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ANIMAL SHELTERING SERVICES AGREEMENT
(City of Barstow / Barstow Humane Society)
1. IDENTIFICATION
This ANIMAL SHELTERING SERVICES AGREEMENT (“Agreement”), effective as of the date of the last Party’s signature hereunder, is entered into by and between the City of Barstow (“CITY”), a California municipal corporation, and the Barstow Humane Society, (“Society” or “Consultant”), a California non-profit corporation (collectively, the “Parties”).
2. RECITALS
WHEREAS, City desires to contract with Society to provide animal sheltering services for the purpose of safeguarding the health and safety of City’s population of stray and unwanted animals; and
WHEREAS, City desires to promote the humane treatment of animals with holding times that provide ample opportunities for owners to reclaim their animals, adopters to view available animals and rescues to provide alternate housing solutions, in compliance with City policies and established laws; and
WHEREAS, City desires to provide assistance to Society for making improvements to their existing facility to house City animals and preserve their longstanding presence in the community; and
WHEREAS, Society has committed to provide the personnel with experience to provide such services; and
WHEREAS, Society has committed to contract for property and facility improvements including additional kennel space to provide City animal sheltering services; and WHEREAS, Society represents that it has the management capabilities, experience, qualifications, and resources to provide the City with animal shelter services by virtue of its experience, shelter facilities, and the training, experience, and education of its principals and employees; and
WHEREAS, the Parties desire to enter into this Agreement to contract for public animal sheltering services under the terms and conditions provided herein.
NOW, THEREFORE, for and in consideration of the mutual covenants, conditions and advantages herein stated, the Parties hereto agree as follows:
3. INCORPORATION OF RECITALS
The recitals to this Agreement are hereby incorporated into and constitute a part of this Agreement.
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4. DEFINITIONS
4.1. “Animal Control”: Animal Control includes, without limitation, responding to calls for service for animal related matters, investigating reports of animal cruelty, limits, aggressive dogs, bite reports, noise complaints, licensing of dogs, injured animals, deceased animal pick-up, and similar services.
4.2. "Animal Sheltering”: Animal sheltering includes, without limitation, an establishment that provides a temporary home for stray, lost, abandoned, or surrendered dogs, cats, and other animals that may be reunited with their owners, are offered for adoption, rescue, and similar services.
4.3. “City Animal Shelter”: “City Animal Shelter”: Facility or enclosure where stray, lost, abandoned or surrendered dogs, cats, and other animals are housed. For purposes of this contract refers to property owned by Society and contracted by City to provide "Animal Sheltering" services..
4.4. “Construction Project”: Society will make substantial improvements and/or renovations to its shelter facilities to increase and enhance its ability to provide animal shelter services to City, which said improvements will result in, without limitation, 40 open-air, temperature-controlled kennels with a wind break, solid roofs, and concrete floors with drains.
4.5. “Date of Completion”: The Date of Completion shall be the date when the Construction Project has been constructed in substantial conformance with its underlying construction contract documents so that the Shelter can be occupied or utilized for its intended purpose and after any required certificates of occupancy have been issued.
4.6. “Holding Periods”: Animals impounded into the Shelter pursuant to this Agreement are held a minimum number of business days in compliance with local and state laws.
4.7. “Impound”: The taking into custody of any animal: (1) found in violation of state and/or local laws and codes; (2) for the protection of animal or human health and/or safety; (3) surrendered by its owner; and/or (4) for any similar circumstances and the animal is housed in a shelter facility or transported to a veterinarian.
4.8. “Quarantine”: The strict confinement, for a specific amount of time, of an animal, either on private property or in a shelter (or similar) setting, as a result of an incident in which the circumstances may have allowed the exposure/transmission of the virus which causes the disease known as rabies to another animal or human.
4.9. “Scope of Services”: Such Animal Sheltering Services as are set forth in Society’s Scope of Services to City attached hereto as Exhibit A and incorporated herein by this reference.
