Agenda packet — Seal Beach City Council, September 11, 2023 (part 2 of 2)

6. Unimpaired Underlying Limits of Insurance
You warrant that the total limits as listed in the Schedule of Underlying Insurance shall be unimpaired as of the effective date of this policy. In the event such limits are impaired as of the effective date of this policy, this policy shall apply as if such limits of insurance were unimpaired. In the event of non -concurrent policy periods between this policy and any " underlying policies", only occurrences or claims that would be covered during the policy period of this policy shall be considered in determining the extent of any reduction or exhaustion of the underlying aggregate limits of insurance, and the insured shall retain liability for any resulting gap in insurance.

7. Singular and Plural Form of a Word
If the singular or plural form of a word is used in this policy, such word shall also include the other form as required in the context of the sentence using such word, as appropriate, including the words contained in Section V- DEFINITIONS below (for example: " underlying policy" and " underlying policies").

8. Service of Suit
It is agreed that in the event of our failure to pay any amount claimed to be due hereunder, we, at the request of the Insured, will submit to jurisdiction of a court of competent jurisdiction within the United States. Nothing in this condition constitutes or should be understood to constitute a waiver of our rights to commence an action in any court of competent jurisdiction in the United States, to remove an action to a United States District Court or to seek a transfer of a case to another court as permitted by the laws of the United States or any state in the United States. It is further agreed that service of process may be made upon us as provided in the Declarations with respect to Service of Suit, and that in any suit instituted against us, upon this policy, we will abide by the final decision of such court or of an appellate court in the event of an appeal.

Further, pursuant to any statute of any state, territory, or district of the United States which makes provision therefore, we hereby designate the Superintendent, Commissioner, Director of Insurance, or other officer specified for that purpose in the statute, or his or her successor or successors in office as our true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Insured or any beneficiary hereunder arising out of this contract of insurance, and hereby designate the Counsel listed in the Declarations with respect to Service of Suit as the person to whom the said officer is authorized to mail such process or a true copy thereof.

SECTION V - DEFINITIONS
The following Definitions apply to this policy:

1. " Followed policy" means the policy listed in Item 4. of the Declarations Page of this policy.

2. " Insured" means any person or organization that is an insured pursuant to the "followed policy".

3. " Named insured" means the person or entity listed in Item 1. of the Declarations Page of this policy.

4. " Retained limit" means the total applicable limits of all " underlying policies".

S. " Underlying insurer" means any of the insurers that are listed in the schedule of underlying insurance of this policy.

6. " Underlying policy" means each policy listed in the Schedule of Underlying Insurance forming a part of this policy and any other applicable underlying insurance, including any self-insured retentions.

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THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

PRIMARY AND NON- CONTRIBUTING INSURANCE ENDORSEMENT

DESIGNATED CONTRACT( S)
This endorsement modifies insurance provided under the following:

BUSINESS AUTO COVERAGE FORM

GARAGE COVERAGE FORM

SCHEDULE
Designated
Contract( s): All parties where required by a written contract With respect to the contract( s) designated in the Schedule above, it is agreed that the following subparagraph e. is added to SECTION IV - BUSINESS AUTO CONDITIONS, Paragraph B. 5. and SECTION V — GARAGE CONDITIONS, Paragraph B. 5.

S. Other Insurance
e. With respect to SECTION II - LIABILITY COVERAGE, where you are specifically required by a written contract designated in the Schedule above to provide insurance that is primary and non- contributory, and the written contract designated in the Schedule above so requiring is executed by you before any " accident", this insurance will be primary and the other insurance will not contribute with this insurance, but only to the extent required by that written contract.

All other terms and conditions of this Policy remain unchanged.

Endorsement Number:

Policy Number: 71PKG8949203
Named Insured: ACCO ENGINEERED SYSTEMS, INC
This endorsement is effective on the inception date of this Policy unless otherwise stated herein:

Endorsement Effective Date: 10 - 01- 2 0
00 CA0116 00 04 10 Page 1 of 1
Agenda Item G

AGENDA STAFF REPORT
DATE: September 11, 2023
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Iris Lee, Director of Public Works
SUBJECT: Approving Cooperative Agreement No. C-3-2434 with Orange County Transportation Authority for the
Countywide Signal Synchronization Baseline Project
________________________________________________________________ SUMMARY OF REQUEST:

That the City Council adopt Resolution 7442:

1. Approving Cooperative Agreement No. C-3-2434 with Orange County Transportation Authority for the Countywide Signal Synchronization Baseline Project; and,

2. Authorizing and directing the City Manager to execute Cooperative Agreement No. C-3-2434.

BACKGROUND AND ANALYSIS:

The Orange County Transportation Authority (“OCTA”) oversees traffic signal coordination across multiple jurisdictional boundaries as part of the Renewed Measure M2 (“M2”) Regional Traffic Signal Synchronization Program (“RTSSP”) to enhance countywide traffic flow and reduce congestion. OCTA has recently completed a Countywide Signal Synchronization Plan Study (“Study”) and secured Congestion Mitigation and Air Quality (“CMAQ”) funds to implement the Study recommendations. The Countywide Signal Synchronization Baseline Project (“Project”) would establish a baseline for the 2,500 traffic signalized intersections along regionally significant corridors within Orange County, including those in Seal Beach.

To participate in the Project, the City must enter into a cooperative agreement with OCTA defining specific terms and conditions, which generally includes:

OCTA Responsibilities
• Act as the project manager and be responsible for managing, procuring, implementing, and completing all aspects of the Project; • Coordinate with the City to develop and implement new timing plans; and,

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• Fund the Project.

City Responsibilities
• Participate and support the Project implementation;
• Provide available Project-related records;
• Maintain existing traffic signals in good operating condition; and, • Waive City permit fees.

The Project would be beneficial in multiple accounts including traffic flow enhancements beyond the City limits and eligibility for future OCTA-funded timing and equipment upgrade opportunities. As such, staff recommends approval of Cooperative Agreement No. C-3-2434.

ENVIRONMENTAL IMPACT:

This item is not subject to the California Environmental Quality Act (“CEQA”) because it is not a “project” as defined under Section 15378(b) of the state CEQA Guidelines. This item is also exempt from CEQA pursuant to Section 15061(b)(3) of the Guidelines because it can be seen with certainty that the approval of a cooperative agreement will not have a significant effect on the environment.

LEGAL ANALYSIS:

The City Attorney has approved the cooperative agreement and resolution as to form.

FINANCIAL IMPACT:

The City will be responsible to provide staffing resources to oversee Project implementation. No additional funding impacts are associated with this action.

STRATEGIC PLAN:

This item is not applicable to the Strategic Plan.

RECOMMENDATION:

That the City Council adopt Resolution 7442:

1. Approving Cooperative Agreement No. C-3-2434 with Orange County Transportation Authority for the Countywide Signal Synchronization Baseline Project; and,

2. Authorizing and directing the City Manager to execute Cooperative Agreement No. C-3-2434.

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SUBMITTED BY: NOTED AND APPROVED:

Iris Lee Jill R. Ingran
Iris Lee, Director of Public Works Jill R. Ingram, City Manager ATTACHMENTS:

A. Resolution 7442
B. Cooperative Agreement No. C-3-2434 with OCTA
RESOLUTION 7442

A RESOLUTION OF THE SEAL BEACH CITY

COUNCIL APPROVING AND AUTHORIZING THE

CITY MANAGER TO EXECUTE COOPERATIVE
AGREEMENT NO. C-3-2434 WITH THE ORANGE

COUNTY TRANSPORTATION AUTHORITY FOR THE

COUNTYWIDE SIGNAL SYNCHRONIZATION

BASELINE PROJECT
WHEREAS, the Orange County Transportation Authority (“OCTA”) works with local agencies to coordinate traffic signals across multiple jurisdictional boundaries as part of the Renewed Measure M (“M2”) Regional Traffic Signal Synchronization Program (“RTSSP”) to enhance countywide traffic flow; and, WHEREAS, OCTA secured Congestion Mitigation and Air Quality (“CMAQ”) funding for the Countywide Signal Synchronization Baseline Project (“Project”); and,
WHEREAS, the City and OCTA desires to enter into a cooperative agreement to implement the Project and collaborate in good faith in the management of their respective responsibilities.

NOW, THEREFORE, THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:

SECTION 1. The City Council hereby approves Cooperative Agreement No.

C-3-2434 by and between the City of Seal Beach and the Orange County Transportation Authority.

SECTION 2. The City Council hereby authorizes and directs the City Manager to execute Cooperative Agreement C-3-2434 on behalf of the City.

PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 11th day of September, 2023 by the following vote:

AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members

Thomas Moore, Mayor
ATTEST:

Gloria D. Harper, City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE }
CITY OF SEAL BEACH }
I, Gloria D. Harper, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7442 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 11th day of September, 2023.

Gloria D. Harper, City Clerk

Agenda Item H

AGENDA STAFF REPORT
DATE: September 11, 2023
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Michael Henderson, Chief of Police
SUBJECT: Approval of Animal Licensing Services Contract with PetData Inc.
________________________________________________________________ SUMMARY OF REQUEST:

That the City Council adopt Resolution 7443 approving and authorizing the City Manager to execute the Agreement with PetData Inc. to provide animal licensing services for the City of Seal Beach for a three-year term.

BACKGROUND AND ANALYSIS:

In May of 2022, the Seal Beach City Council directed the Seal Beach Police Department to provide in-house animal control services for the Seal Beach community. Previously, the City of Long Beach Animal Control provided animal licensing services to Seal Beach. As part of the transition to in-house animal control services, the City of Seal Beach will now be required to provide animal licensing. PetData Inc. was selected as the best provider for Seal Beach animal licensing services.

PetData Inc. is experienced in providing Animal Licensing Services for municipal corporations and is able to provide personnel with the requisite experience and background to carry out these duties. PetData Inc. has proposed a three-year agreement, which would extend from September 12, 2023 through June 30, 2026.

ENVIRONMENTAL IMPACT:

There is no environmental impact related to this item.

LEGAL ANALYSIS:

The City Attorney has reviewed and approved as to form.

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FINANCIAL IMPACT:

The cost of the three-year PetData Inc. Agreement is as follows. Animal Licensing Services will be $4.30 for each one-year license or replacement tag (amount is subject to adjustment as provided in the Agreement). This one-year license/replacement tag fee shall also be paid for each license donated or issued free of charge by the City of Seal Beach, and for each license that is issued as part of a bundling of city services or programs. A $2.50 collection service fee for each late fee, if any, will be paid by a Licensee during the term of this Agreement.

Residents wishing to have their animals licensed shall pay PetData Inc. directly, and PetData Inc. will then pay the City of Seal Beach the licensing fees minus the costs described above.

STRATEGIC PLAN:

This item is not applicable to the Strategic Plan.

RECOMMENDATION:

SUBMITTED BY: NOTED AND APPROVED:

Michael Henderson Jill R. Ingram
Michael Henderson, Chief of
Police
Jill R. Ingram, City Manager
Prepared by: Nick Nicholas, Support Services Bureau Captain ATTACHMENTS:

A. Resolution 7443
B. PetData Inc. Contract
RESOLUTION 7443

A RESOLUTION OF THE SEAL BEACH CITY COUNCIL

APPROVING AND AUTHORIZING THE AGREEMENT FOR
ANIMAL LICENSING SERVICES WITH PETDATA INC.

WHEREAS, in May 2022, the Seal Beach City Council directed the Seal Beach Police Department to provide in-house animal control services for the Seal Beach community; and,
WHEREAS, the City of Seal Beach will utilize PetData Inc. to license pets which reside in Seal Beach, and will ensure that pets are property vaccinated; and, WHEREAS, one of the qualified vendors for this project is PetData Inc. which is already providing pet licensing services to local municipalities and will provide a streamlined experience for residents wishing to license their animals; and, WHEREAS, City and PetData Inc. desire to enter into an Agreement for PetData Inc. to provide animal licensing services for the City for a three-year term.

NOW, THEREFORE, THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:

Section 1. The City Council hereby approves the Agreement for Animal Licensing Services with PetData Inc. as set forth in Exhibit “A”, attached hereto and incorporated herein by this reference as though set forth in full, with a threeyear term extending from September 12, 2023 through June 30, 2026, Section 2. The City Council hereby authorizes the City Manager and City Attorney to make minor revisions to the PetData Inc. Agreement that do not increase the not-to-exceed amounts for services set forth in the Agreement.

