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HomeMy WebLinkAboutItem 11 - Agreement for Digital Content Services 'per Library www.santa-ana.org/library Item # 11 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report February 3, 2026 TOPIC: Agreement for Digital Content Services AGENDA TITLE Agreement with Midwest Tape for Hoopla Digital Book, Video, and Music Content (Cannabis Public Benefit Fund) RECOMMENDED ACTION Authorize the City Manager to execute an Agreement with Midwest Tape, LLC to provide Hoopla Digital Content in an amount not to exceed $75,000 for a term expiring February 9, 2028 (Agreement No. A-2026-XXX). GOVERNMENT CODE 484308 APPLIES: Yes DISCUSSION On February 10, 2022, the City entered into an agreement with Midwest Tape to offer Hoopla Digital Media Platform as a pilot service. Due to strong patron demand, the City subsequently entered into a new agreement in February 2024 to continue the service and provide additional funding through February 10, 2026. Given the continued high usage of Hoopla Digital Media Platform, the Library seeks to enter into a new agreement with Midwest Tape to increase funding to $50,000 in year one and $25,000 in year two. Although the agreement is two years in term, all required payments will be completed by February 2027. Hoopla's "pay-in-advance" (pay-per-use) model means the Library purchases digital "credits" upfront and only expends these credits when patrons check out an audiobook, movie, or eBook, giving the Library control over costs while offering instant, wait-free access to digital content, much like a digital token system. In recent years, electronic content such as e-books, e-audiobooks, and video streaming has become increasingly popular and is now an essential component of the Library's e- services, particularly during the renovations of both the Newhope and Main libraries. Library patrons can access Hoopla Digital Media Platform through multiple methods such as via the Santa Ana Public Library's website, Hoopla app, and various Agreement for Digital Content Services February 3, 2026 Page 2 smartphones, tablets, and streaming devices. With a valid Santa Ana Public Library card, patrons may browse the Hoopla digital collection and check out materials. Users can easily download books, videos, and audiobooks to their computers or mobile devices, and titles automatically expire at the end of the lending period. These downloadable materials provide library patrons of all ages with a convenient way to access information from home or anywhere with an internet connection. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The current fiscal year funding is available in the FY 25-26 budget and future fiscal year funding will be included in the proposed budgets for City Council consideration as follows: Fiscal Year Accounting Fund Accounting Unit, Amount Unit-Account # Description Account Description Library Youth Services, FY 25-26 01211020 — Cannabis Public Contract Services- $50,000 62300 Benefit Fund Professional Library Youth Services, FY 26-27 01211020 — Cannabis Public Contract Services- $25,000 62300 Benefit Fund Professional Advance payments are required at the start of each contract year and will be applied to transactions generated by Library patron use of the platform. All required payments will be completed by February 2027. EXHIBIT(S) 1. Agreement Submitted By: Brian Sternberg, Executive Director of Library Services Approved By: Alvaro Nunez, City Manager hoopla° Digital Media Agreement This hoopla Digital Media Agreement ("Agreement") is made as of this 15th day of January 20 26 ("Effective Date") by and between City of Santa Ana Public Library (the "Library"), and Midwest Tape, LLC. WHEREAS, Midwest Tape's hoopla Digital Media Platform ("hoopla," the "Platform," or the "hoopla Platform") allows participating libraries to provide their users with access to digital media content using smart phones, tablets, computers, streaming devices, and web browsers; and WHEREAS, the Platform is designed to be accessible 2417 and offers various licenses to media content in multiple formats, including, without limitation, movies,television programs, music, audiobooks, eBooks, and comics, subject to circulation limits (if any) and other settings established by the user's library system; and WHEREAS, the Library wishes to make hoopla available to its authorized users ("Patrons"); NOW THEREFORE, in consideration of the promises and mutual covenants contained in this Agreement, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Library and Midwest Tape (each a "Party" and collectively the"Parties") agree as follows: 1. DEFINITIONS. The following definitions apply wherever these terms appear in this Agreement, including the Appendices: 1.1 "Digital Media Platform" means one or more computer programs or applications owned, maintained, and/or used by Midwest Tape to provide access to Digital Titles and/or to allow the Library to manage its offering and Patron use of Digital Titles, including the hoopla Application, hoopla Website, and Library Administration Website. 1.2 "Digital Titles" means any and all digital media content that Midwest Tape makes available to the Library and its Patrons via the Digital Media Platform during the Term of this Agreement. 1.3 "Flex Borrow" or "Flex Circulation" means an OCOU Circulation, as defined in Appendix 2 to this Agreement. As set forth in the attached Appendix 2, a Flex Borrow occurs when a Patron uses the hoopla Application or hoopla Website to borrow a Digital Title that is at that time available to that user in the form of a one-copy/one-user ("OCOU") license owned or controlled by the Library. 1.4 "Flex License" means a one-copy/one user license ("OCOU License"), as set forth in the attached Appendix 2. 1.5 "hoopla Application" means one or more computer applications maintained, owned, and/or used by Midwest Tape to provide access for limited periods to Digital Titles (including the ability to browse, borrow, stream, download, and/or return such titles) using certain streaming devices, smart phones, tablets, and/or other mobile devices. 1.6 "hoopla Website" means a Midwest Tape website (currently www.hoopladigital.com) that may be used to access, browse, borrow, stream, and/or return Digital Titles. 