4.10. “Spay/Neuter”: The surgical sterilization of any animal resulting in the inability of that animal to produce offspring. Neuter may indicate either male or female, although usually thought of as male, and spay refers to female. 383377.7 3
5. CAMPAIGN CONTRIBUTIONS
This Agreement is subject to Government Code Section 84308, as amended by SB 1439. That statute requires Society to disclose any campaign contribution by Society or Society’s agents to City Council-members or other City officials of more than $250 in the aggregate in the preceding 12 months. Society shall provide a signed copy of the attached Campaign Contribution Disclosure Form with Society’s execution of the Agreement.
6. TERM
6.1. There are three different terms provided for under this Agreement: (1) Preliminary Term, (2) Initial Term, and (3) Renewal Term.
6.1.1. Preliminary Term: The Preliminary Period shall commence immediately upon the execution of this Agreement by both Parties (“Preliminary Term Commencement Date”) and shall end at 11:59 p.m. on last day of the month in which the Date of Completion occurs (“Preliminary Term Expiration Date”). For example, if the Date of Completion is March 15, then the Preliminary Term Expiration Date shall be 11:59 p.m. on March 31.
6.1.2. Initial Term: The Initial Term shall commence at 12:00 a.m. on the date immediately following the Preliminary Term Expiration Date (“Initial Term Commencement Date”), shall be effective for a term of five years, and shall expire at 11:59 p.m. on the date immediately preceding the five-year anniversary date of the Initial Term Commencement Date (“Initial Term Expiration Date”).
6.1.3. Renewal Term: Upon the written agreement of the Parties entered into not less than 90 days prior to the Initial Term Expiration Date, the Initial Term shall be extended for one additional 5-year term, commencing at 12:00 a.m. on the date immediately following the Initial Term Expiration Date (“Renewal Term Commencement Date”) and expiring on the date immediately preceding the five-year anniversary date of the Renewal Term Commencement Date (“Renewal Term Expiration Date”). In the event of a term renewal, Society’s compensation will be adjusted as provided herein.
6.1.4. Except as specified herein or the context clearly indicates otherwise, all terms and conditions of this Agreement shall equally apply during the Preliminary Term, Initial Term, and Renewal Term (collectively, the “Terms”).
6.1.5. Notwithstanding any other provision in this Agreement, the Terms of this Agreement may be terminated earlier in accordance with section 22 below.
7. SOCIETY’S ANIMAL SHELTERING SERVICES
7.1. Services. Society shall provide the animal sheltering services within the corporate limits of City as outlined and specified in the Agreement. City shall have the right to request, in writing, changes in the Scope of Services. Any such changes mutually agreed upon by the parties, and any corresponding increase or decrease in compensation, shall be incorporated by written amendment to this Agreement. 383377.7 4
7.2. Coordination with City. In performing services under this Agreement, Society shall coordinate all contact with City through its Project Administrator.
7.3. Business License. Society shall obtain and maintain in force a City business license prior to commencing performance under and for the duration of this Agreement.
7.4. Animal Shelter. Society shall furnish and maintain during the term of this Agreement a building or enclosure within the city limits of the City of Barstow, to be known and designated as the “City Animal Shelter” which shall be suitable for the keeping and safe holding of all animals which are by law subject to impound.
Society will provide adequate shelter, maintain at all times sufficient employees necessary to care for the animals, and provide emergency veterinary services at the City Animal Shelter or their contract veterinarian.
7.5. Professional Standards. Society shall perform all work to the highest professional standards and customary level of care as ordinarily exercised by animal shelter providers providing similar services in a manner reasonably satisfactory to City.
Society shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the Political Reform Act (Government Code Section 81000 et seq.).
7.6. Avoid Conflicts. During the term of this Agreement, Society shall not perform any work for another person or entity for whom Society was not working at the Preliminary Term Commencement Date if such work would present a conflict interfering with Consultant’s performance under this Agreement. However, City may consent in writing to Consultant’s performance of such work.
7.7. Appropriate Personnel. Society represents that it has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by Society or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. ______________________________ shall be Society’s project administrator and shall have direct responsibility for management of Society’s performance under this Agreement. No change shall be made in Society’s project administrator without City’s prior written consent.
8. CAPITAL IMPROVEMENT PAYMENT
City agrees to pay Society $60,000 per year each year of the contract, including the initial fiveyear term and the additional five-year term, if the renewal occurs, in accordance with section 10 of this Agreement to fund the Construction Project and Society agrees to use said funds solely for that purpose. Improvements shall be made in compliance with pre-existing notices issued by City.
