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1989-237-Execute An Agreement With Green Valley Disposal Company, Inc. For Implementation Of The Curbside Recycling ProgramRESOLUTION 1989 - 237 RESOLUTION AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AGREEMENT WITH GREEN VALLEY DISPOSAL COMPANY, INC. FOR IMPLEMENTATION OF THE CURBSIDE RECYCLING PROGRAM WHEREAS, the Town Council of the Town of Los Gatos has approved implementation of a curbside recycling program to expand the life of the landfill, conserve resources, and save energy; NOW, THEREFORE, BE IT RESOLVED, that the Town Council of the Town of Los Gatos does hereby: 1. Authorize the Town Manager to execute an Agreement entitled "AGREEMENT BETWEEN THE TOWN OF LOS GATOS AND GREEN VALLEY DISPOSAL COMPANY, INC. FOR IMPLEMENTATION OF THE CURBSIDE RECYCLING PROGRAM" on behalf of the Town Council of the Town of Los Gatos (a copy of the Agreement is attached as Exhibit A.) ; and consequently, 2. Authorize Green Valley Disposal Company, Inc., to collect $0.82 per month from each household served as described in the attached Agreement. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 4th day of December, 1989, by the following vote: AYES COUNCIL MEMBERS NAYES COUNCIL MEMBERS ABSENT COUNCIL MEMBERS ABSTAIN COUNCIL MEMBERS SIGNED ATTEST CLERK OF THE TOWN OF LOS A: A: \RE505 \C5120489.R21 Joanne Benjamin, Eric D. Carlson, Robert L. Hamilton, Brent N. Ventura Mayor Thomas J. Ferrito NONE NONE NONE OR OF THE LOS GATOS AGREEMENT BETWEEN THE TOWN OF LOS GATOS COPY AND GREEN VALLEY DISPOSAL COMPANY, INC. FOR IMPLEMENTATION OF THE CURBSIDE RECYCLING PROGRAM THIS AGREEMENT is made and entered into this _ day of A,/— 90, by and between the TOWN OF LOS GATOS, a municipal corporation ( reafter "TOWN "), and GREEN VALLEY DISPOSAL COMPANY, INC., A CALIFORNIA CORPORATION (HEREAFTER "CONTRACTOR "). RECITALS WHEREAS, TOWN is responsible for insuring the long -term solid waste disposal needs of its residents in an area where landfill capacity has become a diminishing resource; and WHEREAS, TOWN has determined that it is in the best interests of TOWN and its residents that a residential Curbside Recycling Program be established and operated to allow residents to recycle materials which would otherwise be collected and disposed of as garbage; and WHEREAS, TOWN and CONTRACTOR desire to place in operation a Curbside Recycling Program within the service area of TOWN in accordance with this AGREEMENT; and WHEREAS, CONTRACTOR represents that it has the experience and expertise necessary to commence said program and further represents that it has the skill and expertise necessary to perform the Curbside Recycling Program in the cities of Campbell, Los Gatos, Monte Sereno and Saratoga; and NOW, THEREFORE, TOWN and CONTRACTOR do hereby agree as follows: SECTION 1. TERM OF AGREEMENT The term of this AGREEMENT shall be from February 1, 1990 to February 1, 1995, inclusive, subject to the provisions of SECTIONS 7, 14 and 16, hereof. SECTION 2. SCOPE OF SERVICES A. Curbside Rec.cy ling CONTRACTOR shall perform curbside recycling services in the Town of Los Gatos, the Cities of Campbell, Monte Sereno and Saratoga, as follows: 1. Collection. CONTRACTOR shall collect and remove all Recyclable Materials, which are segregated and placed in or adjacent to recycling containers at the curbside along roadways, from all single- family residences and all residential complexes of four (4) or fewer units located in the Town of Los Gatos, the Cities of Campbell, Monte Sereno and Saratoga as of March 1, 1990, where garbage collection service is can collection (as opposed to bin collection). In addition, CONTRACTOR shall provide recycling service to residential complexes of four or fewer units where garbage service is bin service, where feasible as mutually agreed upon between TOWN and CONTRACTOR. 2. Recyclable Materials Defined. For the purposes of this AGREEMENT, Recyclable Materials means and includes newspapers, glass, metal cans (aluminum and delabeled tin), P.E.T. plastic bottles, waste oil, cardboard and such other materials as mutually agreed upon in writing by CONTRACTOR and TOWN which are collected by CONTRACTOR pursuant to paragraph 1 of this Section. In no event will the CONTRACTOR be required to pick up hazardous material as defined by State and Federal Law. To reflect the rapidly changing market conditions, the term "mutually agreed upon in writing" with regard to the collection of additional materials means a letter sent first class and mailed to the designated TOWN representative 15 days prior to the proposed change in recyclable items to be collected. If there is no negative response during the 15 days, then the CONTRACTOR can begin notifying the residents of the change in recyclable items to be collected. 