HomeMy WebLinkAbout2009/12/15 Item 9
CITY COUNCIL
AGENDA STATEMENT
~ \ ft.- CITY OF
~CHULA VISTA
12/15/09, lteml
ITEM TITLE:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AN AGREEMENT BETWEEN
THE CITY OF CHULr\ VISTA AND THE CITY OF LEMON
GROVE TO PROVIDE ANIMAL CARE AND ANIMAL
CONTROL SERVICES
SUBMITTED BY:
REVIEWED BY:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AN AGREEMENT BETWEEN
THE CITY OF CHULA VISTA AND THE CITY OF
IMPERIAL BEACH TO PROVIDE ANIMAL CARE AND
ON-CALL ANIMAL CONTROL SERVICES AND
ELIMINATING ONE ANIMAL CONTROL OFFICER FROM
THE AUTHORIZED POSITION COUNT OF THE ANIMAL
CARE FACILITY DEPARTMENT
ASSlST^NTcrTf^G~ S'
CITY MANAGER "
SUMMARY
The City of Chula Vista has provided animal care and animal control services to the cities
of Lemon Grove and Imperial Beach as well as animal care services to National City for
many years. In the spring of 2009 City of Chula Vista staff entered into negotiations with
the staffs of these cities to update thc language of the respective agreements to include
the goal of providing full cost recovery for services provided by Chula Vista. This action
would approve the updated agreements with Lemon Grove and Imperial Beach.
Negotiations with National City staff are nearing completion.
4/STHS VOTE: YES D NO I X I
ENVIRONMENT AL REVIEW
The City's Erivironmental Review Coordinator has reviewed the proposed activity for
compliance with the California Environmental Quality Act (CEQA) and has determined
that the activity is not a "Project" as defined under Section 15378 of the State CEQA
Guidelines; therefore. pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the
activity is not subject to CEQA.
RECOMMENDA nON
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12/15/09, Item~
Page 2 01'2
Council adopt the resolutions.
BOARDS/COMMISSION RECOMMENDATION
Not Applicable
DISCUSSION
City of Chula Vista staff has been working with the staffs of National City, Lemon Grove
and Imperial Beach over the last several months to update the language of the agreements
to provide animal care and animal control services. The new agreements will be for
providing animal care services to all these cities, as well as animal control services to
Lemon Grove and on-call animal control services to Imperial Beach. The agreements
with Lemon Grove and Imperial Beach have been completed and the negotiations with
National City are nearing completion.
The agreements are intended to provide full cost recovery to Chula Vista for the services
rendered. The cost for animal control services is based on the actual cost of the services
included in the scope of services covered by the agreements. Animal care services are
those required to kennel animals from Chula Vista and the three client cities. The annual
cost to be paid by each city is determined by apportioning the projected costs for each
succeeding fiscal year based on the relevant proportion of animals coming from each of
the four cities during the previous calendar year. For Fiscal Year 2009/20 I 0, the three
client cities were notified of the relevant cost for services in June 2009.
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is
not site specific, and consequently the 500 foot rule found in California Code of
Regulations section 18704.2(a)( I) is not applicable to this decision.
CURRENT YEAR FISCAL IMPACT
These agreements are structured to achieve full cost recovery for the services rendered
such that there should be no net fiscal impact to the City of Chula Vista General Fund.
In prior contracts, the City of Chula Vista has provided animal control services to the
City of Imperial Beach, with the adoption of this contract Imperial Beach will transition
to on-call animal control services. The reduction in revenues resulting from this change
will be offset with corresponding expenditure reductions therefore no net impact to the
General Fund is anticipated. The Animal Care Facility will eliminate 1.0 Animal Control
Officer, which was assigned to provide animal control services to Imperial Beach. The
position is currently being underfilled and will not result in a layoff.
ONGOING FISCAL IMPACT
These agreements are structured such that the costs will be updated annually to
incorporate the projected costs for each subsequent fiscal year.
Prepared by Scot! Tulloch, Assistant City Alanager
9-2
RESOLUTION
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AN AGREEMENT BETWEEN
THE CITY OF CHULA VISTA AND THE CITY OF LEMON
GROVE TO PROVIDE ANIMAL CARE AND ANIMAL
CONTROL SERVICES
WHEREAS, the City of Chula Vista has been providing Animal Care and Animal
Control Services to the City of Lemon Grove for several years, and
WHEREAS, the City of Lemon Grove desires to continue to receive these services from
the City of Chula Vista, and
WHEREAS, the City of Chula Vista desires to continue to provide these services to the
City of Lemon Grove.
NOW THEREFORE BE IT RESOLVED THAT THE City Council of the City ofChula
Vista does hereby approve the agreement with the City of Lemon Grove for animal care and
animal control services and authorize the Mayor to execute the agreement on behalf of the City.
Presented by:
Scott Tulloch
Assistant City Manager
9-3
RESOLUTION NO. 2009-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE
CITY OF CHULA VISTA AND THE CITY OF IMPERIAL
BEACH TO PROVIDE ANIMAL CARE AND ON-CALL
ANIMAL CONTROL SERVICES AND ELIMINATING ONE
ANIMAL CONTROL OFFICER FROM THE AUTHORIZED
POSITION COUNT OF THE ANIMAL CARE FACILITY
DEPARTMENT
WHEREAS, the City of Chula Vista has been providing Animal Care and Animal
Control Services to the City ofImperial Beach for several years, and
WHEREAS, the City ofImperial Beach desires to continue to receive these services from
the City of Chula Vista; and
WHEREAS, the City of Chula Vista desires to continue to provide these services to the
City of Imperial Beach.
NOW, THEREFORE, BE IT RESOLVED THAT THE City Council of the CityofChula
Vista does hereby approve the agreement with the City of Imperial Beach for animal care and
on-call animal control services and eliminating one Animal Control Officer from the authorized
position count of the Animal Care Facility Department and authorize the Mayor to execute the
agreement on behalf of the City.
Presented by:
Approved as to form by:
;J6LJcA~
Bart Miesfeld
City Attorney
Scott Tulloch
Assistant City Manager
9-4
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FOR1\1ALL Y SIGNED UPON APPROVAL BY
THE CITY COUNCIL
/
;
; It '
Bart cpo Mie eld
City Attorney
Dated:
I t ~/ 0")
/ J
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
CITY OF LEMON GROVE
PROVIDING ANIMAL CONTROL SERVICES
9-5
AGREEMENT BETWEEN CITY OF CHULA VISTA AND
CITY OF LEMON GROVE
PROVIDING ANIMAL CARE AND ANIMAL CONTROL SERVICES
This agreement ("Agreement"), dated , 20_, for reference
purposes only, and effective as of the date last executed is between the City of Chula
Vista, ("City"), a chartered municipal corporation of the State of California, and the City
of Lemon Grove, a general law municipal corporation of the State of California ("Lemon
Grove"). The City and Lemon Grove may be referred to herein individually as "Party"
and collectively as "Parties." This "Agreement" is made with reference to the following
facts:
RECITALS
WHEREAS, City owns and operates an animal care facility, located at 130 Beyer
Way, Chula Vista, California and provides a full range of animal control services to the
citizens of Chula Vista; and,
WHEREAS, Lemon Grove desires to enter into an agreement with City, whereby
City will provide animal shelter and control services for the impounding, adoption,
redemption, and the care and disposition of dogs, cats, and other small animals; and
WHEREAS, City has the authority to enter into contracts with other agencies to
provide such services.