9. LINE OF CREDIT
Subject to the terms and conditions of a promissory note to be signed by the Parties (“Promissory Note”), after the Initial Term Commencement Date, City agrees to make advances to Society from 383377.7 5
time to time, not to exceed at any time the aggregate principal amount of $310,000.00 (“Line of Credit”), the proceeds of which shall be used solely to finance the Construction Project. Society’s obligation to repay advances under the Line of Credit shall be specified in the Promissory Note.
The rate of interest for the Line of Credit shall be 0.0% and the repayment term shall be 60 months, subject to acceleration upon early termination of this Agreement as specified in section 22 of this Agreement or upon material breach of this Agreement or the Promissory Note. Society’s Line of Credit repayments shall be deducted from City’s monthly payments to Society during the Initial Term of this Agreement. Once the Line of Credit is repaid, the Capital Improvements made under this Agreement and the Promissory Note will become the property and interest of Society with no rights of claim by City.
10. COMPENSATION
10.1. Payment and Receipt. City agrees to compensate Society for the services provided under this Agreement, and Society agrees to accept payment in accordance with this Agreement in full satisfaction for such services.
10.2. Maximum Payment for Services. The maximum amount of payment for animal shelter services during the first year of the Initial Term shall not exceed $423,000, unless City exceeds the allotted 2000 animals per year, and shall be subject to availability of other funds to City.
10.3. Preliminary Term Compensation. During the Preliminary Term, City shall pay Society for animal shelter services at a rate of $211.50 per animal. For services provided during the Preliminary Term, Society shall submit to City an invoice, on a monthly basis, for services performed pursuant to this Agreement in the prior month. Each invoice shall itemize the services rendered during the billing period and state the amount due for the invoice, and the total amount previously invoiced.
City shall seek to pay the invoice within 30 days.
10.4. Annual Base Rate. Beginning on the Initial Term Commencement Date, City shall pay to Society the sum of $423,000.00 per year (“Base Rate”) for its services provided under this Agreement, payable in 12 equal monthly installments of $35,250.00. City shall pay Society the Base Rate monthly installment payment in advance on the first day of each month.
10.5. Annual Base Rate Plus COLA. For Society’s services provided under this Agreement during the second and subsequent years of the Initial Term and during any Renewal Term, City shall pay to Society the Initial Base Rate plus an annual cost of living adjustment (“COLA”) per year (“Increased Base Rate”), payable in 12 equal monthly installments in advance on the first day of each month. The COLA shall be an amount equal to the annual percentage increase in the Consumer Price Index published by the Bureau of Labor Statistics of the U.S. Department of Labor (“CPI”), for All Urban Consumers for the Riverside-San Bernardino-Ontario, California region. The percentage increase is determined by comparing the published monthly index for December to the prior year index for December. There shall be no reduction in base rate should there be a decrease in CPI.
10.6. Capital Improvement Payment. After the Initial Term Commencement Date, City shall pay Society a capital improvement payment in the sum of $60,000.00, payable in 12 equal monthly installments of $5,000.00 per month for each year of 383377.7 6
the contract, including the initial five-year term and the additional five-year term, if the renewal occurs. City shall include this capital improvement payment as part of its monthly payments to Society paid under section 10.4 of this Agreement beginning on the Initial Term Commencement Date and continuing for all consecutive months thereafter of the contract.
10.7. Deduction for Promissory Note Repayment. In accordance with and subject to the terms of the Promissory Note, Society shall make monthly promissory loan repayments to City in 59 monthly installments of $5,167.00 and a final monthly installment of $5,147.00 (60 month repayment term). During the Initial Term and any Renewal Term, City shall deduct Society’s monthly promissory loan repayment amount from City’s monthly payments to Society.
10.8. Remittance of Animal Service Fees. Society shall remit all fees for animal services provided under this Agreement, excluding adoption fees, to City on a monthly basis by the last day of the month following the month in which the fees were collected by Society.
