16-140 4 Paws Goose Control for Goose Management ServicesAGREEMENT BETWEEN THE CITY OF CUPERTINO AND 4 PAWS GOOSE
CONTROL FOR GOOSE MANAGEMENT SERVICES.
THIS AGREEMENT, for reference dated September 8, 2016 , is by and between CITY
OF CUPERTINO , a municipal corporation (hereinafter referred to as "City"), and 4 Paws Goose
Control, a California corporation whose address is P. 0. Box 363 , San Lorenzo , CA 94580 ,
(hereinafter called the "Contractor"), and is made with reference to the following :
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 Cupertino Municipal
Code.
B . City and Contractor desire to enter into an agreement for
Goose Control Services at Memorial Park in Cupertino , CA , in accordance with the proposal
dated/received "September 7, 2016 ", hereinafter referred to as "Exhibit A".
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows :
1. TERM:
The Contractor shall begin work within ten (10) calendar days after receiving notice from
"Brian Gathers, Grounds Division Supervisor" to commence the work , and shall diligently
prosecute the work to completion before the expiration of "Two Years " from the date of receipt
of notice to begin work. The City retains the option to extend the contract in the form of two (2 )
one ( 1) year extensions for a total or four ( 4) years .
2 . SERVICES TO BE PERFORMED :
Contractor agrees, at its own cost and expense , to furnish all labor, tools, equipment,
materials , except as otherwise specified, and to do all work strictly in accordance with the
proposal dated/received "September 7, 2016 " hereby referred to and expressly made a part
hereof with the same force and effect as if the same were fully incorporated herein.
3. COMPENSATION TO CONTRACTOR:
Contractor shall be compensated for services performed pursuant to this Agreement in the
amount and manner set forth in Contractor's proposal , which is attached hereto as exhibit "A"
and incorporated herein by this reference . Payment will be made in the same manner that claims
of a like character are paid by the City, with checks drawn on the treasury of the City, to be taken
from the general fund.
4. TIME IS OF THE ESSENCE:
Contractor and City agree that time is of the essence regarding the performance of this
Agreement.
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5. STANDARD OF CARE :
Contractor agrees to perform all services hereunder in a manner commensurate with the
prevailing standards of specially trained professionals in the San Francisco Bay Area and agrees
that all services shall be perfonned by qualified and experienced personnel who are not
employed by the City nor have any contractual relationship with City .
6 . INDEPENDENT PARTIES:
City and Contractor intend that the relationship between them created by this Agreement
is that of independent contractor. The manner and means of conducting the work are under the
control of Contractor, except to the extent they are limited by statute, rule or regulation and the
express tenns of this Agreement. No civil service status or other right of employment will be
acquired by virtue of Contractor's services. None of the benefits provided by City to its
employees, including but not limited to unemployment insurance , workers' compensation plans ,
vacation and sick leave are available from City to Contractor, 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
Contractor. Payments of the above items, if required, are the responsibility of Contractor.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Contractor assumes any and all responsibility for verifying the identity and employment
authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA
or other federal , or state rules and regulations . Contractor shall indemnify and hold City
harmless from and against any loss, damage , liability , costs or expenses arising from any
noncompliance of this provision by Contractor.
8 . NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are unacceptable
employer/employee conduct, Contractor agrees that harassment or discrimination directed
toward a job applicant, a City employee, or a citizen by Contractor or Contractor's employee on
the basis of race , religious creed , color, national origin, ancestry , handicap, disability, marital
status , pregnancy, sex, age , or sexual orientation will not be tolerated . Contractor agrees that any
and all violations of this provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS:
Contractor shall, to the fullest extent allowed by law, indemnify , defend, and hold harmless the
City and its officers, officials, agents, employees and volunteers against any and all liability,
claims, stop notices, actions, causes of action or demands whatsoever from and against any of
them , including any injury to or death of any person or damage to property or other liability of
any nature, arising out of, pertaining to , or related to the performance of this Agreement by
Contractor or Contractor's employees, officers, officials, agents or independent contractors.
Contractor shall not be obligated under this Agreement to indemnify City to the extent that the
damage is caused by the sole negligence or willful misconduct of City , its agents or employees.
Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice ,
expert fees and all other costs and fees of litigation.
Contractor agrees to obtain executed indemnity agreements with provisions identical to those set
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forth here in these sections from each and every subcontractor or any other person or entity
involved by, for, with, or on behalf of Contractor in the performance of this agreement. If
Contractor fails to obtain such indemnity obligations from others as required here, Contractor
agrees to be fully responsible according to the terms of this section.
10 . INSURANCE:
On or before the commencement of the terms of this Agreement, Contractor 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 paragraphs 1 OA , B , C and D . Such
certificates, which do not limit Contractor's indemnification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this certificate 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 Cupertino by certified mail,
"Attention: City Manager." It is agreed that Contractor shall maintain in force at all times
during the performance of this Agreement all appropriate 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.
A COVERAGE:
Contractor shall maintain the following insurance 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: $1 ,000,000
each occurrence
$2,000,000
aggregate -all other
Property Damage: $500,000 each occurrence
$1,000 ,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $2,000,000 will be considered equivalent to the required
minimum limits shown above .
(3) Automotive:
Comprehensive automobile liability coverage in the
following minimum limits :
Bodily injury: $500,000 each occurrence
Property Damage: $500,000 each occurrence
or
Combined Single Limit: $1,000,000 each occurrence
B . SUBROGATION WAIVER:
Contractor agrees that in the event of loss due to any of the perils for which it has agreed
to provide comprehensive general and automotive liability insurance, Contractor shall look
solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer
providing comprehensive general and automotive liability insurance to either Contractor or City
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with respect to the services of Contractor herein, a waiver of any right to subrogation which any
such insurer of said Contractor may acquire against City by virtue of the payment of any loss
under such insurance .
C. FAILURE TO SECURE :
If Contractor at any time during the term hereof should fail to secure or maintain the
foregoing insurance, City shall be permitted to obtain such insurance in the Contractor's name or
as an agent of the Contractor and shall be compensated by the Contractor for the costs of the
insurance premiwns at the maximum rate permitted by law and computed from the date written
notice is received that the premiwns 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 worker's compensation
insurance. 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 premiwn, 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
Contractor. Contractor is advised to consult Contractor's insurance broker to determine adequate
coverage for Contractor.
11. BONDS :
Contractor is not required to provide bonds.
12. PROHIBITION AGAINST TRANSFERS :
Contractor 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 b e null and void, and any
assignee, sub lessee, hypothecate or transferee shall acquire no right or interest by reason of such
attempted assignment, hypothecation or transfer . However, claims for money by Contractor
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 Contractor.
The sale, assignment, transfer or other disposition of any of the issued and outstanding
capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate
member or cotenant, if Contractor is a partnership or joint venture or syndicate or cotenancy,
which shall result in changing the control of Contractor, shall be construed as an assignment of
this Agreement. Control means fifty percent (50%) or more of the voting power of the
corporation.
13 . SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and subcontractors
whose names are listed in Contractor's bid shall be used in the performance of this Agreement.
Requests for additional subcontracting shall be submitted in writing, describing the scope
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of work to be subcontracted and the name of the proposed subcontractor. Such request shall set
forth the total price or hourly rates used in preparing estimated costs for the subcontractor's
services. Approval of the subcontractor may , at the option of City, be issued in the form of a
Work Order.
In the event that Contractor employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required to carry
general and automobile liability insurance in reasonable confonnity to the insurance carried by
Contractor. In addition, any work or services subcontracted hereunder shall be subject to each
provision of this Agreement.
14. PERMITS AND LICENSES :
Contractor, at its sole expense, shall obtain and maintain during the term of this
Agreement, all appropriate pennits , certificates and licenses, including a City Business License ,
that may be required in connection with the performance of services hereunder.
15. REPORTS:
Each and every report, draft, work product , map , record and other document reproduced ,
prepared or caused to be prepared by Contractor pursuant to or in connection with this
Agreement shall be the exclusive property of City. Consultant may retain a copy of any report
furnished to the City pursuant to this Agreement.
No report, information nor other data given to or prepared or assembled by Contractor
pursuant to this Agreement shall be made available to any individual or organization by
Contractor without prior approval by City .
