111-26 Agreement.pdf

of any such subcontractor to maintain such insurance shall be considered a material breach of this Agreement by Contractor. 12. Default. In the event of default hereunder by Contractor, the Township shall be entitled to all remedies available at law and/or equity, including reasonable attorney's fees. 13. Limitation on Damages against the Township. Notwithstanding any provision in any of the Contract Documents to the contrary, the Contractor agrees to waive any right which it may have to punitive, consequential, special, indirect, incidental, and/or exemplary damages and/or lost profits from the Township and agrees not to make any claim or demand for such damages and/or lost profits against the Township. 14. Notice. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed served (a) when delivered by Federal Express or similar overnight courier service to that party's address set forth below during the hours of 9:00 a.m. and 5:00 p.m. local time Monday through Friday, excluding federal holidays; (b) when mailed to any other person designated by that party in writing herein to receive such notice, via certified mail, return receipt requested, postage prepaid; (c) or via fax. Fax notice shall be effective as of date and time of facsimile transmission, provided that the notice transmitted shall be sent on business days during business hours (9:00 A.M. to 5:00 P.M. New Jersey time). 15. Assumption of Risk. To the fullest extent permitted by law, Contractor assumes liability for all injury to or death of any person or persons including employees of contractor, any subcontractor of any tier, any supplier and/or any other person, and assumes liability for all damage to property sustained by any person or persons occasioned by or in any way arising out of any work performed pursuant to this Agreement. 16. Hazardous Substances. Contractor shall not cause or permit any Hazardous Substances to be brought upon, kept, stored or used in or about any of the Project Sites and/or any other Township property (collectively, the "Township Property") by Contractor, its employees, contractors, subcontractors, agents, suppliers and anyone for whose acts and/or omissions for whom Contractor may be liable (collectively "Contractor's

ownship Property") by Contractor, its employees, contractors, subcontractors, agents, suppliers and anyone for whose acts and/or omissions for whom Contractor may be liable (collectively "Contractor's Agents"). If the presence of Hazardous Substances brought upon, kept, stored or used in or about any Township Property by or on behalf of Contractor or Contractor's Agents in violation of this paragraph, results in contamination of said Township Property, Contractor shall pay for all actual costs of clean up and shall indemnify, hold harmless and at the Township's option, defend the Township, and its employees, affiliates, agents, volunteers, officers, and officials from and against any and all claims, demands, expenses (including reasonable attorneys' fees), costs, fines, penalties and other liabilities of any and every kind and nature, including, but not limited to, costs and expenses incurred in connection with any clean up, remediation, removal or restoration work required by any federal, state or local governmental authority because of the presence of any such Hazardous Substances on or about the Township Property. For purposes hereof, Hazardous Substances shall include, but not be limited to, substances defined as "hazardous substances," "toxic substances" in the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended; the Federal

Hazardous Materials Transportation Act, as amended; and the federal Resource Conservation and Recovery Act, as amended ("RCRA"); those substances defined as "hazardous substances," "materials," or "wastes" under any Federal law or the law of the State of New Jersey; and as such substances are defined in any regulations adopted and publications promulgated pursuant to said laws (collectively, "Environmental Laws"). If Contractor's activities or the activities of any of Contractor's Agents violate or create a risk of violation of any Environmental Laws, Contractor shall cause such activities to cease immediately upon notice from the Township. Contractor shall immediately notify the Township both by telephone and in writing of any spill or unauthorized discharge of Hazardous Substances or of any condition constituting an "imminent hazard" under any Environmental Laws. Contractor's indemnification obligations and duties hereunder shall survive the termination and/or expiration of this Agreement. 17. Criminal Background Checks. Contractor shall be responsible for causing each employee, contractor, sub-contractor and/or other person performing Cleaning Services hereunder to sign the Investigation Authorization and Release form, attached hereto as Exhibit “C”, and incorporated herein and furnishing said Release forms to the Township. The Parties agree that in the event any criminal background check discloses a conviction of any felony and/or a misdemeanor involving moral turpitude, including, but not limited to, a conviction of any of the Disqualifying Criminal Offenses of Public Act, then such employee, contractor, sub-contractor and/or other person shall be prohibited from performing any Cleaning Services and/or other work hereunder. 18. Termination of Agreement. Notwithstanding any provision herein to the contrary, the Township may terminate this Agreement with or without cause by providing, not less than five (5) days prior written notice of termination to Contractor. In the event Contract fails to maintain the Minimum Insurance Requirements defined above, then the Township may immediately terminate this Agreement. 19. Permits and Licenses. Contractor shall obtain all permits and licenses required to perform the Cleaning Services, and the cost of such permits, licenses and any other requirements imposed

