AGREEMENT BETWEEN THE CITY OF SAN JOSE AND THE WILDLIFE CENTER OF SILICON VALLEY FOR WILDLIFE SERVICES

Transcription

1 AGREEMENT BETWEEN THE CITY OF SAN JOSE AND THE WILDLIFE CENTER OF SILICON VALLEY FOR WILDLIFE SERVICES THIS AGREEMENT ("Agreement") is made and entered into this day of., 2015 by the CITY OF SAN JOSE, a municipal corporation ("CITY") and THE WILDLIFE CENTER OF SILICON VALLEY, a California not-for-profit corporation ("WILDLIFE CENTER") (CITY and the WILDLIFE CENTER are hereinafter collectively referred to as the "Parties"). RECITALS WHEREAS, the CITY provides certain animal services to the cities of Milpitas, Cupertino, Saratoga and the Town of Los Gatos ("Contract Cities"); and WHEREAS, the CITY desires to obtain certain animal services regarding wildlife; and WHEREAS, the WILDLIFE CENTER provides a program through which injured, sick or orphaned wildlife are provided with medical and other necessary care and treatment, rehabilitative services, and then released back into the wild; NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, CITY and WILDLIFE CENTER hereby agree as follows: SECTION 1. AUTHORITY AND STATUS OF WILDLIFE CENTER. WILDLIFE CENTER represents and warrants that the information contained in this Agreement is true and accurate to the best of its knowledge; that it is a duly organized validly existing nonprofit corporation in good standing under the laws of its place of incorporation; and that its signatory to this Agreement is authorized by resolution, by laws, or constitution of the nonprofit corporation, currently, in full force and effect, to execute this Agreement on WILDLIFE CENTER s behalf. T-3039/ _4 1 Wildlife Center Agreement

2 SECTION 2. TERM OF AGREEMENT. A. The term of this Agreement shall be from July 1, 2015 to June 30, 2018 ("Initial Term"), inclusive, unless extended or sooner terminated in accordance with the terms of this Agreement. In no event shall WILDLIFE CENTER be compensated for work performed for CITY prior to July 1,2015. CITY has the right to extend the term of this Agreement for up to two (2) additional one-year periods ("Additional Terms"), based upon the same conditions of the Initial Term, subject to the appropriation of funds by the San Jose City Council. CITY shall notify WILDLIFE CENTER in writing of its exercise of its option for an Additional Term in the form attached as EXHIBIT B of this AGREEMENT no less than thirty (30) days prior to the end of the then current Term. SECTION 3. DEFINITIONS. A. The term "wildlife" shall mean those animals which are not normally domesticated. The term "Rehabilitative Services" shall mean activities undertaken to restore the wildlife to good health and/or useful life through therapy and care in order to release wildlife back into the wild. The term "Holidays" shall mean New Year s Eve, New Year s Day, Easter Sunday, Memorial Day, July 4, Labor Day, Thanksgiving, Christmas Eve and Christmas Day. SECTION 4. SCOPE OF SERVICES. A. Rehabilitative Services For the consideration set forth herein, the WILDLIFE CENTER shall provide Rehabilitative Services for injured, sick or orphaned wildlife that are taken directly T-3039/ _4 2 Wildlife Center Agreement

3 to, or transferred to, the WILDLIFE CENTER either by: 1) CITY residents; 2) San Jose Animal Care and Services staff; or 3) CITY employees. WILDLIFE CENTER shall be responsible for releasing the wildlife back into the wild following completion of Rehabilitative Services. In the event Rehabilitative Services fail, or the wildlife is otherwise unable to be released back into the wild, WILDLIFE CENTER shall be responsible for transferring or humanely euthanizing the wildlife in accordance with the applicable State and local laws and regulations. Educational Services WILDLIFE CENTER shall provide CITY with a minimum of ten (10) educational outreach programs for community clubs, schools, civic organizations and/or residents that are located within the City of San Jose. Programs will be held either off-site, at a location to be mutually agreed upon by the Parties, or at the WILDLIFE CENTER facility. Other Services WILDLIFE CENTER shall provide telephone support during its regular hours of operation (See Section 4. D. Hours of Operation) to CITY and residents of Contract Cities and CITY staff who have questions and concerns relating to wildlife. WILDLIFE CENTER shall also provide additional telephone support to CITY staff between 5:30 p.m. and 8:00 p.m. daily, except on Holidays, for urgent wildlife matters. Hours of Operation The WILDLIFE CENTER shall remain open to accept incoming wildlife seven (7) days a week from 10:00 a.m. to 5:30 p.m. year round, except on Holidays. SECTION 5. RECORD KEEPING AND REPORTING. WILDLIFE CENTER shall maintain proper accounting records in accordance with generally accepted accounting principles. WILDLIFE CENTER records regarding T-3039/ _4 3 Wildlife Center Agreement

