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Contract - Catalog Choice - 2011-11-11 AGREEMENT FOR CONSULTANT SERVICES Catalog Choice This Agreement is made and effective as ofN' MG4 II, 2011, between the Costa Mesa Sanitary District, a sanitary district ("District"), and Catalog Choice, a California corporation ("Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Recitals WHEREAS, the District promotes and encourages its residents to engage in source reduction activities to increase landfill capacity and protect the environment; and WHEREAS, the Consultant has developed a program for providing an online based "Unwanted Paper Service" that allows users to opt-out of receiving paper based advertisement and promotional materials; and WHEREAS, the Consultants "Unwanted Paper Service" program will help achieve the District's goal of promoting and encouraging source reduction activities; and WHEREAS, the Consultant has submitted a proposal to perform °Unwanted Paper Service"for the District; and WHEREAS, the District finds it is in the public's best interest to accept Consultant's proposal and enter Into an agreement to provide said services. NOW,THEREFORE the parties hereto do hereby agree as follows: 1. TERM This Agreement shall commence onNovo-fir II , 2011, and shall remain and continue in effect unless terminated pursuant to the provisions of this Agreement. 2. SERVICES Consultant shall perform the tasks described and set forth in Exhibit A, attached hereto and Incorporated herein as though set forth in full. Consultant shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A. 1 3. PERFORMANCE Consultant shall, at all times, faithfully, competently and to the best of his/her/its ability, experience, and talent perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement. 4. DISTRICT MANAGEMENT District's General Manager shall represent District in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Consultant, but not including the authority to enlarge the Tasks to be Performed or change the compensation due to Consultant. The District General Manager shall be authorized to act on Districts behalf and to execute all necessary documents which enlarge the Tasks to be Performed or change Consultant's compensation, subject to Section 5 hereof. 5. PAYMENT (a) The District agrees to pay Consultant four thousand ($4,000) per year for services rendered in accordance with this Agreement. This amount shall not exceed the total sum during term of the Agreement unless additional payment Is approved as provided in this Agreement. Said sum Includes travel and other costs. (b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the District General Manager. Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by District General Manager and Consultant at the time Districts written authorized is given to Consultant for the performance of said services. (c) Consultant will submit an annual invoice for properly performed services by Consultant. Payment shall be made within thirty(30) days of receipt of invoice as to all non-disputed fees. If the District disputes any of Consultants fees, it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. 2 6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE (a) The District may, at any time, for any reasons, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the District suspends or terminates a portion of this Agreement, such suspension or termination shall not make void or invalidate the remainder of this Agreement. (b) In the event this Agreement is terminated pursuant to this Section, the District shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the District. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the District pursuant to Section 5. 7. DEFAULT OF CONSULTANT (a) The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, District shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultants control, and without fault of negligence of the Consultant, it shall not be considered a default. (b) If the District Manager or his/her delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the District shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. 8. OWNERSHIP OF DOCUMENTS Consultant shall maintain complete and accurate records with respect to the professional services required by this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. Except for the licensed System Software, data and its related documentation, all work 3 products produced under this Contract shall be considered work made for hire under the U.S. Copyright Act, 17 U.S.C. 101 et seq., and shall be owned by the District. 9. INDEMNIFICATION (a) Indemnification for Professional Liability. When the law establishes a professional standard of care for Consultant's services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless District and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement. (b) Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless District, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest, defense costs and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including, but not limited to, officers, agent, employees or subconsultants of Consultant. 10. INSURANCE Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage of at least One Million Dollars ($1,000,000.00) for commercial general liability. Consultant should also provide proof of workers compensation coverage. Each Insurance policy required by this Agreement shall name the District and its officers, agents and employees as additional insureds and each insurance policy shall require an endorsement naming District as an additional insured. Such coverage must provide that it is not to be cancelled except upon thirty (30) days notice to District. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A-:VIII, and licensed to do business in California. 11. INDEPENDENT CONSULTANT (a) Consultant is and shall at all times remain as to the District a wholly Independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and 4 control. Neither District nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the District. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against District, or bind District in any manner. (b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, District shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for District. District shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder. 12. LEGAL RESPONSIBILITIES The Consultant shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. The District, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section. 13. UNDUE INFLUENCE Consultant declares and warrants that no undue influence or pressure has been used against or in concert with any officer or employee of the Costa Mesa Sanitary District in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement or financial inducement. No officer or employee of the Costa Mesa Sanitary District will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the District to any and all remedies at law or in equity. 14. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member, officer, or employee of District, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, 5 in any agreement or sub-agreement, or the proceed thereof, for work to be performed in connection with the Project performed under this Agreement. 15. RELEASE OF INFORMATION /CONFLICTS OF INTEREST (a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without District's prior written authorization. Consultant, its officers, employees, agents or subconsultants, shall not without written authorization from the District Manager or unless requested by the District Counsel, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the District. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives District notice of such court order or subpoena. (b) Consultant shall promptly notify District should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the District. District retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with District and to provide the opportunity to review any response to discovery requests provided by Consultant. However, Districts right to review any such response does not imply or mean the right by District to control, direct, or rewrite said response. (c) Consultant covenants that neither he/she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent or subconsultant. Consultant further covenants that Consultant has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the District or the study area and further covenants and agrees that Consultant and/or its subconsultants shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property In the District or the study area prior to the completion of the work under this Agreement. 16. NOTICES My notices which either party may desire to give to the other party under this Agreement must be in writing and may be given by: (i) personal service, (ii) delivery by 6 a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or(lii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: To District: Costa Mesa Sanitary District 628 West 19th Street Costa Mesa, California 92627 Attn: District Clerk To Consultant: Catalog Choice 1845 Berkeley Way Berkeley, California 94703 Attn: Chuck Teller 17. ASSIGNMENT The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the District. Because of the personal nature of the services to be rendered pursuant to this Agreement, only Chuck Teller shall perform the services described in this Agreement. Chuck Teller may use assistants, under his direct supervision, to perform some of the services under this Agreement; however, all client contact and interaction regarding professional services shall be provided by Chuck Teller. Consultant shall provide District fourteen (14) day's notice prior to the departure of Chuck Teller from Consultants employ. Should either Mr. Teller leave Consultant's employ, the District shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. 18. LICENSES At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described In this Agreement. 19. GOVERNING LAW The District and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the Interpretation of this Agreement. Any litigation 7 concerning this Agreement shall take place in the municipal, superior or federal district court with jurisdiction over the Costa Mesa Sanitary District. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 21. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL Consultant is bound by the contents of the proposal submitted by the Consultant, Exhibit °A" hereto. In the event of conflict, the requirements of District's Request for Proposal and this Agreement shall take precedence over those contained in the Consultant's proposal. 22. MODIFICATION No modification to this Agreement shall be effective unless it is in writing and signed by authorized representatives of the parties hereto. 23. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. 24. INTERPRETATION In the event of conflict or inconsistency between this Agreement and any other document, Including any proposal or Exhibit hereto, this Agreement shall control unless a contrary intent is dearly stated. /// //l /// 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed this day and year first above written. COSTA MESA SANITARY DISTRICT CATA •G CHOICE General Manager Sigr 'ure ATTEST: Ccodt (c ((( ��_ Typed Name Distri Clerk Title • APR-ROVED'AS-TO FORM: District Counsel 9