19. Permits and Licenses. Contractor shall obtain all permits and licenses required to perform the Cleaning Services, and the cost of such permits, licenses and any other requirements imposed hereunder are included in the Contract Sum set forth in paragraph three (3) herein. 20. Relationship of the Parties. It is understood, acknowledged and agreed by the parties that the relationship of the Contractor to the Township arising out of this Agreement shall be that of an independent contractor. Neither Contractor, nor any employee, subcontractor or agent of Contractor, is a partner, joint venturer, employee and/or agent of the Township, and therefore is not entitled to any benefits provided to employees of the Township. Contractor has no authority to employ/retain any person as an employee or agent for or on behalf of the Township for any purpose. Neither Contractor nor any person engaging in any work or services related to this Agreement at the request or with the actual or implied consent of the Contractor may represent himself to others as an employee, agent, partner, and/or joint venturer, of the Township. Should any person indicate to the Contractor or any employee, subcontractor or agent of Contractor by written or oral communication, course of dealing or otherwise, that such person

believes Contractor to be an employee, partner, joint venturer, or agent of the Township, Contractor shall use its best efforts to correct such belief. In ordering or accepting delivery of or paying for any goods or services, Contractor shall do so in Contractor's own business. 21. Identifications. For security purposes, the Contractor shall be required to submit a list, including the names and addresses, of the personnel who will be regularly assigned to the Township's properties. All janitorial staff assigned to the Township Site(s) must be bonded and insured. All janitorial staff shall wear company uniforms and an identification card that clearly displays both the company and worker's name. 22. Substitution of Workers. A Contractor may not substitute any employee or other person providing Cleaning Services on Township property without prior notification to the Township. Use of any such employees/workers shall be subject to the terms and conditions of paragraph 20 above. 23. Prohibited Conduct. The Contractor's personnel shall not disturb papers on desks, or open drawers, cabinets, files, or bookcases. The Township's telephones shall not be used by the Contractor's employees and/or other workers. Under no circumstances shall the Contractor's personnel be allowed to bring visitors into the Township's buildings while performing Cleaning Services. 24. Contractor Responsible for Employees, Subcontractors, and Agents. The Contractor shall assume full responsibility for the actions of its employees, subcontractors of every tier, and agents. 25. Replacement of Workers. The Contractor shall provide a working supervisor and other personnel satisfactory to the Township to perform the work as specified and replace within twenty-four (24) hours any such persons performing Cleaning Services hereunder as the Township may reasonably determine to be unsatisfactory. 26. Supplies. Contractor shall provide all cleaning equipment and supplies, including but not limited to all disinfectants, floor cleaning products, and polishes necessary to properly complete the Cleaning Services hereunder. All supplies shall be of a quality acceptable to the Township. The Contractor will be required to submit to the Township the corresponding material safety data sheets (MSDS) for all cleaners, polishes,

ll supplies shall be of a quality acceptable to the Township. The Contractor will be required to submit to the Township the corresponding material safety data sheets (MSDS) for all cleaners, polishes, soaps, and other chemicals used to provide the Cleaning Services, The cost of such cleaning supplies and equipment is included in the Contract price set forth in paragraph three (3) above. 27. No Third Parties and/or Waiver of Statutory Immunities. Notwithstanding any provision herein to the contrary, this Agreement is entered into solely for the benefit of the contracting parties, and nothing in this Agreement is intended, either expressly or impliedly, to provide any right or benefit of any kind whatsoever to any person and/or entity who is not a party to this Agreement or to acknowledge, establish or impose any legal duty to any third party. Nothing herein shall be construed as an express and/or implied waiver of any common law and/or statutory immunities and/or privileges of the Township, and/or its respective officials, officers, employees, volunteers and/or agents.

