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DRAFT |
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SERVICE AGREEMENT BETWEEN THE CITY OF SUNNYVALE |
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THIS AGREEMENT, dated ____________________, 2002, is by and between the CITY OF SUNNYVALE, a municipal corporation ("CITY"), and MBA OF CALIFORNIA, INC., a Nevada corporation ("CONTRACTOR"). WHEREAS, on June 12, 2002, CITY issued Request for Proposals #F0206-78 for the lease of digital photocopy machines; and WHEREAS, CONTRACTOR has submitted a proposal in response to the Request for Proposals; and WHEREAS, CITY has determined that the proposal submitted by CONTRACTOR is the best and most advantageous for CITY and that CONTRACTOR possesses the skill and expertise to provide the required equipment and services for satellite copiers; |
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NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT. |
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Services by CONTRACTOR |
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| (a) | CONTRACTOR shall provide the equipment and services for the lease of satellite copiers in accordance with the following documents, which are attached and incorporated by reference: | |
| (i) | Exhibit A, consisting of Pages 6 through 18, inclusive, of that certain document entitled "Request for Proposals #F0206-78 for Lease of Digital Photocopy Machines dated June 12, 2002". The document consists of the Selected Terms and Conditions of the Contract, Project Description, Scope of Work, and Instructions for Proposers. | |
| (ii) | Exhibit B, consisting of Pages 1 through 23, inclusive, of that certain document entitled "Proposer Response Pages" and its attachments, presenting the CONTRACTOR’s response entitled "MBA Bid Response", dated June 26, 2002, to Request for Proposals #F0206-78. | |
| (b) | CONTRACTOR shall provide the equipment and perform the services described in Request for Proposals #F0206-78 for satellite copiers only. The performance of such services shall be governed by the Terms and Conditions contained in the Request for Proposals. | |
| 2. | Contract Term | |
| The term of this Agreement shall be five (5) years, beginning August 21, 2002, the date following the date of contract award by the Sunnyvale City Council, unless otherwise terminated. | ||
| 3. | Compensation | |
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CITY agrees to pay CONTRACTOR, the amounts set forth in Appendix A-1, Form 6 of the Proposer Response Pages as full compensation for the equipment provided and services rendered for satellite copiers pursuant to this Agreement. The cost-per-copy price includes equipment costs, full service maintenance agreement, supplies (excluding paper), and all applicable taxes. The cost for staples is included in the cost-per-copy price. |
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| 4. | Conflict of Interest | |
| No officer or employee of CITY shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof. During the term of this Agreement, CONTRACTOR shall not accept an obligation, which is inconsistent or incompatible with CONTRACTOR’s obligations under this Agreement. | ||
| 5. | Confidential Information | |
| CONTRACTOR shall maintain in confidence and at no time use, except to the extent required to perform its obligations hereunder, any and all proprietary or confidential information of CITY of which CONTRACTOR may become aware in the performance of its services. | ||
| 6. | Compliance with Laws | |
| (a) | CONTRACTOR shall strictly adhere to all state and federal laws with respect to discrimination in employment and shall not discriminate against any individual on the basis of race, color, religion, gender, sexual orientation, marital status, national origin, age or disability. | |
| (b) | CONTRACTOR shall comply with all federal, state and city laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the Agreement. | |
| 7. | Independent Contractor | |
| CONTRACTOR is acting as an independent contractor in providing the equipment and furnishing the services required by this Agreement and is not an agent, servant or employee of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR. CONTRACTOR is responsible for paying all required state and federal taxes. | ||
| 8. | Indemnity | |
| CONTRACTOR shall indemnify, defend and hold harmless CITY and its officers, officials, employees and volunteers from and against any and all claims, damages, losses and expenses, including attorney fees, arising out of the performance of the services described herein, caused in whole or in part by any negligent act or omission of CONTRACTOR, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of CITY. | ||
| 9. | Insurance | |
| CONTRACTOR shall take out and maintain during the life of this Agreement, policies of insurance as specified in Section II-D of the Request for Proposals, incorporated by reference, and shall provide all certificates and/or endorsements as specified. | ||
| 10. | CITY Representative | |
| Marilyn Crane, Manager of Information Technology Services, as City Manager’s authorized representative, shall represent CITY in all matters pertaining to the services to be rendered and equipment to be provided under this Agreement. All requirements of CITY pertaining to the services and equipment to be rendered under this Agreement shall be coordinated through the CITY representative. | ||
| 11. | CONTRACTOR Representative | |
| Todd Moody, Vice President, shall represent CONTRACTOR in all matters pertaining to the services to be rendered and equipment to be provided under this Agreement. All requirements of CONTRACTOR pertaining to the services to be rendered and equipment to be provided shall be coordinated through the CONTRACTOR representative. | ||
| 12. | Notices | |
| All notices required by the Agreement shall be in writing, and shall be personally delivered or sent by first class mail, postage prepaid or by commercial courier, addressed as follows: | ||
| To CITY: |
Marilyn Crane, Manager of IT Services CITY OF SUNNYVALE P. O. Box 3707 Sunnyvale, CA 94088-3707 |
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| To CONTRACTOR: |
Todd Moody, Vice President MBA OF CALIFORNIA 3170 Corporate Place Hayward, CA 94545 |
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Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by telephone or facsimile transmission, to accomplish timely communication. However, to constitute effective notice, written confirmation of a telephone conversation or an original of a facsimile transmission must be sent by first class mail or commercial courier, or hand delivered. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of three days after mailing, unless such date is a date on which there is no mail service. In that event, communication is deemed to occur on the next mail service day. |
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| 13. | Assignment | |
| Neither party shall assign or sublet any portion of this Agreement without the prior written consent of the other party. | ||
| 14. | Termination | |
| CITY or CONTRACTOR may terminate the Agreement for cause, in whole or in part, if the other party fails to fulfill its obligations under this Agreement through no fault of the terminating party. However, no such termination for cause may be effected unless the other party is given: | ||
| (a) | Not less than sixty (60) calendar days written notice (delivered by certified mail, return receipt requested) of the intent to terminate, and | |
| (b) | An opportunity for consultation with the terminating party before termination. | |
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If CITY terminates this Agreement pursuant to the above, nothing set forth in this Section is intended to require CITY to compensate CONTRACTOR for any services or equipment which may be claimed to have been provided or be in progress, if CITY reasonably concludes that further compensation is unwarranted. CITY may terminate this Agreement, in whole or in part, whether or not CONTRACTOR has failed to fulfill its obligations, if CITY has a reasonable basis for termination (such as major changes in the work or loss of CITY funding). CITY will provide CONTRACTOR with: |
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| (a) | Not less than sixty (60) calendar days written notice of the intent to terminate, and | |
| (b) | An opportunity for consultation with CITY before termination. | |
| 15. | Entire Agreement; Amendment | |
| This writing and incorporated documents constitute the entire agreement between the parties relating to the services to be performed and equipment to be provided hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing signed by all parties. | ||
| 16. | Miscellaneous | |
| Time shall be of the essence in this Agreement. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision. This Agreement shall be governed and construed in accordance with the laws of the State of California. | ||
| IN WITNESS WHEREOF the parties have executed this Agreement. | ||
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ATTEST: By______________________________ |
CITY OF SUNNYVALE ("CITY") By_______________________________ |
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APPROVED AS TO FORM: By_______________________________ |
MBA OF CALIFORNIA, INC. By______________________________ _________________________________ Title and Date By______________________________ ________________________________ |