NOW, THEREFORE, in consideration of their mutual promises, and other good
and valuable consideration, the Parties hereto do hereby agree as follows:
ARTICLE I. TERM
1.1 Term. This Agreement shall be for a one (1) year term commencing on the date of
last execution of this Agreement
(A)
Options to Extend. Parties may extend the Agreement for four (4) additional
one (1) year terms.
Notice. Lemon Grove shall provide written notice to City at least sixty (60)
calendar days, but no more than ninety (90) calendar days, prior to the
expiration of the term of this Agreement expressing its intent to exercise an
option.
(B)
ARTICLE II. SCOPE OF SERVICES
2.1 General Services. City shall provide general animal control, shelter, and related
administrative services to the residents of Lemon Grove to the extent and in the
manner set forth herein.
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(A) Field Services. City shall provide the "Field Services" in the type and manner
provided for below.
(1) Officer. City shall provide a uniformed Animal Control Officer ("Officer")
to patrol Lemon Grove in the manner and to the extent that City deems
appropriate, unless a specific request is made by Lemon Grove, in which
case such request shall be a priority. '
(a) Hours. The Officer shall conduct patrols five (5) days per week, not
to exceed 40 hours per week. City may alter the patrol hours to
include Saturdays on a rotating basis as deemed necessary by
both Parties.
(i) Overtime Hours. City will respond to the best of its ability to
reported emergencies occurring prior to or after the patrol
hours identified above in Section 2.1 (A)(1 )(a). Lemon Grove
shall pay for any and all costs associated with such
emergency responses in the manner set forth in Section
4.1 (A)(2).
(2) Type of Services. Except as provided in Article III, Field Services shall
include emergency transportation of injured or sick animals, the issuance
of citations for violations of state and local laws and ordinances,
impounding of strays, investigation of biting incidents, vicious or
dangerous animals complaints, trapping of, animals, investigating
humane complaints, investigating barking dog or animal noise
complaints, picking up dead animals, and educating the public about pet
responsibility.
(3) Responses to Requests for Service. All requests for service will be
handled in a reasonable time and manner and based on the priority
system set forth below (see Priority Response Chart and Guidelines).
City will employ staff as needed in emergency situations to assure
reasonable response times.
(a) PrioritYResponse Chart.
Type of Service In Progress Not in Progress
Dangerous Animal Threatening Human 1 3
Possible Rabid/Biter Animal at Large 1 3
Major Injury to Animal 1 3
Cruelty to Animal 1 3
Animal Inside Vehicle 1 3
'Fighting Animals 1 3
Dog Harassing Livestock 1 3
Sick or Minor Injury to Animal 2 3
Animal Welfare Investigation 2 3
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Quarantine Biter Animal 3 N/A
Confined Stay Animal 3 N/A
Field Relinquished Animal 3 N/A
Dog Running at Large 3* 4*
(b) Priority Level Response Guidelines
Level 1 First priority, Officer will respond immediately or as soon as
possible ("ASAP").
Level 2 Second priority, Officer will make every effort to respond within
12 hours of receipt.
Level 3 Third priority, Officer will make every effort to respond within
24 hours of receipt.
Level 4 Fourth priority, Officer will make every effort to respond within
72 hours of receipt.
*During normal business hours an Officer will respond as a Level 1
priority.
(4) Additional Field Services. City shall conduct the following additional
field services as necessary or requested.
(a) Special Enforcement. City will conduct special enforcement animal
control patrols as needed or as requested by Lemon Grove,
provided there are no conflicts with the City's needs. This will
include special animal control patrol hours, sweeps and
enforcement. All overtime costs for special enforcement patrols will
be paid in the amount and manner set forth by Section 4.1 (A)(2).
(b) Special Events. City will provide Animal Control personnel for
scheduled special events as requested, provided there are no
conflicts with City's needs. These events will be performed on an
overtime basis and all overtime costs for special events will be paid
by Lemon Grove.
(5) Livestock. Livestock will be removed under contract with a separate
agency chosen by the City Animal Care Facility. The contracting agency
will be capable of removing livestock and will provide its own equipment
and personnel. Actual trailering, board and other fees related to
livestock will be paid by Lemon Grove.
(B) Shelter Services. City shall provide the shelter services to the residents of
Lemon Grove in the manner and type described below:
(1) Shelter Location. Shelter Services shall be provided at the facility
located in the City of Chula Vista at 130 Beyer Way.
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(2) Hours of Operation. The facility hours are currently 10:00am to
5:00pm, Tuesday through Friday, and 10:00am to 4:00pm on Saturday.
The facility will be closed on Sunday, Monday, and all major holidays.
(a) Changes in Hours of Operation. City shall notify Lemon Grove of
changes to facility hours thirty (30) days in advance of such
changes.
(3) Types of Services.
(a) Strays. City shall accept strays at no charge to the Lemon Grove
residents.
(b) Relinquishing Animals. Lemon Grove residents may relinquish
owned animals to the facility for euthanasia or adoption.
(c) Redeeming Animals. Lemon Grove residents may redeem animals
from the facility.
(d) Holding. City agrees to hold all dogs and cats for the minimum
holding period required by the California Food and Agricultural
Code and other applicable state law. As per applicable state code
sections, animals with communicable diseases and severe injuries
or illness may be euthanized prior to the expiration of the normal
holding period. Veterinary medical care will be provided as needed
for all impounded animals for the duration of their hold period as
needed. City will attempt to notify owners of identified animals that
their animal is in the custody of the City Animal Care Facility and
advise them of the holding period. Lemon Grove shall relinquish to
City for disposition in accordance with all applicable laws, policies
or procedures as deemed appropriate by the City Animal Care
Facility Manager all animals held in the animal care facility and not
claimed or adopted. Upon payment of all appropriate fees, City will
release to the legal owner, any impounded domestic animal. City
will have discretion, without recourse to Lemon Grove, to release.
animals under special circumstances regardless of payment of
fees.
(i) No Medical Research. City will not sell or give any live or
dead animal to a medical research facility at any time or from
any jurisdiction.
(e) Spaying and Neutering. City will ensure all dogs, cats and rabbits
adopted from the shelter are spayed or neutered at the time of
adoption or a spay/neuter deposit will be collected in accordance
with state law. Additionally, the City Animal Care Facility will...
provide the public with low-cost spay/neuter information and
assistance.
(f) Administrative Hearings. City will conduct all impound and
administrative hearings as required by law, including Lemon
Grove's Municipal Code. Lemon Grove will provide a hearing officer
gig
if City is unable to provide one due to conflicts of interest or
prejudice or if the Lemon Grove Municipal Code specifies the
hearing officer will be an official from Lemon Grove.
(g) Maintenance of Facility. City shall maintain its facility in a humane
manner and shall keep its facility in a sanitary condition at all times.
All services furnished by City shall be provided in accordance with
local laws and the laws of the State of California. City shall use
humane methods in the care, euthanizing, and disposition of any
animal coming under its jurisdiction.
(C) Administrative Services. City shall provide the following administrative
services.
(1) Licenses. City will provide licensing services to Lemon Grove and
maintain a Dog License Data Base System of Lemon Grove's licensed
and delinquent dogs.
(a) Discontinuation of Licensing Services. Lemon Grove may
discontinue licensing services with the City at any time with a
written thirty-day notice. City will negotiate alternative licensing
programs with Lemon Grove as opportunities and computer
programs become available.
(2) Meetings. City will provide a representative to attend any Lemon Grove
meetings that involve animal control issues upon request and with
reasonable notice.
(3) Meet and Confer. A City representative will meet and confer in good
faith with a Lemon Grove administrator over operational issues
associated with the administration of this Agreement.
