16-101 Richard Gertman, dba For Sustainability Too for Environmental Program Professional ServicesAGREEMENT BETWEEN THE CITY OF CUPERTINO AND RICHARD
GERTMAN, DBA FOR SUSTAINABILITY TOO FOR ENVIRONMENTAL
PROGRAM PROFESSIONAL SERVICES
THIS AGREEMENT, is entered into this 8th day of August, 2016, by and
between the CITY OF CUPERTINO, a California municipal corporation ("City"), and
Richard Gertman, dba For Sustainability Too, whose address is 145 South 17th Street,
San Jose, California 95112 (hereinafter referred to as "Consultant") (collectively referred
to as the "Parties").
RECITALS:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now
being conducted under the Constitution and the statutes of the State of California and the
Cupe1tino Municipal Code.
B. Consultant is specially trained, experienced and competent to perform the
special services which will be required by this Agreement.
C. Consultant possesses the skill , experience, ability, background,
certification and knowledge to provide the services described in this Agreement on the
terms and conditions described herein.
D. City arid Consultant desire to enter into an agreement for environmental
program professional services upon the terms and conditions herein.
NOW, THEREFORE, the Parties mutually agree as follows:
1. TERM
The term of this Agreement shall commence on August 8th, 2016, and shall
terminate on June 30, 2018, unless terminated earlier as set forth herein.
2 . SERVICES TO BE PERFORMED
Consultant shall perform each and every service set fo11h in Exhibit "A" attached
hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT
Consultant shall be compensated for services performed pursuant to this
Agreement in a total amount not to exceed TWENTY THOUSAND ONE HUNDRED
SIXTY dollars ($20 ,160 .00).
4. TIME IS OF THE ESSENCE
Consultant and City agree that time is of the essence regarding the performance of
this Agreement.
5 . STANDARD OF CARE
Consultant agrees to perfo1m all services required by this Agreement in a manner
commensurate with the prevailing standards of like professionals in the San Francisco
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Bay Area and agrees that all services shall be performed by qualified and experienced
personnel who are not employed by the City nor have any contractual relationship with
City.
6 . INDEPENDENT PARTIES
City and Consultant intend that the relationship between them created by this
Agreement is that of employer-independent contractor. The manner and means of
conducting the work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the express terms of this Agreement. No civil
service status or other right of employment will be acquired by virtue of Consultant's
services. None of the benefits provided by City to its employees, including but not
limited to, unemp loyment insurance, workers' compensation plans, vacation and sick
leave are available from City to Consultant, its employees or agents . Deductions shall
not be made for any state or federal taxes, FICA payments, PERS payments, or other
purposes normally associated with an employer-employee relationship from any fees due
Consultant. Payments of the above items, if required , are the responsibility of
Consultant.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA)
Consultant assumes any and all responsibility for verifying the identity and
employment authorization of all of his/her employees performing work hereunder,
pursuant to all applicable IRCA or other federal, or state rules and regulations .
Consultant shall indemnify and hold City harmless from and against any loss, damage,
liability , costs or expenses arising from any noncompliance of this provision by
Consultant.
8. NON-DISCRIMINATION
Consistent with City's policy prohibiting harassment and discrimination ,
Consultant agrees that it shall not harass or discriminate against a job applicant, a City
employee, or a citizen by Consultant or Consultant's employee or subcontractor on the
basis of race , religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, sexual orientation, or any other protected class . Consultant
agrees that any and all violations of this provision shall constitute a material breach of
this Agreement.
HOLD HARMLESS
~ Standard Indemnification:
Consultant shall, to the fullest extent allowed by law and without limitation of the
provisions of this Agreement related to insurance, with respect to all services performed
in connection with the Agreement, indemnify, defend , and hold harmless the City and its
officers, officials, agents, employees and volunteers from and against any and all liability,
claims, actions, causes of action or demands whatsoever against any of them, including
any injury to or death of any person or damage to property or other liability of any nature ,
whether physical , emotional, consequential or otherwise, arising out, pertaining to, or
related to the negligent performance of this Agreement by Consultant or Consultant's
employees, officers , officials, agents or independent contractors. Such costs and
expenses shall include re asonable attorneys ' fees of counsel of City's choice , expert fees
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Gertman dba For Sustainability Too , 7 -20 -1 6
and all other costs and fees of litigation. The acceptance of the Services by City shall not
operate as a waiver of the right of indemnification. The provisions of this Section survive
the completion of the Services or te1mination of this Contract.
