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120-09 - Resolution - Contract with Kitsap Humane Society for Animal Control ServicesIntroduced by: Requested by: Drafted by: Introduced: Adopted: RESOLUfiON NO. 120-09 City Clerk City Clerk City Clerk December 8, 2009 December 8, 2009 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, AUfHORIZING THE MAYOR TO EXECUTE A CONTRACT FOR ANIMAL CONTROL SERVICES WITH KITSAP HUMANE SOCIETY WHEREAS, since 1999, the Kitsap Humane Society has been providing animal control services within the City limits; and WHEREAS, the current contract with Kitsap Humane Society expires on December 31, 2009; and historically, the City has entered into a one-year contract; however, in an effort to keep costs down, staff has negotiated a five (5) year contract with Kitsap Humane Society; and WHEREAS, overall, City staff has been pleased with the services provided by Kitsap Humane Society and look forward to continuing the working relationship; and WHEREAS, The first year of the contract is for $35,515, with a 3% increase each year thereafter; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: The Council authorizes the Mayor to execute a contract for animal control services with Kitsap Humane Society (a copy of said contract is attached and incorporated herein as Exhibit A) in an annual amount of $35,515 for 2010; with a 3% increase each year thereafter. The Contract shall commence January 1, 2010 and end on December 31, 2014. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 8th y of Dece er 2009. CONTRACT FOR ANIMAL CONTROL SERVICES THIS AGREEMENT is entered into between Kitsap Humane Society ("Society") and City of PORT ORCHARD ("Port Orchard") and is made effective as of the 1st day of .January 2010. WITNESSETH For and in consideration of the mutual promises and agreements hereinafter contained, it is hereby mutually promised, understood and agreed by the parties hereto as follows, to-wit: 1. Parties. This Agreement is by and between City of Port Orchard (hereinafter City), and the Kitsap Humane Society (hereinafter Society). 2. Purpose. The purpose of this Agreement is to establish and define the relationship between the parties as it concerns the subject of this Agreement. 3· Subject. The subject ofthis Agreement is services to be provided to City of Port Orchard by the Society. 4· Terms of Agreement. a. The Society shall act as the Animal Control and Impounding authority for the City, and shall provide impound services and facilities for all animals for which impounding is authorized. Society represents and warrants that it has the requisite training, skill and experience necessary to provide the services under this agreement and is appropriately accredited and licensed by all applicable agencies and governmental entities. Services provided by Society under this agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing in similar circumstances. b. The Society shall faithfully enforce all ordinances of the City and/or statutes of the State of Washington now in effect or as may be adopted relative to the care, treatment, control, impounding and licensing of animals. c. The Society, under the authority and at the direction of the Health Officer of the Bremerton-Kitsap County Health Department, shall, pursuant to the direction of the Health Officer or in accordance with the request of.the owner, · quarantine all animals that shall have bitten a person so as to have broken the skin. PROVIDED, that the responsibility for the release of such animals from confinement shall be that of the Health Department. It is the responsibility of the Health Officer to monitor animals under confinement and the Society shall cooperate with the Health Officer in the record keeping necessary to monitor the keeping of quarantined animals. Such records shall be maintained for five (5) years. d. The Society, while on routine patrol or by request, shall pick up dogs and/ or cats injured or killed on City streets, roads and alleys. If the owner of any such animal is known, the Society at its discretion shall request disposition instructions and comply with the same, if reasonable. If the owner of such an Page 1 of 7 animal is unknown or unavailable, the Society shall make such disposition of said animal as it deems necessary or appropriate under the circumstances. e. The Society, on request, shall assist officers of the City Police Department in clearing the City streets and roads of livestock or any other animals at large on said roads and streets. PROVIDED, that nothing contained herein shall be construed to place responsibility on the Society for the removal of dead livestock or any other deceased animals from public roads, streets and highways, nor from public or private property except as set forth in paragraph 4.d. above. f. The Society shall accept dogs, cats and other small pets brought to the Shelter by their owners or authorized person. PROVIDED, such animals shall have not bitten any person within the last ten (10) days so as to have broken the skin. PROVIDED FURTHER, that disposition of said animals shall be at the discretion of the Society. Nothing herein contained shall be construed to prevent the Society from charging owners for euthanasia and/ or cremation where such services are requested of the Society or deemed necessary. g. Routine and "Emergency" Service. The Society shall perform the Scope of Services (Exhibit A) paragraphs a-f during normal business hours of the Society; however the clearing of livestock from roadways, impoundment of injured animals shall be considered as an "emergency" and responded to 24 hours a day, 365 days a year. All "emergencies" shall be at the discretion of the Society and may include Police, Fire and other law enforcement assistance where animals have been involved such as traffic stops, accidents or fire. Nothing contained herein shall require the society or its agents to respond after the Society's normal business hours for routine animal complaints, pick ups or patrols. h. The Society shall provide its animal control officers the necessary courtroom training to present evidence and shall provide testimony in the prosecution of all violations of any ordinance or statute pertaining to animals as herein defined. 