(4) Reports. City will provide monthly reports to Lemon Grove. These
reports will include the number particular to Lemon Grove of impounds, .
redemptions, euthanizations, service responses, and adoptions.
(5) Notification. City shall establish a notification policy for its officers with
the assistance of Lemon Grove officials. The policy shall identify the
types of incidents for which City Animal Control will be required to notify
designated Lemon Grove officials. Notification shall include the nature,
circumstances, and status of the incident. City will also provide, if
requested, copies of all supporting documents and information involving
the incident. Lemon Grove will provide a list of its designated city officials
to City and the recommended methods to contact the designated
individuals.
(6) Testimony. When requested by Lemon Grove and at no additional cost, .-
City shall make available its employees and/or other percipient witness
under its control, for any challenge stemming from the services provided
herein (including but not limited to Municipal Code citations) as needed
to testify in a court of law, administrative or other proceeding. This duty
shall survive the termination of this Agreement.
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ARTICLE III. EXCLUDED SERVICES
3.1 Excluded Services. The following services are not included in the Scope of
Services covered under this Agreement
(A) Indigenous Animals. City will not trap skunks, opossums or other indigenous
small animals for the purpose of nuisance control. Wildlife will only be
handled for purposes of public safety or for humane reasons. Cats, feral or
tame, will only be trapped when a bite has occurred or t6 protect the public
health or safety. Only dangerous snakes will be removed from private
property.
(B) Dead and Injured Animals. Dead animals on private property are the
responsibility of the property owner. Sick or injured animals are the
responsibility of the animal owner.
ARTICLE IV. LEMON GROVE OBLIGATIONS
4.1 Payment. Lemon Grove shall pay the City the following in the amount and manner
set forth herein.
(A) Monthly Payments. Commencing on July 1, 2009, Lemon Grove agrees to
pay City $171,107 for FY 2009/2010 in monthly payments of $14,259.
(1) Invoices and Payment Date. The City Finance Office shall submit the
billing to Lemon Grove on or before the 10th day of the month following
the billing period and that amount shall be due and payable within thirty
(30) calendar days of the invoice date.
(2) Overtime for Animal Control Officers. Overtime costs for Animal
Control Officers accrued in response to reported emergencies occurring
prior to or after regular patrol hours or for Additional Field Services
identified in Section 2.1(A)(4) will be billed on a monthly basis in addition
to the regular billing identified in section 4.1 (A)~
(3) Redemption Fees. Monthly payments shall be reduced by any
Redemption Fees collected under this Agreement.
(4) Late Payments. A penalty of ten percent (10%) will be assessed on late
payments. Additionally, a one and one half percent (1.5%) finance
charge per month will be assessed on the original delinquent amount.
(5) Monthly Payment Reduction. Recognizing that conditions exist which
will prevent an Officer from providing service to Lemon Grove 100
percent during the prescribed hours as identified in 2.1 (A), there is
recognized a reasonable rate of service interruptions. However, in the
event that there is a monthly period in which City does not provide
Officer service to Lemon Grove for more than two days, the third and
subsequent day will result in a reduction of the Monthly Payment of
$321.00 per day of no service.
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(8) Pricing of Contract Extensions. Pricing for contract extensions for each
subsequent fiscal year shall be based on actual Animal Intakes and Animal Control
Calls for Service from the preceding calendar year.
(1) No later than March 1 each year, the City will notify Lemon Grove of the
actual Animal Intakes and Animal Control Calls for Service for the
preceding calendar year, and the proposed contract pricing for the
upcoming fiscal year.
(2) If Lemon Grove desires to execute an option to extend, it shall notify City
in writing no later than May 1 of each year that it accepts the proposed
contract pricing for the upcoming fiscal year and, thereby, executes an
option to extend the contract for a one (1) year term.
4.2 Vehicles and Supplies. Lemon Grove shall provide the City with the following:
(A) Animal Control Vehicle. Lemon Grove, at no cost to the City, shall provide a
4WD (four-wheel drive) vehicle that is white in color and is substantially
similar to City's existing animal control fleet ("Vehicle").
(1) Repair, Replacement and Maintenance. Lemon Grove shall, at no
cost to City, pay all expenses related to Vehicle repair; maintenance,
including fuel, oil, cleaning; and replacement The vehicle shall be
maintained at the same level of service as City vehicles. Any variances
of this maintenance schedule will be approved in advance by the City
Fleet Manager. If Lemon Grove and City agree to extend or not extend
services beyond this Agreement, the animal control vehicle remains the
property of Lemon Grove.
(2) Logos and Identification. The vehicle will be identified with appropriate
lettering spelling out "Lemon Grove Animal Control" and an appropriate
Lemon Grove city seal will be placed on the left and right doors and the
City Animal Control phone number clearly displayed.
(8) Other Supplies. In order to provide licensing and rabies related services
identified in Section 2.1(C)(1), Lemon Grove will provide City with the
following:
(1) Envelopes with a right-hand window
(2) Letterhead with the Lemon Grove Logo
(3) Dog tags subject to City approval due to U.S. postal restrictions on size
of tag.
4.3 Support Services.
(A)
(8)
Provision of Data. Lemon Grove shall provide City with a current listing of all
anim~1 licenses issued, including permits or licenses for dogs, cats,'
dangerous dogs or animals, exotic animals, kennels, pet shops, ranches or
farms, dog shows, obedience trials and circuses.
Notice of Scheduled Meetings. Lemon Grove shall notify City at least 72
hours in advance of any animal-related issues, which are anticipated to be
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scheduled on an agenda for the City Councilor any legislative or
administrative body of Lemon Grove when City employees will be required to
appear.
(C) Police Services. Lemon Grove shall provide all police services necessary to
carry out its duties including police backup upon request of a City Animal
Control Officer.
(D) Weapons. Lemon Grove shall permit City Animal Control Officers to carry
and use tasers and tranquilizer guns within the City of Lemon Grove while on
duty in their animal control uniform
(E) Fee Schedule. Lemon Grove shall adopt and/or follow the fee schedule
established by City in accordance with Article V of this Agreement.
(F) Legal Representation. Lemon Grove will provide legal representation in cases
of public nuisance, dangerous and potentially dangerous animal cases, and
for lawsuits, claims, or litigation pertaining to these cases, except as provided
in Section 6.2 below.
ARTICLE V. FEES
5.1 Fees Charqed Lemon Grove Residents. Lemon Grove residents shall be
required to pay fees for certain services provided for Animal Care and Control.
(A) Relinquishment and Redemption. Fees will be charged in accordance with
City's master fee schedule.
5.2 Fee Updates. On occasion, City may be required to update fees to account for
increased costs. As new fees are adopted, for the purpose of this Agreement,
such fees shall replace those currently in effect.
6.1
ARTICLE VI. INDEMNITY
Lemon Grove to Indemnify. Lemon Grove shall defend, indemnify, protect and
hold harmless the City, its elected and appointed officers, employees, agents, and
volunteers, from and against any and all claims, demands, causes of action, costs,
expenses, liability, loss, damage or injury, in law or equity, to property or persons
in any manner arising out of, related to, or in connection with the destruction of any
animal delivered to and accepted by the Animal Care Facility. In addition, this
indemnity provision shall cover any alleged acts, omissions, negligence, or willful
misconduct of Lemon Grove, its elected and appointed officers, employees,
agents, and volunteers arising out of or related to the services provided under this
Agreement. This duty to defend and indemnify, however, does not include any
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, agents, and volunteers.