10.9. Invoices. Society shall submit to City a receipt on a monthly basis for services performed in the prior month pursuant to this Agreement. Each receipt shall identify the highest total yearly compensation payable to Society by City under this Agreement (e.g., Base Rate + applicable COLA), the services rendered during the billing period, the amount due for the prior month and the amount of payment already received from City, deductions made in accordance with section 10 of this Agreement, and the total amount previously paid.
10.10. Taxes. City shall not withhold applicable taxes or other payroll deductions from payments made to Society except as otherwise required by law. Society shall be solely responsible for calculating, withholding, and paying all taxes.
10.11. Additional Work. Society shall not be reimbursed for any expenses incurred for work performed outside the Scope of Services unless prior written approval is given by the City through a fully executed written amendment to this Agreement.
Society shall not undertake any such work without prior written approval of the Project Administrator. Payments for any services requested by City and not included in the Scope of Services shall be made to Society by City on a time-andmaterials basis using a mutually agreed upon standard fee schedule.
10.12. Disputes. The Parties agree to meet and confer at mutually agreeable times to resolve any disputed amounts contained in an invoice submitted by Society.
11. OWNERSHIP OF WRITTEN PRODUCTS
11.1. All reports, documents or other written material (“written products” herein) developed by Society in the performance of this Agreement shall be and remain the property of City without restriction or limitation upon its use or dissemination by City. Society may take and retain copies of such written products as desired, but no such written products shall be the subject of a copyright application by Society.
11.2. Society represents and warrants that Society has the legal right to utilize all intellectual property Society will utilize in the performance of its obligations 383377.7 7
pursuant to this Agreement. Society further represents that Society shall ensure City has the legal right to utilize all intellectual property involved in and/or resulting from Society’s performance of this Agreement.
12. RELATIONSHIP OF PARTIES
Society is, and shall at all times remain as to City, a wholly independent contractor. Society shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise to act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Society or any of Society’s employees, except as set forth in this Agreement. Society shall not represent that it is, or that any of its agents or employees are, in any manner employees of City.
12.1. Animal Sheltering Services Contract Meetings: Regular meetings with designees from the Barstow Humane Society and City of Barstow will be held once a month or as needed to ensure the quality of services and support by both parties.
13. CONFIDENTIALITY
All data, documents, discussion, or other information developed or received by Society or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Society without prior written consent by City. City shall grant such consent if disclosure is legally required. Upon request, all City data shall be returned to City upon the termination or expiration of this Agreement.
14. INDEMNIFICATION
14.1. The parties agree that City, its officers, agents, employees and volunteers should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, or any other cost to the extent arising out of or in any way related to the negligent, reckless, and/or willful misconduct of Society or any of its officers, employees, servants, agents, or subcontractors arising from the services under this Agreement.
Accordingly, the provisions of this indemnity provision are intended by the parties to be interpreted and construed to provide the City with the fullest protection possible under the law. Society acknowledges that City would not enter into this Agreement in the absence of Society’s commitment to indemnify and protect City as set forth herein.
14.2. To the fullest extent permitted by law, Society shall indemnify, hold harmless, and defend City, its officers, agents, elected officials, employees, and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property to the extent arising out of, pertaining to or relating to the negligence, recklessness, or willful misconduct of Society or any of its officers, employees, servants, agents, or subcontractors in 383377.7 8
the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of City’s choice.
14.3. City shall have the right to offset against the amount of any compensation due Society under this Agreement any amount due City from Society as a result of Society’s failure to pay City promptly any indemnification arising under section 14 of this Agreement that is ultimately determined by the court or mutually agreed to by the City and Society to have been caused in whole or in part by the negligence, recklessness, or willful misconduct of Society, or any of its officers, employees, servants, agents or subcontractors or related to Society’s failure to either (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers ’compensation laws.
14.4. The obligations of Society under this section 14 will not be limited by the provisions of any workers ’compensation act or similar act. Society expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
14.5. Society agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 14 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Society in the performance of this Agreement. In the event Society fails to obtain such indemnity obligations from others as required herein, to the fullest extent permitted by law, Society agrees to be fully responsible and indemnify, hold harmless, and defend City, its officers, agents, elected officials, employees, and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property to the extent arising out of, pertaining to or relating to the negligence, recklessness or willful misconduct of Society’s subcontractors or any other person or entity involved by, for, with or on behalf of Society in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of City’s choice.
