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HomeMy WebLinkAbout05077 - NXTCYCLE TO COLLECT COMPUTER/ELECTRONIC EQUIP 4/16/05 Nxtcycyle E-waste Collection Event AGREEMENT#5077 CM signed, 4-15-05 CONTRACT SERVICES AGREEMENT FOR — --- COMPUTER AND RELATED ELECTRONIC EQUIPMENT COLLECTION EVENT IS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this 18th day of February, 2005, 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 1.1 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. 1 Contract-Computer Event #7 Nxtcycle 04/16/05 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 cosily 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 Ten Thousand Dollars ($10,000.00)(herein "Contract Sum"). 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 of Compensation. Compensation may include reimbursement for actual and necessary 2 Contract-Computer Event 07 Nxtcycle 04/16/05 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. (Total Contract amount will be split with City of Cathedral City, however, Palm Springs' amount not to exceed $10,000.00.) 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 Majeure. 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 3 Contract-Computer Event 47 Nxtcycle 04/16/05 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 Aqainst Subcontractinq or Assiqnment. 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 4 Contract-Computer Event N7 Nxtcycle 04/16/05 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 5 Contract-Computer Event R7 Nxtcycle 04/16/05 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 6 Contract-Computer Event #7 Nxtcycle 04/16/05 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 7 Contract-Computer Event V Nxtcycle 04/16/05 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 8 Contract-Computer Event X7 Nxtcycle 04/16/05 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 Damaqes. 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 9 Contract-Computer Event H7 Nxtcycle 04/16/05 (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 Citv 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. 10 ., ma . 09/1y6/OS 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 cyc 04/16/05 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 j City Clerk City Manager APP6i0'VED BY Cltl'9tn`4(I,AC'" APPROVED AS TO FORM: o City Attorney CONTRACTOR: ., Signature Print Name & Title Corporations require two signatures: ,�� , One from each of the following: A. Chairman of Board, President, any Vice President:AND B.Secretary, Assistant Secretary,Treasurer,Assistant �,n -� Treasurer,or Chief Financial Officer). By 1 .�4v/11/./ Sj9natur P int fame &Ti1ie ATTACHMENTS: Agreement exP"/r^rder $25,000 EXHIBIT"A" SCOPE OF SERVICES EXHIBIT "B" SPECIAL REQUIREMENTS Previewed and approved by EXHIBIT "C" SCHEDULE OF COMPENSATION Procurement & Contracting EXHIBIT "D SCHEDULE OF PERFORMANCE iit �ials ``n ' Date - p� P.O. Number 12 California All-Purpose Certificate of Acknowledgment m C.s, State of California County of P1 V m,- are On this the �2 >* day of l�< ,>_• ,may t9, o a , before me, 0-!'»\eels N � I—) �( r �rzr. p Name of Notary Public a Notary Public for the State of Eafffornia, personally appeared Nf rI,7cC.r / - r';,g E <-7 Name(s) of Signers(s) lei 10E�H- t— T4 ❑ personally known to me OR ❑' proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. CANDIS A.NN STRUCK 11 „... rdoTaav Pusuc ware of nFllzoNa PifdAL COUNTY it My Commission Exortes I� .To"y' August 31,2005 Notary's Signature '_.'.`. '.y_"" =_�'-.-`__" �._�, Seal OPTIONAL INFORMATION The information below is optional.However, it may prove valuable and could preventfraudulent attachment of this form to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER _ Title or Type of Document Title(s) ❑ PARTNER(S) ❑ ATTORNEY-IN-FACT — ❑ TRUSTEE(S) Number of Pages ❑ GUARDIAN/CONSERVATOR ❑ OTHER: Date of Document ABSENT SIGNER (PRINCIPAL) IS REPRESENTING: Other Name of Person(s) v1�J 0 1997 ESI Educational Seminars,Inc. Reproduction Prohibited Reorder Call 1-800-303-5123 California All-Purpose Certificate of Acknowledgment FStateofnia On this the day of 19 _ , before me, Name of Notary Public a notary Public for the State of California, personally appeared Name(s) of Signers(s) ❑ personally known to me OR ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary's Signature Seal OPTIONAL INFORMATION The information below is optional However, it may prove valuable and could prevent fraudulent attachment of this form to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER Title or Type of Document Title(s) ❑ PARTNER(S) ❑ ATTORNEY-IN-FACT _ ❑ TRUSTEE(S) Number of Pages ❑ GUARDIAN/CONSERVATOR ❑ OTHER: Date of Document ABSENT SIGNER (PRINCIPAL) IS REPRESENTING: Other Name of Person(s) P_lv '.