3. Time of Collection. CONTRACTOR shall collect the Recyclable Materials placed at the curbside for collection once each week, regardless of weather conditions. Collection will be on the same day of the week as garbage collection service and shall begin no earlier than the starting time for, residential garbage collection. Collection schedules shall be the same as those implemented under the TOWN's Franchise Agreement with the CONTRACTOR. 2 4. Container Purchase and Distribution. CONTRACTOR shall purchase, at CONTRACTOR's sole cost and expense, and shall distribute one set of recycling containers to each eligible residence currently receiving garbage service from the CONTRACTOR. CONTRACTOR shall identify all such residences with the assistance of the TOWN. The recycling containers are those containers described in EXHIBIT A, entitled "RECYCLING CONTAINERS ", attached hereto and incorporated herein by this reference, or other similar containers mutually agreed upon by CONTRACTOR and TOWN. The ownership of the recycling containers purchased by CONTRACTOR under this AGREEMENT shall be and remain with CONTRACTOR, unless this AGREEMENT is terminated for cause by TOWN, in which case, containers will become property of TOWN upon payment by the TOWN for the cost of the containers (cost is defined as manufacturer's invoice cost + distribution costs + interest expense) prorated on a straight -line basis over five years, provided, however, that any amount owed to CONTRACTOR hereunder may be offset by damages, costs, or expenses suffered by TOWN, or by members of the public as a result of CONTRACTOR's default or breach of this AGREEMENT. 5. Replacement of Containers. CONTRACTOR shall replace lost, damaged or stolen containers at no cost to the resident or TOWN unless due to negligent actions by the resident or abuse of this provision by the resident household. If resident is to be charged for a new set of containers, the charge would not exceed $15.00 /set. 6. Transportation of Materials. CONTRACTOR shall transport the collected recyclable materials to a central processing site maintained by CONTRACTOR and shall retain responsibility for the sale of such materials in a timely matter. 7. Labor and Costs. CONTRACTOR shall, at its sole cost and expense, except as otherwise provided herein, furnish all labor and equipment, in compliance with all applicable State and N local health and safety codes and requirements, required to perform curbside collection pursuant to this AGREEMENT. 8. Missed Pick -ups. In case of a missed pick -up called in by a resident, CONTRACTOR shall collect the Recyclable Materials from such resident within twenty -four (24) hours. All calls relating to missed pick -ups shall be logged in by CONTRACTOR and such log shall be available for inspection by TOWN. 9. Service Area. The service area shall include all the territory lying within the municipal boundaries of the TOWN as presently existing, plus all territory which may be added thereto during the term of this AGREEMENT by annexation or otherwise. 10. Handling of Containers. CONTRACTOR agrees to use reasonable and proper care in the handling of all containers, and in the event of damage or destruction of any of said containers by reason of the negligence or carelessness of CONTRACTOR, CONTRACTOR shall replace said container. All containers, after emptying, shall be returned and either nested or placed adjacent to one another, not thrown, to the premises from which removed, within five (5) feet of the place the container was picked up, but not in any driveway or street. In the event that the contents of any container is not collected by CONTRACTOR because the contents of the container contain non - recyclable materials (those materials not listed in Section 2) , CONTRACTOR shall secure a written notice on said container stating the reason for non - collection. 11. Customer Service. CONTRACTOR shall provide and maintain, at CONTRACTOR's expense, a telephone and telephone service so that the calls and complaints may be received between the hours of 8:00 A.M. and 4:30 P.M. on all regular collection days. Calls for missed collections shall be received 24 hours per day. CONTRACTOR shall forthwith respond with courtesy to all calls and act with promptness upon all reasonable requests and instructions pertaining to the collection of Recyclable Materials. A CONTRACTOR shall respond forthwith to all complaints or service inquiries referred by TOWN to CONTRACTOR for resolution. CONTRACTOR shall respond within a reasonable time period to TOWN describing the actions taken by CONTRACTOR to resolve the situation and prevent reoccurrence. B. Public Awareness Program. CONTRACTOR shall develop and implement a Public Awareness Program as outlined in EXHIBIT B, to be approved by TOWN. C. Local Manager. CONTRACTOR shall at all