4 Rehabilitation Services and all financial documents and transactions shall be available to the CITY or CITY s designated representative(s), upon request of CITY during WILDLIFE CENTER regular business hours. Within thirty (30) days of the last calendar day of October, February and June, respectively, in each calendar year of this Agreement, WILDLIFE CENTER shall: Provide CITY with a list of wildlife cared for under this Agreement during the previous period. The list shall include: 1) the number of animals brought to the WILDLIFE CENTER by San Jose Animal Care and Services staff, or transferred from the Humane Society Silicon Valley, San Jose Animal Care Center, or by private individuals, that were picked up within San Jose, Milpitas, Cupertino, Saratoga or Los Gatos; 2) the number of each species of wildlife; and 3) the number of animals that reached a final disposition based on the type of disposition (e.g. number of animals released, expired, euthanized). Provide CITY with a list of all educational programs provided by WILDLIFE CENTER which includes the location of the program, the number of participants, and the residency of the participants. CITY reserves the right to request additional detailed wildlife treatment information that WILDLIFE CENTER would reasonably be expected to track. Information will be provided to CITY within thirty (30) days of request. SECTION 6. PAYMENT PROVISIONS. A. Payment Schedule CITY shall make payments to WILDLIFE CENTER in equal monthly installments. All installment payments by CITY shall be due and payable on the last day of the month. The first payment will be made by CITY to WILDLIFE CENTER by July 31,2015. T-3039/ _4 4 Wildlife Center Agreement

5 Payment Amounts 1. For all services described in SECTION 4 of this Agreement, CITY agrees to pay WILDLIFE CENTER a monthly amount of Seven Thousand Four Hundred Nine Dollars and Thirty-Three Cents ($7,409.33) for the period of July 1, 2015 through June 30, 2016, provided Cupertino, Los Gatos and Saratoga continue to fund their current contribution amounts, listed below. The annual sum is calculated on the following contributions for the services in this Agreement: San Jose $78,506 Cupertino $ 6,330 Los Gatos $ 2,038 Saratoga $ 2,038 Total $88,912 The Parties agree that the compensation amount shall increase annually on July 1st of each year of the Initial Term and any Additional Terms based on the February to February Consumer Price Index-Urban Wage Earners and Clerical Workers for San Francisco-Oakland-San Jose, CA (maintained by the Bureau of Labor Statistics) ("CPI-W") Compensation increases shall not exceed 3.0% annually. The total amount of compensation to be paid to WILDLIFE CENTER for the Initial Term and any Additional Terms shall not exceed Four Hundred Seventy-Two Thousand One Hundred Dollars ($472,100). Compensation for Additional Terms is subject to the appropriation of funds by the San Jose City Council, and the receipt of funds from Contract Cities. T-3039/ _4 5 Wildlife Center Agreement

6 SECTION 7. SUSPENSION OR TERMINATION OF GRANT AWARD. CITY, through CITY s Director of Animal Care and Services, may at any time during the term of this Agreement, suspend or terminate payment to WILDLIFE CENTER, in whole or in part, in the event of any of the following occurrences: If WILDLIFE CENTER has made or makes any material misrepresentation of any nature with respect to any information or statements furnished to CITY in connection with this Agreement. If there is pending litigation with respect to the performance by WILDLIFE CENTER of any of its obligations under this Agreement, which may materially jeopardize or adversely affect the undertaking of, or carrying out of, its operations. If WILDLIFE CENTER fails to comply with any of the material terms of this Agreement. If WILDLIFE CENTER applies for, or consents to, or acquiesces in the appointment of a receiver, trustee, liquidator or custodian for all or part of its property, or if WILDLIFE CENTER files a voluntary petition in bankruptcy or petition or an answer seeking liquidation or reorganization under the Bankruptcy Code or any other law related to bankruptcy or insolvency or relief of debtors. Eo If one or more of the Contract Cities discontinues funding their current contribution amounts as described in Section 6.B.1. SECTION 8. INDEMNIFICATION AND HOLD HARMLESS. WILDLIFE CENTER agrees to protect, defend, indemnify and hold harmless CITY, its officers, employees and agents from any and all liability, loss, damage, suits, actions, or claims arising or resulting from the performance of this Agreement by WILDLIFE CENTER, its officers, volunteers, employees, or agents. T-3039/ _4 6 Wildlife Center Agreement