Section 3. The Council hereby directs the City Manager to execute the Agreement for Animal Licensing Services with PetData Inc. on behalf of the City.

PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 11th day of September, 2023 by the following vote:

AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members

Thomas Moore, Mayor
ATTEST:

Gloria D. Harper, City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Gloria D. Harper, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7443 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 11th day of September, 2023.

Gloria D. Harper, City Clerk
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AGREEMENT FOR ANIMAL LICENSING SERVICES
__________________________
THIS AGREEMENT FOR ANIMAL LICENSING SERVICES (“Agreement”) is made and entered into by and between the CITY OF SEAL BEACH a California charter city, hereinafter called “CITY,” and PETDATA, INC., a Texas for-profit corporation, hereinafter called “CONTRACTOR,” as of the date last signed by a party as reflected on the signature page of this Agreement (“the Execution Date”).

For good and valuable consideration, CITY and CONTRACTOR agree as follows:

1. SERVICES
For the consideration set forth below, CONTRACTOR agrees to provide to CITY the animal licensing services described under “CONTRACTOR’s RESPONSIBILITIES” in Exhibit A, attached hereto and incorporated herein by reference (collectively, the “Services”), upon the terms and conditions of this Agreement. The Services relate to CITY’s licensing and registration of pets. CITY agrees to perform “CITY’s RESPONSIBILITIES” described in Exhibit A. In the event of any conflict between any of the contents of Exhibit A and any of the provisions of this Agreement, the provisions of this Agreement will prevail.

2. OVERSIGHT AND COORDINATION
All Services shall be performed to the reasonable satisfaction of CITY, as reasonably determined by CITY’s Administrator or other person whom CITY shall from time to time designate to monitor the performance of the Services by CONTRACTOR, and in compliance with CITY’s Municipal Code and applicable California law and federal law. CITY agrees to promptly notify CONTRACTOR of the name and contact information of the person who will monitor the performance of the Services on behalf of CITY, and to promptly notify CONTRACTOR of any changes to CITY’S monitoring designee or the contact information for CITY’s monitoring designee.

3. PERFORMANCE OF SERVICES
CONTRACTOR acknowledges that, prior to signing this Agreement, CONTRACTOR has become familiar with the scope of the Services required under this Agreement and the animal control requirements of CITY’s Municipal Code and applicable California law and federal law. Subject to CONTRACTOR’s fulfillment of its obligations under this Agreement, the means, methods, timing, and manner of performing the Services shall be within the sole discretion of CONTRACTOR. CONTRACTOR may perform the Services at such location(s) that CONTRACTOR may from time to time determine, and shall not be required to perform any of the Services at a CITY location. CITY acknowledges that CONTRACTOR shall not be obligated to commence the performance of the Services until the Commencement Date, as hereinafter provided. CONTRACTOR shall not be responsible or liable to CITY or any third party for any delays, errors or omissions in the performance of the Services or any losses or damages sustained by CITY or any third party that are caused by (i) CITY or any of CITY’s employees or agents, (ii) the inaccuracy, incompleteness, or other insufficiency of any data furnished by or on behalf of CITY to CONTRACTOR under or in connection with this Agreement, or (iii) any other items furnished by or on behalf of CITY to CONTRACTOR under or in connection with this Agreement. - 2 -

4. CUSTOM SUPPLIES
If CITY requests that CONTRACTOR utilize specific supplies in connection with the performance of the Services, such as, for example, forms, brochures, or rabies books, CITY will provide those supplies to CONTRACTOR without charge.

5. BANK ACCOUNTS
Licensing fees and any other amounts that are collected by CONTRACTOR for the benefit of CITY under this Agreement will be deposited into an account of one of the following types that is from time to time designated by CITY (a “Bank Account”):

A. [Not Applicable.]
B. A separate account established and maintained by CONTRACTOR at a bank or other financial institution selected by CONTRACTOR in which will be deposited funds that relate solely to this Agreement (a “Maintained Account”).

When a Maintained Account is closed, any funds remaining in the account shall be remitted in accordance with Section 9B.

6. COMPENSATION TO CONTRACTOR
In consideration of the Services, CONTRACTOR shall be entitled to the following compensation:

A. Basic Fees.

CITY shall pay to CONTRACTOR the following fees for all animal licenses issued during the term of this Agreement, regardless of whether they are issued by CITY, CONTRACTOR, veterinarians, or any other persons:
1) $4.30 for each one-year license or replacement tag (which amount is subject to adjustment as provided below). This one-year license/replacement tag fee shall also be paid for each license donated or issued free of charge by CITY, and for each license that is issued as part of a bundling of CITY services or programs.
2) [Not Applicable.]
3) $2.50 collection service fee for each late fee, if any, paid by a Licensee during the term of this Agreement.

The license/replacement tag fee provided for in Section 6A, clause 1), above, will be adjusted as follows during any of the following periods that fall within the term of this Agreement: (a) commencing on the third (3rd) annual anniversary of the Execution Date and continuing until the fifth (5th) annual anniversary of the Execution Date, the license/replacement tag fee provided for in Section 6A, clause 1), above, will be $4.40; and (b) if the term of this Agreement is for more than five (5) years, then, commencing on the fifth (5th) annual anniversary of the Execution Date and continuing on each annual anniversary of the Execution Date thereafter throughout the remaining term of this Agreement, the license/replacement tag fee provided for in clause 1), as previously adjusted, will increase by an amount equal to the lesser of either (a) three percent (3%) of the fee under clause 1) that is in effect immediately prior to the respective anniversary, or (b) the increase in the Consumer Price Index (CPI) for the 12-month period immediately preceding each annual anniversary; and the fee, as so increased, will thereupon become the license/replacement tag fee payable under Section 6A, clause 1) unless and until further adjusted in accordance with this clause (b). As used herein, the term “Consumer Price Index” - 3 -
or “CPI” means the CPI for All items in Los Angeles-Long Beach-Anaheim, CA, all urban consumers, not seasonally adjusted.

An animal license will be considered “issued” for purposes of this Agreement upon CONTRACTOR’s completion of the physical processing of the tag, assignment of registration number and completion of all procedures to provide the license to the applicant during the term of this Agreement upon payment of the applicable fee(s), regardless of the means, method, program, process, or agency used for the issuance or registration of the license. Without limiting the generality of the foregoing, an animal license that is donated or issued free of charge by the CITY as determined in CITY’s sole discretion, or that is issued as part of a bundling of CITY services or programs, will be considered “issued” for purposes of this Agreement upon CITY’s notification to CONTRACTOR of such free or donated license or bundling. .

In implementing the preceding provisions of this Section 6A, the parties agree that CONTRACTOR’s minimum aggregate fees under this Section 6A clause 1) (license/replacement fee) and Section 6A clause 3) (collection service fee for late fee) are $6,000.00 per calendar year. In order to assure the payment of such minimum aggregate annual fees to CONTRACTOR, the parties agree that if the aggregate fees payable to CONTRACTOR under this Section 6A clause 1) and Section 6A clause 3) for a calendar month would, but for the application of this sentence, be less than $500.00, then the aggregate fees payable to CONTRACTOR under this Section 6A clause 1) and Section 6A clause 3) for that calendar month will be $500.00. However, the foregoing minimum $500.00 monthly amount will not be applicable if the aggregate fees paid to CONTRACTOR under this Section 6A clause 1) and Section 6A clause 3) have already equaled or exceeded, or in the opinion of CONTRACTOR are reasonably expected to otherwise equal or exceed, $6,000.00 for that calendar year. If the aggregate annual fees paid to CONTRACTOR under this Section 6A clause 1) and Section 6A clause 3) during any calendar year do not equal or exceed $6,000.00, then CITY shall pay an amount equal to the positive difference between (i) the amount previously paid to CONTRACTOR for that calendar year and (ii) $6,000.00, upon demand by CONTRACTOR. The $6,000.00 minimum annual amount shall be prorated for any partial calendar year during the term of this Agreement or upon termination sooner under this Agreement. No delay or failure on the part of CONTRACTOR in imposing or collecting the aforesaid monthly minimum amount shall affect CONTRACTOR’s right to receive the aforesaid minimum aggregate annual fees or to collect the aforesaid minimum aggregate monthly amount either then or in the future. CITY acknowledges that the aforesaid minimum fee amounts apply only to the fees payable to CONTRACTOR under this Section 6A, clause 1) and clause 2), and do not include, by way of example and not by way of limitation, any Start-Up Fee payable to CONTRACTOR under Section 6B or any Additional Service Fees or Costs payable to CONTRACTOR under Section 6C.

The fees paid to CONTRACTOR under clause 1) or 3) of this Section 6A are further subject to reasonable adjustment in the event that CITY adds, modifies, or eliminates any fees that are charged to Licensees during the term of this Agreement. CITY and CONTRACTOR agree to negotiate any such reasonable adjustments in good faith.

As used in this Agreement, the term “Licensee” refers to any person who applies for an animal license to be issued by or on behalf of CITY and pays the applicable License fee.

B. Start-Up Fee.

CITY shall pay to CONTRACTOR, a $1,000, one-time only, “Start-Up Fee”. The Start-Up Fee is due and payable within fifteen business days after the Execution Date. There are no Start-Up Fees for term extensions or any renewals of this Agreement that may hereafter be entered into by the parties.

C. Additional Service Fees or Costs.
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The following fees or cost reimbursements will apply to the extent that the corresponding services described below are requested by CITY:
1) Cost of Bank Account. CITY will be responsible for the following out-of-pocket costs related to any Bank Account: monthly maintenance fees; stop payment fees; and return check fees.

CITY will reimburse CONTRACTOR on a monthly basis for such out-of-pocket costs for a Bank Account that are paid by CONTRACTOR, through deductions made by CONTRACTOR in accordance with Section 9B. CITY may request copies of the bank statements for a Maintained Account at any time and CONTRACTOR will provide available bank statements for that Maintained Account within five business days after a request is received by CONTRACTOR.
2) Supply Fee. If CITY requests changes to supplies or notices that it has previously approved, including but not limited to fee or program changes, CITY will be responsible for the actual costs associated with changing, replacing or discontinuing the use of the previously approved supplies. If CITY terminates this Agreement for any reason other than for cause, CITY will remain responsible for the actual cost of supplies purchased on its behalf prior to the date of any notice of termination.

D. Charges to Licensees.

CITY agrees that CONTRACTOR may charge and collect the following fees directly from Licensees, and CONTRACTOR shall be entitled to retain any such fees so collected as part of CONTRACTOR’s compensation under this Agreement, except as otherwise provided below. The following fees shall be in addition to the fees set forth in Section 6A, Clause 1) and 3), and Section 6C (supply fee), above. The following fees shall not be included in determining whether the monthly $500 aggregate or annual $6,000 aggregate has been reached under Section 6A.

1) $2.00 for each on-line transaction completed in by a Licensee. 2) CONTRACTOR may charge a fee to a Licensee of no more than $25.00 (or, if lower, the maximum amount permitted by applicable law from time to time in effect) for each check or other payment from that Licensee that is returned uncollected for any reason. Any such returned item fee related to a Maintained Account that is actually collected shall be deposited into the Maintained Account and shall be for the benefit of CITY.

E. Non-Appropriation of Funds.

Notwithstanding Sections 6A through 6D, payments to be made to CONTRACTOR by CITY for any Services performed within the current fiscal year are within the current fiscal budget and within an available, unexhausted fund. In the event that CITY does not appropriate sufficient funds for payment of CONTRACTOR’s Services beyond the current fiscal year, this Agreement shall cover payment for CONTRACTOR’s Services only to the conclusion of the last fiscal year in which CITY appropriates sufficient funds and shall automatically terminate at the conclusion of such fiscal year.