times during the term of this AGREEMENT have a local manager charged with the responsibility for supervision of the operations of CONTRACTOR and shall at all times during the term of this AGREEMENT maintain a local office and telephone in the service area. D. Reports. CONTRACTOR shall file with TOWN written reports of CONTRACTOR's performance under this AGREEMENT as more particularly set forth in EXHIBIT C, entitled "REPORTS ", attached hereto and incorporated herein by this reference. E. Sale of Recyclable Materials. CONTRACTOR shall sell all Recyclable Materials collected from curbside by CONTRACTOR pursuant to this AGREEMENT at fair market value. Revenue obtained from such sales shall be retained by CONTRACTOR. The fair market value (hereafter "Fair Market Value ") of Recyclable Materials shall be the highest price commonly paid by purchasers of such materials in and around the San Francisco Bay Area at the time of sale. F. CONTRACTOR's Equipment. CONTRACTOR undertakes and agrees to carry out and perform the obligations of this AGREEMENT in a safe and sanitary manner; that all Recyclable Materials collected by CONTRACTOR shall be conveyed in modern equipment, so constructed and so loaded that there will not be any leakage from said equipment or loss of any Recyclable Materials therefrom. All receptacles, trucks or other vehicles, as well as all utensils and hand tools used by CONTRACTOR in the 5 collection of Recyclable Materials shall be of a type capable of handling said Recyclable Materials according to the requirements of this AGREEMENT, and shall be kept clean and in a good state of repair. Collection vehicles shall be painted uniformly and shall be clearly identified with the CONTRACTOR's name, a current telephone number, and a vehicle identification number in letters not less than two and one -half (2 1/2) inches in height. CONTRACTOR shall not use a firm name containing the words "TOWN" or other words implying municipal ownership. G. Debris /Spills. CONTRACTOR shall not litter premises in the process of making collections nor allow recyclables to blow or fall from any vehicles used for collections. CONTRACTOR shall clean up all spills, including oil and debris on the street resulting from its operation. H. Non - Profit Organization Cooperation. CONTRACTOR shall cooperate with non - profit community -based organizations attempting to carry out bona fide recycling programs in the service area of TOWN through the following methods: 1) incorporation of publicity of programs and events in CONTRACTOR'S existing promotional materials; and, 2) the purchase from such organizations of Recyclable Materials at fair market values based on the condition of the materials. SECTION 3. SCHEDULE OF PERFORMANCE CONTRACTOR shall perform those services set forth in SECTION 2 of this AGREEMENT in accordance with the Schedule of Performance set forth in EXHIBIT D, entitled "SCHEDULE OF PERFORMANCE." arra toy o or .,A incorporated herein by this reference. In the event unforeseen circumstances arise which would cause a delay in performance, said Schedule of Performance may be modified accordingly by the mutual written agreement of TOWN and CONTRACTOR. The Town Manager is authorized to modify said Schedule of Performance on behalf of TOWN. SECTION 4. COMPENSATION A. Compensation for Services. a In consideration of the services to be performed by CONTRACTOR pursuant to this AGREEMENT, CONTRACTOR is authorized to charge each household served an amount not to exceed $0.82 per household per month throughout the term of this AGREEMENT. Said charges are to be collected through the regular refuse collection billing system unless some other form of payment is agreed to in writing between the TOWN and CONTRACTOR. B. Revenue: Sale of Recyclable Materials. CONTRACTOR shall sell all Recyclable Materials collected by CONTRACTOR pursuant to this AGREEMENT and revenue obtained from such sales shall be retained by CONTRACTOR. CONTRACTOR's total compensation for services rendered pursuant to this AGREEMENT shall be limited to revenue as set forth in Section 4A and revenue from the sale of Recyclable Materials. C. Property of Contractor. At any time after Recyclable Materials have been placed out for collection, such Recyclable Materials shall become the property of CONTRACTOR, except that the resident, and only the resident, may take back such materials as resident desires until such Recyclable Materials have been collected by CONTRACTOR at which time they shall become the sole and exclusive property of CONTRACTOR. CONTRACTOR shall have the right to any and all revenues received by the CONTRACTOR from the sale of Recyclable Materials. SECTION 5. TOWN'S RESPONSIBILITIES A. TOWN Representative. TOWN's representative for purposes of this AGREEMENT shall be Town Manager or his /her designee. B. Public Awareness Program. TOWN shall participate in the Public Awareness Program as provided in EXHIBIT B of this AGREEMENT. C. Protection of Materials. TOWN agrees to take such steps as may be reasonably necessary to protect CONTRACTOR's ownership of all Recyclable Materials placed at the curbside for collection by CONTRACTOR under the terms of this AGREEMENT and shall reasonably enforce its anti - scavenging ordinance. 