�I�J 0 1997 ESI Educational Seminars,Inc. Reproduction Prohibited Reorder:Call 1-800-303-5123 EXHIBIT"A" SCOPE OF SERVICES Nxtcycle will be providing a-waste collection services for a one-day event(in celebration of Earth Day)on April 16, 2005. The program will include collection, packaging, safe handling and disposal of all CRT's (now a hazardous material), transportation and proper recycling of all electronic equipment collected at event. Nxtcycle's services provided for a one-day a-waste recycling event will include: • 3 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 • Supply all safety equipment (first-aid supplies, fire extinguishers, water, beverages, food & refreshments)for all personnel on site Nxtcycle will accept electronic equipment dropped off by City residents and businesses on Saturday, April 16, 2005 between the hours of 9 a.m. and 2 p.m. at a location designated by the City of Palm Springs. Electronic equipment includes, but is not limited to: Computers and monitors, printers, scanners,fax machines, copy machines,televisions, radios, stereo equipment, audio and video recorders, camcorders, cameras, phones and cell phones. Nxtcyle will contract with a trucking company which will park its trailers at the event location. Product will be stacked on pallets and securely wrapped to the pallet, loaded byforklift onto the trailers. All other material will be placed in Gaylord containers and loaded onto the trailer. Nxtcycle will comply with all applicable federal, state and local regulations. Safety training in the handling of electronics, for all personnel, will be conducted on site. First aid supplies, as well as lunch and water, will be furnished for all workers. Nxtcycle will supply the following data to the City of Palm Springs: Nxtcycle will supply accident or incident report with action plan and response should such incident occur. "Exhibit A" SCOPE OF SERVICES 13 04/16/05 EXHIBIT"C" SCHEDULE OF COMPENSATION Nxtcycle proposes based on the November 2004 Event that we stage the event the same but allow for changes in the new Regulations for California SB-20. There will be $0.00 charge for all CRT devises; Nxtcycle will pay the City$0.20 per pound for all CRT's collected at the Event. There will be a $0.18 charge for all Non-CRT devises per pound (net weight.) Nxtcycle will provide the following for an additional Event cost of$4,700.00. • 3- 53-ft Commercial Trailers including transportation • 1 Event Manager • 1 Supervisor • 6 Laborers • All packaging material for loading • Forklift and palletjacks 15 Contract-Computer Event 4I7 Nxtcycle 04/16/05 EXHIBIT"D" SCHEDULE OF PERFORMANCE Contractor shall remain at site on day of event (April 16, 2005) 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 MAR-08-2005 TUE 01 :22 PM FAX N0, P. 02/02 YAC08P CERTIFICATE OF LIABILITY INSURANCE OP ID RVF DAWIMM1001YYYY) _ NEXTC-3 1 03/08/05 WOoubl:a THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE AmeriWest insurance Agency Inc HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR 5111 N Scottadale Rd, $to 200 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW Scottsd4le AL 85250 Phone: 480-423-1491 INSURERS AFFORDING COVERAGE NAIC# IrvsUNCO I11.4URE'RA Admiral_Insurance Co. INSURER B. Insurance_Co, _o_£_ Evanston Nxtoycle Ina. INSURER C: The 1640 S. to ley Dr_ #206 INSURER General Star Indemnity Co. Mesa A'!, 8520T4 _._._ _—___.___ — —__ IN$IIRF.R F• _ COV�RAG�S _ TI EPOLICIES OF INSURANCE L BD NA LISTED BELOW HAVE BEEN ISSU TO THE INSURED MED ADOVE POR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REIOVIIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN.'WC INSURANCE ARORDCD DY TI It!POLICIES DESCRIBED I IEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS QF SUCH POLICIES.ACOREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INS R ADp'L'" - PO)I Y EFppEGTIVE TFDLIGY E%Fr1ATION LIMITS LTR NS'RC TYO:OFINSURANCL' POLICY NUMBER DATE MMIDDIYY DATE IMMIODM) GENERAL LIABILITY _F.ACH000NRRENCE S1,000,00_0____ A X Y, CGMMFRCIA4 CENERAI LIABILITY CA000006614-01 02/22/05 02/22/06 PREMISESIEaoccumncs) T 50.000 CLAIMS MADE LX, occur. MED FXP(Any ono poison) S Excluded PGR$ONA44ADV INJURY 81,000,000 GENCRALAGGREGAT4_ _ S2�000„fOOO CCNL AGOREGATE LIMIT APPLIES PER PRODVD r5-COMPIOP AUG s2,000,000 POLICY _ _...._...,,.._. _ AUTOMODILELIABILITY COMRINFO VNGLE LIMIT 5' (En amnigni) 1,000,000 C ANY Auio 59UECUP5659 05/10/04 05/10/05 , •„ „•-, .__, .