7. MODIFICATIONS OF SERVICES
If an authorized representative of CITY requests in writing that CONTRACTOR provide Services in addition to those described in this Agreement, and CONTRACTOR agrees to provide those additional Services, then CONTRACTOR shall be entitled to additional compensation for those additional Services as shall be agreed upon by CONTRACTOR and CITY in a written modification to this Agreement that is signed by CITY and CONTRACTOR prior to the provision of such additional services. CONTRACTOR shall not be required to - 5 -
perform any such additional Services unless and until the parties have entered into a written modification of this Agreement. Without limiting the other types of services that may be considered to be outside of the scope of the Services described in this Agreement, the following types of Services would be considered to be outside of the scope of the Services described in this Agreement and, therefore, the subject of additional compensation to CONTRACTOR: customized software projects; requests for new features in CONTRACTOR’s software; or requests for CONTRACTOR to implement new procedures or operations. CITY may determine after the Execution Date that certain portions of the Services are no longer necessary, in which event CITY shall notify CONTRACTOR of the portions of the Services that are no longer required, and CONTRACTOR shall be relieved of the responsibility for performing those portions of the Services. However, there shall be no adjustment in CONTRACTOR’s compensation hereunder for any portions of the Services that CONTRACTOR is not required to perform.

8. REPORTS
A. Reports from CONTRACTOR. Within 15 business days after the end of each calendar month during the term hereof, CONTRACTOR will submit an animal licensing summary report for the preceding calendar month to CITY in a format that is mutually agreed upon by CITY and CONTRACTOR, based on CITY’s needs.

Any such report may be transmitted electronically or by any other means.

B. Reports from CITY (Over-the-Counter Sales). In the event that CITY sells licenses over-the-counter, within ten calendar days after the end of each calendar month during the term hereof, CITY will submit a report to CONTRACTOR of all license fees that CITY has received during the preceding calendar month from Licensees, veterinarians or any other source other than CONTRACTOR that have been retained. Any such report may be transmitted electronically or by any other means.

9. PAYMENTS
A. [Not applicable.]
B. Maintained Account Used. If and for so long as a Maintained Account is utilized hereunder, the following provisions shall apply):

Within 15 business days after the end of each calendar month, CONTRACTOR shall remit to CITY the residual amount, if any, of all license fees collected by CONTRACTOR hereunder during the preceding calendar month after deducting therefrom all fees and reimbursements due CONTRACTOR pursuant to Section 6A through 6D.

If at any time the funds in the Maintained Account are not sufficient to fully pay amounts due to CONTRACTOR hereunder, then CONTRACTOR may recoup any shortfall from any subsequent payments due to CITY under this paragraph until all sums due CONTRACTOR have been fully paid.

C. Direct Collections by CITY. If CITY collects any animal license fee or any other amount that is subject to this Agreement directly from a Licensee, veterinarian or other source, other than CONTRACTOR, CITY may either forward the amount collected to CONTRACTOR within fifteen business days for deposit into a Maintained Account, if a Maintained Account is in effect, or retain the amount. If CITY retains the amount CITY shall report the amount so collected to CONTRACTOR in accordance with Section 8B so that the fee(s) due CONTRACTOR hereunder with respect to the amount collected by CITY may be determined and paid in accordance with this Agreement.

10. TERM
The initial term of this Agreement will commence on the Execution Date and will expire at the close of business on the last day of the ____36____ full calendar month after the Commencement Date, unless this Agreement is sooner terminated in accordance with other provisions of this Agreement. - 6 -

11. TRANSITION PHASE
The period beginning on the Execution Date and expiring at the close of business on the 60th day thereafter is referred to as the “Transition Phase.” CONTRACTOR shall begin processing licenses within a reasonable time following the Transition Phase subject to CITY’s timely fulfillment of its obligations under this Section 11.

CONTRACTOR, in its discretion, may begin processing licenses prior to the expiration of the Transition Phase.

CITY acknowledges that any delay in the performance of its obligations under this Section 11 may result in a delay in the commencement of the Services. The date on which CONTRACTOR commences the processing of licenses hereunder is referred to in this Agreement as the “Commencement Date.” CONTRACTOR shall notify CITY of the Commencement Date within a reasonable period before or after the Commencement Date.

During the Transition Phase:

A. License Data.

CITY shall provide historical license data files consisting of licenses older than 90 days within fifteen days after the Execution Date. The said historical data shall be made available to CONTRACTOR in an electronic format that is readily importable by CONTRACTOR.

B. Deliverables.

Within ten days after request from CONTRACTOR, CITY shall provide to CONTRACTOR agreed upon supplies, data, feedback, process information, the initial designation regarding the Bank Account under Section 5, and required approvals for items such as form designs (collectively, “Deliverables”). Deliverables may be requested throughout the Transition Phase.

C. Tags.

CITY shall purchase, at CITY’s expense, and cause to be delivered to CONTRACTOR license tags that meet CONTRACTOR’s specifications, which have been provided to CITY.

12. PERMITS AND REQUIREMENTS
A. Permits.

CONTRACTOR shall obtain the necessary permits(s), if any, required by CITY or any other governmental entity for the performance of the Services. CITY agrees to provide CONTRACTOR with a list of any and all such permits, including, without limitation, a CITY business license, and to cooperate and assist CONTRACTOR in good faith to aid CONTRACTOR in obtaining any such permits in a timely fashion.

B. Legal Requirements.

CONTRACTOR shall, in performing the Services under this Agreement, comply with all federal, state, county, or CITY statutes, laws, codes and ordinances, as amended, that are directly applicable to CONTRACTOR’s performance of the Services. CITY shall notify CONTRACTOR of changes to laws, codes or ordinances affecting CONTRACTOR’s performance of Services under this Agreement of which CITY obtains actual knowledge during the term of this Agreement.

13. COVENANTS REGARDING DATA
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CONTRACTOR agrees that it will not, without CITY’s consent, use personal data collected on behalf of CITY other than for the performance of the Services or other uses permitted by this Agreement or under applicable law. Further, CONTRACTOR agrees that it will not sell, or intentionally transfer or release, to any third party personal data that CONTRACTOR has collected in performing the Services, except as may otherwise be required by this Agreement or applicable law, and that it will take commercially reasonable measures to prevent the unauthorized release of any such third party personal data. CONTRACTOR shall at all times comply with California Civil Code Section 1798.80, et seq., and Section 1798.100, et seq. (the California Consumer Privacy Act of 2018).

For purposes of this section, “City Data” means any and all City data, including animal licensing data and PII, provided or made accessible by the CITY to, or handled, used, transmitted, or stored by, CONTRACTOR in connection with this Agreement. As between CONTRACTOR and the CITY, the CITY owns any and all City Data. CONTRACTOR is provided a limited license to access City Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display City Data only to the extent necessary to provide the Services. CONTRACTOR shall: (a) keep and maintain City Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose City Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement, and applicable law; (c) allow access to City Data only to those employees of CONTRACTOR who are directly involved with and responsible for providing the Services; and, (d) not use, sell, rent, transfer, distribute, or otherwise disclose or make available City Data for CONTRACTOR’s own purposes or for the benefit of anyone other than CITY without CITY’s prior written consent.

Without limiting CONTRACTOR’s obligation of confidentiality as further described herein, CONTRACTOR shall be responsible for establishing, maintaining, and providing a written description to CITY of, a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that comply with or are substantial similar to the security controls identified in the current version of NIST SP800-53, and that is designed to: (a) ensure the security and confidentiality of the City Data; (b) protect against any anticipated threats or hazards to the security or integrity of the City Data; (c) protect against unauthorized disclosure, access to, or use of the City Data; (d) ensure the proper disposal of City Data; and, (e) ensure that all employees, agents, and subcontractors of CONTRACTOR, if any, comply with all of the foregoing. In no case shall the safeguards of CONTRACTOR’s data privacy and information security program used to protect City Data be less stringent than the safeguards used by CONTRACTOR for its own data.

The Services include handling credit card information. Therefore, the CONTRACTOR shall comply at all times with all applicable Payment Card Industry Data Security Standards (PCI-DSS). CONTRACTOR agrees and warrants that it is responsible for the security of “cardholder data” that CONTRACTOR possesses, stores, processes or transmits on behalf of the CITY, and for any impact on the security of CITY’s cardholder data environment adversely affected by any failure of the CONTRACTOR to maintain compliance with provisions of the PCI-DSS applicable to the Services.

Any and all cloud storage shall be in compliance with ISO/IEC 27001 - 27018, as applicable, or successor standards thereto, and shall be conducted entirely within the continental United States.

In the event of any act, error or omission, negligence, misconduct, or breach that permits any unauthorized access to, or that compromises or is suspected to compromise the security, confidentiality, or integrity of City Data or the physical, technical, administrative, or organizational safeguards put in place by CONTRACTOR that relate to the protection of the security, confidentiality, or integrity of City Data, CONTRACTOR shall, as applicable:
(a) notify CITY as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence; (b) cooperate with CITY in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by CITY; (c) in the case of PII, at CITY’s sole election, (i) notify the affected individuals who comprise - 8 -
the PII as soon as practicable but no later than is required to comply with applicable law including, but not limited to, the provisions of California Civil Code Section 1798.82 and Section 1798.100, et seq., or, in the absence of any legally required notification period, within five (5) calendar days of the occurrence; or, (ii) reimburse CITY for any costs in notifying the affected individuals; (d) perform or take any other actions required to comply with applicable law as a result of the occurrence; (e) without limiting CONTRACTOR’s obligations of indemnification as further described in this Agreement, indemnify, defend, and hold harmless CITY for any and all claims and liabilities, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from CITY in connection with the occurrence up to the limits of CONTRACTOR’s Cyber Liability policy or Data Protection Insurance required herein.

Upon the termination of this Agreement, CONTRACTOR agrees to return or transfer to CITY, in a mutually acceptable format, all City Data including all animal licensing data maintained by CONTRACTOR under this Agreement within 15 business days after CONTRACTOR has received all sums due CONTRACTOR under this Agreement.

14. INDEMNITY
To the full extent permitted by law, CONTRACTOR agrees to defend, indemnify and hold harmless CITY and its elected and appointed officials, officers, employees, servants, agents, designated volunteers, and those City agents serving as independent contractors in the role of CITY officials (collectively “CITY Indemnitees”) from and against any and all claims, liabilities, lawsuits, judgments, costs and expenses for bodily injury (including death), personal injury, property damage and/or other harm or loss for which recovery of damages or any other remedy of any kind is sought, suffered by any person or persons, arising out of CONTRACTOR’s breach of this Agreement and/or CONTRACTOR’s negligence or willful misconduct in the performance of the Services under this Agreement, except that CONTRACTOR’s duty to defend, indemnify and hold harmless CITY Indemnitees shall not include any acts or omissions to the extent arising out of the sole negligence or willful misconduct of CITY Indemnitees. In the event of joint and concurring responsibility of CONTRACTOR and CITY Indemnitees, responsibility and indemnity, if any, shall be apportioned comparatively. The provisions of this paragraph are solely for the benefit of the parties hereto and are not intended to create or grant any rights, contractual or otherwise, in or to any other person or entity.

CITY does not, and shall not, waive any rights that it may possess against CONTRACTOR because of the acceptance by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant to this Agreement. The indemnities and obligations in this Section 14 shall apply regardless of whether or not any insurance policies are determined to be applicable to any claims asserted against CITY or any of the other CITY Indemnitees, or any insurance proceeds are made available to CITY.

15. INSURANCE REQUIREMENTS
CONTRACTOR shall procure, pay for, and maintain during the term of this Agreement:

A. Commercial General Liability Insurance with a minimum combined single limit coverage of $1,000,000 per occurrence, and a $2,000,000 General Aggregate Limit for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. The City and its elected and appointed officials, officers, employees, servants, agents, designated volunteers, and those City agents serving as independent contractors in the role of City officials, shall be named as additional insureds.

B. Workers Compensation Insurance in the amount required by applicable federal and state statutes having jurisdiction or employees engaged in the performance of the work or services. or proof of exemption from any Workers’ Compensation insurance requirements; and Employer’s Liability insurance coverage of not less than $1,000,000 per accident, $1,000,000 disease for each employee, and $1,000,000 disease policy limit. - 9 -
C. Data Compromise/Identity Restoration Insurance or other Data Protection Insurance approved by CITY.

CONTRACTOR shall furnish evidence of such coverage to CITY prior to starting any work or providing any Services hereunder, and will provide 30 days’ written notice of policy lapse or cancellation, or of a material change in policy terms. CONTRACTOR shall waive, and each insurance policy required by this Section 15 shall waive all rights of subrogation. All policies shall comply with any and all other terms and conditions required by the CITY’s risk manager.

CONTRACTOR does not own any vehicles. However, CONTRACTOR does have coverage for non-owned vehicles under its commercial general liability policy. Therefore, CONTRACTOR does not carry and shall not be obligated to carry separate automobile liability coverage.

