HomeMy WebLinkAbout04834 - NXTCYCLE COMPUTER ELECTRONIC EQUIPMENT COLLECTION EVENT EARTH DAY AMERICA RECYCLE DAY Nxtcycle
Electronic Equip Collection
AGREEMENT #4834
CM signed 3-18-04
CONTRACT SERVICES AGREEMENT FOf`_ _ ---
COMPUTER AND RELATED ELECTRONIC EQUIPMENT
COLLECTION EVENT
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and
entered into this_?Z'day of 2004, by and between the CITY OF PALM
SPRINGS, (herein "City," a municipal corporation and NXTCYCLE (herein "Contractor"). The
parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
11.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, the Contractor shall provide those services specified in the "Scope of Services"
attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be
referred to herein as the "services" or"work" hereunder, Contractor warrants that all services
will be performed in a competent, professional and satisfactory manner in accordance with the
standards prevalent in the industry, and all materials will be of good quality, fit for the purpose
intended.
1.2 Contractor's Proposal. The Scope of Services shall include the
Contractor's proposal or bid which shall be incorporated herein by this reference as though fully
set forth herein. In the event of any inconsistency between the terms of such proposal and this
Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law. All 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 City having jurisdiction in effect at the time service is
rendered.
1.4 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. Contractor shall have the sole
obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest,
which may be imposed by law and arise from or are necessary for the Contractor's performance
of the services required by this Agreement, and shall indemnify, defend and hold harmless City
against any such fees, assessments, taxes penalties or interest levied, assessed or imposed
against City hereunder.
1.5 Familiarity with Work. By executing this Contract, Contractor warrants
that Contractor (a) has thoroughly investigated and considered the scope of services to be
performed, (b) has carefully considered how the services should be performed, and (c) fully
understands the facilities, difficulties and restrictions attending performance of the services
under this Agreement. If the services involve work upon any site, Contractor warrants that
Contractor has or will investigate the site and is or will be fully acquainted with the conditions
there existing, prior to commencement of services hereunder. Should the Contractor discover
any latent or unknown conditions, which will materially affect the performance of the services
hereunder, Contractor shall immediately inform the City of such fact and shall not proceed
except at Contractor's risk until written instructions are received from the Contract Officer.
ORIGINAL Ij D
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1.6 Care of Work. The Contractor shall adopt reasonable methods during the
life of the Agreement to furnish continuous protection to the work, and the equipment, materials,
papers, documents, plans, studies and/or other components thereof to prevent losses or
damages, and shall be responsible for all such damages, to persons or property, until
acceptance of the work by City, except such losses or damages as may be caused by City's
own negligence.
1.7 Further Responsibilities of Parties. Both parties agree to use reasonable
care and diligence to perform their respective obligations under this Agreement. Both parties
agree to act in good faith to execute all instruments, prepare all documents and take all actions
as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter
specified, neither party shall be responsible for the service of the other.
1.8 Additional Services. City shall have the right at any time during the
performance of the services, without invalidating this Agreement, to order extra work beyond
that specified in the Scope of Services or make changes by altering, adding to or deducting
from said work. No such extra work may be undertaken unless a written order is first given by
the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract
Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the
written approval of the Contractor. Any increase in compensation of five percent (5%) or less of
the Contract Sum, or in the time to perform of one hundred eighty (180) days or less may be
approved by the Contract Officer. Any greater increases, taken either separately or
cumulatively must be approved by the City Council. It is expressly understood by Contractor
that the provisions of this Section shall not apply to services specifically set forth in the Scope
of Services or reasonably contemplated therein. Contractor hereby acknowledges that it
accepts the risk that the services to be provided pursuant to the Scope of Services may be
more costly or time consuming than Contractor anticipates and that Contractor shall not be
entitled to additional compensation therefore.
