13-1015_ARK OF SAN JUAN, THE_D12_Agenda ReportTO: Karen P. Brust, City M
apistrano
ort
10/15/2013
012
FROM: Tom Bokosky, Human R ources Manager
Prepared by: Michael Cantor, Safety & Emergency Services~
Manager
DATE: October 15,2013
SUBJECT: Consideration of Memorandum of Understanding with The Ark of San
Juan to Promote Public Education for the Protection and Enhancement of
the Lives of Stray and Abandoned Domestic Dogs and Cats
RECOMMENDATION:
By motion, approve the Memc
relationship between the City anc
the protection and enhancement
cats.
EXECUTIVE SUMMARY:
• ., ·-;; If\./\ r ff· 'II
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s a working
education for
estic dogs and
As directed by the City Counc support The Ark
of San Juan's mission to enh Jmestic dogs and
cats in the City. Staff has rr m Juan (Ark) and
agreed upon a Memorandum ur _ ablish a working
relationship between the City and Ark (Attachmerrl ., direct costs to the
City and the MOU requires Ark to be responsible for all costs reral .... _ to the MOU.
DISCUSSION/ANALYSIS:
Since 2008, Ark has been rescuing animals from the Orange County animal shelter, and
or receiving owner relinquished animals from people who were considering taking them
to the Orange County animal shelter. During the last five years, Ark reports the rescue
of approximately 500 dogs and cats from in and around the San Juan Capistrano area.
City Council Agenda Report
October 15, 2013
Page 2 of 3
Staff conferred with Ark to develop what services would most benefit their overall
mission statement. The seven (7) agreed upon services are as follows:
1. For the purposes of community outreach, space will be made available at City
sponsored events as follows: the four San Juan Summer Nite Concerts (upon
application, a space will be reserved in the area designated for non-profit
groups; if unable to attend any of the concerts, a 1 0-day cancellation notice is
required to be sent to the City prior to a specific concert); Annual Low Cost
Pet Vaccination Clinic. Ark will be responsible for providing materials,
supplies and equipment for their respective set-ups.
2. A link on the City's Web page to the Ark's web site.
3. Ark may send a public service message via the City's E-News one time each
quarter. The message is subject to City approval.
4. Ark may submit a notification for the City's News & Notes, one time each
year, which publishes quarterly. Space in said publication must be reserved in
advance and is subject to availability and City approval.
5. Ark may send a public service message via the City's water bill mailing one
time each year. The notice is subject to City approval and must be reserved
in advance; Ark shall be responsible for all costs associated with each
mailing.
6. Ark may display a street banner at Del Obispo Street and Camino Capistrano
one time each year for one week to promote an Ark event; Ark must reserve
space in advance and is subject to availability. Ark shall be responsible for all
costs associated with the banner display.
7. Ark is authorized to build and maintain a public education kiosk in an area
outside the perimeter of the Dr. Joe Cortese Dog Park. Ark shall comply with
all applicable ordinances and building codes. Ark shall be responsible for all
costs to design, build and maintain the kiosk. The design and location is to
be approved by the City. If either party terminates this Memorandum of
Understanding, the City has the option to assume all improvements and
maintenance of the kiosk, or require Ark to remove the kiosk from the dog
park.
Per the MOU, the City requires an additional insured endorsement naming the City, its
officers, employees, agents, and volunteers as additional insureds (see MOU, Section
12.3 Proof of Insurance Requirements/Endorsement).
FISCAL IMPACT:
There is no fiscal impact to the City, which was the Ark goal for developing this working
relationship with the City. Ark shall be responsible for all costs associated for service
items (5, 6 & 7) listed above.
City Council Agenda Report
October 15, 2013
Page 3 of 3
ENVIRONMENTAL IMPACT:
Not applicable.
PRIOR CITY COUNCIL REVIEW:
Not applicable.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
Not applicable.
NOTIFICATION:
The Ark of San Juan
ATTACHMENT:
1. Memorandum of Understanding between the City and the Ark of San Juan
MEMORANDUM OF UNDERSTANDING
This Memorandum ofUnderstanding is made, entered into, and shall become effective
this day of , 2013, by and between the City of San Juan
Capistrano (hereinafter referred to as the "City") and The Ark of San Juan, Companion
Animal Rescue, a non-profit corporation (hereinafter referred to as the "Ark").
RECITALS:
WHEREAS, City desires to support Ark's mission in providing public benefit for
companion animal care services, primarily dogs and cats, in the City of San Juan
Capistrano; and
WHEREAS, Ark desires to provide the City with public education regarding
animal care and safety as addressed in The Ark of San Juan Mission Statement as
follows:
Mission and Our Pledge
• To protect and enhance the lives of stray and abandoned domestic dogs and
cats in need, with the primary focus on the animals originating from within the
City of San Juan Capistrano.
• A commitment to the humane treatment and rehabilitation of these animals
through appropriate temporary housing, training and medical care.
• A commitment to responding to the animals' needs through humane efforts with
sensitivity, compassion and technical skill.
