AGREEMENT WITH MIDWEST TAPE, LLC
FOR DIGITAL AND PHYSICAL MEDIA SERVICES
This Agreement, made and entered into this day of September 23, 2026, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California ("CITY"), and MIDWEST TAPE, LLC, an Ohio limited liability company (“CONTRACTOR”), whose address is 1417 Timberwolf Drive, Holland, OH, 43528.
RECITALS:
A. CITY desires certain Digital and Physical Media Services, including, without limitation, access to CONTRACTOR’S Hoopla Platform, which allows participating libraries to provide their users with access to digital media content using smart phones, tablets, computers, streaming devices, and web browsers, as hereinafter described.
B. CITY desires to engage CONTRACTOR to provide these Digital and Physical Media Services by reason of its qualifications and experience for performing such services and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
.
The scope of services to be performed by CONTRACTOR related to the provision and delivery of Digital Media Services under this Agreement is as described in Exhibit A to this Agreement, which is attached and incorporated by reference. As to Physical Media Services, CONTRACTOR will fulfill orders for physical media as placed by the CITY and in accordance with CONTRACTOR's standard terms for the sale of physical media.
SECTION 2 - DUTIES OF CONTRACTOR
CONTRACTOR shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONTRACTOR under this Agreement. CONTRACTOR shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONTRACTOR represents that it is qualified to furnish the services described under this Agreement.
CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR.
CONTRACTOR agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONTRACTOR and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONTRACTOR's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on July 1, 2025, and be completed on June 30, 2028. The City, at its discretion, holds an option to extend the term of the Agreement for an additional three-year term.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONTRACTOR a fee in an amount not to exceed $300,000 per term year, with a total potential agreement amount of $1,800,000 if City exercises its three-year option, a fee pursuant to rates stated in Exhibit B, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONTRACTOR. CONTRACTOR agrees to cease all work under this Agreement upon receipt of said written notice, and CITY agrees to pay CONTRACTOR for all fees and expenses incurred prior to such termination.
SECTION 7 – OWNERSHIP; INTELLECTUAL PROPERTY
Notwithstanding any other provision of this Agreement, CITY shall have no right, title, or interest in or to CONTRACTOR’s Hoopla Platform, any digital titles or other content made available through the Hoopla Platform (collectively, “Digital Titles”), the Hoopla applications, the Hoopla website, the Library Administration Website, or any of CONTRACTOR’s trademarks, data, artwork, or other materials delivered by or on behalf of CONTRACTOR in connection with this Agreement. CITY may not access, use, modify, or reproduce any portion of any source code relating to the Hoopla Platform, or make, sell, or distribute any variations or derivative works of the Hoopla Platform. This Agreement does not grant CITY, or the patrons of its library system, any public performance rights in the Digital Titles, and neither CITY nor its library patrons may offer any Digital Titles as a performance to the public, whether sponsored by CITY or otherwise. Vendors that supply Digital Titles and related materials to CONTRACTOR retain all of their intellectual property rights in and to such Digital Titles and materials. As between the parties, CONTRACTOR owns and retains all intellectual property rights in and to the Hoopla Platform, the Hoopla applications, the Hoopla website, the Library Administration Website, and all other of CONTRACTOR’s intellectual property, including but not limited to all modifications, updates, or improvements made thereto.
SECTION 8 - CONFIDENTIALITY
All reports, documents, data, and other materials prepared by CONTRACTOR in connection with the performance of this Agreement are confidential until released by CITY to the public or otherwise authorized for release by CITY, subject to applicable law. CONTRACTOR shall not make any such reports, documents, data, materials, or related non-public information available to any individual or organization not employed by CONTRACTOR or CITY without the prior written consent of CITY, except to CONTRACTOR’s subcontractors, agents, legal advisors, or professional advisors who need access for purposes of this Agreement and are informed of the confidential nature of the information, or as required by law.
To the extent CONTRACTOR provides CITY with non-public proprietary, technical, security, business, or trade secret information that CONTRACTOR identifies as confidential, CITY shall treat such information as confidential to the extent permitted by applicable law. CONTRACTOR acknowledges that CITY is a California public entity and that records in CITY’s possession may be subject to disclosure under the California Public Records Act or other applicable law. If CITY receives a request for records that CITY reasonably determines may include CONTRACTOR’s identified confidential information, CITY will make reasonable efforts, to the extent legally permitted and reasonably practicable, to notify CONTRACTOR before disclosure so that CONTRACTOR may seek appropriate protection.
SECTION 9 – INTEREST OF CONTRACTOR
CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
SECTION 10 - CONTRACTOR'S STATUS
It is expressly agreed that in the performance of the services required under this Agreement, CONTRACTOR shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONTRACTOR an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONTRACTOR agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONTRACTOR’s performance of this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONTRACTOR agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONTRACTOR’s duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 – LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES
CONTRACTOR MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED
OTHERWISE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT
LIMITED TO LOST PROFITS OR LOST BUSINESS OPPORTUNITY, ARISING OUT OF OR RELATING TO THIS
AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT RESTRICTION OF THE FOREGOING, CONTRACTOR’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY CITY TO CONTRACTOR DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THAT THE CLAIM AROSE. NOTHING IN THIS SECTION 12 IS INTENDED TO LIMIT CITY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, OR TO EXPAND CITY’S LIABILITY BEYOND WHAT IS PERMITTED UNDER APPLICABLE LAW.
