreement and the existence of this Agreement and any of its terms and conditions, including but not limited to pricing, are also considered 3M Confidential Information. Customer agrees not to disclose 3M Confidential Information to any third parties and agrees to use the same efforts to prevent its disclosure as is used to protect its own confidential information, with no less than a reasonable standard of care. Confidential Information does not include information that (a) was in Customer's possession before receipt from 3M, provided that the information is not known to Customer to be subject to another confidentiality agreement with or other obligation of secrecy to 3M; (b) is or becomes generally available to the public through no fault of Customer; (c) is received in good faith by Customer from a third party and is not subject to an obligation of confidentiality owed to 3M or a third party; or (d) is independently developed by Customer without reference to 3M Confidential Information received hereunder. The obligations contained in this paragraph shall survive termination of this Agreement. 13. Credit. 3M may, at its sole discretion, change or limit the amount or duration of credit to be allowed to Customer. 3M may cancel any accepted order or delay the shipment of the order, if Customer fails to meet payment schedules or other credit or financial requirements established by 3M. 14. Force Maieure. Neither parry shall be responsible for any delay or failure of performance hereunder due to, including, but not limited to, strikes, lockout, shortage of labor or other labor disturbances, riots, invasion, war, fire, explosion, sabotage, storm, flood, earthquake, inability to obtain suitable material, fuel, power, or transportation, or any other causes whatsoever beyond the reasonable control of the parties. 15. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agent, or employment relationship between the parties. Neither parry shall have the authority to obligate or otherwise act as a representative of, or agent for, the other party for any purpose, and neither party shall make any representations or hold itself out as having such authority. 16. Limitation of Liability. 3M SHALL NOT BE LIABLE TO THE OTHER PARTY, ITS SUCCESSORS, OR ASSIGNS FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOSS OF LABOR, OVERHEAD, BUSINESS OPPORTUNITY, DATA, INCOME, PROFIT, REVENUE OR SAVINGS OF ANY PARTY, INCLUDING THIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, INTENDED CONDUCT, STRICT LIABILITY IN TORT, EQUITY OR ANY OTHER LEGAL THEORY. IN NO EVENT SHALL 3M'S MAXIMUM LIABILITY EXCEED THE PRICE PAID TO 3M FOR THE DELIVERABLE(S) OR SERVICE(S) TO WHICH THE LIABILITY RELATES. 17. Disputes. Any questions, claims, disputes or litigation arising from or related to the making, performance or alleged breach of this Agreement, or to any available remedies (a "Dispute"), shall be governed by the laws as set forth in Sec. 18 below, and shall be resolved as follows: (i) upon written notice of Dispute (the "Notice"), by in -person negotiation between business representatives of the parties who have authority to fully resolve the Dispute; (ii) if within sixty (60) days of the Notice the Dispute has not been fully resolved, the parties shall conduct a confidential non -binding mediation using a location, mediator, and rules acceptable to both parties (with the costs of mediation shared equally); (iii) if the Dispute is not then resolved, and as a last resort only, either party may commence litigation; provided that any lawsuit must be filed and maintained in accordance with Section 18 below. Northing herein shall preclude either party from taking whatever actions it deems necessary to prevent immediate, irreparable harm to its interests. 18. Applicable Law and Venue. This Agreement shall be governed by the laws of the State of Minnesota, without regard to its principles of conflicts of law. Any lawsuit commenced by a party to this Agreement must be commenced in a federal or state court of competent jurisdiction in Ramsey County, Minnesota. 19. Assignment. No party to this Agreement may assign, transfer, sublicense, or delegate this Agreement or any of its rights, duties, obligations, or interests under this Agreement without 3M's prior written approval. This Agreement will not be considered a transferable asset. 3M expressly reserves the right to terminate this Agreement on the sale of all or substantially all of the stock, assets, management or control of Customer. Notwithstanding the foregoing, 3M agrees to cooperate reasonably with any transfer of the Customer's assets in whole to another entity provided that such entity is not considered, in the reasonable opinion of 3M, a competitor of 3M in the library markets. Any assignment, transfer, or delegation of this Agreement or any interest in this Agreement, without 3M's prior written consent, is voidable at 3M's option and cause for termination of this Agreement. Nothing in this Agreement will be 100001054 2} LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS construed to grant any person or entity not a party to this Agreement any rights or powers whatsoever. No person or entity will be a third party beneficiary of this Agreement. 20. Waiver. The waiver or failure of either party to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any further right by such party under this Agreement. 21. Severability. If a court or tribunal of competent jurisdiction will for any reason, hold any provision of this Agreement invalid, illegal, or unenforceable, the provision will be deemed severable and the invalidity, illegality, or unenforceability will not affect any other provision of this Agreement which must be enforced in accordance with the intent of this Agreement, however, a party adversely affected by such holding may terminate this Agreement effective immediately, without penalty, upon notice thereof to the other party. 