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HomeMy WebLinkAbout2013/04/16 Item 04CITY COUNCIL AGENDA STATEMENT ~~ CITY OF CHUTAVISTA APRIL 16, 2013, Item ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE COMPETITIVE FORMAL BID REQUIl2EMENT, APPROVING AN AGREEMENT WITH DR. DOROTHY DAVIDSON-YORK, DVM FOR VETERINARY SERVICES AT THE CHULA VISTA ANIMAL CARE FACILITY AND THE CHULA VISTA ANIMAL CARE FACILITY "SPAY SHUTLE AND ADOPTION MODULE" BUS SUBMITTED BY REVIEWED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE COMPETITIVE FORMAL BID REQUIREMENT, APPROVING AN AGREEMENT WITH DR. TERRY K. PAIK, DVM FOR VETERINARY SERVICES AT THE CHULA VISTA ANIMAL CARE FACILITY AND THE CHULA VISTA ANIMAL CARE FACILITY "SPAY SHUTLE AND ADOPTION MODULE" BUS , / ANIMAL CARE FACILITY MANAGER CITY MANAGE _1~t~ ASSISTANT/DEPU Y CITY MANAGER d`I/ 4/STHS VOTE: YES ~ NO SUMMARY Adoption of the first resolution waives the competitive formal bid requirement and approves an agreement with Dr. Dorothy Davidson-York DVM to provide veterinary services for the Animal Care Facility and Spay Shuttle. The second resolution waives the competitive bid requirement and approves an agreement with Dr. Terry K. Paik, DVM for the provision of on-site veterinary surgery services for the facility, spay shuttle and spay and neuter public clinics as needed by the Animal Care Facility. 4-1 2oi3 ENVIRONMENTAL REVIEW This proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEQA) and it has been determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION City Council approve the resolutions. BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION Per California State Law (Hayden Bill) all animals adopted from the Chula Vista Animal Care Facility must be altered before leaving the premises. In order to comply with this requirement it is necessary for the facility to hire a veterinarian that specializes in large volume spay and neutering services. This in itself is a hard task since for the most part, veterinarians are not accustomed to performing high volume spay and neuter surgeries and to also be proficient in shelter medicine. This past year, over 2,000 in-house surgeries were performed at the Animal Care Facility. Including spay and neutering, orthopedic, soft tissue surgery and dental surgeries. Outsourcing this service would cost the City over $275,000 a year just for the surgical cases alone. On average, the facility schedules 50-60 surgeries per week. In February of 2012, the Animal Caze Facility started a no-cost spay and neutering services for low income families of Chula Vista and our contract cities. As of today, over 1,000 surgeries have been performed by offering a clinic once a week. The demand for these clinics has surpassed our expectations and we are booked a month in advance. The agreements with Dr. Dorothy Davidson-York, DVM and Dr. Terry K. Paik, DVM will enable the City to satisfy the requirement of altering adopted animals before leaving the facility and providing weekly public clinics. The cost to retain these two veterinarians is $105,000 for a full fiscal year to staff both fhe facility and public clinics. Compared to the estimated outsourcing surgical costs, this is a 58% savings in costs. By offering the public clinics it is also reducing the number of unwanted litters admitted to the shelter. The Animal Care Facility is requesting to waive the competitive formal bid to contract with Dr. Dorothy Davidson-York, DVM and Dr. Terry Paik, DVM for veterinary services at the Chula Vista Animal Care Facility and the Chula Vista Animal Care Facility "Spay Shuttle and Adoption Module" Bus. These two veterinazians are currently providing services to the Animal Care Facility in acost-efficient and effective manner. 4-2 r* 3of3 DECISION MAKER CONFLICT No Property within 500 feet Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property which is the subject of this action. Staff is not independently aware, nor has staff been informed by any City Council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CURRENT YEAR FISCAL IMPACT Approval of the resolution results in no net fiscal impact to the General Fund. These funds are currently budgeted in the Animal Care Facility budget for fiscal year 2012-13. ONGOING FISCAL IMPACT There is no new ongoing fiscal impact to the General Fund resulting from approval of this resolution. Future allocations for these costs will be considered as part of the normal budget process. ATTACHMENTS I . Agreement for Dr. York 2. Agreement for Ur. Paik Prepared by: Mariya G. Anton, Animal Care Facility Manager, Animal Care Facility 4-3 RESOLUTION NO. 2013- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE COMPETITIVE FORMAL BID REQUIREMENT, APPROVING AN AGREEMENT WITH DR. DOROTHY DAVIDSON-YORK, D.V.M., FOR VETERINARY SERVICES AT THE CHULA VISTA ANIMAL CARE FACILITY AND THE CHULA VISTA ANIMAL CARE FACILITY "SPAY SHUTTLE AND ADOPTION MODULE" BUS WHEREAS, since February 2012, the CVACF has been offering a no-cost spay and neutering services for low income families of Chula Vista and its contract cities. WHEREAS, the Chula Vista Animal Care Facility would like to enter into a contract with Dr. Dorothy Davidson-York to perform spay and neuter services at the Facility and the mobile surgical vehicle (or "Spay Shuttle"). WHEREAS, since 2008 and earlier, Dr. Dorothy Davidson-York has continued to provide high-quality, cost-effective veterinary services to the Animal Care Facility. WHEREAS, these services resulted in a net reduction in the total numbers of animal intakes for the Facility wlrich resulted h2 an overall cost savings. WHEREAS, veterinary services of the quality and value that Ms. Davidson-York provides are challenging to locate in the immediate Chula Vista.v-ea such that sending these services out to bid would be impractical at this time. WHEREAS, Dr. Davidson-York has unique working knowledge and performance capabilities of the Chula Vista Animal Care Facility procedures, policies and staff as a result of her work with the City that would be difficult to replace. _ WHEREAS, the Agreement with Dr. York will be effective until JLme 30, 2016 with a three one-year option extensions. These funds are currently budgeted in the Animal Care Facility budget for fiscal year 2012-13. WHEREAS, there is no new ongoing fiscal impact to the General Fund resulting from approval of this resolution. Future allocations for these costs will be considered as part of the normal, annual budget process. WHEREAS, the City Manager has authority to approve three one year extensions as per the Agreement. 