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HomeMy WebLinkAbout04685 - NXTCYCLE COMPUTER ELECTRONIC COLLECTION RECYLE WASTE EVENT Page: g Report: Expired Contracts: Oldest Date= / / and XREF=COMMUNITY&ECONOMIC DEV-Summary July 24, 2003 —Con-t—rac�t tuber Description Approval Date Expiration Date Closed Date A4524/ C D B G 2001-02, Meals On Wheels 04/04/2001 04/01/2002 Contractor :Mizell Senior Center Insurance Status:A policy will expire soon. XREF: COMMUNITY& ECONOMIC DEVELOPMENT Service: In File A4525 Implementation Of Business Visitation Program 07/03/2002 07/01/2003 Contractor :P. S. Economic Development Corp. Insurance Status: XREF: COMMUNITY& ECONOMIC DEVELOPMENT Service: In File "- on ggir ,&�fg4fpgg�, C Insurance Status: XREF: COMMUNITY& ECONOMIC DEVELOPMENT A4591 C D B G 02-03 Subrecipient Agr Scholarships 11/13/2002 06/30/2003 �(e Contractor:P A L Insurance Status: XREF: COMMUNITY& ECONOMIC DEVELOPMENT ' Service: In File 677J�� A4603 Lease Tramway Gas Station 12/04/2002 06/01/2003 Contractor:Burnett Development Insurance Status: XREF: COMMUNITY& ECONOMIC DEVELOPMENT Service: Lease Agreement N A4631 Subrecipient Agr Food Vouchers 04/03/2002 04/01/2003 Contractor :A I D S Assistance Program Insurance Status: XREF: COMMUNITY& ECONOMIC DEVELOPMENT par � Service: In File A4685 Collect& Recycle Services For Special Event 4-26-03 04/23/2003 06/01/2003 Contractor :Nxtcycle, Inc Insurance Status: XREF: COMMUNITY& ECONOMIC DEVELOPMENT Service: In File NXTCYCLE Computer Electronic Collection AGREEMENT #4685 CM signed 4-23-03 CONTRACT SERVICES AGREEMENT FOf COMPUTER AND RELATED ELECTRONIC EQUIPMENT COLLECTION EVENT THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into thisL`day of �;C "%i.r.`6� 2003, 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. Contract-Computes Event 65 Nxtcycle 4/26/03 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 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 05 Nrtcycle 4/26/03 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 but not exceeding one (1) year from the date hereof, except as otherwise provided in the 3 Contract-Computer Event 115 Nxtcycle 4/26/03 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 contractor of City and shall remain at all times as to City a wholly independent contractor with 4 Contract-Computer Event U5 Igxtcycle 4/26/03 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 subrogation and contribution it may have against the City, its officers, employees and agents 5 Contract-Computer Event 115 Nxtcycic 4/26/03 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 arising out of or in connection with the negligent performance of or failure to perform the 6 Contract-Computer Event US Nxtcycle 4/26/03 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 to City upon request of the Contract Officer or upon the termination of this Agreement, and 7 Contract-Computer Event 115 Nxtcycle 4/26/03 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 Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, 8 Contract-Computer Event N5 Nxtcycle 4/26/03 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 (Exhibit "C") or such as may be approved by the Contract Officer, except as provided in Section 9 Contract-Computer Event 115 Nxtcycic 4/26/03 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. 