HomeMy WebLinkAbout2004 CON CDC EnviroBinz - Collection BinsNOTE TO FILE
IN THE MATTER OF: Agreement by and between the CDC
and EnviroBinz to install and maintain up to 60 collection
bins in the Downtown National City area.
NO FULLY EXECUTED ORIGINAL AGREEMENT HAS
BEEN PROVIDED TO THE CITY CLERK.
NTF
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AGREEMENT BY AND BETWEEN THE
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY AND
ENVIROBINZ
THIS AGREEMENT is entered into this 7th day of September, 2004 by
and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
NATIONAL CITY, (the "CDC"), and ENVIROBINZ (the "CONTRACTOR").
RECITALS
WHEREAS, the CDC desires to employ a CONTRACTOR to install and
maintain up to 60 collection bins in the Downtown National City area; and,
WHEREAS, the CDC has determined that the CONTRACTOR
Envirobinz is qualified by experience and ability to perform the services desired by the
CDC, and the CONTRACTOR is willing to perform such services.
NOW, THEREFORE, THE PAR11E,S HERETO DO MUTUALLY
AGREE AS FOLLOWS:
1. ENGAGEMENT OF CONTRACTOR. The CDC hereby agrees
to engage the CONTRACTOR and the CONTRACTOR hereby agrees to perform the
services hereinafter set forth in accordance with all terms and conditions contained
herein.
The CONTRACTOR represents that all services required hereunder will
be performed directly by the CONTRACTOR or under direct supervision of the
CONTRACTOR.
2. SCOPE OF SERVICES. The CONTRACTOR will perform
services as set forth in the attached Exhibit 1.
The CONTRACTOR shall be responsible for related to the work and shall
not rely on personnel of the CDC for such services, except as authorized in advance by
the CDC.
3. PROJECT COORDINATION AND SUPERVISION.
Robert Paz hereby is designated as the Project Coordinator for the CDC and will monitor
the progress and execution of this Agreement. The CONTRACTOR shall assign a single
Project Director to provide supervision and have overall responsibility for the progress
and execution of this Agreement for the CONTRACTOR. Shahin Enayati thereby is
designated as the Project Director for the CONTRACTOR.
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4. COMPENSATION AND PAYMENT. The CDC Shall not be
required to compensate the CONTRACTOR under the terms of this Agreement.
5. LENGTH OF AGREEMENT. Term of this agreement shall end
on September 7, 2013.
6. INDEPENDENT CONTRACTOR. Both parties hereto in the
performance of this Agreement will be acting in an independent capacity and not as
agents, employees, partners or joint venturers with one another. The CONTRACTOR is
not an employee of the CDC and is not entitled to any of the rights, benefits, or privileges
of the CDC's employees, including but not limited to medical, unemployment, or
workers' compensation insurance.
This Agreement contemplates the personal services of the
CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the
parties that a substantial inducement to the CDC for entering into this Agreement was,
and is, the professional reputation and competence of the CONTRACTOR and its
employees. Neither this Agreement nor any interest herein may be assigned by the
CONTRACTOR without the prior written consent of the CDC. Nothing herein contained
is intended to prevent the CONTRACTOR from employing or hiring as many employees,
or subcontractors, as the CONTRACTOR may deem necessary for the proper and
efficient performance of this Agreement. All agreements by CONTRACTOR with its
subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this
Agreement.
7. CONTROL. Neither the CDC nor its officers, agents or
employees shall have any control over the conduct of the CONTRACTOR or any of the
CONTRACTOR's employees except as herein set forth, and the CONTRACTOR
expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's
agents, servants, or employees are in any manner agents, servants or employees of the
CDC, it being understood that the CONTRACTOR, its agents, servants, and employees
are as to the CDC wholly independent contractors and that the CONTRACTOR'S
obligations to the CDC are solely such as are prescribed by this Agreement.
8. COMPLIANCE WITH APPLICABLE LAW. The
CONTRACTOR, in the performance of the services to be provided herein, shall comply
with all applicable State and Federal statutes and regulations, and all applicable
ordinances, rules and regulations of the City of National City, whether now in force or
subsequently enacted. The CONTRACTOR, and each of its subcontractors, shall obtain
and maintain a current City of National City business license prior to and during
performance of any work within the CDC.
