HomeMy WebLinkAbout04342 - ERNST & YOUNG FTZ SOLUTIONS MARITIME FOREIGN TRADE 0 9
City of Palm Springs
Office of the City Clerk
(760) 323-8205
C, OFORN\T1 MEMORANDUM
Date: ✓ f �?��_'�
From: City Clerk
AGREEMENT#
Please let us know the status of the above agreement, and if it may be closed.
STATUS: CC�DS�c�
COMPLETED: 6 —16 •0 2.
REMAIN OPEN UNTIL:
Datee�& Initials
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Signa e
Ernst h Young LLP/FTZ Maritime
Consent to Assign
AGREEMENT #4342
M06886, 7-18-01
ASSIGNMENT AND CONSENT,TO ASSIGNMENT OF - -
AGREEMENTS NO�S.,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") concerning Foreign-Trade Zone 9236 -
Activation Services.
B. Pursuant to the Agreements,Assignor has certain rights to assign the Agreements,
subject to written consent of the City.
C. Assignor wishes to assign to Assignee all of the rights and obligations it has under
the Agreements, Assignee wishes to accept the assignment of the Agreements and City wishes to
consent to the assignment, 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:
1. 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.
IRV 913159 v1
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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 date of this Assignment,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 acknowledges 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.
e. 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 ail 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 parry is duly 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 of this Assignment, and(iv)the entering into this
Assignment does not violate any provision of any other agreement to which said party is bound.
IRV N13159vl _�_
4. Full Force and Effect. The parties further agree that, except as specifically provided in
this Assignment, the terms 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"
MINTZ
/
"Assignee"
ERNEST & YOUNG, LLP
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By
Its
"City"
CITY OF PALM SPRINGS, a California
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TTE3�T�.� Y
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City Clerk City Mana e ms`
APP VED AS TO,FOP
City Attorney APPBY PROVED$Y 7VjE y y CIDUNUC
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APPROVED EYTHE CITY COUNCIL
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SA�,ti City of Palm Springs
m Office of the City Clerk
(760) 323-8204
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Date: August 15, 2001
To: Economic Development-Cathy Van Horn
From: City Clerk
Ernst & Young LLP, A4342 & 4350:
Attached are two copies of the above mentioned agreements between Ernst & Young
LLP and the City of Palm Springs. Please forward one copy to the contractor. A copy
has been forwarded to Finance, and we have retained our necessary copies.
Please note insurance does need to be provided in Ernst & Young's name per the
agreement. We have not received the Certificate as of this time.
PATRICIA A. SANDERS
City Clerk
Attached
cc: Finance
. Maritime Trust/FTZ Solutions
Foreign Trade Zone Activation
AGREEMENT #4342
M06818, 3-21-01
CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT FOR
Palm Springs Foreign Trade Zone Activation Services
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement") is made and entered
into this 21' day of March, 2000, by and between the CITY OF PALM SPRINGS, a municipal
corporation (herein "City") and MARITIME TRUST/FTZ SOLUTIONS (herein "Contractor"). (The
term Contractor includes professionals performing in a consulting capacity).
NOW, THEREFORE, the parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all of the terms and conditions of
this Agreement, the Contractor shall perform the work or services set fod:h in the "Scope of
Services" attached hereto as Exhibit "A" and incorporated herein by reference. Contractor
warrants that all work and services set forth in the Scope of Services will be performed in a
competent, professional and satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall
be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of
the City and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its
sole cost and expense such licenses, permits and approvals as may be required by law for the
performance of the services required by this Agreement.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement,
Contractor shall be compensated in accordance with the "Schedule of Compensation" attached
hereto as Exhibit "B" and incorporated herein by this reference, but not exceeding the maximum
contract amount of$12,500.00 Dollars ("Contract Sum").
1.2 Method of Payment. Provided that Contractor is not M default under the
terms of this Agreement, Contractor shall be paid as
outlined in Exhibit "B", Schedule of Compensation.
3.0 COORDINATION OF WORK
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3.1 Representative of Contractor. Chris Koelfqen is hereby designated as
being the principal and representative of Contractor authorized to act in its behalf with respect to
the work and services specified herein and make all decisions in connection therewith.
3.2 Contract Officer. George L. Wyatt, Director of Economic Development is
hereby designated as being the representative the City authorized to act in its behalf with
respect to the work and services specified herein and make all decisions in connection
therewith ("Contract Officer"). The City Manager of City shall have the right to designate
another Contract Officer by providing written notice to Contractor.
3.3 Prohibition Against Subcontracting or Assignment. Contractor shall not
contract with any entity to perform in whole or in part the work or services required hereunder
without the express written approval of the City. Neither this Agreement nor any interest herein
may be assigned or transferred, voluntarily or by operation of law, without the prior written
approval of City. Any such prohibited assignment or transfer shall be void.
3.4 Independent Contractor. Neither the City nor any of its employees shall
have any control over the manner, mode or means by which Contractor, its agents or
employees, perform the services required herein, except as otherwise set forth. Contractor
shall perform all services required herein as an independent contractor of City and shall remain
under only such obligations as are consistent with that role. Contractor shall not at any time or
in any manner represent that it or any of its agents or employees are agents or employees of
City.