22. Acceptance. This Agreement is not binding on 3M until it has been accepted in writing by Security Systems Division at 3M Center, St. Paul, MN. This is the sole and exclusive manner of acceptance. Any other promise or act, including a promise to ship or shipment, does not constitute acceptance by 3M of this Agreement. Once signed, please deliver this Agreement to 3M by fax or mail: 3M TBTSD Customer Service Fax 1-800-223-5563 or 3M Company, 3M Center, Bldg 225-4N-14, St. Paul, MN 55113-3682. For questions, call Customer Service 1-800-328-0067. Fed ID# 41-041- 7775. 23. Entire Agreement and Amendments. This Agreement and its Exhibits are intended to be the final, complete and exclusive statement of all terms and conditions of the agreement between the parties relating to the matters covered and supersedes all prior agreements, whether written or oral, all other communications between the parties relating to the subject matter of this Agreement and any course of dealing or usage of trade. Each party agrees that it has not relied on any representation or warranty not expressly stated in this Agreement. This Agreement can be amended only by a writing signed by both parties. No oral modification is possible. A course of performance does not effect a modification or a waiver unless ratified in writing by the party to be bound. 24. Special Provisions. Special provisions or conditions relating to this Agreement are set forth in Exhibit F, attached hereto and incorporated herein by this reference. Accepted and Agreed to: 3M Company Customer Name: a Poudre"the PoliticalColor By:By[ Print Name: Print Name: Michael D. Liggett, Board President Mary Dies Contract Administrator Poudre River Public Library District, Title: Acting Through its Agent, the City of Fort ollins, Colorado, a municipal por ion .� By: � Jai -es A. O'Neill II, CPPO, FNIGP Di cto of Purchasing and Risk Date: 1, ��� j Z Date: Ma ement, Z ),Q g / 7541 1000010544 2} LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS Exhibit A Equipment, Services and Pricing Customer Name: City of Fort Collins, Poudre River Public Library District Installation Site(s): Main Library, 201 Peterson Street, Fort Collins, CO The pricing below include installation, project management, training, shipping and a twelve month warranty/license. Quantity Item Description Unit Price Total 1 each 3M Intelligent Return and Sorter System FX including: $197,795 $197,795 • 1 — Intelligent Return, Plus — interior wall mounted • 1 — Intelligent Return, Plus — exterior wall mounted 1 —Staff Return 1 — 3M Sorter FX with nine sort locations • 5 — Individual Conveyor Modules • 9 — Bins • 1 — Hold/Exception Printer • 2 — Pre -installation Site Visits and Consultations 1 lot Installation $ Included $ Included 1 lot 12-Month Warranty $ Included $ Included SUBTOTAL —ALL ABOVE ITEMS $197,795 1 lot Shipping and Handling $1,540 $1,540 TOTAL $199,335 Ongoing Costs Our annual service contracts are optional and cover parts, labor, travel, and software support. As an alternative to purchasing an annual service contract, you can choose to have us service your equipment on a time and materials basis. A small number of our products do require the payment of an annual licensing fee and these are identified with an asterisk. Item Description Annual Ongoing Service Costs 3M Intelligent Return and Sorter System FX with 9-bin sorter $22,180 Optional Products Shipping and handling are to be determined based upon quantities purchased. Item Description Unit Price Barcode Scanner for the Intelligent Return Unit $1,190 ea Barcode Scanner for the Staff Return Unit $1,695 ea f000010554 2; LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS Exhibit B 3M SELFCHECK SYSTEM SOFTWARE LICENSE USE OF THE 3MTm SELFCHECKT`r SYSTEM SOFTWARE IS GOVERNED SOLELY BY THE TERMS OF THIS LICENSE. THE SOFTWARE MAY BE USED BY CUSTOMER AND ITS EMPLOYEES AND AGENTS ONLY FOR CUSTOMER'S BENEFIT AND IN ACCORDANCE WITH THE LICENSE SET FORTH BELOW: 1.3M SelfCheck System Software. As used in this License, "Software" means the proprietary 3M SelfCheck System Software licensed to Customer (initial below): X 3M Intelligent Return and Sortor Software including but not limited to any updates (e.g., maintenance releases, modifications to existing functionality or new functionality) that may be provided to Customer by 3M, at 3M's option, during the term of this License. 3M is under no obligation to issue updates. 2. License. During the term of this License, 3M grants Customer the nonexclusive, nontransferable right to use the Software solely for Customer's internal business purposes, and only in combination with 3M Self -Check system hardware, with the exception of the Model 895 Software which may be installed on a single personal computer at the Customer's location. Except as provided above, Customer may not use the Software with scanning equipment or similar hardware supplied by any other party. The parties acknowledge that the Software is the sole and exclusive property of 3M or its licensors. Portions of the Software provided by 3M's licensors may be subject to additional license terms made available to Customer either as part of the license terms below or referenced by 3M and contained in a separate attachment, and Customer hereby assents to those terms in consideration for its use of the Software. Certain features of the Software may be provided on a time limited basis or subject to other conditions, as referred to in the exhibits to the Sales Agreement between 3M and the Customer, or other addendum to this License. 3M's grant of a license is expressly conditioned upon Licensee's use of the Software pursuant to this License; any other use shall be considered unlicensed and shall subject Licensee to any and all remedies available to 3M at law or equity, including but not limited to claims of copyright infringement. 