9. LICENSES, PERMITS, ETC. The CONTRACTOR represents
and covenants that it has all licenses, permits, qualifications, and approvals of whatever
nature that are legally required to practice its profession. The CONTRACTOR represents
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and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect
at all times during the term of this Agreement, any license, permit, or approval which is
legally required for the CONTRACTOR to practice its profession.
10. STANDARD OF CARE.
A. The CONTRACTOR, in performing any services under this
Agreement, shall perform in a manner consistent with that level of care and skill
ordinarily exercised by members of the profession currently practicing under similar
conditions and in similar locations. The CDC expects that the CONTRACTOR shall take
all special precautions necessary to protect the CONTRACTOR'S employees and
members of the public from risk of harm arising out of the nature of the work and/or the
conditions of the work site.
B. The CONTRACTOR warrants to the CDC that it is not now, nor
has it been for the five (5) years preceding, involved in arbitration or litigation
concerning the CONTRACTOR's professional performance or the furnishing of
materials or services relating thereto.
C. The CONTRACTOR is responsible for identifying any unique
products, treatments, processes or materials whose availability is critical to the success of
the project the CONTRACTOR has been retained to perform, within the time
requirements of the CDC, or, when no time is specified, then within a commercially
reasonable time. Accordingly, unless the CONTRACTOR has notified the CDC
otherwise, the CONTRACTOR warrants that all products, materials, processes or
treatments identified in the project documents prepared for the CDC are reasonably
commercially available. Any failure by the CONTRACTOR to use due diligence under
this sub -paragraph will render the CONTRACTOR liable to the CDC for any increased
costs that result from the CDC's later inability to obtain the specified items or any
reasonable substitute within a price range that allows for project completion in the time
frame specified or, when not specified, then within a commercially reasonable time.
11. NON-DISCRIMINATION PROVISIONS. The
CONTRACTOR will not discriminate against any employee or applicant for employment
because of age, race, color, ancestry, religion, sex, sexual orientation, marital status,
national origin, physical handicap, or medical condition. The CONTRACTOR will take
positive action to insure that applicants are employed without regard to their age, race,
color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical
handicap, or medical condition. Such action shall include but not be limited to the
following: employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship. The CONTRACTOR agrees to post in
conspicuous places available to employees and applicants for employment any notices
provided by the CDC setting forth the provisions of this non-discrimination clause.
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12. INDEMNIFICATION AND HOLD HARMLESS. The
CONTRACTOR agrees to indemnify, defend, and hold harmless the CDC, the City of
National City, and their officers, employees and volunteers, against and from any and all
liability, loss, damages to property, injuries to, or death of any person or persons, and all
claims, demands, suits, actions, proceedings, costs or attorneys' fees, of any kind or nature,
including workers' compensation claims, of or by anyone whomsoever, in any way resulting
from or arising out of the CONTRACTOR's negligent performance of this Agreement.
13. WORKERS' COMPENSATION. The CONTRACTOR shall
comply with all of the provisions of the Workers' Compensation Insurance and Safety
Acts of the State of California, the applicable provisions of Division 4 and 5 of the
California Government Code and all amendments thereto; and all similar state or Federal
acts or laws applicable; and shall indemnify, defend and hold harmless the CDC and its
officers, employees and volunteers from and against all claims, demands, payments, suits,
actions, proceedings and judgments of every nature and description, including attorneys
fees and costs presented, brought or recovered against the CDC or its officers, employees,
or volunteers, for or on account of any liability under any of said acts which may be
incurred by reason of any work to be performed by the CONTRACTOR under this
Agreement.
14. INSURANCE. The CONTRACTOR, at its sole cost and expense,
shall purchase and maintain, and shall require its subcontractors, when applicable, to
purchase and maintain throughout the term of this agreement, the following insurance
policies:
A. If checked, Professional Liability Insurance (errors and omissions) with
minimum limits of $1,000,000 per occurrence.
B. Comprehensive general liability insurance, with minimum limits of
$1,000,000 combined single limit per occurrence, covering all bodily injury and property
damage arising out of its operation under this Agreement.
C. Workers' Compensation Insurance covering all of its employees
and volunteers.
D. The aforesaid policies shall constitute primary insurance as to the
CDC, its officers, employees, and volunteers, so that any other policies held by the CDC
shall not contribute to any loss under said insurance. Said policies shall provide for thirty
(30) days prior written notice to the CDC of cancellation or material change.