14.6. City does not, and shall not, waive any rights that it may possess against Society because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost, or expense.
15. INSURANCE
15.1. During the term of this Agreement, Society shall carry, maintain, and keep in full force and effect insurance against claims for death or injuries to persons or damages to property that may arise from or in connection with Society’s performance of this Agreement. Such insurance shall be of the types and in the amounts as set forth below:
15.1.1. Commercial General Liability Insurance with coverage limits of not less than One Million Dollars ($1,000,000.00) per occurrence and a general aggregate limit of Two Million Dollars ($2,000,000.00) per project or location, including products and operations hazard, contractual insurance, 383377.7 9
broad form property damage, independent consultants, personal injury, underground hazard, and explosion and collapse hazard where applicable.
15.1.2. Automobile Liability Insurance for vehicles used in connection with the performance of this Agreement with minimum limits of One Million Dollars ($1,000,000) per claimant and One Million dollars ($1,000,000) per incident.
15.1.3. Worker’s Compensation insurance as required by the laws of the State of California.
15.2. Society shall require each of its subcontractors to maintain insurance coverage that meets all of the requirements of this Agreement.
15.3. The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least A: VII in the latest edition of Best’s Insurance Guide.
15.4. Society agrees that if it does not keep the aforesaid insurance in full force and effect, City may either (i) immediately terminate this Agreement; or (ii) take out the necessary insurance and pay, at Society’s expense, the premium thereon.
15.5. At all times during the term of this Agreement, Society shall maintain on file with City’s Risk Manager a certificate or certificates of insurance showing that the aforesaid policies are in effect in the required amounts and naming the City and its officers, employees, agents and volunteers as additional insureds. Society shall, prior to commencement of work under this Agreement, file with City’s Risk Manager such certificate(s).
15.6. Society shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two weeks prior to the expiration of the coverages.
15.7. The general liability and automobile policies of insurance required by this Agreement shall contain an endorsement naming City and its officers, employees, agents and volunteers as additional insureds. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty days’ prior written notice to City. Society agrees to require its insurer to modify the certificates of insurance to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” with regard to any notice provisions.
15.8. The insurance provided by Society shall be primary to any coverage available to City. Any insurance or self-insurance maintained by City and/or its officers, employees, agents or volunteers, shall be in excess of Society’s insurance and shall not contribute with it.
15.9. All insurance coverage provided pursuant to this Agreement shall not prohibit Society, and Society’s employees, agents or subcontractors, from waiving the right 383377.7 10
of subrogation prior to a loss. Society hereby waives all rights of subrogation against City.
15.10. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of City, Society shall either reduce or eliminate the deductibles or self-insured retentions with respect to City, or Society shall procure a bond guaranteeing payment of losses and expenses.
15.11. Procurement of insurance by Society shall not be construed as a limitation of Society’s liability or as full performance of Society’s duties to indemnify, hold harmless, and defend under section 14 of this Agreement.
16. MUTUAL COOPERATION
16.1. City shall provide Society with all pertinent data, documents and other requested information as is reasonably available for the proper performance of Society’s services under this Agreement.
16.2. In the event any claim or action is brought against City relating to Society’s performance in connection with this Agreement, Society shall render any reasonable assistance that City may require in the defense of that claim, action, or proceeding.
17. CONFIDENTIALITY
All data, documents, discussion, or other information developed or received by Society or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Society without prior written consent by City. City shall grant such consent if disclosure is legally required. Upon request, all City data shall be returned to City upon the termination or expiration of this Agreement.
18. RECORDS AND INSPECTIONS
Society shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Society under this Agreement. All such documents shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. City shall further have the right to make transcripts therefrom and to inspect all program data, documents, proceedings, and activities.
In addition, pursuant to Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds ten thousand dollars, all such documents and this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under the Agreement.
19. PERMITS AND APPROVALS
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Society shall obtain, at its sole cost and expense, all permits and regulatory approvals necessary in the performance of this Agreement. This includes, but shall not be limited to, encroachment permits and building and safety permits and inspections.
20. NOTICES
Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on:
(i) the day of delivery if delivered by hand, facsimile or overnight courier service during Society’s and City’s regular business hours; or (ii) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below (or to such other addresses as the parties may, from time to time, designate in writing).