4-4 JUNE 4, 2009, Item Page 2 of 2 WHEREAS, fhe City Connci] does hereby waive formal competirive bidding requirements with regard to this Agreement. NOW; THEREFORE, BE IT RESOLVED, with the above recitations incorporated herein, the City Council of the City of Chula Vista does hereby approve the Agreement. Presented by: Mariya G. Anton Animal Care Facility Mv~ager Approved as to form by: Glen City Attorney 4-5 RESOLUTION NO. 2013 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE COMPETITIVE FORMAL BID REQUIREMENT, APPROVING AN AGREEMENT WITH DR. TERRY K. PAIK, D.V.M., FOR VETERINARY SERVICES AT THE CHULA VISTA ANIMAL CARE FACILITY AND THE CHULA VISTA ANIMAL CARE FACILITY "SPAY SHUTTLE AND ADOPTION MODULE" BUS WHEREAS, since February 2012, the CVACF has been offering a no-cost spay and neuternrg services for low income families of Chula Vista and its contract cities. WHEREAS, the Chula Vista Animal Care Facility would like to enter into a contract with Dr. Terry Paik to perform spay and neuter services at the Facility and the mobilesurgical vehicle (or "Spay Shuttle"). WHEREAS, since 2010, Dr. Terry Paik has continued to provide high-quality, cost- effective veterinary services to the Arrimal Care Facility. WHEREAS, these services resulted in a net reduction in the total numbers of animal intakes for the Facility wlrich resulted in an overall cost savings. WHEREAS, veterinary services of the quality and value that Ms. Paik provides are challenging to locate in the immediate Chula Vista area such that sending these services out to bid worild be impractical at this time. WHEREAS, Dr. Paik has m7ique working knowledge and performance capabilities of the Chula Vista Animal Care Facility procedures, policies and staff as a result of her work with the City that would be difficult to replace. WHEREAS, the Agreement with Dr. Paik will be effective until June 30, 2016 with a three one-year option extensions. These funds are currently budgeted in the Animal Care Facility budget for fiscal year 2012-Li. WHEREAS, there is no new ongoing fiscal impact to the General Fund resulting from approval of this resolution. Future allocations for these costs will be considered as pazt of the normal, anmurl budget process. WHEREAS, the City Manager has authority to approve three one year extensions as per the Agreement. WHEREAS, the City Council does hereby waive formal competitive bidding requirements with regard to this Agreement. 4-6 JUNE 4, 2009, Item Page 2 of 2 NOW, THEREFORE, BE IT RESOLVED, with the above recitations incorporated herein, the City Council of the City of Chula Vista does hereby approve the Agreement. Presented by: Mariya G. Anton Animal Care Facility Manager Approved as to form by: ~,--''~' l C~~ Glen R. Googins City Attorney 4-7 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~--° ~/~ Glen R. Googins City Attorney Dated: ~ ! Z Y ~~ AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND DR. DOROTHY DAVIDSON-YOKR, DVM MPVM 4-8 Parties and Recital Pages Agreement between City of Chula Vista and Dr. Dorothy Davidson-York, DVM MPVM for Veterinary Services at the Chula Vista Animal Care Facility and the Chula Vista Animal Care Facility "Spay Shuttle and Adoption Module" bus. This agreement ("Agreement"), dated March 31, 2013 for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Contractor, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Contractor"), and is made with reference to the following facts: Recitals Whereas, City owns and operates the Chula Vista Animal Care Facility, a municipal animal care facility (the "Facility"); and, Whereas, City owns and operates the Chula Vista Animal Care Facility Spay Shuttle and Adoption Module, a municipal animal care facility mobile unit (the "Bus"); and, Whereas, the Chula Vista Animal Care Facility requires general veterinary services for shelter medicine support as well as general surgery and in-house spay/neuter surgeries; and Whereas, the Chula Vista Animal Care Facility requires general veterinary services for spay/neuter clinics on the "Bus"; and Whereas Dr. Dorothy Davidson-York, DVM MPVM, has agreed to provide these services on up to a weekly basis according to a schedule agreeable to both parties; and Whereas, Contractor warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Contractor to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; and Whereas, Contractor will receive monetary consideration in the form of hourly or daily rates for the above Contractor services provided to the City. (End of Recitals. Next Page starts Obligatory Provisions.) 4-8 Page 1 Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Contractor do hereby mutually agree as follows: 1. Contractor's Duties A. General Duties Contractor shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Contractor shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Contractor, from time to time reduce the Defined Services to be performed by the Contractor under this Agreement. Upon doing so, City and Contractor agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Contractor to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Contractor, Contractor shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 10(C)(2), unless a sepazate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Contractor, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. 4-10 Page 2 F. Insurance Contractor must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the contract and the results of that work by the Contractor, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. The insurance must be maintained for the duration of the contract. Minimum Scope of h~surance Professional Liability or Errors & Omissions Liability insurance appropriate to the Contractor's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance Contractor must maintain limits no less than: 1. Professional Liability or $1,000,000 each occurrence Errors & Omissions Liability: Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles orself-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Contractor will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions (A) The insurance policy required by this clause must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by certified mail, return receipt requested. B. If Professional or Errors & Omissions coverage are written on a claims-made form: (1) The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. 4-1 1 Page 3 (2) Insurance must be maintained and evidence of insurance must be provided for at least five (1) year after completion of the contract work. (3) A copy of the claims reporting requirements must be submitted to the City for review. Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Contractor shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. H. Business License Contractor agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Contractor for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Contractor throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed, shall constitute a basis for the justifiable delay in the Contractor's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Contractor submitted to the City periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate 4-12 Page 4 Contractor for all services rendered by Contractor according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "chechmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Contractor for out of pocket expenses as provided in Exhibit A, Paragraph 11. All billings submitted by Contractor shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon malting such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term The term of this Agreement shall be for 36 months. However, the Parties can agree to extend the term of this Agreement for an additional three one-year terms upon written approval by the City Manager. If the term of this Agreement is not extended, it shall terminate on March 31, 2017. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. It is acltnowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: Far each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Contractor shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). Time extensions for delays beyond the Contractor's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 4-13 Page ~ 6. Financial Interests of Contractor A. Contractor is Designated as an FPPC Filer If Contractor is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Contractor is deemed to be a "Contractor" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerlc on the required Statement of Economic Interests in such reporting categories as are specified in Pazagraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate Regardless of whether Contractor is designated as an FPPC Filer, Contractor shall not make, or participate in making or in any way attempt to use Contractor's position to influence a governmental decision in which Contractor knows or has reason to know Contractor has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests Regardless of whether Contractor is designated as an FPPC Filer, Contractor warrants and represents that Contractor has diligently conducted a seazch and inventory of Contractor's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Contractor does not, to the best of Contractor's knowledge, have an economic interest which would conflict with Contractor's duties under this agreement. D. Promise Not to Acquire Conflicting Interests Regardless of whether Contractor is designated as an FPPC Filer, Contractoz further warrants and represents that Contractor will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests Regardless of whether Contractor is designated as an FPPC Filer, Contractor further warrants and represents that Contractor will immediately advise the City Attorney of City if Contractor leanis of azi economic interest of Contractor's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests Contractor warrants and represents that neither Contractor, nor Contractor's immediate family members, nor Contractor's employees or agents ("Contractor Associates") presently have any interest, directly or indirectly, whatsoever in any property which maybe the subject matter 4-14 Page 6 of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which maybe the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. Contractor further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Contractor or Contractor Associates in connection with Contractor's performance of this Agreement. Contractor promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. Contractor agrees that Contractor Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. Contractor may not conduct or solicit any business for any party to this Agreement, or for any third party that maybe in conflict with Contractor's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Contractor shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Contractor, and Contractor's employees, subcontractors or other persons, agencies or firms for whom Contractor is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Contractor, its employees, agents or officers, or any third party. With respect to losses arising from Contractor's professional errors or omissions, Contractor shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees. Contractor's indemnification shall include any and alLcosts, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Contractor's obligations under this Section shall not be limited by any prior or subsequent declaration by the Contractor. Contractor's obligations under this Section shall survive the termination of this Agreement. 4-15 Page 7 For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers), the following indemnification provisions should be utilized: (1) Indemnification and Hold Harmless Agreement With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of the Contractor, or Contractor's employees, agents, and officers, arising out of any services performed involving this project, except liability for Professional Services covered under Section 7.2, the Contractor agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Contractor, its employees, agents or officers, or any third party. The Contractor's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Contractor's obligation and duties under Section Exhibit A to this Agreement. (2) Indemnification for Professional Services. As to the Contractor's professional obligation, work or services involving this Project, the Contractor agrees to indemnify, defend and hold harmless the City, its agents, officers and employees from and against any and all liability, claims, costs, and damages, including but not limited to, attorneys fees, that arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Contractor and its agents in the performance of services under this agreement, but this indemnity does not apply liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by City or the agents, servants, or independent contractors who are directly responsible to City, or arising from the active negligence of City. 8. Termination of Agreement for Cause If, through any cause, Contractor shall fail to fulfill in a timely and proper manner Contractor's obligations under this Agreement, or if Contractor shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Contractor of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies,. surveys, drawings, maps, reports and other materials prepared by Contractor shall, at the option of the City, become the property of the City, and Contractor shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Contractor's breach. 