ANIMAL SERVICES AGREEMENT
between
HUMANE SOCIETY SILICON VALLEY
a Non-Profit Public Benefit Corporation

and

CITY OF SUNNYVALE
a Municipal Corporation

ANIMAL SERVICES AGREEMENT

This Animal Services Agreement ("Agreement") is entered into as of the 1st day of July 2003 (the "Effective Date") by Humane Society Silicon Valley, a California non-profit public benefit corporation ("HUMANE SOCIETY"), and the City of Sunnyvale, a municipal corporation ("CITY"), collectively referred to as Parties.

RECITALS

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; and

Whereas: HUMANE SOCIETY possesses the facilities, skills, and expertise to provide the required services; and

Whereas: CITY has decided to contract with HUMANE SOCIETY for these services until such time as it can acquire the necessary facility, management and personnel to provide these services itself or through some other arrangement; and

Whereas: CITY and HUMANE SOCIETY have negotiated the terms contained in this Agreement whereby Humane Society has agreed to provide shelter and dead animal services in consideration for certain payments and promises by CITY.

AGREEMENT

Now, therefore, in consideration of the mutual covenants set forth, the Parties agree as follows:

1. TERM

1. Term: The term of this shall be for a period from July 1, 2003, the Effective Date, through June 30, 2005, the Termination Date. An additional optional year, or portion thereof, has been agreed to per the section below.
2. Extension: In the event that the term of this Agreement may need to be extended beyond the Termination Date or option year. Not less than six (6) months prior to the Termination Date, the Parties shall meet in good faith to discuss any necessary monthly extension of the Agreement on essentially the same terms and conditions, including the Payment Amount described in Section 8(c).

2. ANIMAL SERVICES

1. Services Provided: For the consideration set forth herein, HUMANE SOCIETY shall provide to CITY the Shelter Services and Dead Animal Services described in this Agreement. These two categories of services are collectively referred to herein as the "Animal Services," and each category of services is sometimes hereinafter referred to as a "Program Unit." The Animal Services shall be provided by HUMANE SOCIETY in accordance with all applicable federal, state, and local laws and ordinances.
2. Commencement of Service: The Shelter Services and Dead Animal Services shall begin on the Effective Date of July 1, 2003.

3. SHELTER SERVICES

1. Shelter Services: HUMANE SOCIETY shall provide the following services, including shelter facilities, supplies, animal attendants, supervisors and administrative personnel, and any other equipment, supplies and personnel reasonably required to perform the following services (the "Shelter Services").

                                                                                i.            (i) Shelter of abandoned, impounded, lost or stray domestic animals brought to the shelter from CITY.

                                                                               ii.            Quarantine of biting animals.

                                                                             iii.            Rabies testing of suspect animals.

                                                                            iv.            Provision for surrender and reclaim of abandoned, lost or stray domestic animals during established business hours.

                                                                              v.            Euthanization and disposal of abandoned, lost, impounded, or stray domestic animals that are unclaimed by their owners and fail to be adopted.

2. Medical Services: As part of the Shelter Services, HUMANE SOCIETY shall provide the following services, including office facilities, supplies, and professional and trained personnel, employed or under contract, necessary to perform the following services (the "Medical Services"):

                                                                                i.            Provision of Veterinarian services twenty-four (24) hours per day

to treat and provide veterinarian care to stray, injured, or sick

dogs, cats, and other impounded animals.

(ii) Monitor impounded quarantined biter animals.

                                                                               ii.            Provide Vaccination services, and free of charge to the public,

rabies control information.

