409164.2
ATTACHMENT 2
Second Amended and Restated
Animal Sheltering and Animal Control
Services Agreement (clean version)
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SECOND AMENDED AND RESTATED
ANIMAL SHELTERING AND ANIMAL CONTROL
SERVICES AGREEMENT
(City of Barstow / Barstow Humane Society)
1. IDENTIFICATION
This AMENDED AND RESTATED ANIMAL SHELTERING AND ANIMAL CONTROL SERVICES AGREEMENT ( A effective as of the date of the last signature hereunder, is entered into by and between the City of Barstow ( City a California municipal corporation, and the Barstow Humane Society, ( or a California non-profit corporation (individually, a collectively, the
2. RECITALS
WHEREAS, Society represented 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 services provided by Society are of an expert and technical nature; and WHEREAS, the Parties entered into an Animal Sheltering Services Agreement on or about December 19, 2024, pursuant to which Society agreed to provide the City with animal sheltering services for consideration and upon the terms and conditions as described in the Original Contract; and
WHEREAS, the City was not seeking animal control services at the time the Parties entered into the Original Contract; and
WHEREAS, the Parties previously amended the Original Contract by entering into the First Amended and Restated Animal Sheltering and Animal Control Services Agreement Amended that amended, restated, and replaced the Original Contract in its entirety to add animal control services being provided to City by Society for an additional $250,000.00 per year starting July 1, 2025, which said services are complimentary to animal sheltering services currently being provided to City; and
WHEREAS, the parties now wish to amend the First Amended Agreement to restate and replace the First Amended Agreement in its entirety to add after hours emergency call-out services that Society will provide at a rate of $150.00 per call out and make other minor revisions to the First Amended Agreement; and
WHEREAS, notwithstanding the superseding and replacement of the First Amended Agreement as set forth above, any obligations, liabilities, duties, or commitments that were due and outstanding or in breach under (a) the Original Agreement as of the Effective Date of the First Amended Agreement and remain due and outstanding of the Effective Date of this Agreement or (b) the First Amended Agreement as of the Effective Date, and shall continue and remain in full force and effect in accordance with their original terms. Each party retains all rights to enforce such outstanding obligations, liabilities, duties, commitments, and breaches. 409163.3 2
WHEREAS, Society is willing and able to render animal control services on the terms and conditions set forth in this Agreement; and
WHEREAS, this Agreement supersedes and replaces the Original Contract and any amendments thereto in their entirety; and
WHEREAS, this Agreement in no way amends, modifies, supersedes, replaces, or novates the Line of Credit Promissory Note and Loan Agreement or any other agreement entered into by and between Society and City.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions contained in this Agreement, the Parties mutually agree as follows:
3. INCORPORATION OF RECITALS
The recitals are an integral part of this Agreement and are hereby incorporated into and constitute a part of this Agreement.
4. DEFINITIONS
4.1. Kennels has the meaning set forth in Section 7.4 of this Agreement.
4.2. 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.
4.3. of 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 City Kennels can be occupied or utilized for its intended purpose and after any required certificates of occupancy have been issued.
4.4. Animals impounded into the City Kennels pursuant to this Agreement are held a minimum number of business days in compliance with local and state laws.
4.5. 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.
4.6. 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.
4.7. 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 409163.3 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 agents to City Council-members or other City officials of more than $500 in the aggregate in the preceding 12 months. Society shall provide a signed copy of the attached Campaign Contribution Disclosure Form with execution of the Agreement.
6. TERM
6.1. Animal Sheltering Services. Society shall provide animal sheltering services as provided herein to the City during the Construction Term, Initial Term, and any Renewal Term. Except as specified herein or when the context clearly indicates otherwise, all terms and conditions of this Agreement concerning provision of animal sheltering services shall equally apply during the Construction Term, Initial Term, and Renewal Term (collectively, the
6.1.1. Construction Term: The Construction shall commence on December 19, 2024 Construction Term Commencement and shall end at 11:59 p.m. on last day of the month in which the Date of Completion occurs Construction Term Expiration For example, if the Date of Completion is March 15, then the Construction Term Expiration Date shall be 11:59 p.m. on March 31 of that same month.