D. Any deductibles or self-insured retentions applicable to insurance policies required herein must be declared to and approved by CITY prior to CONTRACTOR obtaining such insurance policy. In no event shall any insurance policy required in this Agreement have a deductible, self-insured retention, or other similar provision (including any fronting component) in excess of $50,000 without prior written approval of CITY in its sole discretion. At the option of CITY, either the insurer shall reduce or eliminate such deductibles or selfinsured retentions as respects CITY, its officers, elected and appointed officials, employees, volunteers, and those CITY agents acting as independent contractors in the role of CITY officials; or CONTRACTOR shall procure a bond guaranteeing payment of any losses, damages, expenses, costs or settlements up to the amount of such deductibles or self-insured retentions.

E. Other Insurance Provisions. In addition to the foregoing, the policies are to contain, or be endorsed to contain, the following additional provisions:
1) General Liability, Automobile Liability (if any) and Umbrella / Excess Liability Coverage (if any).
a) Additional Insured Endorsement. CITY, its officers, elected and appointed officials, employees, volunteers, and those agents acting as independent contractors in the role of CITY officials, are to be covered as an additional insured as respects defense and indemnity against claims seeking recovery for: liability arising out of activities performed by or on behalf of CONTRACTOR; products and completed operations of CONTRACTOR; premises owned, occupied, or used by CONTRACTOR; or automobiles owned, leased, hired, or borrowed by CONTRACTOR. The coverage shall not extend to any indemnity coverage for the sole active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Civil Code § 2782(b), and shall contain no special limitations on the scope of protection afforded to CITY, its officers, elected and appointed officials, employees, volunteers, and those agents acting as independent contractors in the role of CITY officials.
b) Primary and Non-Contributory. The Agreement insurance coverage shall be primary insurance as respects to the CITY, its officers, elected and appointed officials, agents, employees, volunteers, and those CITY agents acting as independent contractors in the role of CITY officials. Any insurance or self-insurance maintained by the CITY, its officers, elected and appointed officials, agents, employees, volunteers, and those CITY agents acting as independent contractors in the role of CITY officials shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
c) Separate Coverage. Except with respect to the limits of the liability, CONTRACTOR’s insurance shall apply separately to each insured against whom claim is made, or suit is brought and shall provide that an act or omission of one of the insureds shall - 10 -
not reduce or void coverage to the other insureds. CONTRACTOR’s insurance shall not exclude coverage for suits or claims brought by or on behalf of one insured against any other insured.
d) Contractual Liability. The general liability and umbrella policies shall be endorsed to include contractual liability.
2) All Coverages
a) 30-day Notice of Cancellation. Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to CITY. b) Waiver of Subrogation. Each insurance policy required by this Agreement shall provide that CONTRACTOR and insurer waive any and all rights of subrogation against CITY, its officers, elected or appointed officials, agents, employees, volunteers, and those agents acting as independent contractors in the role of CITY officials for losses arising from work performed by CONTRACTOR for CITY.
3) Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If CONTRACTOR maintains higher limits than the minimums shown above, CITY requires and shall be entitled to coverage for the higher limits maintained by CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to CITY.

E. Insurance is to be placed with insurers authorized to do business by the Insurance Commissioner in the State of California, with a rating by A.M. Best’s of no less than A, Class VII, and satisfactory to the City. All insurers shall be licensed by or holding admitted status in the State of California.

F. CONTRACTOR shall furnish CITY with certificates of insurance and with original endorsements affecting coverage required by this Section. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms provided by CITY. Where, by statute, CITY’s workers’ compensation-related forms cannot be used, equivalent forms approved by the Insurance Commissioner are to be substituted. All certificates and endorsements are to be received and approved by CITY before any Services commence, and shall evidence that all premiums have been paid for the entire forthcoming policy period. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time. The delivery to CITY of any certificates of insurance or endorsements hereunder which do not comply with the requirements set forth in this Agreement shall not waive CITY’s right to require such compliance.

G. If CONTRACTOR fails to obtain and maintain the insurance required hereunder, CITY shall have the right, but not the obligation, to obtain the same or similar insurance in the name and account of CONTRACTOR in which event CONTRACTOR shall pay the cost thereof and furnish upon demand all information that may be requested by CITY to permit CITY to obtain all such required coverage on behalf of CONTRACTOR. CITY shall have the right to offset (without recourse by CONTRACTOR) against any amounts owing to CONTRACTOR, amounts CITY reasonably incurs in obtaining insurance required of CONTRACTOR herein. - 11 -
H. The procurement of the insurance required in this Agreement or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of CONTRACTOR’s obligation to indemnify CITY or any of its officers, elected or appointed officials, agents, employees, volunteers, or those CITY agents acting as independent contractors in the role of CITY officials under any provision of this Agreement.

I. Neither CITY nor any of CITY’s officers, agents, employees, volunteers, or those CITY agents acting as independent contractors in the role of CITY officials make any representation that the types of insurance and the limits specified to be carried by CONTRACTOR under this Agreement are adequate to protect CONTRACTOR. If CONTRACTOR believes that any such insurance coverage is insufficient, CONTRACTOR shall provide, at its own expense, such additional insurance as CONTRACTOR tor deems adequate.

J. All subcontractors shall comply with all of the requirements stated in this Agreement. CONTRACTOR shall furnish CITY with separate certificates and endorsements for each subcontractor.

16. TERMINATION
A. Expiration.

If the term of this Agreement expires and is not extended in accordance with other provisions of this Agreement, then CONTRACTOR shall be paid all amounts due CONTRACTOR for animal licenses or renewals under Section 6A with respect to all periods through the date of expiration, including with respect to animal licenses or renewals that are in process at the time of expiration.

B. Termination For Cause by CITY.

If CONTRACTOR materially breaches this Agreement and fails to cure the breach within 30 days after CITY notifies CONTRACTOR in writing of the breach and specifies the details of the breach, CITY may terminate this Agreement immediately upon notice to CONTRACTOR. In the event of such termination, CONTRACTOR shall be entitled to payment for all amounts due CONTRACTOR for animal licenses or renewals under Section 6A with respect to all periods through the date of termination, including with respect to animal licenses or renewals that are in process at the time of termination.

C. Termination for Convenience by CITY or CONTRACTOR.

CITY or CONTRACTOR may terminate this Agreement for convenience upon not less than 90 days prior written notice to the other party. Upon such termination, CONTRACTOR shall be entitled to payment for all amounts due CONTRACTOR hereunder with respect to all periods through the date of termination.

Notwithstanding any other provision of this Agreement, upon the effective date of termination, no further fees, reimbursements, costs or other amounts shall be due and owing CONTRACTOR under Section 4A through 4D or any other provision of this Agreement.

17. UNFORESEEN CIRCUMSTANCES
CONTRACTOR shall not be responsible for any delay or omission in the performance of any of CONTRACTOR’s obligations under this Agreement to the extent caused by natural disaster, power outages, war, civil disturbance, labor dispute or other cause beyond CONTRACTOR's reasonable control.

CONTRACTOR shall provide notice to CITY of any event described in this Section within ten (10) business days after the occurrence of such event. CITY shall have no obligation to pay for any Services not actually provided by CONTRACTOR.

18. RECORDS/AUDIT

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in accordance with this Section. The provisions of this Section shall not govern the means of submission of invoices by CONTRACTOR to CITY under this Agreement.

20. CONTRACTOR’S SYSTEM
CITY acknowledges that CONTRACTOR has developed and coordinated proprietary means and methods of performing the Services and related know-how, skills, and property (collectively, the “System”). The System includes, among other items, an interactive website, databases, software, and related items. The System is special and unique to CONTRACTOR and has been developed by CONTRACTOR at great cost and expense to CONTRACTOR. CITY acknowledges that CITY is not acquiring any rights in or to the System, and that the System is and will remain the sole and exclusive property of CONTRACTOR. CITY further acknowledges and agrees that any information that CITY obtains related to the use, formulation or operation of the System that is not generally known is CONFIDENTIAL, may only be used by CITY for the limited purposes described in this Agreement, and may not be disclosed to any third parties except as may be required under applicable law including but expressly not limited to the California Public Records Act (Cal. Gov. Code Section 7920.000 et seq.), subpoena, or court order, or with CONTRACTOR’s prior, express written consent in CONTRACTOR’s sole discretion. Upon the termination of this Agreement, and subject to any applicable California or CITY records retention laws, ordinances or policies, any information and materials, in whatever media or format, related to the System that CITY has in its possession will be returned to CONTRACTOR or destroyed at CONTRACTOR’s option. CITY agrees that it will not attempt to discover, duplicate, or replicate the System in any manner.

21. MISCELLANEOUS
A. Governing Law; Venue.

This Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue for any legal or equitable action arising out of this Agreement shall be in the Superior Court for the County of Orange, or the federal District Court for the Central District of California.

B. Relationship of Parties.

The relationship of CITY and CONTRACTOR is that of independent contractors. Nothing in this Agreement is intended to create a partnership or joint venture between the parties, to establish a fiduciary relationship between the parties, or to render either party liable or responsible for any debts, liabilities or other obligations of the other party.

C. Entire Agreement.

This Agreement, including any exhibits hereto, embodies the complete agreement of the parties hereto, and supersedes all oral or written previous or contemporary agreements or understandings between the parties relating to any of the matters herein. This Agreement may not be amended or otherwise modified except in a writing executed by both parties. The expiration or other termination of this Agreement shall not extinguish any right or remedy existing at the time of termination.

D. Severability.

In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Agreement shall be considered as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement.
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E. Assignment; Binding Effect.

Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, the transfer of CONTRACTOR’s interest in this Agreement to an affiliate of CONTRACTOR or in connection with a merger, consolidation, sale of substantially all of CONTRACTOR’s assets, or business combination involving CONTRACTOR shall not be deemed to be an assignment in violation of this Section, provided that such transferee shall be subject to all of the terms and conditions of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and, where permitted, assigns.

F. General.

All references in this Agreement to sections and other subdivisions refer to corresponding sections and other subdivisions of this Agreement unless the context indicates otherwise. Titles appearing at the beginning of any such sections or subdivisions are for convenience only and shall not constitute part of such sections or subdivisions and shall be disregarded in construing the language contained in such sections or subdivisions.

These words “this Agreement”, “this instrument”, “herein”, “hereof”, “hereby”, “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. Words in the singular form shall be construed to include the plural and vice versa, unless the context otherwise requires. Words in any gender (including the neutral gender) shall include any other gender, unless the context otherwise requires. Examples shall not be construed to limit, expressly or by implication, the matter they illustrate. The word “includes” and its derivatives shall mean “includes, but is not limited to” and corresponding derivative expressions. The term “or” includes “and/or.” All exhibits attached to this Agreement are incorporated herein by reference. No consideration shall be given to the fact or presumption that one party had a greater or lesser hand in drafting this Agreement. All references herein to “$”, “dollars”, or other sums of money shall refer to U.S. Dollars. References in this Agreement to “business days” shall refer to days other than Saturdays, Sundays, or other days on which CITY offices are closed. Any references in this Agreement to “days” other than business days shall refer to calendar days. Time is of the essence of this Agreement. No delay or forbearance in asserting any right or enforcing any obligation under this Agreement shall constitute a waiver of such right or obligation.

G. Authorization.

Each of the parties represents and warrants to the other that this Agreement has been duly authorized by all necessary corporate or governmental action on the part of the representing party and that this Agreement is fully binding on such party.

H. Counterparts.

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. It shall not be necessary for each party to sign each counterpart, and separate signature pages may be attached to any counterpart in order to make a complete counterpart. For purposes of the execution of this Agreement or any amendment hereto or modification hereof, a signature transmitted by facsimile, computer file or other electronic means shall be fully binding as an original signature.
[Signature page follows]

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president, and (ii) the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation.)

PROOF OF AUTHORITY TO BIND CONTRACTING PARTY

REQUIRED
Approved as to Form:

By: ___________________________
Nicholas Ghirelli, City Attorney
Exhibit A – Page 1

EXHIBIT A
Description of Services
This exhibit is attached to and a part of the above and foregoing Agreement for Animal Licensing Services (Agreement). Terms used in this exhibit that are not defined in this exhibit but which are defined elsewhere in the Agreement shall have the respective meanings given to them in the other provisions of the Agreement. In the event of any conflict between any of the provisions of this exhibit and the other provisions of the Agreement, the other provisions of the Agreement shall control.