7 D. Permits for Processing Facility. TOWN shall assist CONTRACTOR, to the extent reasonably possible, in obtaining such permits and licenses necessary for CONTRACTOR to operate or construct a recycling facility of sufficient size to administer the Town -wide recycling program pursuant to this AGREEMENT. SECTION 6. INDEPENDENT CONTRACTOR CONTRACTOR shall perform all work and services described herein as an independent contractor and not as an officer, agent, servant or employee of TOWN. CONTRACTOR shall have exclusive control of and the exclusive right to control the details of the services and work performed hereunder and all persons performing the same and CONTRACTOR shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Nothing herein shall be construed as creating a partnership or joint venture between TOWN and CONTRACTOR. No person performing any of the work or services described hereunder shall be considered an officer, agent, servant or employee of TOWN, nor shall any such person be entitled to any benefits available or granted to employees of TOWN. SECTION 7. NON- ASSIGNMENT CONTRACTOR shall not assign, transfer, convey, or otherwise hypothecate this AGREEMENT or CONTRACTOR's rights, duties or obligations hereunder or any part thereof without the prior written consent of TOWN. In the event CONTRACTOR attempts to assign, transfer, convey or otherwise hypothecate this AGREEMENT or CONTRACTOR's rights, duties or obligations hereunder or any part thereof without the prior written consent of TOWN, TOWN may, at its option, terminate this AGREEMENT immediately. SECTION 8. PERMITS AND LICENSES CONTRACTOR, at its sole cost and expense, shall obtain and maintain throughout the term of this AGREEMENT all permits, licenses and approvals necessary or required for CONTRACTOR to perform the work and services described herein, including but not limited to the operation of the Recycling Center. 0 SECTION 9. COMPLIANCE WITH LAWS AND REGULATIONS A. CONTRACTOR agrees that, in the operation of the Recycling Center and the performance of work and services under this AGREEMENT, CONTRACTOR will qualify under and comply with any and all Federal, State and local laws and regulations now in effect, or hereafter enacted during the term of this AGREEMENT, which are applicable to CONTRACTOR, its employees, agents or subcontractors, if any, with respect to the work and services described herein. B. Taxes. The CONTRACTOR shall exonerate, indemnify, and hold harmless the TOWN from and against, and shall defend the TOWN from and against, and shall assume full responsibility for, payment of all wages or salaries and all Federal, State and local taxes or contributions imposed or required under the Unemployment Insurance, Social Security, Income Tax laws, Worker's Compensation laws, or other laws with respect to the CONTRACTOR's employees engaged in the performance of CONTRACTOR's obligations hereunder. SECTION 10. PERFORMANCE BOND CONTRACTOR shall maintain in full force and effect either a Performance Bond or an irrevocable Letter of Credit favoring TOWN equal to or with recovery value of $250,000. The surety company issuing said Bond and the form of the Bond itself, or Letter of Credit, as the case may be, shall be subject to approval by TOWN. In the event that CONTRACTOR fails for any reason to perform as provided herein, TOWN shall have the option of recovery from said Bond or Letter of Credit. In addition, all equipment together with recycling containers purchased by the CONTRACTOR for the purposes of operating the curbside recycling service may, at the sole option of the TOWN, become the property of the TOWN when CONTRACTOR breaches or in any other way fails to fulfill its obligations identified herein. If the equipment and recycling containers become the property of the TOWN, the TOWN will reimburse the CONTRACTOR using the same method calculated for the containers in Section II.AA. SECTION 11. INSURANCE CONTRACTOR shall obtain and maintain throughout the term of this AGREEMENT, at CONTRACTOR's sole cost and expense, not less than the insurance coverage 0 set forth in EXHIBIT E, entitled "INSURANCE ", attached hereto and incorporated herein by this reference. SECTION 12. CONFLICT OF INTEREST - DISCLOSURE A. Interest of CONTRACTOR. CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. CONTRACTOR further covenants that, in the performance of this