E. Said policies, except for the professional liability and worker's
compensation policies, shall name the CDC and its officers, agents and employees as
additional insureds.
F. If required insurance coverage is provided on a "claims made"
rather than "occurrence" form, the CONTRACTOR shall maintain such insurance
coverage for three years after expiration of the term (and any extensions) of this Agree-
ment.
G. Any aggregate insurance limits must apply solely to this Agree-
ment.
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H. Insurance shall be written with only California admitted companies
which hold a current policy holder's alphabetic and financial size category rating of not
less than A VIII according to the current Best's Key Rating Guide, or a company equal
financial stability that is approved by the CDC's Risk Manager.
I. This Agreement shall not take effect until certificate(s) or other
sufficient proof that these insurance provisions have been complied with, are filed with
and approved by the CDC's Risk Manager. If the CONTRACTOR does not keep all of
such insurance policies in full force and effect at all times during the terms of this
Agreement, the CDC may elect to treat the failure to maintain the requisite insurance as a
breach of this Agreement and terminate the Agreement as provided herein.
15. LEGAL FEES. If any party brings a suit or action against the
other party arising from any breach of any of the covenants or agreements or any
inaccuracies in any of the representations and warranties on the part of the other party
arising out of this Agreement, then in that event, the prevailing party in such action or
dispute, whether by final judgment or out -of -court settlement, shall be entitled to have
and recover of and from the other party all costs and expenses of suit, including attorneys'
fees.
For purposes of determining who is to be considered the prevailing party,
it is stipulated that attorney's fees incurred in the prosecution or defense of the action or
suit shall not be considered in determining the amount of the judgement or award.
Attorney's fees to the prevailing party if other than the CDC shall, in addition, be limited
to the amount of attorney's fees incurred by the CDC in its prosecution or defense of the
action, irrespective of the actual amount of attorney's fees incurred by the prevailing
party.
16. MEDIATION/ARBITRATION. If a dispute arises out of or
relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith,
to settle the dispute by mediation in San Diego, California, in accordance with the
Commercial Mediation Rules of the American Arbitration Association (the "AAA")
before resorting to arbitration. The costs of mediation shall be borne equally by the
parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach
thereof, which is not resolved by mediation shall be settled by arbitration in San Diego,
California, in accordance with the Commercial Arbitration Rules of the AAA then
existing. Any award rendered shall be final and conclusive upon the parties, and a
judgment thereon may be entered in any court having jurisdiction over the subject matter
of the controversy. The expenses of the arbitration shall be borne equally by the parties
to the arbitration, provided that each party shall pay for and bear the costs of its own
experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses
or any part thereof against a specified party as part of the arbitration award.
17. TERMINATION. A. This Agreement may be terminated
immediately by the CDC for cause in the event of a material breach of this Agreement,
misrepresentation by the CONTRACTOR in connection with the formation of this
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Agreement or the performance of services, or the failure to perform services as directed
by the CDC.
B. Termination for cause shall be effected by delivery of written
Notice of Termination to the CONTRACTOR as provided for herein.
C. In the event of termination, all finished or unfinished Memoranda
Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the
CONTRACTOR, whether paper or electronic, shall immediately become the property of
and be delivered to the CDC, and the CONTRACTOR shall be entitled to receive just and
equitable compensation for any work satisfactorily completed on such documents and
other materials up to the effective date of the Notice of Termination, not to exceed the
amounts payable hereunder, and less any damages caused the CDC by the
CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall
vest in the CDC all rights set forth in Section 6.
D. The CDC further reserves the right to immediately terminate this
Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR;
(2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business
reorganization, change in business name or change in business status of the
CONTRACTOR.
18. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing, and shall be personally delivered; or sent by
overnight mail (Federal Express or the like); or sent by registered or certified mail,
postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or
telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall
be deemed received upon the earlier of (i) if personally delivered, the date of delivery to
the address of the person to receive such notice, (ii) if sent by overnight mail, the
business day following its deposit in such overnight mail facility, (iii) if mailed by
registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside
the State of California) after the date of deposit in a post office, mailbox, mail chute, or
other like facility regularly maintained by the United States Postal Service, (iv) if given
by telegraph or cable, when delivered to the telegraph company with charges prepaid, or
(v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand,
direction or other communication delivered or sent as specified above shall be directed to
the following persons:
To the CDC:
Benjamin Martinez, Executive Director
Community Development Commission of the City of National City
140 East 12th Street, Suite B
National City, CA 91950-3312
To the CONTRACTOR: Shahin Enayati
Envirobinz
9888 Carmel Mountain Rd. Suite
San Diego CA 92129
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Notice of change of address shall be given by written notice in the manner
specified in this Section. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given shall be deemed to constitute
receipt of the notice, demand, request or communication sent. Any notice, request,
demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax
must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified
in this Section.
