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HomeMy WebLinkAbout11-0314 NexSort Services t1- 03t4 AGREEMENT THIS AGREEMENT is made and entered into this� day of Mat& ,201 ,by and between the CITY OF ELGIN,Illinois,a municipal corporation(hereinafter referred to as the "City"),and NexSort Services,Inc.,an Illinois corporation(hereinafter referred to as the"Service Provider"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Service Provider for the Service Provider to provide certain contract services relating to the presorting and delivery of City mail to the U.S.Post Office,as described in this Agreement; and WHEREAS, the Service Provider represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby mutually acknowledged,the parties hereto hereby agree as follows: 1. The Service Provider shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled"NexSort Services,Inc. Service Agreement",attached hereto and made a part hereof as Exhibit A(such services,including the terms,conditions,dates and times,are hereinafter referred to as the"Subject Services"). In the event of any conflict between the provisions of this Agreement and the provisions of Exhibit A,the provisions of this Agreement shall control. The Service Provider represents and warrants that the Service Provider has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A and that the Subject Services set forth in Exhibit A are integral parts of this Agreement and may not be modified,amended or altered,except by a signed,written amendment to this Agreement, agreed to and executed by both parties hereto. 2. The Service Provider shall address all inquiries and requests made pursuant to this Agreement to the City's Budget and Purchaser Officer or his or her designee. 3. In connection with any Subject Services to be performed on other than City-owned or controlled properties, the Service Provider warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean,sanitary and safe condition and free from defects of every kind whatsoever. Service Provider agrees and warrants that the Service Provider will periodically inspect all of such facilities and equipment for such purposes. Service Provider also warrants that the Service Provider and the Service Provider's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this Agreement in violation of any health,building,fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City, Service Provider agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known,immediately to the Assistant City Manager of the City. 4. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2011,unless otherwise terminated as provided for herein. 5. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Service Provider to the City arising out of this Agreement shall be that of an independent contractor. The Service Provider and the Service Provider's officers,employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 6. If the Service Provider violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default,and the City shall have the right to seek administrative,contractual,legal or equitable remedies as may be suitable to the violation or breach; and, in addition, if the Service Provider by reason of any default, fails to within fifteen(15) days after notice thereof by the City to comply with the conditions of the Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default,and in the event the City fails to within fifteen(15)days after notice thereof by the Service Provider to comply with the conditions of this Agreement, the Service Provider as its sole and exclusive remedy may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement,with the sole exception of any funds the City has agreed to pay the Service Provider on a pro rata basis for services actually performed,no action shall be commenced by the Service Provider, any related persons or entities, and/or any of their successors and/or assigns,against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of the Service Provider in this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Service Provider interest at the rate of nine percent(9%)per annum and reasonable attorney's fees. The provisions of this section shall survive any expiration, completion and/or termination of this Agreement. 7. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty (30) days prior written notice to the Service Provider. In the event this Agreement is so terminated,the Service Provider shall be paid for services actually performed,and reimbursable expenses actually incurred prior to termination,except that reimbursement shall not in any event exceed the total amount set forth under Section 4 above. 8. To the fullest extent permitted by law,Service Provider shall indemnify,defend and hold harmless the City, its officers, employees,agents, boards and commissions from and against any and all claims,suits,judgments,costs,attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of Service Provider's performance of this Agreement or any acts or omissions in connection herewith, including,but not limited to, acts of omissions of agents of the Service Provider arising out of the performance of this Agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's -2- choosing. The provisions of this section shall survive any expiration,completion and/or termination of this Agreement. 9. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. 10. In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race,color,creed,national origin,marital status,of the presence of any sensory,mental or physical handicap,unless based upon a bona fide occupational qualification,and this requirement shall apply to,but not be limited to,the following: employment advertising,layoff or termination,rates of pay or other forms of compensation and selection for training, including apprenticeship. 11. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race,color,creed,national origin,age except minimum age and retirement provisions,marital status or the presence of any sensory,mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation,termination or suspension,in whole or in part,or rescission of this Agreement by the City at the City's sole discretion, without liability against the City. 12. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason,the remainder of this Agreement shall remain in full force and effect. 