THIS ANIMAL SERVICES AGREEMENT ("Agreement") is entered into as of the
1st day of July, 2000 (the "Effective Date") by and between the CITY OF
SUNNYVALE, a municipal corporation ("CITY"), and HUMANE SOCIETY OF SANTA
CLARA VALLEY, a California non-profit benefit corporation ("HUMANE SOCIETY").

WHEREAS, CITY is in need of specialized shelter, dead animal, veterinarian and after hours emergency services in relation to animals within the territorial jurisdiction of CITY, since such services are no longer being provided by COUNTY OF SANTA CLARA; and

WHEREAS, HUMANE SOCIETY possesses the facilities, skill and expertise to provide the required services;

NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT.

1. Animal Services by HUMANE SOCIETY

(a) For the consideration set forth in this Agreement HUMANE SOCIETY shall provide to CITY the Animal Shelter Services and After Hours Emergency Services (collectively referred to in this Agreement as "Animal Services" set forth in Exhibit "A" attached and incorporated by reference.)

(b) Except as provided in this Agreement, HUMANE SOCIETY shall determine the method, details and means of performing the services, and CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing HUMANE SOCIETY's services, which HUMANE SOCIETY shall perform at such times and places as HUMANE SOCIETY shall determine.

(c) HUMANE SOCIETY shall provide Shelter Services for the animals and shall receive stray animals twenty-four (24) hours a day, seven (7) days a week.

(d) HUMANE SOCIETY shall keep the shelter open to the public from 11:00 a.m. to 6:00 p.m. Monday through Friday and from 10:00 a.m. to 5:00 p.m. Saturday and Sunday.

(e) HUMANE SOCIETY shall maintain regular hours for the provision of Medical Services between 9:00 a.m. and 6:00 p.m. Monday through Friday.

(f) HUMANE SOCIETY shall provide Emergency Veterinary Services in accordance with Section 597(f) of the California Penal Code. If Emergency Veterinary Services are required on weekends, holidays, outside of regular hours, or whenever veterinary services are unavailable HUMANE SOCIETY shall contract for necessary emergency veterinary services at local veterinary clinics or wherever emergency veterinary services are available.

(g) HUMANE SOCIETY shall not be responsible for providing facilities services necessary for CITY to comply with animal licensing laws.

(h) HUMANE SOCIETY shall collect fees, charges and penalties ("Program Fees") charged by CITY from the public at large in connection with some of the Animal Services it provides. The Shelter Services for which HUMANE SOCIETY normally collects fees are set forth in Exhibit "B" attached and incorporated by reference, and HUMANE SOCIETY shall collect fees in such amounts, which shall have been previously established by resolution of the City Council of CITY.

(i) HUMANE SOCIETY shall pay or credit to CITY monthly all Program Fees collected by HUMANE SOCIETY in connection with the Animal Services provided specifically to CITY, except fees collected for emergency veterinary services which are paid by contract to veterinary providers, and rabies vaccine fees.

(j) HUMANE SOCIETY shall maintain accurate records of all revenues derived from Program Fees for Animal Services.

2. Records Regarding Animal Services

(a) Maintenance of Records. HUMANE SOCIETY shall maintain accurate records regarding its performance of Animal Services under this Agreement. Such records shall include Shelter Services records regarding receipt, care, reclaim and disposal of impounded animals, including names and addresses of persons reclaiming animals.

(b) Inspection of Records. HUMANE SOCIETY's Animal Services records shall be open to inspection by CITY designated representative, upon request of CITY during SOCIETY's regular business hours.

3. Time for Performance

The term of this Agreement shall be from July 1, 2000, to June 30, 2002, unless otherwise terminated pursuant to Paragraph 16.

4. Duties of CITY

(a) CITY shall promptly deliver animals impounded by its employees to HUMANE SOCIETY's shelter.

(b) CITY shall not sell, loan, give or otherwise transfer any animal in its custody to any person, group, association, society or corporation except HUMANE SOCIETY, which shall have the full and sole authority to shelter and dispose of such animal in accordance with humane principles and applicable state and local laws and ordinances; provided, however, that any such animal may, in accordance with the terms of this Agreement and the policies and procedures of HUMANE SOCIETY, be reclaimed by the owner.