If to CITY: If to SOCIETY:
City of Barstow Barstow Humane Society
Attention: City Manager Attention: Board President
220 E. Mt. View Street, Ste. A Address:
Barstow, CA 92311 Telephone:
Telephone: (760) 256-3531 Facsimile:
Facsimile: (760) 256-4472 E-Mail:
With courtesy copy to:
Matthew T. Summers, City Attorney
Colantuono, Highsmith & Whatley, PC
790 E. Colorado Blvd., Suite 850
Pasadena, CA 91101
Telephone: (213) 542-5719
Facsimile: (213) 542-5710
Email: [email protected]
21. SURVIVING COVENANTS
The parties agree that the covenants contained in Sections 9, 11, 12, 13, 14, 16.2, 17, 18, and 22 of this Agreement shall survive the expiration or termination of this Agreement.
22. TERMINATION
This Agreement shall remain in effect unless terminated by either party with or without cause by a 180-day prior written notice of such termination. City Manager shall acknowledge receipt of any termination notification received from Society. Society Board President shall acknowledge receipt of any termination notification received from City. The notice shall state the termination date. In the event this Agreement is terminated, Society shall be paid for services satisfactorily rendered up to the termination date, based upon the pro-rated monthly rate as set forth in Section 10 of this Agreement. If Society terminates this Agreement before it repays the Line of Credit, then upon Agreement termination, City shall have the right to accelerate the entire Line of Credit balance and demand immediate repayment.
23. GENERAL PROVISIONS
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23.1. Society shall not delegate, transfer, subcontract or assign its duties or rights hereunder, either in whole or in part, without City’s prior written consent, and any attempt to do so shall be void and of no effect. City shall not be obligated or liable under this Agreement to any party other than Society.
23.2. The captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are descriptive only and for convenience in reference to this Agreement. Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the section or paragraph thereof, as the case may be, and not such heading, shall control and govern in the construction of this Agreement. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular form and vice versa, in any place or places herein in which the context requires such substitution(s).
23.3. The waiver by City or Society of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or of any subsequent breach of the same or any other term, covenant or condition herein contained. No term, covenant or condition of this Agreement shall be deemed to have been waived by City or Society unless in writing.
23.4. Society shall not be liable for any failure to perform if Society presents acceptable evidence, in City’s sole judgment, that such failure was due to causes beyond the control and without the fault or negligence of Society.
23.5. Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. The exercise, the commencement of the exercise, or the forbearance of the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any of all of such other rights, powers or remedies. In the event legal action shall be necessary to enforce any term, covenant or condition herein contained, the party prevailing in such action, whether reduced to judgment or not, shall be entitled to its reasonable court costs, including accountants’, if any, and attorneys’ fees expended in such action. The venue for any litigation shall be San Bernardino County, California.
23.6. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to, the extent necessary to cure such invalidity or unenforceability, and in its amended form shall be enforceable. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
23.7. This Agreement shall be governed and construed in accordance with the laws of the State of California.
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23.8. All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. .
23.9. Society shall not discriminate against any employee or applicant for employment because of race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancerrelated), marital status, ancestry, or sexual orientation. SOCIETY shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancer-related), marital status, ancestry, or sexual orientation. Such action shall include, but not be limited to, the following:
employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; or in terms, conditions or privileges of employment, and selection for training, SOCIETY agrees to post in conspicuous places, available to employees and applicants for employment, the provisions of this nondiscrimination clause.
23.10. This Agreement shall be binding on successors and assigns of the parties.
23.11. Except as expressly stated herein, there is no intended third-party beneficiary of any right or obligation assumed by the parties.
23.12. This Agreement may be executed in multiple counterparts. Electronic, faxed, and PDF signatures shall have the same force and effect as handwritten signatures.
23.13. This Agreement constitutes the entire agreement between the Parties and supersedes and replaces all prior representations, understandings, undertakings, or agreements, whether written or oral and whether express or implied, of the Parties with respect to the subject matter hereof, including specifically, but without limitation, any prior Memorandum Agreements signed by Society concerning the provision of animal shelter services to City, in effect as of the Preliminary Term Commencement Date. Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed by City and Society.
