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HomeMy WebLinkAbout5.703 Original Contract 5.703 ; .-' AGREEMENT TO EXTEND SERVICE AGREEMENT AND AMENDMENT WITH CLALLAM COUNTY HUMANE SOCIETY THIS AMENDMENT is entered into this tr;tA- day of January, 2009, between the City of Port Angeles, a code city of the State of Washington, and the Clallam County Humane Society, hereinafter called "Contractor." In consideration of the above representations and the covenants and agreements set forth below, the parties hereby agree as follows: I. On February 15, 2005, the City and Contractor entered into a Service Agreement containing and incorporating the following attachments: Attachment "A" Attachment "B" Attachment "c" Attachment "D" Scope of Work Compensation General Conditions Special Terms and Conditions. The Service Agreement is incorporated by this reference and attached hereto. II. The Service Agreement provided as follows: The term of this Agreement shall commence on the 1 st day of January, 2005, and shall, unless terminated as provided elsewhere in the Agreement, terminate on the 31 st day of December, 2007, except that the agreement may continue on a month- to-month basis beyond December, 2007, with the consent of both parties. III. The Service Agreement dated February 15, 2005, was amended to provide services on a month-to-month basis from January, 2008 through December, 2008 by an Agreement to Extend and Amend Service Agreement with Clallam County Humane Society dated May 6,2008. The May 6, 2008 Agreement to Extend and Amend Service Agreement with Clallam County Humane Society is incorporated by this reference and attached hereto. IV. The City of Port Angeles and Clallam County Humane Society desire to extend the terms of the Service Agreement dated February 15,2005 and the Agreement to Extend and Amend Service Agreement dated May 6, 2008, from December 31, 2008 through March 31, 2009. -1- 0-') IN WITNESS WHEREOF, this Second Amendment to Service Agreement has been executed the date and year first above written. CITY OF PORT ANGELES ~4{~ ATTEST: .An l!~ .J ~ Becky 1. Up , 1 Clerk APPR~EDASTOFO~____ ~~ <-- ~- Willlam E. Bloor, City Attorney State of Washington ) ) ss. County of Clallam ) ~;1~~ On this b ~ day of Jam~.!X, 2009, personally appeared before me n and Becky J. Upton, to me known to be the:M~r and City Clerk, respectively, ofthe City of Port Angeles, the municipal corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said municipal corporation. IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the day and year first above written. ~~ 'N' _ ~C'y-QA.'f'-y Notary Public in and for the State of Washington residing at -ro~' o..~ My commission expires: 5-d S- -II >>: ...l"' Notary Public State of Washington JEANIE M. DEFRANG tIN COMMI86CON EXPtRlS May 25. 2011 -2- ./ State of Washington ) ) ss. County of Clallam ) '1\.J On this b day of January 2009, personally appeared before me "'S c... t::>~ \ ~ ' C\~ II::. ~ \J l.E:.. VL to me known to be the 0<.C:.C-\A\""\0G '\::>\'l~cr~f)~fthe Clallam County Humane Society the entity that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said entity, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument. IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the day and year first above written. G ILegal_BackuplAGREE wJ. ~o~~ Notary Public in and for the State of Washington residing at 'QD.t'\..' ~N G c~ '5 My commission expires: ::) ~ 2.\ - "Z..b' 0 ts\Humane SocIety Contract ExtenslOnNo 2 122208 wpd -3- 5, 703 AGREEMENT TO EXTEND AND AMEND SERVICE AGREEMENT WITH CLALLAM COUNTY HUMANE SOCIETY THIS AMENDMENT is entered into this W~ day of ~008, between the City of Port Angeles, a code city of the State of Washington, a~m County Humane Society, hereinafter called "Contractor." In consideration of the above representations and the covenants and agreements set forth below, the parties hereby agree as follows: I. On February 15, 2005, the City and Contractor entered into a Service Agreement containing and incorporating the following attachments: Attachment "A" Attachment "B" Attachment "C" Attachment "D" Scope of Work Compensation General Conditions Special Terms and Conditions. The Service Agreement is incorporated by this reference and attached hereto. II. The Service Agreement provided as follows: The term of this Agreement shall commence on the 1 st day of January, 2005, and shall, unless terminated as provided elsewhere in the Agreement, terminate on the 31 st day of December, 2007, except that the agreement may continue on a month- to-month basis beyond December, 2007, with the consent of both parties. III. The Service Agreement dated February 15, 2005, is hereby amended to provide services on a month-to-month basis from January, 2008 through December, 2008. IV. Attachment "A" Shelter Facilities is hereby amended at subsection G as follows: 1. Shelter Facilities: G. An external security fence at a minimum of 6' in height. V. Attachment "A" Animal Sheltering is hereby amended at Paragraph 3 as follows: 3. Receipt and Care of Animals: The Contractor shall receive dogs and cats and animals brought to the shelter pursuant to the provisions of this agreement, by the City, and by the residents of the City. The Contractor shall hold them and properly care for them pursuant to applicable sections of Port Angeles Municipal Code Title 7 .The Contractor may destroy any animal only pursuant to applicable section of Municipal Code Title 7. The Contractor shall give the best reasonable care and treatment to all animals in its custody and control, making certain they are comfortably housed and adequately -1- fed. Animals received by the shelter during non-business hours shall be officially cared for as soon as feasible. The Contractor shall maintain a record of each animal under this contract. At a minimum, such record shall consist of the type of animal, the beginning and ending dates of housing, the length of stay, the name, address and telephone number of the owner or person bringing in the animal, the approximate location where the animal was found, and the disposition of the animal. The contractor shall submit a report containing this information to the City at the end of each quarter. The Contractor shall be responsible to make reasonable attempts, and with due diligence, to identify and contact the animal owner as soon as possible after the animal is housed by the Contractor and prior to adoption or humane destruction of the animal. The Contractor shall make every reasonable effort to find suitable homes for each adoptable animal received. VI. Attachment "A" Animal Sheltering is hereby amended at Paragraph 5 as follows: 5. Records of Lost and Found Animals: Reports of lost or found animals from City citizens will be referred directly to the Contractor. The Contractor shall make information concerning lost and found animals available to citizens requesting the information. The Contractor shall use due diligence in making every reasonable effort to compare unidentified City animals to the lists and to return animals which appear to be from the list, to their owners. VII. Attachment "A" Animal Sheltering is hereby amended at Subpart A of Paragraph 6 as follows: 6. . Staff: A. The Contractor shall be registered in euthanasia by lethal injection, in accordance with RCW 69.50.310, and shall employ or contract with a minimum of one qualified handler. In addition, Contractor shall comply with all written policies and procedures required by the Washington State Department of Health, including WAC Chapter 246-886, as it may be revised, together with requirements for training, recordkeeping, and security. VIII. Attachment "C" General Conditions is hereby amended at Paragraph 24 as follows: 24. Subcontractors: In the event that the Contractor employs the use of any subcontractors, the contract between the Contractor and the subcontractor shall provide that the subcontractor is bound by the terms of this Agreement between the City and the Contractor. The Contractor shall insure that in all subcontracts entered into, City of Port Angeles is named as an additional insured. -2- IX. Except as expressly provided above, the February 15, 2005, Service Agreement attached hereto and incorporated herein, is hereby ratified, confirmed and all other provisions of the February 15,2005, Service Agreement remain the same. IN WITNESS WHEREOF, this First Amendment to Service Agreement has been executed the date and year first above written. CITY OF PORT ANGELES .sc.nH /.( ell ~cI~ &X~c:.uf7t-e-- D/~~c...~"r- ~9~, ~~~ Gary Brau f. Mayor. ATTEST: 6o~Jj~ Becky 1. U n, '. Clerk State of Washington ) ) ss. County of Clallam ) /VI o..y On this "T..'> day of ~ 2008, personally appeared before me Gary Braun and Becky 1. Upton, to me known to be the Mayor and City Clerk, respectively, of the City of Port Angeles, the municipal corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said municipal corporation. IN WITNESS WHE~~'rWHty~~;;,~unto set my year first above written. '+~f:'...""":S"'~J. ~~ I#/~ ~. \ If' ~' ) \ \ \~,"\.f, ~...J ~ JK.o ..a 'V.~~$ ~~~.... ..