1.9 Special Requirements. Additional terms and conditions of this
Agreement, if any, which are made a part hereof are set forth in the "Special Requirements"
attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a
conflict between the provisions of Exhibit B and any other provisions of this Agreement, the
provisions of Exhibit B shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, the
Contractor shall be compensated in accordance with the "Schedule of Compensation" attached
hereto as Exhibit "C" and incorporated herein by this reference, but not exceeding the maximum
contract amount of Twenty Thousand Dollars ($20,000.00) (herein "Contract Sum") which is
divided equally among two events per fiscal year( $10,000 per event). The method of
compensation may include: (i) a lump sum payment upon completion, (ii) payment in
accordance with the percentage of completion of the services, (iii) payment for time and
materials based upon the Contractor's rates as specified in the Schedule of Compensation, but
not exceeding the Contract Sum or(iv) such other methods as may be specified in the Schedule
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of Compensation. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, telephone expense, transportation expense, and
performance bond, approved by the Contract Officer in advance, and no other expenses and
only if specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Contractor at one meeting reasonably deemed necessary by the City; Contractor
shall not be entitled to additional compensation for attending additional meetings as required by
the City.
2.2 Method of Payment. Unless some other method of payment is specified
in the Schedule of Compensation (Exhibit C), in any month in which Contractor wishes to
receive payment, no later than the first (1 st) working day of such month, Contractor shall submit
to the City in the form approved by the City's Director of Finance, an invoice for services
rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay
Contractor for all expenses stated thereon which are approved by City pursuant to this
Agreement no later than the last working day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement.
3.2 Schedule of Performance. Contractor shall commence the services
pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all
services within the time period(s) established in the "Schedule of Performance" attached hereto
as Exhibit "D", if any, and incorporated herein by this reference. When requested by the
Contractor, extensions to the time period(s) specified in the Schedule of Performance may be
approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days
cumulatively.
3.3 Force Maieure. The time period(s) specified in the Schedule of
Performance for performance of the services rendered pursuant to this Agreement shall be
extended because of any delays due to unforeseeable causes beyond the control and without
the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the
public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine
restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental
City, including the City, if the Contractor shall within ten (10) days of the commencement of
such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer
shall ascertain the facts and the extent of delay, and extend the time for performing the services
for the period of the enforced delay when and if in the judgment of the Contract Officer such
delay is justified. The Contract Officer's determination shall be final and conclusive upon the
parties to this Agreement. In no event shall Contractor be entitled to recover damages against
the City for any delay in the performance of this Agreement, however caused, Contractor's sole
remedy being extension of the Agreement pursuant to this Section.
3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the services
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but not exceeding one (1) year from the date hereof, except as otherwise provided in the
Schedule of Performance.
4.0 COORDINATION OF WORK
4.1 Representative of Contractor. The following principals of Contractor are
hereby designated as being the principals and representatives of Contractor authorized to act in
its behalf with respect to the work specified herein and make all decisions in connection
therewith:
It is expressly understood that the experience, knowledge, capability and reputation of
the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Contractor and devoting sufficient time to personally supervise the
services hereunder. For purposes of this Agreement, the foregoing principals may not be
replaced nor may their responsibilities be substantially reduced by Contractor without the
express written approval of City.
4.2 Contract Officer. The Contract Officer shall be such person as may be
designated by the City Manager of City. It shall be the Contractor's responsibility to assure that
the Contract Officer is kept informed of the progress of the performance of the services and the
Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless
otherwise specified herein, any approval of City required hereunder shall mean the approval of
the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf
of the City required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge, capability and reputation of Contractor, its principals and employees were a
substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not
contract with any other entity to perform in whole or in part the services required hereunder
without the express written approval of the City. In addition, neither this Agreement nor any
interest herein may be transferred, assigned, conveyed, hypothecated or encumbered
voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the
prior written approval of City. Transfers restricted hereunder shall include the transfer to any
person or group of persons acting in concert of more than twenty five percent (25%) of the
present ownership and/or control of Contractor, taking all transfers into account on a cumulative
basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this
Agreement shall be void. No approved transfer shall release the Contractor or any surety of
Contractor of any liability hereunder without the express consent of City.
4.4 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 herein. City
shall have no voice in the selection, discharge, supervision or control of Contractor's
employees, servants, representatives or agents, or in fixing their number, compensation or
hours of service. Contractor shall perform all services required herein as an independent
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contractor of City and shall remain at all times as to City a wholly independent contractor with
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.