City Duty to Indemnify. City shall indemnify, protect and hold harmless Lemon
Grove, its elected and appointed officials, employees, officers, agents, volunteers
6.2
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and representatives from and against any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury, in law or equity, to
property or persons in any manner arising out of, related to, or in connection with
this Agreement, 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 City, or its employees, agents, and
officers, arising out of any services performed under this Agreement. This duty to
defend and indemnify, however, does not include any claims, damages, liability,
costs and expenses (including without limitations, attorneys fees) a'rising from the
sole negligence or sole willful misconduct of Lemon Grove, its officers, employees,
agents, and volunteers.
6.3 Costs of Defense and Award. Included in the obligations in Sections 6.1 and 6.2,
above, is the Indemnitor's obligation to defend, at Indemnitor's own cost, expense
and risk, any and all aforesaid suits, actions or other legal proceedings of every
kind that may be brought or instituted against the Indemnitee, its directors, officials,
officers, employees, agents and/or volunteers. Indemnitor shall pay and satisfy
any judgment, award or decree that may be rendered against Indemnitee, its
directors, officials, officers, employees, agents and/or volunteers, for any and all
legal expense and cost incurred by each of them in connection therewith.
6.4 Insurance Proceeds. Indemnitor's obligation to indemnify shall not be restricted
to insurance proceeds, if any, received by the Indemnitee, its directors, officials,
officers, employees, agents, and/or volunteers.
6.5 Enforcement Costs. Indemnitor shall pay any and all costs Indemnitee incurs
enforcing the indemnity and defense provisions set forth in Article VI.
6.6 Survival. Indemnitor's obligations under Article VI shall survive the termination of
this Agreement.
7.1
ARTICLE VII. FORCE MAJEURE
Definition. An Event of Force Majeure means an occurrence beyond the control
and without the fault or negligence of a Party, including but not limited to unusually
severe weather, flood, earthquake, fire, lightning, and other natural catastrophes,
acts of God or the public enemy, war, terrorist act, riot, insurrection, civil
disturbance or disobedience, strike, labor dispute, road impediments, expropriation
or confiscation of facilities, changes of applicable law, or sabotage of facilities, so
long as such Party makes good faith and reasonable efforts to remedy the delays
or failures in performance caused thereby.
Force Maieure. City shall be excused for any delay or failure to perform its duties
and obligations under this Agreement to the extent that such failure or delay is
caused by an Event of Force Majeure as set forth in section 7.1. Delay or failure in
performance by a Party which is the result of an Event of Force Majeure set forth in
section 7.1 shall be deemed excused for a period no longer than the delay or
failure in performance caused by such Event.
7.2
gJJ, 4
7.3 Notice. City shall give written notice to Lemon Grove as soon after becoming
aware of the delay or failure in performance caused by an Event of Force Majeure
as is reasonably possible, but in any event within five (5) working days after City
becomes aware of such delay or failure.
7.4 . No Adiustments. No event of Force Majeure shall be a basis for monetary
adjustment to amounts otherwise payable under this Agreement.
ARTICLE VIII. TERMINATION OF AGREEMENT
8.1 Termination for Convenience. Either Party may terminate this Agreement at any
time and for any reason, by giving specific written notice of such termination and
specifying the effective date thereof at least ninety (90) days before the effective
date of such termination. If the Agreement is terminated by Lemon Grove as
provided for in this paragraph, City shall be entitled to receive just and equitable
compensation for all services performed prior to the effective date of such
termination.
8.2 Termination for Cause. If, through any cause, either party shall substantially fail
to fulfill in a timely and proper manner any obligation under this Agreement, or
violate any of its covenants, agreements or conditions, the Party not in breach shall
have the right to terminate this Agreement by giving written notification of such
termination and specifying the effective date thereof at least five (5) days before
termination. If the Agreement is terminated by Lemon Grove as provided for in this
paragraph, City shall be entitled to receive just and equitable compensation for all
services performed prior to the effective date of such termination.
ARTICLE IX. NOTICES
9.1 Method of Notification. All notices and demands shall be given in writing by
personal delivery or first-class mail, postage prepaid, addressed to the
Administrator, or his/her designee, designated below for the respective party.
9.2 Desiqnation and Contact Information. The following, including their respective
addresses, are hereby designated as Administrators for the purposes of this
Agreement only:
A) City of Chula Vista
Assistant City Manager, and/or his/her designee
276 Fourth Avenue
Chula Vista, CA 91910
(B) City of Lemon Grove
City Manager, and his/her designee
3232 Main Street
Lemon Grove, CA 91945
9.3 Chanqes. If the Administrator, designee or address of either party changes, notice
of the change shall be sent to the other party. After the receipt of the notice of
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10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
change, all future notices or demands shall be sent as required by the notice of
change.
ARTICLE X. MISCELLANEOUS PROVISIONS
Headinqs. All article headings are for convenience only and shall not affect the
interpretation of this Agreement.
Gender & Number. Whenever the context requires, the use herein of (i) the
neuter gender includes the masculine and the feminine genders and (ii) the
singular number includes the plural number.
Reference to Paraqraphs. Each reference in this Agreement to a section
refers, unless otherwise stated, to a section of this Agreement.
Incorporation of Recitals and Exhibits. All recitals herein and exhibits
attached hereto are incorporated into this Agreement and are made a part.
hereof.
Covenants and Conditions. All provisions of this Agreement expressed as
either covenants or conditions on the part of the Parties shall be deemed to be
both covenants and conditions.
Inteqration. This Agreement and any exhibits or references incorporated into
this Agreement fully express all understandings of the Parties concerning the
matters covered in this Agreement. No change, alteration, or modification of the
terms or conditions of this Agreement, and no verbal understanding of the
Parties, their officers, agents, or employees shall be valid unless made in the
form of a written change agreed to in writing by both Parties or an amendment to
this Agreement agreed to by both Parties. All prior negotiations and agreements
are merged into this Agreement.
Severability. In the event that any phrase, clause, paragraph, section or other
portion of this Agreement shall become illegal, null or void, or against public
policy, for any reason, or shall be held by any court of competent jurisdiction to
be illegal, null or void, against public policy, or otherwise unenforceable, the
remaining portions of this Agreement shall not be affected and shall remain in
force and effect to the fullest extent permissible by law.
Draftinq Ambiquities. The Parties agree that they are aware that they have the
right to be advised by counsel with respect to the negotiations, terms and
conditions of this Agreement, and the decision of whether or not to seek advice
of counsel with respect to this Agreement is a decision that is the sole
responsibility of each Party. This Agreement shall not be construed in favor of or
against either Party by reason of the extent to which each Party participated in
the drafting of the Agreement.
Conflicts Between Terms. If an apparent conflict or inconsistency exists
between the main body of this Agreement and any exhibits, the main body of this
Agreement shall control. If a conflict exists between an applicable federal, state,
or local law, rule, regulation, order, or code and this Agreement, the law, rule,
9116
regulation, order, or code shall control. Varying degrees of stringency among the
main body of this Agreement, the exhibits, and laws, rules, regulations, orders, or
codes are not deemed conflicts, and the most stringent requirement shall control.
Each Party shall notify the other immediately upon the identification of any
apparent conflict or inconsistency concerning this Agreement.
10.10 Compliance With Law. City shall, at its sole cost and expense, comply with all
the requirements of municipal, state, and federal authorities now in effect or
which may hereafter be in effect related to this Agreement.
10.11 Governinq Law. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California. This Agreement shall be deemed
made and entered into in San Diego County, California.