23.14. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments, and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purpose of this Agreement and consummation of the transactions contemplated hereby. 383377.7 14
TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. “CITY” “SOCIETY”
City of Barstow Barstow Humane Society
By__________________________ By: _______________________________ Timothy Silva, Mayor Board President
Date:_______________ Date:__________________
Attest:
By: _______________________________
Andrea Flores, City Clerk
Date: __________________
Approved as to form:
By ______________________________________
Matthew T. Summers, City Attorney
Date: __________________
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EXHIBIT A
SCOPE OF SERVICES
1. Impound. Society shall impound and care for domestic and wild animals delivered to Society by City in accordance with all applicable local, state, and federal laws. Society shall provide adequate food, water, shelter, space, care, treatment, and transportation to all animals housed at the City Animal Shelter. Society shall provide a system for monitoring medical and other information on each sheltered animal. The animals subject to this Agreement are solely those animals originating from the incorporated jurisdiction of Barstow only. City reserves the right to impound animals at their discretion.
2. Records. Society shall initiate and maintain records of all animals by species, method of delivery, condition, location where the animals came from, and final disposition. Society shall submit animal sheltering data with each monthly invoice, including the following information: (a) Date of Impound, (b) Species, (c) Method of Delivery (Stray/Owner Surrender/ACO), (d) Address (where animal was found/living), (e) Final Disposition, and (f) Disposition Date. Data from these records shall be submitted to City with monthly billing invoices in a format approved by City. In January of each year, Society shall provide an annual report to City detailing the aforementioned data for the prior year.
2.1. City shall provide Society with documentation showing the date the animal was impounded, its location, and the animal control officer who impounded the animal with every animal impounded.
3. Pre-Delivery Veterinary Care. City staff shall have all animals requiring emergency veterinary care examined by a veterinarian prior to dropping the animal off at the City Animal Shelter.
4. Adoption/Redemption Services. Society shall provide animal adoption and redemption services for animals at the City Animal Shelter during normal business hours. Society shall photograph all impounded animals to allow public viewing on a designated website to facilitate reunification and adoption.
5. Business Hours. Society shall have animals available for public viewing at least five days a week. The City Animal Shelter shall be open to the public during regular business hours.
The City Animal Shelter’s regular business hours shall be:
5.1. Tuesday through Friday: 10:00 a.m. to 5:00 p.m.
5.2. Saturdays: 10:00 a.m. to 2:00 p.m.
5.3. The City Animal Shelter shall be closed Sundays, Mondays and on the holidays New Year’s Day, Christmas Day, Thanksgiving Day, and the 4th of July.
6. Dog Licenses. Society shall provide licensing information in all adoption packets and to pet owner’s recovering impounded pets that are not licensed. Pet licensing will be the responsibility of City. Society shall not collect or issue animal licenses.
7. Spay/Neuter. Society shall have all dogs and cats spayed/neutered prior to adoption.
Spaying and neutering fees shall be borne by the party adopting the animal. Society shall 383377.7 16
enforce the provision of Barstow Municipal Code Section 8.20.010 (requiring the spaying and neutering of Pit Bulls) including requiring the spaying/neutering of any Pit Bulls (as defined by the Code) which has been impounded due to the owner’s violation of Barstow Municipal Code Section 8.20.010, at the owner’s expense prior to release of the animal to its owner. City shall not be entitled to receive any portion of any adoption or spaying/neutering fees collected by Society. Society shall comply with the provisions of Food and Agricultural Code sections 30503 and 31751.3.
8. Veterinary Services. Society shall provide appropriate medical care for impounded injured and sick animals under the supervision of a licensed veterinarian.
9. Quality of Service. Society shall provide service to the public on matters covered in this Agreement consistent with established policies and procedures in the industry so as to promote courteous and efficient service and good public relations. Society shall cooperate with City to resolve any and all complaints filed with Society or City pertaining to services provided or to be provided under this Agreement. Society shall maintain and provide a record of complaints to City in accordance with section 18 of this Agreement.
10. Kennel and Cage Space.
10.1. Preliminary Term: During the Preliminary Term, Society shall keep a minimum of four dog kennels and four cat cages open for City staff to drop off animals daily, if needed.