CONTRACTOR RESPONSIBILITIES

1. Process License Applications
A. Receive and process animal license applications through the mail.

B. Provide online licensing and process applications initiated through CONTRACTOR’s website.

C. Enter new and renewal license applications into CONTRACTOR’s proprietary database.

D. Deposit, or transmit for deposit, all receipts collected for license fees, with the exception of those payments made via credit card, into a Bank Account.

E. Mail license tags within 10 business days after receipt of payment and complete documentation as required by local ordinance and/or CITY policy.

F. Update license information in CONTRACTOR’S database and issue replacement tags as needed.

G. If CONTRACTOR collects any payments due CITY from Licensees via credit card transactions that are paid to CONTRACTOR, those payments will be deposited, or transmitted for deposit, into a Bank Account within 15 business days after the end of the calendar month in which collected.

2. Mail License Notices
A. Mail renewal and reminder notices for expiring animal licenses. Renewal notices will be mailed in the month prior to the license expiration date, or as otherwise agreed upon between CONTRACTOR and CITY.

B. Mail billing notices to pet owners who have vaccinated a pet against rabies but have not licensed, if CITY collects rabies vaccination reports from veterinarians.

3. Customer Service for Licensing Program
A. Provide customer service to pet owners via phone, email and mail, and respond to requests in a timely fashion.

B. Provide customer service to CITY staff, and respond to CITY requests in a timely fashion.

C. Provide online access to licensing data to appropriate personnel via CONTRACTOR’s proprietary website, at no additional charge.

4. Manage Reports from Authorized Registrars and Veterinary Clinics A. Process and enter license sales records from any registrars and veterinary clinics authorized to sell animal licenses.
1) Track tag inventories at all authorized registrars, and reconcile reports. 2) Invoice authorized registrars for licenses sold as needed Exhibit A – Page 2
B. Process and enter rabies vaccination records from local veterinary clinics if rabies reporting is required by CITY.

C. Follow up with delinquent clinics and registrars and report delinquent clinics and registrars to CITY as needed.

5. Provide veterinarians and other authorized registrars with reasonable quantities of supplies (reporting forms, applications or vaccination certificates, citizen mailing envelopes, etc.) necessary to sell license tags and/or report rabies vaccinations to CONTRACTOR. Supplies are to be printed in one color with the design and layout to be determined by CONTRACTOR.

6. Reporting to CITY
A. Send reports to CITY within 15 business days after the end of each month including the number of licenses sold at each location.

B. Provide statistical and fiscal reconciliation reports to CITY or as requested within a timely manner. Depending on the information requested, CONTRACTOR can provide most reports within five business days.

C. Process donations on behalf of CITY when a donation is made with the purchase of a license, if CITY requests donations be collected.

D. Provide an online tag search to the public if CITY wishes to have CONTRACTOR’s online tag search enabled.

CITY RESPONSIBILITIES

1. Purchase license tags to CONTRACTOR’s specifications and ship them to CONTRACTOR.

CONTRACTOR recommends that tags be shipped directly from tag vendor to CONTRACTOR to reduce shipping costs.

2. In the event that CITY sells licenses over-the-counter, report CITY license sales electronically, if retained, or by mail at least monthly by the 10th calendar day of the month for the prior month’s sales.

3. Give CONTRACTOR at least 60 days’ notice of license fee or ordinance changes.

4. Respond to CONTRACTOR inquiries in a timely fashion.

5. Provide feedback to CONTRACTOR regarding program and customer matters.

Agenda Item I

AGENDA STAFF REPORT
DATE: September 11, 2023
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Michael Henderson, Chief of Police
SUBJECT: Approval of Emergency Animal Veterinary Services Contract with Compassion-First Pet Hospitals - AVIM LP
d/b/a Pacific Care Pet Emergency and Specialty (Pacific Care Pet Emergency)
________________________________________________________________ SUMMARY OF REQUEST:

That the City Council adopt Resolution 7444:

1. Approving and awarding a Professional Services Agreement to Compassion-First Pet Hospitals - AVIM LP d/b/a Pacific Care Pet Emergency and Specialty (Pacific Care Pet Emergency) to provide emergency animal veterinary services for the City of Seal Beach for a oneyear term in accordance with the fee schedule set forth in the Agreement and in a not-to-exceed amount of $40,000 for the Original Term; and,

2. Authorizing the City Manager to approve additional services up to the cumulative not-to-exceed amount of $10,000 in connection with the provision of emergency animal veterinary services under the Agreement for the Original Term; and,

3. Authorizing and directing the City Manager to execute the Agreement.

BACKGROUND AND ANALYSIS:

In May of 2022, the Seal Beach City Council directed the Seal Beach Police Department to provide in-house animal control services for the Seal Beach community. Previously, the City of Long Beach Animal Control provided animal services to Seal Beach. As part of the transition to in-house animal control services, the City of Seal Beach needed to locate an emergency veterinary provider to provide emergency services during hours in which our dedicated animal shelter (WAGS) has no emergency veterinarian on-duty, such as during nights, weekends, and holidays. Pacific Care Pet Emergency was selected as the best provider for Seal Beach animal emergency veterinary services.

Page 2 ends

Pacific Care Pet Emergency is experienced in providing such Animal Emergency Veterinary Services for municipal corporations and is able to provide personnel with the required experience and background to carry out these duties. Pacific Care Pet Emergency has proposed a one-year agreement, which would extend from September 12, 2023 through June 30, 2024.

The cost of the one-year Pacific Care Pet Emergency Agreement is as follows and is dependent on the number of sick or injured animals transported to receive treatment. The City of Seal Beach will pay Contractor in accordance with the fee schedule set forth in Exhibit B for Services and expenses incurred in the performance of this Agreement, but in no event will the City pay more than the total not-to-exceed amount of $40,000. However, The City Manager may authorize extra work to fund unforeseen conditions in a total not-to-exceed amount of $10,000 for the Original Term.

All treatment provided to any sick or injured animal will be approved first by a member of the Seal Beach Police Department Animal Control Command Staff and will be evaluated on a case-by-case basis.

ENVIRONMENTAL IMPACT:

There is no environmental impact related to this item.

LEGAL ANALYSIS:

The City Attorney has reviewed and approved as to form.

FINANCIAL IMPACT:

Adequate funding has been included in the Fiscal Year 2023-24 Budget.

STRATEGIC PLAN:

This item in not applicable to the City of Seal Beach Strategic Plan.

RECOMMENDATION:

That the City Council adopt Resolution 7444:

Page 3 ends

3. Authorizing and directing the City Manager to execute the Agreement.

SUBMITTED BY: NOTED AND APPROVED:

Michael Henderson Jill R. Ingram
Michael Henderson, Chief of
Police
Jill R. Ingram, City Manager
Prepared by: Nick Nicholas, Support Services Bureau Captain ATTACHMENTS:

A. Resolution 7444
B. Pacific Care Pet Emergency Contract
RESOLUTION 7444

A RESOLUTION OF THE SEAL BEACH CITY COUNCIL

APPROVING AND AUTHORIZING THE AGREEMENT FOR

EMERGENCY ANIMAL VETERINARY SERVICES WITH
COMPASSION-FIRST PET HOSPITALS - AVIM LP d/b/a
PACIFIC CARE PET EMERGENCY AND SPECIALITY.

WHEREAS, in May 2022, the Seal Beach City Council directed the Seal Beach Police Department to provide in-house animal control services for the Seal Beach community; and,
WHEREAS, pursuant to the Seal Beach City Charter, Seal Beach Municipal Code Chapter 3.20 establishes a central purchasing system including procedures for competitive bidding and exemptions from competitive bidding; and, WHEREAS, Seal Beach Municipal Code Section 3.20.025(C) provides for an exemption from competitive bidding requirements for purchases of professional services, including without limitation, architectural services; bond services; election services; engineering services; insurance services; legal services; public relations services; real estate services; and solid waste disposal services; and
WHEREAS, the City of Seal Beach (City) previously selected the Wetlands and Wildlife Care Center (WAGS) to provide an animal shelter and certain wildlife animal services for the City; and
WHEREAS, as part of the transition to in-house animal control services, the City needed to locate an emergency veterinary provider to provide emergency services during hours in which the City’s dedicated animal shelter (WAGS) has no emergency veterinary onduty, such as during nights, weekends, and holidays; and Compassion-First Pet Hospitals - AVIM LP d/b/a Pacific Care Pet Emergency and Specialty (Pacific Care Pet Emergency) was selected as the best provider for Seal Beach animal emergency veterinary services; and
WHEREAS, the City will utilize Pacific Care Pet Emergency to provide emergency veterinary care to sick and/or injured animals; and,
WHEREAS, all treatment provided to any sick or injured animal will be approved first by a member of the Seal Beach Police Department Animal Control Command Staff and will be evaluated on a case-by-case basis; and
WHEREAS, City and Pacific Care Pet Emergency desire to enter into an Agreement for to provide emergency animal veterinary services for the City for a one-year term.

NOW, THEREFORE, THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:

Section 1. The City Council hereby approves the Agreement for Emergency Animal Veterinary Services with Pacific Care Pet Emergency as set forth in Exhibit “A”, attached hereto and incorporated herein by this reference as though set forth in full, with a one-year term extending from September 12, 2023 through June 30, 2024, in accordance with the fee schedule set forth in the Agreement and in a total not-to-exceed amount of $40,000 for the Original Term.

Section 2. The City Council hereby authorizes the City Manager to approve additional services in the cumulative not-to-exceed amount of $10,000 in connection with the provision of emergency animal veterinary services under the Agreement for the Original Term.

Section 3. The Council hereby directs the City Manager to execute the Agreement for Emergency Animal Veterinary Services with Pacific Care Pet Emergency on behalf of the City.

PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 11th day of September, 2023 by the following vote:

AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members

Thomas Moore, Mayor
ATTEST:

Gloria D. Harper, City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Gloria D. Harper, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7444 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 11th day of September, 2023.

Gloria D. Harper, City Clerk
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PROFESSIONAL SERVICES AGREEMENT
for
Emergency Veterinary Care Services
Between
City of Seal Beach
211 8th Street
Seal Beach, CA 90740
&
Compassion-First Pet Hospitals - AVIM LP d/b/a
Pacific Care Pet Emergency and Specialty
2752 White Road
Irvine, CA 92614
(949) 653-2846
This Agreement (“the Agreement”) is made as of September 11, 2023 (the “Effective Date”), by and between Compassion-First Pet Hospitals - AVIM LP d/b/a Pacific Care Pet Emergency and Specialty(“Contractor”), a California limited partnership, and the City of Seal Beach (“City”), a California charter city, (sometimes hereinafter individually referred to as “Party” and collectively as “the Parties”). 2 of 24

RECITALS
A. City desires certain professional services relating to emergency veterinary care services for the purpose of safeguarding the health and safety of City’s population and the health and safety of its wildlife while promoting the humane treatment of wild animals.

B. Pursuant to the authority provided by its City Charter and Seal Beach Municipal Code § 3.20.025(C), City desires to engage Contractor to provide the emergency veterinary care services (“the Services”) in the manner set forth herein and more fully described in Section 1.0.

C. Contractor represents that its principal members are fully qualified and able by virtue of their training, experience and expertise to provide City with the Services in a good and professional manner.

D. City desires to retain Contractor as an independent contractor and Contractor desires to serve City to perform those Services in accordance with the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the Parties’ performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows.

AGREEMENT

1.0 Scope of Services

1.1. Contractor shall provide those professional services (“Services”) requested and approved by City as set forth in the attached Exhibit A, which is hereby incorporated by this reference. To the extent that there is any conflict between Exhibit A and this Agreement, this Agreement shall control.

1.2. Contractor shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City.

1.3. In performing this Agreement, Contractor shall comply with all applicable provisions of federal, state, and local laws.

1.4. As a material inducement to City to enter into this Agreement, Contractor hereby represents that it has the experience necessary to undertake the Services. In light of such status and experience, Contractor hereby covenants that it shall follow the customary professional standards in performing all Services. The City relies upon the skill of Contractor, and Contractor’s staff, if any, to do and perform the Services in accordance with such professional 3 of 24
standards, and Contractor and Contractor’s staff, shall perform the Services in such manner. Contractor shall, at all times, meet or exceed any and all applicable professional standards of care. The acceptance of Contractor’s work by City shall not operate as a release of Contractor from such standard of care.