9/2022US- PPU/OCOU Page 1 1.7 "Instant Borrow" or "Instant Circulation" means a PPU Circulation, as defined in Appendix 2 to this Agreement. As set forth in the attached Appendix 2, an Instant Borrow occurs when a Patron uses the hoopla Application or hoopla Website to borrow a Digital Title(or to obtain access to a"Binge Pass") pursuant to a pay-per-use ("PPU") license that is paid for by the Library. 1.8 "Instant License" means a pay-per-use license ("PPU License"), as set forth in the attached Appendix 2. 1.9 "Intellectual Property Rights" means all rights in and to patents, trademarks, service marks, trade names, copyrights, trade secrets, technology, software, designs, algorithms, know- how, as well as moral rights and all other intellectual and proprietary rights of any type under any applicable laws. 1.10 "Library Administration Website" means one or more Midwest Tape website(s) (currently available at www.midwesftapes.com) that may be accessed and utilized by the Library to obtain OCOU Licenses, manage content available to Patrons in the Platform, and administer Library policies in regard to Patron use of the Platform. 1.11 "Library Online Catalog" means the website(s) owned, maintained, and/or used by or for the Library for the purpose of providing information to Patrons and/or the general public about the Library and its various content offerings, policies, objectives, initiatives, and procedures. 1.12 "Marks" means any trademarks, service marks, trade names, logos, designs, icons, characters, cover art, styles, trade dress, or other indicators of source associated with any Digital Titles, including without limitation all translations or transliterations of the foregoing in any language, or any colorable imitations or modified versions thereof. 1.13 "Midwest Tape" means Midwest Tape, LLC and any of its parents, subsidiaries, or affiliated entities that are engaged in the business of selling and distributing media content in digital form to libraries and library users via the Platform. 1.14 "Pre-Owned Content" has the meaning set forth in Appendix 2. 1.15 "Service Partners" means any third parties that provide digital storage, webhosting, IT services, data analysis and processing, or distribution or other services to Midwest Tape in connection with the Platform. 1.16 "Title Summary and Promotional Data" means, with respect to each Digital Title, the following information and data that is made available to Library pursuant to this Agreement: (i) title; (ii) author(s), publisher, illustrator(s), narrator(s), actor(s), director(s), producer(s), studio(s), and similar descriptive information; (iii) if commercially used, the digital object identifier; (iv) narrative description or summary of the work; (v)cover art and image, graphics, and other images; (vi) copyright notice; and (vii) any other identifying information. 1.17 "Vendor" means any supplier to Midwest Tape of (i) Digital Title(s); (ii) Title Summary and Promotional Data; and/or (iii) technology or services necessary for Midwest Tape to provide the Platform to the Library. 2. Library RIGHTS &OBLIGATIONS. 9/2022US- PPU/OCOU Page 2 2.1 Rights. During the Term, and subject to all the terms and limitations set forth in this Agreement, Midwest Tape grants to the Library the non-exclusive and non-transferrable right to display and access the Platform and Title Summary and Promotional Data for the limited purpose of: (a) allowing Patrons to access, view, and borrow Digital Titles through the Platform and pursuant to this Agreement; (b) promoting awareness and authorized use of the Platform, including via postings on the Library Online Catalog; and (c) establishing and implementing Library-specific policies in regard to use of the Platform by the Library and Patrons, consistent with this Agreement and the requirements of the Platform. 2.2 Limitations. Except for the limited, non-exclusive, non-transferrable rights expressly granted to Library under this Agreement, Library shall have no right in or to, or ownership of, the Platform, Digital Titles, hoopla Application, hoopla Website, Library Administration Website, Marks, Title Summary and Promotional Data, or any other artwork or materials delivered by or on behalf of Midwest Tape. The Library shall have no right to access, use, modify, or reproduce any portion of any source code relating to the Platform, or to make, sell, or distribute any variations or derivative works of the Platform. The Library agrees to the support and protection of Intellectual Property Rights (including but not limited to copyright and trademark protections), to discourage copyright or trademark infringement, to use its best efforts to prohibit Patrons or others from engaging in such infringement (including by immediately notifying Midwest Tape of any known or suspected violations of Intellectual Property Rights relating to use of the Platform or the Digital Titles), and to refrain from facilitating such activity. In addition, the Library will comply with all other requirements communicated by or on behalf of Midwest Tape with respect to any Intellectual Property Rights and the Marks. 2.3 No Public Performance Rights. The Library shall have no public performance rights in the Digital Titles under the terms of this Agreement. Accordingly, the Library may not offer any Digital Titles as a performance to Patrons or the general public, sponsored by the Library or otherwise. 2.4 General Obligations. To facilitate the successful introduction of the Platform to Patrons, and the use of the Platform by Patrons, the Library shall: (a) regularly communicate to staff, Patrons, and the general public served that the Platform is available to Patrons; (b) provide suitable training opportunities to appropriate Library staff members, so that they understand the Platform and can assist in the promotion and the use of the Platform by Patrons; (c) regularly feature prominent links and references to popular Digital Titles and the hoopla Website on the Library Online Catalog's homepage; (d) incorporate MARC record data regarding Digital Titles in the Library's catalog to enhance the discoverability of key content available in the Platform; (e) manage all funds designated or appropriated for use of the Platform; (f) participate in the implementation of the Platform, including without limitation by providing Midwest Tape with sufficient and accurate information to identify Patrons of the Library who are authorized to utilize the Platform; (g) provide Primary Support, as defined below; (h) perform requested linkage between the Platform and the Library Online Catalog, as well as reasonable technical services to support and maintain the Platform during the Term; and (i); notify Midwest Tape at least three (3) business days before any change in any RSS links, ILS configuration, URL updates, or other equipment or technology that could adversely impact the Platform and/or the use of the Platform, including any changes that could impact the process of Patron authentication. 