6.1.2. Initial Term: The Initial Term shall commence at 12:00 a.m. on the date immediately following the Construction Term Expiration Date Term Commencement 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 Term Expiration . 6.2. Animal Control Services. Society shall provide animal control services as provided herein to the City commencing on July 1, 2025 and ending on the Initial Term Expiration Date. Society shall provide animal control services as provided herein to the City during any Renewal Term.
6.3. 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 Term Commencement and expiring on the date immediately preceding the fiveyear anniversary date of the Renewal Term Commencement Date Term Expiration 6.4. Early Termination. Notwithstanding any other provision in this Agreement, any of the Terms of this Agreement may be terminated earlier in accordance with Section 21 below.
6.5. Review of Agreement for After Hours On-Call Services. The parties agree to meet and confer in good faith to review the terms and provisions of this Agreement in July 2026 (the "Review Date") related to after hours on-call services. Such 409163.3 4
review shall include an assessment of the Agreement's performance, effectiveness, and continued appropriateness for the parties' business relationship. The parties may, by mutual written agreement, modify, amend, or supplement this Agreement as a result of such review; provided, however, that the after-hours on-call services provided for in Exhibit B of this Agreement shall remain in full force and effect unless and until the parties execute a written amendment to this Agreement.
7. ANIMAL SHELTERING AND ANIMAL CONTROL SERVICES
7.1. Services. Society shall provide the animal sheltering and animal control services within the corporate limits of City as outlined and specified in the Agreement.
7.1.1. The scope of services for Animal Sheltering Services are set forth in Exhibit A, attached hereto and incorporated herein by this reference.
7.1.2. The scope of services for Animal Control Services are set forth in Exhibit B, attached hereto and incorporated herein by this reference.
7.1.3. 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.
7.2. Coordination with City. Except when responding to calls for service, 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. City Kennels. 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 Kennels 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 Kennels 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 and animal control providers providing similar services in a manner reasonably satisfactory to City.
7.6. 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 written complaints filed with Society or City (e.g., emails, letters, etc.) or negative online review pertaining to 409163.3 5
services provided or to be provided under this Agreement. Society shall maintain and promptly provide a record of complaints to City.
7.7. 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 Construction Term Commencement Date if such work would present a conflict interfering with performance under this Agreement. However, City may consent in writing to performance of such work.
7.8. Appropriate Personnel. Society represents that it has, or will secure at its own expense, all personnel required to perform the services set forth in this Agreement.
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.
Board President shall be Society s project administrator and shall have direct responsibility for management of performance under this Agreement. No change shall be made in Society s project administrator without City s prior written consent.
7.9. Donation of City Truck. City shall donate to Society one City truck as provided for in Exhibit C attached hereto and incorporated herein.
7.10. 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. All buildings donated by Fort Irwin to Society shall become the personal property of Society.
7.11. Time is of the Essence. Time is of the essence in performance of services under this Agreement.
7.12. Compliance with Laws. Society shall provide its services and operate the City Kennels consistent with animal code (Barstow Municipal Code, title 8 Animals). In the event that a term or provision of this Agreement conflicts with the provisions of 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.
7.13. 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.
7.14. Internal Changes. Society shall notify City, in writing, of any change in name, ownership, or control of firm. Change of ownership or control of firm may require an amendment to this Agreement.
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7.15. Veterinary Services. Society will ensure that impounded or captured injured or sick animals will receive appropriate animal care within the requirements of state law.
7.16. Veterinary Expenses. City shall be responsible for reimbursing Society for all reasonable and necessary veterinarian costs it incurs in obtaining veterinary care for injured or sick animals as required by law in the course of provision of animal sheltering and animal control services. Any veterinary care costs above $500.00 per animal must be approved by the City Manager or designee to be eligible for reimbursement.
7.17. 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.
7.18. 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.
7.19. Non-Assignment/Non-Delegation. This Agreement covers professional services of a specific and unique nature. Except as otherwise provided herein, Society shall not assign or transfer its interest in this Agreement without amending this Agreement.
7.20. Subconsultants. Society shall be responsible to City for all services to be performed under this Agreement. 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.