1.5. Contractor will not be compensated for any work performed not specified in the Scope of Services unless City authorizes such work in advance and in writing in accordance with Subsection 3.2.

2.0 Term
The term of this Agreement shall commence as of the Effective Date and shall remain in full force and effect for a term of one (1) year (“Original Term”), unless sooner terminated as provided in this Agreement.

3.0 Contractor’s Compensation

3.1. In consideration of Contractor’s performance of the Services set forth in Exhibit A, City will pay Contractor in accordance with the fee schedule set forth in Exhibit B for Services and expenses incurred in the performance of this Agreement, but in no event will City pay more than the total not-to-exceed amount of $40,000 (Forty-Thousand dollars and 00/100) for the Original Term, except as authorized by the City pursuant to Subsection 3.2.

3.2. The City Manager may authorize extra work to fund unforeseen conditions in a total not-to-exceed amount of $10,000 (Ten Thousand dollars and 00/100) for the Original Term. Any additional work authorized by the City Manager pursuant to this Subsection 3.2 will be compensated in accordance with the fee schedule set forth in Exhibit B. Payment for additional work in excess of this amount requires prior City Council authorization.

3.3. To the extent that there is any conflict between Exhibit B and this Agreement, this Agreement shall control.

4.0 Method of Payment

4.1. Contractor shall submit to City monthly invoices for all Services rendered pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end of the month during which the Services were rendered and shall describe in detail the Services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the Services performed for each day in the period. City will pay Contractor within 30 days of receiving Contractor’s invoice. City will not withhold any applicable federal or state payroll and other required taxes, or other authorized deductions from payments made to Contractor.
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4.1. Upon 24-hour notice from City, Contractor shall allow City or City’s agents or representatives to inspect at Contractor’s offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Contractor in connection with this Agreement. City’s rights under this Subsection 4.2 shall survive for three years following the termination of this Agreement.

5.0 Termination

5.1. Termination by City.

5.1.1. This Agreement may be terminated by City at any
time, for any or no reason, with or without cause, by providing Contractor with not less than thirty (30) days’ prior written notice.

5.1.2. Notwithstanding Subsection 5.1.1, this Agreement may be terminated by City upon ten (10) days’ notice to Contractor if Contractor fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy.

5.2. Termination by Contractor.

5.2.1. This Agreement may be terminated by Contractor at any time, with cause, by serving written notice of termination to City, provided Contractor has first served City with a written notice of default and demand to cure, and City has failed to cure such default within thirty (30) days of receipt of such notice.

5.2.2. This Agreement may be terminated by Contractor at any time, without cause, by providing City with not less than sixty (60) days’ prior written notice.

5.3. Obligations upon termination. Unless otherwise specified in the notice of termination, Contractor shall cease all work under this Agreement immediately upon receipt of notice of termination from City under Subsection 5.1, or immediately upon City’s acknowledgment of receipt of Contractor’s notice of termination to City under Subsection 5.2. Upon termination, City shall be immediately given title to and possession of all Work Product (as defined in Subsection 12.1 of this Agreement) produced or developed pursuant to this Agreement up to the date of termination. Provided that Contractor is not then in breach, City shall pay Contractor for any portion of the Services completed prior to termination, based on the reasonable value of the Services rendered. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. In no event shall Contractor be entitled to payment for unperformed services or services within the Scope of Services performed prior to 5 of 24
the effective date of this Agreement; and Contractor shall not be entitled to receive more than the amount that would be paid to Contractor for the full performance of the Services up to date of termination. Contractor shall have no other claim against City by reason of such termination, including any claim for compensation or damages.

6.0 Party Representatives

6.1. The City Manager is City’s representative for purposes of this Agreement.

6.2. The hospital director is Contractor’s primary representative for purposes of this Agreement. The hospital director shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services hereunder. Contractor may not change its representative without the prior written approval of City, which approval shall not be unreasonably withheld.

7.0 Notices

7.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the Party at the following addresses:.

To City: City of Seal Beach
211 8th Street
Seal Beach, California 90740
Attn: City Manager
To Contractor: Pacific Care Pet Emergency and
Specialty
2572 White Road
Irvine, Ca 92614
With a copy to:

Pacific Care Pet Emergency and
Specialty
1 Baxter Way, Suite 200
Westlake Village, California 91362
Attn: Legal Department

7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
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8.0 Permits and Licenses
Contractor and all of Contractor’s employees and other personnel shall obtain and maintain during the Agreement term all necessary licenses, permits and certificates required by law for the provision of the Services under this Agreement, including a business license as required by the Seal Beach Municipal Code.

9.0 Independent Contractor

9.1. Contractor is an independent contractor and not an employee of the City. All Services provided pursuant to this Agreement shall be performed by Contractor or by Contractor’s personnel under Contractor’s supervision.

Contractor will determine the means, methods, and details of performing the services by which Contractor, its employees and other personnel will perform the Services. Contractor shall be solely responsible for the satisfactory work performance of all personnel engaged in performing the Services and compliance with the customary professional standards..

9.2. All of Contractor’s employees and other personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor and Contractor’s personnel shall not supervise any of City’s employees, and City’s employees shall not supervise Contractor’s personnel. Contractor’s personnel shall not wear or display any City uniform, badge, identification number, or other information identifying such individual as an employee of City; and Contractor’s personnel shall not use any City e-mail address or City telephone number in the performance of any of the Services under this Agreement. Contractor shall acquire and maintain at its sole cost and expense such vehicles, equipment and supplies as Contractor’s personnel require to perform any of the Services required by this Agreement. Contractor shall perform all Services off of City premises at locations of Contractor’s choice, except (1) as otherwise required for the performance of Services on City real property, vehicles or equipment; (2) as otherwise may from time to time be necessary in order for Contractor’s personnel to receive animals from City, review plans on file at City, pick up or deliver any Work Product (as defined in Subsection 12.1 of this Agreement) related to Contractor’s performance of any Services under this Agreement, or (3) as may be necessary to inspect or visit City locations and/or private property within City’s jurisdictional boundaries to perform such Services.

9.3. Contractor shall be responsible for and pay all wages, salaries, and other amounts due its own personnel in connection with their performance of the Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: Social Security taxes, other retirement or pension 7 of 24
benefits, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance. Notwithstanding any other agency, State, or federal policy, rule, regulation, statute or ordinance to the contrary, Contractor and any of its officers, employees, agents, and subcontractors providing any of the Services under this Agreement shall not become entitled to, and hereby waive any claims to, any wages, salaries, compensation, benefit or any incident of employment by City, including but not limited to, eligibility to enroll in, or reinstate to membership in, the California Public Employees Retirement System (“PERS”) as an employee of City, and entitlement to any contribution to be paid by City for employer contributions or employee contributions for PERS benefits.

9.4. Contractor shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and those agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from, caused by or relating to Contractor’s personnel practices or to the extent arising from, caused by or related to Contractor’s violation of any of the provisions of this Section 9.0. In addition to any other remedies available under law, City shall have the right to offset against the amount of any fees due to Contractor under this Agreement any amount due to City from Contractor as a result of Contractor’s failure to promptly pay to City any reimbursement or indemnification arising under this Section. This duty of indemnification is in addition to Contractor’s duty to defend, indemnify and hold harmless as set forth in any other provision of this Agreement. Contractor’s indemnification obligations under this Section shall survive the termination and/or expiration of this Agreement.

10.0 PERS Compliance and Indemnification

10.1. General Requirements. The Parties acknowledge that City is a local agency member of PERS, and as such has certain pension reporting and contribution obligations to PERS on behalf of qualifying employees. Contractor agrees that, in providing its employees and any other personnel to City to perform any work or other Services under this Agreement, Contractor shall, assure compliance with applicable provisions of the Public Employees’ Retirement Law (“PERL”), commencing at Government Code § 20000, as amended by the Public Employees’ Pension Reform Act of 2013, the regulations of PERS. Without limitation to the foregoing, Contractor shall assure compliance with regard to personnel who have active or inactive membership in PERS and to those who are retired annuitants and in performing this Agreement shall not assign or utilize any of its personnel in a manner that will cause City to be in violation of the PERL, PEPRA, or any other applicable retirement laws and regulations.

10.2. Indemnification. Contractor shall defend (with legal counsel approved by City, whose approval shall not be unreasonably withheld), indemnify 8 of 24
and hold harmless City, and its City and its elected and appointed officials, officers, employees, servants, designated volunteers, and those agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from, caused by, or relating to Contractor’s violation of any provisions of this Section

10.0. This duty of indemnification is in addition to Contractor’s duty to defend, indemnify and hold harmless as set forth in any other provision of this Agreement. Contractor’s indemnification obligations under this Section shall survive the termination and/or expiration of this Agreement.

11.0 Confidentiality

11.1. Contractor covenants that all data, reports, documents, surveys, studies, reports, drawings, plans, maps, models, photographs, images, video files, media, discussion, or other information or other Work Product (as defined in Subsection 12.1 of this Agreement) developed or received by Contractor or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Contractor without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. Contractor, its officers, employees, agents, or subcontractors shall not without written authorization from the City Manager or unless requested in writing by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the Services performed under this Agreement or relating to any project or property located within City. Response to a subpoena or court order shall not be considered “voluntary,” provided Contractor gives City notice of such court order or subpoena.

11.2. Contractor shall promptly notify City should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the City. City may, but has no obligation to, represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, City’s right to review any such response does not imply or mean the right by City to control, direct or rewrite the response.

11.3. Contractor’s covenants under this Section shall survive the termination and/or expiration of this Agreement.
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12.0 Ownership of Work Product

12.1. Unless otherwise agreed upon in writing, all draft and final reports, documents, and other written material, and any and all images, ideas, concepts, designs including website designs, source code, object code, electronic data and files, and/or other media whatsoever created or developed by Contractor in the performance of this Agreement (collectively, “Work Product”) shall be considered “works made for hire” for the benefit of City, and all Work Product and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of City upon final payment being made in accordance with Subsection 5.3, and may be used, reused or otherwise disposed of by City for any purpose without the permission of Contractor. Any use, reuse or modification of the Work Product by City for any purpose other than the purpose for which the Work Product was prepared or provided under this Agreement shall be at City’s own risk. Contractor shall not obtain or attempt to obtain copyright protection as to any of the Work Product. .

12.2. Contractor hereby assigns to City all ownership to the Work Product, including any and all related intellectual property and proprietary rights, that are not otherwise vested in City pursuant to Subsection 12.1, above.

12.3. Contractor warrants and represents that it has secured all necessary licenses, consents or approvals to use any instrumentality, thing or component as to which any intellectual property right exists, including computer software, used in the rendering of the Services and the production of all Work Product produced under this Agreement, and that City has full legal title to and the right to reproduce the Work Product for any purpose. Contractor shall defend, indemnify and hold City, and its elected and appointed officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of City officials, harmless from any loss, claim or liability in any way related to a claim that City’s use of any of the Work Product violates federal, state or local laws, or any contractual provisions, or any laws relating to trade names, licenses, franchises, copyrights, patents or other means of protecting intellectual property rights and/or interests in products or inventions.

Contractor shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the Services and Work Product produced under this Agreement. In the event the use of any of the Work Product or other deliverables hereunder by City is held to constitute an infringement and the use of any of the same is enjoined, Contractor, at its expense, shall: (1) secure for City the right to continue using the Work Product and other deliverables by suspension of any injunction, or by procuring a license or licenses for City; or (2) modify the Work Product and other deliverables so that they become non-infringing while remaining in compliance with the requirements 10 of 24
of this Agreement. These covenants shall survive the expiration and/or termination of this Agreement.

12.4. Upon expiration or termination of the Agreement, Contractor shall deliver to City all Work Product and other deliverables related to any Services performed pursuant to this Agreement without additional cost or expense to City.

If Contractor prepares a document on a computer, Contractor shall provide City with said document both in a printed format and in an electronic format that is acceptable to City.

13.0 Subcontractors
No portion of this Agreement shall be subcontracted without the prior written approval of the City. Contractor is fully responsible to City for the performance of any and all subcontractors.