3. Operating Schedules: HUMANE SOCIETY shall provide Shelter Services for the animals twenty-four (24) hours a day, seven (7) days a week. The HUMANE SOCIETY Shelter shall be open to the public, at a minimum, from 11:00 a.m. to 6:00 p.m., Monday through Friday, and from 10:00 a.m. to 5:00 p.m. on Saturday and Sunday. These hours may be reasonably adjusted from time to time by HUMANE SOCIETY, with prior approval by CITY, so long as the HUMANE SOCIETY Shelter remains open for at least 49 hours per week. If the HUMANE SOCIETY plans or intends any change in public business hours or adjustment to regularly scheduled staffing hours that may last for more than one month, the HUMANE SOCIETY shall notify CITY at least thirty (30) days prior to the date that the change or adjustment is intended to be implemented. Regular business hours for the provision of Medical Services by the HUMANE SOCIETY shall be, at a minimum, from 9:00 a.m. to 6:00 p.m., Monday through Friday. The HUMANE SOCIETY shall provide emergency veterinary services in accordance with Section 597f of the California Penal Code. If emergency veterinary services are needed on weekends, holidays, outside of regular office hours of the HUMANE SOCIETY, or whenever veterinary services are otherwise generally unavailable, HUMANE SOCIETY shall contract for these emergency veterinary services, at no additional expense to CITY, at local veterinary clinics or wherever emergency veterinary services are available.

4. DEAD ANIMAL SERVICES

1. Dead Animal Services: HUMANE SOCIETY shall provide storage facilities, disposal mechanisms, administrative personnel, and any other equipment, supplies and personnel required to perform the following services (the "Dead Animal Services"):

                                                                               ii.            Owner identification and notification, if possible.

                                                                             iii.            Disposal.

2. Operating Schedules: HUMANE SOCIETY shall be available to the public for drop-off and disposal of dead animals at its shelter facility seven (7) days a week, twenty-four (24) hours a day.

5. RECORDS REGARDING ANIMAL SERVICES

1. Maintenance of Records: HUMANE SOCIETY shall maintain accurate records regarding its performance of Animal Services under this Agreement for a period of three (3) years. Such records shall include Shelter Services records regarding receipt, care, reclaim, and disposition of abandoned, impounded, lost or stray domestic animals, including names and addresses of persons reclaiming animals; and Dead Animal Services Records regarding receipt and disposal of dead animals.
2. Inspection of Records: HUMANE SOCIETY’s records regarding Animal Services shall be open to inspection by CITY, upon request of CITY during HUMANE SOCIETY ’s regular business hours.
3. Monthly Report: HUMANE SOCIETY shall deliver to CITY during the term of this AGREEMENT a monthly Animal Control and Impound Report summarizing Shelter Services and Dead Animal Services provided by HUMANE SOCIETY to CITY. This report shall include but not be limited to the following information:

                                                                                i.            Number of live animals, broken down by type of animal, brought to the shelter by
a. Animal Control
b. CITY residents

                                                                               ii.            Number of dead animals picked up and brought to the shelter by
a. Animal Control
b. CITY residents

4. Yearly Report: HUMANE SOCIETY shall complete and submit to the County of Santa Clara Public Health Department the Annual Report of Local Rabies Control Activities on behalf of CITY.

6. PROGRAM REVENUE

1. Fees Collected by HUMANE SOCIETY: HUMANE SOCIETY collects fees, charges, and penalties ("Program Fees") from the public in connection with some of the Animal Services it provides. These Program Fees are established by CITY by resolution (as set forth in Exhibit A). If no fee or charge has been established by CITY for an Animal Service, HUMANE SOCIETY shall work with CITY to determine the appropriate fee or charge for that service and shall impose that fee or charge after it has been duly adopted by CITY and becomes effective.
2. Payment of Program Fees to CITY: 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 to contract veterinary providers, shall be paid monthly by the HUMANE SOCIETY to CITY by the fifteenth (15th) business day of the month immediately following the month in which the Program Fees were collected.
3. Program Revenue Records: HUMANE SOCIETY shall maintain accurate records of all revenues derived from the Program Fees for Animal Services. Such records shall be available for inspection by CITY in the manner provided in Section 8(c).
4. Monthly Fee Statement: HUMANE SOCIETY shall provide to CITY with each monthly payment of Program Fees, a statement of Program Fees collected that shows the total amount of Program Fees collected and the total amounts collected in each fee category, such as impound, quarantine and board fees.