City shall not in any way or for any purpose become or be deemed to be a partner of Contractor
in its business or otherwise or a joint venturer or a member of any joint enterprise with
Contractor.
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 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. If the Contract Sum is $25,000.00
or less, the policy of insurance shall be written in an amount not less than either (i) a combined
single limit of$500,000.00 or (ii) bodily injury limits of$250,000.00 per person, $500,000.00 per
occurrence and $500,000.00 products and completed operations and property damage limits of
$100,000.00 per occurrence and $100,000.00 in the aggregate. If the Contract Sum is greater
than $25,000.00 but less than or equal to $100,000.00, the policy of insurance shall be in an
amount not less than either(i) a combined single limit of$1,000,000.00 for bodily injury, death
and property damage 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 and $500,000.00 in the aggregate. If the Contract Sum is
greater than $100,000.00, 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 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$250,000.00 per person and $500,000.00 per occurrence and property damage
liability limits of$100,000.00 per occurrence and $250,000.00 in the aggregate or (ii) combined
single limit liability of$500,000.00. Said policy shall include coverage for owned, non-owned,
leased and hired cars.
(d) Additional Insurance. Policies of such other insurance, including
professional liability insurance, as may be required in the Special Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City,
its officers, employees and agents as additional insureds. The insurer shall waive all rights of
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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 cancelled without providing thirty (30) days prior written notice by
registered mail to the City. In the event any of said policies of insurance are cancelled, the
Contractor shall, prior to the cancellation date, submit new evidence of insurance in
conformance with this Section 5.1 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 5.1 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.
In the event the Contractor subcontracts any portion of the work in compliance with
Section 4.3 of this Agreement, the contract between the Contractor and such subcontractor
shall require the subcontractor to maintain the same policies of insurance that the Contractor is
required to maintain pursuant to this Section 5.1.
5.2 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, (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, operations or activities of Contractor, its agents, employees,
subcontractors, or invitees, provided for 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, whether or not there is
concurrent passive or active negligence on the part of the City, its officers, agents or employees
but excluding such claims or liabilities arising from the sole negligence or willful misconduct of
the City, its officers, agents or employees, who are directly responsible to the City, and in
connection therewith:
(a) Contractor will defend any action or actions filed in connection with any of said claims
or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees
incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against the City, its officers,
agents or employees for any such claims or liabilities arising out of or in connection with
the negligent performance of or failure to perform such work, operations or activities of
Contractor hereunder; and Contractor agrees to save and hold the City, its officers,
agents, and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a party to any action
or proceeding filed or prosecuted against Contractor for such damages or other claims
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arising out of or in connection with the negligent performance of or failure to perform the
work, operation or activities of Contractor hereunder, Contractor agrees to pay to the
City, its officers, agents or employees, any and all costs and expenses incurred by the
City, its officers, agents or employees in such action or proceeding, including but not
limited to, legal costs and attorneys' fees.
5.3 Performance Bond. Concurrently with execution of this Agreement,
Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement,
in the form provided by the City Clerk, which secures the faithful performance of this Agreement,
unless such requirement is waived by the Contract Officer. The bond shall contain the original
notarized signature of an authorized officer of the surety and affixed thereto shall be a certified
and current copy of his power of attorney. The bond shall be unconditional and remain in force
during the entire term of the Agreement and shall be null and void only if the Contractor
promptly and faithfully performs all terms and conditions of this Agreement.
5.4 Sufficiency of Insurer or Surety. Insurance or bonds 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 Risk Manager of the City due to unique
circumstances. In the event the Risk Manager of City ("Risk Manager") determines that the
work or services to be performed under this Agreement creates an increased or decreased risk
of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and
the performance bond required by this Section 5 may be changed accordingly upon receipt of
written notice from the Risk Manager; provided that the Contractor shall have the right to appeal
a determination of increased coverage by the Risk Manager to the City Council of City within 10
days of receipt of notice from the Risk Manager.
6_0 RECORDS AND REPORTS
6.1 Reports. Contractor shall periodically prepare and submit to the Contract
Officer such reports concerning the performance of the services required by this Agreement as
the Contract Officer shall require.