9. INSURANCE:
A. General Requirements. On or before the commencement of the te1m of this
Agreement, Consultant shall furnish City with certificates showing the type, amount ,
class of operations covered, effective dates and dates of expiration of insurance coverage
in compliance with the requirements listed in Exhibit "D". Such certificates, which do
not limit Consultant's indemnification, shall also contain substantially the following
statement: "Should any of the above insurance covered by this ce1iificate be canceled or
coverage reduced before the expiration date thereof, the insurer affording coverage shall
provide thirty (30) days' advance written notice to the City of Cupe1iino by ce1iified mail,
Attention: City Manager." Consultant shall maintain in force at all times during the
performance of this Agreement all approp1iate coverage of insurance required by this
Agreement with an insurance company that is acceptable to City and licensed to do
insurance business in the State of California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
B. Subrogation Waiver. Consultant agrees that in the event of loss due to any
of the perils for which he/she has agreed to provide comprehensive general and
automotive liability insurance, Consultant shall look solely to his /her insurance for
recovery. Consultant hereby grants to City, on behalf of any insurer providing
comprehensive general and automotive liability insurance to either Consultant or City
with respect to the services of Consultant herein, a waiver of any right to subrogation
which any such insurer of said Consultant may acquire against City by virtue of the
payment of any loss under such insurance.
C. Failure to secure or maintain insurance. If Consultant at any time during
the te1m hereof should fail to secure or maintain the foregoing insurance, City shall be
permitted to obtain such insurance in the Consultant's name or as an agent of the
Consultant and shall be compensated by the Consultant for the costs of the insurance
premiums at the maximum rate pe1mitted by law arid computed from the date written
notice is received that the premiums have not been paid.
D. Additional Insured. City, its City Council, boards and commissions,
officers, employees and volunteers shall be named as an additional insured under all
insurance coverages, except any professional liability insurance, required by this
Agreement. The naming of an additional insured shall not affect any recovery to which
such additional insured would be entitled under this policy if not named as such
additional insured. An additional insured named herein shall not be held liable for any
premium , deductible .portion of any loss, or expense of any nature on this policy or any
extension thereof. Any other insurance held by an additional insured shall not be
required to contribute anything toward any loss or expense covered by the insurance
provided by this policy.
E. Sufficiency of Insurance. The insurance limits required by City are not
represented as being sufficient to protect Consultant. Consultant is advised to confer with
Consultant's insurance broker to dete1mine adequate coverage for Consultant.
F. Maximum Coverage and Limits. It shall be a requirement under this
Agreement that any available insurance proceeds broader than or in excess of the
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specified minimum Insurance coverage requirements and/or limits shall be available to
the additional insured City. Furthe1more, the requirements for coverage and limits shall
be the minimum coverage and limits specified in this Agreement, or the broader coverage
and maximum limits of coverage of any insurance policy or proceeds available to the
named insured , whichever is greater.
10. CONFLICT OF INTEREST
Consultant wan-ants that it presently has no interest, and will not acquire any
interest, direct or indirect, financial or otherwise, that would conflict in any way with the
perf01mance of this Agreement, and that it will not employ any person having such an
interest. Consultant agrees to advise City immediately if any conflict arises and
understands that it may be required to fill out a conflict of interest fo1m if the services
provided under this Agreement require Consultant to make certain governmental
decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of
the California Code of Regulations.
11. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or
any interest therein, directly or indirectly, by operation of law or otherwise, without prior
written consent of City. Any attempt to do so without said consent shall be null and void, ·
and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer. However, claims for
money by Consultant from City under this Agreement may be assigned to a bank, trust
company or other financial institution without prior written consent. Written notice of
such assignment shall be promptly furnished to City by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture
or syndicate or cotenancy, which shall result in changing the control of Consultant, shall
be construed as an assignment of this Agreement. Control means fifty percent (50%) or
more of the voting power of the corporation.
12. SUBCONTRACTOR APPROVAL
Unless prior written consent from City is obtained , only those people and
subcontractors whose names and resumes are attached to this Agreement shall be used in
the performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required to
can-y general, automobile and professional liability insurance in reasonable confon-nity to
the insurance carried by Consultant. In addition, any work or services subcontracted
hereunder shall be subject to each provision of this Agreement.