7. ANIMAL LICENSING

HUMANE SOCIETY, in connection with its Shelter Services, shall assist CITY in licensing activities when the HUMANE SOCIETY releases impounded dogs, or other animals to which licensing is applicable that are reclaimed by their owners at the shelter, where CITY licensing forms and other requirements for licensing, including rabies vaccination certificates, are provided or available to HUMANE SOCIETY.

8. Payment Provisions

a) Timely Payments: CITY shall promptly deliver to HUMANE SOCIETY the payments required under this for the Animal Services provided by HUMANE SOCIETY.

b) Payment Schedule:. Payments shall be made to the HUMANE SOCIETY in equal monthly installments as defined in 7(c). The HUMANE SOCIETY agrees to invoice CITY fifteen (15) calendar days before the first (1^st) of the following month. All installment payments by CITY shall be due and payable in advance on the first (1^st) business day of each month during the term of this, and if unpaid, shall be delinquent on the tenth (10^th) business day of each month without demand or notice to CITY. Five percent (5%) of the amount of all delinquent payments shall be added as a service charge and shall be payable by CITY together with the delinquent payments.

c) Payment Amounts: For all Animal Services to be provided by and for the performance of all other obligations of the HUMANE SOCIETY to CITY under this, CITY agrees to pay HUMANE SOCIETY the following sums forthe defined periods:

Cost Per Live Stray Animal

Fiscal Year (Domestic or Wild) Impound

o        FY2004 7/1/03 – 6/30/04 $129

o        FY2005 7/1/04 – 6/30/05 $138

o        FY2006 7/1/05 – 6/30/06 (extension, if needed) $148

The cost for sheltering services will be derived based on the number of live animals impounded into the HUMANE SOCIETY. The "live animal" cost incorporates all administrative costs as well as the costs associated with medical and dead animal services. An animal count will be agreed to between the CITY and HUMANE SOCIETY at the beginning of each fiscal year. This agreed count will form the basis of the monthly billings throughout the year. The agreed count will be adjusted every six (6) months. Any overages will be separately billed to the CITY or any underages will be separately rebated back to the CITY, and the monthly billing amount for the next six (6) months adjusted if needed.

d) Inspection of Financial Records: HUMANE SOCIETY’s financial books and records pertaining to its provision of Animal Services shall be open to inspection and audit by CITY at CITY’s expense, at any time during normal business hours during the term of this.

9. TERMINATION OF AGREEMENT

1. Termination: This may be terminated earlier at any time

(i) Upon the written consent of both CITY and the HUMANE SOCIETY.

(ii) By either CITY or the HUMANE SOCIETY immediately upon notice to the other, if the other breaches any material obligation under this and such breach remains unremedied for at least thirty (30) days following written notice thereof to the breaching party.

(iii) Immediately upon written notice by CITY to HUMANE SOCIETY if HUMANE SOCIETY has a receiver appointed for all or substantial part of its business or assets, if a bankruptcy proceeding is brought by or against HUMANE SOCIETY as a debtor, or if HUMANE SOCIETY ceases its business operations.

(iv) Upon at least three (3) months prior written notice by CITY to HUMANE SOCIETY of its desire to terminate this or Program Unit.

(v) Upon at least six (6) months prior written notice by HUMANE SOCIETY to CITY of its desire to terminate this or Program Unit

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

10. INDEMNIFICATION

HUMANE SOCIETY shall defend, with counsel approved by CITY, indemnify and hold harmless CITY, its 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 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 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 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 CITY shall not be required to defend, indemnify and hold harmless the HUMANE SOCIETY pursuant to this SECTION.

11. INSURANCE

HUMANE SOCIETY agrees to procure and maintain at its own expense the insurance policies set forth in EXHIBIT B, entitled "Insurance," which is attached hereto and incorporated herein. All policies, endorsements, certificates and/or binders shall be subject to approval by CITY as to form and content. These requirements are subject to amendment or waiver if so approved by CITY. HUMANE SOCIETY agrees to provide CITY with a copy of all the policies, certificates and/or endorsements before work commences under this AGREEMENT and to maintain such policies, certificates and/or endorsements in full force and effect during the term of this.