-.:~~ ~ "''''' -r r, ............ ~,~ ~ ~~"", OF W~~ \\",,~ , 1,,,, 11111 """ d and affixed my official seal the day and 0.. ~(J..; Ie. Nota Public in and for the St te of hington residing at -5"e't u im My commission expires: /01 ~q/ ~Oll -3- State of Washington ) ) ss. County of Clallam ) On this ,2 , day of April, 200~ personally appeared before me SCa 7t ek~~II..-e to me known to be the &J..urlTi""" b,,et-tTii/L of the Clallam County Humane Society the entity that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said entity, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument. IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the day and year first above written. G:\Legal_ BackupIAGREEMENTS&CO ~~ Notary Public in and for the State of Washington residingat 04/1/1--- f1ov~t; . My commission expires: 6/ j (J / Pl- () II , ociety.Contract Extension.031208. wpd -4- " .~I 1 5.7{)3 t _ .a SERVICE AGREEMENT THIS AGREEMENT is entered into between the City of Port Angeles, a political subdivision of the State of Washington, (hereinafter called "City) and CLALLAM COUNTY HUMANE SOCIETY of: 2105 West Highway 101. PC?rt Anqeles, WA 98363 (hereinafter called "Contractor"). This Agreement is comprised of: LX'] Attachment "A" - Scope of Work. LXJ Attachment "B" - Compensation. LX'] Attachment "C" - General Conditions. LX.] Attachment "0" - Special Terms and Conditions. copies of which are attached hereto and incorporated herein by this reference as If fully set forth. The term of this Agreement shall commence on the 1st day of January 2005, and shall, unless terminated as provided elsewhere in the Agreement, terminate on the 31st day of December 2007, except that the agreement may continue on a month-to-month basis beyond December 2007 with the consent of both . parties. The City Project Manager responsible for the administration of this Agreement and for agreement shall be the Deputy Police Chief. I~~NESS WHEREOF, the parties have executed this Agreement on this ) ,'S:tA..day of \.. JlILl)Y~005. ro:~[J{r iJflMi1~ ~ Richard A. Headrick, Mayor Date: 2/ Fe), ,2005 Date: J..fl (6 . /5 ,2005 ATTEST: b~~ ) Jpto^- Becky J. Up ,Ci Clerk APP;j~D AS TO FORM:~. By: ~/-:- 7- William E. Bloor, City Attorney . , PERSONAL SERVICES AGREEMENT ATTACHMENT "A" SCOPE OF WORK Animal Sheltering 1. Shelter Facilities: The Contractor shall furnish and maintain shelter ,facilities and necessary equipment for handling stray or impounded dogs and cats and animals brought to the contractor pursuant to the provisions of this agreement by the City; and dogs and cats brought to the Contractor by the public residing in the City limits. These facilities shall include, but not be limited to the following: A. Dog and cat kennels (minimum 20 dog and 25 cat kennels). B. An isolation room having a complete covered kennel for dangerous dogs impounded, and rabies quarantine. C. A separate room for storing feed. D. Facilities for the humane disposal of sick, injured and dead animals. E. Secure and accessible after hours receiving areas for animals brought to the shelter by the City. F. An internal alarm system. G. An external security fence at a minimum of 7' in height. The Contractor shall properly maintain the facilities and equipment in a clean and sanitary manner and will not permit any condition to exist that would constitute a public nuisance. 2. Hours of Operations: The Contractor shall, as a minimum requirement, keep the shelter facilities open to the public a minimum of 25 hours per week, 5 of which shall be on Saturday, or other such hours as approved by the City Project Manager. Such hours shall be posted. During such other hours, the City's Animal Control Officer, or designee may use keys to be supplied for access to the station. 3. ReceiDt and Care of Animals: The Contractor shall receive dogs and cats and animals brought to the shelter pursuant to the provisions of this agreement, by the City, and by the residents of the City. The Contractor shall hold them and properly care for them pursuant to applicable sections of Port Angeles Municipal Code Chapter 7.12. The Contractor may destroy any animal only pursuant to applicable sections of Municipal Code Title 7. The Contractor shall give the best reasonable care and treatment to all animals in its custody and control, making certain they are comfortably housed and adequately fed. Animals received by the shelter dunng non-business hours shall be officially cared for as soon as feasible. The Contractor shall maintain a record of each animal under this contract. At a minimum, such record shall consist of the type of animal, the beginning and ending dates of housing, the length of stay, the name, address and telephone number of the owner or person bringing in the animal, the approximate location where the animal was found, and the disposition of the animal. The contractor shall, upon request, make these records available for inspection and/or make copies as requested. The Contractor shall be responsible to make reasonable attempts, and with due diligence, to identify and contact the animal owner as soon as possible after the animal is housed by the Contractor and prior to destruction or adoption of the animal. The Contractor shall make every reasonable effort to find suitable homes for each adoptable animal received. 4. Animal Traps: The Contractor shall furnish and maintain a suitable number of traps for the live capture of animals and loan said traps to City residents upon request. At a minimum, the Contractor shall maintain 4 cat traps, 1 dog trap, 1 skunk trap and 4 raccoon traps. At the time of the loan, the Contractor shall instruct residents on the proper use of traps and the proper care and handling of , . captured animals. The Contractor may collect a deposit and/or fee as agreed between the Contractor and the City. 5. Records of Lost and Found Animals: Reports of lost or found animals from City citizens will be referred directly to the Contractor. The Contractor shall make information concerning lost and found animals available to citizens requesting the information. The Contractor shall use due diligence in making every reasonable effort to compare unidentified City dogs to the lists and to return animals which appear to be from the list, to their owners. 6. Staff: A. The Contractor shall be registered in euthanasia by lethal injection, in accordance with RCW 69.50.310, and shall employ or contract with a minimum of one qualified handler B. The Contractor shall maintain a telephone service and office personnel necessary for receiving inquiries from City residents with respect to animals impounded or delivered to the Contractor. C. The Contractor shall ensure that all of its employees act in a professional and businesslike manner and that no rude or unseemly actions or attitudes are tolerated in their day-to-day dealings with the public. D. The contractor shall provide adequate training to its employees to satisfactorily perform the obligations of this agreement. The Contractor shall arrange for all its permanent and temporary employees to be bonded for $1,000 per employee and to protect the City against any dishonesty or failure to transmit fees to the City. Proof of bond shall be provided to the Project Manager. 7. After Hour Cages/Animals Left After Hours: If the Contractor maintains after hours cages which are available to the public or animals are left at the shelter during non-business hours, those animals which are housed as a result of placement into those cages and which cannot be specifically identified as coming from City residents, shall not be counted as City animals except to the extent that the City of Port Angeles agrees to the following proportional payment for unidentified animals. In that case, charges for unidentified animals shall be charged in the same proportion as animals that are identifiable as County, Sequim, or Port Angeles billable animals on an annual basis. 8. Fees: The Contractor may charge fees as listed in Chapter 3.70 PAMC. Any changes to fees shall be approved by the City Council prior to implementation. Animal Licenses 1. Issuance of Licenses: The Contractor shall issue animal licenses in accordance with applicable City ordinance provisions for all City animals without approved license tags. The Contractor shall develop programs and activities intended to increase compliance with license requirements by City residents. 2. Maintenance of License Recording Svstem: The Contractor shall maintain a computerized license system in a current status and shall provide at least monthly to the City Project Manager and PENCOM a listing of all -current animal licenses. As an alternative, the Contractor may, at its discretion, maintain the animal license listing by posting it to an internet site accessible by the City and PENCOM. The Contractor shall maintain the system for licenses sold by the Contractor, the City, or any other license vendor in the City. The City will provide the Contractor with a copy of each license sold by the City, at least weekly. 