Consultant agrees to include with all subcontractors in their subcontract the same
requirements and provisions of this Agreement including the indemnity and insurance
requirements to the extent they apply to the scope of the subcontractor's work.
Subcontractors hired by Consultant agree to be bound to Consultant and City in the same
manner and to the same extent as Consultant is bound to City under this Agreement.
Subcontractor fu11her agrees to include these same provisions with any sub-
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subcontractor. A copy of the Owner ·Contract Document Indemnity and Insurance
provisions will be furnished to the subcontractor upon request. Consultant shall require
all subcontractors to provide a valid ce1tificate of insurance and the required
endorsements included in the agreement prior to commencement of any work and will
provide proof of compliance to City.
13 . PERMITS AND LICENSES
Consultant, at his/her sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits, ce1tificates and licenses including, but not
limited to, a City Business License, that may be required in connection with the
performance of services hereunder.
14. REPORTS
A. Each and every report, draft, work product, map, record and other
document, hereinafter collectively referred to as "Rep01t", reproduced, prepared or
caused to be prepared by Consultant pursuant to or in connection with this Agreement,
shall be the exclusive property of City. Consultant shall not copyright any Rep01t
required by this Agreement and shall execute appropriate documents to assign to City the
copyright to Reports created pursuant to this Agreement. Any Report, information and
data acquired or required by this Agreement shall become the property of City, and all
publication rights are reserved to City. Consultant may retain a copy of any report
furnished to the City pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in execution or
implementation of: (1) The original Project for which Consultant was hired ; (2)
Completion of the original Project by others; (3) Subsequent additions to the original
project; and/or (4) Other City projects as City deems appropriate .
C. Consultant shall, at such time and in such f01m as City may require,
furnish rep01ts concerning the status of services required under this Agreement.
D. All Reports required to be provided by this Agreement shall be printed on
recycled paper. All Reports shall be copied on both sides of the paper except for one
original, which shall be single sided.
E . No Report, inf01mation or other data given to or prepared or assembled by
Consultant pursuant to this Agreement shall be made available to any individual or
organization by Consultant without prior approval by City.
15. RECORDS
Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts and other such information required by City that relate to the
perfo1mance of services under this Agreement, in sufficient detail to permit an evaluation
of services. All such records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily accessible. Consultant
shall provide free access to such books and records to the representatives of City or its
designees at all proper times , and gives City the right to examine and audit same, and to
make transcripts therefrom as necessary, and to allow inspection of all work, data,
documents, proceedings and activities related to this Agreement. Such records, together
with suppo1ting documents , shall be kept separate from other documents and records and
shall be maintained for a period of three (3) years after Consultant receives final payment
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Gertman dba For Sustainability Too , 7 -20 -16
from City for all services required under this agreement.
If supplemental examination or audit of the records is necessary due to concerns
raised by City's preliminary examination or audit of records, and the City's supplemental
examination or audit of the records discloses a failure to adhere to appropriate internal
financial controls, or other breach of contract or failure to act in good faith , then
Consultant shall reimburse City for all reasonable costs and expenses associated with the
supplemental examination or audit.
16. NONAPPROPRIATION
This Agreement is subject to the fiscal provisions of the Cupertino Municipal
Code and Agreement will terminate without any penalty (a) at the end of any fiscal year
in the event that funds are not appropriated for the following fiscal year, or (b) at any
time within a fiscal year in the event that funds are only appropriated for a portion of the
fiscal year and funds for this Agreement are no longer available . This Section shall take
precedence in the event of a conflict with any other covenant, term, condition, or
provision of this Agreement.
17. ENVIRONMENTALLY PREFERABLE PURCHASING
Consultant shall comply with the City's Environmentally Preferable Procurement
Policy whenever practicable in completing any work under this agreement, including but
not limited to:
• Using paper products made with recycled content and
recycled/remanufactured toner and inkjet cartridges;
• Printing with soy or low volatile organic compounds (VOC) inks ;
• Using energy-star compliant equipment;
• Using cleansers and working with janitorial contractors to meet Green Seal's
Industrial and Institutional Cleaners Standard; and
• Ordering supplies electronically and practicing other internal waste reduction
and reuse protocols .