10.2. Initial and Renewal Terms: During the Initial Term and any Renewal Term, Society shall keep a minimum of 10% of its dog kennels and 10% of its cat cages open for City staff to drop off animals daily, if needed.
10.3. Maximum Number of Dogs. During the Terms of this Agreement, the City recommends no more than two to four dogs per kennel; based on size of animals and industry standards. Society shall not house more than four dogs in any one kennel unless documentation exists that shows dogs came from the same household. . When animal populations are exceeding the available holding space provided by Society, CITY may approve a requirement to have owners schedule relinquishments in advance. Under no circumstance should Society refuse accepting animals from City’s service area without obtaining prior authorization from City.
11. Deliverables. Society shall shelter up to 2,000 animals per year impounded pursuant to this Agreement.
12. Shelter Standards. Society shall house and care for animals in a humane and secure manner. Society shall maintain the City Animal Shelter in a clean and sanitary condition at all times, consistent with generally applicable standards for similar facilities in San Bernardino County. Society shall operate the City Animal Shelter in conformity with American Humane Association Standards.
13. No Animal Control Services. Animal control services for the City of Barstow will be provided by City, specifically, the Barstow Police Department, and not Society. 383377.7 17
14. After-Hours Access. Society will provide the City’s animal control officers with access to drop-off animals after-hours (i.e., when the shelter is closed to the public). Society will work to streamline the intake process and allow access for City staff to deliver animals.
The drop-off procedures will be mutually established by Parties. Parties agree to fully cooperate in the integration of Animal Control and Animal Sheltering services.
15. Inspections. City shall have the right to conduct scheduled monthly inspections of the City Animal Shelter . Society shall cooperate in monthly City inspections of the City Animal Shelter to ensure meeting and exceeding minimum standards for sheltering of animals. A checklist based on industry standards and Best Practices will be established collectively by the Parties. The list will take into consideration on-going capital improvements and repairs being conducted by Society with a provision to document progress on compliance with the code enforcement correction list.
16. Emergency Plan. Society shall have an emergency plan for animal care and housing in the event of natural or manmade emergencies, such as fires, earthquakes, evacuations, and animal seizures through police enforcement actions.
17. Donations. All financial donations and donations of non-perishable personal property shall become the property of Society except upon the express written direction of the donor to the contrary.
18. Time is of the Essence. Time is of the essence in Society’s performance of services under this Agreement.
19. Compliance with Laws. Society shall provide its services and operate the City Animal Shelter consistent with City’s animal code (Barstow Municipal Code, title 8 – Animals). In the event that a term or provision of this Agreement conflicts with the provisions of City’s animal code, the provisions of the animal code shall control. Society shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the Political Reform Act (Government Code Section 81000 et seq.). Society will maintain all state and local permits and licenses as required for the operation of an animal shelter and animal adoption organization.
20. Cooperation with Health Department. Society shall cooperate with the California Department of Health Services and the health departments of all governing counties in matters pertaining to rabies and animal quarantine. In cooperation with the state and local health departments, Society will conduct animal inoculation programs as required.
21. Personnel. Society represents that it has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by Society or under its supervision, and all personnel engaged in the work shall be qualified to perform such services.
22. Equipment and Vehicles. Except as specifically provided herein, Society shall provide all equipment and materials required by Society to perform its obligations under this Agreement.
23. Non-Assignment/Non-Delegation. This Agreement covers professional services of a specific and unique nature. Except as otherwise provided herein, Consultant shall not 383377.7 18
assign or transfer its interest in this Agreement or delegate or subcontract any services to be performed without amending this Agreement.
24. Subconsultants. Society shall be responsible to City for all services to be performed under this Agreement. All subconsultants shall require prior written approval by City.
Society shall be liable and accountable for any and all payments, compensation, and federal and state taxes to all subconsultants performing services under this Agreement.
City shall not be liable for any payment, compensation, or federal and state taxes for any subconsultants.
25. Internal Changes. Society shall notify City, in writing, of any change in name, ownership or control of Society’s firm or of any subconsultant. Change of ownership or control of Society’s firm may require an amendment to the Agreement.
26. Emergency Contact. Society shall provide City with contact information for an emergency contact of shelter management outside regular business hours.