R2018-94 Library Automation Software ContractRESOLUTION 2018-94
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA APPROVING A CONTRACT WITH
BYWATER SOLUTIONS, LLC FOR THE KOHA INTEGRATED LIBRARY
MANAGEMENT SYSTEM AND AUTHORIZING THE MAYOR AND
VILLAGE CLERK TO EXECUTE THE CONTRACT ON BEHALF OF THE
VILLAGE; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Village sought proposals from vendors to replace the Village Library's current
management system when the contract with SirsiDynix expires on September 30, 2019; and
WHEREAS, Village Staff recommended accepting the lowest cost proposal from ByWater
Solutions, LLC for the Koha Integrated Library Management System at a cost of $10,500 for the
first year and $3,000 for the second year; and
WHEREAS, contracts spanning multiple fiscal years in excess of $10,000 require approval by
the Village Council; and
WHEREAS, the Village Council determines that the adoption of this Resolution is in the best
interests of the Village and its residents.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE
OF NORTH PALM BEACH, FLORIDA as follows:
Section 1. The foregoing recitals are ratified as true and incorporated herein.
Section 2. The Village Council hereby accepts the proposal from ByWater Solutions, LLC
for the Koha Integrated Library Management System at a total cost of $10,500 for the first year,
with funds expended from Account No. A7927-33491 (Library — Contractual Services). The
Village Council further authorizes the Mayor and Village Clerk to execute a Contract with
Bywater Solutions, LLC for such services, a copy of which is attached hereto and incorporated herein.
Section 3.
This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 25TH DAY OF
(Village Seal) .
ATTEST:
01
VILLAGE CLERK
ByWater
S 0 L U T10 N S
CONTRACT FOR SERVICES
This Contract for Services ("Contract") is made effective as of 10/25/2018, by and between The
Village of North Palm Beach, a Florida municipal corporation, of 501 U.S. Highway One, North
Palm Beach, FL 33408 ("Client"), and ByWater Solutions LLC, of P.O. Box 1346, Santa
Barbara, California 93102 (`ByWater").
1. TERM. The service term shall be effective from 10/1, 2019 to 9/30 2021. Upon completion of
this term, the Client will have the option to renew for additional two-year terms. Either party
must notify the other in writing sixty (60) days prior to the end of the then -current Term of their
intention to modify the Contract. Renewal Contract may fall under different terms and
conditions. Payments will signify the Clients wish to renew the Contract into a new two-year
term.
2. DESCRIPTION OF SERVICES. ByWater will provide the Client the following services
(collectively, the "Services"):
(a) Installation and Implementation of Koha Integrated Library System ("Koha"),
including the initial migration of no more than 50,000 Bibliographic Records
to Koha.
(1) Data extraction from current legacy system is the responsibility of the
Client.
(2) Testing of initial migration is the responsibility of the Client.
(3) OPAC customization will include application of Client logos,
preferred fonts and colors to ByWater template.
(4) Database size increases by more than 50% throughout the life of this
Contract will result in pricing increases. All pricing increases will be
communicated with the Client prior to server upgrades.
(b) Terms regarding technical support for the Client are as follows:
(1) Critical support will be available (24) hours per day, 7 days per week..
Critical support includes system failure or complete loss of access to
the Koha system. Other support calls during hours in which the
Client's facility is closed will be addressed by level of importance; i.e.
system failure dictates immediate response time, training questions
will be addressed within 24 hours;
(2) The support package will also cover software updates and Koha
enhancements that may be applicable to the Client.
(c) Hosting for the Client's data will be located in a remote cloud, and Service
providers may change at any time, at the absolute and sole discretion of
ByWater. ByWater will not be responsible for force majeure events including
natural disasters and communication line failures that may cause data
corruption.
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(d) Training is required and will be provided for a minimum of three (3) days
onsite or via webinar to be determined at the discretion of Bywater.
Additional training will be provided upon request of Client. Clients not
previously using Koha as the library's primary ILS must receive training.
3. PAYMENT FOR SERVICES. In exchange for the Services the Client will pay Bywater
according to the following schedule:
(a) Installation/Data Migration: $3,900.00, payment due on or before 3/4/2019.
(b) Annual support and hosting fee: $3,000.00, due on or before 10/1 of each year,
beginning on 10/1, 2019.
(c) Training: $3,600.00 for the first 3 days (24 hours) payment due on or before
Payments not received within 60 days of the due date will result in termination of support
services until receipt of payment. Payment not received within 90 days of due date shall result in
termination of hosting services until receipt of payment. Payments may be made via check and
direct deposits (ACH). Alternate payment methods will result in a convenience fee based on a
sliding scale. For avoidance of doubt, any delay in implementation of the Software requested or
caused by the Client shall not be grounds for the Client to likewise delay payment of any fees
then due and owing.