18. NOTICES
All notices, demands, requests or approvals to be given under this Agreement
shall be given in writing and conclusively shall be deemed served when delivered
personally or on the second business day after the deposit thereof in the United States
Mail, postage prepaid, registered or certified , addressed as hereinafter provided.
All notices, demands , requests , or approvals shall be addressed as follows:
TO CITY:
City of Cupertino
10300 Ton-e Ave .
Cupe11ino CA 95014
Attention: Cheri Donnelly
TO CONSULTANT:
Richard Gertman
dba For Sustainability Too
Gertman dba for Sustainability Too , 7 -20-16
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145 South 17th Street
San Jose, CA 95112
19 . TERMINATION
· In the event Consultant fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, Consultant shall be deemed in default in
the performance of this Agreement. If Consultant fails to cure the default within the time
specified and according to the requirements set f01th in City's written notice of default,
and in addition to any other remedy available to the City by law, the City Manager may
te1minate the Agreement by giving Consultant written notice thereof, which shall be
effective immediately. The City Manager shall also have the option, at its sole discretion
and without cause, of terminating this Agreement by giving seven (7) calendar days' prior
written notice to Consultant as provided herein. Upon receipt of any notice of
te1mination, Consultant shall immediately discontinue performance.
City shall pay Consultant for services satisfactorily performed up to the effective
date of termination. If the termination if for cause, City may deduct from such payment
the amount of actual damage, if any, sustained by City due to Consultant 's failure to
perform its material obligations under this Agreement. Upon termination, Consultant
shall immediately deliver to the City any and all copies of studies , sketches , drawings ,
computations , and other material or products , whether or not completed, prepared by
Consultant or given to Consultant, in connection with this Agreement. Such materials
shall become the prope1ty of City.
20. COMPLIANCE
Consultant shall comply with all state or federal laws and all ordinances , rules ,
policies and regulations enacted or issued by City.
21. CONFLICT OF LAW
This Agreement shall be interpreted under, and enforced by the laws of the State
of California excepting any choice of law rules which may direct the application of laws
of another jurisdiction. The Agreement and obligations of the parties are subject to all
valid laws, orders, rules , and regulations of the authorities having jurisdiction over this
Agreement (or the successors of those authorities). Any suits brought pursuant to this
Agreement shall be filed with the Superior Court of the County of Santa Clara , State of
California.
22. ADVERTISEMENT
Consultant shall not post, exhibit, display or allow to be posted, exhibited,
displayed any signs ; adve1tising, show bills, lithographs, posters or cards of any kind
pe1taining to the services performed under this Agreement unless p1ior w1itten approval
has been secured from City to do otherwise .
23. WAIVER
A waiver by City of any breach of an y te1m, covenant, or condition contained
herein shall not be deemed to be a waiv er of any subsequent breach of the same or any
other te1m , covenant, or condition contained herein, whether of the same or a different
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character.
24. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Pai1ies, and all preliminary negotiations and agreements
of whatsoever kind or nature are merged herein. No verbal agreement or implied
covenant shall be held to vary the provisions hereof. Any modification of this Agreement
will be effective only by written execution signed by both City and Consultant.
25. AUTHORITY
The individual(s) executing this Agreement represent and warrant that they have
the legal capacity and authority to do so on behalf of their respective legal entities.
26 . INSERTED PROVISIONS
Each provision and clause required by law to be inse11ed into the Agreement shall
be deemed to be enacted herein, and the Agreement shall be read and enforced as though
each were included herein . If through mistake or otherwise, any such provision is not
inse11ed or is not correctly inse11ed, the Agreement shall be amended to make such
insertion on application by either pai1y.