10.12 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, Lemon Grove shall meet and confer in good faith
with City for the purpose of resolving any dispute over the terms of this
Agreement
10.13 Fees. In the event any action or proceeding shall be instituted in connection with
this Agreement, including without limitation the enforcement of any
indemnification obligation contained herein, the losing Party shall pay to the
prevailing Party a reasonable sum for attorneys' fees and costs incurred in
bringing or defending such action or proceeding and/or enforcing any judgment
granted.
10.14 Jurisdiction and 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.
10.15 Municipal Powers. Nothing contained in this Agreement shall be construed as a
limitation upon the powers of the City as a chartered city of the State of
California.
Assiqnment. The Parties shall not assign this Agreement or any right or
privilege hereunder to any Party without the express written consent of the other
Party. Consent to an assignment shall not be deemed to be consent to any'
subsequent assignment. Any such assignment without such consent shall be
void.
10.17 No Waiver. No failure of either Party to insist upon the strict performance by the
other Party of any covenant, term or condition of this Agreement, nor any failure
10.16
9.117
to exercise any right or remedy consequent upon a breach of any covenant,
term, or condition of this Agreement, shall constitute a waiver of any such breach
of such covenant, term or condition. No waiver of any default hereunder shall be
implied from any omission to take any action on account of such default. The
consent or approval to or of any act requiring consent or approval shall not be
deemed to waive or render unnecessary future consent or approval for any
subsequent similar acts. No waiver of any breach shall affect or alter this
Agreement, and each and every covenant, condition, and term hereof shall
continue in full force and effect to any existing or subsequent breach.
10.18 Additional Riqhts. No rights other than those specifically identified herein shall
be implied from this Agreement.
10.19 Cumulative Remedies. All rights, options, and remedies of the Parties
contained in this Agreement shall be construed and held to be cumulative, and
no one of them shall be exclusive of the other, and the Parties shall have the
right to pursue anyone or all of such remedies or to seek damages or specific
performance in the event of any breach of the terms hereof or to pursue any
other remedy or relief which may be provided by law or equity, whether or not
stated in this Agreement.
10.20 Independent Contractor. Unless otherwise stated in this Agreement, all
persons employed in the performance of services and functions for Lemon Grove
under this Agreement shall be City employees, agents, or contractors thereof. No
Lemon Grove employee shall perform services or functions that City is obligated
to provide under this Agreement. All City employees who are employed by City to
perform the services pursuant to this Agreement shall be entitled solely to the
rights and privileges given to City employees and shall not be entitled, 'as a result
of providing services pursuant to this Agreement, to any additional rights and
privileges given to Lemon Grove employees. Lemon Grove shall not be liable for
the direct payment of any salaries, wages, or the compensation to City
personnel, agents, or contractors performing services pursuant to this
Agreement, or any liability other than that provided for in this Agreement. Unless
specified otherwise, Lemon Grove shall not be liable for compensation, or
indemnity to any City employee, agent, or contractor for injury or sickness or any
other claims arising out of his or her employment. City is an independent
contractor, and no agency relationship, either expressed or implied, is created by
the execution of this Agreement.
10.21 Good Faith. The Parties promise to use their best efforts to satisfy all conditions
to this Agreement and to take all further steps and execute all further documents
reasonably necessary to put this Agreement into effect. Both Parties agree to
meet and confer in good faith with City's Animal Care Facility Administrator
regarding operational matters upon request.
10.22 Siqninq Authority. The representative for each Party signing on behalf of a
corporation, partnership, joint venture or governmental entity hereby declares
that authority has been obtained to sign on behalf of the corporation, partnership,
9118
joint venture, or entity and agrees to hold the other Party or Parties hereto
harmless if it is later determined that such authority does not exist.
[Signature Page Follows]
9119
SIGNATURE PAGE TO
AGREEMENT BETWEEN CITY OF CHULA VISTA AND
CITY OF LEMON GROVE
PROVIDING FULL ANIMAL CONTROL SERVICES
CITY OF CHULA VISTA
Date:
Approved as to form:
Bart Miesfeld
City Attorney
Cheryl Cox
Mayor
Attest:
Donna Norris
City Clerk
CITY OF LEMON GROVE
Date:
"--
raham Mitchell
City Manager
Attest:
~
,. ~ __~ 'h" ~L'-~~
Susan Garcia ~-,
City Clerk
9.2~o
THE A TT ACHED 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
~
7'
/
Dated:
!~!S ~9
I /
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
CITY OF IMPERIAL BEACH
PROVIDING ANIMAL CONTROL SERVICES
9-21
AGREEMENT BETWEEN CITY OF CHULA VISTA AND
CITY OF IMPERIAL BEACH
PROVIDING ANIMAL CARE AND ON CALL ANIMAL CONTROL SERVICES
This agreement ("Agreement"), dated , 20 for
reference purposes only, and effective as of the date last executed is between the City
of Chula Vista, ("City"), a chartered municipal corporation of the State of California, and
Imperial Beach, a chartered municipal corporation of the State of California ("Irnperial
Beach"). The City of Imperial Beach may be referred to herein individually as "Party"
and collectively as "Parties;" This "Agreement" is made with reference to the following
facts:
RECITALS
WHEREAS, City owns and operates an animal care facility, located at 130 Beyer
Way, Chula Vista, California and provides a full range of animal control services to the
citizens of Chula Vista; and;
WHEREAS, Imperial Beach desires to enter into an agreement with City,
whereby City will provide animal shelter and On Call animal control services for the
impounding, adoption, redemption, and the care and disposition of dogs, cats, and other
small animals; and
WHEREAS, City has the authority to enter into contracts with other agencies to
provide such services.
NOW, THEREFORE, in consideration of their mutual promises, and other good
and valuable consideration, the Parties hereto do hereby agree as follows:
ARTICLE I. TERM
1.1 Term. This Agreement shall be for a two (2) years term commencing on the date
of execution of this Agreement
(A) Options to Extend. Parties may extend the Agreement for two (2 additional
one (1) year terms.
(B) Notice. Imperial Beach shall provide written notice to City at least sixty (60)
calendar days, but no more than ninety (90) calendar days, prior to the
expiration of the term of this Agreement expressing its intent to exercise an
option.
ARTICLE II. SCOPE OF SERVICES
2 1 General Services. City shall provide on call animal control, general shelter, and
related administrative services to the residents of Imperial Beach to the extent and
Page 1
9-22
in the manner set forth herein.
(A) Field Services. City shall provide the "Field Services" in the type and manner
provided for below:
(1) On Call Services. When the Imperial Beach Animal Control officer is
unavailable city will respond to the .best of its ability to reported
emergencies or other on call situations upon request of the City of
Imperial Beach. Imperial Beach shall pay for any and all costs
associated with such emergency responses in the manner set forth in
Section 4.1 (A)(2).
(2) Type of Services. Except as provided in Article III, Field Services shall
include emergency transportation of injured or sick animals, the issuance
of citations for violations of" state and local laws and ordinances,
impounding of strays, investigation of biting incidents, vicious or
dangerous animals complaints, trapping of animals, investigating
humane complaints, investigating barking dog or" animal noise
complaints, picking up dead animals, and educating the public about pet
responsibility.
(3) Responses to Requests for Service. All requests for service will be
handled in a reasonable time and manner and based on the priority
system set forth below (see Priority Response Chart and Guidelines).
City will employ staff as needed in emergency situations to assure
reasonable response times. "
(a) Priority Response Chart.
