2007/08/28 City Council Resolution 2007-142RESOLUTION NO. 2007 -142
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING AN AGREEMENT WITH
ROGER KLEIN, DVM FOR VETERINARIAN SERVICES
WHEREAS, the City requires the skills of a veterinarian to perform surgeries and other
procedures at the Animal Shelter; and
WHEREAS, Roger Klein, DVM is qualified and experienced to provide such services.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve an agreement by and between Roger Klein, DVM,
and the City of Rohnert Park, a municipal corporation, for veterinarian services.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute this agreement in substantially similar form to the attached agreement for and on
behalf of the City of Rohnert Park.
DULY AND REGULARLY ADOPTED this 281h day of August, 2007.
ATTEST:
City
�. A ]in,I1j.119
CITY OF ROHNERT PARK
trFOKNd.�'
Mayor
BREEZE: AYE MACKENZIE: AYE SMITH: ABSENT STAFFORD: AYE VIDAK- MARTINEZ: AYE
AYES: (4) NOES: (0) ABSENT: (1) ABSTAIN: (0)
AGREEMENT FOR SERVICES
This Agreement is. made and entered into on this date, June 12, 2007 by and between the
City of Rohnert Park, hereinafter referred to as the ".City, and Dr. Roger Klein hereinafter referred
to as the "Consultant."
WHEREAS, the City requires the skills of a Veterinarian to perform surgeries and
WHEREAS, the Consultant is qualified and experienced to provide such services.
NOW, THEREFORE, said City and said Consultant for the considerations hereinafter set
forth, mutually agree as follows:
I . SCOPE OF WORK. Consultant shall perform, and City shall provide, those
services set forth in Exhibit A, Scope of Work and Schedule of Performance; attached hereto and
incorporated herein.
2. COORDINATION. City shall assign the Shelter Supervisor to personally
participate in said project and to coordinate the activities of the Consultant.
3. COMPENSATION.
A. City shall pay Consultant as compensation in full for such services and
expenses at the rates set forth in Exhibit B, Compensation Rates and Charges, attached hereto
and incorporated herein, the total sum not to exceed the amount budgeted 'for that year for
surgeries at the Animal Shelter. Progress payments will be tied to completion of tasks so all
payments are proportional to the mp eted. Payment by City under this Agreement shall
not be deemed a waiver of defects, even i such defects were known to the City at the time of
payment.
B. Consultant shall submit itemized monthly statements for work performed.
City shall make any payment due within thirty (30 ) )days after approval of the invoice by City.
C. Payments due and payable to Consultant for current services are within the
current budget and within an available, unexhausted and unencumbered appropriation of the
City. In the event the City has not appropriated sufficient funds for payment of Consultant
services beyond the current'fiscal year, this Agreement shall cover only those costs incurred up
to the conclusion of the current fiscal year; payment for additional work is conditional upon
future City appropriation.
4. TERM. The term of this Agreement shall be from the date of its execution and
shall continue until terminated as provided herein.
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5. NOTICES. All notices, bills, and payments shall be made in writing and may be
given by personal delivery or by mail. Notices, bills and payments-sent by mail should be
addressed as follows:
TO CITY: Finance Dept. /Accounts Payable
CITY OF ROHNERT PARK
P:O. Box 1489
ROHNERT PARK, CA 94927
TO CONSULTANT: Dr. Roger Klein
1632 Mariner Drive
Sebastopol, CA 95472
and when so addressed, shall be deemed given upon deposit, in the United States mail, postage
prepaid. In all other instances, notices, bills and payments shall be deemed given at the time of
actual delivery. Changes may be made in the names and addresses of the person to whom notices,
bills and payments are to be given by giving notice pursuant to this Paragraph.
6. AMENDMENT OF SCOPE OF WORK. City shall have the right to amend the
Scope of Work within the Agreement by written notification to the Consultant. In such event,
the compensation and time of performance shall be subject to renegotiation upon written demand
of either party to the Agreement. Failure of the Consultant to secure City's written authorization
for extra or changed work shall constitute a waiver of any and all right to adjustment in the
contract price or time due, whether by way of compensation, restitution, quantum meruit, etc. for
work done without the appropriate City authorization.