AGREEMENT, no subcontractor or person having such an interest shall be employed. CONTRACTOR certifies that no one who has or will have any financial interest under this AGREEMENT is an officer or employee of TOWN. It is expressly agreed that, in the performance of the services hereunder, CONTRACTOR shall at all times be deemed an independent contractor and not an agent or employee of TOWN. B. Operation as a Separate Entity. The operations of CONTRACTOR under this AGREEMENT shall be conducted as an independent entity and the assets, liabilities, revenues, expenses and net worth shall not be combined, consolidated or in any way incorporated with those of any other operation. The accounting records of CONTRACTOR shall be kept on the "Accrual Basis" and the operating year for financial and accounting purposes shall begin July 1 and end June 30. CONTRACTOR shall not use a firm name containing the word "Town" or other words implying municipal ownership. SECTION 13. INDEMNIFICATION AND HOLD HARMLESS CONTRACTOR agrees to indemnify and hold harmless and at the request of TOWN defend TOWN, its officers, employees, agents and servants, from and against any and all loss, liability, claims, demands, actions or suits, of whatsoever character or kind, arising or resulting from, or in any way connected with, CONTRACTOR's performance of this AGREEMENT, the operations of CONTRACTOR, its agents, employees or subcontractors, if any, at the Recycling Center, or the failure of CONTRACTOR to comply with the provisions and requirements of all applicable permits, licenses, laws or regulations. Vii] SECTION 14. TERMINATION A. In the event CONTRACTOR materially defaults in the performance of any of the material covenants or agreements to be kept, done or performed by it under the terms of this AGREEMENT, TOWN shall notify CONTRACTOR in writing of the nature of such default. Within fifteen (15) days following such notice: 1. CONTRACTOR shall correct the default; or 2. In the case of a default not capable of being corrected within fifteen (15) days, CONTRACTOR shall commence correcting the default within fifteen (15) days of TOWN's notification thereof, and thereafter correct the default with diligence. B. If CONTRACTOR fails to correct the default as provided above, TOWN, without further notice, shall have all of the following rights and remedies which TOWN may exercise singly or in combination: 1. The right to declare that this AGREEMENT together with all rights granted CONTRACTOR hereunder are terminated, effective upon such date as TOWN shall designate; 2. The right to license others to perform the services otherwise to be performed by CONTRACTOR hereunder, or to perform such services itself; and 3. The right to rent or lease the equipment from CONTRACTOR for the purpose of collecting, transporting and processing recyclables which CONTRACTOR is obligated to collect, transport and process pursuant to this AGREEMENT, for a period not to exceed eighteen (18) months. Insurance and maintenance of equipment shall be TOWN's responsibility. In the case of equipment not owned by CONTRACTOR, CONTRACTOR shall assign to TOWN, to the extent CONTRACTOR is permitted to do so under the instrument pursuant to which CONTRACTOR possesses such equipment, the right to possess the equipment. If TOWN exercises its rights under this Subsection B., TOWN shall pay the CONTRACTOR the reasonable rental value of the equipment so taken for the period of the TOWN's possession thereof. 4. The right to recovery under the terms of the Performance Bond or Letter of Credit pursuant to Section 11 of this AGREEMENT. 11 5. The right to sue for damages resulting from the termination of this AGREEMENT, and pursue any other legal or equitable remedies provided by law. 6. The right to collect all amounts paid by each household for the cost of the recycling program and to require CONTRACTOR to remit to TOWN all such payments received by the CONTRACTOR for services that would have been provided after the date this AGREEMENT is terminated. SECTION 15. LABOR DISPUTES A. In the event the curbside recycling services of CONTRACTOR required to be provided under this AGREEMENT are interrupted by a labor dispute and scheduled collections are discontinued for more than forty -eight (48) hours, TOWN shall have, as one of its options, the right forthwith to take temporary possession of all facilities and equipment of CONTRACTOR for the purpose of continuing the service which CONTRACTOR has agreed to provide. 