27 . CAPTIONS AND TERMS
The captions in this Agreement are for convenience only, are not a pai1 of the
Agreement and in no way affect, limit or amplify the te1ms or provisions of this
Agreement. All unchecked boxes do not apply to this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CONSULTANT
Richard Gertman
By~d}~t~
Title ,. ? f{r f-.J L t PA, '-
Date 7f2-/ / < c,
r I
Gertman dba For Sustainability Too , 7 -20 -1 6
CITY OF CUPERTINO
D Over S 17 5, 00 -Council Approva l Required
D Over $45,000-Department Head Approva l Re quired
~ Up to $45,000-Designated Supervisor Approva l Required
11:iq}j~
-'-.£_.=!!.~o<_--=:_:_:___:_:. ........ ~___,,__
m Manager
Page8ofl 0
Exhibits: (Check box fo r ex hibi ts th at ap pl y to thi s contra ct and attach)
IZl Exhibit "A "-Scope of Services
D Exhibit "B" -Schedule of Perfo1mance
D Exhibit "C" -Compensation
IZl Exhibit "D " -Insurance Requirements and Proof of Insurance
D Exhibit "E" -Mandated Reporting Acknowledgement
D Exhibit "F" -Background/Fingerprint/TB Declaration
D Exhibit "G"-Nondiscrimination-State/Federal/HUD funded project
D Exhibit "H " -Request for City Manager to Waive Informal Bidding Requirements
EXPENDITURE DISTRIBUTION
ACCO UNT N UMB ER AMOUN T
PO #
Account number: 520-81-801 700-702 $20,160.00
Total: $20,160 .00
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Gertman dba For Sustainability Too , 7 -20 -16
Exhibit A
City of Cupertino
Scope of Work
Franchise Agreement Assistance FY 2016-2017 and FY 2017-2018
Richard Gertman, doing business as "For Sustainability Too", will assist the City of Cupe11ino
with evaluation of the efficiency of service under an existing Franchise Agreement for Collection
of Garbage, Recyclables and Organics; consideration of the rates charged for services;
recommendations for increasing program efficiency and diversion, cost savings and/or methods
for selection of contractor for future services.
Tasks to be perfo1med include :
Task 1. Meetings
Richard will participate in meetings with City Staff to discuss future materials management
options and effectiveness of current diversion programs.
Richard will meet with City,, City's current contractor (Recology), and other local service
providers, to discuss the effectiveness of current diversion programs, City's future needs, the
terms and conditions of a possible new contract upon expiration of cmTent contract.
Task 2. Review Documents
Richard will review correspondence between the City and Recology; the details of the cmTent
materials collection and processing methods; consultant studies and other documents that relate
to effectiveness of cmTent recycling and organics programs and their cost efficiency to assess the
·City 's future needs.
Task 3. Research
Richard will assist with research as requested by the City; to evaluate effectiveness of the current
organics diversion program and potential enhancements and alternatives for expansion of
recovery programs, specifically anaerobic digestion and animal feed input, to achieve increased
materials recovery and the City's zero waste goals .
Task 4. Negotiation
Richard will meet with materials and organics collection and processing company operators to
discuss services they would be willing to provide the City of Cupe11ino. Richard will assist the
City in negotiating services from various service providers that can provide efficient materials
and organics management programs .
Task 5. Report and Recommendations
Richard will prepare a Draft Repo11 with specific recommendations regarding expanding the
City 's commercial organics and/or recycling recovery programs to achieve the City's diversion
goal.
Following review of the Draft Repo1t by the City, Richard will finalize recommendations for
options to increase the City's organics and recyclables diversion.
Project Budget
Task 1. Meetings
Meetings with City Staff
Meetings with City and Service Providers
Task 2. Review Documents
Review Documents
Task 3. Research
Organics processing alternatives
Recyclables processing alternatives
Other Research Requested
Task 4. Negotiations
Service Provider Discussions
Repo1t of Findings
Task 5. Report Preparation
Draft Report
Final Repo1t
Totals
Hours
12
20
6
20
12
18
8
4
8
4
112
Labor
$2, 160.00
$3,600.00
$1,080.00
$3,600.00
$2, 160.00
$3240.00
$1,440.00
$720.00
$1,440.00
$720.00
$20, 160.00
Contract No. ---
Exhibit D
Insurance Requirements and Proof of Insurance
Proof of insurance coverage described below is attached to this Exhibit, with City named
as additional insured.
Consultant shall maintain the following minimum insurance coverage:
A. COVERAGE:
(1) Workers' Compensation:
Statutory coverage as required by the State of California .
(2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $500,000 each occurrence
$1,000,000 aggregate -all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $1 ,000 ,000 will be considered equivalent to the required
minimum limits shown above.
(3) Automotive:
Comprehensive automotive liability coverage in the following minimum limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
( 4) Professional Liability
Professional liability insurance which includes coverage for the professional acts,
errors and omissions of Consultant in the amount of at least $1 ,000,000 .
10