HomeMy WebLinkAbout7/18/2001 - STAFF REPORTS (8) DATE: June 20, 2001
TO: City Council
FROM: Director of Economic Development
CONSENT TO ASSIGNMENT OF A FOREIGN-TRADE ZONE CONSULTING SERVICES
AGREEMENT FOR ZONE BOUNDARY EXPANSION
RECOMMENDATION:
That City Council approve the Consent to Assignment of a Consulting Services
Agreement, between the City and Maritime Trust/Foreign-Trade Zone Solutions in the
amount of$15,000,for consulting services to assist with the foreign-trade zone major
boundary modification (expansion) application, to Ernst&Young.
SUMMARY:
The original Agreement for Foreign-Trade Zone Services between the City and
Maritime Trust/Foreign-Trade Zone Solutions will be transferred to Ernst & Young.
There are no other changes to the Contract Agreement which shall remain in full
force and effect.
BACKGROUND:
On March 21, 2001, the City Council approved (MO 6819) a Contract Services
Agreement between the City of Palm Springs and Maritime Trust/Foreign-Trade Zone
Solutions, in the amount of$15,000 for consulting services to assist with the Foreign-
Trade Zone boundary modification (expansion)application. The principal of Maritime
Trust/Foreign-Trade Zone Solutions has taken a position with Ernst&Young, with an
agreement to transfer open contracts to Ernst &Young. Ernst & Young has agreed
to honor the Contract between the City of Palm Springs and Maritime Trust/Foreign-
Trade Zone Solutions, to provide consulting services to assist with the boundary
modification (expansion) application. The Contract Services Agreement will be paid
from the Department of Economic Development approved 2000-01 budget, account
number 001-10-1400-43200.
Di or C nomiicc7D, ve�lopment
APPROVED
City Manager
REVIEWED BY DEPT.OF FINANCE
Attachments:
1) Minute Order
2) Consent to Assignment of Consulting Services Agreement
3) Maritime Trust Assignment Letter
4) Transition letter FTZ Solutions to Ernst&Young
CONSENT OF ASSIGNMENT OF AGREEMENT NO.A4350
This CONSENT TO ASSIGNMENT OF AGREEMENT NO. A4350 (the "Consent") is made
and entered into as of the day of 2001, between the CITY OF PALM
SPRINGS ("City"),Maritime Trust/FTZ Solutions ("Assignor") and Ernst& Young LLP
("Assignee") with reference to the following facts and purposes.
RECITALS
A. City and Assignor are parties to that certain Agreement No. A4350, dated March
21, 2001, including any extensions, renewals or permitted amendments and modifications
thereof(collective the "Agreement")concerning Foreign-Trade Zone 9236 -Major Boundary
Modification Services.
B. Pursuant to the Agreement,Assignor has certain rights to assign the Agreement,
subject to written consent of the City.
C. Assignor wishes to assign to Assignee all of the rights and obligations it has under
the Agreement, and Assignor and Assignee desire to obtain the City's specific consent to such
assignment.
D. Based upon such representation, City wishes to consent to such assignment subject
to the terms of this Consent.
NOW THEREFORE, in consideration of the mutual promises of the parties hereto and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
City, Assignor and Assignee agree as follows:
1. Representations. Assignor represents and certifies the following:
a. To the best of Assignor's knowledge, no default presently exists under the
Agreement and no state of facts exist which would constitute a default under the Agreement.
b. That all of the above recitals are true and correct.
2. Consent and Related Agreements.
a. Assignee acknowledges that it has received a copy of the Agreement and is fully
familiar with its terms.
b. Effective as of the date of this Consent,the City specifically consents to the
assignment of the Agreement to Assignee, including all rights and obligations of Assignor
thereunder.
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c. Upon the date of the Consent, Assignee shall assume all obligations of Assignor
under the Agreement and shall perform all duties and obligations required to be performed under
the Agreement.
d. Assignee acknowledges and agrees that the Agreement shall control the obligations
of Assignee and City, and that the Agreement shall control over any inconsistent provision in any
agreement that may exist between Assignor and Assignee.
3. Due Execution. The person(s) executing this Agreement on behalf of the parties hereto
warrant that (i) such party is duly organized and existing, (ii)they are duly authorized to
execute and deliver this Agreement on behalf of said party, (iii) by so executing tivs
Agreement, such party is formally bound to the provisions of this Agreement, and (iv)the
entering into this Agreement does not violate any provision of any other agreement to
which said parry is bound.
4. Full Force and Effeet. The parties further agree that, except as specifically provided in
this Consent, the terms of the Agreement shall remain unchanged and in full force an
effect.
(Signatures on following page)
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X A
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Consent
as of the date written above.