Contractor shall, at such time and in such form as City may require, furnish reports
concerning the status of services required under this Agreement.
16 . RECORDS:
Contractor shall maintain complete and accurate records with respect to sales , costs ,
expenses, receipts and other such information required by City that relate to the performance of
services under this Agreement.
Contractor shall maintain adequate records of services provided 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 .
Contractor 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 there from as necessary , and to allow inspection of all work , data, documents ,
proceedings and activities related to this Agreement. Such records , together with supporting
documents, shall be kept separate from other documents and records and shall be maintained for
a period of three (3) years after receipt of final payment.
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 Contractor shall reimburse City for
all reasonable costs and expenses associated with the supplemental examination or audit.
17 . NOTICES :
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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.
City at:
All notices , demands , requests , or approvals from Contractor to City shall be addressed to
City of Cupertino
10555 Mary Avenue
Cupertino CA 95014
Attention: "Brian Gathers, Grounds Division Supervisor"
408-777-3270
All notices, demands, requests, or approvals from City to Contractor shall be addressed to
Contractor at:
4 Paws Goose Control
P. 0 . Box 363
San Lorenzo, CA 94580
510-278-4189
Attention: Vicki Stewart
18. TERMINATION:
In the event Contractor fails or refuses to perform any of the provisions hereof at the time
and in the manner required hereunder, Contractor shall be deemed in default in the performance
of this Agreement. If such default is not cured within a period of two (2) days after receipt by
Contractor from City of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, City may terminate the Agreement forthwith by giving to
the Contractor written notice thereof
City shall have the option, at its sole discretion and without cause, of terminating this
Agreement by giving seven (7) days' prior written notice to Contractor as provided herein. Upon
tennination of this Agreement, each party shall pay to the other party that portion of
compensation specified in this Agreement that is earned and unpaid prior to the effective date of
termination .
19 . COMPLIANCES:
Contractor shall comply with all laws , state or federal and all ordinances, rules and
regulations enacted or issued by City.
20. 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 courts of the County of Santa Clara, State of California.
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21 . ADVERTISEMENT:
Contractor shall not post , exhibit, display or allow to be posted , exhibited, displayed any
signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services
perfonned under this Agreement unless prior written approval has been secured from City to do
otherwise.
22 . WAIVER:
A waiver by City of any breach of any term , covenant, or condition contained herein ,
shall not be deemed to be a waiver of any subsequent breach of the same or any other term ,
covenant, or condition contained herein, whether of the same or a different character.
23. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, 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 Contractor.
24 . SAFETY REQUIREMENT
All work performed under this Agreement shall be performed in such a manner as to
provide safety to the public and to meet or exceed the safety standards outlined by CAL-OSHA.
City reserves the right to issue restraints or cease and desist orders to Contractor when unsafe or
harmful acts or conditions are observed or reported relative to the performance of the work under
this Agreement.
Contractor shall maintain the work sites free of hazards to persons and/or property
resulting from his or her operations. Any hazardous condition noted by Contractor, which is not
a result of his or her operations, shall i1mnediately be reported to City.
25. HOURS OF OPERATION
Contractor shall be allowed to operate only for the hours of 9 :00 a.m . to 4 :00 p.m .,
Monday through Friday (no weekend or holiday work is allowed) unless prior written approval
has been secured from City to do otherwise.
26 . REQUIREMENT TO PAY PREVAILING WAGES
Consistent with the City's policy to pay prevailing wage rates, Contractor shall
comply with the City 's Labor Compliance Program and all other requirements set forth in Labor
Code section 1770 et seq. The City shall require payment of the general rate of per diem wages
or the general rate of per diem wages for holiday and overtime work. Contractor will submit
(monthly or biweekly) certified payroll records to the City for all employees and subcontractors
in a preapproved fonnat or a City provided form . Any delay in remitting certified payroll reports
to the City upon request from the City will result in either delay and/or forfeit of outstanding
payment to Contractor.
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27 . INSERTED PROVISIONS :
Each provision and clause required by law to be inserted 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 inserted or is not
correctly inserted, the Agreement shall be amended to make such insertion on application by
either party.