4.0 INSURANCE AND INDEMNIFICATION
4.1 Insurance. The Contractor shall procure and maintain, at its sole cost
and expense, in a form and content satisfactory to City, during the entire term of this Agreement
including any extension thereof, the following policies of insurance:
(a) Comprehensive General Liability Insurance. A policy of
comprehensive general liability insurance written on a per occurrence basis in an
amount not less than either (i) a combined single limit of $1,000,000.00 or (ii) bodily
injury limits of $500,000.00 per person, $1,000,000.00 per occurrence and
$1,000,000.00 products and completed operations and property damage limits of
$500,000.00 per occurrence. If the Contract Sum is greater than $500,000.00, the policy
of insurance shall be in an amount not less than $5,000,000.00 combined single limit.
(b) Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide legal defense for both the
Contractor and the City against any loss, claim or damage arising from any injuries or
occupational diseases occurring to any worker employed by or any persons retained by
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the Contractor in the course of carrying out the work or services contemplated in this
Agreement.
(c) Automotive Insurance. A policy of comprehensive automobile
liability insurance written on a per occurrence basis in an amount not less than either (i)
bodily injury liability limits of $500,000.00 per person and $1,000,000.00 per occurrence
and property damage liability limits of $250,000.00 per occurrence and $500,000.00 in
the aggregate or (ii) combined single limit liability of $1,000,000.00. Said policy shall
include coverage for owned, nonowned, leased and hired cars.
(d) Additional Insurance: Policies of such other insurance, including
Professional Liability Insurance, as may be required in the Scope of Services, Exhibit
"A»
All of the above policies of insurance shall be primary insurance and shall name the City,
its officers, employees and agents as additional insured, except that the City shall not be named
as an additional insured for the Worker's Compensation Insurance nor the Professional Liability
Insurance. The insurer shall waive all rights of subrogation and contribution it may have against
the City, its officers, employees and agents and their respective insurers. All of said policies of
insurance shall provide that said insurance may not be amended or canceled without providing
thirty (30) days prior written notice by registered mail to the City. In the event any of said
policies of insurance are canceled, the Contractor shall, prior to the cancellation date, submit
new evidence of insurance in conformance with this Section 4.1 to the Contract Officer. No
work or services under this Agreement shall commence until the Contractor has provided the
City with Certificates of Insurance or appropriate insurance binders evidencing the above
insurance coverages and said Certificates of Insurance or binders are approved by the City.
The Contractor agrees that the provisions of this Section 4.1 shall not be construed as
limiting in any way the extent to which the Contractor may be held responsible for the payment
of damages to any persons or property resulting from the Contractor's activities or the activities
of any person or persons for which the Contractor is otherwise responsible.
The insurance required by this Agreement shall be satisfactory only if issued by
companies qualified to do business in California, rated "A" or better in the most recent edition of
Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a
financial category Class VII or better, unless such requirements are waived by the City Manager
or designee of the City due to unique circumstances.
4.2 Indemnification. Contractor agrees to indemnify the City, its officers,
agents and employees against, and will hold and save them and each of them harmless from,
any and all actions, suits, claims, damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities, including paying any legal costs, attorneys fees, or
paying any judgment (herein "claims or liabilities") that may be asserted or claimed by any
person, firm or entity arising out of or in connection with the negligent performance of the work
or services of Contractor, its agents, employees, subcontractors, or invitees, provided for
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herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from
Contractor's negligent performance of or failure to perform any term, provision, covenant or
condition of this Agreement, but excluding such claims or liabilities to the extent caused by the
negligence or willful misconduct of the City.
5.0 TERM
5.1 Term. Unless earlier terminated in accordance with Section 5.2 below,
this Agreement shall continue in full force until September 30, 2001.
5.2 Termination Prior to Expiration of Term. Either party may terminate this
Agreement at any time, with or without cause, upon thirty (30) days' written notice to the other
party. Upon receipt of the notice of termination, the Contractor shall immediately cease all work
or services
hereunder except as may be specifically approved by the Contract Officer. In the event of
termination by the City, Contractor shall be entitled to compensation for all services rendered
prior to the effectiveness of the notice of termination and for such additional services specifically
authorized by the Contract Officer and City shall be entitled to reimbursement for any
compensation paid in excess of the services rendered.
6.0 MISCELLANEOUS
6.1 Covenant Against Discrimination. Contractor covenants that, by and for
itself, its heirs, executors, assigns and all persons claiming under or through them, that there
shall be no discrimination against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance
of this Agreement. Contractor shall take affirmative action to ensure that applicants are
employed and that employees are treated during employment without regard to their race, color,
creed, religion, sex, marital status, national origin or ancestry.
6.2 Nonliability of City Officers and Employees. No officer or employee of the
City shall be personally liable to the Contractor, or any successor in interest, in the event of any
default or breach by the City or for any amount which may become due to the Contractor or to
its successor, or for breach of any obligation of the terms of this Agreement.