• A commitment to pursue suitable adoptions into permanent homes that address
and fulfill the animals' current and future needs.
• To encourage and assist in appropriate medical care for all domestic animals,
including altering to help reduce the number of stray and abandoned animals.
• A commitment to humane animal treatment education throughout the community
and beyond.
• A commitment to provide obedience training, where necessary, behavior
management, where necessary, and assessment and evaluation of adoptability
of any animal in its care.
• A commitment to provide follow-up services and advice to adoptive families,
should those families so request.
NOW, THEREFORE, City and Ark mutually agree as follows:
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ATTACHMENT 1
Section 1. Services to be made available to Ark by the City.
The City will help Ark facilitate their Mission Statement as follows:
a) For the purposes of community outreach, space will be made available at City
sponsored events as follows: the four San Juan Summer Nite Concerts (upon
application, a space will be reserved in the area designated for non-profit groups;
if unable to attend any of the concerts, a 1 0-day cancellation notice is required to
be sent to the City prior to a specific concert); Annual Low Cost Pet Vaccination
Clinic. Ark will be responsible for providing materials, supplies and equipment for
their respective set-ups.
b) A link on the City's Web page to the Ark's web site.
c) Ark may send a public service message via the City's E-News one time each
quarter. The message is subject to City approval.
d) Ark may submit a notification for the City's News & Notes, one time each year,
which publishes quarterly. Space in said publication must be reserved in advance
and is subject to availability and City approval.
e) Ark may send a public service message via the City's water bill mailing one time
each year. The notice is subject to City approval and must be reserved in
advance; Ark shall be responsible for all costs associated with each mailing.
f) Ark may display a street banner at Del Obispo Street and Camino Capistrano
one time each year for one week to promote an Ark event; Ark must reserve
space in advance and is subject to availability. Ark shall be responsible for all
costs associated with the banner display.
g) Ark is authorized to build and maintain a public education kiosk in an area
outside the perimeter of the Dr. Joe Cortese Dog Park. Ark shall comply with all
applicable ordinances and building codes. Ark sliall be responsible for all costs to
design, build and maintain the kiosk. The design and location is to be approved
by the City. If either party terminates this Memorandum of Understanding, the
City has the option to assume all improvements and maintenance of, the kiosk, or
require Ark to remove the kiosk from the dog park.
Section 2. Term.
This agreement shall remain in full force and effect until mutually rescinded or
amended by the parties.
Section 3. Termination.
Either party shall have the right to terminate this Agreement without cause by
giving thirty (30) days' advance written notice of termination.
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Section 4. Compensation.
Pursuant to those services as listed in Section 1 , Ark shall be responsible
for those services/work projects that require compensation to be paid to City. The City
waives any and all fees and expenses associated with Items; A, B, C and D.
Section 5. Independent Contractor-Non-profit Organization.
It is agreed that Ark is a Non-profit Organization and as such, shall act or be
considered an independent contractor. Ark shall not be considered an agent or
employee of City, and shall obtain no rights to any benefits which accrue to City's
employees.
Section 6. Limitations Upon Subcontracting and Assignment.
The experience, knowledge, capability and reputation of Ark, its principals and
staff were a substantial inducement for City to enter into this Agreement. This
Agreement may not be assigned, voluntarily or by operation of law, without the prior
written approval of the City. If Ark is permitted to subcontract any part of this
Agreement by City, Ark shall be responsible to' City for the acts and omissions of its
subcontractor as it is for persons directly employed. Nothing contained in this
Agreement shall create any contractual relationships between any subcontractor of Ark
and City. All persons engaged in the work will be considered employees and or staff of
Ark.
Section 7. Changes to Services to be made available to Ark by the City.
For additional services not part of this Agreement, a written authorization from
the City is required prior to Ark undertaking any extra services. Such authorization shall
not be unreasonably withheld. In the event of a change in the services, the Parties
hereto shall execute an addendum to this Agreement setting forth with particularity all
terms of the new agreement, including but not limited to any additional fees to be paid
by Ark.
Section 8. Familiarity with Services and/or Work Sites.
By executing this Agreement, Ark warrants that: (1) it has investigated the
services/work to be performed; (2) if applicable, it has investigated the services/work
site(s), and is aware of all conditions there; and (3) it understands the facilities,
difficulties and restrictions of the services/work to be performed under this Agreement.
Should Ark discover any latent or unknown conditions materially differing from those
inherent in the services/work or as represented by City, it shall immediately inform the
City of such and the Parties shall work jointly to reasonably resolve any material impact
the conditions may impose upon the provisions of this Agreement.
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Section 9. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 10. Compliance with Law.
Ark shall comply with all applicable laws, ordinances, codes and regulations of
federal, state and local government.
The City has been advised that the Prevailing Wages Law may apply to the work.
Ark shall be responsible for Ark's compliance in all respects with the prevailing wage
rates to all the labors involved, and with California Labor Code Section 1770 et seq.,
including the keeping of all records required by the provisions of Labor Code Section
1776 and the implementing administrative regulations. The City shall be a third party
beneficiary of the forgoing covenant with rights to enforce the same as against the Ark.