8. CAPITAL IMPROVEMENT PAYMENT
City agrees to pay Society $60,000 per year each year of the five-year term in accordance with section 10 of this Agreement Improvement to fund the Construction Project that will result in 40 open-air, temperature-controlled kennels with a wind break, solid roofs, and concrete floors with drains, and Society agrees to use said funds solely for that purpose.
Improvements shall be made in compliance with pre-existing notices issued by City. Any Capital Improvement Payments during a Renewal Term shall be in such amounts as may be negotiated by the Parties, if this Agreement is renewed.
9. LINE OF CREDIT
Subject to the terms and conditions of the Line of Credit Promissory Note and Loan Agreement by and between Society and City, dated April 7, 2025 ssory after the Initial Term Commencement Date, City agrees to make advances to Society from time to time, not to exceed at any time the aggregate principal amount of $310,000.00 of the proceeds of which shall be used solely to finance the Construction Project. obligation to repay advances under the Line of Credit are 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 21 of this Agreement 409163.3 7
or upon material breach of this Agreement or the Promissory Note. Line of Credit repayments shall be deducted from 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. Society agrees to perform and discharge, at its own cost and expense, all animal shelter and animal control services set forth in this Agreement. City agrees to compensate Society for such services, and Society agrees to accept payment in full satisfaction for such services, as follows:
10.1. Animal Sheltering Services. Society shall be compensated for its provision of animal sheltering services to the City as follows:
10.1.1. Maximum Payment for Services. The maximum amount of payment for animal shelter services per year shall not exceed the Animal Sheltering Services Base Rate plus any applicable COLA.
10.1.2. Construction Term Compensation. During the Construction Term, City shall pay Society for animal shelter services at a rate of $211.50 per animal.
For services provided during the Construction 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, state the amount due for the invoice, and state the total amount previously invoiced. City shall seek to pay the invoice within 30 days.
10.1.3. Annual Base Rate. Beginning on the Initial Term Commencement Date, City shall pay to Society the sum of $423,000.00 per year Animal Sheltering Services Base for its services provided under this Agreement, in 12 equal monthly installments of $35,250.00 to be paid in advance on or before the first day of each month commencing on the Initial Term Commencement Date.
10.1.4. Capital Improvement Payment. Beginning on the Initial Term Commencement Date, City shall pay to Society a capital improvement payment in the sum of $60,000.00 per year, payable in 12 equal monthly installments of $5,000.00 per month. City shall include this capital improvement payment as part of its monthly payments to Society paid under section 10.1.3 of this Agreement.
10.1.5. 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 monthly promissory loan repayment amount from monthly payments to Society.
10.2. Animal Control Services. Society shall be compensated for its provision of animal control services to the City as follows:
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10.2.1. Maximum Payment for Services. The maximum amount of payment for animal shelter services per year shall not exceed the Animal Control Services Base Rate plus any applicable COLA.
10.2.2. Compensation. Beginning July 1, 2025, City shall pay to Society the sum of $250,000.00 per year Control Services Base for its
animal control services provided under this Agreement, in 12 equal monthly installments of $20,833.33 to be paid in advance on or before the first day of each month commencing on the Initial Term Commencement Date.
10.3. General Compensation Terms Animal Sheltering and Control Services.
10.3.1. Cost of Living Increase. The Animal Sheltering Services Base Rate and the Animal Control Services Base Rate shall increase annually, effective on the anniversary date of the Initial Term Commencement Date, by 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 for All Urban Consumers for the Riverside-San
Bernardino-Ontario, California region (the 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. The increased annual Animal Sheltering Services Base Rate and Animal Control Services Base Rate shall each be payable in 12 equal monthly installments commencing on the effective date of the COLA and continuing each month thereafter on or before the first day of the month.
10.3.2. Rounding for Equal Monthly Payments. In determining the amount of monthly payments payable to Society under this Agreement, the City shall take the annual amount owed, divide that amount by 12, and round the quotient (result) to the nearest hundredth. Any unpaid annual compensation resulting from rounding shall be paid to Society in the 12th monthly payment. For example, the May 1, 2026 animal control services payment to Society shall be $20,833.37.
10.3.3. Licensing Fees and Other Fees. Society shall receive and retain all payments received for dog and cat licenses and related late fees. Society shall remit all other 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.