SECTION 13 - INSURANCE
CONTRACTOR shall procure and maintain for the duration of the contract the insurance specified in Exhibit C to this Agreement.
SECTION 14 - NONASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONTRACTOR and cannot be transferred, assigned, or subcontracted by CONTRACTOR without the prior written consent of CITY.
SECTION 15 - RELIANCE UPON SKILL OF CONTRACTOR
It is mutually understood and agreed by and between the parties hereto that CONTRACTOR is skilled in the performance of the work agreed to be done under this Agreement and that CITY relies upon the skill of CONTRACTOR to do and perform the work in the most skillful manner, and CONTRACTOR agrees to thus perform the work. The acceptance of CONTRACTOR's work by CITY does not operate as a release of CONTRACTOR from said obligation.
SECTION 16 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in a total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this provision that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONTRACTOR warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONTRACTOR nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONTRACTOR shall testify at CITY's request if litigation is brought against CITY in connection with CONTRACTOR's services under this Agreement. Unless the action is brought by CONTRACTOR, or is based upon CONTRACTOR's wrongdoing, CITY shall compensate CONTRACTOR for preparation for testimony, testimony, and travel at CONTRACTOR's standard hourly rates at the time of actual testimony.
SECTION 21- NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Rukshana Singh
City of San Mateo
55 W. Third Avenue
San Mateo, CA, 94402
To CONTRACTOR: Midwest Tape, LLC
Attn: Sue Bascuk
1417 Timberwolf Drive
Holland, OH 43528
With a copy to:
Midwest Tape, LLC
Attn: Legal
1417 Timberwolf Drive
Holland, OH 43528
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONTRACTOR.
SECTION 23 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
IN WITNESS WHEREOF, CITY OF SAN MATEO and MIDWEST TAPE, LLC have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONTRACTOR
Alex Khojikian
City Manager
Date Sue Bascuk
Its Authorized Agent
Vice President
Date
APPROVED AS TO FORM
Bahar Abdollahi
Assistant City Attorney
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Payment Rates
Exhibit C: Insurance Requirements
EXHIBIT A
SCOPE OF SERVICES
Vendor will provide certain Digital and Physical Media Services, including, without limitation, access to the Hoopla Platform, which allows libraries to provide their users with access to digital media content using smart phones, tablets, computers, streaming devices, and web browsers.
As to Physical Media Services, Vendor will fulfill orders for physical media as placed by the City and in accordance with Vendor’s standard terms for the sale of physical media.
The chart below describes the distribution models included in Midwest Tape’s hoopla offering as of the Effective Date, including the digital media licenses that are available via the Digital Media Platform.
Instant Borrows Flex Borrows
License type PPU (Pay-Per Use) OCOU (One-Copy/One-User) Circulations /
Borrows
An Instant Title is a work that is
available for simultaneous access by
multiple users. Instant Titles may be
accessed via PPU Circulations,
otherwise referred to as Instant Borrows,
each of which allows a user to stream,
download, and/or access the chosen
Instant Title, or collection of Titles (e.g., a
“Binge Pass”, described below), for a
limited time that terminates upon the
expiration of a fixed period or earlier
“return” by the user. Instant Borrows are
available regardless of whether another
user has borrowed the same title for use
at the same time. For each Instant
Borrow, the Library purchases one Instant
License to authorize that particular
borrow. A “Binge Pass” is an Instant
Borrow that provides the borrower
access to a collection of titles, either
directly through hoopla or through a
third-party website or application.
A Flex Title is only available to one user at a time,
via a digital OCOU Circulation, otherwise
referred to as a Flex Borrow. If the Library has an
available Flex License to a Flex Title, a Patron
may activate a Flex Borrow and that license is
digitally checked out and considered “in use.”
Other users cannot access that title during that
borrow unless (i) the Library has purchased
additional Flex Licenses to the same title, one of
which is available at that time, or (ii) the same
title also is available as an Instant Title. A Flex
Borrow allows a user to stream, download,
and/or access the title for a limited time that
terminates upon the expiration of a fixed period
or earlier “return” by the user.
Available
Formats
All formats (audiobooks, eBooks,
comics, movies, television, music, and
magazines). Binge Passes are available
only for select titles and may not be
available for all formats.
Currently available only for audiobooks and
eBooks.
Payment
obligations
A PPU-Circulation Fee is charged for
each Instant Borrow. The fees, which
are listed on the Library Administration
Website, vary by title and format, and are
subject to change from time to time.
Where available, Flex Licenses may be
ordered via the hoopla Digital Library
Administration Website. The costs of these
licenses vary by title and format. Fees for Flex
Licenses are invoiced after each purchase
(typically daily).
EXHIBIT B
PAYMENT RATES
Prices for materials will vary depending on the title and material being ordered/delivered to the CITY, with an annual agreement amount not to exceed $300,000.
EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
If the contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the contractor.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the Contractor’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or selfinsurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the Contractor’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
Contractor hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance.
Contractor agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.