4-1 6 Page 8 9. Errors and Omissions In the event that the City Administrator determines that the Contractors' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Contractor shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Contractor of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Contractor shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Contractor hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Contractor are personal to the City, and Contractor shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subcontractors identified thereinas "Permitted Subcontractors" 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Contractor in the United States or in any other country without the express written consent of City. No such materials shall be presented to any party other than the Contract Administrator. City shall have unrestricted authority to publish, disclose (except as maybe limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. All information gathered by Contractor is to beheld confidential and shall not be used to defame or undermine the City organization. or any of its employees. 13. Independent Contractor 4-17 Page 9 City is interested only in the results obtained and Contractor shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Contractor's work products. Contractor and any of the Contractor's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Contractor shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Contractor shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Contractor prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Contractor shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous A. Contractor not authorized to Represent City Unless specifically authorized in writing by City, Contractor shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Contractor is Real Estate Broker and/or Salesman 4-18 Page 10 If the box on Exhibit A, Paragraph 15 is marked, the Contractor and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Contractor represents that neither Contractor, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States snail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof maybe amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Govenung Law/Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. 18. Confidentiality and Non-Discrimination Contractor agrees not to violate any City of Chula Vista policies, or any California or Federal laws or regulations, with regard to employment discrimination (on the basis of race, gender, nationality, disability, etc.) and/or sexual harassment. Should Contractor possess concerns about the job performance or professional behavior of any permanently employed City of Chula Vista employees, Contractor agrees to notify the City's Contract Administrator or Human Resources Department of any concerns, and to maintain these concerns confidentially as they relate to constitutionally protected privacy rights in employment matters. 4-19 Page 11 (End of page. Next page is signature page.) 4-20 Page 12 Signature Page to Agreement between City of Chula Vista and Dr. Dorothy Davidson-Yorlc, DVM MPVM for Veterinary Services at the Chula Vista Animal Caze Facility and the Chula Vista Animal Care Facility "Spay Shuttle and Adoption Module" bus. IN WITNESS WHEREOF, City and Contractor have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: City of Chula Vista By: Jim Sandoval, City Manager Attest: Donna Norris, City Clerlc Approved as to form: Glen Googins, City Attorney Dated: Exhibit List to Agreement (X) Exhibit A. Contractor 4-21 Page 13 Exhibit A to Agreement between City of Chula Vista and Dr. Dorothy Davidson-York, DVM MPVM for Veterinary Services at the Chula Vista Animal Care Facility and the Chula Vista Animal Care Facility "Spay Shuttle and Adoption Module" bus. 1. Effective Date of Agreement: July 1, 2013. 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California ()Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California OIndustrial Development Authority of the City of Chula Vista, a ()Other: ("City") 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Contractor: Dr. Dorothy Davidson-York, DVM MPVM 5. Business Form of Contractor: (X) Sole Proprietorship ( )Partnership ()Corporation 6. Place of Business, Telephone and Fax Number of Contractor: 4364 Bonita Rd #157 Bonita, CA 91902 619-572-4685 cell a [insert business form] Page 14 4-22 7. General Duties: Contractor shall work periodically as scheduled to provide Shelter Medicine services. 8. Scope of Worlc and Schedule: A. Detailed Scope of Worlc: Contractor shall serve as Shelter Veterinarian with services to include but not limited to the following: (1) Contractor shall perform daily rounds of all animals to check for any signs of disease. (2) Contractor shall isolate and medicate all sick animals. - - (3) Contractor shall perform and/or supervise daily treatments for all sick and injured animals. (4) Contractor shall keep current all medical protocols and procedures ensuring that all staff are kept abreast of requirements and performing accordingly. (5) Contractor shall perform medical procedures using sedation and anesthesia. (6) Contractor shall perform spay and neuter services for "Facility" and "Bus" as required by Animal Care Facility Manager. (7) Contractor shall perform general surgery as required (8) Contractor shall work closely with the Animal Care Facility Manager to ensure strong coordination within the medical team and between the medical team and all Shelter personnel to ensure that the best care is being provided to the animals and that the Shelter is delivering the best customer service possible. B. Date for Commencement of Contractor Services: (X) Same as Effective Date of Agreement ()Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: Ongoing D. Date for completion of all Contractor services: The term of this Agreement shall be for 36 months. However, the Parties can agree to extend the term of this Agreement for an additional three one-year terms upon written approval by the City Manager. Contractor agrees to give the City ninety (90) days written notice of her intent to end this Agreement. Page 15 4-23 9. Materials Required to be Supplied by City to Contractor: City will provide medical supplies within its fiscal capabilities to meet Contractor's medication recommendations and materials required for surgeries performed by Contractor. 