14.0 Prohibition Against Assignment or Delegation
Contractor shall not assign any of its rights or delegate any of its duties under this Agreement either in whole or in part, without City’s prior written consent, except that Contractor may assign this Agreement to Contractor’s Affiliate. As used herein, “Affiliate” means any person, organization, or entity controlling, controlled by, or under common control with Contractor. Any purported assignment or delegation in violation of this Section shall be void and without effect, and shall entitle City to terminate this Agreement. As used in this Section, “assignment” and “delegation” means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.

15.0 Inspection and Audit of Records
Contractor shall maintain complete and accurate records with respect to all Services and other matters covered under this Agreement, including but expressly not limited to, all Services performed, salaries, wages, invoices, time cards, cost control sheets, costs, expenses, receipts and other records with respect to this Agreement. Contractor shall maintain adequate records on the Services provided in sufficient detail to permit an evaluation of all Services in connection therewith. All such records shall be clearly identified and readily accessible. At all times during regular business hours, Contractor shall provide City with free access to such records, and the right to examine and audit the same and to make copies and transcripts as City deems necessary, and shall allow inspection of all program data, information, documents, proceedings and activities and all other matters related to the performance of the Services under this Agreement. Contractor shall retain all financial and program service records and all other records related to the Services and performance of this Agreement for at least three (3) years after expiration, termination or final payment under this 11 of 24
Agreement, whichever occurs later. City’s rights under this Section 15.0 shall survive for three (3) years after expiration, termination or final payment under this Agreement, whichever occurs later.

16.0 Safety Requirements
All work performed under this Agreement shall be performed in such a manner as to provide safety to the public and to meet or exceed the safety standards outlined by CAL OSHA and other applicable local, state and federal laws, industry safety orders and/or health orders. City may issue restraint or cease and desist orders to Contractor when unsafe or harmful acts are observed or reported relative to the performance of the Services. Contractor shall maintain the work sites free of hazards to persons and property resulting from its operations.

Contractor shall immediately report to City any hazardous condition noted by Contractor.

17.0 Insurance

17.1. General Requirements. Contractor shall not commence work under this Agreement until it has provided evidence satisfactory to the City that Contractor has secured all insurance required under this Section.

17.2. Minimum Scope and Limits of Insurance. Contractor shall, at its sole cost and expense, procure, maintain and keep in full force and effect for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement, as follows:

17.2.1. Commercial General Liability Insurance: Contractor shall maintain limits no less than $1,000,000 per occurrence for bodily injury, personal injury and property damage; and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit: Coverage shall be at least as broad as the latest version of Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). If Contractor is a limited liability company, the commercial general liability coverage shall be amended so that Contractor and its managers, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.

17.2.2. [Reserved.]

17.2.3. Workers’ Compensation Insurance: in the amount
required by law; and Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
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17.2.4. Professional Liability (or Errors and Omissions) Liability: Contractor shall maintain professional liability insurance (or errors and omissions insurance) appropriate to Contractor’s profession, written on a per occurrence basis, with a limit of not less than $2,000,000 per claim and $4,000,000 in the aggregate. If a “claims made” policy is provided, then the policy shall be endorsed to provide an extended reporting period of not less than three years.

17.2.5. Umbrella Liability Insurance [If required to meet higher limits]: Should Contractor obtain and maintain an umbrella liability insurance policy, limits should provide for bodily injury, personal injury, and property damage liability coverage, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
a. A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason, other than bankruptcy or insolvency of said primary insurer;
b. “Pay on behalf of” wording as opposed to
“reimbursement”; and
c. Concurrency of effective dates with primary policies.

Should Contractor obtain and maintain an excess liability policy, such policy shall be excess over commercial general liability, automobile liability, and employer’s liability policies. Such policy or policies shall include wording that the excess liability policy follows the terms and conditions of the underlying policies.

17.3. Acceptability of Insurers. The Insurance policies required under this Section shall be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.

17.4. Additional Insured Endorsement.

17.4.1. For general liability insurance, City, its elected and appointed officials, officers, employees, agents, designated volunteers and those agents acting as independent contractors in the role of City officials shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, elected and appointed officials, employees, volunteers, and those agents acting as independent contractors in the role of CITY officials. 13 of 24

17.4.2. For automobile liability insurance, City, its elected and appointed officials, officers, employees, agents, designated volunteers and those agents serving as independent contractors in the role of City officials, shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible.

The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, elected and appointed officials, employees, volunteers, and those agents acting as independent contractors in the role of CITY officials.

17.4.3. These additional insured provisions shall also apply to any excess/umbrella liability policies.

17.5. Cancellations or Modifications to Coverage. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days prior written notice by certified mail, return receipt requested, has been given to City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City, its elected and appointed officials, officers, employees, agents, designated volunteers, and those agents serving as independent contractors in the role of City officials;

17.6. Primary and Non-Contributory. Coverage shall be primary insurance as respects the City, its elected and appointed officials, officers, employees, agents, designated volunteers designated volunteers and agents serving as independent contractors in the role of City officials, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage and that any insurance or self-insurance maintained by City, its elected officials, officers, employees, agents. designated volunteers designated volunteers and agents serving as independent contractors in the role of City officials, shall be excess of the Contractor's insurance and shall not be called upon to contribute with it;

17.7. Contractual Liability. The general liability and umbrella policies shall be endorsed to include contractual liability.

17.8. Separation of Insureds. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to City, its elected and appointed officials, officers, employees, agents, designated volunteers and those agents serving as independent contractors in the role of City officials. 14 of 24

17.9. Deductibles and Self-Insured Retentions. Any deductibles or selfinsured retentions shall be declared to and approved by City prior to Contractor obtaining such insurance policy. In no event shall any insurance policy required in this Agreement have a deductible, self-insured retention, or other similar provision (including any fronting component) in excess of $50,000 without prior written approval of CITY in its sole discretion. At the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected and appointed officials, officers, employees, agents, designated volunteers and those agents serving as independent contractors in the role of City officials; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

17.10. Waiver of Subrogation. Each insurance policy required by this Agreement shall provide that Contractor and insurer waive any and all rights of subrogation against City and its elected and appointed officials, officers, employees, agents, designated volunteers and those agents serving as independent contractors in the role of City officials. Contractor hereby waives all rights of subrogation against City.

17.11. City Remedy for Noncompliance. If Contractor does not maintain the policies of insurance required under this Section in full force and effect during the term of this Agreement, or in the event any of Contractor’s policies do not comply with the requirements under this Section, City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Contractor’s expense, the premium thereon. Contractor shall promptly reimburse City for any premium paid by City or City may withhold amounts sufficient to pay the premiums from payments due to Contractor.

17.12. Evidence of Insurance. Prior to the performance of Services under this Agreement, Contractor shall furnish City with original certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Section on forms satisfactory to and approved by City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by City if requested. Contractor may provide complete, certified copies of all required insurance policies to City. Contractor shall maintain current endorsements on file with City’s Risk Manager. All certificates and endorsements shall be received and approved by the City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Contractor shall also provide proof to City that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Contractor shall furnish such proof at least two weeks prior to the expiration of the coverages.
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17.13. Insurance Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If Contractor maintains higher limits than the minimums shown above, City requires and shall be entitled to coverage for the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

17.14. Insurance No Limitation on Indemnity. The procurement of the insurance required in this Agreement or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Contractor’s to defend, indemnify or hold harmless City, its officers, elected or appointed officials, agents, employees, volunteers, or those agents acting as independent contractors in the role of City officials under any provision of this Agreement.

17.15. No Representation. Neither City nor any of its officers, agents, employees, volunteers, or those agents acting as independent contractors in the role of City officials make any representation that the types of insurance and the limits specified to be carried by Contractor under this Agreement are adequate to protect Contractor. If Contractor believes that any such insurance coverage is insufficient, Contractor shall provide, at its own expense, such additional insurance as Contractor deems adequate.

17.16. Subcontractor Insurance Requirements. Contractor shall require each of its subcontractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Section.

Contractor shall furnish City with separate certificates and endorsements for each subcontractor.

18.0 Indemnification, Hold Harmless, and Duty to Defend

18.1. Contractor’s Duty.

18.1.1. To the fullest extent permitted by law, Contractor shall, at its sole cost and expense, protect, defend, hold harmless and indemnify City and its elected and appointed officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those agents serving as independent contractors in the role of City officials (collectively “City Indemnitees” in this Section 18.0), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, bid protests, stop notices, liens and losses or injury of any nature 16 of 24
whatsoever, in law or equity, to persons or property, including bodily injury, death, personal injury, property damage, including but not limited to fees of accountants, attorneys and other professionals, and all costs associated therewith, and the payment of all consequential damages (collectively “Claims”), whether actual, alleged or threatened, which arise out of, pertain to, or relate to any breach of this Agreement and/or the acts or omissions of Contractor, its officers, agents, servants, employees, subcontractors, materialmen, suppliers, or contractors, or their officers, agents, servants or employees (or any entity or individual that Contractor shall bear the legal liability thereof) in the performance of this Agreement, including the City Indemnitees’ active or passive negligence, except for Claims arising from the sole negligence or willful misconduct of the City Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties. Contractor shall defend the City and other City Indemnitees in any action or actions filed in connection with any Claims with counsel of the City Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Contractor shall reimburse the City and the other City Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in connection therewith.

18.1.2. Contractor shall defend, indemnify and hold harmless City and the other City Indemnitees in accordance with Sections 9.0 and 10.0.

18.2. Subcontractor Indemnification. Contractor shall obtain executed indemnity agreements with provisions identical to those in this Section 18.0 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Contractor in the performance of this Agreement. If Contractor fails to obtain such indemnities, Contractor shall be fully responsible and indemnify, hold harmless and defend the City and the other City Indemnitees from and against any and all Claims in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Contractor’s subcontractor, its officers, agents, servants, employees, subcontractors, materialmen, contractors or their officers, agents, servants or employees (or any entity or individual that Contractor’s subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Claims arising from the sole negligence or willful misconduct of the City Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties.

18.3. Workers’ Compensation Acts Not Limiting. Contractor’s indemnification obligations under this Section, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. Contractor expressly waives its statutory immunity under such statutes or laws as to City, its elected and appointed officers, officials, agents, 17 of 24
employees, designated volunteers and those City agents serving as independent contractors in the role of City officials.

18.4. Insurance Requirements Not Limiting. City does not, and shall not, waive any rights that it may possess against Contractor because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities and obligations in this Section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Claims asserted against City or any of the other Indemnitees.

18.5. City’s Duty. Subject to Contractor’s duty to defend, indemnify and hold harmless City and the other City Indemnitees pursuant to Subsection 18.1, City shall defend, save, hold harmless, and indemnify Contractor and its officers, employees and agents (collectively “Contractor Indemnitees” in this Section 18.0) from and against all third-party claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever, including attorneys’ fees (collectively “Contractor Liabilities” in this Section 18.0), resulting from, arising out of, or relating to the activities of City or its officers, employees, subcontractors, or agents under this Agreement, except to the extent any of the same is caused in whole or in part by the negligence or willful misconduct of Contractor and its officers, employees, agents, subcontractors, and/or any of them. In no event will City or the other City Indemnitees be liable to Contractor or the other Contractor Indemnitees for any of the following, arising out of or related to this Agreement: (a) any breach of the Agreement by Contractor; (b) any consequential, indirect, special, incidental, or punitive damages; or (c) any amount in excess of the fees paid to the Contractor pursuant to this Agreement.

City shall have control of the defense and settlement of any claim that is subject to this subsection. However, neither City nor any attorney engaged by City shall defend the claim in the name of Contractor, nor purport to act as legal representative of Contractor, nor shall City settle any claim on behalf of Contractor, without the approval of Contractor, whose consent shall not be unreasonably withheld. Contractor may, at its election and expense, assume its own defense and settlement subject to the provisions of this Section 18.0.

18.6. Contractor’s Limitation of Liability. Except for damages arising from breach of confidentiality or Claims arising out of Contractor’s indemnification obligations under to Section 9, Section 10, or Subsection 18.1, in no event will Contractor be liable to the City for any of the following, arising out of or related to this Agreement: (a) any consequential, indirect, special, incidental, or punitive damages; or (b) any amount in excess of the available insurance required to be provided by Contractor pursuant to Section 18.0 of this Agreement. The foregoing limitations of liability apply regardless of the form of action, whether in contract, tort, strict product liability, or otherwise, even if the party to be charged was advised in advance of the possibility of such damages and even if such damages were foreseeable.
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18.7. Survival of Terms. The Parties’ duties and covenants under this Section 18.0 shall survive the termination and/or expiration of this Agreement.