6.2 Records. Contractor shall keep, and require subcontractors to keep, such
books and records as shall be necessary to perform the services required by this Agreement
and enable the Contract Officer to evaluate the performance of such services. The Contract
Officer shall have full and free access to such books and records at all times during normal
business hours of City, including the right to inspect, copy, audit and make records and
transcripts from such records. Such records shall be maintained for a period of three (3) years
following completion of the services hereunder, and the City shall have access to such records
in the event any audit is required.
6.3 Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Contractor, its employees, subcontractors and
agents in the performance of this Agreement shall be the property of City and shall be delivered
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to City upon request of the Contract Officer or upon the termination of this Agreement, and
Contractor shall have no claim for further employment or additional compensation as a result of
the exercise by City of its full rights of ownership of the documents and materials hereunder.
Any use of such completed documents for other projects and/or use of uncompleted documents
without specific written authorization by the Contractor will be at the City's sole risk and without
liability to Contractor, and the City shall indemnify the Contractor for all damages resulting
therefrom. Contractor may retain copies of such documents for its own use. Contractor shall
have an unrestricted right to use the concepts embodied therein. All subcontractors shall
provide for assignment to City of any documents or materials prepared by them, and in the
event Contractor fails to secure such assignment, Contractor shall indemnify City for all
damages resulting therefrom.
6.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Contractor in the performance of services under
this Agreement shall not be released publicly without the prior written approval of the Contract
Officer.
7.0 ENFORCEMENT OF AGREEMENT
7.1 California Law. This Agreement shall be construed and interpreted both
as to validity and to performance of the parties in accordance with the laws of the State of
California. Legal actions concerning any dispute, claim or matter arising out of or in relation to
this Agreement shall be instituted in the Superior Court of the County of Riverside, State of
California, or any other appropriate court in such county, and Contractor covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the
injured party shall notify the injuring party in writing of its contentions by submitting a claim
therefor. The injured party shall continue performing its obligations hereunder so long as the
injuring party commences to cure such default within ten (10) days of service of such notice and
completes the cure of such default within forty-five (45) days after service of the notice, or such
longer period as may be permitted by the injured party; provided that if the default is an
immediate danger to the health, safety and general welfare, such immediate action may be
necessary. Compliance with the provisions of this Section shall be a condition precedent to
termination of this Agreement for cause and to any legal action, and such compliance shall not
be a waiver of any party's right to take legal action in the event that the dispute is not cured,
provided that nothing herein shall limit City's or the Contractor's right to terminate this
Agreement without cause pursuant to Section 7.8.
7.3 Retention of Funds. Contractor hereby authorizes City to deduct from
any amount payable to Contractor (whether or not arising out of this Agreement) (i) any
amounts the payment of which may be in dispute hereunder or which are necessary to
compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all
amounts for which City may be liable to third parties, by reason of Contractor's acts or
omissions in performing or failing to perform Contractor's obligation under this Agreement. In
the event that any claim is made by a third party, the amount or validity of which is disputed by
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Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien,
City may withhold from any payment due, without liability for interest because of such
withholding, an amount sufficient to cover such claim. The failure of City to exercise such right
to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure,
indemnify, and protect City as elsewhere provided herein.
7.4 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.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the
parties are cumulative and the exercise by either party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other rights
or remedies for the same default or any other default by the other party.
7.6 Legal Action. In addition to any other rights or remedies, either party may
take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages
for any default, to compel specific performance of this Agreement, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Liquidated Damages. Since the determination of actual damages for any
delay in performance of this Agreement would be extremely difficult or impractical to determine
in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and
shall pay to the City the sum of_zero ($0.00) dollars_as liquidated damages for each
working day of delay in the performance of any service required hereunder, as specified in the
Schedule of Performance (Exhibit "D"). The City may withhold from any monies payable on
account of services performed by the Contractor any accrued liquidated damages.