7. CITY'S RIGHT TO TERMINATE /SUSPEND CONTRACT. At anytime and for
any or no reason, City shall have the right to terminate this Agreement, take possession of the
Consultant's work, e.g., studies, preliminary drawings, computations, specifications, etc., insofar
as they are complete and acceptable to the City, and pay the Consultant such equitable proportion
of the total remuneration as the work satisfactorily done by the Consultant at the time of such
discontinuance bears to the whole of the work required to be done by the Consultant under the
terms of this Agreement.
8. RECORDS OF PERFORMANCE. Consultant shall maintain any ledgers, books
of accoupt, invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges for services, or expenditures and disbursements charged to City for a
minimum period of three (3) years, or for any longer period required by law make these records
available for inspection, audit, and copying by the City. All data, documents, discussions, or
other information developed or received by or for Consultant in performance of this Agreement
are confidential and not be disclosed to any person except as authorized by City or as required by
law.
9. SUBCONTRACTING. None of the services covered by this contract shall be
subcontracted without the prior written consent of the City. In accordance with Government
Code Section 7550, Consultant agrees to state in a separate section of any filed report the
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numbers and dollars amounts of all contracts and subcontracts relating to preparation of the
report.
10. ASSIGNMENT. The Agreement shall not be assigned by the Consultant. in
whole or in part; without the written consent of the City.
11. INDEMNIFICATION, To the full extent permitted by law, Consultant shall
indemnify, hold harmless, release and defend City, its officers, employees and agents from and
against any and all actions, claims, demands, damages, disability, losses; expenses including
attorney's fees and other defense costs and liabilities of any nature that may be asserted by any
person or entity including Consultant, in whole or in part, arising out of Consultant's activities
hereunder, including the activities of other persons employed or utilized by Consultant in the
performance of this Agreement (including design defects and regardless of City's approval, use
or acceptance of the work or work product hereunder) excepting liabilities due to the sole
negligence or willful misconduct of City. This indemnification obligation is not limited in.any
way by any limitation on the amount or type of damages or compensation payable by or for
Consultant under Worker's Compensation, disability or other employee benefit acts or the terms,
applicability or limitations of any insurance held or provided by Consultant and shall continue to
bind the parties after termination/completion of this Agreement.
12. INSURANCE. Without limiting consultant's indemnification provided herein,
Consultant shall comply with the requirements set forth in Exhibit C, attached hereto and
incorporated herein.
13. STANDARD OF CARE. City relies upon the professional ability of Consultant
as a material inducement to entering into this Agreement. Consultant agrees to use reasonable
care and diligence in its profession in rendering services under this Agreement. Consultant
agrees that the acceptance of his work by City shall not operate as a waiver or release of said
obligation of Consultant. The absence, omission, or failure to include in this Agreement, items
which are normally considered to be a part of generally accepted professional procedure or
which involve professional judgment shall not be used as a basis for submission of inadequate
work or incomplete performance.
14. LITIGATION SUPPORT. Consultant agrees to testify at City's request if
litigation is brought against City in connection with Consultant's performance under this
Agreement. Unless the action is brought by Consultant or is based upon Consultant's negligence,
City will compensate Consultant for the preparation and testimony at Consultant's standard
hourly rates, if requested by City and not part of the litigation brought by City against
Consultant. .
15. COVENANT AGAINST CONTINGENT FEES. The Consultant warrants that he
has not employed or retained any company or person, other than a bona fide employee working
for the Consultant, to solicit or secure this Agreement, and that he has not paid or agreed to pay
any company or person, other than a bona fide employee, any fee, commission, percentage,
brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or
making this Agreement. For breach or violation of this warranty, the City shall have the right to
annul this Agreement without liability, or, in its discretion to deduct from the Agreement price or
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consideration, or otherwise recover, the full amount of such fee; commission, percentage,
brokerage fee, gift, or contingent fee.