___- AILOWNFOAUTO^a BODILY INJURY S X SCHCOULEb AUTOB X HIRFD AUTO$ BODILY INJURY X NONOWNCD AUTOS (Per ncmdenf) S „ . ... ..........-____.�._._ PROPERTY DAMAGE s (Pet p.6I GA�AGE LIADILiry ALTO ONLY•EA ACCIDENT s ANY AUTO OT)IER TI IAN EA ACC E AUTOONLY, AGG S _ EXCE55IUMBRELLA UADILITY r.-�T�--�........................... EACH OCCURRENCE $2,_000,000 D X.�OOrAIR [_.]cLAIMGMADE UNDER SiNnER 02/22/05 02/22/06 AGGREGATE s2,000,0OO 5 ..�PEDUCTIOLF. .•. •.. ------ 5 �___._.._. W YLNIION S S OIH. WORKERS COMPk,NSAIIDN AND TORT LIMfl S -•,I Eft -___.,,,_ BMPLOYEftS'LIANIL1IY ANY P�CtI"RIEIf1IiIpARfNUWE%ECUTIVC EL.EACH ACCIDENT s OI'FICLRMIEMRER FXCLUDCD9 E L.DISEASE•EA EMPLOYEE 5 II oL.du6u,bo undp ` -- _f, A1,PR0VIR061`0low 6,L UI`aEASE•POLIGY LIMIT S aiHGR A Env impairment 04EIL00123 12/20/04 3-2/20/05 Ea occur 5,000,000 Liab (Pollution) Genl A9gr S,000,000 PESCRIPTION OF OPFRATIDNS J LOCATIONS f VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS The aerti£i.c.ate holder is hereby named as additional insured with respects to general liability only. CERTIFICATE HOLDER _ -.CANCELLATION -- ^^--^ CITYP_2 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE E%PIRATION City of Palm Springs DATE YHLKEOF,THE 155VING INSURER WILL ENOEAVORTO MAIL 10 DAYS WRITTEN Caminlnity and gconamic NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURETO DO SO SHALL Development Dopartmoat IMPOSE NO ODLIOATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR 3200 E. '9ahVitz canyon Way Palm springs CA 92262 RE sENTAT "rye's��,, Er Ameriwnsry insurance ACORD 26(2001/08) 0 AGORD CORPORATION 101 ACORD,. CERTIFICATE OF LIABILITY INSURANCE DATE 03-26-2005 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION AMERIWEST INS AGENCY, INC/PHS ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 302004 P: (866) 467-8730 F: (87 -04571 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P . O. BOX 33015 x Am O SAN ANTONIO TX 78265 9� INSURERS AFFORDING COVERAGE �� 2 INSURED G) INSURER A:Twin City Fire Ins CO }S APR 1 12905 C0 NSURER B NXTCYCLE, INC, " "' RECEIVED INSURER C: 1640 S STAPLEY DR #205 c� CLEQ� INSURERD: MESA AZ 85204 INSURERE: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS ILTD TYPE OF INSURANCE POLICY NUMBER DATE�MMFODTVY) POLICY IMM1DDfYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY FIRE DAMAGE(Any one Fire) $ CLAIMS MADE a OCCUR MED EXP(Any one person) $ PERSONAL&ADV INJURY $ GENERAL AGGREGATE $ GENT AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ POLICY PRO- JECT I LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $1, �(]0 , 000 A X ANY AUTO 59 UEC UP5659 05/10/05 05/10/06 (Ee eecident) ALL OWNED AUTOS BODILY INJURY $ _ SCHEDULED AUTOS Per person) X HIRED AUTOS BODILY INJURY X NON-OWNED AUTOS IPer acndentl PROPERTY DAMAGE IPer aeodw) ' GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGE $ EXCESS LIABILITY_ EACH OCCURRENCE $ J OCCUR a CLAIMS MADE AGGREGATE $ $ J DEDUCTIBLE $ RETENTION $ WC STATU- $ WORKERS COMPENSATION AND TORY LIMITS OER EMPLOYERS'LIABILITY E.L.EACH ACCIDENT $ E.L.DISEASE-EA EMPLOYEE $ EL DISEASE-POLICY LIMIT $ OTHER DESCRIPTION OF OPERATIONSMOCATIONSIV EH ICLESIEXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Those usual to the Insured' s Operations . Certificate holder is named as additional insured with respects to on going operations pertaining to the pickup of recyclable products only. CERTIFICATE HOLDER X I ADDITIONAL INSURED;INSURER LETTER. CANCELLATION Office Of City Clerk SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE y EXPIRATION DATE-THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL City of Palm Springs Vt GO DAYS WRITTEN NOTICE(10 DAYS FOR NON-PAYMENT)TO THE CERTIFICATE Attn:Elaine Weekend V�L HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO I OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR PO BOX 2743 REPRESENTATIVES. Palm Springs, CA 92263 AUTHORIZED REPRES�EjNT¢gTL�E ACORD 25-S (7/97) ©ACORD CORPORATION 1988 CONTRACT ABSTRACT Contract Contract Term: Company Name: Company Contact: NXTCYCLE Summary of Services: Margaret Maier Collection of Computer/Electronic equipment for Event Contract Price: to be held April 16, 2005 at Lowe's Center. Funding Source: Not to exceed $10,000.00 Contract Administration Lead Department: Recycling Contract Administrator: Recycling Coordinator Contract Approvals Council/ Community Redevelopment Agency Approval Date: Minute Order/ Resolution Number: Agreement No: ,ti •„1 �.1 Contract Compliance Exhibits: A, B, C & D Signatures: Insurance: Bonds: Contract prepared by: Elaine Wedekind Submitted on: 4/09/05 By: Elaine Wedekind