7.8 Termination Prior to Expiration Of Term. This Section shall govern any
termination of this Agreement except as specifically provided in the following Section for
termination for cause. The City reserves the right to terminate this Agreement at any time, with
or without cause, upon thirty (30) days' written notice to Contractor, except that where
termination is due to the fault of the Contractor, the period of notice may be such shorter time as
may be determined by the Contract Officer. In addition, the Contractor reserves the right to
terminate this Agreement at any time upon, with or without cause, upon sixty (60) days' written
notice to City, except that where termination is due to the fault of the City, the period of notice
may be such shorter time as the Contractor may determine. Upon receipt of any notice of
termination, Contractor shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Contractor shall be entitled to compensation for
all services rendered prior to the effective date of the notice of termination and for any services
authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation
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(Exhibit "C") or such as may be approved by the Contract Officer, except as provided in Section
7.3. In the event of termination without cause pursuant to this Section, the terminating party
need not provide non-terminating party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Contractor. If termination is due to the failure of
the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over the work and prosecute the same to completion by contract
or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of
the services required hereunder exceeds the compensation herein stipulated (provided that the
City shall use reasonable efforts to mitigate such damages), and City may withhold any
payments to the Contractor for the purpose of setoff or partial payment of the amounts owed the
City as previously stated.
7.10 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. Attorney's
fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's
fees shall be entitled to all other reasonable costs for investigating such action, taking
depositions and discovery and all other necessary costs the court allows which are incurred in
such litigation. All such fees shall be deemed to have accrued on commencement of such
action and shall be enforceable whether or not such action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability 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.
8.2 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.
8.3 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 insure 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.
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9.0 MISCELLANEOUS PROVISIONS
9.1 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, THE 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. Either party
may change its address by notifying the other party of the change of address in writing. Notice
shall be deemed communicated at the time personally delivered or in seventy-two (72) hours
from the time of mailing if mailed as provided in this Section.
9.2 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.
9.3 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.
9.4 Severability. In the event that any one or more of the phrases,
sentences, clauses, paragraphs, or sections contained in 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 effect any of the remaining phrases, sentences, clauses,
paragraphs, or sections 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.
9.5 Corporate Authority. 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
entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound.
11
Contract-Computer Event Ifs
Nxtcycle
d/26/03
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
of the date first written above.
ATTEST: THE CITY OF PALM SPRINGS,
a municipal corporation
Y"
City Clerk City City Manager
APPROVED AS TO FORM: l 7 �� yw
Le 0TVAGE
City Attorney
CONTRACTOR:
By:
Signature
Print Name &Title
Corporations require two signatures:
One from each of the following: "Vt\.` !yj -tA-�'L C, VLF
A. Chairman of Board, President,
any Vice President:AND B. Secretary,
Assistant Secretary, Treasurer,Assistant "
Treasurer, or Chief Financial Officer). Byil
,��„�,
�j SignatureOr�i j
��'g,2�/y''/�G'f" � Ar✓,,fi�/l if
nt Namp & Title
ATTACHMENTS: VIL
EXHIBIT "A" SCOPE OF SERVICES ciri �s r
EXHIBIT "B" SPECIAL REQUIREMENTS Pjota P'h Ji" nrona
EXHIBIT "C" SCHEDULE OF COMPENSATION rAy A �
EXHIBIT "D" SCHEDULE OF PERFORMANCE Comm r" s20,
'-oo:: ,�
12
Contract-Computer Event 95
Nxtcycle
4/26/03
EXHIBIT "A"
SCOPE OF SERVICES
Nxtcycle will be providing a-waste collection services for two one-day events (in celebration
of Earth Day 2004) on April 17, 2004 and in celebration of America Recycles Day in
November 2004. The program will include collecting, packaging, safe handling and
disposing of all CRT's (now a hazardous material), transportation and proper recycling of
all electronic equipment collected at event.
Nxtcycle's service provides for two one-day a-waste recycling events to include:
• 48- to 53-foot enclosed vans
• Staff to load and package electronics at event
• Pallet jacks, forklifts and/or any other equipment needed to load containers
• All packaging materials (shrink wrap, pallets & boxes)
• On-site safety training for all personnel
• All safety equipment (first-aid supplies, fire extinguishers, water, beverages, food
& refreshments) for all personnel on site
• Portable toilets
Nxtcycle will have a staff of trained employees and temporary personnel that will collect
data, unload vehicles, palletize and box electronics, load containers, provide residents
with educational packages & maintain a clean working environment before during and
after the event.