ATTEST: "City"
CITY OF PALM SPRINGS, a
California municipal corporation
City Clerk
City Manager
APPROVED AS TO FORM
City Attorney "Assignor"
MARITIME TRUST/FTZ
SOLUTIONS
By
Its
"Assignee"
ERNEST & YOUNG, LLP
By
Its
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06/10/2001 10:21 612-621-0939 COPISORTECH, IhIC. PAGE 02
_MAMTIME TRUST
FTZ SoLUTIom
June 10", 2001
Mr, George Wyatt
City Of Palm Springs
3400 E TahgWtz Canyon Way
Palm Springs, CA 92263
Dear George,
Please accept this letter as notification that effective March 31't,20011 accepted a
position with the Ernst & Young's International Trade and Customs Practice. I will be
building and leading a national foreign-trade zone practice for Ernst& Young.
Effective March 31", 2001, I dissolved my company Maritime Trust/FTZ
Solutions. I remain committed to providing foreign-trade zone consulting services to you
and your project. To this regard, I request an assignment of our agreement to Ernst &
Young who has agreed to complete the terms and scope of this agreement with,my
guidance.
I look forward to continued opportunities of working with you. If I can provide
additional information or if you have any questions please call me at 612.371,6383.
Sincerel
Chris Koelfgen
4821 San Juan Avenue,Fair r)aks,CA 95628 Tel:916.967.6237
Chicago,IL Darien,CT Indianapolis,IN Miami,FL Ocean Shores,WA Sacramento,CA Wash' gton,D.C.
1 ,4s-
JERNST&YOUNG ■ Ernst&Young ur ■ Phone. (212)773-3000
787 Seventh Avenue www.ey.com
New York,New York 10019
April 16, 2001
Mr. George Wyatt
City of Palm Springs
3200 Tahquitz Canyon Way
Palm Springs, CA 92262
Re: Transition from FTZ Solutions to Ernst & Youn2 LLP
Dear Mr. Wyatt:
On April 1 of this year, Ernst & Young LLP was pleased to welcome Chris Koelfgen to our
Customs and International Trade Practice. 'iChris' many years of experience in Foreign-Trade
Zones as an operator and consultant is a welcome addition to our group.
I wish to assure you that Ernst & Young will provide you with the same quality of service that
you have come to expect from Chris. Under Chris' direction, other professionals of Ernst &
Young's Customs Practice will also serve you with respect to your customs and trade matters.
I understand that you have previously agreed to professional services fees for a Major Boundary
Modification of$15,000 plus out-of-pocket expenses. I also understand that you have agreed to
professional services fees for an FTZ activation of$12,500 plus out-of-pocket expenses. We
will, of course, honor this fee commitment to you.
I am pleased that Ernst & Young has this opportunity to team with the City of Palm Springs in
its Foreign-Trade Zone matters. Should you have any questions regarding this transition or any
other customs matter, please call me at(212) 773-1270.
Sincerely,
a6crj
a�
Charles Crowley
Partner
Ernst & Young LLP
cc: Chris Koelfgen, Ernst & Young LLP—Minneapolis
Lou Mezzo, Ernst & Young LLP—New York
Harry Isacoff- Ernst&Young LLP—New York
Gerald Shirley, Ernst &Young LLP -Houston
Ernst&Young ua is a member of Ernst&Young International, Ltd. /
07/18/01 15:40 FAA 949 863 3350 11URRE.NILLIAMSMURENSEN �1002
ASSIGNMENT AND CONSENT TO ASSIGNMENT OF
AGREEMENTS NOS. A4342 AND A4350
This ASSIGNMENT AND CONSENT TO ASSIGNMENT OF AGREEMENTS NOS. A4342
AND A4350 ("Assignment") is made and entered into as of the day of July,2001,by and
among Maritime Trust/FTZ Solutions("Assignor"), Ernst&Young LLP("Assignee")and the
City of Palm Springs, a California municipal corporation ("City")with reference to the
following facts and purposes.
RECITALS
A. Assignor and the City are parties to those certain Agreements No. A4342 for
Foreign Trade Zone Activation Services, dated March 21, 2001, and No. A4350 for Major
Boundary Modification Services including any extensions, renewals or permitted amendments
and modifications thereof(collectively the"Agreements") concerrning Foreign-Trade Zone 4236 -
Activation Services.
B. Pursuant to the Agreements,Assignor has certain rights to assign the Agreements,
subj ect to written consent of the City.