13. This Agreement and its exhibits constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed,modified,discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof. 14. This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 15. The Service Provider certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 16. As a condition precedent of this contract, the Service Provider shall have written sexual harassment policies that include, at a minimum, the following information: a. the illegality of sexual harassment; -3- b. the definition of sexual harassment under state law; c. a description of sexual harassment,utilizing examples; d. the vendor's internal complaint process including penalties; e. the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; f. directions on how to contact the department and commission; and g• protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies shall be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 17. As a condition precedent of this Agreement,the Service Provider shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Act at 820 ILCS 265/1,et seq. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry and execution of this Agreement. 18. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Service Provider shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing,the Service Provider hereby certifies,represents and warrants to the City that all of Service Provider's employees and/or agents who will be providing products, and/or services with respect to this Agreement shall be legal residents of the United States. Service Provider shall also, at its expense, secure all permits and licenses,pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this Agreement. City shall have the right to audit any records in the possession or control of the Service Provider to determine the Service Provider's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Service Provider shall make available to the City the City's relevant records at no cost to the City. Service Provider shall pay any and all costs associated with any such audit. The provisions of this section shall survive any expiration,completion and/or termination of this Agreement. 19. All notices,reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail,postage prepaid, addressed as follows: As to the City: As to Service Provider: City of Elgin NexSort Services,Inc. -4- 150 Dexter Court 711 S. Vermont Street Elgin, IL 60120-5555 Palatine,IL 60067 Attention: RuthAnne Hall Attention: Vince Manzella Budget&Purchasing Director Vice President With a copy to: William A. Cogley,Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 20. Service Provider hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement,and any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1,et seq.)." 21. Service Provider shall not be entitled to,and hereby waives,any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates,officers,employees,agents,attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two(2)years from the date of this Agreement. 22. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and the Service Provider and, as such, this Agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any,of the terms and provisions contained herein. 23. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned by the Service Provider without the express written consent of the City which consent may be withheld at the sole discretion of the City. [SIGNATURE PAGE FOLLOWS] -5- IN WITNESS WHEREOF,the undersigned have entered into executed this Agreement on the date and year first written above. CITY OF ELGIN: ATTEST: '/ Manager City Clerk NEXSOR SERVICES,INC.: By: Name/print1 Title: fe51 en-I f:Vegal dept\agreement\purchase of service agmt-nexsort services.doc -6- NEXSORT SERVICES, INC. 711 S. Vermont St, Palatine, IL 60067 NexSort Services, Inc. Service Agreement By and through the execution of this document,Ne o,rtI�S'ervices, Inc. and City of Elgin hereinafter referred to as, 'The Client;' enter an agreement on this ) kkday of in 2011, in whereas the following stipulations are agreed upon: NexSort Services,Inc.Agrees to: 1. Pick-up the Client's mail so that it is processed,postmarked for that day, and brought to the United States Post Office the day of the pickup, Monday through Friday, between 14:3i PM and 6:Od PM except where designated holidays are observed by the United States Post Office. 2. Provide all necessary materials for the presorting and proper bundling of mail according to U.S. Postal Regulations. 3. Invoice Client on a Monthly Basis,if applicable. 4. Provide competent and adequate business insurance to protect against loss,theft or damages to the Client's mail while in our possession. Client Agrees to: 1. Provide NexSort Services, Inc. with metered and sealed mail adhering to the U.S. Postal Regulations for Presorted First-Class Mail prior to the agreed pick-up time. a. Non-Automation compatible mail shall be limited to First-Class letter-sized pieces weighing from 1 to 4 ounces (up to 'A"thick) and metered at the appropriate Presort First-Class Rate as indicated by the U.S.Postal Service. b. Flats,Certified Mail,Priority Mail,Foreign Mail and Standard and Non-Profit Mail may be included. 2. Meter all mail according to the U.S.Postal regulations as established by the Domestic Mail Manual. 3. Remit invoices for services billed within thirty(30)days of the invoice date. 4. Provide NexSort Services,Inc.with a contact person to contact in the event of any service irregularities. 5. Service Fees(per piece): Typewritten Mail: Metered at the USPS Presort Rate (Example: $0.414 for a one ounce letter) Handwritten Mail: Metered at the USPS Presort Rate (Example: $0.414 for a one ounce letter). Flats: Metered at the USPS Presort Rate(Example: $0.757 for a one ounce flat).There is no fee charged for the pickup,fast-forward,or presorting of your mail. Flats : $0.00 1 & 2 oz Letters $0.00 Fee: Handwritten: $0.00 Reject Fee: No Fees Emergency $0.05 Pick-Up Fee: No Fees Metering Fee: NexSort Services, Inc. shall not be deemed in breach of agreement for the failure of any clause of this agreement, or liable for any loss, damages or delay caused by the perils of war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, earthquake, weather, lock-out, strikes, or without limitation, any other cause beyond NexSort Services,Inc.'s reasonable control. NexSort Services,Inc.reserves the right to amend prices in such cases where the U.S.Postal Service changes the presort postage discount amount. Terms and agreement of this document are the confidential business of NexSort Services,Inc. and Client and may not be disclosed. Termination of Services: City of Elgin reserves the right to terminate this reement upon 30 da written no ' e. Client Representative Date 04" �. ..� 311 NexSort Services,Inc.Representative a PRESORTING BARCODING METERING FOLDING INSERTING SEALING MAILING LIST MAINTENANCE PICK-UP Phone: (847)359.9803 www.nexsort.com Fax: (847)359.9830