Nxtcycle will transport CRT/E-Waste in 48- to 53-foot enclosed vans, The vans will
transport the electronics collected directly from the event site to the Nxtcycle facility.
Nxtcycle will supply following data to City of Palm Springs for each event:
• Number of vehicles/participants
• Net weight of the electronics stream recycled
• Number of CRT's collected
• Net weight of CRT's collected
• Average number of pieces per vehicle
• Certified light and heavyweight ticket from independent scale
• Accident or incident report with action plan and response plan for each
• Shared Responsibility rebate from each participating manufacturer
• Reusable electronics recovery count and type of item collected
"Exhibit A"
SCOPE OF SERVICES 13
LIAR-16-2004 11 :'S7. PM P. 62
FROM Nxtavole ME)MAR 16 2004 9;08/ST, 9;07/N0, 632950022 F 2
r5w2ga4 f 10*25 At CITY OF PA M ORIO FAX W 700 W 0325
C}M.11 h�Yw}NMNId� kvMii N
YMIYYiI"
RrlOIAI,Nlgl11NlMRN'fe
waam O's gNdgQA1pM qw N ha"by valvot
"Exhibit a"
SPNC;AL RRQ11X► RNr! 14
Contract-Computer Event R5
Nxtcycle
4/26/03
EXHIBIT "C"
SCHEDULE OF COMPENSATION -
PER EVENT
The first 0-6 tons of Electronic Waste include:
• One truck, trailer&transportation
• One event manager
• Five temporary laborers
• All packaging materials, forklifts, etc.
• Nxtcycle corporate costs, insurance, etc.............................. $3,025.00
Six tons and above...........................................................................$ .20/pound
Transportation of electronic scrap to processing facility...................$ 500.00/truck
For reusable units ............................................................................No Charge
Reusable units include:
• Cellular phones
• 17" to 20" reusable computer monitors
• CPU's Pentium It or above
Shared Responsibility Credit Against Recycling Fees ........$4.50/unit
Nxtcycle extends a Shared Responsibility Program to the City. Manufacturers
participating in the Program pay Nxtcycle $4.50 per each branded unit that is collected
and recycled from the event. In turn, Nxtcycle rebates that amount back to the City of
Palm Springs.
Manufacturer's participating in the Shared Responsibility Program include:
Sony
• Sharp
• Panasonic
Nxtcycle is in ongoing negotiations with several other manufacturers and will include
those in this program as they become "Shared Responsibility Partners".
The City of Cathedral City will reimburse the City of Palm Springs for one-half of all costs
incurred by City of Palm Springs for this event. City of Palm Springs will reimburse the
City of Cathedral City for one-half of any costs incurred by Cathedral City during event.
EXHIBIT "C"
TO CONTRACT SERVICES AGREEMENT
15
Contract-Computer Event 85
Nxtcycle
4/26/03
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Contractor shall remain at site on day of each event (April 17, 2004 and as yet
undetermined date in November) until all items have been collected, but no later than 5
p.m.
Hours of collection event will be 9 a.m. - 2 p.m.
All items shall be securely loaded onto truck.
The final tally of amount collected and total amount due contractor shall be
submitted to City of Palm Springs no later than two weeks subsequent to event.
"Exhibit D"
SCHEDULE OF PERFORMANCE 16
M E M O R A N D U M
TO: David Aleshire
City Attorney
FROM: �� Kathie Hart
\ z Interim Chief Deputy City Clerk
DATE: \ March 16, 2004
SUBJECT: Contract Services
Nxtcycle
I am forwarding all four (4) copies of the above referenced agreement to you. Page 14 "Exhibit
B— Special Requirements" has been modified. Page 7, Section 5.3 requiring the performance
bond has been waived. The contractor has initialed off on the waiver and the original is being
forwarded to our office for inclusion; however, due to the fact that you have already signed the
agreement I am forwarding it to you for review. It should be noted that we had a contract
exactly like this one last year, and the performance bond was waived.