16.. CONFLICT OF INTEREST. Consultant ( including principals, associates, and
professional employees) covenants and represents that it does not now have any investment or
interest in real property and shall not acquire any interest, direct or indirect, in the area covered
by this contract or any other source of income, interest in real property or investment which
would be affected.in any manner or degree by the performance of Consultant's services
hereunder. Consultant further covenants and represents that in the.performance of its duties .
hereunder no person having any such interest shall perform any services under this Agreement.
.17. STATEMENT OF ECONOMIC INTEREST. If City determines Consultant
comes within the definition of Consultant under the Political Reform Act (Government Code
§87100), Consultant shall complete and file and. shall require any other person doing work under
this Agreement to complete and file a "Statement of Economic Interest" with the Clerk of the
City of Rohnert Park disclosing Consultant and/or such other person's financial interests.
18. MERGER. This Agreement shall constitute the entire. Agreement between the
parties and shall supersede any previous agreements, whether verbal or written, concerning the
same subject matter. No modification of this Agreement shall be effective unless and until
evidence by a writing is signed by both parties.
1.9. DEFAULT. If Consultant should fail to perform any of his obligations hereunder,
within the time and in the manner herein provided or otherwise violate any of the terms of this
Agreement, City may terminate this Agreement by giving Consultant written notice of such
termination, stating the reason for such termination. In such event, Consultant shall be entitled to
receive as full payment for all services satisfactorily rendered and expenses incurred hereunder,
an amount which bears the same ratio to the total fees specified in the agreement as the services
satisfactorily rendered hereunder by Consultant bear to the total services otherwise required to be
performed for such total fee; provided, however, that the City shall deduct from such amount the
amount of damage, if any, sustained by City by virtue of the breach of the Agreement by
Consultant.
20. NO WAIVER OF BREACH; TIME. The waiver by City of any breach of any
term or promise contained in this Agreement shall not be deemed to be a waiver of such term or
provision or any subsequent breach of the same or any other term or promise contained in this
Agreement. Time is of the essence in carrying out the duties hereunder.
21. THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement shall
be construed to create and the parties do not intend to create any rights in third parties.
22. ATTORNEY FEES APPLICABLE LAW AND FORUM. In the event either
party brings an action or proceeding for damages arising out of the other's performance under
this Agreement or to establish the right or remedy of either party, the prevailing party shall be
entitled to recover reasonable attorney fees and costs as part of such action or proceeding,
whether or not such action or proceeding is prosecuted to judgment. This Agreement shall be
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construed and interpreted according to California law, and any action to enforce the terms of this
Agreement or for the breach thereof shall be brought and tried in the County of Sonoma.
23. INDEPENDENT CONTRACTOR. The _parties intend that Consultant, in
performing the services specified herein, shall act as an independent contractor and shall have
control of the work and the manner in which it is per orme . onsu n is not to be considered
an agentor emp ogee o t e ity and is riot entit e to participate m any pension plan, insurance,
bonus or semi ar benefits City provides its employees. t e event City exercises its right to
terminate this Agreement, Consultant expressly agrees that he /she shall have no recourse nor
right of appeal under rules, regulations, ordinances or laws applicable to employees.
24. TAXES. Consultant agrees to file tax returns and pay all applicable taxes on
amounts paid pursuant to this Agreement and shall be solely liable and responsible to pay such
taxes and other obligations, including, but not limited to, state and federal income and FICA
taxes. Consultant agrees to indemnify and hold the City harmless from any liability which it
may incur to the United States for to the State of California as a consequence of Consultant's
failure to pay, when. due, all such taxes and obligations.
25. EMPLOYMENT PRACTICES. Consultant shall not discriminate in its
performance under the Agreement either directly or indirectly on the grounds of race, color,
religion, sex, age, national origin, or other prohibited grounds in its employment practices, and
shall take affirmative steps to ensure that applicants are employed and employees are treated
during employment without regard to race, color, religion, .sex, age, national origin, or other prohibited
grounds.