12. INDEPENDENT CONTRACTOR RELATIONSHIP

This 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, except as agent for the limited purpose of providing Animal Services in accordance with this. Neither party shall act or attempt to act or represent itself directly or by implication as having any partner, legal representative or employee status or relationship. The parties shall have the relationship of independent contractors, and except as specifically provided in this, each party shall be solely responsible for all obligations and liabilities pertaining to the business, activities, and facilities of that party. As an independent contractor, HUMANE SOCIETY shall obtain no rights to retirement benefits or other benefits which accrue to CITY’s employees, and HUMANE SOCIETY hereby expressly waives any claim it may have to any such rights.

13. ASSIGNABILITY

CITY and the HUMANE SOCIETY acknowledge and agree that the expertise and experience of HUMANE SOCIETY are material considerations inducing CITY to enter into this. Neither CITY nor the HUMANE SOCIETY shall assign or transfer any interest in this, nor the performance of any obligations hereunder, without the prior written consent of the other, and any attempt by either CITY or the HUMANE SOCIETY to assign this or any rights, duties or obligations arising hereunder shall be void and of no effect.

14. NOTICES

Any notices permitted or required hereunder shall be deemed to have been received when delivered in person or on the third (3rd) business day after the date on which mailed, by registered or certified mail, postage prepaid, and addressed to the party (City Manager of the CITY at P. O. Box 3707, Sunnyvale, CA 94088-3707 and the President of the HUMANE SOCIETY at 2530 Lafayette Street, Santa Clara, CA 95050) for whom intended at the address set forth below its signature at the end of this.

15. NONDISCRIMINATION

HUMANE SOCIETY warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. HUMANE SOCIETY does not and shall not discriminate against persons employed or seeking employment with it or persons receiving or seeking services from it on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act.

16. OWNERSHIP OF MATERIALS

All reports, documents or other materials provided to CITY by the HUMANE SOCIETY shall upon delivery thereof become the property of CITY, without restriction or limitation upon their subsequent use; provided, however, that data base software programs or other data organization methods used by the HUMANE SOCIETY in preparing the report, document, or other material provided to CITY by the HUMANE SOCIETY shall remain the exclusive property of the HUMANE SOCIETY, without restriction or limitations upon their use.

17. GIFTS

1. The HUMANE SOCIETY is aware that CITY has prohibitions against the acceptance of gifts by a CITY officer or employee.
2. The HUMANE SOCIETY agrees not to offer any CITY officer or employee gifts prohibited by the Purchasing Ordinance in the Sunnyvale Municipal Code, or applicable State law.
3. The offer or giving of any gift prohibited by the Purchasing Ordinance in Sunnyvale Municipal Code, or applicable State law shall constitute a material breach by the HUMANE SOCIETY. In addition to any other remedies CITY may have in law or equity, CITY may terminate this for such breach as provided in Section 9.

18. VENUE

In the event that suit shall be brought by either party to this against the other party, the Parties agree that the venue shall be exclusively vested in the County of Santa Clara Superior Court, or where otherwise appropriate, exclusively in the United States District Court, Northern District of California, San Jose, California.

19. GENERAL PROVISIONS

1. Entire Agreement: This constitutes the entire AGREEMENT between the Parties hereto relating to Animal Services and supersedes all prior and contemporaneous oral and written commitments, understandings and agreements. No changes or modifications to this shall be valid or binding unless contained in a written document executed by the Parties.
2. Waivers: No delay or failure of either party to exercise or enforce at any time any right or provision of this shall be considered a waiver thereof or of such party’s right thereafter to exercise or enforce each and every right and provision of this. 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 HUMANE SOCIETY shall not be deemed to be a waiver of any term or condition of this.
3. Interpretations: In construing or interpreting this, the word "or" shall not be construed as exclusive, and the word "including" shall not be limiting. The Parties agree that this shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party, and any ambiguity shall not be interpreted against the drafting party.
4. Invalid Provisions: If any provision of this 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 shall not be affected thereby.
5. 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 provisions of this.
6. California Law: This shall be governed by and construed and enforced in accordance with the laws of the State of California.
7. Compliance with Laws and Regulations: The enumeration of certain tasks in this Agreement does not relieve the Parties of the obligation to perform all tasks necessary for their performance in accordance with applicable laws and regulations.

