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HomeMy WebLinkAbout10 - Cooperative Agreement with the Friends of Newport Beach Animal ShelterQ SEW Pp�T CITY OF �m z NEWPORT BEACH c�<,FORN'P City Council Staff Report November 28, 2017 Agenda Item No. 10 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Jon Lewis, Chief of Police - 949-644-3701, jlewis@nbpd.org PREPARED BY: Thomas Fischbacher, Lieutenant, tfischbacher@nbpd.org PHONE: 949-644-3740 TITLE: Approval of a Cooperative Agreement with the Friends of Newport Beach Animal Shelter ABSTRACT: The Police Department seeks approval of a Cooperative Agreement between the City of Newport Beach (City) and the Friends of Newport Beach Animal Shelter, a California nonprofit corporation (FONBAS). RECOMMENDATION: a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; and b) Approve and authorize the Mayor and City Clerk to execute the Cooperative Agreement between the City and FONBAS. FUNDING REQUIREMENTS: There is no funding impact related to this item. DISCUSSION: In November 2015, the Newport Beach Police Department began to operate an animal shelter for the care and welfare of lost, stray, impounded and safe keeping of animals in the City of Newport Beach. Born from a desire to see the best possible care for the animals and a desire to have a premier animal care facility, a group of Newport Beach residents formed a nonprofit organization to raise funds for the City of Newport Beach Animal Shelter. These funds would be used to provide upgraded cages, amenities and medical care for the animals to make them more adoptable. 10-1 Approval of a Cooperative Agreement with the Friends of Newport Beach Animal Shelter November 28, 2017 Page 2 Friends of Newport Beach Animal Shelter (FONBAS) was formed in August 2017. It is a nonprofit organization that conducts fundraising efforts for the benefit of the City of Newport Beach Animal Shelter. Police Department personnel have worked collaboratively on the Cooperative Agreement. Staff recommends Council approve the attached agreement in concept and authorize the City Manager to make minor modifications if needed. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Cooperative Agreement 10-2 ATTACHMENT A ANIMAL SHELTER SUPPORT AGREEMENT WITH FRIENDS OF NEWPORT BEACH ANIMAL SHELTER (FONBAS) This Support Agreement ("Agreement") between the FRIENDS OF NEWPORT BEACH ANIMAL SHELTER (FONBAS), a California non-profit corporation ("Friends") and the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), each individually referred to as Party and sometimes collectively referred to as the Parties, is dated as of this 28th day of November, 2017 ("Effective Date") and is made with respect to the following: RFCITAI R WHEREAS, the City, through the Newport Beach Police Department ("NBPD"), operates an animal shelter in and for the City and recently leased a facility located at 20302 Riverside Drive, Newport Beach, California 92660 to care for and shelter stray animals found within the City's borders; WHEREAS, several City residents have incorporated Friends as a California non-profit corporation for the purpose of providing both volunteer and financial support for an animal shelter in the City including, but not limited to, supplemental medical care, training, adoption programs, and positive awareness for the City's animal control and shelter program; WHEREAS, Friends also desires to provide capital fundraising for purchasing or building a City -owned and operated animal shelter; WHEREAS, the City and Friends are each independent legal entities and each operates pursuant to rules and laws that may not be applicable to the other; WHEREAS, the Parties agree that they play different roles in helping the City maintain a standard of excellent care and that the City's animal shelter will benefit by a clear delineation of the Parties' respective functions and responsibilities; WHEREAS, the Parties intend this Agreement to establish a framework for long- term and continued cooperation with respect to volunteer support and fundraising for the City's animal shelter programs and infrastructure; and WHEREAS, the Parties agree that the primary objective of the City's animal shelter is to provide care and services that satisfy the needs of the City's stray animals. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS 1. Basic Principles 1.1 The creation of meaningful volunteer and support opportunities that Animal Shelter Support Agreement Page 1 10-3 facilitate an efficient, safe, and compassionate animal shelter is an important objective of the City and Friends. 2. Funding 2.1 Provided the City Council has, in its sole discretion, allocated appropriate funds in the annual budget, City shall fund costs of City's animal control and shelter professional staff, their operational needs, facility maintenance, rent, and support the programs attendant to the City's animal control and shelter. 2.2 Following a written request for funding by City staff, Friends may fund the cost of City animal shelter activities for which no funding is allocated in the annual City budget, if the Friends Board of Directors has, in its sole discretion, approved the expenditure. 2.3 City staff and Friends leadership shall serve as a forum for discussion of issues related to City animal shelter funding. 2.4 Any revenue generated by fundraising activities conducted by Friends at the City's animal shelter shall be used to fund costs associated with the City's animal shelter, its programs, and/or a future facility. Friends will take reasonable efforts to minimize administrative fees and overhead expenses; however, in no case shall Friends spend more on administration or overhead expenses than is recommended of charities by the Better Business Bureau, or any successor entity. 3. Roles & Functions 3.1 The City has the exclusive responsibility for the management and operation of the City animal shelter, related animal control, and animal programs. 3.2 Friends is hereby permitted to promote and seek contributions for animal shelter funding to supplement City's unfunded needs and a permanent City animal shelter facility. Friends shall obtain permission of the Contract Administrator, as hereinafter defined, prior to conducting any organized activity on City property. 3.3 City may periodically obtain input and recommendations from the Friends Board of Directors on topics that may include, but are not limited to: (a) Adoption programs and publicity; (b) Licensing oversight and publicity; (c) Shelter educational outreach (e.g., scholarship grants, resource library, and volunteers); (d) Unfunded animal shelter needs; and (e) Fundraising events and activities. Animal Shelter Support Agreement Page 2 10-4 3.4 The City shall give serious consideration to Friends' input and fundraising activities for the potential future animal shelter facility, and City agrees that Friends is hereby exclusively permitted to promote and seek contributions for funding activities and campaign to supplement these unfunded needs and a permanent City animal shelter facility. Notwithstanding the foregoing, the City may, in its sole discretion, accept monies from other sources to fund City animal shelter costs and expenses. 