A Certification of Compliance is set for in Exhibit "A," attached and incorporated herein
by reference.
Section 11. Indemnity.
To the fullest extent permitted by law, Ark agrees to protect, defend, and hold
harmless the City and its elective and appointive boards, officers, agents, and
employees from any and all claims, liabilities, expenses, or damages of any nature,
including attorneys' fees, for injury or death of any person, or damages of any nature,
including interference with use of property, arising out of, or in any way connected with
the negligence, recklessness and/or intentional wrongful conduct of Ark, Ark's agents,
officers, employees, subcontractors, or independent contractors hired by Ark in the
performance of the Agreement. The only exception to Ark's responsibility to protect,
defend, and hold harmless the City, is due to the negligence, recklessness and/or
wrongful conduct of the City, or any of its elective or appointive boards, officers, agents,
or employees.
This hold harmless agreement shall apply to all liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Ark.
Section 12. Insurance.
On or before beginning any of the services or work called for by any term
of this Agreement, Ark, at its own cost and expense, shall carry, maintain for the
duration of the agreement, and provide proof thereof that is acceptable to the City, the
insurance specified below with insurers and under forms of insurance satisfactory in all
respects to the City. Ark shall not allow any subcontractor to commence work on any
subcontract until all insurance required of the Ark has also been obtained for the
subcontractor. Insurance required herein shall be provided by Insurers in good standing
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with the State of California and having a minimum Best's Guide Rating of A-Class VII or
better.
12.1. Comprehensive General Liability.
Throughout the term of this Agreement, Ark shall maintain in full force and
effect Comprehensive General Liability coverage in an amount not less than one million
dollars per occurrence ($1 ,000,000.00), combined single limit coverage for risks
associated with the work contemplated by this agreement. If a Commercial General
Liability Insurance form or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under this
agreement or the general aggregate limit shall be at least twice the required occurrence
limit.
12.2. Workers' Compensation.
If Ark intends to employ employees to perform services under this
Agreement, Ark shall obtain and maintain, during the term of this Agreement, Workers'
Compensation Employer's Liability Insurance in the statutory amount as required by
state law.
12.3. Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement, Ark shall submit the
insurance certificates, including the deductible or self-retention amount, and an
additional insured endorsement naming the City, its officers, employees, agents, and
volunteers as additional insureds as respects each of the following: Liability arising out
of activities performed by or on behalf of Ark; and products and completed operations of
Ark. The coverage shall contain no special limitations on the scope of protection
afforded the City, its officers, employees, agents, or volunteers.
12.4. Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled,
nor the coverages reduced, until after thirty (30) days' written notice is given to the City,
except that ten (10) days' notice shall be given if there is a cancellation due to failure to
pay an insurance premium.
12.5. Notice to Proceed.
Ark shall not proceed with any services/work under this Agreement until
the City has issued a written "Notice to Proceed" verifying that Ark has complied with all
insurance requirements of this Agreement. Such "Notice to Proceed" shall not be
unreasonably withheld.
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Section 13. Notice.
All notices shall be personally delivered or mailed to the below listed addresses,
or to such other addresses as may be designated by written notice. These addresses
shall be used for delivery of service of process:
To City:
To Ark:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attention: Michael Cantor, Safety & Emergency Services Manager
The Ark of San Juan
P.O.Box117
San Juan Capistrano, CA 92693.
Attention: Jean Janicki, President
Section 14. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs
and necessary disbursements in addition to any other relief to which the Party may be
entitled.
Section .15. Dispute Resolution.
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration
under the auspices of the Judicial Arbitration and Mediation Service ("JAMS").
Section 16. Entire Agreement.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
Section 17. Counterparts and Facsimile signatures.
This Agreement may be executed by the Parties in counterparts, which
counterparts shall be construed together and have the same effect as if all the Parties
had executed the same instrument. Counterpart signatures may be transmitted by
facsimile, email, or other electronic means and have the same force and effect as if they
were original signatures.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
By: ________________________ __
John Taylor, Mayor
THE ARK OF SAN JUAN
ATTEST:
Maria Morris, City Clerk
APPROVED AS TO FORM:
Hans Van Ligten, City Attorne
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EXHIBIT "A"
CERTIFICATION OF COMPLIANCE
STATE OF CALIFORNIA PREVAILING WAGES LAW REQUIREMENTS
The City has been advised that the Prevailing Wages Law may apply to the work.
Ark shall be responsible for Ark's compliance in all respects with the prevailing wage
rates to all the labors involved, and with California Labor Code Section 1no et seq.,
including the keeping of all records required by the provisions of labor Code Section
1776 and the implementing administrative regulations. The City shall be a third party
beneficiary of the forgoing covenant with rights to enforce the same as against the Ark.
I, Jean Janicki, understand that I shall be responsible for compliance in all
respects with the prevailing wage rates to all the laborers involved, and the California
Labor Code Section 1no et seq., including the keeping of records required by the
provisions of Labor Code Section 1776 and with implementation of administration
regulations.
Date