7 SECTION 9. INSURANCE REQUIREMENTS. WILDLIFE CENTER agrees to have and maintain the policies set forth in EXHIBIT A, entitled "INSURANCE", which is attached hereto and incorporated herein. All policies, endorsements, certificates and/or binders shall be subject to approval by the Director of Finance or the Director s authorized designee ("Risk Manager") of the CITY as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the Risk Manager. WILDLIFE CENTER agrees to provide CITY with a copy of said policies, certificates and/or endorsements upon execution of this Agreement as a condition of CITY s payment. SECTION 10. COMPLIANCE WITH ALL LAWS. WILDLIFE CENTER shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local governments including, but not limited to, State of California Department of Fish and Wildlife and the U.S. Fish and Wildlife Services regulations. WILDLIFE CENTER shall comply with the provisions of CITY s Business Tax Ordinance in Chapter 4.76 of the San Jose Municipal Code. SECTION 11. NON-DISCRIMINATION. WILDLIFE CENTER shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of this Agreement. SECTION 12. ACKNOWLEDGMENT OF CITY. WILDLIFE CENTER shall acknowledge the support of CITY in every quarterly issue of Tracks newsletter published through the Initial Term and any Additional Terms on the WILDLIFE CENTER web page and in educational presentations. All written materials acknowledging CITY support shall be reviewed and approved by CITY. T-3039/ _4 7 Wildlife Center Agreement

8 SECTION 13. NOTICES. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective parties as follows: To CITY: To WILDLIFE CENTER: Director San Jose Animal Care and Services 2750 Monterey Rd San Jose, CA Director Wildlife Center of Silicon Valley 3027 Penitencia Creek Road San Jose, CA Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the mail. Either party may change its address by sending written notice of the new address to the other party pursuant to this Section. SECTION 14. RELATIONSHIP OF PARTIES. Under no circumstances shall this Agreement be construed as one of agency, partnership, joint venture or employment between WILDLIFE CENTER and CITY. Each party acknowledges and agrees that it neither has, nor will give the appearance or impression of having, any legal authority to bind or commit the other party in any way. SECTION 15. GIFTS. A. WILDLIFE CENTER is familiar with CITY s prohibition against the acceptance of any gift by a CITY officer or designated employee, which prohibition is found in Chapter of the San Jose Municipal Code. WILDLIFE CENTER agrees not to offer any CITY officer or designated employee any gift prohibited by said Chapter. T-3039/ _4 8 Wildlife Center Agreement

9 The offer or giving of any gift prohibited by Chapter shall constitute a material breach of this Agreement by WILDLIFE CENTER. In addition to any other remedies CITY may have in law or equity, CITY may terminate this Agreement for such breach as provided in SECTION 7 of this Agreement. SECTION 16. VENUE. In the event that suit shall be brought by any party to this Agreement against another party, the Parties agree that the venue shall be exclusively vested in the state courts of the State of California, County of Santa Clara, or if federal jurisdiction is appropriate, exclusively in the United States District Court, Northern District of California, San Jose, California. SECTION t7. ASSIGNABILITY. The Parties agree that the expertise and experience of WILDLIFE CENTER are material considerations for this Agreement. WILDLIFE CENTER shall not assign or transfer any interest in this Agreement nor the performance of any of WILDLIFE CENTER s obligations hereunder, without the prior written consent of CITY, and any attempt by WILDLIFE CENTER to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. SECTION 18. GENERAL PROVISIONS. A. Entire Aqreement This Agreement constitutes the entire agreement between the Parties hereto relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written commitments, understandings and agreements. No changes or modifications to this Agreement shall be valid or binding unless contained in a written document executed by the Parties. B= Waivers No delay or failure of either party to exercise or enforce at any time any right or provision of this Agreement shall be considered a waiver thereof or of such T-3039/ _4 9 Wildlife Center Agreement