3. The contractor shall purchase and maintain sufficient license forms and tags and shall distribute them, free of charge, to the City and other license vendors upon request. SERVICE AGREEMENT ATTACHMENT "B" COMPENSATION 1. Compensation for Shelterinq: The City shall pay to the Contractor $80,000 per calendar year of the contract, Payment shall be made quarterly in an amount of $20,000, in January, April, July, and October for services to be rendered iri that quarter. Other Compensation: The Contractor may retain Cage and Trap Rental Fees received from City citizens. 2. Compensation for Sale of Animal Licenses: The Contractor may retain annually the first $2,000 of revenue obtained from its sale of City animal licenses. The Contractor will retain 35 percent of revenue from its sale of City animal licenses above $2,000 in any annual period. The remainder shall be used to reduce the City's compensation for sheltering services. The Contractor shall account quarterly for licenses sold and revenue generated and shall provide a report to the City in accordance with Attachment D. . .. ~ SERVICE AGREEMENT ATTACHMENT "C" GENERALCONDn!ONS 1. Scope of Contractor's Services; The Contractor agrees to provide to the City services and any materials set forth in Attachment "A". No material, labor, or facilities will be furnished by the City, unless otherwise provided for in the Agreement. 2. Accountinq and Pavment for Contractor Services: Payment to the Contractor for services rendered under this Agreement shall be as set forth in Attachment "B. II Unless specifically stated in Attachment "B" or approved in writing in advance by the City designated project manager ("Project Manager"), the City will not reimburse the Contractor for any costs or expenses incurred by the Contractor in the performance of this contract. 3. Delegation and Subcontractinq: No portion of this contract may be delegated or subcontracted to any other individual, firm or entity without the express and prior written approval of the Project Manager. 4. Independent Contractor: The Contractor's services shall be furnished by the Contractor as an independent contractor and nothing herein contained shall be construed to create a relationship of employer/employee or master/servant, but all payments made hereunder and all services performed shall be made and performed pursuant to this Agreement by the Contractor as an independent contractor. The Contractor acknowledges that the entire compensation for this Agreement is specified in Attachment "B" and the Contractor is not entitled to any city benefits including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental or other insurance benefits, or any other rights or privileges afforded to City employees. The Contractor represents that it maintains a separate place of business, serves clients other than the City, will report all income and expense accrued under this contract with the Internal Revenue Service on a business tax schedule, and has a tax account with the State of Washington Department of Revenue for payment of all sales and use and Business and Occupation taxes collected by the State of Washington. Contractor will defend, indemnify and hold harmless the City, its officers, agents or employees from any loss or expense, including but not limited to settlements, judgments, setoffs, attorneys' fees or costs incurred by reason of claims or demarids because of breach of the provisions of this paragraph. In the event that either the state or federal government determines that an employer/employee or master/servant relationship exists rather than an independent contractor relationship such that the City of Port Angeles is deemed responsible for federal withholding, social security contributions, workers compensation and the like, the Contractor agrees to reimburse the City for any payments made or required to be made by City. Should any payments be due to the Contractor pursuant to this Agreement, the Contractor agrees that reimbursement may be made by deducting from such future payments a pro rata share of the amount to be reimbursed based upon the follOWing formula: Total amount to be reimbursed Number of payments remaining = Deduction from payment Notwithstanding a determination by the state or federal government that an employer/employee or master/servant relationship exists, the Contractor! its officers! employees and agents, shall not be entitled to any benefits which the City provides to its employees. 5. No Guarantee of Employment: The performance of all or part of this contract by the Contractor shall not operate to vest any rights whatsoever and shall not be deemed to guarantee any employment of the Contractor or any employee of the Contractor or any subcontractor or any employee of any subcontractor by the City at the present ~ime or in the future. . 6. Regulations and Requirement: This Agreement shall be subject to and contract shall comply with all federal! state and local laws, rules! and regulations. I 7. Right to Review: This contract is subject to review by any federal or state auditor. The City shall have the right to review and monitor the financial and service components by whatever means deemed expedient. Such review may occur with or without notice! and may include! but is not limited to! on-site inspection by City agents, or employees, inspection of records or other materials which the City deems directly pertinent to the Agreement and its performance! and any and all communications with or evaluations by service recipients under this Agreement. The Contractor shall preserve and maintain all financial records and records relating to the performance of work under this Agreement for three (3) years after contract termination, and shall make them available for such review! within Clallam County! State of Washington! upon request! during reasonable business hours. 8. Modifications: Either party may request changes in the Agreement. Any and all agreed modifications shall be in writing! signed by each of the parties. 9. Termination for Default: If the Contractor defaults by failing to perform any of the obligations of the contract or becomes insolvent or is declared bankrupt or makes an assignment for the benefit of creditors! the City may! by depositing written notice to the Contractor in the U.S. Mail, postage prepaid! terminate the contract, and at the City's option! obtain performance of the work elsewhere. If the contract is terminated for default! the Contractor shall not be entitled to receive any further payments under the contract until all work called for has been fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Contractor. The Contractor shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work! and all damage sustained, or which may be sustained by the City by reason of such default. If a notice of termination for default has been issued and it is later determined for any reason that the Contractor was not in default! the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the Termination for Public Convenience paragraph hereof. 10. Termination for Public Convenience: The City may terminate the contract in whole or in part whenever the City determines! in its sole discretion, that such termination is in the interests of the City. Whenever the contract is terminated in accordance with this paragraph! the Contractor shall be entitled to payment for actual work performed. An equitable adjustment in the contract price for partially completed items of work will be made, but such adjustment shall not include provision for loss of anticipated profit on deleted or uncompleted work. Termination of this contract by the City at any time during the term! whether for default or convenience! shall not constitute a breach of contract by the City. " 11. Riqhts and Remedies: The duties and obligations imposed by this Agreement and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. 12. Defense and Indemnity Aqreement: The Contractor agrees to defend, indemnify and save harmless the City, its appointed and elected officers and employees, from and against all loss or expense, including but not limited to judgments, settlements, attorneys' fees and costs by reason of any and all claims and demands upon the City, its elected or appointed officials or employees for damages because of personal or bodily injury, including death at any time resulting therefrom, sustained by any person or persons and on account of damage to property including loss of use thereof, whether such injury to persons or damage to property is due to any act or omission of the Contractor, his/her subcontractors, its successor or assigns, or its or their agent, servants, or employees, the City, its appointed or elected officers, employees or their agents, except only such injury or damage as shall have been occasioned by the sole negligence of the City, its appointed or elected officials or employees. It is further provided that no liability shall attach to the City by reason of entering into this contract, except as expressly provided herein. 