10.3.4. Reimbursements for Veterinary Expenses and Call-Out Services. City shall reimburse Society for all reasonable and necessary veterinarian costs incurred by Society under Section 7.16 of this Agreement and after hours call-out services provided under Section 3 of Exhibit B (Availability of Service and After Hours Call-Out Services). City will not be responsible for reimbursing Society for any other veterinary costs unless those costs are approved by the City Manager or their designee. Society shall submit to City an invoice on a monthly basis for veterinary costs and after hours callout services reimbursable under this agreement. Invoices for veterinary service reimbursements shall include an itemized list of services, their 409163.3 9
costs, and the identity of the animal that received veterinary care. Invoices for after hours call-out services shall indicate the date and time of the callout service and brief description of the services performed. Society may submit one invoices for the reimbursement of both veterinary expenses and after hours call-out services, provided that such invoices includes all information specified in this subsection. City shall seek to pay the invoice within 30 days.
10.3.5. 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.
10.3.6. 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.
10.3.7. Additional Work. Society shall not be reimbursed for any expenses incurred for work performed outside the scopes 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 scopes of services shall be made to Society by City on a time-and-materials basis using a mutually agreed upon standard fee schedule.
10.3.8. Disputes. The Parties agree to meet and confer at mutually agreeable times to resolve any disputed amounts contained in an invoice or receipt submitted by Society.
11. OWNERSHIP OF WRITTEN PRODUCTS
11.1. All reports, documents or other written material ( written 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 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.
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12. RELATIONSHIP OF PARTIES
12.1. Independent Contractor. 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.
12.2. Animal Sheltering and Control 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, 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 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 the performance of this Agreement. Such costs and expenses shall include reasonable fees incurred by counsel of 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 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, 409163.3 11
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 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, including specifically, but without limitation, provision of animal control and animal sheltering services under 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 two million dollars ($2,000,000.00) per occurrence and a general aggregate limit of three million dollars ($3,000,000.00) per project or location, including products and operations hazard, contractual insurance, 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. 409163.3 12
15.1.3. Worker s compensation insurance as required by the laws of the State of California with a minimum limit of one million dollars ($1,000,000) per accident for bodily injury or disease.
15.1.4. Errors and omissions liability insurance with coverage limits of not less than one million dollars ($1,000,000) per claim.
15.2. 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.
15.3. 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.
15.4. 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).
15.5. 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.
15.6. 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 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 with regard to any notice provisions.
15.7. 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.
15.8. All insurance coverage provided pursuant to this Agreement shall not prohibit Society, and Society s employees, or agents from waiving the right of subrogation prior to a loss. Society hereby waives all rights of subrogation against City.
15.9. 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.
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15.10. 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 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. 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.
18. PERMITS AND APPROVALS
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.
19. 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 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). 409163.3 14
If to CITY: If to SOCIETY:
City of Barstow
Attention: City Manager
220 E. Mt. View Street, Ste. A
Barstow, CA 92311
Telephone: (760) 256-3531
Facsimile: (760) 256-4472
Barstow Humane Society
Attention: Board President
Address: 2480 E Main St.
Barstow, CA 92311
Telephone: (442) 295-9002
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]
20. SURVIVING COVENANTS
The parties agree that the covenants contained in Sections 9, 11, 12, 13, 14, 16.2, 17, and 21 of this Agreement and in Exhibit C to this Agreement shall survive the expiration or termination of this Agreement.
21. 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.
22. GENERAL PROVISIONS
22.1. Unless the context clearly indicates otherwise, all terms and conditions of this Agreement shall equally apply to provision of animal sheltering services and animal control services under this Agreement.
22.2. Society shall not transfer, 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.
22.3. 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 409163.3 15
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).
22.4. 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.
22.5. 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.
22.6. 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 if any, and fees expended in such action. The venue for any litigation shall be San Bernardino County, California.
22.7. 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.
22.8. This Agreement shall be governed and construed in accordance with the laws of the State of California.
22.9. 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.
22.10. 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 (cancer- 409163.3 16
related), 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.
22.11. This Agreement shall be binding on successors and assigns of the parties.
22.12. Except as expressly stated herein, there is no intended third-party beneficiary of any right or obligation assumed by the parties.