4. WORK PRODUCT OWNERSHIP. Any copyrightable works, ideas, discoveries, inventions,
patents, products, or other information (collectively the "Work Product") developed in whole or
in part by Bywater solely in connection with the Services will be the exclusive property of the
Client. Upon request, Bywater will execute all documents necessary to confirm or perfect the
exclusive ownership of the Client to the Work Product. All such Work Product developed on
behalf of the Client will be made available under the terms of the open source license in effect
for Koha at the time the code is written (currently GPL v3). A copy of the code will be given to
the Client even though the code may be hosted. A good faith effort will be made both by the
Client, and by ByWater at the coding stage, to integrate all code into the public, koha-
communi1y.orB code base, or wherever the public code base may subsequently be located. Upon
expiration or termination of this Contract, ByWater will: (a) return to the Client all records,
notes, documentation and other items owned by the Client that were used, created, or controlled
by ByWater during the term of this Contract; and (b) assist Client in exporting data from
ByWater's data cloud to Client, at no additional charge.
5. CONFIDENTIALITY. ByWater, and its employees, agents, or representatives will not at any
time or in any manner, either directly or indirectly, use for the personal benefit of ByWater, or
divulge, disclose, or communicate in any manner, any information that is proprietary to the
Client, except (a) if and to the extent the information is already a matter of public knowledge; (b)
such disclosures as may be necessary to ByWater's attorney or accountant (collectively,
"Permitted Confidants"); or (c) such disclosures as are required by law or by any litigation
between the parties hereto with respect to this Contract. ByWater shall also timely require each
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of its Permitted Confidants to keep that information confidential. Before making any disclosure
required by law, Bywater, or the Permitted Confidant, as the case may be, shall give Client as
much notice thereof as is legally permitted, along with a copy of the proposed disclosure. The
foregoing duties of confidentiality shall survive the termination of this Contract.
6. RELATIONSHIP OF PARTIES. Client and Bywater agree that the status of ByWater is that
of independent contractor, and not that of employee, principal, agent or joint venture partner of
Client. Neither party has authority. to enter into contracts or assume any obligations for or on
behalf of the other party or to make any warranties or representations for or on behalf of the
other party.
7. WARRANTY. ByWater shall provide the Services and meet its obligations under this
Contract in a timely and workmanlike manner, using knowledge and recommendations for
performing the Services which meet generally accepted standards in ByWater's industry. Aside
from the express warranties stated in this Contract, ByWater hereby disclaims any and all other
warranties related to the products and services offered under this Contract, including but not
limited to warranties of non -infringement, merchantability or fitness for a particular purpose, and
whether such warranties are oral or written, express or implied. ByWater does not in any way
warrant that Koha will operate without interruption or be error free. ByWater shall have no
liability for damages resulting from the following, including, but not limited to: hosting
inoperability, interruption due to product or delivered software malfunction (provided that
regular daily backups are conducted by ByWater), loss of profits, goodwill, damage or loss of
data, or any other indirect, special or consequential damages suffered by Client.
8. REMEDIES. If Client or ByWater fails to perform its obligations under this Contract, the non -
breaching party shall have the right to terminate the Contract and to seek whatever remedy may
be available to it, either in law or in equity. In the event that a claim or cause of action arises out
of the interpretation, performance, or breach of this contract, the prevailing party shall be entitled
to a reasonable attorney's fee in addition to costs of suit. The parties hereto hereby consent to the
personal jurisdiction and venue of Palm Beach County, Florida with respect to any claim or
cause of action arising from this Contract, and hereby waive any objection to such venue based
upon the doctrine of forum non conveniens.
9. LIMITATION OF LIABILITY. BYWATER WILL HAVE NO LIABILITY FOR ANY
INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL,OR PUNITIVE
DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS CONTRACT
OR THE PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY
UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT, LOSS, INACCURACY, OR
DESTRUCTION OF INFORMATION OR DATA COLLECTED, STORED, DISTRIBUTED,
OR MADE AVAILABLE VIA THE PRODUCTS AND SERVICES, CLIENT'S USE OR
INABILITY TO USE THE PRODUCTS AND SERVICES, ANY CHANGES TO OR
INACCESSIBILITY OF THE PRODUCTS AND SERVICES, ANY DELAY OR FAILURE OF
THE SERVICES, OR FOR LOST PROFITS, OR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, EVEN IF BYWATER HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, BYWATER'S LIABILITY TO
CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION WILL BE LIMITED
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TO THE AMOUNT CLIENT ACTUALLY PAID BYWATER FOR THE INDIVIDUAL
BYWATER PRODUCTS OR SERVICES COVERED UNDER THIS CONTRACT OVER THE
12 MONTHS PRIOR TO WHICH SUCH CLAIM AROSE. THIS LIMITATION APPLIES TO
ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO,
BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. FEES UNDER THIS
CONTRACT ARE BASED UPON THIS ALLOCATION OF RISK. THIS SECTION WILL
NOT APPLY TO DAMAGES THAT CANNOT BE LIMITED OR EXCLUDED BY LAW (IN
WHICH EVENT THE LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT
PERMITTED).