26. COMPLIANCE WITH LAW. Consultant shall comply with all applicable
federal, state and local laws, rules and regulations affecting the Consultant and his/her work
hereunder. Consultant represents and warrants to City that Consultant has all licenses, permits,
qualifications and approvals of whatsoever nature which are legally required for Consultant to
practice Consultant's profession and to do the work hereunder. Consultant represents and
warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times
during the term of this Agreement any licenses, permits, and approvals which are legally
required for Consultant to practice his /her profession and do the work contemplated by this
Agreement.
27. INTERPRETATION. Notwithstanding the fact that one or more provisions of
this Agreement may have been drafted by one of the parties to this Agreement, such provisions
shall be interpreted as though they were a product of a joint drafting effort and no provisions
shall be interpreted against a party on the ground that said party was solely or primarily
responsible for drafting the language to be interpreted.
28. EXECUTION. This Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument and shall become binding upon the parties
when at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
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29. AUTHORITY. Each individual executing this Agreement on behalf of one of the
parties represents that he or she is duly authorized to sign and deliver the Agreement on behalf of
such party and that this Agreement is binding on such party in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF ROHNERT PARK: CONSULTANT:
By:
Name: (Date)
Title:
.Per Resolution -No.. adopted
by the City Council on
ATTEST:
City Clerk
APPROVED AS TO FORM:
ity Atto ey
By: t -I-o
Name: R0 2 I t-EI�J (Date)
Title: - jo-e-T r n- �'f.Z4 Z 10 I}-
"I Cot
By:
Name: (Date) -
Title:
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EXHIBIT "A"
SCOPE OF WORK
AND
SCHEDULE OF PERFORMANCE
Scope of Consultant Work
A. . Surgical procedures on shelter animals including:
• Spay and neuters including juvenile (2 lb for cats /8 weeks old for dogs)
sterilization and late term pregnant animals
• Spay and neuters on rabbits
o Neuters on guinea pigs, rats and others — as time /experience allows
o Lump /cyst removals
• Other surgical procedures consultant feels comfortable doing in -house
• Dewclaw removal, declaw if necessary of extra toes
B. Other simple procedures requiring anesthetic - as time and equipment
permits, such as:
o Cleaning and draining abscesses
o Ear flushes
o Teeth cleaning (dentals), removing deciduous teeth, simple extractions
o Foxtail removal
Schedule
Scheduling will be done with the Shelter Supervisor and the Shelter Veterinary Technician and will
be a flexible schedule with an average of 10 hours per week.' Expectation is that there will be a
seasonal variation of hours with a low during the winter months aind ., a high during the busy
Summer/Fall kitten season.
Scope of City Services
A. Provide medical supplies and equipment necessary for the Consultant to
carry out the above listed services
B. Provide minimum support staff to assist the Consultant in carrying out the
above listed services
EXHIBIT A
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C. Maintain the surgery room in clean, working order; supplies kept stocked
and orderly
D. Maintain good communications and support to the Consultant
EXHIBIT A
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EXHIBIT "B"
COMPENSATION RATES AND CHARGES
Consultant shall be paid $60 per hour for an average of 10 hours /week
EXHIBIT B
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JH- S:05 -g
EXHIBIT "C''
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain .
insurance in conformance with the requirements set forth below. Consultant will use existing
coverage to comply with these requirements. If that existing coverage _ does not meet the
requirements set forth here, Consultant agrees to amend, supplement or endorse the existing
coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set
forth in this section constitute. the minimum amount of coverage required. Any insurance
proceeds available to City in excess of the limits and coverage required in this agreement and
which is applicable to a given loss, will be available to City.
Consultant shall provide the following types and amounts of insurance:
General Liability. lnsdrance .using Insurance Services Office "Commercial General Liability"
policy form CG 0..0 Oi or the exact equivalent. Defense costs must be paid in addition to limits.
There shall be no cross liability exclusion for claims or suits by one insured against another.