10 party s right thereafter to exercise or enforce each and every right and provision of this Agreement. A waiver to be valid shall be in writing but need not be supported by consideration. No single waiver shall constitute a continuing or subsequent waiver. The acceptance by CITY of the performance of any work or services by the WILDLIFE CENTER shall not be deemed to be a waiver of any term or condition of this Agreement. Interpretations In construing or interpreting this Agreement, the word "including" shall not be limiting. The Parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party. Invalid Provisions If any provision of this Agreement shall be held illegal, invalid, or unenforceable, in full or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable, and the other provisions of this Agreement shall not be affected thereby. Em Further Documents The Parties agree, upon request, to sign and deliver such other documents as may be reasonably required to carry out the intent and provision of this Agreement. California Law This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California. T-3039/ _4 10 Wildlife Center Agreement

11 Counterpart Execution This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same document. SECTION 19. ENVIRONMENTALLY PREFERABLE PROCUREMENT POLICY. WILDLIFE CENTER agrees that, in the performance of this Agreement, WILDLIFE CENTER shall perform its obligations under the agreement in conformance with City Council Policy 4-6, Environmentally Preferable Procurement Policy. A description for environmentally preferable procurement and the Policy can be found on the CITY s website at the following link: Environmental procurement policies and activities related to the completion of work will include wherever practicable, but are not limited to: Use of recycled and/or recyclable products in daily operations (i.e. 30, 50, 100% PCW paper, chlorine process free; triclosan free hand cleaner, etc.) B. Use of Energy Star Compliant equipment. C. Vehicles and vehicle operations (i.e. Alternative Fuel, Hybrid, etc.) D. Internal waste reduction and reuse protocol(s). Water and resource conservation activities within facilities, including bans on individual serving bottled water and the use of compostable food service products, etc. T-3039/ _4 11 Wildlife Center Agreement

12 SECTION 20. CONFLICT OF INTEREST. WILDLIFE CENTER shall avoid all conflict of interest or appearance of conflict of interest in performance of this Agreement. As of the date of entering into this Agreement, WILDLIFE CENTER s employees assigned to perform services as specified in this Agreement ("WILDLIFE CENTER s Assigned Employees") shall not be required to complete and file a Form 700 with CITY s Clerk. In the event that the CITY subsequently determines to require WILDLIFE CENTER s Assigned Employees to complete and file a Form 700 with CITY s Clerk, CITY will notify WILDLIFE CENTER in writing of such requirement, including without limitation, instructions regarding the categories of economic interests subject to disclosure on the Form 700 ("Form 700 Notice"). WILDLIFE CENTER shall cause WILDLIFE CENTER s Assigned Employees to complete and file the Form 700 with CITY s Clerk and to submit a copy to the Director of Animal Care and Services, in accordance with the instructions specified in the Form 700 Notice, no later than thirty (30) days of the date of the Form 700 Notice. SECTION 21. DISQUALIFICATION OF FORMER EMPLOYEES. WILDLIFE CENTER is familiar with the provisions relating to the disqualification of former officers and employees of CITY in matters which are connected with former duties or official responsibilities as set forth in Chapter of the San Jose Municipal Code ("Revolving Door Ordinance"). WILDLIFE CENTER shall not utilize either directly or indirectly any officer, employee, or agent of WILDLIFE CENTER to perform services under this Agreement, if in the performance of such services, the officer, employee, or agent would be in violation of the Revolving Door Ordinance. T-3039/ _4 12 Wildlife Center Agreement

13 WITNESS THE EXECUTION HEREOF the day and year first hereinabove written. APPROVED AS TO FORM: CITY OF SAN JOSE, a municipal corporation Senior Deputy City Attorney By: JULIE EDMONDS-MARES Deputy City Manager WILDLIFE CENTER OF SILICON VALLEY, a California not-for-profit corporation By: ~ Name:Janet Alexander Title: Director of Operations T-3039/ _4 13 Wildlife Center Agreement

14 EXHIBIT A INSURANCE WILDLIFE CENTER, at WILDLIFE CENTER S sole cost and expense, shall procure and maintain for the duration of this AGREEMENT insurance against claims for injuries to persons or damages to property which may arise from, or in connection with, the performance of the services hereunder by WILDLIFE CENTER, its agents, representatives, employees or subcontractors. Minimum Scope of Insurance Coverage shall be at least as broad as: The coverage described in Insurance Services Office Commercial General Liability coverage ("occurrence") Form Number CG 0001; and The coverage provided by Insurance Services Office Form Number CA 0001 covering Automobile Liability. Coverage shall be included for all owned, non-owned and hired automobiles; and Workers Compensation insurance as required by the California Labor Code and Employers Liability insurance; and 4. Professional Liability Errors & Omissions for all professional services. There shall be no endorsement reducing the scope of coverage required above unless approved by the CITY s Risk Manager. B. Minimum Limits of Insurance WILDLIFE CENTER shall maintain limits no less than: Commercial General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit; and Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage; and Workers Compensation and Employers Liability: Workers Compensation limits as required by the California Labor Code and Employers Liability limits of $1,000,000 per accident; and T-3039/ _4 A-1 Wildlife Center Agreement