10. Compensation: A. OSingle Fixed Fee Arrangement For performance of all of the Defined Services by Contractor as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Milestone or Event or Deliverable Amount or Percent of Fixed Fee O 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Pazagraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. O Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Contractor as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Contractor shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Contractor as to said Phase. Phase Fee for Said Phase Page 16 4-24 O 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of malting interim monthly advances shall not convert this agreement to a time and materials basis ofpayment. C. (X)Hourly Rate Arrangement for Veterinary Services For performance of the Defined Services by Contractor as herein required, City shall pay Contractor for the productive hours of time spent by Contractor in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) ONot-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Contractor of time and materials in excess of said Maximum Compensation amount, Contractor agrees that Contractor will perform all of the Defined Services herein required of Contractor for $ > including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Contractor shall have incurred time and materials equal to ($45,000) ("Authorization Limit") per year commencing July 1, 2013. Contractor shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Contractor from providing additional Services at Contractor's own cost and expense. Page 17 4-25 Rate Schedule Category of Employee Name of Contractor Hourly Rate Contractor Dr. Dorothy Davidson-York, DVM MPVM Contractor Dr. Dorothy Davidson-York, DVM. MPVM $450 per spay and neuter clinic (only a single clinic will be held on the scheduled date) $600 per pit bull spay and neuter clinic (only a single clinic will beheld on the scheduled date) $90 per hr for relief vet performed at "Facility." ()Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Contractor in the performance of services herein required, City shall pay Contractor at the rates or amounts set forth below: (X) None, the compensation includes all costs. Cost or Rate O Reports, not to exceed $ $ () Copies, not to exceed $ $ () Travel, not to exceed $ $ O Printing, not to exceed $ $ () Postage, not to exceed $ $ O Delivery, not to exceed $ $ O Long Distance Telephone Charges, not to exceed $ $ () Other Actual Identifiable Direct Costs: $ Page 18 4-26 not to exceed $ not to exceed $ 12. Contract Administrators: City: Mariya G. Anton, MPA Animal Care Facility Manager Contractor: Dr. Dorothy Davidson-York, DVM MPVM 13. Liquidated Damages Rate: O $ per day. OOther: $ 14. Statement of Economic Interests, Contractor Reporting Categories, per Conflict of Interest Code: ( X) Not Applicable. Not an FPPC Filer. O FPPC Filer ()Category No. 1. Investments and sources of income. OCategory No. 2. Interests in real property. OCategory No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ()Category No. 4. Investments in business entities and sources of income that engage in laird development, construction or the acquisition or sale of real property. OCategory No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. OCategory No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. OCategory No. 7. Business positions. OList "Contractor Associates" interests in real property within 2 radial miles of Project Property, if any: Page 19 4-27 15. O Contractor is Real Estate Broker and/or Salesman 16. Permitted Subcontractors: None 17. Bill Processing: A. Contractor's Billing to be submitted for the following period of time: ( )Monthly OQuarterly (X) Other: as work is performed and completed B. Day of the Period for submission of Contractor's Billing: ()First of the Month () 15th Day of each Month ()End of the Month (X) Other: as work is performed and completed C. City's Account Number: 18. Security for Performance Performance Bond, $ Letter of Credit, $ Other Security: Type: Amount: $ ORetention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Contractor sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ORetention Percentage: ()Retention Amount: $_ Retention Release Event: ( )Completion of All Contractor Services ()Other: H:Attorney/2ptyl S 4-28 Page 20 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~~ Glen R. oogins bsp~ ~ City Attorney Dated: ~ - ~ ~ - AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND DR. TERRY K. PAIK, DVM 4-29 Parties and Recital Pages Agreement between City of Chula Vista and Dr. Terry K. Paik, DVM for Veterinary Services at the Chula Vista Animal Care Facility and the Chula Vista Animal Caze Facility "Spay Shuttle and Adoption Module" bus. This agreement ("Agreement"), dated March 31, 2013 for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Contractor, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Contractor"), and is made with reference to the following facts: Recitals Whereas, City owns and operates the Chula Vista Animal Care Facility, a municipal animal care facility (the "Facility"); and, Whereas, City owns and operates the Chula Vista Animal Caze Facility Spay Shuttle and Adoption Module, a municipal animal care facility mobile unit (the "Bus"); and, Whereas, the Chula Vista Animal Care Facility requires general veterinary services for shelter medicine support as well as general surgery and in-house spay/neuter surgeries; and Whereas, the Chula Vista Animal Care Facility requires general veterinary services for spay/neuter clinics on the "Bus"; and Whereas Dr. Terry K. Paik, DVM has agreed to provide these services on up to a weekly basis according to a schedule agreeable to both parties; and. Whereas, Contractor warrants and represents that they are experienced and staffed in a manner such that they are and can prepaze and deliver the services required of Contractor to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; and Whereas, Contractor will receive monetary consideration in the form of hourly or daily rates for the above Contractor services provided to the City. (End of Recitals: Next Page starts Obligatory Provisions.) 