Please feel free to contact me if there are any questions, ext. 8206.
/kdh
attach. ( ��
J
M E M O R A N D U M
TO: Elaine Wedekind
Recycling Coordinator
FROM: ��� Kathie Hart
Interim Chief Deputy City Clerk
DATE: March 8, 2004
SUBJECT: Contract Services
Nxtcycle
I am returning all four (4) copies of the above referenced agreement unsigned to you. In
reviewing the agreement it has come to my attention the following are required:
• Workers' Compensation, as mentioned on Page 5, Section 5.0 (b)
• Performance Bond, as mentioned on Page 7, Section 5.3
Please contact Nxtcycle for the above mentioned. Upon receipt of the Workers' Compensation
certificate of insurance and performance bond please return the agreements, certificates of
insurance, performance bond, and provide a Contract Abstract as the cover to the Office of the
City Clerk for processing.
Please feel free to contact me if there are any questions, ext. 8206.
/kdh
attach.
FEB-H-2004 FRI 0B:50 AM FAX N0, P. 01
,ncORD CERTIFICATE OF LIABILITY INSURANCE xE0 ID P DAYS MIDONYM
MM
06 04
PRODUCE R THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
AmorivPG;t TTlsurancl' Agency Inc HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR
53.11 17 Scottsdalc Rd, Fite 200 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Scottsdale AZ 95250
PPlona; 480-42.3-1491 INSURERS AFFORDING COVERAGE NAIC it
IIVSURLD I_NSURCRA _ Essex Insurance CGmyanX _
.INSURERP Hartford Select Customer Be v19682
lY"xtcycle Inc, INGURERC_InSu_rance Co_. of Evanston
1640 S. �tepplcy Dr, #206 INSURrRO. ��
INSUrtEli E
COVERAGES
TNfi POI.ICISS Of IN0U14ANCE I.IIQLC CROW 11AVF OrEN ISSUED TD YHE INSURED NAMED ABOVE FCR 1HE POI.ICY PERIOD INDICATFO NO WTI WTANOING
ANY PrOUIRLML41,ITHM OR WWII ION DF ANY CONTRACT OR OTHLR DOCUMENT WITH RESPECT TO YYHIr,I I THIS CERTIrICA1 E MAY DE ISSUED OR
WY PLRIAIN,TI III 11'1$LIRMICC AI''P 0(1pr U BY THE POLICIES DESCRIBED I IE.REIN IS SUSJDCT TO ALL YHE TERMS',EXCLUSION$AND CONDITIONS OP SUCH
PGLICIi-R A,GOIth CATF HMII B V IOWN MAY I IAVL.OLEN RCDUCED BY PAN CI AIMS
LYR NY• POLICY N YBFECUE.PODCYE.XPIN'ARC
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TPNUN MI
LIMITS
I' OENCRA.LIIM)ILITY EACH OCCURKENCE 53000000
A I Y, X cIIMMnICIgL Cu'rurrnL unnILITY 2CG2452 - 01/23/04 01/23 VAMAXTV RENTED/O5 PREMISFS(Cioxurprgel.__ 5 50000
iI CLAIMS WEL (i 1 Ocuu, MCD EXP(Any one pm•ml) S1000
i PERSONALBADV INJURY $3000000
GENLRA.ACGR6GATe 5 3000000
�GEN•LA00RIOA16IIIAl'TAPPuf.sPCr. PRODUCTS-COMPWACG s3000000
POI,icY l• JIfCI j_ LDC y .. ..._ _
MW AU TO1,1001LC LIAURAY COMBINED SINGLE LIMIT
R X_ ANY Au10 59UF.CUP5659 05/10/03 05/10/04 IF.uecMonk) $1000000
All IIWNEDAMOS SOOILY INJURY —
SCHINIUI.T.DAI,TnS n-or Pnwn) s