28. Entire Agreement (Merger) This Agreement, including all exhibits, appendices, and attachments hereto, sets forth the entire agreement between the Public Entity and the other party with respect to the subject matter hereof and supersedes all prior and contemporaneous discussions, negotiations, understandings, representations, warranties, and agreements, whether oral or written, between the parties. All previous drafts, proposals, and communications between the parties relating to the subject matter of this Agreement are hereby merged into this Agreement. Neither party has relied upon any representation, warranty, or undertaking that is not expressly set forth in this Agreement. The parties acknowledge that there are no terms, conditions, representations, warranties, promises, covenants, or understandings between the parties other than those expressly set forth herein. 29. MODIFICATIONS and NONWAIVER No amendment, modification, waiver, or other change to any provision of this Agreement shall be effective unless specifically set forth in a writing titled "Amendment to Agreement" that expressly identifies the provision(s) being amended and is signed by authorized representatives of both parties. No course of dealing, delay, or failure to enforce any provision of this Agreement shall constitute an amendment, modification, waiver, or continuing waiver of such provision or any other provision of this Agreement. Email exchanges, text messages, or other electronic communications, regardless of content, shall not constitute a signed writing for purposes of modifying this Agreement. The parties acknowledge that this provision is essential to maintain clarity and certainty in their contractual relationship and to protect the interests of the Public Entity as required by New Jersey law. 30. Severability If any provision of this Agreement, or any portion thereof, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby and shall continue in full force and effect as if such invalid, illegal, or unenforceable provision had never been contained herein. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement is held to be excessively broad, it shall be reformed and

in. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent permitted by law. The parties expressly acknowledge and agree that they would have entered into this Agreement regardless of the enforceability of any particular provision. 31. State Required Record retention- N.J.S.A. 52:15C-14(d) and N.J.A.C. 17:44-2.2. The Contractor shall maintain all documentation related to products, transactions or services under this contract for a period of five years from the date of final payment. Such records shall be made available to the New Jersey Office of the State Comptroller upon request. Refusal by the Contractor to provide information upon request by the State Comptroller, or otherwise impede or fail to cooperate with any audit or performance review, the State Comptroller may recommend to the Township of West Orange that the person be subject to termination of their contract, or temporarily or permanently debarred from contracting with the Township. 32. Contract Documents. The Contract Documents which comprise the Contract between the Township and the Contractor are attached hereto and made a part hereof and consist of the following: Bid Proposal Form and Attachments, Bid Submission, and this Agreement.

33. Miscellaneous. a. This Agreement supersedes all prior agreements and understandings, both written and oral, of the parties to the subject matter hereof. This Agreement applies to and binds the heirs, successors, executors, administrators and assigns of the parties to this Agreement. Any amendments to this Agreement must be in writing and executed by both parties. b. This Agreement may be executed in any number of counterparts, and by the Township and Contractor on different counterparts, each of which when executed shall be deemed an original and all of which together shall constitute one and the same Agreement. c. Changes in the number, gender and grammar of terms and phrases herein when necessary to conform this Agreement to the circumstances of the parties hereto shall in all cases, be assumed as though in each case fully expressed therein. d. This Agreement shall be construed, governed and enforced according to the laws of the State of New Jersey, and the exclusive venue for the enforcement of this Agreement and/or litigation between the parties shall be in the Bergen County Superior Court of New Jersey. Prior to any action being brought before the Superior Court, any disputes arising under the terms and conditions of this Agreement, shall be brought in arbitration before a retired Judge of the Superior Court of Bergen County for possible resolution. e. In construing this Agreement, section headings shall be disregarded. Time is of the essence of this Agreement and every provision contained herein. If any clause, phrase, revision or portion of this Agreement or the application thereof, to any person or circumstance, shall be invalid or unenforceable under applicable law, such event shall not affect, impair or render invalid or unenforceable the remainder of this Agreement, nor shall it affect the application of any other clause, phrase, provision or portion hereof to other persons or circumstances. f. Facsimile signatures shall be sufficient for purposes of executing, negotiating, and finalizing this Agreement. g. Each of the undersigned signing as an officer or agent on behalf of the respective party to this Agreement warrants that he or she holds such capacity as is specified beneath his or her name and

Each of the undersigned signing as an officer or agent on behalf of the respective party to this Agreement warrants that he or she holds such capacity as is specified beneath his or her name and further warrants that he or she is authorized to execute and effectuate this Agreement and that he or she does so voluntarily and in his or her official capacity. h. Survival of Obligations. Except as otherwise provided, any obligations and duties which by their nature extend beyond the expiration of termination of this Agreement, including, without limitation, Sections pertaining to Indemnity shall survive the expiration of this Agreement.