4-30 Page 1 Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Contractor do hereby mutually agree as follows: 1. Contractor's Duties A. General Duties Contractor shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Contractor shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Contractor, from time to time reduce the Defined Services to be performed by the Contractor under this Agreement. Upon doing so, City and Contractor agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Contractor to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Contractor, Contractor shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 10(C)(2), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Contractor, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. 4-31 Page 2 F. Insurance Contractor must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the contract and the results of that work by the Contractor, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. The insurance must be maintained for the duration of the contract. Minimum Scope of Insurance Professional Liability or Errors & Omissions Liability insurance appropriate to the Contractor's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance Contractor must maintain limits no less than: Professional Liability or $1,000,000 each occurrence Errors & Omissions Liability: Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Contractor will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions (A) The insurance policy required by this clause must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by certified mail, return receipt requested. B. If Professional or Errors & Omissions coverage are written on a claims-made form: (1) The "Retro Date" must be shown, and must be before the date of the contract or the begimiing of the contract work. 4-32 Page 3 (2) Insurance must be maintained and evidence of insurance must be provided for at least five (1) year afer completion of the contract work. (3) A copy of the claims reporting requirements must be submitted to the City for review. Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Contractor shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. H. Business License Contractor agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Contractor for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Contractor throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed, shall constitute a basis for the justifiable-delay in the Contractor's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Contractor submitted to the City periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate 4-33 Page 4 Contractor for all services rendered by Contractor according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmazk" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Contractor for out of pocket expenses as provided in Exhibit A, Pazagraph 11. All billings submitted by Contractor shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Pazagraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term The term of this Agreement shall be for 36 months. However, the Parties can agree to extend the term of this Agreement for an additional three one-year terms upon written approval by the City Manager. If the term of this Agreement is not extended, it shall terminate on March 31, 2017. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Contractor shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Pazagraph 13 ("Liquidated Damages Rate"). Time extensions for delays beyond the Contractor's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 4-34 Page 5 6. Financial Interests of Contractor A. Contractor is Desigiated as an FPPC Filer If Contractor is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Contractor is deemed to be a "Contractor" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attomey. B. Decline to Participate Regardless of whether Contractor is designated as an FPPC Filer, Contractor shall not make, or participate in making or in any way attempt to use Contractor's position to influence a governmental decision in which Contractor knows or has reason to lrnow Contractor has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests Regardless of whether Contractor is designated as an FPPC Filer, Contractor warrants and represents that Contractor has diligently conducted a search and inventory of Contractor's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Contractor does not, to the best of Contractor's knowledge, have an economic interest which would conflict with Contractor's duties under this agreement. D. Promise Not to Acquire Conflicting Interests Regardless of whether Contractor is designated as an FPPC Filer, Contractoz further warrants and represents that Contractor will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests Regardless of whether Contractor is designated as an FPPC Filer, Contractor further warrants and represents that Contractor will immediately advise the City Attorney of City if Contractor learns of an economic interest of Contractor's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests Contractor warrants and represents that neither Contractor, nor Contractor's immediate family members, nor Contractor's employees or agents ("Contractor Associates") presently have any interest, directly or indirectly, whatsoever in any property which maybe the subject matter 4-35 Page 6 of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which maybe the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. Contractor further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Contractor or Contractor Associates in connection with Contractor's performance of this Agreement. Contractor promises to advise City of any such promise that maybe made during the Term of this Agreement, or for twelve months thereafter. Contractor agrees that Contractor Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. Contractor may not conduct or solicit any business for any party to this Agreement, or for any third party that maybe in conflict with Contractor's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Contractor shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Contractor, and Contractor's employees, subcontractors or other persons, agencies or firms for whom Contractor is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) azising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which maybe in combination with the active or passive negligent acts or omissions of the Contractor, its employees, agents or officers, or any third party. With respect to losses arising from Contractor's professional errors or omissions, Contractor shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees. Contractor's indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Contractor's obligations under this Section shall not be limited by any prior or subsequent declazation by the Contractor. Contractor's obligations under this Section shall survive the termination of this Agreement. 