X IIIRCOAVI'03 BODILY INJURY `— _
5
X NON OWNED AU NIS (PW Accjiknq
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(Per arcdugq $
0AIIAGELIASAIITY _ 1 AUTO ONLY-PA ACCIDENT_ 5
ANY AU 10 I OTIICRTRAN EA ACC S - -__-jl AUTO ONLY AGO 5
FNCCNLIUMURrI,LALIAHILIIY -_-��-- rPCH GCCURRCNCE S
OCCUR I ICI AIM:.MAOf. AGGREGATE 5
OCDUC'IIIR E
PF IFNTION S i
WORRCRS COUK(IsATION MID^ TORYLIMITS- -,.FR,
EMPL OYEI(5`LIgDf1,DY - -
OFTW41MMrOIVPARrPILTtle'XEGIITIVE EL EACH ACCIDENT 5 •._-_,_., _,
OFT IDERdA(MACRO ENCI1101'P' [L DISkAS�-EA EMPLOYE[ 5
HPLCIN.PRDV13InryD^,Solm EL DIODA$E-POUCY LIMIT i
C Pollution Limlb 03EIL00123 12/20/03 12/20/04 Ded25000 $5,000,000
�.Cla_ilm-l .Mad _. _._.,__.�..PXTPO 12/20r01 .�
DI SCRII'f IIM OF OP!RATIONS(LOC.ATIONS I VCIAICLFD I CYCLVSIONS ADOEU UY ENOORSFMCNT 13PbCIAL PROVISIONS
Certifigate! 1Loldor is horeby shown as additional insured for general
liahility only. Onn day event: April 17, 2004
CERTIFICATE HOLDER _ _ CANCELLATION
� Y— -�,_^`• `+jWyOF, SHOULD ANY OF TVIE AFIOVE DCSCRIBLD POLICIES BE CANCELI IU GcrORE THE EXPIRATION
DATE YHERCOF.THEISSUING INSURER WILL ENDEAVOR TO MAIL lO DAYSWRITTCN
City 0f Palm Springs CA N0710E10 TI1E CRT4HOLDERD TOTHE LEFT.CUT FAILURE TO DO SO SHALL
;I,Ltn: Rlainu WB,dekin$ IMPOSE 0B GAT3200 M. Tahquitz Canyon WayPalm Spriuls CA 92262 RBPRF. T'quTHo ¢EAmeriWes ..
AGORE)2J(2061/00) UACORO CORPDRATION T98ff
CTNTRAL.VALLEY TEAM (602)C,31-2900 10/22/2003
sccllll�
•o� <. Certificate of insurance
s »k� rruar s .^.airr3uraeot Name of Insured-
NXTCYCLE, INC
Certificate A1ailed To:
STT 205
1640 S S'TAPLEY DR
MESA AC 85204
Date.Issued: 10/22/2003
CITY OF PAM SPRINGS CA Certificate Number: P0007
3200 Fs I AHQTJIT7 CANYON Policy Number: 324054
WAY Orrin Date: 0 211 6/200 2
PALM SPRINGS CA 92262 Expiration Date: 10/01/2004 12;01 A.M.
Liability Lieiits
Aes56wt—o iLQ weratiaiwg (000 Omitted): 1,000/1,000/1,000
STORE,,WI10IXSAL t @
"POLICY COVERS ONLY TFIOSEEMPLOYEEES WHO WERE,PHYSICALLY
HIRED IN AZ. FORNO LONGER'MAN 6 MOS IN ANOTHER STATE,"
FROM Nxtcycle (WED)MAR 10 2004 11 :43/ST• I1 :3810. 5 29504492 P 2
m' �_a_ = m
x = a er
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S
March 10,2004
City of Palm Spring$
Community&Economic Development Dept.
8200 Tahqultx Canyon Way
Palm Springs, CA 92262
Attn: Elaine Wedeklnd
Re: Nxtcyclo-Notary of Documents
To: Elaine Wedeklnd
On March 1,20K 1.Darol Mille the Notary for David Cauchl and Margaret Maier witnessed
both signatures on the contract for City of Palm Springs. Any further questions regarding
this matter phwse contact me at(602)442.7900.
Thank You
Sincerely,
Darcl Mills`
www,nxtcycle,com
1640 S. Stapley Drive, Su@e 205 Mesa,Arizona 85204 9 602,442.7900 Fax 602.442.7901 Toll Free 1,888,440.9804