28 . CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the Agreement
and in no way affect, limit or amplify the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the day and
year first above written.
Cont~:~tor: ~ Pa~s Goose <?{)_ntrol
By ~ 1d{1 .S+euh(-r
Title C-PO
Date q -d.(o -I~
~e. gee, # or Tax I .D . ___ _
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CITY OF CUPERTINO
A Municipal Corporation
APPROVED AS TO FORM :
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By
~ City Attorney
ATTEST :
City Clerk b)/)u. Z .Jr /0 '/ ':,. fl,,
Contract Amount:$ /t(b .~o -I &.,12'.a?• .,.,/y.e
Account Number: -------
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4 PAWS GOOSE CONTROL
PROPOSAL/AGREEMENT
Exhibit "A"
THIS AGREEMENT is made by 4 Paws Goose Control hereinafter called Provider, and The City of
Cupertino, hereinafter called the Customer.
WITNESS that the Provider and the Customer for the consideration named agree as follows:
ARTICLE I. SCOPE OF THE WORK -The Provider shall furnish Canada goose control services using dogs
and other methods at Cupertino Memorial Park, IO 185 N . Stelling Rd., Cupertino. Goose Control to consist of
Three (3) days per week with days and duration determined by 4 Paws staff, goose population and on site staff
feedback. Our goal is to remove approximately 95-100% of the geese, while on site. All legal holidays are
observed. The intent of this agreement is to reduce the Canada Geese population on the property.
ARTICLE 2. DURATION OF AGREEMENT-This agreement is for a term of __ year(s),
to -----------
AR TI CLE 3. COST -The Customer shall pay the Provider the sum of One Thousand, Eight Hundred Fifty
Dollars ($1850.00) per month for the term of the agreement. Provider will bill the Customer on the first of
each month. Payment is due upon receipt.
ARTICLE 4. INSURANCE -Provider will have in place during the full term of this agreement a general
liability policy and separate vehicle policy for One Million Dollar ($1 ,000,000.00) each, per incident plus an
aggregate amount of One Million Dollar ($1,000,000.00) and a One Million Dollar ($1 ,000,000 .00) umbrella
policy. The Customer will be named "Additional Insured" on the policy for the term of this agreement.
ARTICLE 5 . TERMINATION OF AGREEMENT-Customer or Provider may terminate this Agreement,
with or without cause, at any time during the Term upon sixty (60) days written notice to either party.
Provider is responsible for continuing service until termination date and Customer is responsible for all
remaining fees for services rendered up to termination date. Provider will deliver a final invoice to Customer
upon receipt of termination notice.
ARTICLE 6. GENERAL PROVISIONS -Wild Canada Geese hazing/harassment using trained dogs will be
provided as allowed by the U.S. Fish and Wildlife Service and California Fish and Wildlife rules.
1) Handlers will wear distinctive blue shirts and/or jackets and the dogs shall wearing identifying vests. Each
garment will have "GOOSE CONTROL" clearly imprinted on it for easy identification. Vehicles will have
identifying signs and may have rotating caution lights.
2) Our dogs are extensively trained "goose dogs" (Border Collies and Labradors) and fiiendly representatives
of our company and your organization.
3) Handlers will carry cell phones at all times. Telephone numbers will be made available so that the handlers
and the Customer contacts may easily communicate.
4) The Customer is responsible for keeping all dogs off serviced properties while goose control dogs are
present and will provide the appropriate keys that may be needed for entry to properties.
5) Provider will keep comprehensive records of activities including dates and times of service, estimated
number of geese encountered and other pertinent facts and comments. These records will be available to the
Customer upon request
Signed: ____ , 20_
By: ________________ _
Denise Laberee or Vicki Stewart
4 Paws Goose Control
P.O. Box 363.
San Lorenzo, CA 94580
Office: 510-278-4189
Handler's Phones:
Denise Cell: 510-501-5782
Vicki Cell: 510-206-8365
By: _______________ _
Chris Mertens
Superintendent Public Works Service Center
10555 Mary Ave.
Cupertino, CA 95014
Phone: 408-777-3344
Fax: 408-777-3399
chrism @ cupertino.org
Exhibit 11 A 11