4-36 Page 7 For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers), the following indemnification provisions should be utilized: (1) Indemnification and Hold Harmless Agreement With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of the Contractor, or Contractor's employees, agents, and officers, arising out of airy services performed involving this project, except liability for Professional Services covered under Section 7.2, the Contractor agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which maybe in combination with the active or passive negligent acts or omissions of the Contractor, its employees, agents or officers, or any third party. The Contractor's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Contractor's obligation and duties under Section Exhibit A to this Agreement. (2) Indemnification for Professional Services. As to the Contractor's professional obligation, work or services involving this Project, the Contractor agrees to indemnify, defend and hold harmless the City, its agents, officers and employees from and against any and all liability, claims, costs, and damages, including but not limited to, attorneys fees, that arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Contractor and its agents in the performance of services under this agreement, but this indemnity does not apply liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by City or the agents, servants, or independent contractors who are directly responsible to City, or arising from the active negligence of City. 8. Termination of Agreement for Cause If, through any cause, Contractor shall fail to fulfill in a timely and proper manner Contractor's obligations under this Agreement, or if Contractor shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Contractor of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies,. surveys, drawings, maps, reports and other materials prepared by Contractor shall, at the option of the City, become the property of the City, and Contractor shall be entitled to receive just and equitable compensation fox any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Contractor's breach. 4-37 Page 8 9. Errors and Omissions In the event that the City Administrator determines that the Contractors' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Contractor shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Contractor of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Contractor shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Contractor hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability .The services of Contractor aze personal to the City, and Contractor shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subcontractors identified therein as "Permitted Subcontractors" 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Contractor in the United States or in any other country without the express written consent of City. No such materials shall be presented to any party other than the Contract Administrator. City shall have unrestricted authority to publish, disclose (except as maybe limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, farms or other materials or properties produced under this Agreement. All information gathered by Contractor is to beheld confidential and shall not be used to defame or undermine the City organization or any of its employees. 13. Independent Contractor 4-38 Page 9 City is interested only in the results obtained and Contractor shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Contractor s work products. Contractor and any of the Contractor's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Contractor shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Contractor shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Contractor prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Contractor shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous A. Contractor not authorized to Represent City Unless specifically authorized in writing by City, Contractor shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Contractor is Real Estate, Broker and/or Salesman 4-39 Page 10 If the box on Exhibit A, Paragraph 15 is mazked, the Contractor and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Contractor represents that neither Contractor, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof maybe amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing Law/Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. 18. Confidentiality azld Non-Discrimination Contractor agrees not to violate any City of Chula Vista policies, or any Califomia or Federal laws or regulations, with regard to employment discrimination (on the basis of race, gender, nationality, disability, etc.) and/or sexual harassment. Should Contractor possess concerns about the job performance or professional behavior of any permanently employed City of Chula Vista employees, Contractor agrees to notify the City's Contract Administrator or Human Resources Department of any concerns, and to maintain these concerns confidentially as they relate to constitutionally protected privacy rights in employment matters. 4-40 Page 11 (End of page. Next page is signature page.) Page 12 4-41 Signature Page to Agreement between City of Chula Vista and Dr. Terry K. Paik, DVM for Veterinary Services at the Chula Vista Animal Care Facility and the Chula Vista Animal Care Facility "Spay Shuttle and Adoption Module" bus. IN WITNESS WHEREOF, City and Contractor have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: City of Chula Vista By: Jim Sandoval, City Manager Attest: Donna Norris, City Clerk Approved as to form: Glen Googins, City Attorney Dated: Exhibit List to Agreement (X) Exhibit A. Contractor _D . erry K. Paik, DVM 4-42 Page 13 Exhibit A to Agreement between City of Chula Vista and Dr. Terry K. Paik, DVM for Veterinary Services at the Chula Vista Animal Care Facility and the Chula Vista Animal Care Facility "Spay Shuttle and Adoption Module" bus. 1. Effective Date of Agreement: July 1, 2013. 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California ORedevelopment Agency of the City of Chula Vista, a political subdivision of the State of California OIndustrial Development Authority of the City of Chula Vista, a OOther: ("City") 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Contractor: Dr. Terry K. Pails, DVM 5. Business Form of Contractor: (X) Sole Proprietorship ( )Partnership ( )Corporation 6. Place of Business, Telephone and Fax Number of Contractor: 420 Dewane Dr. El Cajon, CA 92020 619-588-8461 a [insert business form Page 14 4-43 7. General Duties: Contractor shall work periodically as scheduled to provide Shelter Medicine services. 