2.5 Network Connectivity. The Library is responsible for providing a suitable network and Internet system for integration of the Platform into the Library Online Catalog or other systems. 9/2022US - PPU/OCOU Page 3 2.6 Use of the Library Administration Website. The Library agrees that it is solely responsible for managing its use of the Library Administration Website and using that website as designed and in accordance with the Terms and Conditions posted on that website, including by establishing, verifying, and maintaining any settings and controls regarding use of the Platform by Patrons (e.g., limitations on circulations, content restrictions, reporting preferences, etc.). 2.7 Library Online Catalog. The Library is solely responsible for all aspects of catalog integration, operation, training, support, and/or maintenance necessary for the operation of the Library Online Catalog. This may include obtaining a SIP2 or similar protocol software license(s) from a third-party vendor in order to support direct integration of the Platform with the Library's own Library Online Catalog or other systems, as well as the cost for customized MARC records it may obtain from a third-party supplier such as OCLC. The Library shall keep its hoopla account information current with Midwest Tape and promptly alert Midwest Tape to any significant changes relating to the Library Online Catalog, including but not limited to changes of personnel that could impact the support, functionality, and/or performance of the Platform. 2.8 Primary Support. The Library is responsible for providing its Patrons with "Primary Support," which includes assisting Patrons with the use of the Platform, responding to Patron questions regarding the functionality and technical requirements of the hoopla Website and the hoopla Application, and helping Patrons with the process of communicating with Midwest Tape where necessary and appropriate to obtain additional support and technical assistance. 2.9 No Warranties or Representations to Others. The Library represents and agrees that, except for the representations, warranties, and promises made to Midwest Tape in this Agreement or under the Terms and Conditions applicable to the Library Administration Website, neither the Library nor any of its employees, agents, or others acting under its direction has made or will make any representations or warranties, express or implied, to anyone concerning the Platform, Digital Titles, hoopla Application, hoopla Website, and/or Library Administration Website. 2.10 Compliance with Applicable Laws and Regulations. The Library will comply with all applicable laws, ordinances, rules, regulations, and other legal requirements in connection with its performance under this Agreement. 2.11 Costs and Expenses. The Library is responsible for all of its own expenses and costs related to its performance under this Agreement. Midwest Tape has no obligation to reimburse the Library for any expenses or costs incurred by the Library related to this Agreement or to the performance of the Library's obligations, including but not limited to any expenses and costs incurred in the preparation, systems integration, or use of the Digital Media Platform, Library Administration Website, hoopla Website, and hoopla Application. 3. FEES, PAYMENTS &REPORTING. 3.1 Advance. On or before the Effective Date, the Library shall remit to Midwest Tape an advance/down payment ("Advance") in the amount of 1st year (Feb 10, 2026 to Feb 9, 2027) - $50,000 & 2"d year (Feb 10, 2027 to Feb 9, 2028) - $25,000 i.e., the amount indicated for the Library's service-area population in the attached Appendix 1. Any funds remaining in the current agreement will roll over to the new agreement. These funds will be applied toward payment of future invoices for transactions relating to the use of the Platform by the Library and Patrons (see, e.g., Appendix 2), unless the Library notifies Midwest Tape on or before the Effective Date that the Library instead prefers to use such funds to pay Midwest Tape for hoopla promotional materials, events, or communication efforts in connection with the introduction of hoopla to Library 9/2022US — PPU/OCOU Page 4 Patrons. Upon written notice to Midwest Tape, the Library may choose to send additional funds to Midwest Tape to reestablish or replenish the Advance. 3.2 Invoicing and Payment. Except for purchases of Flex Licenses (which will be invoiced to the Library by Midwest Tape after each purchase), Midwest Tape will invoice the Library by Invoice Period. "Invoice Period" means a calendar monthly period in which transactional activity occurs. Payment of each invoice will be due within forty five (45) days from the date of the invoice. During any period in which Midwest Tape is holding an Advance from the Library, Midwest Tape will apply the Advance funds toward payment of the invoice upon issuance. 3.3 Reporting. Through the Library Administration Website, the Library will have access to certain reports summarizing Patron usage, circulation data, and purchase activity for the Digital Titles. 3.4 Taxes. The Library is required to provide a sales tax exemption certificate, if applicable, to Midwest Tape as part of the on-boarding process. If the Library is not exempt or does not do so, Midwest Tape will add (and collect) sales taxes to any purchases made pursuant to this Agreement. 4. TERM AND TERMINATION. 4.1 Tenn. The term of this Agreement(the"Term") begins on the Effective Date and continues for a period of 24 months thereafter. 