Type of Service In Proaress Not in Progress
Dangerous Animal Threatening Human 1 3
Possible Rabid/Biter Animal at LarQe 1 3
Maior Injury to Animal 1 3
Cruelty to Animal 1 3
Animal Inside Vehicle 1 3
FiQhtina Animals 1 3
Dog Harassing Livestock 1 "3
Sick or Minor Injury to Animal 2 3
Animal Welfare Investigation 2 3
Quarantine Biter Animal 3 N/A
Confined Stay Animal 3 N/A
Field Relinquished Animal 3 N/A
Dog Runnina at Larae 3* 4*
Page 2
9-23
(b) Priority Level Response Guidelines
Level 1 First priority, Officer will respond ASAP
Level 2 Second priority, Officer will make every effort to respond within
12 hours of receipt
Level 3 Third priority, Officer will make every effort to respond within
24 hours of receipt
Level 4 Fourth priority, Officer will make every effort to respond within
72 hours of receipt
*During normal business hours an Officer will respond ASAP
(4) Additional Field Services. City shall conduct the following additional
field services as requested.
(a) On Call Service. City will provide animal control services when
requested by the City of Imperial Beach under the On Call. In
addition, Citywili providecoverage for Imperial Beach Animal Control
officer off periods i.e. vacation, sick days, etc.
(b) Special Enforcement. City will conduct special enforcement animal
control patrols as needed or as requested by Imperial Beach,
provided there are no conflicts with the City's needs. This will
include special animal control patrol hours, sweeps and
enforcement. All overtime costs for special enforcement patrols will
be paid in the amount and manner set forth by Section 4.1 (A)(2).
(c) Special Events. City will provide Animal Control personnel for
scheduled special events as requested, provided there are no
conflicts with City's needs. These events will be pe(formed on an
overtime basis and all overtime costs for special events will be paid
by Imperial Beach.
(5) Livestock. Livestock will be removed under contract with a separate
agency chosen by the City Animal Care Facility. The contracting agency
will be capable of removing livestock and will provide its own equipment
and personnel. Actual trailering, board and other fees related to
livestock will be paid by Imperial Beach.
(B) Shelter Services. City shall provide the shelter services to the residents of
Imperial Beach in the manner and type described below:
Page 3
9-24
(1) Shelter Location. Shelter Services shall. be provided at the facility
located in the City of Chula Vista at 130 Beyer Way.
(2) Hours of Operation. . The facility hours are currently 10:00am to
5:00pm, Tuesday through Friday, and 10:00am to 4:00pm on Saturday.
The facility will be closed on Sunday, Monday, and all major holidays.
(a) Changes in Hours of Operation. City shall notify Imperial Beach of
changes to facility hours in advance of such changes. .
(3) Types of Services.
(a) Strays. City shall accept strays at no charge to the Imperial Beach
residents.
(b) Relinquishing Animals. Imperial Beach residents may relinquish
owned animals to the facility for euthanasia or adoption.
(c) Redeeming Animals. Imperial Beach residents may redeem
animals from the facility.
(d) Holding. City agrees to hold all dogs and cats for the minimum
holding period required by the California Food and Agricultural
Code and other applicable state law. As per applicable state code
sections, animals with communicable diseases and severe injuries
or illness may be euthanized prior to the expiration of the normal
holding period. Veterinary medical care will be provided as needed
for all impounded animals for the duration of their hold period as
needed. City will attempt to notify owners of identified animals that
their animal is in the custody of the City Animal Care Facility and
advise them of the holding period. Imperial Beach shall relinquish to
City for disposition in accordance with all applicable laws, policies
or procedures as deemed appropriate by the City Animal Care
Facility Manager all animals held in the animal care facility and not
claimed or adopted, Upon payment of all appropriate fees, City will
release to the legal owner, any impounded domestic animal. City
will have discretion without recourse to Imperial Beach to release
animals under special circumstances regardless of payment of
fees.
(i) No Medical Research. City will not sell or give any live or
dead animal to a medical research facility at any time or from
any jurisdiction.
(e) Spaying and Neutering. City will ensure all dogs, cats and rabbits
adopted from the shelter are spayed or neutered at the time of
Page 4
9-25
adoption or a spay/neuter deposit will be collected in accordance
with state law. Additionally, the City Animal Care Facility will
provide the public with low-cost spay/neuter information and
assistance.
(f) Maintenance of Facility. City shall maintain its facility in a humane
manner and shall keep its facility in a sanitary condition at all times.
All services furnished by City shall be provided in accordance with,
local laws and the laws of the State of California. City shall use
humane methods in the care, euthanizing, and disposition of any
animal coming under its jurisdiction.
(C) Administrative Services. City shall provide the following administrative
services.
(1) Meetings. City will provide a representative to attend any Imperial
Beach meetings that involve animal control issues upon request and with
reasonable notice.
(2) Meet and Confer. A City representative will meet and confer in good
faith with an Imperial Beach administrator over operational issues
associated with the administration of this Agreement.
(3) Reports. City will provide monthly reports to Imperial Beach. These
reports will include the number of impounds, redemptions,
euthanizations, service responses, and adoptions.
(4) Notification. City shall establish a notification policy for its officers with
the assistance of Imperial Beach officials. The policy shall identify the
types of incidents for which City Animal Control will be required to notify
designated Imperial Beach officials. Notification shall include the nature,
circumstances, . and status .of the incident. City will also provide, if
requested, copies of all supporting documents and information involving
the incident. Imperial Beach will provide a list of its designated city
officials to City and the recommended methods to contact the
designated individuals.
,
(5) Testimony. When requested Imperial Beach and at no additional cost,
City shall make available its employees and/or other percipient witness
under its control, for any challenge stemming from the services provided
herein (including but not limited to Municipal Code citations) as needed
to testify in a court of law, administrative or other proceeding. This duty
shall survive the termination of this Agreement.
Page 5
9-26
ARTICLE III. EXCLUDED SERVICES
3.1 Excluded Services. The following services are not included in the Scope of
Services covered under this Agreement.
(A) Indigenous Animals. City will not trap skunks, opossums or other indigenous
sma.1I animals for the purpose of nuisance control. Wildlife will only be.
handled for purposes of public safety or for humane reasons. Cats, feral or
tame, will only be trapped when a bite has occurred or to protect the public
health or safety. Cats in traps will be removed from the National Estuarine
Research Reserve bird sanctuary at Imperial Beach's request when staffing is
available. Cat traps will be provided and monitored by Imperial Beach. City
will remove only trapped cats. Only dangerous snakes will be removed from
private property.
(B) Dead and Injured Animals. Dead animals on private property are the
responsibility of the property owner. Sick or injured animals are the
responsibility of the animal owner.
ARTICLE IV. IMPERIAL BEACH OBLIGATIONS
4.1 Payment. Imperial Beach shall pay the City the following in the amount and
manner set forth herein.
(A) Monthly Payments. Commencing on July 1, 2009, Imperial Beach agrees to
pay City $124,162 for FY 2009/2010 in monthly payments of $1 0,347.
(1) Invoices and Payment Date. The City Finance Office shall submit the
billing to Imperial Beach on or before the 10th day of the month following
. the billing period and that amount shall be due and payable within thirty
(30) calendar days of the invoice date.
(2) On Call Services Expenses for Animal Control Officers. Regular or
.overtime costs for Animal Control Officers accrued in response to
requested On Call Services will be billed on a monthly basis in addition
to the regular billing identified in section 4.1 (A).
(3) Redemption Fees. Monthly payments shall be reduced by any
Redemption Fees collected under this agreement.
(4) Late Payments: A penalty of five percent (5%) will be assessed on late
payments. Additionally, a one and one half (1 Yz%) finance charge per
month will be assessed on the original delinquent amount.