(c) CITY shall be responsible for and bear the expense of arranging and conducting all required hearings regarding dangerous dogs; provided, that HUMANE SOCIETY'S animal control officers shall appear at any such hearing if required.

5. Compensation

(1) The $164,630 fixed fee shall be adjusted by the percentage of gain, if any, rounded to the nearest tenth, of the Consumer Price Index for All Urban Consumers ("CPI-U")(1982-84=100) of the United States Department of Labor, Bureau of Labor Statistics, for San Francisco-Oakland-San Jose for the period of May 2000/ May 2001(published about June 15), and rounded to the nearest whole dollar.

(g) The fees set forth in this section shall be full compensation for the services rendered pursuant to this Agreement.

6. Conflict of Interests

No officer or employee of CITY shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof. During the term of this Agreement HUMANE SOCIETY shall not accept employment or an obligation, which is inconsistent or incompatible with HUMANE SOCIETY's obligations under this Agreement.

7. Confidential Information

HUMANE SOCIETY shall maintain in confidence and at no time use, except to the extent required to perform its obligations hereunder, any and all proprietary or confidential information of CITY of which HUMANE SOCIETY may become aware in the performance of its services.

8. Compliance with Laws

(a) HUMANE SOCIETY shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, gender, age (persons 40 years of age or older), disability, national origin, or any other basis to the extent prohibited by federal, state or local law.

(b) HUMANE SOCIETY shall comply with all federal, state and city laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the Agreement.

9. Independent Contractor Relationship

This Agreement shall in no way be construed to constitute HUMANE SOCIETY as the partner, legal representative or employee of CITY for any purpose whatsoever, or as the agent of CITY, and neither party shall act or attempt to act or represent itself directly or by implication as having any such status or relationship. The parties have the relationship of independent contractors, and except as specifically provided in this Agreement, each party shall be solely responsible for all obligations and liabilities pertaining to the business, activities and facilities of that party, including, but not limited to, employee benefits.

10. Indemnity

HUMANE SOCIETY shall defend, with counsel approved by CITY, indemnify and hold harmless CITY, it’s officers, employees and agents against any and all claims, actions, losses, liabilities, civil damages, civil penalties, civil fines, or expenses (including attorneys’ fees) arising out of, based upon, or resulting in any way from work or services performed under this AGREEMENT due to any alleged or actual, willful or negligent acts (active or passive) or omissions by HUMANE SOCIETY’S officers, employees or agents, excepting only those claims, actions, losses, liabilities, civil damages, civil penalties, civil fines or expenses (including attorneys’ fees) arising out of, based upon, or resulting from the required holding periods for animals contained in California Food and Agricultural Code Sections 31108, 31752, 31752.5, 31753 and 31754 in effect on July 1, 2000 when the claim, action, loss, liability, civil damage, civil penalty, civil fine, or expense results from or is alleged to have resulted from the insufficiency of the HUMANE SOCIETY’S physical facilities (and necessary conduct directly resulting from or alleged to have directly resulted from that insufficiency) and not to the actions or omissions of the HUMANE SOCIETY that are unrelated to the insufficiency of the HUMANE SOCIETY’S physical facilities. If it ultimately is determined by a court of competent jurisdiction or other binding process, or if CITY and the HUMANE SOCIETY agree, that the claim, action, loss, liability, civil damage, civil penalty, civil fine, or expense did not result from the insufficiency of the HUMANE SOCIETY’S physical facilities (and necessary conduct directly resulting from that insufficiency), then the HUMANE SOCIETY shall defend, indemnify and hold harmless CITY pursuant to this SECTION. The acceptance of any services and duties by CITY shall not operate as a waiver of such right of indemnification.