13. Industrial Insurance Waiver: With respect to the performance of this Agreement and as to claims against the City, its appointed and ejected officers, agents and employees, the Contractor expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, as now or hereafter amended, for injuries to its employees and agrees that the obligations to indemnify, defend and hold harmless provided in this Agreement extend to any claim brought by or on behalf of any employee of the Contractor. This waiver is mutually negotiated by the parties to this Agreement. 14. Venue and Choice of Law: In the event that any litigation should arise concerning the construction or interpretation of any of the terms of this Agreement, the venue of such action shall be in the courts of the State of Washington in and for the County of Clallam. This Agreement shall be governed by the law of the State of Washington. 15. Withholding Pavment: In the event the Project Manager determines that the Contractor has failed to perform any obligation under this Agreement within the times set forth in this Agreement, then the City may withhold from amounts otherwise due and payable to Contractor the amount determined by the City as necessary to cure the default, until the Project Manager determines that such failure to perform has been cured. Withholding under this clause shall not be deemed a breach entitling Contractor to termination or damages, provided that the City promptly gives notice in writing to the Contractor of the nature of the default or failure to perform, and in no case more than ten (10) days after it determines to withhold amounts otherwise due. A determination of the Project Manager set forth in a notice to the Contractor of the action required and/or the amount required to cure any alleged failure to perform shall be deemed conclusive, except to the extent that the Contractor acts within the times and in strict accord with the provision of the Disputes clause of this Agreement. The City may act in accordance with any determination of the Project Manager which has become conclusive under this clause, without prejudice to any other remedy under the Agreement, to take all or any of the following actions: (1) cure any failure or default, (2) to pay any amount so required to be paid and to charge the same to the account of the Contractor, (3) to set off any amount of paid or incurred from amounts due or to become due the Contractor. In the event the Contractor obtains relief upon a claim under the Disputes clause, no penalty or damages shall accrue to .the Contractor by reason of good faith withholding by the City under this clause. 16. Insufficient Funds: If sufficient funds are not appropriated or allocated for payment under this contract, this contract shall be null and void. No penalty or expense shall accrue to the City in the event this provision applies. ", 17. Contractor Commitments. Warranties and Representations: Any written commitment received from the Contractor concerning this Agreement shall be binding upon the Contractor, unless otherwise specifically provided herein with reference to this paragraph. Failure of the Contractor to fulfill such a commitment shall render the Contractor liable for damages to the City. A commitment includes, but is not limited to any representation made prior to execution of this Agreement, whether or not incorporated elsewhere herein by reference, as to performance of services or equipment, prices or options for future acquisition to remain in effect for a fixed p'eriod, or warranties. 18. Patent/Copyriqht Infrinqement: Contractor will defend, indemnify and save harmless the City, its appointed and elected officers and employees from any claimed action, cause or demand brought against the City, its appointed and elected officers and employees, to the extent such action is based on the claim that information supplied by the Contractor infringes any patent or copyright. The Contractor will pay those costs and damages attributable to any such claims that are finally awarded against the City, its appointed and elected officers and employees in any action. Such defense and payments are conditioned upon the following: A. That Contractor shall be notified promptly in writing by City of any notice of such claim. B. Contractor shall have the right, hereunder, at its option and expense, to obtain for the City the right to continue using the information, in the event such claim of infringement, is made, provided no reduction in performance or loss results to the City. 19, Disputes: Differences between the Contractor and the City, arising under and by virtue of the contract documents shall be brought to the attention of the City at the earliest possible time in order that such matters may be settled or other appropriate action promptly taken. The records, orders, rulings, instructions, and decision of the Project Manager shall be final and conclusive thirty (30) days from the date of mailing unless the Contractor mails or otherwise furnishes to the City Manager a written notice of appeal. The notice of appeal shall include facts, law, and argument as to why the conclusions of the Project Mana.ger are in error. In connection with appeal of any proceeding under this clause, the Contractor shall have the opportunity to be heard and to offer evidence in support of the appeal. The decision of the City Manager for the determination of such appeals shall be final and conclusive. Reviews of the appellate determination shall be brought in the Superior Court of Clallam County within fifteen (15) days of mailing of the written appellate determination. Pending final decision of the dispute, the Contractor shall proceed diligently with the performance. of this Agreement and in accordance with the decision rendered. 20. Ownershio of Items Produced: All writings, programs, data, public records or other materials prepared by the Contractor and/or its consultants or subcontractors, in connection with the performance of this Agreement shall be the sole and absolute property of the City and constitute "work made for hire" as that phrase is used in federal and/or state intellectual property laws. 21. Recovery of Payments to Contractor: The right of the Contractor to retain monies paid to it is contingent upon satisfactory performance of this Agreement, including the satisfactory completion of the project described in the Scope of Work (Attachment "A"): In the event that the Contractor fails, for any reason, to perform obligations required of it by this Agreement, the Contractor may, at the Project Manager's sole discretion, be required to repay to the City all monies disbursed to the Contractor for those parts of the project that are rendered worthless in the opinion of the Project Manager by such failure to perform. Interest shall accrue at the rate of 12 percent (12%) per annum from the time the Project Manager demands repayment of funds. .. 22. Approval: The extent and character of all work and services to be performed under this Agreement by the Contractor shall be subject to the review and approval of the Project Manager. In the event there is a dispute with regard to the extent and character of the work to be done, the determination of the Project Manager as to the extent and character of the work to be done shall govern subject to the Contractor's right to appeal that decision as provided herein. 23. Non-Discrimination: The Contractor shall not discriminate against any person on the basis of race, creed, political ideology, color, national origin, sex, marital status, sexual orientation, age; or the presence of any sensory, mental or physical handicap. 24. Subcontractors: In the event that the Contractor employs the use of any subcontractors, the contract between the Contractor and the subcontractor shall provide that the subcontractor is bound by the terms of this Agreement between the City and the Contractor. The Contractor shall insure that in all subcontracts entered into, City of Port Angeles is named as an express third-party beneficiary of such contracts with full rights as such. 25. Time is of the Essence: Time is of the essence in the performance of this contract unless a more specific time period is set forth in either the Special Terms and Conditions or Scope of Work. 26. Notice: Except as set forth elsewhere in the Agreement, for all purposes under this Agreement, except service of process, any notices shall be given by the Contractor to the Project Manager. Notice to the Contractor for all purposes under this Agreement shall be given to the person executing the Agreement on behalf of the Contractor at the address identified on the signature page. 27. Severability: If any term or condition of this contract or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this contract are declared severable. 28. Precedence: In the event of inconsistency in this Agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: A. Applicable federal and state statutes and regulations; B. Scope of Work (Attachment "A") and Compensation (Attachment "B"); C. Special Terms and Conditions (Attachment "0"); and O. General Conditions. 