8. Scope of Worlc and Schedule: A. Detailed Scope of Work: Contractor shall serve as Shelter Veterinarian with services to include but not limited to the following: (1) Contractor shall perform daily rounds of all animals to check for any signs of disease. (2) Contractor shall isolate and medicate all sick animals. - (3) Contractor shall perform and/or supervise daily treatments for all sick and injured animals. (4) Contractor shall keep current all medical protocols and procedures ensuring that all staff aze kept abreast of requirements and performing accordingly. (5) Contractor shall perform medical procedures using sedation and anesthesia. (6) Contractor shall perform spay and neuter services for "Facility" and "Bus" as required by Animal Caze Facility Manager. (7) Contractor shall perform general surgery as required (8) Contractor shall work closely with the Animal Care Facility Manager to ensure strong coordination within the medical team and between the medical team and all Shelter personnel to ensure that the best care is being provided to the animals and that the Shelter is delivering the best customer service possible. B. Date for Commencement of Contractor Services: (X) Same as Effective Date of Agreement ()Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: Ongoing D. Date for completion of all Contractor services: The term of this Agreement shall be for 36 months. However, the Parties can agree to extend the term of this Agreement for an additional three one-year terms upon written approval by the City Manager. Contractor agrees to give the City ninety (90) days written notice of her intent to end this Agreement. 4-44 Page 15 9. Materials Required to be Supplied by City to Contractor: City will provide medical supplies within its fiscal capabilities to meet Contractor's medication recommendations and materials required for surgeries performed by Contractor. 10. Compensation: A. OSingle Fixed Fee Arrangement For performance of all of the Defined Services by Contractor as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Milestone or Event or Deliverable Amount or Percent of Fixed Fee O 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be corisidered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment B. O Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Contractor as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Contractor shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Contractor as to said Phase. Phase Fee for Said Phase 4-45 Page 16 () 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X)Hourly Rate Arrangement for Veterinary Services For performance of the Defined Services by Contractor as herein required, City shall pay Contractor for the productive hours of time spent by Contractor in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) ONot-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Contractor of time and materials in excess of said Maximum Compensation amount, Contractor agrees that Contractor will perform all of the Defined Services herein required of Contractor for $ including all Materials, and other "reiinbursables" ("Maximum Compensation"). (2) (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Contractor shall have incurred time and materials equal to ($65,000) ("Authorization Limit") per year commencing July 1, 2013. Contractor shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Contractor from providing additional Services at Contractor's own cost and expense. 4-46 Page 17 Rate Schedule Category of Employee Name of Contractor Hourly Rate Contractor Dr. Terry K. Paik,DVM $450 per spay and neuter clinic (only a single clinic will beheld on the scheduled date) _ $600 per pit bull spay and neuter clinic (only a single clinic will beheld on the scheduled date) Contractor Dr. Terry K. Paik, DVM $450 per spay and neuter relief vet services at "facility." After 4 hrs, each dditional hour will be at $65/hr. OHourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Contractor in the performance of services herein required, City shall pay Contractor at the rates or amounts set forth below: (X) None, the compensation includes all costs. Cost or Rate O Reports, not to exceed $ $ O Copies; not to exceed $ $ () Travel, not to exceed $ $ O Printing, not to exceed $ $ O Postage, not to exceed $ $ O Delivery, not to exceed $ $ Page 18 4-47 O Long Distance Telephone Chazges, not to exceed $ O Other Actual Identifiable Direct Costs: not to exceed $ not to exceed $ 12. Contract Administrators: City: Mariya G. Anton, MPA Animal Care Facility Manager Contractor: Dr. Terry K. Paik, DVM 13. Liquidated Damages Rate: () $ per day. O Qther: $ 14. Statement of Economic Interests, Contractor Reporting Categories, per Conflict of Interest Code: ( X) Not Applicable. Not an FPPC Filer. O FPPC Filer ()Category No. 1. Investments and sources of income. OCategory No. 2. Interests in real property. ()Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ()Category No. 4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. OCategory No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. OCategory No. 6. Investments in business entities and sources of income of the type which, within the past two yeazs, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. OCategory No. 7. Business positions. 4-48 Page 19 OList "Contractor Associates" interests in real property within 2 radial miles of Project Property, if any: 15. O Contractor is Real Estate Broker and/or Salesman 16. Permitted Subcontractors: None 17. Bill Processing: A. Contractor's Billing to be submitted for the following period of time: ( )Monthly OQuarterly (X )Other: as work is performed and completed B. Day of the Period for submission of Contractor's Billing: First of the Month 15th Day of each Month End of the Month Other: as work is performed and completed C. City's Account Number: 18. Security for Performance Performance Bond, $ Letter of Credit, $_ )Other Security: Type: Amount: $ Retention. If this space is checked, then notwithstanding other provisions to the contrazy requiring the payment of compensation to the Contractor sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( )Retention Percentage: ORetention Amount: $ Retention Release Event: OCompletion of All Contractor Services OOther: H.Attomey/2pty15 Page 20 4-49