C. Assignor wishes to assign to Assignee all of the rights and obligations it has trader
the Agreements, Assignee wishes to accept the assignment of the Agreements and City wishes to
consent to the assigmnent, all subject to the provisions of this Assignment.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises of the parties hereto and
for other good and valuable consideration,the receipt and sufficiency of which is hereby
acknowledged, Assignor and Assignee agree as follows:
i. Representations. Assignor represents and certifies the following:
a. To the best of Assignor's knowledge,no default presently exists under either of
the Agreements and no state of facts exist which would constitute a default under the
Agreements.
b. That all of the above recitals are true and correct.
2. Assignment and Acceptance.
a. Assignee acknowledges that it has received a copy of the Agreements and is fully
familiar with its terms.
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b. Assignor hereby assigns to Assignor all of Assignee's interest in the Agreements.
b. Effective as of the date of this Assignment, the City specifically consents to the
assignment of each of the two Agreements to Assignee, including all rights and obligations of
Assignor thereunder, subject to the limitations set forth at Paragraph e below.
c. Upon the dale of this Assigrunent,Assignee shall assume all obligations of
Assignor under the Agreements and shall perform all duties and obligations required to be
performed under the Agreements, subject to the limitations set forth at paragraph e below.
d. Assignee aelmowledges and agrees that the Agreements shall control the
obligations of Assignee and City, and that the Agreements shall control over any inconsistent
provision in any agreement that may exist between Assignor and Assignee.
C. The parties agree that any liability of Assignee under the Agreements shall be
limited by the following Section 4.2.1,which Section 4.2.1 shall be incorporated as part of each
of the Agreements immediately after Section 4.2 therein:
4.2.1 Limitation of Liability. Notwithstanding the provisions of Section 4.2 of
this Agreement, for any breach of any provision of this Agreement, City's exclusive
remedy, and Contractor's entire liability, shall be limited to re-performance of the
relevant services. If Contractor is unable to re-perform the services as warranted, City
shall be entitled to recover the fees paid to Contractor for the deficient services. To the
fullest extent permitted by applicable law, the total aggregate liability of Contractor to the
City under the Agreement,regardless of whether such liability is based upon breach of
contract, tort, strict liability, breach of warranties, failure of essential purpose or
otherwise, shall be limited to the fees paid by the City to Contractor pursuant to the
respective contract under which the liability arises.In no event will Contractor be Liable
for consequential, incidental, indirect,punitive or special damages (including loss of
profits,business or goodwill), from all causes of action of any kind, including contract,
tort or otherwise, even if advised of the likelihood of such damages occurring. The City's
recourse with respect to any liability of Contractor shall be limited to the assets of
Contractor and the City shall have no recourse against, and shall bring no claim against,
any partner or employee of Contractor or any of the assets thereof.
3. Due Execution. The person(s) executing this Assignment on behalf of the parties hereto
warrant that (i)such party is drily organized and existing, (ii)they are duly authorized to execute
and deliver this Assignment on behalf of said party, (iii) by so executing this Assignment, such
party is formally bound to the provisions o f this Assigrmlent, and (iv)the entering into this
Assignment does not violate any provision of any other agreement to which said party is bound.
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4. Full Force and Effect. The parties furfher agree that, except as specifically provided in
this Assignment, the terns of each of the Agreements shall remain unchanged and in full force an
effect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Assignment as of
the date written above.
"Assignor"
MARITIME TRUST/FTZ
SOLUTIONS
By
Its
"Assignee"
ERNEST & YOUNG, LLP
By
Its
By
Its
"City"
CITY OF PALM SPRINGS, a California
municipal cotporation
ATTEST:
By
City Cleric City Manager
APPROVED AS TO FORM:
City Attorney
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MINUTE ORDER NO. 6885
APPROVING THE CONSENT TO ASSIGNMENT OF
A CONSULTING SERVICES AGREEMENT FOR
CONSULTING SERVICES TO ASSIST WITH THE
FOREIGN-TRADE ZONE #236 MAJOR BOUNDARY
MODIFICATION (EXPANSION), BETWEEN THE
CITY AND MARITIME TRUST/FOREIGN-TRADE
ZONE SOLUTIONS, IN THE AMOUNT OF $15,000,
TO ERNEST & YOUNG, IN A FORM ACCEPTABLE
TO THE CITY ATTORNEY.
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I HEREBY CERTIFY that this Minute Order, approving Consent to Assignment of
a Consulting Services Agreement for consulting services to assist with the
Foreign-Trade Zone #236 major boundary modification (expansion), between the
City and Maritime Trust/Foreign-Trade Zone Solutions, in the amount of$15,000,
to Ernest & Young, in a form acceptable to the City Attorney, was adopted by the
City Council of the City of Palm Springs, California, in a meeting thereof held on
the 18th day of July, 2001.
PATRICIA A. SANDERS
City Clerk