10 Contract-Computer Event 1;5 Nxtcycle 4/26/03 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 N5 NxtOyC20 4/26/03 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 ty Clerk ✓ `; City Manager 0 �• Agreement {der/under $25,000 APPROVED AS TO FORM: Reviewed and approved by Procurement & Contracting City ' t orney I CO.NTRAGT(l ccti;. l Date` . s-- ` P.O. Numbe By. Signature -Uid (C o+U614 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 Treasurer, or Chief Financial Officer) By: S nat�re " rint Name & Title ATTACHMENTS: �� � e EXHIBIT "A" SCOPE OF SERVICES BARSAi�A HEt,'"`�D' EXHIBIT "B" SPECIAL REQUIREMENTS N, `'. NOTARY PUBLIC,-.nr,Izul�., ;r��., = MARICOR4 COUNTY EXHIBIT "C" SCHEDULE OF COMPENSATION C} My Commission Expires EXHIBIT "D" SCHEDULE OF PERFORMANCE `' = "\ December 11,2005 g� J 12 California All-Purpose Certificate of Acknowledgment FFStateof-CAMo—mia —Avzz,l_A,�9 ,i 1 cs. On this the day of n`\c-r cue \ —14 " , , before me, 't_ -u �00 iAJ Av-.z.,,,_ Name of Notary Public a Notary Public for the State of GaRforltia, personally appeared �65 Name(s) of Signers(s) personally known to me OR [ proved to me on the basis of satisfactory evidence to be the person aswhose 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 persons) acted, executed the instrument. Witness my hand and official seal. I`OTARy PUBLIC-ARIZONA ii o,v W, &tAARICOPA.COUNTY '1 ,trS 6WlyComnissienE>:pues Notary's Signature � �.� D,ceirl,0eY 11,2005 .� Seal _. OPTIONAL INFORMATION The information below is optional. However, it may prove valuable and could prevenl fraudulent attachment of this form to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL CORPORATE OFFICER — C°_c w� a -�ti L�� C \\�U' Title or Type ofDoument Title(s) PARTNER(S) ❑ ATTORNEY-IN-FACT i ❑ TRUSTEE(S) Number of Pages ❑ GUARDIAN/CONSERVATOR ❑ OTHER: C�OI _� Date of Document L S,EN-T-SIG-NER (PRINCIPAL) IS REPRESENTING: �„�„"-' Other ^Name of Person(s) 0 1997 ESI Educational Seminars,Inc Reproduction Prohibited Reorder:Call 1-800-303-5123 Contract-Compute[ Evei,r !IL N tcycle A/26/03 EXHIBIT "A" SCOPE OF SERVICES Nxtcycle will be providing e-waste collection services for a one-day event (in celebration of Earth Day 2003) on April 26, 2003. 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 e-waste recycling event will 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 Supply 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: 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 Contract-Compel er Even 115 N%Acyc]e 9/26/03 SPECIAL REQUIREMENTS Section 5.3. Performance Bond. Performance Bonds are hereby waived. "Exhibit B" SPECIAL REQUIREMENTS 14 Contract-Computer Event 95 Nxtcycle 4/26/03 EXHIBIT "C" SCHEDULE OF COMPENSATION 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 II 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 115 Nxtcycle 4/26/03 EXHIBIT "D' SCHEDULE OF PERFORMANCE Contractor shall remain at site on day of event (April 26, 2003) 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 APR-22-2003 TUE 07:59 AN FAX N0, 4804230761 P. 02 A008I. CERTIFICATE OF LIABILITY INSURANCE PE DEIMMD E ryYYY) TD N 03 THIS CERTFCATE 15ISSUED ASAMATER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Amerma t Insurancen Agency inc HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR 5111 N Sco Ltsdala Rd, Ste 200 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, 5cottsdalca A? 85250 Phone: 480-423-1 491 INSURERS AFFORDING COVERAGE NAIC it - INSURERA: E:lmux Insurance Com an INSURER0: _Insurance Co. of Evanston_ NxtcVole Tne, MSURERc, Hartford Ins, Co. 19682� 1.64Q' (Du Eh StIliplry Ip205 NGURRRD: - — " --- Mesa AZ 85204 .__ -_.... INSURER EI COVRRACsEs TI IG POLICIES Or INTIVRANCL L.IS CFD nn.UW HAVE BEEN ISSUCD TO THE INSURRP NAMED ABOVE FORTH,POLICY PERIOD INPICATCD.NOTWITHSTANDING ANY NEOUIRFMFIJT,TLNM OTI CONI?I'rION Or ANY CONTRACT 01%OTHEIR DOCUMENT WITH RESPEC.TTO WIMP THIS CERTIFICATE MAY BE ISSUEO OR MAY PERTAIN.TI B,INEURANCE AFFORDCO UY'WE POIdCIES DESCRIBER I(SKIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCIf POI ICIFS.AOOr LErA TF LIMITS SI IOWN MAY HAUL DtCN RBOUGED BY PAID CLAIMS, LiR rlbH)'- •, TYAF 0nNM11iAIJC.Q......