1. TOWN shall have the right to retain possession of said facilities and equipment and to render the required service until CONTRACTOR can demonstrate to the satisfaction of the Town Council that required services can be resumed by CONTRACTOR; provided, however that such temporary assumption of CONTRACTOR's obligations under this AGREEMENT shall not be continued by TOWN for more than one hundred twenty (120) days from the date such operations were undertaken. Should CONTRACTOR fail to demonstrate to the satisfaction of the Town Council that required services can be resumed by CONTRACTOR prior to the expiration of the aforementioned one hundred twenty (120) days, this AGREEMENT may, at the option of TOWN, be terminated in the manner hereinafter provided, and the rights and privileges granted in this AGREEMENT shall be cancelled and annulled. 2. During any period in which TOWN has temporarily assumed the obligations of CONTRACTOR under this AGREEMENT, TOWN shall be entitled to be reimbursed for all costs incurred by TOWN from 12 CONTRACTOR within thirty (30) days after TOWN has billed CONTRACTOR therefor. 3. Employees of CONTRACTOR may be employed by TOWN during any period in which TOWN temporarily assumes the obligations of CONTRACTOR under this AGREEMENT. Provided, however, the number of employees shall remain the same and the rate of compensation to be paid such employees shall be the rate or rates in effect at the time CONTRACTOR's service was interrupted by the labor dispute. SECTION 16. INSOLVENCY OF CONTRACTOR - TERMINATION OF AGREEMENT Either the appointment of a receiver to take possession of all or substantially all of the assets of CONTRACTOR, or a general assignment by CONTRACTOR for the benefit of creditors, or any action taken by or suffered by CONTRACTOR under any insolvency or bankruptcy act shall constitute a breach of this AGREEMENT by CONTRACTOR and shall, at the option of the TOWN, terminate this AGREEMENT. SECTION 17. NOTICES All notices required or contemplated by this AGREEMENT shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the parties as follows: To TOWN: Town Manager Town of Los Gatos 110 East Main Street Los Gatos, CA 95032 To CONTRACTOR: Gerard Wen, Director of Recycling Green Valley Disposal Company, Inc. 573 University Avenue Los Gatos, CA 95030 -4423 or to such other address as the parties may designate in writing. SECTION 18. CONTRACTOR'S RECORDS CONTRACTOR shall maintain its books and records related to the performance of this AGREEMENT in accordance with the following minimum requirements. A. CONTRACTOR shall maintain any and all ledgers, books of account, invoices, vouchers and cancelled checks, as well as all other records or documents evidencing or relating to charges for services, or expenditures for a minimum period of three (3) years, or for any 11141 longer period required by law, from the date of final payment to CONTRACTOR pursuant to this AGREEMENT. B. CONTRACTOR shall maintain all documents and records which demonstrate performance under this AGREEMENT for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this AGREEMENT. C. Any records or documents required to be maintained pursuant to this AGREEMENT shall be made available for inspection or audit, at any time, during regular business hours, upon written request by the Town Attorney, Town Auditor, Town Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to TOWN for inspection at Town Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at CONTRACTOR's address indicated for receipt of notices in this AGREEMENT. D. Where TOWN has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of CONTRACTOR's business, TOWN may, by written request by any of the above -named officers, require that custody of the records be transferred to the TOWN and that the records and documents be maintained in Town Hall. Access to such documents shall be granted to any party authorized by CONTRACTOR, its representatives, or its successor -in- interest. SECTION 19. WAIVER A waiver of any breach of any provision of this AGREEMENT shall not constitute or operate as a waiver of any other breach of such provision or of any other provisions, nor shall any failure to enforce any provision hereof operate as a waiver of such provision or of any other provision. SECTION 20. LAW TO GOVERN This AGREEMENT is entered into and is to be performed in the State of California. TOWN and CONTRACTOR agree that the law of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this AGREEMENT and shall govern the interpretation of this AGREEMENT. 