29. Waiver: Waiver of any breach or condition of this contract shall not be deemed a waiver of any prior to subsequent breach. No term or condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. 30. Survival: The provision of Paragraphs 4, 7, 11, 12, 13, 14, is, 17, 18, 19,20, 21, 22, 23, 28, 29 and 31 shall survive, notwithstanding the termination or invalidity of this Agreement for any reason. 31. Entire Aqreement: This written contract represents the entire Agreement between the parties and supersedes any prior statements, discussions or understandings between the parties except as provided herein. '. SERVICE AGREEMENT ATTACHMENT "0" SPECIAL TERMS AND CONDITIONS LX] 1. Reoorting. The Contractor shall submit written progress reports to the Project Manager as set forth below: [ With each request for payment. [ ] Monthly. LLl Quarterly. [ ] Semi-annually. LX] Annually. [ ] Project completion. [ ] Other (specify): Progress reports shall include, at a minimum, the following: Quarterly Reports: Listing of all current City animal licenses, including the license number, expiration date, information describing the animal, and the owner's name, address, and telephone number. City monies collected by the Contractor, whether characterized as fees, civil penalties, or any other nomenclature, shall be delivered to the City's Finance Department on a quarterly basis together with an accounting of City monies received. In addition, a quarterly report shall include the number of City animals housed by type, the total number of days of housing and a summary of disposition of City animals, the number of licenses sold and revenue produced from sales. The quarterly report shall be due by the 15th of the month following the quarter close. Annual Reoort: Contractor shall furnish an annual report to the City by the 15th day of February of the following year. Contractor shall maintain complete records of licenses issued, fees collected, animals received, animals to dispose, kennels inspected, complaints received and investigations conducted, and shall include this information in the annual report and make such available for the City's inspection at all times. Contractor shall provide such other data as the City requests, for all legitimate purposes directly related to City services performed. Reports shall include any problems, delays or adverse conditions which will materially affect the Contractor's ability to meet project objectives or time schedules together with a statement of action taken or proposed to resolve the situation. Reports shall also include recommendations for changes to the Scope of Work, if any. Payments may be withheld if reports are not submitted. LX] 2. Insurance. The Contractor shall maintain in full force and effect during the term of this Agreement, and until final acceptance of the product, public liability and property damage insurance with companies or through sources approved by the state insurance commissioner pursuant to RON Title 48, as now or hereafter amended. The City, it appointed and elected officials and employees, shall be specifically named as additional insureds in a policy with the same company which insures the Contractor or by endorsement to an existing policy or with a separate carrier approved pursuant to RCW Title 48, as now or hereafter amended, and the following coverages shall be provided: LX"] COMPREHENSIVE GENERAL UABILITY Bodily injury, including death: $500,000 per occurrence Property damage $500,000 per occurrence 1,\. ' ~ . .. ,. [_J ERRORS AND OMISSIONS: $l,OOO,OOO_per occurrence W WORKERS COMPENSATION: Statutory amount [ XJ AUTOMOBILE: coverage on owned, non-owned, rented and hired vehicles $1,000,000 bodily injury, liability, including death, per occurrence $500,000 property damage liability, per occurrence Any such insurance carried by the Contractor is primary over any insurance carried by City of Port Angeles. The City shall have no obligation to report occurrences unless a claim or lawsuit is filed with it and the City has no obligation to pay any insurance premiums. Evidence of insurance coverage shall be submitted to the Project Manager within twenty (20) days of the execution of the Agreement. The Agreement shall be void ab initio If the proof of coverage is not timely supplied. [_J 3 Liquidated Damaqes. For delays in timely completion of the work to be done or missed milestones of the work in progress, the Contractor shall be assessed Dollars ($_) per day as liquidated damages and not as a penalty because the City finds it impractical to calculate the actual cost of delays. Liquidated damages will not be assessed for any days for which an extension of time has been granted. No deduction or payment of liquidated damages will} in any degree} release the Contractor from further obligations and liabilities to complete the entire project. LXJ 4. Other: Board of Directors: Employees of the Contractor or direct relatives of said individuals shall not serve on the Board of Directors of the Contractor. The Executive Director may serve on the Board as a non-voting member} but may not serve as an officer of the Board. . , ;t:~t 1 5.7D3 I _ ~ SERVICE AGREEMENT THIS AGREEMENT is entered into between the City of Port Angeles, a political subdivision of the State of Washington, (hereinafter called "City) and CLALLAM COUNTY HUMANE SOCIETY of: 2105 West Highway 101. Port Angeles. WA 98363 (hereinafter called "Contractor"). This Agreement is comprised of: LXJ Attachment "A" - Scope of Work. LXJ Attachment "B" - Compensation. LXJ Attachment "C" - General Conditions. LXJ Attachment "D" - Special Terms and Conditions. copies of which are attached hereto and incorporated herein by this reference as If fully set forth. The term of this Agreement shall commence on the 1st day of January 2005, and shall, unless terminated as provided elsewhere in the Agreement, terminate on the 31st day of December 2007, except that the agreement may continue on a month-to-month basis beyond December 2007 with the consent of both parties. The City Project Manager responsible for the administration of this Agreement and for agreement shall be the Deputy Police Chief. ~~~ESS WHEREOF, the parties have executed this Agreement on this JEJA-day of J 1,t1Jy~005. ro:~D{ri1fl~ ~ Richard A. Headrick, Mayor Date: 21 FeJ, ,2005 Date: ~..J){b. /5 ,2005 ATTEST: b(!~ 1lp:vA. Becky J. Up , Ci Clerk APP;!~D AS TO FORM:~ By: ~?- William E. Bloor, City Attorney . , . - PERSONAL SERVICES AGREEMENT ATTACHMENT "A" SCOPE OF WORK Animal Sheltering 1. Shelter Facilities: The Contractor shall furnish and maintain shelter ,facilities and necessary equipment for handling stray or impounded dogs and cats and animals brought to the contractor pursuant to the provisions of this agreement by the City; and dogs and cats brought to the Contractor by the public residing in the City limits. These facilities shall include, but not be limited to the following: A. Dog and cat kennels (minimum 20 dog and 25 cat kennels). B. An isolation room having a complete covered kennel for dangerous dogs impounded, and rabies quarantine. C. A separate room for storing feed. D. Facilities for the humane disposal of sick, injured and dead animals. E. Secure and accessible after hours receiving areas for animals brought to the shelter by the City. F. An internal alarm system. G. An external security fence at a minimum of 7' in height. The Contractor shall properly maintain the facilities and equipment in a clean and sanitary manner and will not permit any condition to exist that would constitute a public nuisance. 2. Hours of Operations: The Contractor shall, as a minimum requirement, keep the shelter facilities open to the public a minimum of 25 hours per week, 5 of which shall be on Saturday, or other such hours as approved by the City Project Manager. Such hours shall be posted. During such other hours, the City's Animal Control Officer, or designee may use keys to be supplied for access to the station. 3. Receipt and Care of Animals: The Contractor shall receive dogs and cats and animals brought to the shelter pursuant to the provisions of this agreement, by the City, and by the residents of the City. The Contractor shall hold them and properly care for them pursuant to applicable sections of Port Angeles Municipal Code Chapter 7.12. The Contractor may destroy any animal only pursuant to applicable sections of Municipal Code Title 7. The Contractor shall give the best reasonable care and treatment to all animals in its custody and control, making certain they are comfortably housed and adequately fed. Animals received by the shelter dunng non-business hours shall be officially cared for as soon as feasible. The Contractor shall maintain a record of each animal under this contract. At a minimum, such record shall consist of the type of animal, the beginning and ending dates of housing, the length of stay, the name, address and telephone number of the owner or person bringing in the animal, the approximate location where the animal was found, and the disposition of the animal. The contractor shall, upon request, make these records available for inspection and/or make copies as requested. The Contractor shall be responsible to make reasonable attempts, and with due diligence, to identify and contact the animal owner as soon as possible after the animal is housed by the Contractor and prior to destruction or adoption of the animal. The Contractor shall make every reasonable effort to find suitable homes for each adoptable animal received. 