1. The City, through the City Attorney, shall be responsible for prosecuting criminal violations of the City's code referred by the Society, handling criminal appeals, participating in civil infraction cases as needed and participating in appeals from civil infraction cases as needed. J. The Society shall act as an agent of the City Clerk for the purpose of issuing licenses for pets and collecting the fee therefore, as required by city Ordinance, at no cost to the City. The Society may impose a surcharge, for each license issued, to be retained by the Society to mitigate administrative costs. For licenses issued by the City Clerk, the surcharge may be retained by the City. All moneys collected from said licensing, with the exception of the surcharge, shall be remitted to the City Clerk monthly during the term of this Agreement. k. The duties of the Society, as set forth herein, shall pertain to all domestic animals and to wild animals which have been tamed or kept in captivity. The duties of the Society, as set forth herein, shall not pertain to wild predatory or game birds or animals at all, except in the case of injury and/ or suffering. Page 2 of 7 l. The Society, during the term of this contract, shall function as a nonprofit corporation. PROVIDED, that nothing herein contained shall be construed to prevent the Society from selling impounded animals, strays or gift animals, nor from boarding for a fee animals under quarantine and/or at a request of the owners. m. The above-terms shall be in addition and supplemental to the services detailed in the scope of work, Attached as Exhibit A. In the event of a conflict between the terms set forth above and the provisions of the scope of work, the terms in the preceding paragraphs shall prevail. 5· Termination. This agreement may be terminated by either party upon thirty (30) days written notice. In the event of termination, Society shall perform such additional work as is necessary for the orderly transfer of documents and materials to the City and closing of the services rendered. Society shall be compensated for work performed prior to the effective date of termination, plus work required for closing this Agreement. 6. Records. The Society shall maintain complete and accurate records of expenditures for this contract, and shall submit to Port Orchard, on a quarterly basis, a detailed accounting of the costs of operations. 7· Commission of Animal Control Officers. For the purpose of the enforcement of City Ordinances and State laws as set forth in Section 4, the City Police Department shall commission Animal Control Officers of the Society over the age of twenty-one (21) years. PROVIDED, that such commission be conferred at the discretion of the Chief of Police and may be revoked at will by him. PROVIDED FURTHER, that the City shall furnish such employees with a suitable badge of authority. Nothing contained herein shall prohibit the Society from conducting cruelty investigations as commissioned by the state to enforce any state statute. 8. Compensation. The total amount of this contract for 2010 shall be $35,515.00, inclusive of all services performed herein except as otherwise set forth in this paragraph. Port Orchard shall pay the Society for its services the sum of $2,959.58, each month for twelve installments beginning in January 2010. The Contract amount will increase annually for the following four years at a rate of 3% as follows: 2011 $36,804-45 2012 $37,908.58 2013 $39,045.84 2014 $40,217.22 The costs of impoundment of animals beyond 30 days due to the judicial system requiring the retention of evidence (animals), will be paid by the City at a discounted rate of $15.00 a day plus tax per domestic animals (dogs, cats, and Page 3 of 7 other small pets) and $20.00 per day per animal plus tax for livestock (horses, cows, sheep, goats, pigs, etc.) g. Workers' Compensation. Society shall maintain workers' compensation insurance and comply with all laws and regulations regarding workers' compensation. 10. Hold Harmless. Society shall defend, indemnify, and hold harmless at Society's sole expense including attorneys' fees, City of Port Orchard, and its elected officials, officers, employees, and agents, from any and all claims, demands, losses and liabilities for damages of any nature whatsoever, arising out of the performance of this Agreement, including losses or claims by the Society's employees or third parties, except for those damages caused by the sole negligence or vvillful misconduct of the City, its elected or appointed officials, officers, employees or agents. In any and all claims against P01t Orchard, its officers, officials, employees and agents by any employee of the SOCIETY, subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligation under this Section shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the SOCIETY or subcontractor under Worker's Compensation acts, disability benefit acts, or other employee benefit acts, it being clearly agreed and understood by the parties hereto that the SOCIETY expressly waives any immunity the SOCIETY might have had under such laws. By executing the Contract, the SOCIETY acknowledges that the foregoing waiver has been mutually negotiated by the parties and that the provisions of this Section shall be incorporated, as relevant, into any contract the SOCIETY makes with any subcontractor or agent performing work hereunder. Nothing in this section shall be construed to create a liability or a right of indemnification in any third party. This section shall survive the expiration of this Agreement. 