14 SECTION 21. AMENDMENT This AGREEMENT may be modified or amended only by a written agreement duly executed by the parties hereto or their representatives. SECTION 22. ENTIRETY This AGREEMENT and the Exhibits attached hereto contain the entire AGREEMENT between the parties as to the matters contained herein. Any oral representations or modifications concerning this AGREEMENT shall be of no force and effect. SECTION 23. ATTORNEY'S FEES Either party to this AGREEMENT may recover reasonable attorney's fees from the other party if legal action is necessary to enforce the terms of this AGREEMENT. Such fees shall be collected by the prevailing party. WITNESS THE EXECUTION HEREOF on the day and year first herein above written. APPROVED AS TO FORM: r ATTEST: \ Marian V. Cosgrove Town Clerk C: \WP50 \C0NTRACT \L0SGAT0S.AGR 15 TOWN OF LOS GATOS: Ro ert F. eye Interim Town Manag r GREEN VALLEY DISPOSSAL COMPANY,INC. �1t��t,ct„ -D� �✓cZz By: Gerard Wen Director of Recycling EXHIBIT A RECYCLING CONTAINERS Unless otherwise authorized by TOWN MANAGER, CONTRACTOR shall provide a set of two (2) recyclable material containers as mutually agreed upon by CONTRACTOR and TOWN MANAGER, to each eligible residence in the Town of Los Gatos. These containers are specially made of rigid plastic construction for stacking on each other to assist homeowners to participate in the Curbside Recycling Program. 16 EXHIBIT B PUBLIC AWARENESS PROGRAM CONTRACTOR and TOWN recognize that an effective Public Awareness Program throughout the term of this AGREEMENT is necessary to assure the public's participation in the Curbside Recycling Program. The CONTRACTOR shall develop and implement a Public Awareness Program that shall be approved by the TOWN. The Program may be modified by mutual. consent of CONTRACTOR and TOWN. CONTRACTOR agrees to expend an average of $47,600.00 per year directly for promotional activities, throughout the term of this AGREEMENT. The Public Awareness Program may include, but is not limited to, the following items: 1. Design of an appropriate logo to identify the West Valley Cities' recycling program. 2. An initial mailing to each customer explaining the program and its benefits, and alerting residents of the beginning date for the recycling program. 3. Distribution of brochures explaining program and customers' responsibilities (i.e, placing in containers at curb, removing paper from cans, etc.) 4. Reminder correspondence. 5. Printed message in refuse collection bills. 6. Media coverage including press releases feature articles and advertisements if necessary in newspapers, and news release and public service announcements for radio and television. 7. Outreach program for schools. 8. Exhibits at community fairs, festivals and events. 9. Placards and other advertisements for the recycling program on refuse vehicles. 10. Volunteer Outreach Program to maintain a group of neighborhood volunteers who will use brochures or other written materials to promote the program. TOWN will support the Public Awareness Program by including feature articles in TOWN's newsletter, providing an initial letter from the Mayor for CONTRACTOR to distribute, making proclamations, and joining CONTRACTOR for public presentations when possible. 17 EXHIBIT C REPORTING REQUIREMENTS The recycling CONTRACTOR will be required to keep records and submit reports to comply with the TOWN's reporting requirements. These reports will serve as a means to apprise TOWN staff of the status recycling activities and expenditures. The CONTRACTOR will also be required to provide weight receipts for all materials sold by the CONTRACTOR for materials collected in the TOWN's program. CONTRACTOR shall also provide estimates of the required information as described below, by jurisdiction. Reporting requirements include: 1. Monthly Progress Reports For the first year, the CONTRACTOR shall submit monthly progress reports commencing upon final approval of the AGREEMENT. These reports shall be due within ten (10) working days from the end of the period being reported. At a minimum, the reports shall include: a. Summaries of tonnages of all materials recovered, by material; b. Summaries of tonnages of all materials sold, by material; C. Market prices (reflecting the prices actually paid for materials sold); d. Resident participation rates in terms of weekly and monthly set -out counts with a description of the methods used to determine these rates; e. Description of progress in meeting the implementation schedule, including any problems encountered and how they were resolved; f. A summary of missed pick -ups by route and explanation of noteworthy experiences, and a summary of telephone calls received by category, including inquiries about the program, missed pickups, and container replacement. 