4. Animal Traps: The Contractor shall furnish and maintain a suitable number of traps for the live capture of animals and loan said traps to City residents upon request. At a minimum, the Contractor shall maintain 4 cat traps, 1 dog trap, 1 skunk trap and 4 raccoon traps. At the time of the loan, the Contractor shall instruct residents on the proper use of traps and the proper care and handling of . , j . captured animals. The Contractor may collect a deposit and/or fee as agreed between the Contractor and the City. 5. Records of Lost and Found Animals: Reports of lost or found animals from City citizens will be referred directly to the Contractor. The Contractor shall make information concerning lost and found animals available to citizens requesting the information. The Contractor shall use due diligence in making every reasonable effort to compare unidentified City dogs to the lists and to return animals which appear to be from the list, to their owners. 6. Staff: A. The Contractor shall be registered in euthanasia by lethal injection, in accordance with RCW 69.50.310, and shall employ or contract with a minimum of one qualified handler B. The Contractor shall maintain a telephone service and office personnel necessary for receiving inquiries from City residents with respect to animals impounded or delivered to the Contractor. C. The Contractor shall ensure that all of its employees act in a professional and businesslike manner and that no rude or unseemly actions or attitudes are tolerated in their day-to-day dealings with the public. D. The contractor shall provide adequate training to its employees to satisfactorily perform the obligations of this agreement. The Contractor shall arrange for all its permanent and temporary employees to be bonded for $1,000 per employee and to protect the City against any dishonesty or failure to transmit fees to the City. Proof of bond shall be provided to the Project Manager. 7. After Hour Cages! Animals Left After Hours: If the Contractor maintains after hours cages which are available to the public or animals are left at the shelter during non-business hours, those animals which are housed as a result of placement into those cages and which cannot be specifically identified as coming from City residents, shall not be counted as City animals except to the extent that the City of Port Angeles agrees to the following proportional payment for unidentified animals. In that case, charges for unidentified animals shall be charged in the same proportion as animals that are identifiable as County, Sequim, or Port Angeles billable animals on an annual basis. 8. Fees: The Contractor may charge fees as listed in Chapter 3.70 PAMC. Any changes to fees shall be approved by the City Council prior to implementation. Animal Licenses 1. Issuance of Licenses: The Contractor shall issue animal licenses in accordance with applicable City ordinance provisions for all City animals without approved license tags. The Contractor shall develop programs and activities intended to increase compliance with license requirements by City residents. 2. Maintenance of License Recording System: The Contractor shall maintain a computerized license system in a current status and shall provide at least monthly to the City Project Manager and PENCOM a listing of all current animal licenses. As an alternative, the Contractor may, at its discretion, maintain the animal license listing by posting it to an internet site accessible by the City and PENCOM. The Contractor shall maintain the system for licenses sold by the Contractor, the City, or any other license vendor in the City. The City will provide the Contractor with a copy of each license sold by the City, at least weekly. 3. The contractor shall purchase and maintain sufficient license forms and tags and shall distribute them, free of charge, to the City and other license vendors upon request. J. SERVICE AGREEMENT ATTACHMENT "B" COMPENSATION 1. Compensation for Shelterinq: The City shall pay to the Contractor $80,000 per calendar year of the contract. Payment shall be made quarterly in an amount of $20,000, in January, April, July, and October for services to be rendered in that quarter. Other Compensation: The Contractor may retain Cage and Trap Rental Fees received from City citizens. 2. Compensation for Sale of Animal Licenses: The Contractor may retain annually the first $2,000 of revenue obtained from its sale of City animal licenses. The Contractor will retain 35 percent of revenue from its sale of City animal licenses above $2,000 in any annual period. The remainder shall be used to reduce the City's compensation for sheltering services. The Contractor shall account quarterly for licenses sold and revenue generated and shall provide a report to the City in accordance with Attachment D. SERVICE AGREEMENT ATTACHMENT "C" GENERAL CONDITIONS 1. Scope of Contractor's Services: The Contractor agrees to provide to the City services and any materials set forth in Attachment "A". No material, labor, or facilities will be furnished by the City, unless otherwise provided for in the Agreement. 2. Accountinq and Payment for Contractor Services: Payment to the Contractor for services rendered under this Agreement shall be as set forth in Attachment "B." Unless specifically stated in Attachment "B" or approved in writing in advance by the City designated project manager ("Project Manager"), the City will not reimburse the Contractor for any costs or expenses incurred by the Contractor in the performance of this contract. 3. Delegation and Subcontracting: No portion of this contract may be delegated or subcontracted to any other individual, firm or entity without the express and prior written approval of the Project Manager. 4. Independent Contractor: The Contractor's services shall be furnished by the Contractor as an independent contractor and nothing herein contained shall be construed to create a relationship of employer/employee or master/servant, but all payments made hereunder and all services performed shall be made and performed pursuant to this Agreement by the Contractor as an independent contractor. The Contractor acknowledges that the entire compensation for this Agreement is specified in Attachment "B" and the Contractor is not entitled to any city benefits including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental or other insurance benefits, or any other rights or privileges afforded to City employees. The Contractor represents that it maintains a separate place of business, serves clients other than the City, will report all income and expense accrued under this contract with the Internal Revenue Service on a business tax schedule, and has a tax account with the State of Washington Department of Revenue for payment of all sales and use and Business and Occupation taxes collected by the State of Washington. Contractor will defend, indemnify and hold harmless the City, its officers, agents or employees from any loss or expense, including but not limited to settlements, judgments, setoffs, attorneys' fees or costs incurred by reason of claims or demands because of breach of the provisions of this paragraph. In the event that either the state or federal government determines that an employer/employee or master/servant relationship exists rather than an independent contractor relationship such that the City of Port Angeles is deemed responsible for federal withholding, social security contributions, workers compensation and the like, the Contractor agrees to reimburse the City for any payments made or required to be made by City. Should any payments be due to the Contractor pursuant to this Agreement, the Contractor agrees that reimbursement may be made by deducting from such future payments a pro rata share of the amount to be reimbursed based upon the following formula: Total amount to be reimbursed Number of payments remaining = Deduction from payment Notwithstanding a determination by the state or federal government that an employer/employee or master/servant relationship exists, the Contractor, its officers, employees and agents, shall not be entitled to any benefits which the City provides to its employees. 5. No Guarantee of Employment: The performance of all or part of this contract by the Contractor shall not operate to vest any rights whatsoever and shall not be deemed to guarantee any employment of the Contractor or any employee of the Contractor or any subcontractor or any employee of any subcontractor by the City at the present ~ime or in the future. 