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HomeMy WebLinkAbout25B - AGMT - VET SRVS FOR SAZOOREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 20, 2013 TITLE: AGREEMENT WITH DR. SCOTT WELDY TO PROVIDE VETERINARY SERVICES FOR THE SANTA ANA ZOO AT PRENTICE PARK CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with Dr. Scott Weldy for the provision of veterinary services at the Santa Ana Zoo at Prentice Park in the amount of $75,000 for a one-year term, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Zoo at Prentice Park is required by the United States Department of Agriculture and the Association of Zoos and Aquariums (AZA) to provide veterinary services for the collection of animals maintained at the Zoo. Dr. Scott Weldy has provided veterinary services for the Santa Ana Zoo at Prentice Park for the past four years. Dr. Weldy has extensive knowledge of the Zoo's animal collection and has more than 25 years of zoo experience with exotic animal veterinary medicine. During the past four years Dr. Weldy has established a comprehensive animal health program to monitor the wellness of the animals residing at the Santa Ana Zoo at Prentice Park. Dr. Weldy will continue to provide preventative and curative medical care for the entire Zoo collection. Dr. Weldy will visit Zoo facilities a minimum of 12 hours per week to examine the animals' health and sanitation, and assist with maintaining complete medical history records for each animal in the animal collection. This $75,000 agreement will provide service from July 1, 2013 through June 30, 2014. FISCAL IMPACT Funds are available in the Santa Ana Zoo at Prentice Park, Contractual Services expenditure account (no. 01113220 62300). Gerardo Mouet, Executive Director Parks, Rec. and Com. Svcs. Agency Approved as to Funds and Account: Francisco Gutierrez, Executive Director Finance and Management Services Agencyi 25B-1 25B-2 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this 1St day of July, 2013 by and between Scott Weldy DVM, DBA Serrano Animal & Bird Hospital (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of veterinary services. B. Consultant represents that Consultant is able and willing to provide such services to the city. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: I. SCOPE OF SERVICES Consultant shall provide veterinary services to the Santa Ana Zoo at Prentice Park, as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. Total compensation to be expended under this Agreement shall not exceed Seventy Five Thousand Dollars ($75,000) during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2014, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Parks, Recreation and Community Services Agency and the City Attorney. 25B-3 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. 25B-4 e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. 25B-5 Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Executive Director of Parks, Recreation and Community Services Agency City of Santa Ana 888 W. Santa Ana Blvd, Ste 200 Santa Ana, California 92702 telefacsimile (714) 571-4235 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: Scott Weldy, DVM Serrano Animal & Bird Hospital 21771 Lake Forest Dr. # 111 Lake Forest, California 92630 telefacsimile (949) 855-9744 4 25B-6 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 25B-7 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 25B-8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Lisa Storck Assistant City Attorney CITY OF SANTA ANA Kevin O'Rourke Interim City Manager SERRANO ANIMAL AND BIRD HOSPITAL SCOTT WELDY, DVM Owner Tax ID # 25B-9 EXHIBIT A SCOPE OF SERVICES 1. CONSULTANT'S OBLIGATIONS Consultant agrees to render veterinary services to City at the Santa Ana Zoo at Prentice Park ("Zoo") and in the home practice/place of business on a continuing basis for the duration of this Agreement, including, but not limited to the following: A. Serve as a medical officer for the Zoo's animal collection. B. Serve as caretaker of drugs, narcotics, and pharmaceutical equipment. Consultant also will administer or supervise, including verbal and written communications on the administration of narcotics, pharmaceuticals, and pharmaceutical equipment to the animals in the Zoo collection. C. Provide a comprehensive program of preventative and curative medical care for the animal collection; including annual and routine exams, annual review of the nutritional needs of all species and recommendations for any dietary changes, and a comprehensive parasite treatment plan for all species. D. Consult with appropriate zoological and/or human experts and Zoo staff to make recommendations regarding the nutritional and medical needs of the collection. E. Visit the Zoo facilities and examine the animals' health and sanitation on average 12 hours per week. The Zoo Curator and the Consultant will decided on the hours on an as-needed basis. F. Assist the Zoo Curator in establishing and maintaining complete medical history records for each animal in the collection. G. Approve the detailed report of medical treatment administered and other services performed at each visit as prepared by Zoo staff (or by the veterinarian) and sign the zoo vet visit log (time sheets) for the Zoo files. H. Exercise his/her best professional judgment and practice and make his/her best efforts to maintain the animals. Advise Zoo staff on maintenance of same so as to insure the best medical, husbandry, enrichment and living conditions possible for the animal collection. 1. Provide telephone consultation, advice and prescription instructions on a reasonably unlimited basis, either with staff or other consulting veterinarians employed by City. Provide a signature as City's consulting/attending veterinarian, for necessary and required certificates, licenses, permits or other documents. 25B-10 K. Advise on ordering medicine, supplies or instruments. L. Obtain at his/her cost, medical malpractice insurance. II CITY OBLIGATIONS In order to assist Consultant in execution of his responsibilities under this agreement and to enhance the care of the animals in the collection, the City agrees to do the following: A. Maintain a pharmaceutical safe for the storage of all controlled drugs and narcotics. B. Maintain a facility for the use in the surgery and/or treatment of the collection with recovery and holding cages and related equipment as necessary at the Zoo. C. Provide Consultant with staff support from Zoo personnel. D. Purchase equipment, biological, drugs, narcotics, pharmaceuticals and/or other medical supplies upon reasonable request of Consultant, as needed. E. Provide staff assistance for the capture and treatment of animals. F. Provide staff treatment of specimens on telephone or written instructions from Consultant. G. Provide additional veterinarians, where advisable for emergencies and, as necessary, as back-up for the services listed herein. H. Maintain diagnostic or treatment notes filed in our records by backup veterinarians we may employ, for the Consultant's review or use. Pay for all outside laboratory expenses incurred as a result of Consultant's supervision of animals in the collection. J. Pay all other expenses necessary for the care of the collection when reasonably recommended by Consultant and approved by the Executive Director of the Parks, Recreation and Community Services Agency or his/her designated representative. 25B-11 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the Clerk of the Council, City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to this endorsement form as a part of Named Insured Countersigned by Authorized Representative 10 25B-12