4.2 Termination. This Agreement may be terminated in either of the following ways: By Notice. Either Party may terminate this Agreement, with or without cause, at the end of the Term by providing the other Party with sixty (60) days' advance written notice prior to the end of the Term. Due to Breach. Either Party may suspend its performance or, at that Party's sole option, terminate this Agreement by providing the other Party with written notice of such action in the event of(i)the other Party's material breach of this Agreement, which breach continues uncured for a period of thirty (30) days after written notice of such breach; or (ii) the Library's failure to perform its payment obligations under this Agreement for a period of at least thirty (30) days. If any period of such suspension exceeds 30 days, the non- breaching Party may terminate this Agreement by providing the other Party with written notice of such action. Upon termination of this Agreement, the Library shall immediately (i) cease distribution and use of the Platform, hoopla Application, hoopla Website, Digital Titles, Marks, Title Summaries and Promotional Data; and (ii) pay all amounts due to Midwest Tape. Once the Library satisfies these obligations, any unapplied portion of an Advance payment will be refunded within thirty (30)days. 5. MIDWEST TAPE RIGHTS &OBLIGATIONS. 5.1 The hoopla Platform. During the Term, Midwest Tape and/or its Service Partners will provide forthe following: (a) hosting of and support for the Platform as provided in this Agreement; (b)designation of an implementation specialist ("hoopla Coordinator")to be available for customer support to the Library in connection with the launch and implementation of the Platform; and (c) Library access to the Library Administration Website, which offers tools to enable the Library to 9/2022US- PPU/OCOU Page 5 manage use of the Platform, including in regard to its inventory, Patron borrowing limits, lending policies, title blocking, ratings and user-advisory settings, usage dashboard, and reporting. 5.2 Ownership of Vendors' Intellectual Property. Subject to the provisions of this Agreement, hoopla Vendors retain all of their Intellectual Property Rights in and to their Digital Titles, Metadata, Marks, and Promotional Postings, artwork, and other property that may be utilized or accessed in connection with the Platform. 5.3 Ownership of Midwest Tape's Intellectual Property. As between the Parties, Midwest Tape owns and retains all Intellectual Property Rights in and to the Digital Media Platform, hoopla Application, hoopla Website, Library Administration Website, Midwest Tape and hoopla and hoopla digital trademarks, and all other Midwest Tape intellectual property, including but not limited to all modifications, updates, or improvements made thereto. The Library acknowledges Midwest Tape's ownership of such Intellectual Property Rights. 5.4 Modifications to Digital Media Platform. The Platfomn, hoopla Application, hoopla Website, Library Administration Website, and other aspects and features of hoopla may be modified at any time by Midwest Tape in its sole discretion, including, without limitation, in order to develop, modify, or improve operations, performance, or functionality. 5.5 Addition, Removal, and Modifications of Digital Titles. Midwest Tape has the right to take any or all of the following actions with respect to any Digital Title(s) at any time and in its sole discretion: (a) add or remove Digital Titles to or from the Platform; (b) set or adjust the applicable fees and charges, including, without limitation, PPU Circulation Fee(s), OCOU License Fees, and/or other charges relating to the Platform and/or the media content available on the Platform; (c) replace content files, Metadata, and/or Promotional Postings; and (d) edit or modify editorial content or designs. The Library will be notified by email, the Library Administration Website, or other means of major modifications to the functionality of the Platform. 5.6 Promotion of the Platform. Midwest Tape may, at its own expense and in its own discretion, publicize the Platform and communicate with the general public and Patrons regarding the availability, features, and use of the Digital Titles, Digital Media Platform, hoopla Application, and hoopla Website. 5.7 Support. To support the Platform, Midwest Tape will (a) maintain help files, information, and other appropriate documentation and training materials; (b) undertake reasonable efforts to help the Library perform its obligation to provide Primary Support to Patrons, including by offering periodic training opportunities to Library staff, updating the Library regarding system changes, and providing the Library with answers to "frequently asked questions" related to the Platform; (c) supply activation support, including assisting with the implementation of any software, and reasonable levels of continuing support to assist the Library in its use of the Platform; and (d) make technical support personnel available for feedback, problem solving, and/or general questions. Technical support services to the Library include: (i) reasonable efforts to identify, correct, and/or circumvent errors in the Platform, hoopla Application, hoopla Website, and Library Administration Website; and (ii) supplying updates, enhancements, and new versions of the Platform as they become available(the"Secondary Support"). It is acknowledged and agreed that Midwest Tape has no obligation to provide Primary Support to Patrons and any support provided to Patrons will be in its sole discretion. During the Term, Midwest Tape will use reasonable efforts to provide continuous service. Permissible down time includes periodic unavailability due to matters such as: maintenance of 9/2022US - PPU/OCOU Page 6 the server(s); installation or testing of software, public or private telecommunications services, or internet nodes or facilities; and failure of equipment or services outside its control. Scheduled down time will occur periodically and at times designed, in Midwest Tape's sole discretion, to minimize inconvenience to hoopla users. 6. MISCELLANEOUS. 