19. CONFLICT OF INTEREST AND POLITICAL REFORM
ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall
not perform services of any kind for any person or entity whose interests conflict in any
way with those of the CDC. The CONTRACTOR also agrees not to specify any product,
treatment, process or material for the project in which the CONTRACTOR has a material
financial interest, either direct or indirect, without first notifying the CDC of that fact.
The CONTRACTOR shall at all times comply with the terms of the Political Reform Act
and the National City Conflict of Interest Code. The CONTRACTOR shall immediately
disqualify itself and shall not use its official position to influence in any way any matter
coming before the CDC in which the CONTRACTOR has a financial interest as defined
in Government Code Section 87103. The CONTRACTOR represents that it has no
knowledge of any financial interests that would require it to disqualify itself from any
matter on which it might perform services for the CDC.
0 If checked, the CONTRACTOR shall comply with all of the
reporting requirements of the Political Reform Act and the National City Conflict of
Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic
Interests with the City Clerk of the City of National City in a timely manner on forms
which the CONTRACTOR shall obtain from the City Clerk.
The CONTRACTOR shall be strictly liable to the CDC for all damages,
costs or expenses the CDC may suffer by virtue of any violation of this Paragraph 20 by
the CONTRACTOR.
20. MISCELLANEOUS PROVISIONS.
A. Computation of Time Periods. If any date or time period provided
for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday,
then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next
day which is not a Saturday, Sunday or federal, state or legal holiday.
B. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which, together, shall
constitute but one and the same instrument.
C. Captions. Any captions to, or headings of, the sections or
subsections of this Agreement are solely for the convenience of the parties hereto, are not
a part of this Agreement, and shall not be used for the interpretation or determination of
the validity of this Agreement or any provision hereof.
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D. No Obligations to Third Parties. Except as otherwise expressly
provided herein, the execution and delivery of this Agreement shall not be deemed to
confer any rights upon, or obligate any of the parties hereto, to any person or entity other
than the parties hereto.
E. Exhibits and Schedules. The Exhibits and Schedules attached
hereto are hereby incorporated herein by this reference for all purposes.
F. Amendment to this Agreement. The terms of this Agreement may
not be modified or amended except by an instrument in writing executed by each of the
parties hereto.
G. Waiver. The waiver or failure to enforce any provision of this
Agreement shall not operate as a waiver of any future breach of any such provision or
any other provision hereof.
H. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
I. Entire Agreement. This Agreement supersedes any prior agree-
ments, negotiations and communications, oral or written, and contains the entire
agreement between the parties as to the subject matter hereof. No subsequent agreement,
representation, or promise made by either party hereto, or by or to an employee, officer,
agent or representative of any party hereto shall be of any effect unless it is in writing and
executed by the party to be bound thereby.
J. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the successors and assigns of the parties hereto.
K. Construction. The parties acknowledge and agree that (i) each
party is of equal bargaining strength, (ii) each party has actively participated in the
drafting, preparation and negotiation of this Agreement, (iii) each such party has
consulted with or has had the opportunity to consult with its own, independent counsel
and such other professional advisors as such party has deemed appropriate, relative to any
and all matters contemplated under this Agreement, (iv) each party and such party's
counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter
into this Agreement following such review and the rendering of such advice, and (vi) any
rule or construction to the effect that ambiguities are to be resolved against the drafting
party shall not apply in the interpretation of this Agreement, or any portions hereof, or
any amendments hereto.
Signature page to follow
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date and year first above written.