Page 6
9-27
(B) Pricing of Contract Extensions. Pricing for contract extensions for each
subsequent fiscal year shall be based on actual Animal Intakes and Animal
Control Calls for Service from the preceding calendar year.
(1) No later than March 1 each year, the City will notify Imperial Beach of the
actual Animal Intakes for the preceding calendar year, and the proposed
contract pricing for the upcoming fiscal year.
(2) If Imperial Beach desires to execute an option to extend, it shall notify
City in writing no later than May 1 of each year that it accepts the
proposed contract pricing for the upcoming fiscal year and. thereby,
executes an option to extend the contract for a one (1) year term.
4.2 Vehicles and Supplies: City will provide its own vehicle and supplies when
responding to an On Call.
4.3 Support Services.
(A) Provision of Data. Imperial Beach shall provide City with a current listing of
all animal licenses issued, including permits or licenses for dogs, cats,
dangerous dogs or animals, exotic animals, kennels, pet shops, ranches or
farms, dog shows, obedience trials and circuses.
(B) Notice of Scheduled Meetings. Imperial Beach shall notify City at least 72
hours in advance of any animal-r'elated issues, which are anticipated to be
scheduled on an agenda for the City Council or any legislative or
administrative body of Imperial Beach when City employees will be required
to appear.
(C) Police Services. Imperial Beach shall provide all police services necessary to .
carry out its duties including police backup upon request of a City Animal
Control Officer.
(0) Weapons. Imperial Beach shall permit City Animal Control Officers to carry
and use tasers and tranquilizer guns within the City of Imperial Beach while
on duty in their animal control uniform
(E) Legal Representation. Imperial Beach will provide legal representation in
cases of public nuisance, dangerous and potentially dangerous animal cases,
and for lawsuits, claims, or litigation pertaining to these cases.
,=-=:':::=.
Page 7
9-28
ARTICLE V. FEES
5.1 Fees Charqed Imperial Beach Residents. Imperial Beach residents shall be
required to pay fees for certain services provided for Animal Care and Control.
(A) Relinquishment and Redemption. Fees will be charged in accordance with
City's master fee schedule-unless otherwise agreed to separately with the
City of Imperial Beach.
5.2 Fee .Updates. On occasion, City may be required to update fees to account for
increased costs. As new fees are adopted, for the purpose of this Agreement,
such fees shall replace those currently in effect. The City of Imperial Beach will be
consulted prior to any fee increase affecting the Imperial Beach residents.
ARTICLE VI. INDEMNITY
6.1 Imperial Beach to Indemnify. Imperial Beach shall defend, indemnify, protect
and hold harmless the City, its elected and appointed officers, employees, agents,
and volunteers, from and against any and all claims, demands, causes of action,
costs, expenses, liability, loss, damage or injury, in law or equity, to property or
persons in any manner arising out of, related to, or in connection with the
destruction of any animal delivered to and accepted by the Animal Care Facility. in
addition, this indemnity provision shall cover any alleged acts, omissions,
negligence, or willful misconduct of Imperial Beach, its officials, officers,
employees, agents, and volunteers. This indemnity provision, however, does not
include any 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, agents, and volunteers.
6.2 City Duty to Indemnify. City shall indemnify and hold imperial Beach, its elected
officials, employees, officers, agents and representatives harmless for any liability,
including but not limited to claims asserted or costs, losses, attorney fees, or
payments for injury.to any personor property caused or claimed to be caused by
the acts or omissions of the City, or its employees, agents, and officers, arising out
of any services performed under this Agreement. City's duty to defend and
indemnify shall not extend to any claims or liabilities arising from the sole
negligence or sole willful misconduct of the City of Imperial Beach, its agents,
officers or employees.
6.3
Costs of Defense and Award. Included in the obligations in Sections 6.1 and 6.2, .
above, is the Indemnitor's obligation to defend, at Indemnitor's own cost, expense'
and risk, any and all aforesaid suits, actions or other legal proceedings of every
kind that may be brought or instituted against the Indemnitee, its directors, officials,
officers, employees, agents and/or volunteers. Indemnitor shall pay and satisfy
Page 8
9-29
any judgment, award or decree that may be rendered against Indemnitee, its
directors, officials, officers, employees, agents and/or volunteers, for any and all
legal expense and cost incurred by each of them in connection therewith:
6.4 Insurance Proceeds. Indemnitor's obligation to indemnify shall not be restricted
to insurance proceeds, if any, received by the Indemnitee, its directors, officials,
officers, employees, agents, and/or volunteers.
6.5 Enforcement Costs. Indemnitor shall pay any and all costs Indemnitee incurs
enforcing the indemnity and defense provisions set forth in Article VI.
6.6 Survival. Indemnitor's obligations under Article VI shall survive the termination of
this Agreement.
ARTICLE VII. FORCE MAJEURE
7.1 Definition. An Event of Force Majeure means an occurrence beyond the control
and without the fault or negligence of a Party, including but not limited to unusually
severe weather, flood, earthquake, fire, lightning, and other natural catastrophes,
acts of God or the public enemy, war, terrorist act, riot, insurrection, civil
disturbance or disobedience, strike, labor dispute, road impediments, expropriation
or confiscation of facilities, changes of applicable law, or sabotage of facilities, so
long as such Party makes good faith and reasonable efforts to remedy the delays
or failures in performance caused thereby.
7.2 Force Maieure. City shall be excused for any delay or failure to perform its duties
and obligations under this Agreement to the extent that such failure or delay is
caused by an Event of Force Majeure as set forth in section 7.1. Delay or failure in
performance by a Party which is the result of an Event of Force Majeure set forth in
section 7.1 shall be deemed excused for a period no longer than the delay or.
failure in performance caused by such Event.
7.3 Notice. City shall give written notice to Imperial Beach as soon after becoming
aware of the delay or failure in. performance caused by an Event of Force Majeure
as is reasonably possible, but in any event within five (5) working days after City
becomes aware of such delay or failure.
7.4 No Adiustments. No Event of Force Majeure shall be a basis for monetary
adjustment to amounts payable under this Agreement.
ARTICLE VIII. TERMINATION OF AGREEMENT
8.1
Termination for Convenience.. Either Party may terminate this Agreement at any
time and for any reason, by giving specific written notice of such termination and
specifying the effective date thereof at least ninety (90) days before the effective
date of such termination. If the Agreement is terminated by Imperial Beach as
Page 9
9-30
provided for in this paragraph, City shall be entitled to receive just and equitable
compensation for all services performed prior to the effective date of such
termination.
8.2 Termination for Cause. If, through any cause, either party shall substantially fail
to fulfill in a timely and proper manner any obligation under this Agreement, or
violate any of its covenants, agreements or conditions, the Party not in breach shall
have the right to terminate this Agreement by giving written notification of such
termination and specifying the effective date thereof at least five (5) days before
termination. If the Agreement is terminated by Imperial Beach as provided for in
this paragraph, City shall be entitled to receive just and equitable compensatiOn for
all services performed prior to the effective dateof such termination.
ARTICLE IX. NOTICES
9.1 Method of Notification. All notices and demands shall be given in writing by
personal delivery or first-class mail, postage prepaid, addressed to the
Administrator, or his/her designee, designated below for the respective party.
9.2 Desi~nation and Contact Information. The following, including their respective
addresses, are hereby designated as Administrators for the purposes of this
Agreement only:
(A) City of Chula Vista
Assistant City Manager, and/or his/her designee
276 Fourth Avenue
Chula Vista, CA 91910
(B) City Imperial Beach
City Manager, and his/her designee
825 Imperial Beach
Imperial Beach, CA 91932
9.3 Chanqes. If the Administrator, designee or address of either.party changes, notice
of the change shall be sent to the other party. After the receipt of the notice of
change, all future notices or demands shall be sent as required by the notice of
change.