3. Prohibitions. Customer may not, without 3M's prior written consent (i) sublicense, lease, lend or transfer the Software to any third party; (ii) use, or permit the use of, the Software for the benefit of, or by, any third party, such as use of the software as a service bureau; (iii) make copies of the Software except in the normal course of use or for archival purposes; (iv) use the Software at any location other than the Site; or (v) disassemble, reverse engineer or create derivative works of the Software except as permitted by law. Customer agrees to reproduce all copyright and proprietary rights notices included in the Software on copies that it is authorized to make. 4. Operating Results. Customer is solely responsible for the use it makes of the Software, including, but not limited to, monitoring and verifying the input to and output from the Software. 3M makes no warranties whatsoever about the results to be obtained by Customer's use of the Software. 5. LIMITED WARRANTY AND DISCLAIMER. 3M warrants to Customer that, for a ninety (90) day period following delivery of the Software, the then -current version of the Software will perform in substantial accordance with the corresponding documentation when used as instructed. If the Software fails to meet this warranty, 3M's sole obligation and Customer's sole remedy will be, at 3M's option, replacement or correction of the Software to perform as warranted or refund of the applicable separate license fee paid. This warranty is void if the Software is modified or used with software or equipment for which it was not intended. EXCEPT FOR THIS LIMITED WARRANTY, 3M AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON -INFRINGEMENT AND TITLE AND THOSE ALLEGEDLY ARISING FROM TRADE USAGE OR COURSE OF DEALING. 3M DOES NOT WARRANT THAT THE SOFTWARE IS FREE FROM ALL BUGS, ERRORS OR OMISSIONS. 6. Limitation of Liability. 3M and its licensors will not be liable to Customer for any loss or damage resulting from lost data or information. Further, except for personal injury, 3M and its licensors will not be liable for any indirect, special, incidental or consequential damages or economic loss based upon breach of warranty, breach of contract, negligence, strict liability in tort or any other legal theory, even if 3M has been advised of the possibility of such damages. THE PARTIES AGREE THAT 3M'S AND ITS LICENSORS' MAXIMUM CUMULATIVE LIABILITY FOR ACTUAL DAMAGES FOR ALL MATTERS ARISING OUT OF OR RELATING TO THIS LICENSE SHALL NOT EXCEED TEN THOUSAND DOLLARS (S 10,000) IN THE AGGREGATE. 100001054 2; LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS Some states or countries may have laws that require liability rights different from those stated above. In such states or countries, the minimum required liability terms shall apply. 7. Term and Termination. This License will terminate if (i) a party materially breaches a provision of this License and fails to cure such breach within thirty (30) days after receiving a written notice of breach from the nonbreaching party; or (ii) Customer discontinues use of the Software. Upon termination of this License for any reason, Customer shall cease all further use of the Software and, at 3M's option, destroy or return to 3M all copies then in Customer's possession or control. At 3M's request, Customer will certify to 3M in writing that it is in full compliance with the requirements of this paragraph. 8. U.S. Government End Users. This provision applies to all acquisitions of this Software by or for the Federal Government or by any prime contractor or subcontractor (at any tier) for the Federal Government under any contract, grant, cooperative agreement, other transaction, or other agreement with the Federal Government. By accepting delivery of this Software, the Federal Government hereby agrees that this Software qualifies as "commercial" computer software within the meaning of the acquisition or financial assistance regulations applicable to this procurement. The terms and conditions of this License shall apply to the Government's use and disclosure of this Software and shall supersede any conflicting contract terms and conditions. If this License fails to meet the Government's needs or is inconsistent with federal law, the Federal Government agrees to return this Software, unused, to 3M. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): "Restricted Rights — Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT. 1988)." 9. Export Law Assurances. The laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software. Customer agrees that it will not export or re-export the Software in any form without the appropriate United States Government and foreign government licenses. Customer agrees that its obligations under this paragraph survive and continue after any termination or expiration of rights under this License. 10. General Provisions. This License constitutes the entire agreement between 3M and Customer with respect to use of the Software. This License is governed by and construed under Minnesota law, excluding its conflicts of law provisions. The parties agrees that, in the event of any disputes arising between the parties, jurisdiction and venue for resolving such disputes shall reside exclusively in the state and federal courts in Ramsey County, Minnesota., USA. This License, or any of the rights granted herein, may not be amended, assigned, sublicensed or transferred by Customer without 3M's prior written consent. Failure of 3M to enforce any provision will not constitute a waiver of such provision or of the right to enforce such provision. If any provision of this License is held to be unenforceable by a court, the validity and enforceability of the other provisions will not be affected. The provisions of paragraphs 5, 6, 7, 8 and 9 will