CITY shall defend, indemnify and hold harmless HUMANE SOCIETY, its officers, employees, and agents against claims, actions, losses, liabilities, civil damages, civil penalties, civil fines or expenses arising out of, based upon, or resulting from or alleged to have resulted from the required holding periods for animals contained in California Food and Agricultural Code Sections 31108, 31752, 31752.5, 31753, and 31754 in effect on July 1, 2000 when the claim, action, loss, liability civil damage, civil penalty, civil fine or expense results from or is alleged to have resulted from the insufficiency of the HUMANE SOCIETY’S physical facilities (and necessary conduct directly resulting from or alleged to have directly resulted from that insufficiency) and not to the actions or omissions of the HUMANE SOCIETY that are unrelated to the insufficiency of the HUMANE SOCIETY’S physical facilities. If it ultimately is determined by a court of competent jurisdiction or other binding process, or if the CITY and the HUMANE SOCIETY agree, that the claim, action, loss, liability, civil damage, civil penalty, civil fine or expense did not result from the insufficiency of the HUMANE SOCIETY’S physical facilities (and necessary conduct directly resulting from that insufficiency), then the CITY shall not be required to defend, indemnify and hold harmless the HUMANE SOCIETY pursuant to this SECTION.

11. Insurance

HUMANE SOCIETY shall take out and maintain during the life of this Agreement policies of insurance as specified in Exhibit "C" attached and incorporated by reference, and shall provide all certificates and/or endorsements as specified in Exhibit "C."

12. CITY Representative

Irwin I. Bakin, Director of Public Safety, as the City Manager's authorized representative, shall represent CITY in all matters pertaining to the services to be rendered under this Agreement. All requirements of CITY pertaining to the services and materials to be rendered under this Agreement shall be coordinated through the CITY representative.

13. HUMANE SOCIETY Representative

Christine B. Arnold shall represent HUMANE SOCIETY in all matters pertaining to the services and materials to be rendered under this Agreement; all requirements of HUMANE SOCIETY pertaining to the services or materials to be rendered under this Agreement shall be coordinated through the HUMANE SOCIETY representative.

14. Notices

All notices required by this Agreement shall be in writing, and shall be personally delivered, sent by first class mail with postage prepaid, or by commercial courier, addressed as follows:

To CITY:

Irwin I. Bakin, Director of Public Safety
CITY OF SUNNYVALE
P.O. Box 3707
Sunnyvale, CA 94088-3707

To HUMANE SOCIETY:

Christine B. Arnold, Executive Director
Humane Society of Santa Clara Valley
2530 Lafayette Street
Santa Clara, CA 95050

Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by telephone or facsimile transmission, to accomplish timely communication. However, to constitute effective notice, written confirmation or a telephone conversation or an original of a facsimile transmission must be sent by first class mail, by commercial carrier, or hand-delivered. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of three days after mailing, unless such date is a date on which there is no mail service. In that event communication is deemed to occur on the next mail service day.

15. Assignment

Neither party shall assign or sublet any portion of this Agreement without the prior written consent of the other party.

16. Termination

(a) This Agreement may be terminated at any time prior to June 30, 2002 upon the written consent of both parties, or by either party immediately upon notice to the other, if the other breaches any material obligation under this Agreement and such breach remains unremedied for at least thirty (30) days following written notice thereof to the breaching party.

(b) Upon the effective date of any termination of this Agreement, HUMANE SOCIETY’s obligation to provide Animal Services to CITY under this Agreement shall cease, and CITY's obligation to make payments hereunder for periods of time after the effective date of termination shall cease, provided that the parties shall have any and all remedies available under law for any breach of this Agreement.

17. Arbitration

Any dispute between HUMANE SOCIETY and CITY in connection with this Agreement which cannot be settled by the parties shall be decided in accordance with the arbitration rules and procedures set forth in California Code of Civil Procedure Section 1280 et. seq. The decision of the arbitrators on any matter submitted to arbitration hereunder shall be final and binding upon the parties. The decision of the arbitrators may include an award or allocation of fees and costs incurred by the parties in the arbitration proceedings.

18. Interpretations

In construing or interpreting this Agreement, the word "or" shall not be construed as exclusive, and 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 or against any party, and any ambiguity shall not be construed against the drafting party.

19. 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. If an illegal provision cannot be modified to render it legal, then that provision shall be severed with no effect on the other provisions of this Agreement.

20. Entire Agreement Amendment

This writing constitutes the entire agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing signed by all parties.

21. Miscellaneous

Time shall be of the essence in this Agreement. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision. This Agreement shall be governed and construed in accordance with the laws of the State of California.

IN WITNESS WHEREOF, the parties have executed this Agreement.

HUMANE SOCIETY OF SANTA CLARA
VALLEY ("HUMANE SOCIETY")

By_____________________________

Christine B Arnold
Executive Director

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