ARTICLE X. MISCELLANEOUS PROVISIONS
10.1 Headin~s. All article headings are for convenience only and shall not affect the
interpretation of this Agreement.
10.2
Gender & Number. Whenever the context requires, the use herein of (i) the'
neuter gender includes the masculine and the feminine genders and (ii) the
singular number includes the plural number.
Page 1 0
9-31
10.3 Reference to Para~raphs. Each reference in this Agreement to a section
refers, unless otherwise stated, to a section this Agreement.
10.4 Incorporation of Recitals and Exhibits. All recitals herein and exhibits
attached hereto are incorporated into this Agreement and are made a part
hereof.
10.5 Covenants and. Conditions. All provIsions of this Agreement expressed as
either covenants or conditions on the part of the City or Imperial Beach shall be
deemed to be both covenants and conditions.
10.6 Inteqration. This Agreement and any exhibits or references incorporated into
this Agreement fully express all understandings of the Parties concerning the
matters covered in this Agreement. No change, alteration, or modification of the
terms or conditions of this Agreement, and no verbal understanding of the
Parties, their officers, agents, or employees shall be valid unless made in the
form of a written change agreed to in writing by both Parties or an amendment to
this Agreement agreed to by both Parties. All prior negotiations and agreements
are merged into this Agreement.
10.7 Severability. In the event that any phrase, clause, paragraph, section or other
portion of this Agreement shall become illegal, null or void, or against public
policy, for any reason, or shall be held by any court of competent jurisdiction to
be illegal, null or void, against public policy, or otherwise unenforceable, the
remaining portions of this Agreement shall not be affected and shall remain in
force and effect to the fullest extent permissible bylaw.
10.8 Draftinq Ambiquities. The Parties agree that they are aware that they have the
right to be advised by counsel with respect to the negotiations, terms and
conditions of this Agreement, and the decision of whether or not to seek advice
of counsel with respect to this Agreement is a decision that is the sole
responsibility of each Party. This Agreement shall not be construed in favor of or
against either Party by reason of the extent to which each Party participated in
the drafting of the Agreement.
10.9
Conflicts Between Terms. If an apparent conflict or inconsistency exists
between the main body of this Agreement and any exhibits, the main body of this
Agreement shall control. If a conflict exists between an applicable federal, state,
or local law, rule, regulation, order, or code and this Agreement, the law, rule,
regulation, order, or code shall control. Varying degrees of stringency among the
main body of this Agreement, the exhibits, and laws, rules, regulations, orders, or
codes are not deemed conflicts, and the most stringent requirement shall control.
Each Party shall notify the other immediately upon the identification of any
apparent conflict or inconsistency concerning this Agreement.
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10.10 Compliance With Law. The parties shall, at their sole cost and expense,
comply with all the requirements of municipal, state, and federal authorities now
in effect or which may hereafter be in effect related to this Agreement.
10.11 Governinq Law. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California. This Agreement shall be deemed
made and entered into in San Diego County, California.
10.12 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, Imperial Beach shall meet and confer in good faith with City for
the purpose of resolving any dispute over the terms of this Agreement
10.13 Fees. In the event any action or proceeding shall be instituted in connection with
this Agreement, including without limitation the enforcement of any
indemnification obligation contained herein, the losing Party shall pay to the
prevailing Party a reasonable sum for attorneys' fees and costs incurred in
bringing or defending such action or proceeding and/or enforcing any judgment
granted.
10.14 Jurisdiction and 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.
10.1.5 Municipal Powers. Nothing contained in this Agreement shall be construed as a
limitation upon the powers of the City as a chartered city of the State of
California.
10.16 AssiQnment. Imperial Beach shall not assign this Agreement or any right or
privilege hereunder to any Party without the express written consent of the City.
Consent to an assignment by the City shall not be deemed to be consent to any
subsequent assignment. Any such assignment without such consent shall be
void.
10.17 No Waiver. No failure of either Party to insist upon the strict performance by the
other Party of any covenant, term or condition of this Agreement, nor any failure
to exercise any right or remedy consequent upon a breach of any covenant,
term, or condition of this Agreement, shall constitute a waiver of any such breach
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of such covenant, term or condition. No waiver of any default hereunder shall be
implied from any omission to take any action on account of such default. The
consent or approval to or of any act requiring consent or approval shall not be
deemed to waive or render unnecessary future consent or approval for any
subsequent similar acts. No waiver of any breach shall affect or alter this
Agreement, and each and every covenant, condition, and term hereof shall
continue in full force and effect to any existing or subsequent breach.
10.18 Additional Riqhts. No rights other than those specifically identified herein shall
be implied from this Agreement.
10.19 Cumulative Remedies. All rights, options, and reniedies of City contained in
this Agreement shall be construed and held to be cumulative, and no one of them
shall be exclusive of the other, and City shall have the right to pursue anyone or
all of such remedies or to seek damages or specific performance in the event of
any breach of the terms hereof or to pursue any other remedy or relief which may
be provided by law or equity, whether or not stated in this Agreement. .
10.20 Independent Contractor. Unless otherwise stated in this Agreement, all
persons employed in the performance of services and functions forlmperial
Beach under this Agreement shall be City employees, agents, or contractors
thereof. No Imperial Beach employee shall perform services or functions that City
is obligated to provide under this Agreement. All City employees who are
employed by City to perform the services pursuant to this Agreement shall be
entitled solely to the rights and privileges given to City employees and shall not
be entitled, as a result of providing services pursuant to this Agreement, to any
additional rights and privileges given to Imperial Beach employees. Imperial
Beach shall not be liable for the direct payment of any salaries, wages, or the
compensation to City personnel, agents, or contractors performing services
pursuant to this Agreement, or any liability other than that provided for in this
Agreement. Unless specified otherwise, Imperial Beach shall not be liable for
compensation or indemnity to any City employee, agent, or contractor for injury
or sickness or any other claims arising out of his or her employment. City is an
iCldependent contractor, and no agency relationship, either expressed or implied,
is created by the execution of this Agreement.
10.21 Good Faitli. The Parties promise to use their best efforts to'satisfy all conditions
to this Agreement and to take all further steps and execute all further documents
reasonably necessary to put this Agreement into effect. Both Parties agree to
meet and confer in good faith with City's Animal Care Facility Administrator
regarding operational matters upon request.
10.22 Siqninq Authoritv. The representative for each Party signing on behalf of a
corporation, partnership, joint venture or governmental entity hereby declares
that authority has been obtained to sign on behalf of the corporation, partnership,
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joint venture, or entity and agrees to hold the other Party or Parties hereto
harmless if it is later determined that such authority does not exist.
[Signature Page Follows]
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SIGNATURE PAGE TO
AGREEMENT BETWEEN CITY OF CHULA VISTA AND
CITY OF [IMPERIAL BEACH
PROVIDING FULL ANIMAL CONTROL SERVICES
CITY OF CHULA VISTA
Date:
Approved as to form:
Bart Miesfeld
City Attorney
Cheryl Cox
Mayor
Attest:
Donna NQrris
City Clerk
CITY OF I~PiRIAL BEACH
Date, \ 'f-I?s j C C\ / /J
APP.. roved ~sJ' for~i/ / .
.C" '\( I ?J
'\;'V' " 1, /A
eity/Attorney t
;/ )
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/;:y ~
0k;~"13u~
City Ma ger
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