22.13. This Agreement may be executed in multiple counterparts. Electronic, faxed, and PDF signatures shall have the same force and effect as handwritten signatures.
22.14. 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 Construction Term Commencement Date. Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed by City and Society.
22.15. 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.
TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. (signature page follows)
409163.3 17
City of Barstow Barstow Humane Society
By__________________________ By: _______________________________ Timothy R. Silva, Mayor Cindy Franey, Board President
Date:_______________ Date:__________________
Attest:
By: _______________________________
Andrea Flores, City Clerk
Date: __________________
Approved as to form:
By ______________________________________
Matthew T. Summers, City Attorney
Date: __________________
409163.3 18
EXHIBIT A
SCOPE OF SERVICES ANIMAL SHELTERING
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 Kennels. 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, (f) Disposition Date, (g) Reason for Impound, and (h) Name of Animal Control Officer. Data from these records shall be submitted to City with monthly billing invoices in a format approved by City. Society shall provide an annual report to City detailing the aforementioned data for the prior year on a date to be mutually agreed upon by the parties.
2.1. If City drops off animals to the City Kennels then the City shall provide Society with documentation showing the date the animal was impounded, its location, and the city staff 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 Kennels.
4. Adoption/Redemption Services. Society shall provide animal adoption and redemption services for animals at the City Kennels 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 Kennels shall be open to the public during regular business hours. The City 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 Kennels shall be closed Sundays, Mondays, and on the holidays New Day, Christmas Day, Thanksgiving Day, and the 4th of July.
5.4. The Parties may agree to expand or modify these hours by mutual agreement, with additional compensation to be paid to Society for the additional services.
6. Dog Licenses. Society shall provide licensing information in all adoption packets and to pet recovering impounded pets that are not licensed. Per Section 10.3.3, Society 409163.3 19
shall receive and retain all payments received for dog and cat licenses and related late fees. Society shall process licenses for adoption.
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 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 violation of Barstow Municipal Code Section 8.20.010, at the 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. Kennel and Cage Space.
8.1. Minimum Number of Kennels: During the Terms, Society shall keep a minimum of four dog kennels and two cat cages open for City staff to drop off animals daily, if needed.
8.2. 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.
9. Deliverables. Society anticipates sheltering approximately 2,000 animals per year impounded pursuant to this Agreement.
10. Kennel Standards. Society shall house and care for animals in a humane and secure manner. Society shall maintain the City Kennels 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 Kennels in conformity with American Humane Association Standards. 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.
11. After-Hours Access. Society will provide the staff with access to drop-off animals after-hours (i.e., when the kennels are closed to the public).
12. Emergency Plan. Society shall develop and maintain 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.
13. Emergency Contact. Society shall provide City with contact information for an emergency contact of shelter management outside regular business hours. 409163.3 20
14. Inspections. City shall have the right to conduct scheduled monthly inspections of the City Kennels. Society shall cooperate in monthly City inspections of the City Kennels to ensure meeting and exceeding minimum standards for sheltering of animals. The Parties will develop an inspection checklist based on industry standards and best practices. 409163.3 21
EXHIBIT B
SCOPE OF SERVICES ANIMAL CONTROL
1. Field Services. Society will provide sufficient resources and services for animal control field services. Services consist of Society personnel performing a variety of tasks utilizing appropriate equipment. These tasks include:
1.1. Promptly responding to reports of vicious, dangerous, and potentially dangerous animals that pose a threat to public safety;
1.2. Capturing and impounding stray domestic animals;
1.3. Capturing and impounding or returning domestic animals at large;
1.4. Using best efforts to promptly notify owners of captured and impounded animals of the impoundment and conditions whereby owners may regain custody of their animals;
1.5. Accepting and caring for animals surrendered by their owners provided that owners surrendering their animals satisfactorily prove their and their residency within the City of Barstow to Society;
1.6. Removing dead land animals from public and private property;
1.7. Educating the public and enforcing state laws and local ordinances, including leash laws, animal cruelty laws, and the laws relating to keeping wild or exotic animals;