6. Regulations and Requirement: This Agreement shall be subject to and contract shall comply with all federal, state and local laws, rules, and regulations. ' 7. Right to Review: This contract is subject to review by any federal or state auditor. The City shall have the right to review and monitor the financial and service components by whatever means deemed expedient. Such review may occur with or without notice, and may include, but is not limited to, on-site inspection by City agents, or employees, inspection of records or other materials which the City deems directly pertinent to the Agreement and its performance, and any and all communications with or evaluations by service recipients under this Agreement. The Contractor shall preserve and maintain all financial records and records relating to the performance of work under this Agreement for three (3) years after contract termination, and shall make them available for such review, within Clallam County, State of Washington, upon request, during reasonable business hours. 8. Modifications: Either party may request changes in the Agreement. Any and all agreed modifications shall be in writing, signed by each of the parties. 9. Termination for Default: If the Contractor defaults by failing to perform any of the obligations of the contract or becomes insolvent or is declared bankrupt or makes an assignment for the benefit of creditors, the City may, by depositing written notice to the Contractor in the U.S. Mail, postage prepaid, terminate the contract, and at the City's option, obtain performance of the work elsewhere. If the contract is terminated for default, the Contractor shall not be entitled to receive any further payments under the contract until all work called for has been fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Contractor. The Contractor shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the City by reason of such default. If a notice of termination for default has been issued and it is later determined for any reason that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the Termination for Public Convenience paragraph hereof. 10. Termination for Public Convenience: The City may terminate the contract in whole or in part whenever the City determines, in its sole discretion, that such termination is in the interests of the City. Whenever the contract is terminated in accordance with this paragraph, the Contractor shall be entitled to payment for actual work performed. An equitable adjustment in the contract price for partially completed items of work will be made, but such adjustment shall not include provision for loss of anticipated profit on deleted or uncompleted work. Termination of this contract by the City at any time during the term, whether for default or convenience, shall not constitute a breach of contract by the City. 11. Rights and Remedies: The duties and obligations imposed by this Agreement and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. 12. Defense and Indemnity Aareement: The Contractor agrees to defend, indemnify and save harmless the City, its appointed and elected officers and employees, from and against all loss or expense, including but not limited to judgments, settlements, attorneys' fees and costs by reason of any and all claims and demands upon the City, its elected or appointed officials or employees for damages because of personal or bodily injury, including death at any time resulting therefrom, sustained by any person or persons and on account of damage to property including loss of use thereof, whether such injury to persons or damage to property is due to any act or omission of the Contractor, his/her subcontractors, its successor or assigns, or its or their agent, servants, or employees, the City, its appointed or elected officers, employees or their agents, except only such injury or damage as shall have been occasioned by the sole negligence of the City, its appointed or elected officials or employees. It is further provided that no liability shall attach to the City by reason of entering into this contract, except as expressly provided herein. 13. Industrial Insurance Waiver: With respect to the performance of this Agreement and as to claims against the City, its appointed and elected officers, agents and employees, the Contractor expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, as now or hereafter amended, for injuries to its employees and agrees that the obligations to indemnify, defend and hold harmless provided in this Agreement extend to any claim brought by or on behalf of any employee of the Contractor. This waiver is mutually negotiated by the parties to this Agreement. 14. Venue and Choice of Law: In the event that any litigation should arise concerning the construction or interpretation of any of the terms of this Agreement, the venue of such action shall be in the courts of the State of Washington in and for the County of Clallam. This Agreement shall be governed by the law of the State of Washington. 15. Withholding Payment: In the event the Project Manager determines that the Contractor has failed to perform any obligation under this Agreement within the times set forth in this Agreement, then the City may withhold from amounts otherwise due and payable to Contractor the amount determined by the City as necessary to cure the default, until the Project Manager determines that such failure to perform has been cured. Withholding under this clause shall not be deemed a breach entitling Contractor to termination or damages, provided that the City promptly gives notice in writing to the Contractor of the nature of the default or failure to perform, and in no case more than ten (10) days after it determines to withhold amounts otherwise due. A determination of the Project Manager set forth in a notice to the Contractor of the action required and/or the amount required to cure any alleged failure to perform shall be deemed conclusive, except to the extent that the Contractor acts within the times and in strict accord with the provision of the Disputes clause of this Agreement. The City may act in accordance with any determination of the Project Manager which has become conclusive under this clause, without prejudice to any other remedy under the Agreement, to take all or any of the following actions: (1) cure any failure or default, (2) to pay any amount so required to be paid and to charge the same to the account of the Contractor, (3) to set off any amount of paid or incurred from amounts due or to become due the Contractor. In the event the Contractor obtains relief upon a claim under the Disputes clause, no penalty or damages shall accrue to the Contractor by reason of good faith withholding by the City under this clause. 16. Insufficient Funds: If sufficient funds are not appropriated or allocated for payment under this contract, this contract shall be null and void. No penalty or expense shall accrue to the City in the event this provision applies. , , 17. Contractor Commitments. Warranties and Representations: Any written commitment received from the Contractor concerning this Agreement shall be binding upon the Contractor, unless otherwise specifically provided herein with reference to this paragraph. Failure of the Contractor to fulfill such a commitment shall render the Contractor liable for damages to the City. A commitment includes, but is not limited to any representation made prior to execution of this Agreement, whether or not incorporated elsewhere herein by reference, as to performC!nce of services or equipment, prices or options for future acquisition to remain in effect for a fixed period, or warranties. 18. Patent/Copyright Infrinqement: Contractor will defend, indemnify and save harmless the City, its appointed and elected officers and employees from any claimed action, cause or demand brought against the City, its appointed and elected officers and employees, to the extent such action is based on the claim that information supplied by the Contractor infringes any patent or copyright. The Contractor will pay those costs and damages attributable to any such claims that are finally awarded against the City, its appointed and elected officers and employees in any action. Such defense and payments are conditioned upon the following: A. That Contractor shall be notified promptly in writing by City of any notice of such claim. B. Contractor shall have the right, hereunder, at its option and expense, to obtain for the City the right to continue using the information, in the event such claim of infringement, is made, provided no reduction in performance or loss results to the City. 19. Disputes: Differences between the Contractor and the City, arising under and by virtue of the contract documents shall be brought to the attention of the City at the earliest possible time in order that such matters may be settled or other appropriate action promptly taken. The records, orders, rulings, instructions, and decision of the Project Manager shall be final and conclusive thirty (30) days from the date of mailing unless the Contractor mails or otherwise furnishes to the City Manager a written notice of appeal. The notice of appeal shall include facts, law, and argument as to why the conclusions of the Project Mana,ger are in error. In connection with appeal of any proceeding under this clause, the Contractor shall have the opportunity to be heard and to offer evidence in support of the appeal. The decision of the City Manager for the determination of such appeals shall be final and conclusive. Reviews of the appellate determination shall be brought in the Superior Court of Clallam County within fifteen (15) days of mailing of the written appellate determination. Pending final decision of the dispute, the Contractor shall proceed diligently with the performance. of this Agreement and in accordance with the decision rendered. 