survive any termination or expiration of rights under this License. This software contains Adobe® Flash® Player. Copyright © 1996 - 2008 Adobe Systems Incorporated. All Rights Reserved. Adobe and Flash are either trademarks or registered trademarks in the United States and/or other countries. This Software contains Adobem Shockwave® Player. Copyright © 1996 - 2008 Adobe Systems Incorporated. All Rights Reserved. Adobe and Shockwave are either trademarks or registered trademarks in the United States and/or other countries. Apache License Version 2.0, January 2004 http://www.apache.org/licenses/ TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION 1. Definitions. "License" shall mean the terms and conditions for use, reproduction, and distribution as defined by Sections 1 through 9 of this document. "Licensor" shall mean the copyright owner or entity authorized by the copyright owner that is granting the License. (00001054 21 LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS "Legal Entity" shall mean the union of the acting entity and all other entities that control, are controlled by, or are under common control with that entity. For the purposes of this definition, "control" means (i) the power, direct or indirect. to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares, or (iii) beneficial ownership of such entity. "You" (or "Your") shall mean an individual or Legal Entity exercising permissions granted by this License "Source" form shall mean the preferred form for making modifications, including but not limited to software source code, documentation source, and configuration files. "Object" form shall mean any form resulting from mechanical transformation or translation of a Source form, including but not limited to compiled object code, generated documentation, and conversions to other media types. "Work" shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below). "Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof. "Contribution" shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, "submitted" means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as "Not a Contribution." "Contributor" shall mean Licensor and any individual or Legal Entity on behalf of whom a Contribution has been received by Licensor and subsequently incorporated within the Work. 2. Grant of Copyright License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no -charge, royalty -free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form. 3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no -charge, royalty -free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross -claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed. 4. Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions: a. You must give any other recipients of the Work or Derivative Works a copy of this License', and b. You must cause any modified files to carry prominent notices stating that You changed the files; and c. You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and d. If the Work includes a "NOTICE" text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as 100001054 2} LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; or, within a display generated by the Derivative Works, if and wherever such third -party notices normally appear. The contents of the NOTICE file are for informational purposes only and do not modify the License. You may add Your own attribution notices within Derivative Works that You distribute, alongside or as an addendum to the NOTICE text from the Work, provided that such additional attribution notices cannot be construed as modifying the License. You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License. 5. Submission of Contributions. Unless You explicitly state otherwise, any Contribution intentionally submitted for inclusion in the Work by You to the Licensor shall be under the terms and conditions of this License, without any additional terms or conditions. Notwithstanding the above, nothing herein shall supersede or modify the terms of any separate license agreement you may have executed with Licensor regarding such Contributions. 6. Trademarks. This License does not grant permission to use the trade names, trademarks, service marks, or product names of the Licensor, except as required for reasonable and customary use in describing the origin of the Work and reproducing the content of the NOTICE file. 7. Disclaimer of Warranty. Unless required by applicable law or agreed to in writing, Licensor provides the Work (and each Contributor provides its Contributions) on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON -INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License. 8. Limitation of Liability. In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages. 9. Accepting Warranty or Additional Liability. While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability. END OF TERMS AND CONDITIONS 100001054 21 LIBRARY SYSTEMS SALES AGREEMENT BETWEEN 3M AND CITY OF FORT COLLINS Exhibit C Sample Service Agreement 3M Service Agreement Library Systems Agreement Issued To: This Service Agreement covers the Equipment listed below for the period shown. (Please see reverse side for important terms and conditions.) Model Number Serial Number Annual Fee Zane Fee Whet: You Need Service: Call 1-800-328-0067 and select option #1 to place a service call. You'll need to give your Model and Serial Number when requesting service. Service Agreement Number: Service Agreement Effective Period: Begins: Ends: OUR PLEDGE We are a worldwide team of professional men and women committed to providing innovative products and services that exceed customer expectations. By constantly consulting our customers, and our competitors' customers, we seek to be the business partner that inspires confidence and trust through market -directed research and product development. 100001054 2;