Limits are subject to review but in no event less than $1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage form CA 0001 including symbol i
(Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less that
$1,000,000 per accident: If Consultant owns no vehicles, this requirement may be satisfied by a.
non -owned auto endorsement to the general liability policy described above. If Consultant or
Consultant's employees will use personal autos in any way on this project, Consultant shall
provide evidence of personal auto liability coverage for each such person.
If applicable, Workers Compensation on a state - approved policy form providing statutory
benefits as required by law with employer's liability limits no less than $1,000,000 per accident
or disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, errors or omissions of the
consultant and "Covered Professional Services" as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than $1,000,000
per claim and.in the aggregate. The policy must "pay on behalf of the insured and must include
a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or
before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted
carriers in the state of California and with an A.M. Bests rating of A- or better and a minimum
financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant. Consultant and
City agree to the following with respect to insurance provided by Consultant
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds the City, its elected.officials,
EXHIBIT C
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employees and agents, using standard ISO endorsement No. CG 2010 with an edition prior to
1992. Consultant also agrees,to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
Prohibit Consultant, or. Consultant's employees, or agents, from waiving the right of subrogation
prior to a loss. Consultant agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors and subcontractors to do
likewise.
3. None of the coverage required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
4. No liability policy shall contain any provision or. definition that would serve to
eliminate so- called "third party action over" claims, including any.exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor.
5. All coverage types and limits required are subject to approval, modification and
additional requirements by the City; as the need arises. Consultant shall not make any reductions
in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period)
that may' affect City's protection without City's prior written consent.
6. Proof of compliance with these insurance requirements, consisting of certificates
of insurance evidencing all of the coverages required and an additional insured endorsement to
Consultant's general liability policy, shall be delivered to City at or prior to the execution of this
Agreement. In the event such proof of any insurance is not delivered as required, or in the event
such insurance is canceled at anytime and no replacement coverage is provided, City has the
right, but not the duty, to obtain any insurance it deems necessary to protect its interests under
this or any other agreement and to pay the premium. Any premium so paid by City shall be
charged to and promptly paid by Consultant or. deducted from sums due Consultant, at City
option.
7. Certificate(s) are to reflect that the insurer will provide 30 days notice to City of
any cancellation of coverage. Consultant agrees to require its insurer to modify such certificates
to delete any exculpatory wording stating that failure of the insurer to mail written notice of
cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being
required) to comply with the requirements of the certificate.
8. . The City reserves the right at any time during the term of the contract to change
the amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in substantial additional cost to the
Consultant, the City will negotiate additional compensation proportional to the increased benefit
to City.
9. For purposes of applying insurance coverage only, this Agreement will be deemed
to have been executed immediately upon any party hereto taking any steps that can be deemed to
be in furtherance of or towards performance of this Agreement.
EXHIBIT C
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1.0.. Consultant acknowledges and agrees that any actual or alleged failure on the part
of City to inform Consultant of non - compliance with any insurance requirement in no war
imposes any additional obligations on City nor does it waive any rights hereunder in this or any
other regard:
11. Consultant will,_renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type ;pursuant to this, agreement.
This obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until City executes a written statement to that
eff�t,
12.. Consultant shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other policies providing
at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to
expiration. A coverage binder or letter from_ Consultant's insurance agent to this effect is
acceptable. A certificate of insurance, and/or additional insured endorsement as required in these
specifications applicable to the renewing or new coverage must be provided to City. within five
days of the expiration of the coverages.
13. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials and
agents.
14. Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue, and is not intended by any
party or insured to be limiting or all- inclusive.
15: These insurance requirements are intended to be separate and distinct from any
other provision in this agreement and are intended by the parties here to be interpreted as such.
16. The requirements in this Section supersede all other sections and provisions of
this Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Section.
17. Consultant agrees to provide immediate notice to City of any claim or loss against
Consultant arising out of the work performed under.this agreement. City assumes no obligation
or liability by such notice, but has the right (but not the duty) to monitor the handling of any such
claim or claims if they are likely to involve City.
EXHIBIT C
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