10. ENTIRE AGREEMENT. This Contract contains the -entire agreement of the parties, and
there are no other promises or conditions in any other Contract whether oral or written
concerning the subject matter of this Contract. This Contract supersedes any prior written or oral
Contracts between the parties.
11. SEVERABILITY. If any provision of this Contract will be held to be invalid or
unenforceable for any reason, the remaining provisions will continue to be valid and enforceable,
provided that no party is, as a result thereof, deprived of its substantial benefits under this
Contract. If a court finds that any provision of this Contract is invalid or unenforceable, but that
by limiting such provision it would become valid and enforceable, then such provision will be
deemed to be written, construed, and enforced as so limited.
12. AMENDMENT. This Contract may only be changed, modified, amended or discharged by a
Contract in writing executed by the parties hereto.
13. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the
State of Florida.
14. NOTICE. Any notice or communication required or permitted under this Contract shall be
sufficiently given if delivered in person or by certified mail, return receipt requested, to the
address set forth in the opening paragraph or to such other address as one party may have
furnished to the other in writing.
15. ASSIGNMENT. Neither parties may assign or transfer this Contract without the prior written
consent of the other party.
16. BINDING EFFECT. This Contract shall inure to the benefit of and be binding upon the
parties named herein and their respective heirs, successors and assigns.
17. EXECUTION. This Contract may be executed in two or more counterparts, each of which
together shall be deemed an original, but all of which together shall constitute one and the same
instrument. In the event that any signature is delivered by facsimile transmission or by e-mail
delivery of a ".pdf'format data file, such signature shall create a valid and binding obligation of
the Party executing (or on whose behalf such signature is executed) with the same force and
effect as if such facsimile or ".pdf'signature page were an original hereof.
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18. INDEMNIFICATION. The parties hereto shall fully indemnify, hold harmless and defend
one another from and against all claims, demands, actions, suits, damages, liabilities, losses,
settlements, judgments, costs and expenses (including but not limited to reasonable attorney's
fees and costs) (collectively, "Claims") which arise out of or relate to (1) any breach of any
representation or warranty of a party hereto contained in this Contract, (2) any breach or
violation of any covenant or other obligation or duty of a party hereto under this Contract or
under applicable law, in each case whether or not caused by the negligence of a party hereto and
whether or not the relevant Claim has merit. Neither ByWater or Client shall be liable to the
other for loss, damage, or delay in the work caused by war, riot, the act or order of any
competent civil or military authority, strikes, unauthorized work stoppage or by rain, fire, flood,
act of God or by any cause which is unavoidable and beyond its reasonable control. In .addition,
ByWater'is not liable for loss or damage suffered by the Client or any third party not caused by
the employees, agents or equipment of ByWater. Nothing set forth herein shall create a
contractual relationship with or a cause of action in favor of a third party against either party nor
shall this Contract be construed as a waiver of sovereign immunity beyond the limited waiver set
forth in Section 768.28, Florida Statutes.
19. PUBLIC RECORDS. IF BYWATER HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, * TO THE
BYWATER' S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS
CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (561)
841-3355; NPBCLERKgVILLAGE-NPB.ORG; OR 501 U.S. HIGHWAY ONE,
NORTH PALM BEACH, FL 33408.
In performing services pursuant to this Contract, ByWater shall comply with all relevant provisions
of Chapter 119, Florida Statutes. As required by Section 119.0701, Florida Statutes, BYWATER
shall:
1. Keep and maintain public records required by the Client to perform the service.
2. Upon request from the Client's custodian of public records, provide the Client with a copy
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 Chapter 119, Florida -Statutes, 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 the ByWater does not transfer the
records to the Client.
4. Upon completion of the Contract, transfer, at no cost, to the Client all public records in
possession of ByWater or keep and maintain public records required by the Client to
perform the services. If ByWater transfers all public records to the Client upon completion
of the Contract, ByWater shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If ByWater keeps and
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maintains public records upon completion of the Contract, Bywater shall meet all applicable
requirements for retaining public records. All records stored electronically must be provided
to the Client, upon request from the Client's custodian of public records, in a format that is
compatible with the information technology systems of the Client.
THE VILL GF OF NORTH A BEACH
By.
Date: 60 d✓'r
Attest:
Melissa Teal, Village Clerk
Approved as to form and
legal sufficiency:
Village Attorney
BYWATER SOLUTIONS LLC
By:
Name: Brendan Gallagher
Title: Chief Executive Officer
Duly Authorized
Date: 60-r- L"2 --'t �F
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