15 Professional Liability Errors & Omissions $1,000,000 per occurrence/aggregate limit. C. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to, and approved by CITY s Risk Manager. At the option of CITY, either; the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, employees, agents and contractors; or WILDLIFE CENTER shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by the CITY s Risk Manager. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. Commercial General Liability and Automobile Liability Coverages The City of San Jose, its officers, employees, agents and contractors are to be covered as additional insureds as respects: Liability arising out of activities performed by or on behalf of, WILDLIFE CENTER; products and completed operations of WILDLIFE CENTER; premises owned, leased or used by WILDLIFE CENTER; and automobiles owned, leased, hired or borrowed by WILDLIFE CENTER. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, employees, agents and contractors. WILDLIFE CENTER s insurance coverage shall be primary insurance as respects CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by CITY, its officers, employees, agents or contractors shall be excess of WILDLIFE CENTER s insurance and shall not contribute with it. Any failure to comply with reporting provisions of the policies by WILDLIFE CENTER shall not affect coverage provided CITY, its officers, employees, agents, or contractors. Coverage shall state that WILDLIFE CENTER s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer s liability. Coverage shall contain a waiver of subrogation in favor of the CITY, its officers, employees, agents and contractors. T-3039/ _4 A-2 Wildlife Center Agreement

16 2. Workers Compensation and Employers Liability Coverage shall contain a waiver of subrogation in favor of the City of San Jose, its officers, employees, agents and contractors. 3. All Coverages Each insurance policy required by this AGREEMENT shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30) days prior written notice has been given to CITY, except that ten (10) days prior written notice shall apply in the event of cancellation for nonpayment of premium. E. Acceptability of Insurers Insurance is to be placed with insurers acceptable to CITY s Risk Manager. F. Verification of Coverage WILDLIFE CENTER shall furnish CITY with certificates of insurance and with original endorsements affecting coverage required by this AGREEMENT. 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. Proof of insurance shall be either ed in pdf format to: Riskm~joseca,g=0_~ or mailed to the following postal address or any subsequent address as may be directed in writing by the Risk Manager: G. Subcontractors City of San Jose - Finance Risk Management 200 East Santa Clara Street, 14th Floor Tower San Jose, California WILDLIFE CENTER shall include all subcontractors as insured under its policies or shall obtain separate certificates and endorsements for each subcontractor. H. Exception. If, however, WILDLIFE CENTER does not have any employees, WILDLIFE CENTER shall sign the following statement as well as the contract itself to effect a fully executed contract: T-3039/ _4 A-3 Wildlife Center Agreement

17 I, as the designated representative of WILDLIFE CENTER, represent and warrant that WILDLIFE CENTER does not have, nor intends to have for the full term of this AGREEMENT, any employees. Therefore, as the representative of WILDLIFE CENTER, I am signing this statement in lieu of providing the above required Workers Compensation Coverage. Signature Date (Please print or type name of organization) %3039/ _4 A-4 Wildlife Center Agreement

18 EXHIBIT B NOTICE OF EXERCISE OF OPTION TO EXTEND AGREEMENT AGREEMENT TITLE and DATE: WILDLIFE CENTER Name and Address: DATE OF OPTION: Pursuant to Section of the Agreement referenced above, the City of San Jose hereby exercises its option to extend the term under the following provisions: I OPTION NO, I NEW OPTION TERM Begin date: End date: I D CHANGES IN RATE OF COMPENSATION Percentage change in CPI upon which adjustment is based: I Pursuant to Section of the Agreement the Rates of Compensation are hereby adjusted as follows: MAXIMUM COMPENSATION for New Option Term: For the option term exercised by this Notice, CITY shall pay WILDLIFE CENTER an amount not to exceed the amount set forth above for WILDLIFE CENTER s services and reimbursable expenses, if any. The undersigned signing on behalf of the City of San Jos~ hereby certifies that an unexpended appropriation is available for the term exercised by this Notice, and that funds are available as of the date of this signature. CITY OF SAN JOSE, a municipal corporation By, Name: Title: T-3039/ _4 B-1 Wildlife Center Agreement