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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 \ ' ~1 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: 1 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. 2 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. 3 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 4 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. 5 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] 6 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 7 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