3.5 This Agreement shall be administered by the NBPD. City's Traffic Division Lieutenant or designee shall be the Contract Administrator and shall have the authority to act for City under this Agreement. 3.6 City provides no guarantee that it will implement any recommendations received from Friends. Any input or recommendations received by City from Friends are intended to augment, not replace, the normal, routine shelter services, operations, maintenance, and support provided through the NBPD. 4. Publications 4.1 Friends may, at its own expense, publish newsletters, social media publicity postings, fundraising materials, and/or website information (individually, a "Communication"; collectively, "Communications") to publicize the activities, services, and funding needs for the City's animal shelter and its development, provided such Communications comply with Council Policy D-5. Any Communication generated pursuant to this Agreement must be reviewed and approved by the Contract Administrator before the date such Communication is published. 4.2 Friends may utilize the City's name and official "sail" logo, a copy of which is attached hereto as Exhibit A and incorporated herein by reference, in association with any Communication generated or fundraising activity conducted by Friends. 4.3 Friends shall not permit individuals or entities that are known to have used unfair, incompetent, or inappropriate business practices to advertise on any communication medium owned or operated by Friends. 4.4 In the event the City is concerned, at any time, about the format or content of any Friends' Communication, the matter will be first submitted for resolution by City staff to the Friends' volunteer primarily responsible for that publication. Should the Parties be unable to resolve the City's concern, Friends shall immediately remove the Communication from publication. 4.5 Friends' officers and volunteers, as appropriate, shall be given access to the City animal shelter for the limited purpose of placing City -approved Communications thereon or for the preparation and attendance of Friends' activities or events, which have been preapproved by the Contract Administrator. Animal Shelter Support Agreement Page 3 10-5 5. Term; Termination; Notice 5.1 The term of this Agreement shall be twenty (20) years from the Effective Date. 5.2 Either Party may terminate this Agreement, without cause, upon one hundred twenty (120) calendar days' written notice to the other, with notice served on the City Manager or served on the Friends Secretary at the addresses specified herein. 5.3. All notices with regard to this Agreement may be delivered to the Parties addressed as follows: City: City of Newport Beach Police Department Attn: Traffic Division Lieutenant 870 Santa Barbara Drive Newport Beach, CA 92660 Friends: Friends of Newport Beach Animal Shelter (FONBAS) Attn: Friends Secretary P.O. Box: 10791 Newport Beach, CA 92658 6. Insurance 6.1 Friends shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Friends shall provide certificates of insurance to City as evidence of the insurance coverage required herein and other endorsements as specified herein for each coverage. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Friends one hundred twenty (120) calendar days' advance written notice of such change. 6.2 Friends shall maintain directors & officers insurance that covers the activities permitted to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and in the aggregate. Friends agrees to maintain continuous coverage from the Effective Date through a period no less than three years after completion of the activities permitted by this Agreement_ 6.3 Friends shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Friends arising out of or in connection with any activities permitted to be performed under this Agreement, including coverage for any non -owned vehicles in an amount approved by City's Risk Manager. Animal Shelter Support Agreement Page 4 10-6 6.4 Friends shall maintain Crime (Discovery Form) coverage including Employee Dishonesty and Theft, Computer Fraud, Forgery or Alteration, Fraudulent Funds Transfer and, when applicable, Inside/Outside Money and Securities coverage, including third party losses, for City -owned property in the care, custody and/or control of Friends. Coverage limits shall be approved by City's Risk Manager. The policy shall include the City (list the vesting being used on this contract) as loss payee. 7. Indemnification 7.1 Friends shall indemnify, defend and hold harmless City, its elected or appointed officers, officials, employees, and volunteers from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses of every kind and nature whatsoever, which may arise from any breach of the terms and conditions of this Agreement or any activities conducted by Friends. 7.2 Notwithstanding the foregoing, nothing herein shall be construed to require Friends to indemnify the City from any claim arising from the sole negligence or willful misconduct of the City. The insurance policy limits in this Agreement act as a limitation upon the amount of indemnification to be provided by Friends. Nothing in this Agreement creates any indemnity obligation for an individual Friends' director, officer, or volunteer. 8. Standard Provisions 8.1 Recitals. City and Friends acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 8.2 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 8.3 Amendments. This Agreement may be modified or amended only by a written document executed by both Friends and City and approved as to form by the City Attorney. 8.4 Severability. If any term or portion of this Agreement is held to be invalid, illegal, unconstitutional, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 8.5 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. Animal Shelter Support Agreement Page 5 10-7 8.6 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 8.7 Counterparts. This Contract may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Animal Shelter Support Agreement Page 6 10-8 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date. - By: Aa n C. Har City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Kevin Muldoon Mayor FRIENDS: FRIENDS OF NEWPORT BEACH ANIMAL SHELTER (FONBAS), a California nonprofit corporation Date: By: Tim Stoaks President Date. - By: Jean Watt Secretary [END OF SIGNATURES] Attachments: Exhibit A — City "Sail" Logo Animal Shelter Support Agreement Page 7 10-9 EXHIBIT A CITY "SAIL" LOGO Animal Shelter Support Agreement Page A-1 10-10 CITY OF NEWPORT BEACH 10-11