__._ -_.....• .._._ _- 'ODD 'EkppECnVE Pb4(DY�E)IPIRATION• -,,, ____,—,_ NUMBER PATE MM/PPIYY DATEJMMIDD LIMITS -__-, — POLICYT GCNCRALLIABIOTY 4 �- EACHOCCURRF.NCG $3 000 000 DAMAGE7IIRERTCD—_._•. ., __f_1.-__ --- R }C :C COEIMFRCIALOL-N[.f:ALLWflILITV 2CE0299 Ol/23/03 Ol/23/04 pREMISCS(E36CCLIM rr) _ s 50,000 •,• -- MCO EXP(Any ant+ w,mon_ 5 000" CLAIMS rdADF �X.� OCCUR P 1, .- - I`Q ..JURY_ $3 000,000_.,.. pNAL SADVI Y N r ATC UMI'T AI'PLIE;i FI GENERAL ACCRFCA NL AGGREG 'I,e, I r: ,-- TE s3,,000�000 CL ... _ PROOUCTS•COMPlOPACG s_$,000,000 __ -.I FDJCY .�...�.,..-..�LOC .....,.. -^ AUTOMOBILE LIABILITY COMOINCO SINGLE LIMIT $ 1 00O OoO c ANY AUTO 59DECUP5659 05/10/02 05/10/03 (Ea acuden') / At I.OWNEUALI'I'OS ...... •• --",•.'"-- ECIIC001CDALDOS DOOILV INJURY S fllkEDAIMOS � 5, NON O4VNFD AIJ'I`OS POOILY INJURY(Pcrar,Wonl) 7G Conn; 250 Lled F},r X cojt M50O._..._.__ _ PROPERTY OAMAGL" 5 y u`3Li__ ._..... •„ (Por acadunD oARAPnG LIABILITY AUTO ONLY-EA ACCIDENT 5 ANYAU TO OTHCR THAN FA ACC $ __ -^ AUTO DNLYI ADD S EXCII:StiIUMDRCLLA LIABIIJTY -- EACH OCCURRENCE S ... .-.J OUTIIIS I.-J GI AIMS MADE AGGRECAIE S OTOUCTIHLE ' � - .,. ICE YIFNi'ION_ 5 ...._•, u.,..,_.--__� $WORKEREGOMPCN+ASIGNANOY LIMITS _ ER CMPLOYERT LIAUILIIY ANY11KOF'Hin R/PAICINLIRLBXE•CUTIVE I AOPPGNT 5SG-EA EMPLCVEF SUndar _S/kGIAI.N@OVIGIGDIS AcImx ASE-POLICY LIMIT 5 GIo _iT POI,J4vT'roN I,IA13 02EILD017.3 144!A imit $5,000,000 ed $25,000 DEGGRIPf KIN OF 0f4.RATIONS 11.DCATI0N5/VE?IICLES/EXC WSIONS g00FD BY ENDORSEMENT/SPECIAL PROVISIONS Corti£icuLo 1Toldex is hereby shown as additional insured for general liability oal.y, Primary and Waiver of Subrogation apply CERTIFICATE HOLDER __ �.�...... CANCELLATION CITYOF SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BECANCELLED REPORETHE EXPIRATIO DATE THE/R&0.,7H City O£ Palm Spring:: CA EISSUING INSURERWILLENDEAVORTO MAIL 10 DAYSWmTTEN NOTICE Tp THF. CRTITICATE HOL •R NAMED TO THE LEFT.BUT FAILURCTO DO SO SHALL 3200 IL'. 7.'ahquitz Canyon Way IMPOSE 0 IGATIONORLIA ITYOFANY KIND UPON THC INSURER,ITS AGENTS OR Palm sprinyc CA 92262 K E IATIyEs. AU'fHCRIZEDR E ATPJ -' Amori. ra ACORD 7.5(2001108) C)ACORD CORPORATION 198E APR-22-2003 TUE 07159 AN FAX NO. 4804230761 P. 03 NSS21 INSU"Wel Cf]win MDORSMMT #1 the lollny lnp Anoceu uraceded by on Psterick p need not be cmolgted if this odor a fnd the aol Icy heyt the FAM Ina,Ot,j2n004 A(TAGAF.O YO AND PoANING ) *EFFECTIVE DATE ( elSSUED TO PAAI OF POLICY NO. Or EMDORS MENT Nxtcvclt Inv ADI) FORKS In oonoidaratiaa of the additional prsaium berson the policy i1 Weended so lollowes Add & Attach the following forms which will become part of the PoIjoy as VndorQements #la lir #lb: M/E1-009 (04/99) Additional Insured Endorsement (Primary/ Non-contributory) M/P-241 (04/99) Waiver of Subrogation Premi,umBreekrloten $ 350.00 Premium (if any) 10.50 TaX (if any) 7 •73 _ (it any) �—._.. 362.73 7Patn1 Nothing Aorofn ronteined shall N held to very, altor, waive or extend ony of the terms, conditions, provislons, egroments or Ilmlto"ON of the above eentioned Policy, other than es ebovt atoted. 00OH40 Aeprowntativt in Uftoesc whereof, the Conpany has caused this andoroe wnt to 100310 be signed by A duly euthowfied repreaentatfvo of the Cospiny SXWCO laternAttonn1 Scottsdale, Arizona AUTHORIZED REPRESENTATIVE 011.1009 (T-00) Printed in U.S.A. 04/21/03 do APR-22-2003 TUE 07:59 AM FAX N0, 4804230761 P. 04 AESSEX INSURANCE COMPANY WILL ADDITIONAL INSURED ENDORSEMENT (Primmy/Non-contributory) •Entry oplkx'x,l lellaYln H IM CnaVnm Folicy neelaralWna, Iona entry U ehMVa,the ea'eLilw neh dNle eldowemenl b fM erne a IM eNac+r.