COMMUNITY DEVELOPMENT OF
THE CITY OF NATIONALITY
By:
Ni zun a
Chairman
ATTEST:
By:
By: ! ,.�.► By
Benjamin Martinez
Secretary
APPROVED AS TO FORM:
George H. Eiser, III
Legal Counsel
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ENVIROBINZ
(Two signatures required)
Shahin nayati
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August 30, 2004
''.°"*6N-4p
‘11/)
envirobinz
Robert Paz
Deputy Director of Economic Redevelopment
140 East 12th Street
Suite B
National City, CA 91950
RE: PRELIMINARY PROPOSAL TO PROVIDE ENVIROBINZ PATENT PENDING
PRODUCT TO THE CITY OF NATIONAL CITY
Dear Mr. Paz:
Based on our discussions, please find the following proposal for your approval.
Envirobinz will provide the City of National City our patent pending product AT NO COST to the
City of National City under the following terms (atiiiiVeitifierit of about $250,000):
Envirobinz will provide:
➢ Installation of 2-chamber collection bins (Up to 60 bins in total) promoting a street -side
recycling program on city commercial streets, the number and placement to be specified by
the City of National City
➢ The exterior design of the Envirobin, incorporating the colors and motifs of the commercial
districts providing street branding and promotion with the final design approval by the City of
National City
Further, Envirobinz will:
➢ Retain ownership of the 2-chain collection Envirobin
➢ Sell each of the 4 sides of the chamber as advertising space and will allow only socially
acceptable advertisements to be displayed
➢ Provide the City of National City, 10% of the. net revenues from the advertising space to be
used for environmental causes
➢ Provide local artists a opportunity to display their artwork on unsold space
Envirobinz requires a 9 year written, commitment (renewable for additional 9 year terms) from the
City of National City and will further require that the City removes the existing trash containers to be
replaced by the Envirobin. The City will continue to collect the trash and recyclables through their
usual process.
Thank ou in advance r your consideration.
Shale . ya
Business Develop ent
9888 Carmel Mo ntain Rd. Suite I
San Diego, CA 9 129
Phone: 858-538- 653
Attachment 1
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9888 Carmel Mountain Rd Suite I ' ..
San Diego, CA 92129
Phone: 858-538-7653 envirobinz
The Company
EnviroBinz is a San Diego based socially conscious small company focused on bringing awareness to
environmental causes. We plan to increase recycling trends and behavior within commercial districts of the
United States using our patent pending product called the EnviroBin. Our product allows pedestrians to make
choices when dispensing trash or recyclables in their respective receptacles. In addition, the EnviroBin brings
out the uniqueness of each community by incorporating colors, designs and aesthetics of the local business
environment.
The Team
Shahin Enayati - Business Development
Shahin has worked in the United States and Canada for large and small corporations since 1988. While holding
senior level positions, he acquired a wide range of experience in R&D, Project Management, Business
Development, Sales, Marketing, and Business Analysis His extensive;experie.nce in these fields has allowed
i.
him to develop a sound understanding of growing abmess and developing its specific needs.
Shahin holds a Bachelors Degree in Biology and s presently working on his Master's Degree in Leadership
and Management with a strong focus on International Business. He speaks a total of 5 languages.
Prabakar Mahalingam — Product Development
Prabakar has worked in the controls technology and power management fields since 1992, holding various
positions in controls design, power electronics,;software automation, applications consulting, product, and
program management. In the community, Praiakar:seived on the board of directors for the Vision of Race
Unity, a community based organization.admintstrating race unity activities and workshops, and consulting in
the area of racial diversity and awareness.
Prabakar received his Bachelors in ElectricalErgineering from Marquette University and is currently
attending San Diego State University in the: Rrt:time MBA program.
John Wencel — Mechanical Design Engineer
John has worked in the field of mechanical design engineering since 1979 holding various positions in
government and commercial industries. His expertise is in the area of design, fabrication and production of
mechanical enclosures. Some of his design experience includes containerized equipment, ship handling
systems and rack mounted electronic enclosures.
John has a Bachelors degree in Manufacturing Engineering from San Diego State University.
Michelle Nolasco — Graphics Art Designer
Michelle has worked on educational, scientific and commercial design projects with organizations such as the
Poway Unified School District, The Scripps Research Institute, and Corbis (a Bill Gates company) since 1989.
Currently works as a consultant, researcher and freelance designer.
Michelle studied design locally in San Diego at The Advertising Arts College and UCSD.
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envirobinz
PROPOSED DESIGN 3 AND COLOR SCHEME B
LOCATION: EDUCATION VILLAGE, NATIONAL CITY, CA
envirobinz