6.3 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to the Agreement which effects his financial interest or the
financial interest of any corporation, partnership or association in which he is, directly or
indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that
it has not paid or given and will not pay or give any third party any money or other consideration
for obtaining this Agreement.
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6.4 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person
shall be in writing and either served personally or sent by prepaid, first class mail, in the case of
the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM
SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to
the person at the address designated on the execution page of this Agreement.
6.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or against
either party by reason of the authorship of this Agreement or any other rule of construction
which might otherwise apply.
6.6 Integration: Amendment. It is understood that there are no oral
agreements between the parties hereto affecting this Agreement and this Agreement
supersedes and cancels any and all previous negotiations, arrangements, agreements and
understandings, if any, between the parties, and none shall be used to interpret this Agreement.
This Agreement may be amended at any time by the mutual consent of the parties by an
instrument in writing.
6.7 Severability. In the event that part of this Agreement shall be declared
invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any of the remaining portions of this Agreement
which are hereby
declared as severable and shall be interpreted to carry out the intent of the parties hereunder
unless the invalid provision is so material that its invalidity deprives either party of the basic
benefit of their bargain or renders this Agreement meaningless.
6.8 Waiver. No delay or omission in the exercise of any right or remedy by a
nondefaulting party on any default shall impair such right or remedy or be construed as a
waiver. A party's consent to or approval of any act by the other party requiring the party's
consent or approval shall not be deemed to waive or render unnecessary the other party's
consent to or approval of any subsequent act. Any waiver by either party of any default must be
in writing and shall not be a waiver of any other default concerning the same or any other
provision of this Agreement.
6.9 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement,
the prevailing party in such action or proceeding, in addition to any other relief which may be
granted, whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or
not the matter proceeds to judgment.
6.10 Corporate Author. The persons 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
this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the
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entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound.
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement as of the date first written above.
ATTEST: CITY OF PALM SPRINGS,
a municipal corporation
C By:
City Clerk
64�71
City Manager-
(Check one: Individual_Partnership
_Corporation
(Corporations require two signatures: CON C
One from each of the following: F
A. Chairman of Board, President, any By.
Vice President: AND B. Secretary, nature (N to ized) '
Assistant Secretary, Treasurer, E y
Assistant Treasurer, or Chief Financial
Officer). r nt Name& itle
By:
Signature (Notarized)
Print Name &Title
Mailing Address:
AP-PROVL® AS T(D Fnq�yi (End of Signatures)
CVITW9 UUL\ llll
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EXHIBIT "A"
SCOPE OF SERVICES
The Activation process will be prepared and managed as follows:
1. INITIAL TASKS
Prepare Activation application and manage Activation process with U.S. Customs, including
preparing information for U.S. Customs background investigation, in accordance to U.S.
Customs guidelines, takes 30 to 90 days.
Develop and produce a procedures manual for submission to U.S. Customs.
Recommend an automated Inventory Control and Record Keeping Systems (IRCS),as
necessary. IRCS must be in place to activate the zone site. The purchase and development of
an automated inventory control software system is not a part of the flat fee rate presented in this
contract. If requested, MT/FTZS will assist in the selection of software to operate the zone and
make recommendations on various software packages available in the market.
A zone lot based manual inventory control and record keeping system will be supplied by
MT/FTZS as part of the flat rate presented in this proposal.
Provide a minimum of three working days of onsite administrative training prior to activation
approval and FTZ admission and provide remote administrative assistance for three months as
needed.
2. DRAFT APPLICATION
Based upon the initial tasks, MT/FTZS will prepare the draft activation application to submit to
the City for review and approval by June 15, 2001.
3. SUBMISSION OF APPLICATION
Based upon the City's input, the final activation application will be submitted to U.S. Customs for
approval by August 1, 2001 In addition, U.S. Customs' personnel will conduct a security
inspection of the zone site. MT/FTZS will provide assistance in preparation for the Customs'
inspection.
In addition, MT/FTZS will manage any issues related to the activation application, as needed,
until the activation application has been approved by U.S. Customs.
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EXHIBIT "B"
SCHEDULE OF COMPENSATION
The activation process, including preparation of an FTZ Procedures Manual, delivery of a zone
lot based manual ICRS, onsite training, remote administrative assistance, and travel time will be
at a significantly discounted flat fee of$12,500 plus reasonable out-of-pocket expenses.
The flat fee will be payable as follows:
25% upon execution of agreement
25% upon submission of draft application to the City of Palm Springs
25% upon formal submission of application to US Customs
25% upon customs final ruling on activation request
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EXHIBIT "C"
SPECIAL REQUIREMENTS
The following special requirements shall be applicable:
4.1 (a) Comprehensive General Liability Insurance or Professional Liability Insurance in the
amount of$1,000,000 shall be provided.
4.1 (b) Worker's Compensation Insurance shall not be applicable.
4.2 (c) Automotive Insurance shall not be applicable.
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