20. Ownership of Items Produced: All writings, programs, data, public records or other materials prepared by the Contractor and/or its consultants or subcontractors, in connection with the performance of this Agreement shall be the sole and absolute property of the City and constitute "work made for hire" as that phrase is used in federal and/or state intellectual property laws. 21. Recovery of Payments to Contractor: The right of the Contractor to retain monies paid to it is contingent upon satisfactory performance of this Agreement, including the satisfactory completion of the project described in the Scope of Work (Attachment "A"). In the event that the Contractor fails, for any reason, to perform obligations required of it by this Agreement, the Contractor may, at the Project Manager's sole discretion, be required to repay to the City all monies disbursed to the Contractor for those parts of the project that are rendered worthless in the opinion of the Project Manager by such failure to perform. Interest shall accrue at the rate of 12 percent (12%) per annum from the time the Project Manager demands repayment of funds. . . 22. Approval: The extent and character of all work and services to be performed under this Agreement by the Contractor shall be subject to the review and approval of the Project Manager. In the event there is a dispute with regard to the extent and character of the work to be done, the determination of the Project Manager as to the extent and character of the work to be done shall govern subject to the Contractor's right to appeal that decision as provided herein. 23. Non-Discrimination: The Contractor shall not discriminate against any person on the basis of race, creed, political ideology, color, national origin, sex, marital status, sexual orientation, age, or the presence of any sensory, mental or physical handicap. 24. Subcontractors: In the event that the Contractor employs the use of any subcontractors, the contract between the Contractor and the subcontractor shall provide that the subcontractor is bound by the terms of this Agreement between the City and the Contractor. The Contractor shall insure that in all subcontracts entered into, City of Port Angeles is named as an express third-party beneficiary of such contracts with full rights as such. 25. Time is of the Essence: Time is of the essence in the performance of this contract unless a more specific time period is set forth in either the Special Terms and Conditions or Scope of Work. 26. Notice: Except as set forth elsewhere in the Agreement, for all purposes under this Agreement, except service of process, any notices shall be given by the Contractor to the Project Manager. Notice to the Contractor for all purposes under this Agreement shall be given to the person executing the Agreement on behalf of the Contractor at the address identified on the signature page. 27. Severability: If any term or condition of this contract or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this contract are declared severable. 28. Precedence: In the event of inconsistency in this Agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: A. Applicable federal and state statutes and regulations; B. Scope of Work (Attachment "A") and Compensation (Attachment "B"); C. Special Terms and Conditions (Attachment "0"); and D. General Conditions. 29. Waiver: Waiver of any breach or condition of this contract shall not be deemed a waiver of any prior to subsequent breach. No term or condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. 30. Survival: The provision of Paragraphs 4, 7, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 28, 29 and 31 shall survive, notwithstanding the termination or invalidity of this Agreement for any reason. 31. Entire Agreement: This written contract represents the entire Agreement between the parties and supersedes any prior statements, discussions or understandings between the parties except as provided herein. SERVICE AGREEMENT ATTACHMENT "0" SPECIAL TERMS AND CONDITIONS UU 1. Reporting. The Contractor shall submit written progress reports to the Project Manager as set forth below: [ With each request for payment. [ ] Monthly. LX"] Quarterly. [ ] Semi-annually. LX] Annually. [ ] Project completion. [ ] Other (specify): Progress reports shall include, at a minimum, the following: Ouarterly Reports: Listing of all current City animal licenses, including the license number, expiration date, information describing the animal, and the owner's name, address, and telephone number. City monies collected by the Contractor, whether characterized as fees, civil penalties, or any other nomenclature, shall be delivered to the City's Finance Department on a quarterly basis together with an accounting of City monies received. In addition, a quarterly report shall include the number of City animals housed by type, the total number of days of housing and a summary of disposition of City animals, the number of licenses sold and revenue produced from sales. The quarterly report shall be due by the 15th of the month following the quarter close. Annual Report: Contractor shall furnish an annual report to the City by the 15th day of February of the following year. Contractor shall maintain complete records of licenses issued, fees collected, animals received, animals to dispose, kennels inspected, complaints received and investigations conducted, and shall include this information in the annual report and make such available for the City's inspection at all times. Contractor shall provide such other data as the City requests, for all legitimate purposes directly related to City services performed. Reports shall include any problems, delays or adverse conditions which will materially affect the Contractor's ability to meet project objectives or time schedules together with a statement of action taken or proposed to resolve the situation. Reports shall also include recommendations for changes to the Scope of Work, if any. Payments may be withheld if reports are not submitted. LX"] 2. Insurance. The Contractor shall maintain in full force and effect during the term of this Agreement, and until final acceptance of the product, public liability and property damage insurance with companies or through sources approved by the state insurance commissioner pursuant to RCW Title 48, as now or hereafter amended. The City, it appointed and elected officials and employees, shall be specifically named as additional insureds in a policy with the same company which insures the Contractor or by endorsement to an existing policy or with a separate carrier approved pursuant to RCW Title 48, as now or hereafter amended, and the following coverages shall be provided: LX'] COMPREHENSIVE GENERAL LIABILITY Bodily injury, including death: $500,000 per occurrence Property damage $500,000 per occurrence r 4 . .. [_] ERRORS AND OMISSIONS: $l,OOO,OOO_per occurrence LXJ WORKERS COMPENSATION: Statutory amount [ XJ AUTOMOBILE: coverage on owned, non-owned, rented and hired vehicles $1,000,000 bodily injury, liability, including death, per occurrence $500,000 property damage liability, per occurrence Any such insurance carried by the Contractor is primary over any insurance carried by City of Port Angeles. The City shall have no obligation to report occurrences unless a claim or lawsuit is filed with it and the City has no obligation to pay any insurance premiums. Evidence of insurance coverage shall be submitted to the Project Manager within twenty (20) days of the execution of the Agreement. The Agreement shall be void ab initio If the proof of coverage is not timely supplied. [_] 3 Liquidated Damages. For delays in timely completion of the work to be done or missed milestones of the work in progress, the Contractor shall be assessed Dollars ($_) per day as liquidated damages and not as a penalty because the City finds it impractical to calculate the actual cost of delays. Liquidated damages will not be assessed for any days for which an extension of time has been granted. No deduction or payment of liquidated damages will, in any degree, release the Contractor from further obligations and liabilities to complete the entire project. LX] 4. Other: Board of Directors: Employees of the Contractor or direct relatives of said individuals shall not serve on the Board of Directors of the Contractor. The Executive Director may serve on the Board as a non-voting member, but may not serve as an officer of the Board.