11. Insurance. Prior to commencing work, Society shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Society, its agents, representatives, employees, or subcontractors. a. Minimum Scope of Insurance: Society shall obtain insurance of the types described below: Page 4 of 7 1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be vvritten on Insurance Services Office (ISO) form CA oo 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. n. Commercial General Liability insurance shall be written on ISO occurrence form CG oo 01 or a substitute form providing equivalent liability coverage and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City shall be named as an insured under the Society's Commercial General Liability insurance policy vvith respect to the work performed for the City. iii. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. iv. Professional Liability insurance appropriate to the Society's profession. b. Minimum Amounts of Insurance: Society shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,ooo,ooo per accident. 11. Commercial General Liability insurance shall be written with limits no less than $1,ooo,ooo each occurrence, $2,000,000 general aggregate. iii. Professional Liability insurance shall be written vl'ith limits no less than $1,000,000 per claim and $1,ooo,ooo policy aggregate limit. c. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability insurance: 1. The Society's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Society's insurance and shall not contribute with it. 11. The Society's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. d. Acceptability of Insurers: Insurance is to be placed vvith insurers \'lith a current A.M. Best rating of not less than A: VII. e. Verification of Coverage: Society shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Society before commencement of the work. 12. Americans with Disabilities Act. The Society agrees to comply with all provisions of the Americans with Disabilities Act and all regulations interpreting or enforcing such Act. 13. Duration. This Agreement shall be effective as of the first day of January 2010, and shall be in force and effect through the 31st day of December 2015. This Agreement shall be automatically renewed annually thereafter. Proposed increases, if any, in compensation amounts for subsequent years of this agreement shall be submitted to the City for review during the City's normal budgeting process, on or before August 1st of each year. Should the Society and the City fail to reach an agreement on proposed increases, either party may terminate this agreement upon written notice of at least 90 days prior. 14. Privileged and Confidential Information. During the term of this agreement, Port Orchard and the Society, to the extent of their right to do so and as required for each to perform its obligations under this agreement, may exchange proprietary and confidential information. Page 5 of 7 a. Except as specifically authorized by this Agreement, or otherwise approved by the City in writing, all records or other information, documents, and materials furnished by the City to the Society will be used only in connection with work performed under this Agreement. The Society will, upon completion or termination of this Agreement, transit to the City all records or other information, documents and materials, and copies thereof, furnished by the City to the Society or developed by the Society in the performance of this Agreement. Similarly, Port Orchard will return to the Society all of the same type of records and information provided by the Society to the City; b. All proprietary or confidential information whether received visually, orally, in writing, electronically, or in any other medium, is and shall remain the property of the disclosing entity for a period of three (3) years or until relieved of that responsibility by the information owner. 15. Venue and Choice of Law Clause. Any action at law, suit in equity, or other judicial proceedings for the enforcement of this contract or any provision thereof shall be instituted only in the courts of the State of Washington, Kitsap County. It is mutually understood and agreed that this contract shall be governed by the laws of the State of Washington, both as to interpretation and performance. 16. Assigning or Subcontracting. Society shall not assign, transfer, subcontract or encumber any rights, duties, or interests accruing from this Agreement without the express prior written consent of the City, which consent may be withheld in the sole discretion of the City. 17. Independent Contractor. Society is and shall be at all times during the term of this Agreement an independent contractor. Nothing in this Agreement shall create an employee/employer relationship between the parties. 18. Notice. Any notices required to be given by the City to Society or by Society to the City shall be in writing and delivered to the pmties at the following addresses: Page 6 of 7 Lary Coppola Mayor 216 Prospect Street Port Orchard, W A 98366 Phone: 360.876-4407 Fax: 360.895.9029 Sean Compton Executive Director 9167 Dickey Road NW Silverdale, W A 98383 Phone: 360.692.6977, ext. 7115 Fax: 19. Attorneys Fees. In any suit or action instituted to enforce any right granted in this Agreement, the substantially prevailing party shall be entitled to recover its costs, disbursements, and reasonable attorney's fees from the other party. 20. Extent of Agreement/Modification. This Agreement, together with attachments or addenda, represents the entire and integrated Agreement between the parties hereto and supersedes all prior negotiations, representations, or agreements, either written or oral. This Agreement may be amended, modified or added to only by written instrument properly signed by both parties. 21. Severability. If any section, sentence, clause or phrase of this Agreement should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of constitutionality of any other section, sentence, clause or phrase of this Agreement. IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed by their proper officers on this I '1 t'.!> day of -:JA.N<M-1\.H 2009. CITY O~CH. /~HINGTON ,/~·-·/ :LUMANE. SOCIETY .··~-~ Sean Compton, Executive Director t of Kitsap Humane Society Page 7 of 7