+dale a/Ule fAAcY, __ r _ "AIYA6NFOTO ANC FOgMINO EFFECTIVE)ATE 7agUEpiO PAa'r OM LICY NC. OF ENnCP-4)MGNr .2CL70?.9 9 04/07/2003 Nxtcycle, Inc. THIS ENDORSEMENT CHANGES THE POLICY. SECTION II-*10 IS AN INSURED of the Commercial General Liability Form Is amended to Include: Person or Entity; City of Palm Springs, CA 3200 E, Tahquitx Canyon Way Palm Springs, CA 92262 Interest of the Above: nenignated Person or Organization as an additional Insured under this policy,but only as respects negligent acts or omissions of the Named Insured and only for occurrences,claims or coverage not otherwise excluded In the policy. It Is further agraed that where no coverage shall apply herein for the Named Insured,no coverage nor delense shall Ira pffordod to the abovikientlled additional Insured. Moreover, it is agreed that no coverage shall be atlorded to the above-IdendW additional Insured for any'bodily Injury,`"persorwl Injury,'or"property damaga"to any employee of the Named Insured or to any obligation of the additional Insured to indemnity another because of damages arising out of such Injury. Subject to the foregoing,it 14 Smher agreed that wbee fnstm=covaslo is alterded by this policy fqr the above Additional Inwmd(s),it shall be primary insurance as nsprcts any claim,loss or liability arising out of the named insured's operations, and any other haunmce maintained by the Additional rnsured(s) snag be excess and AoA-coaoibutxy With the insurance provided hacrmder. Additional Premium: $ 100 AUTHORZEPREMESEWATNE DATE GENERAL AGENT APR-22-2003 TUE 08:00 AM FAX NO. 4804230761 P. 05 ESSEX INSURANCE COMPANY HAMM WAIVER OF SUBROGATION +Entry opliorid d eMw1 In IhY Gammon 7orcy puolalalivnY. Oro anW le shown,Ihv adadiw dole of Illy ehdawrmenf h IM aamv w dve vMdlw data of do 'AY rACIIRD TO AND FORMING 'EFFECTIVE DATE 4s5UEDTo MAT OMUCY NO. OF EN"DEMENY .20E0299 04/07/2003 Nxtcycle, Inc. Yhil3 ENDOgSEMAt N) CHANGES THE POUC ADDITIONAL PREMIUM f:2 5 0 We agree that in consideration of the addittarwl premlurn charged,the Right of Subrogation Diause contained In this policy is horeby waived as respects the following persons or enlitlew City of Palm Springs, CA 3200 R. Tahguitz Canyon Way Print Spri.nge, CA 92262 This endorsement applies only to those persons or amities listed in the foregoing paragraph. We agree with you that written conlrads will odd between you and the so noted persons or entitles wherein you have agreed to furnish this Waiver. AUTHORIZEDREPRESENTATNE DATE M/F•241(a/;rs) GENERAL AGENT State Compensation F 4/4/2003 2 :34 PAGE 2/2 RightFax CENTRAL VALLEY TEAM (602)631-2900 04/04/2003 SCE, Certificate of Insurance =:He;E';.n;rmwrsa; r. yaae r; > Name of Insured: NXTCYCLE INC Certificate Mailed To: STE 205 1640 S STAPLEY DR MESA AZ 85204 Date Issued: 04/04/2003 Certificate Number: P0007 CITY OF PAM SPRINGS CA Policy Number: 324054 3200 E TAHQUITZ CNY WAY Origin Date: 02/16/2002 PALM SPRINGS CA 92262 Expiration Date: 10/01/2003 12:01 AM. Liability Limits Description of Operations (000 Omitted): 1,000/1,000/1,000 STORE WHOLESALE @ "POLICY COVERS ONLY THOSE EMPLOYEES WHO WERE PHYSICALLY HIRED IN AZ. FOR NO LONGER THAN 6 MOS IN ANOTHER STATE." This Certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policy listed hereon, This is to certify a workers'compensation policy has been issued to the insured listed hereon and is in force for the period referenced. Certificate Issued To: CFIY OF PAM SPRINGS CA 3200 E TAHQUITZ CNY WAY John Webster PALM SPRINGS CA 92262 Authorized Representative