19.0 Non-Discrimination and Equal Opportunity
Contractor affirmatively represents that it is an equal opportunity employer. In the performance of this Agreement, Contractor shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, gender, sexual orientation, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information, or any other basis prohibited by law. Contractor will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information or sexual orientation, or any other basis prohibited by law..

20.0 Labor Certification
By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

21.0 Entire Agreement
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties.

22.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement.

23.0 Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. Any dispute that arises under or relates to this Agreement (whether contract, tort, or both), shall be resolved in a state or federal court situated in the County of Orange, State of California. 19 of 24

24.0 No Third Party Beneficiaries
This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity shall be deemed to have any rights hereunder against either Party by virtue of this Agreement.

25.0 Waiver
No delay or omission to exercise any right, power or remedy accruing to City under this Agreement shall impair any right, power or remedy of City, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, any failure of a condition, or any right or remedy under this Agreement shall be (1) effective unless it is in writing and signed by the Party making the waiver, (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states.

26.0 Prohibited Interests; Conflicts of Interest

26.1. Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services.

Contractor further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Contractor shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Contractor shall not accept any employment or representation during the term of this Agreement which is or may likely make Contractor “financially interested” (as provided in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Contractor has been retained.

26.2. Contractor further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Contractor, to solicit or obtain this Agreement. Nor has Contractor paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Contractor, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Contractor hereunder the full amount or value of any such fee, commission, percentage or gift.

26.3. Contractor warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the 20 of 24
business of Contractor, and that if any such interest comes to the knowledge of Contractor at any time during the term of this Agreement, Contractor shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited “conflict of interest” under applicable laws as described in this subsection.

27.0 Final Payment Acceptance Constitutes Release
The acceptance by Contractor of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Contractor for anything done, furnished or relating to Contractor’s work or services. Acceptance of payment shall be any negotiation of City’s check or the failure to make a written extra compensation claim within ten calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Contractor, its employees, subcontractors and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Contractor, its employees, subcontractors and/or agents.

28.0 Non-Appropriation of Funds
Payments to be made to Contractor by City for any Services performed within the current fiscal year are within the current fiscal budget and within an available, unexhausted fund. In the event that City does not appropriate sufficient funds for payment of Contractor’s Services beyond the current fiscal year, this Agreement shall cover payment for Contractor’s Services only to the conclusion of the last fiscal year in which City appropriates sufficient funds and shall automatically terminate at the conclusion of such fiscal year.

29.0 Rights and Remedies are Cumulative
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

30.0 Non-Exclusive Agreement
No provision of this Agreement shall be construed as creating any exclusive arrangement with Contractor. This Agreement shall not restrict City from acquiring similar, equal or like services from other entities or sources. Due to the nature and availability of such services and the business needs of City, Contractor may be only one of such Contractors utilized by City for the services identified in this Agreement.
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31.0 Mutual Cooperation

31.1. City’s Cooperation. City shall provide Contractor with all pertinent Data, documents and other requested information as is reasonably available for Contractor’s proper performance of the Services required under this Agreement.

31.2. Contractor’s Cooperation. In the event any claim or action is brought against City relating to Contractor’s performance of Services rendered under this Agreement, Contractor shall render any reasonable assistance that City requires.

32.0 Time of the Essence
Time is of the essence in respect to all provisions of this Agreement that specify a time for performance; provided, however, that the foregoing shall not be construed to limit or deprive a Party of the benefits of any grace or use period allowed in this Agreement.

33.0 Attorneys’ Fees
If either Party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorneys’ fees and other costs incurred in connection therewith.

34.0 Titles and Headings
The titles and headings used in this Agreement are for convenience only and shall in no way define, limit or describe the scope or intent of this Agreement or any part of it.

35.0 Exhibits
All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control.

36.0 Corporate Authority
The person executing this Agreement on behalf of Contractor warrants that he or she is duly authorized to execute this Agreement on behalf of said Party and that by his or her execution, the Contractor is formally bound to the provisions of this Agreement.

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EXHIBIT A
CONTRACTOR’S SCOPE OF SERVICES
Contractor may provide the following services to animals brought by the City:

1. Examination

2. Radiographs

3. Parvo tests

4. Pain management

5. Administer antibiotics

6. Wound care

7. Boarding

8. Euthanasia

9. Supportive care
Services shall be provided to an individual animal only upon City’s prior written authorization.

Contractor’s Services shall not include the transporting of animals at any time. 24 of 24

EXHIBIT B

COMPENSATION/PAYMENT
The City will receive a 20% discount on each product and/or service rendered, including but not limited to the fees listed below. All animals will receive an exam when dropped off.
$250 Euthanasia service for critically injuries dogs and cats $150-200 Boarding overnight for an animal with exam and with no injuries. $250-500 Routine overnight supportive care package. Non-Life threating injuries.

Examples include but are not limited to, pain management, fluids, casting of broken limbs, isolation contagious animals, and medication.
$500-$1500 Supportive care that may require fluids, radiographs, and pain management.

Agenda Item J

AGENDA STAFF REPORT
DATE: September 11, 2023
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Alexa Smittle, Community Development Director
SUBJECT: Surplus Land Act Covenant for 4197 Ironwood Avenue ________________________________________________________________ SUMMARY OF REQUEST:

That the City Council approve Resolution 7445 directing a covenant be recorded in compliance with the Surplus Land Act on 4197 Ironwood Avenue, Seal Beach, CA.

BACKGROUND AND ANALYSIS:

On February 13, 2023 the City Council approved Resolution 7374, declaring 4197 Ironwood Avenue to be surplus property, as defined by Government Code Section 54221(b), and directing staff to move forward with disposition of the property under State Law. The location is a single family home, originally purchased in 2007 as a possible location for certain stormwater improvements. Unfortunately, the cost to perform the infrastructure upgrades is a minimum of $50 million, therefore after discussion, the City Council ultimately directed staff to take action to dispose of the property.

Under the Government Code commencing with Section 54220, local agencyowned property is required to go through a specific disposition process to facilitate use of surplus property for affordable housing production. In March 2023, pursuant to State law, a Notice of Availability was sent to relevant taxing agencies and housing sponsors identified by the California Department of Housing and Community Development (HCD), and posted on the City's website. This action started a 60-day timeline for entities to express interest in acquiring the property.

By the end of the 60 days, three entities had provided notice of interest, but only one made a purchase offer. The City negotiated in good faith, and the other party chose to end negotiations.

At this time, the next step in disposition is to record a covenant on the property through the Orange County Clerk/Recorder and submit a variety of paperwork to HCD documenting the process for review and approval. The covenant, Attachment B, was drafted by HCD in compliance with Government Code Section 54233 and 54233.5 and states that if 10 or more residential units are ever developed on the

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property, at least 15 percent of the units shall be sold or rented at affordable levels for a minimum of 45 years for ownership housing or 55 years for rental housing.

This property is currently a single-family home, in a single-family zone, with a parcel size of 5,200 square feet. Under the City's zoning ordinance, 10 units cannot be built on the property now, and modifications to allow that type of density in the future are highly unlikely. Nevertheless, State law requires the covenant be recorded. Upon completion of the recordation, paperwork submittal, and HCD approval of the disposition process, the City can proceed with a market sale of the property. Future offers will be considered and approved by the City Council before a transaction can take place.

ENVIRONMENTAL IMPACT:

The proposed covenant is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the State CEQA Guidelines which states that CEQA only applies to projects that have potential for causing a significant effect on the environment. Recordation of the covenant will not have a significant effect on the environment.

LEGAL ANALYSIS:

This item has been reviewed and approved as to form.

FINANCIAL IMPACT:

There is no financial impact for this item.

STRATEGIC PLAN:

This item is not applicable to the Strategic Plan.

RECOMMENDATION:

That the City Council approve Resolution 7445 directing a covenant be recorded in compliance with the Surplus Land Act on 4197 Ironwood Avenue, Seal Beach, CA.

SUBMITTED BY: NOTED AND APPROVED:

Alexa Smittle Jill R. Ingram
Alexa Smittle, Community
Development Director
Jill R. Ingram, City Manager

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ATTACHMENTS:

A. Resolution 7445
B. Surplus Land Act Covenant for 4197 Ironwood Avenue
RESOLUTION 7445

A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING

RECORDATION OF A COVENANT ON CERTAIN CITY-OWNED REAL

PROPERTIES PURSUANT TO GOVERNMENT CODE SECTION
54220, ET SEQ., AND FINDING THAT SUCH DECLARATION IS

EXEMPT FROM ENVIRONMENTAL REVIEW UNDER THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT, AND TAKING

RELATED ACTIONS
WHEREAS, the City of Seal Beach is the owner in fee simple of that certain real property located at 4197 Ironwood Avenue, Seal Beach, CA (Assessor Parcel Number 217-191- 09) (“Property”); and
WHEREAS, the Surplus Land Act, Government Code Section 54220, et seq., defines specific actions be taken to dispose of publicly owned property; and, WHEREAS, the City previously determined that the Property is not suitable for the City’s use, declared the Property surplus, and initiated disposition proceedings; and, WHEREAS, the Surplus Land Act requires a covenant be recorded governing housing affordability for future residential use of the Property if ten or more housing units are developed.

NOW, THEREFORE, THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:

Section 1. The City Council of the City of Seal Beach hereby approves the Surplus Land Act Covenant for the Property and authorizes the City Manager to execute said covenant.

Section 2. This Resolution is exempt from the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) (“CEQA”) as designation of this Property as surplus does not have the potential for creating a significant effect on the environment and is therefore exempt from further review under CEQA pursuant to State CEQA Guidelines Section 15060(c)(3) because it is not a project as defined by the CEQA Guidelines Section 15378. Adoption of the Resolution does not have the potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.

Section 3. The Council hereby directs the City Manager or authorized designee to do all things necessary to effectuate the purposes of this Resolution, including preparation of all materials required by State law related to disposition of the Property.

PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 11th day of September, 2023 by the following vote:

AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members

Thomas Moore, Mayor
ATTEST:

Gloria D. Harper, City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Gloria D. Harper, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7445 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 11th day of September, 2023.

Gloria D. Harper, City Clerk

RECORDING REQUESTED BY, AND
WHEN RECORDED MAIL TO:

City of Seal Beach
211 Eighth Street
Seal Beach, CA 90740
Attention: City Clerk
APN: 217-191-09
Exempt from recording fees pursuant to Government Code section 6103. (Space Above for Recorder’s Use)
Surplus Land Act Covenant
(per Government Code Section 54233 and/or 54233.5)
4197 Ironwood Avenue, Seal Beach, CA 90740
Assessor Parcel Number 217-191-09
This SURPLUS LAND ACT COVENANT is executed as of ______________, 2023 by the City of Seal Beach (“Owner”).

If 10 or more residential units are developed on the above-referenced property, not less than 15 percent of the total number of residential units developed on the property shall be sold or rented at affordable housing cost, as defined in Section 50052.5 of the California Health and Safety Code, or affordable rent, as defined in Section 50053 of the California Health and Safety Code, to lower income households, as defined in Section 50079.5 of the California Health and Safety Code. Rental units shall remain affordable to and occupied by lower income households for a period of 55 years for rental housing and 45 years for ownership housing. The initial occupants of all ownership units shall be lower income households, and the units shall be subject to an equity sharing agreement consistent with the provisions of paragraph (2) of subdivision (c) of 65915 of the California Government Code. These requirements shall be covenants or restrictions running with the land and shall be enforceable against any owner who violates a covenant or restriction and each successor-in-interest who continues the violation by any of the entities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the California Government Code.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has caused this Surplus Land Act Covenant to be signed by its duly authorized representative, as of the day and year first above written.

OWNER: CITY OF SEAL BEACH
______________________________
Jill Ingram, City Manager
ATTEST:
___________________________
Gloria Harper, City Clerk
APPROVED AS TO FORM:
__________________________
Nicholas R. Ghirelli, City Attorney
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California
County of Orange
On _______________________ before me ___________________________, Notary Public
(insert name and title of the officer)
Personally appeared ____________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature __________________________________ (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

Seal Beach City CouncilSeptember 11, 2023

Seal Beach City Council
September 11, 2023