IN WITNESS WHEREOF, the parties hereto have executed this as of the effective Date.

CITY OF SUNNYVALE ("CITY")

A MUNICIPAL CORPORATION

BY ______________________________

Robert S. LaSala, City Manager

ATTEST: APPROVED AS TO FORM

BY ____________________

City Clerk

By ____________________

Valerie J. Armento, City Attorney

Address:
P.O. Box 3707
Sunnyvale, CA 94088-3707

HUMANE SOCIETY SILICON VALLEY ("HUMANE SOCIETY")
A NON-PROFIT PUBLIC BENEFIT CORPORATION

By _____________________________

President

Address:

2530 Lafayette Street

Santa Clara, CA 95050

EXHIBIT A
FEE SCHEDULE

EXHIBIT B
INSURANCE

HUMANE SOCIETY, at HUMANE SOCIETY’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 HUMANE SOCIETY, its agents, representatives, employees or subcontractors.

            A. Minimum Scope of Insurance

         Coverage shall be at least as broad as:

1. The coverage described in Insurance Services Office Form Number GL 0002 (Ed. 1/73) covering Commercial General Liability together with Insurance Services Office Form Number GL 0404 covering Broad Form Comprehensive General Liability; or that described in Insurance Services Office Commercial General Liability coverage ("occurrence") Form Number CG 0001, including X, C, U where applicable; and

2. The coverage described in Insurance Services Office Form Number CA 0001 (Ed. 6/92) covering Automobile Liability, Code 1 "any auto," or Code 2 "owned autos" and Endorsement CA 0025. Coverage shall also include Code 8 "hired autos:" and Code 9 "non-owned autos"; and

3. Worker’s Compensation insurance as required by the California Labor Code and Employers Liability Insurance; and

4. Veterinary Professional Liability Errors and Omissions.

B. Minimum Limits of Insurance

HUMANE SOCIETY shall maintain limits no less than:

1. Commercial General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage, subject to a general aggregate of $1,000,000: and

2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage; and

3. 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

4. Professional Liability Errors and Omissions $1,000,000 General Aggregate Limit.

C. Deductibles and Self-Insured Retentions

Any deductibles or self-insured retentions must be declared to, and approved by CITY. 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 HUMANE SOCIETY shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in amount specified by CITY.

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

a. CITY, its officers, employees, agents and contractors are to be covered as additional insureds as respect to: Liability arising out of activities performed by or on behalf of HUMANE SOCIETY; products and completed operations of HUMANE SOCIETY; premises owned, leased or used by HUMANE SOCIETY; and automobiles owned, leased, hired or borrowed by HUMANE SOCIETY. The coverage shall contain no special limitations on the scope of protection afforded to SVACA, its officers, employees, agents and contractors.

b. HUMANE SOCIETY’s insurance coverage shall be primary insurance as respect to: 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 HUMANE SOCIETY’s insurance and shall not contribute with it.

c. Any failure to comply with reporting provisions of the policies by HUMANE SOCIETY shall not affect coverage provided CITY, its officers, employees, agents, or contractors.

d. Coverage shall state that HUMANE SOCIETY'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.

2. 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.

E. Acceptability of Insurers

Insurance is to be placed with insurers acceptable to CITY.

F. Verification of Coverage

HUMANE SOCIETY shall furnish CITY with certificates of insurance and with original edorsements effecting 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 mailed to the following addresses or any subsequent addresses as may be directed in writing by CITY.

G. Subcontractors

HUMANE SOCIETY shall include all subcontractors as insureds under its policies or shall obtain separate certificates and endorsements for each subcontractor.