2. Quarterly Progress Status Reports The recycling CONTRACTOR shall provide quarterly progress status reports. These reports will be due within fifteen days of the close of the quarter being reported. At a minimum, the reports shall include: a. A quarterly summary of a. - f. from #1 above; RE b. Summary of all program costs and revenues; C. Detailed data to allow analysis of collection and processing efficiencies; d. A discussion of public awareness activities and their impact on participation and recovered volumes; e. A discussion of highlights and problems and measures taken to resolve problems and increase efficiency and household participation; 3. Annual Reports The CONTRACTOR shall provide year -end annual reports for each year the project is in operation. These reports will be due within the number of days from the end of the reporting year, as specified. At a minimum, the report shall include: a. A collated summary of the information contained in the quarterly reports due within 30 days of the end of the reporting period; b. Revised implementation schedule and budget for the succeeding years of operation and recommendations regarding any additional materials to add to the Curbside Recycling Program together with any other operational changes the CONTRACTOR may wish to propose due within 120 days of the end of the reporting period; C. A copy of any and all audit reports of program. At minimum, a "Reviewed Statement" as defined by general accounting procedures shall be submitted due within 90 days of the end of the reporting period; d. Recordation of assets. Evidence of ownership of the assets of CONTRACTOR, owned or acquired for the purpose of discharging his obligations under this contract, shall be reflected in the Annual Financial Report due within 30 days of the end of the reporting period, CONTRACTOR shall pay to TOWN $25 per day for each day that any of the above referenced reports are delinquent. Reports shall be submitted to the Community Services Manager. 19 EXHIBIT D SCHEDULE OF PERFORMANCE CONTRACTOR shall initiate delivery of recycling containers to residences throughout the Town by February 1, 1990. CONTRACTOR shall complete delivery of the recycling containers no later than March 1, 1990. Any modifications to this Schedule of Performance shall be subject to approval in writing by TOWN. 20 EXHIBIT E INSURANCE CONTRACTOR, at CONTRACTOR's sole cost and expense and for the full term of this AGREEMENT or any renewal thereof, shall obtain and maintain at least all of the following minimum insurance requirements prior to commencing any work or receiving any payments therefore under this AGREEMENT. A. A WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY policy written in accordance with the laws of the State of California, and providing coverage for any and all employees of CONTRACTOR. This policy shall include both Workers' Compensation and Employers' Liability in the amount of One Hundred Thousand Dollars ($100,000.00) coverage. B. A COMPREHENSIVE GENERAL LIABILITY policy with a minimum limit of not less than One Million Dollars ($1,000,000.00) combined single limit for bodily injury and property damage, providing at least all of the following minimum coverages: 1. Premise Operations 2. Owners' and Contractors' Protective 3. Blanket Contractual 4. Completed Operations C. A COMPREHENSIVE MOTOR VEHICLE policy with a minimum limit of not less than One Million Dollars ($1,000,000.00) combined single limit of bodily injury and property damage, providing at least all of the following coverages (without deductibles): 1. Coverages shall be applicable to any and all leased, owned, hired, or non -owned vehicles used in pursuit of any of the activities associated with this AGREEMENT. 2. Any and all mobile equipment which is not covered under the above Comprehensive Business Motor Vehicle policy shall have said coverage provided for under the Comprehensive General Liability policy. D. ENDORSEMENTS. All of the following endorsements shall be made a part of each of the insurance policies specified above: 1. "The TOWN, Town of Los Gatos Redevelopment Agency, its employees, officials, officers, agents, volunteers and contractors are hereby added as additional insureds ". 21 2. "Ninety (90) days prior written notice of cancellation shall be given to the TOWN in the event of cancellation and /or reduction in coverage of any nature ". Such notice shall be sent to the Risk Manager. 3. Endorsement J/2 above (90 days notice) is the only endorsement required to be made a part of the Workers' Compensation and Employer's Liability policy. 4. For the Excess Liability policy, a sufficient endorsement shall be an identification on the Certificate of Insurance that the Policy is "following form ". Copies of all of the endorsements listed above shall be attached to the Certificate of Insurance which shall be provided to TOWN by CONTRACTOR's insurance carrier as evidence of the required coverages. Prior to receiving any payment pursuant to this AGREEMENT, CONTRACTOR shall cause the Certificate of Insurance to be filed with the Risk Manager. S. Insurance endorsements shall provide TOWN with "primary" coverage. E. PROOF OF COVERAGE. Prior to receipt of any payment for work or services performed under this AGREEMENT, CONTRACTOR shall submit proof of coverage in the form of Certificates of Insurance, with copies of all required endorsements attached thereto, to the Risk Manager. 22