6.1 Indemnities. Each Party ("Indemnifying Party") agrees to defend, indemnify, and hold harmless the other Party and its parents, subsidiaries, and Service Partners from and against any and all third-party claims, demands, suits, legal proceedings, and causes of action that arise out of or relate to any breach by the Indemnifying Party of any of its representations and warranties as stated in this Agreement(collectively, "Indemnifiable Claims") or the Indemnifying Party's gross negligence or willful misconduct in performance if its obligations under this Agreement, including but not limited to all damages, costs, expenses, reasonable attorneys' fees, judgments, and settlements resulting from such Indemnifiable Claims; provided, however, that no Indemnifiable Claim may be settled without the express written consent of the Indemnifying Party. 6.2 Indemnity Process. The Party seeking indemnification must provide prompt written notice to the Indemnifying Party of any Indemnifiable Claim for which indemnification will be sought. The Indemnifying Party may elect to control the defense and settlement of any Indemnifiable Claims with counsel of its choosing. The Party seeking indemnification will cooperate with the Indemnifying Party's defense against the Indemnifiable Claims. If any Indemnifiable Claim is covered in part but not entirely by a Party's indemnification obligation hereunder, the Indemnifying Party will only be responsible for costs to the extent attributable to the covered portion. 6.3 DISCLAIMER OF WARRANTIES. MIDWEST TAPE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. 6.4 LIMITATION OF LIABILITY. 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, MIDWEST TAPE'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY LIBRARY TO MIDWEST TAPE DURING THE TWELVE MONTHS PRIOR TO THE DATE THAT ANY CLAIM ALLEGEDLY AROSE. Hoopla shall maintain the insurance set forth in Appendix 4 during term of Agreement. 6.5 Confidential Information. "Confidential Information" means any non-public information of either Party that is disclosed to the other Party in connection with this Agreement either directly or indirectly, in writing, orally, electronically, or by inspection of tangible objects, and that is either: (a)designated in writing as "Confidential"at the time of disclosure or within five (5) days thereafter; or (b) confidential by its very nature or that the receiving Party reasonably should know to be confidential. Confidential Information includes, without limitation,the terms of this Agreement, any and all non-public business plans, customer information, pricing, contract terms, available content and sales, marketing and/or finances of the disclosing Party. Each Party agrees to hold the Confidential Information of the other Party in confidence and to refrain from disclosing such 9/2022US — PPU/OCOU Page 7 Confidential Information to any third party, except: (i) to the extent required to be disclosed pursuant to governmental or judicial process, provided that notice of such process is promptly provided to the disclosing Party in order that it may have every opportunity to intercede in such process to contest such disclosure or seek an appropriate protective order; or (ii) to the receiving Party's professional advisors and contractors on a need to know basis, provided that such advisors and contractors are under an obligation to maintain the confidentiality of the Confidential Information. Confidential Information is the property of the disclosing Party, and the receiving Party will not be deemed by virtue of its access to Confidential Information to have acquired any right or interest in or to any such Confidential Information. This Section 6.5 shall not affect either Party's right to use or disclose information that is not Confidential Information, including information that is in the public domain or that the receiving Party can show was known to it without any confidentiality obligation prior to the disclosure by the disclosing Party. 6.6 Assignment. Except as provided herein, neither Party may, by operation of law or otherwise, assign, sublicense, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, which may not be unreasonably withheld or delayed. Either Party may assign, transfer, or otherwise delegate any or all of its rights and obligations under this Agreement to any parent or subsidiary entity, any successor carrying on that part of the business to which this Agreement relates, or any purchaser of all or substantially all of the assets or stock of such Party. Each Party may appoint contractors to perform part of its obligations hereunder, provided that the Party remains fully responsible for such contractor's performance. This Agreement binds, benefits, and is enforceable by and against both Parties and their respective successors and permitted assigns. 6.7 Notices. Notices required by this Agreement must be sent by United States mail, as well as by electronic mail (or by facsimile), directed as follows: To Midwest Tape: To Lrbyary' Midwest Tape, LLC: Brian Sternberg, Executive Director 1417 Timberwolf Dr. _Library Services Holland, Ohio 43528 20 Civic Center Plaza (M-42) info@midwesttapes.com PO Box 1988 1 (800) 875-2785 Santa Ana, CA 92702 6.8 Amendment. No amendment, modification, addendum, or revision to this Agreement is valid unless it is in writing and signed by all Parties to this Agreement. 6.9 Arms-Length Negotiations. This Agreement was negotiated at arm's length with each Party receiving advice from independent legal counsel, and has been executed and delivered in good faith. It is the intent of the Parties that no part of this Agreement should be construed against any Party because of the identity of the drafter. 6.10 Counterparts. This Agreement may be executed in counterparts, each of which taken together constitutes one single Agreement between the Parties. 6.11 Entire Agreement/Non-Reliance. This Agreement constitutes the sole and entire agreement between the Parties and supersedes and merges all prior agreements, proposals, negotiations, discussions, and understandings between the Parties relating to the subject matter of this Agreement. No Party has relied or can rely on any statement or representation that is not expressly contained in this Agreement as an inducement to enter into this Agreement. 9/2022US - PPU/OCOU Page 8 6.12 Force Maieure. No Party may be considered in default or to have incurred any liability hereunder due to any failure to perform this Agreement should such failure arise out of causes beyond its reasonable control, including, without limitation, work stoppages, fires, riots, accidents, floods, storms, unavailability of utilities or fuel, Internet or other communication failures, or other similar failures or occurrences. The time for performance will be extended for a period equal to the duration of such conditions. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date first written above. ACCEPTED AND AGREED ACCEPTED AND AGREED CITY OF SAIVTA AIVA MIDWEST TAPE, LLC By: By: Print Name: ALVARO NUNEZ Print Name: Sue Bascuk Print Title: City Manager Print Title: Vice President Date Signed: Date Signed: 16/01/2026 ATTEST: JENNIFER L. HALL City Clerk APPROVED AS TO FORM: RECOMMENDED FOR APPROVAL: SONIA R. CARVALHO City Attorney By: By: Brian Sternberg(Jan 15,2026 14:36:56 PST) ---JONATHAN T. MAR�'INEZ BRIAN STERNBERG Assistant City Attorney Executive Director, Library Services 9/2022US - PPU/OCOU Page 9 Appendix 1 Advance Schedule Population of Library System Advance in Area U.S. Dollars > 1,000,000 $200,000 500,000 - 999,999 $100,000 300,000 -499,999 $75,000 200,000 - 299,999 $50,000 100,000 - 199,999 $35,000 50,000 - 99,999 $20,000 16,000 -49,999 $10,000 8,000 - 15,999 $5,000 <8,000 $2,000 Advance (Fill in: blanks below according to Schedule above.) Population of Library System Area Advance 310,000 $75,000 9/2022US - PPU/OCOU Page 10 Appendix2 hoopla® Incenses and Distribution Models 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 Borrows License type PPU (Pay-Per Use) OCOU (One-Copy/One-User) i Circulations/ An Instant Title is a work that is A Flex Title is only available to one user at Borrows available for simultaneous access by a time, via a digital OCOU Circulation, multiple users. Instant Titles may be otherwise referred to as a Flex Borrow. If accessed via PPU Circulations, the Library has an available Flex License to otherwise referred to as Instant a Flex Title, a Patron may activate a Flex Borrows,each of which allows a user to Borrow and that license is digitally stream, download, and/or access the checked out and considered "in use." chosen Instant Title, or collection of Other users cannot access that title during Titles (e.g., a "Binge Pass", described that borrow unless (1) the Library has below), for a limited time that purchased additional Flex Licenses to the 1 terminates upon the expiration of a same title,one of which is available at that fixed period or earlier "return" by the time, or(ii) the same title also is available user. Instant Borrows are available as an Instant Title. A Flex Borrow allows a regardless of whether another user has user to stream, download, and/or access borrowed the same title for use at the the title for a limited time that terminates same time.For each Instant Borrow,the upon the expiration of a fixed period or Library purchases one Instant License to earlier"return" by the user. 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. All formats (audiobooks, eBooks, Available comics, movies, television, music, and Currently available only for audiobooks. formats magazines). Binge Passes are available only for select titles and may not be and eBooks. available for all formats. A PPU-Circulation Fee is charged for Where available, Flex Licenses may be Payment each Instant Borrow. The fees, which ordered via the hoopla Digital Library obligations are listed on the Library Administration Administration Website. The costs of website, vary by title and format, and these licenses vary by title and format. are subject to change from time to time. Fees for Flex Licenses are invoiced after The fee is charged regardless of whether each purchase(typically daily). the borrowed content is actually 9/2022US- PPU/OCOU Page 11 I Instant Borrows FlexBorrows (continued) accessed, viewed, streamed, or downloaded by the user. Fees for Instant Borrows are invoiced monthly. To optimize Libraries' media purchases, Same. To optimize Libraries' purchases, Borrow Flex Borrows are prioritized over instant Flex Borrows are prioritized over Instant priority Borrows of Instant Titles when possible. Borrows of Instant Titles when possible. Therefore, if a user requests an Instant Title, and at that time a Flex License to that title is available,the borrow will be fulfilled as a Flex Borrow and no PPU- Circulation Fee will apply. (Note that this priority does not apply to Instant Borrows of Binge Passes. Users may borrow Binge Passes regardless of whether select titles within the Binge Pass may be available as Flex Licenses.) A Flex License may be either perpetual, or Metering N/A "metered." Some publishers do not offer restrictions perpetual licenses, but instead offer metered licenses. Metered licenses are limited by time period and/or number of permitted borrows, as described in the Library Administration Website. If the Library has acquired OCOU Licenses Pre-Owned from another source (Pre-Owned Content Content), Midwest Tape may be able to include.them as Flex Licenses on hoopla for the Library's use hereunder. The Library is responsible for (1) providing an accurate list of Pre-Owned Content for N/A M idwest Tape's review (consistent with Appendix 3), and (2) notifying the owner and/or licensor of such Pre-Owned Content when the Pre-Owned Content is to be removed.The format to be used for listing the Library's Pre-Owned Content, including the required certification, is set forth on Schedule 1 to Appendix 3. 9/2022US— PPU/OCOU Page 12 Appendix 3 Procedure for Pre-Owned Content ("POC") 1. Library to provide inventory of POC. Promptly on or after the Effective Date, Library shall provide to Midwest Tape a written inventory of Pre-Owned Content(if any)that the Library has obtained prior to the Effective Date or otherwise outside the scope of this Agreement. 