1.8. Investigating appropriate cases for potential administrative actions pertaining to animals, preparing appropriate documentation for the use in pursuing administrative declarations, and assisting the City in its conduction of administrative hearings;
1.9. Assist the City in its conduction of administrative and criminal proceedings related to animals;
1.10. Rescuing ill, injured, or abused animals;
1.11. Assist the City in its enforcement of animal nuisance complaints, such as excessive animal noise; issuing administrative or criminal citations as appropriate unless directed otherwise by City;
1.12. Assist the City in its enforcement of the provisions of Barstow Municipal Code chapters 8.04 through 8.20 as provided therein;
1.13. Assist the City in its collection, accounting, and disbursement of all sums collected in accordance with Barstow Municipal Code section 8.08.140;
1.14. Assisting local law enforcement with their investigations when animals are involved, such as the service of search warrants and impounding animals as evidence or when necessary for those belonging to persons taken into custody; 409163.3 22
1.15. Responding to emergencies such as fires, earthquakes, floods, and other natural or manmade disasters to rescue and temporarily house animals, or to provide care for animals in evacuation zones;
1.16. Maintain a dispatch and communications center to receive calls for service and dispatch staff for field response as appropriate; and
1.17. Maintaining records in accordance with applicable laws and policies, including, without limitation, Barstow Municipal Code sections 8.08.040 and 8.14.020.
2. Society Responses on Private Property. For provision of animal control services on private property, the City will make Barstow Police Department escorts available to accompany Society, subject to Barstow Police Department staffing availability and operational needs.
3. Availability of Service and After Hours Call-Out Services. Society shall provide animal control services seven days a week between the hours of 8:30 a.m. and 5:00 p.m. The Parties may agree to expand or modify these hours by mutual agreement, with additional compensation to be paid to Society for the additional services. Beginning August 1, 2025, Society shall provide call-out animal control services outside of regular animal control service hours at a rate of $150.00 per call-out. Services in this subsection shall also so be subject to the provisions of Section 6.5.
4. Animal Control Officer Staffing. Society shall provide its animal control services through at least two full time animal control officers. Society shall, at sole expense, provide each animal control officer with a uniform appropriately suited for the job that presents a professional image similar to other types of animal control officers and that complies with the badge requirement of Barstow Municipal Code section 8.08.020.
5. Administrative Staffing. Society shall utilize its City Kennels staff to provide administrative animal control services, including, without limitation, receiving calls, dispatching animal control officers, and processing citations.
6. Staff Training. Society is solely responsible for ensuring that its employees performing services under this Agreement have received adequate training to perform their duties consistent with this Agreement.
7. Equipment. Society shall, at sole expense, obtain and maintain an active license for Chameleon/CMS or equivalent animal sheltering software. Except as expressly provided herein, Society shall be solely responsible for all costs incurred in performing the services set forth in this Agreement, which said costs may include, without limitation, vehicle maintenance, vehicle insurance, fuel, gloves, traps, nets, and leashes. 409163.3 23
EXHIBIT C
ANIMAL CONTROL TRUCK DONATION
1. Donated Vehicle. By the Initial Term Commencement Date, City shall donate and transfer ownership of the following vehicle Control to Society:
Year: ________ Make: ______________ Model: ______________ Color: __________ License Plate No.: _________________ VIN No.: _____________________________
2. Use. Society shall not sell, lease, trade, or otherwise transfer ownership of the Truck to any third party without prior written consent of the City. Society shall only use the Truck for the public purpose of providing animal control and animal sheltering services to the City under this Agreement.
3. Indemnity. The City shall not, under any circumstances, be liable for any damage or injuries to persons or property suffered or sustained in the use, condition, or operation of the Animal Control Truck. Society shall indemnify, hold harmless, and defend City, its officers, officials, agents, and employees, from and against any and all liabilities, losses, damages, costs, expenses (including attorney fees and costs), causes of action, suits, claims, and demands of any nature whatsoever arising out of or in any way related to this Agreement or or any third use of the Animal Control Truck.
4. Disclaimer of Warranties. The City makes no warranties, express or implied, with respect to the Animal Control Truck, including, without limitation, any warranty of condition, merchantability, fitness for a particular purpose, or title, whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise. Society accepts the Animal Control Truck is.