2. Format of inventory and additional information regarding POC. The written inventory shall be provided in table format as set forth in Part 1 of Schedule 1,or in another mutually agreeable format,and shall include the following information,for each license comprising Library's Pre-Owned Content: (1) the title,format(eBook or Audiobook),author(s),street date,publisher,ISBN number; (2) the date of purchase of the license,and the license type(e.g., Perpetual license, Limited Borrows license, Limited Time Period license,Limited Borrows&Time Period license); (3) the rights that Library has to that copy of the work,including the term and expiration date(if any)of the license and any other metering or other limitations on the term of the license(e.g., borrow limit), including the amount of time and/or number of borrows already used, as well as number of borrows remaining available,for the license as of the date of transfer;and (4) the name and contact information of the company or other entity from which Library obtained the license (or, if the Library owns the copyright in a work,a statement identifying Library's ownership of such work). Library agrees to work in good faith to effectuate the assignment and transfer of Library's rights in such Pre-Owned Content to Midwest Tape, including, but not limited to notifying the owner and/or licensor of such Pre-Owned Content when the content is transferred. Upon request, Library also shall provide Midwest Tape with copies of any licenses,purchase orders, agreements,or any other documents reflecting Library's purchase or license of any Pre-Owned Content. Warranty by Library regarding POC Rights: Library represents and warrants that it owns the rights and licenses in and to the Pre-Owned Content set forth in Schedule 1 to Appendix 3, and that unless specifically stated in the Schedule, Library is authorized to assign or otherwise transfer such Pre-Owned Content to Midwest Tape as provided for under the terms of this Agreement. 3. Assignment by Library of Rights in POC As set forth on Schedule 1 to this Appendix 3,to the extent that Library has licensed any Pre-Owned Content,Library assigns and transfers its rights in or to such Pre-Owned Content to Midwest Tape for the purpose of allowing Midwest Tape to store, display, reproduce,grant rights of access to,convert,encode,distribute or otherwise administer and make such Pre-Owned Content available to Patrons via the hoopla Platform. Similarly,if and to the extent that Library owns the copyright to any content that may be made available to Patrons via the Digital Media Platform,Library hereby grants Midwest Tape a fully paid, royalty-free license to include such content in the Digital Media Platform and to make such content available via the Digital Media Platform without charge, and Library represents and warrants that such content does not infringe the copyright, trademark,or other rights of any third party.To the extent that Library cannot assign or otherwise transfer its rights in or to any Pre-Owned Content to Midwest Tape,Library grants Midwest Tape the exclusive right to negotiate with the owner and/or licensor of such Pre-Owned Content on Library's behalf,to obtain an assignment,transfer,license or any other rights necessary to allow Midwest Tape to store, display, reproduce, grant rights of access to, convert, encode, distribute or otherwise administer and make such Pre-Owned Content available to Patrons via the Digital Media Platform. 4. Efforts to include POC on the hoopla Platform to the extent possible. Upon receipt of the Library's inventory of Pre-Owned Content, Midwest Tape will work to assess the extent to which it can include some or all of the Pre-Owned Content via the Platform. Library acknowledges and agrees that: (i) Midwest Tape's ability to offer Pre-Owned Content on the Platform depends upon factors outside of Midwest Tape's control,including without limitation the scope and assignability of the Pre-Owned Content; and (ii) Midwest Tape does not represent or warrant that any or all Pre-Owned Content can or will be made available through the Platform. If Midwest Tape determines, in its sole discretion,that any Pre-Owned Content may be made available to Library's Patrons on the Platform,Midwest Tape will arrange to provide such Pre-Owned Content subject to the terms and conditions set forth in Library's existing licenses for such Pre- Owned Content or on such other terms and conditions that Midwest Tape may obtain from the owner of such Pre-Owned Content. 9/2022US - PPU/OCOU Page 13 Schedule 1 to Appendix 3 of hoopla° Digital Media Agreement Certified List of Pre-Owned Content to be Transferred to Midwest Tape Part 1-List Format:Library to provide a table,in Excel or CSV format,listing each OCOU License to be transferred to Midwest Tape as Pre-Owned Content. The table shall include the fields shown below: Library Name Book Title Format(eBook,Audiobook) Edition Series Name(if applicable) Author/Creator 1 Author/Creator 2(if applicable) Street Date Publisher Vendor Vendor Content ID ISBN Bib ID License Number Date Purchased License Type:(Perpetual; Limited Borrows; Limited Time Period; Limited Borrows&Time Period) License Period Start date(if applicable) License Period Expiration Date(if applicable) Borrows Permitted(if applicable) Borrows Used (if applicable) Borrows Remaining(if applicable) Part 2-Delivery of List:Library to complete the table below prior to email delivery of list to Midwest Tape: Filename: exactfifiename, ivielt ding frle extension;!(.xlsx,.csv) Sent From: sender's name&email To: [designate email address for receipt of WO'G Gists) Date&Time: use format:February 22,21022 at approximate4y 2:22#'M Part 3-Certification: To be completed and signed by an authorized representative of Library. Attach a copy of this completed and signed Schedule 1 to the email noted in Part 2,above: The list provided as set forth above is,as of the date set forth below,a complete and accurate account of the Library's Pre-Owned Content as defined herein. With respect to Pre-Owned Content provided here or subsequently added by mutual written consent of the Parties,the Library hereby assigns and transfers to Midwest Tape any and all rights,title,and interests in the licenses necessary in order to enable Midwest Tape to make the Pre-Owned Content available to the Library's Patrons via the hoopla Platform,including as set forth in Section 2 and/or Appendix 3 of the Agreement. The undersigned certifies that they are a representative of the Library and duly authorized to make the foregoing representations on its behalf. Signature: Title: Print Name: Date: Library Name: 9/2022US - PPU/OCOU Page 14 APPENDIX 4 Hoopla ("Company")shall procure and maintain for the duration of the contract insurance against claims for security breaches,system failures, injuries to persons,damages to software, damages to property(including computer equipment),theft,or other misuse of Customer's data, infringement of intellectual property, invasion of privacy and breach of data,which may arise from or in connection with the performance of the work hereunder by Company, its agents, representatives,or employees. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1.Commercial General Liability(CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal& advertising Injury with limits no less than $1,000,000 per occurrence and $2,000,000 general j aggregate. 2. Cyber Liability(CL):Insurance,with limits not less than$2,000,000 per occurrence or claim and $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Company in this agreement and shall include, but not be limited to, claims involving security breach,system failure,data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright,trademark, trade dress, invasion of privacy violations, information theft, and release of private information.The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit j monitoring expenses. i If Company maintains broader coverage and/or higher limits than the minimums shown above for any line of coverage,Customer requires and shall be entitled to the broader coverage and/or the higher limits maintained by Company.Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Customer. Other Insurance Provisions The above required insurance policies are to contain or be endorsed to contain the following provisions: 1. City of Santa Ana,its City Council, its officers,officials,employees,agents, and volunteers are to be covered as additional insureds, under Company's CGL policy,with respect to any liability arising out of work or operations performed by or on behalf of the Company including materials, parts, equipment,and personnel furnished in connection with such work or operations. 2. Company's Insurance companies agree to waive all rights of subrogation against City of Santa Ana, its City Council, its officers,officials,employees, agents, and volunteers for losses paid under the terms of Company's CGL and WC policies which arise from work performed by Company under this Agreement. 3. For any claims related to this contract, Company's insurance coverage shall be primary and any insurance maintained by City of Santa Ana, its City Council, its officers_, officials,employees,agents, or volunteers shall not contribute with it. 4. A severability of interest provision must apply for all the additional insureds, ensuring that Company's insurance shall apply separately to each insured against whom a claim is made or suit is brought,except with respect to the insurer's limits of liability. 5. Insurance policies required herein shall provide that coverage shall not be canceled,suspended, voided,reduced in coverage or in limits, non-renewed by the carrier,or materially changed except after thirty(30)days prior written notice has been given to City.Ten (10) days prior written notice shall be provided to City for policy cancellation or non-renewal due to non-payment of premium. 6. Certificate Holder on each Evidence of Insurance certificate shall be: City of Santa Ana,Attention: (Name of Department Staff Responsible for Agreement),Address of Department Responsible for Agreement, M-XX, Santa Ana,CA 92701.The name and location of project must be included in the Description of Operations section of each certificate. Self-insured Retentions Self-insured retentions must be declared to and approved by Customer.Customer may require Company to 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 authorized to conduct business in the state of California with a current A.M. Best rating of no less than A-:Vll, unless otherwise acceptable to Customer. Claims Made Policies If any of the required policies provide coverage on a claims-made basis: 1. The retroactive date must be shown and must be before the date of the contract. j 2. insurance must be maintained and evidence of insurance must be provided for at least three(3)years after completion of work. I 3. If coverage is canceled or non-renewed,and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date,Company must purchase "extended reporting" coverage for a minimum of three(3)years after completion of work. Verification of Coverage Company shall furnish Customer with original Certificates of Insurance including all required i amendatory endorsements(or copies of the applicable policy language effecting coverage required by this clause). Failure to obtain the required documents prior to the work beginning shall not waive 1 Company's obligation to provide them. Customer reserves the right to require complete,certified copies of all required insurance policies, including endorsements required by these specifications,at any time. Subcontractors Company shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. Special Risks or Circumstances Customer reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage,or other special circumstances. Failure to Maintain Insurance Coverage If Company,for any reason,falls to maintain insurance coverage,which is required pursuant to this Agreement,for the entire term of this contract,the same shall be deemed a material breach of Agreement. Customer, at its sole option,may terminate this Agreement at any time and obtain damages from Company resulting from said breach. i I i 1 �i 1 �i i� I� { ,I MIDWEST TAPE, LLC (HOOPLA DIGITAL MEDIA) - APPVD AS TO FORM Final Audit Report 2026-01-16 Created: 2026-01-15 By: Dylan Dario(ddario@santa-ana.org) Status: Signed Transaction ID: CBJCHBCAABAAVc_N9t5gDaPe9S-YcrcYDUa5-j7DWwyS "MIDWEST TAPE, LLC (HOOPLA DIGITAL MEDIA) - APPVD A S TO FORM" History t) Document created by Dylan Dario (ddario@santa-ana.org) 2026-01-15-10:27:28 PM GMT Document emailed to Brian Sternberg (bsternberg@santa-ana.org)for signature 2026-01-15-10:27:34 PM GMT 'n Email viewed by Brian Sternberg (bsternberg@santa-ana.org) 2026-01-15-10:35:21 PM GMT 6© Document e-signed by Brian Sternberg (bsternberg@santa-ana.org) Signature Date:2026-01-15-10:36:56 PM GMT-Time Source:server C, Document emailed to Sue Bascuk(sbascuk@midwesttapes.com)for signature 2026-01-15-10:36:58 PM GMT Email viewed by Sue Bascuk(sbascuk@midwesttapes.com) 2026-01-16-1:03:36 PM GMT 6® Document e-signed by Sue Bascuk (sbascuk@midwesttapes.com) Signature Date: 2026-01-16-1:04:23 PM GMT-Time Source:server Agreement completed. 2026-01-16-1:04:23 PM GMT Adobe Acrobat Sign