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Dubuque Regional Human SocietyDUBUQUE RECEIVED REGIONAL MA 13 MAY ®6 PM 2 :4© SOCIETYAk SERVING TILE TRL- STATES Cite Clerk's Office Dubuque Regional Humane Society 175 N. Crescent Ridge 1 Dubuque, IA 52003 1 563 - 582 -6766 DUw w db hur anee.org Thursday, May 2, 2013 Dear Mike and Marie, Thank you for your offer of $94,000 to fund fencing and amenities for a pet park at the Dubuque Regional Humane Society's (DRHS) new location. After carefully considering the proposed agreement, the DRHS board of directors decided it is in the long -term interest of the organization to decline the City's proposal. The reasons that prompted the board's decision are summarized as follows: • The City proposes the one -time purchase of $94,000 of assets with no provision for maintenance or replacement of those assets. The term of the contract is 20 years, which exceeds the depreciable life of the assets. The contract calls for a partial refund to the City if contract conditions are not met, and the possibility of a future liability was also considered. • The terms of the contract would result in additional operating costs to the DRHS. Specifically, • Administration of a low- income program. • Specific provisions in the contract that require additional programming. • A requirement that the park remain open to the public 365 days per year, except for unforeseen circumstances. • It is difficult to determine the total cost of increased operating expenses over 20 years, but the potential cost was taken into account. The DRHS' request to the City was based on the board's belief that there is inherent benefit to the City in having a pet park in a currently un- served part of the city with no ongoing cost to the taxpayers. It is possible that the DRHS' assessment of the monetary value of that benefit and that of the City are not the same. Again, thank you for attempting to work out an arrangement with the DRHS to partner in this project. Although our decision comes with regret, we hope you appreciate the reasons behind it. It is possible other opportunities will arise in the future. If so, it's good to know the City is willing to work with private groups for the good of all. Sincerely, ,1,,f1 eale Jane McCall President & CEO The Dubuque Regional Humane Society (DRHS) works to protect and promote the well -being of all animals by fostering respect for their inherent dignity. facebook.com /dubuquehumane twitter.com / @DBQHumane AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND DUBUQUE REGIONAL HUMANE SOCIETY THIS Agreement, dated for reference purposes the day of , 24 , is entered into by and between the City of Dubuque, Iowa, ( "City ") and the Dubuque Regional Humane Society ( "DRHS "). WHEREAS, DRHS owns a building (the Facility) and has determined that it wishes to construct a pet park at its Facility (the Pet Park) located at and (address ); WHEREAS, the City Council believes that the development of the Pet Park pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the best interests of City and in accord with the public purposes and provisions of the applicable federal, state and local laws and the requirements under which the Pet Park will be undertaken and is being assisted. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: SECTION 1. TERM. The term of this Agreement shall be from May 1, 2013 through and including April 30, 2033. SECTION 2. DEVELOPMENT ACTIVITIES. 2.1. Required Minimum Improvements. DRHS hereby agrees to construct at its Facility a Pet Park which will include the following: fencing, dog washing bays, water access for pets and people, key card access, and amenities such as trees, benches, and a gazebo at an estimated cost of approximately $100,000. 2.2. Plans for Construction of Minimum Improvements. DRHS shall submit to City, for approval by City, plans, drawings, specifications, and related documents with respect to the improvements to be constructed by DRHS on the Property. All work shall be in substantial conformity with the Construction Plans approved by City and approval by the City will not be unreasonably withheld. 2.3. Timing of Improvements. DRHS hereby agrees that construction of the Pet Park shall be substantially completed by December 31, 2014. The time frames for the performance of these obligations shall be suspended due to unavoidable delays, meaning delays outside the control of the party claiming its occurrence in good faith, which are the direct result of strikes, other labor troubles, unusual shortages of materials or labor, unusually severe or prolonged bad weather, acts of God, fire or other O42913ba I casualty to the Facility, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion directly results in delays, or acts of any federal, state or local government which directly result in extraordinary delays. The time for performance of such obligations shall be extended only for the period of such delay. SECTION 3. CITY PARTICIPATION. City agrees to pay to DRHS $94,300 upon final completion of the construction of the Pet Park. Upon final completion the DRHS will provide a letter to the Leisure Services Manager regarding construction of the Pet Park that includes all items in Section 2.1. Upon receipt of the letter by the City an inspection will be performed and payment made to DRHS. SECTION 4. EDUCATION PROGRAMS. The City values education efforts regarding pets and animals. DRHS will continue to provide education and outreach to residents of Dubuque, Iowa. Special emphasis shall be placed each year on education to low- income and underserved residents of Dubuque. This education shall be offered free of charge or at discount for low income residents. Additional programming shall be offered which includes, but is not limited to: (1) One (1) presentation per quarter to City of Dubuque Neighborhood Associations and groups held in the neighborhoods. (2) Annually offering special workshops within City of Dubuque neighborhoods. (3) Attendance and outreach participation through displays and other engagement activities to encourage responsible pet ownership, at a minimum of four (4) special events annually. (4) City Channel 8 programming, which may include a full length program or shorter educational segments at the City's discretion. (5) Availability of publically available online information and pet educational materials through the DRHS website. (6) Pet training classes available at the DRHS facility and in neighborhood locations. SECTION 5. MEMBERSHIP FEE. The City understands that DRHS will charge a membership for fee for usage of the Pet Park. DRHS will advertise and implement a free pet park membership program for low- income residents. For purposes of this Section, a low- income resident means a Dubuque resident whose income is no more than 80% of the Area Median income. SECTION 6. LICENSING OF PETS. Only pets with current rabies vaccinations and licensure by a governing body will be authorized to use the Pet Park. 2 SECTION 7. EQUIPMENT AND OPERATIONS. 7.1. Equipment. DRHS shall provide the Pet Park with all equipment necessary for the operation of the Pet Park in accordance with the terms of this Agreement and the laws and administrative rules of the State of Iowa, and the City of Dubuque Code of Ordinances. 7.2. Operation. DRHS shall maintain the Pet Park in a clean, safe and sanitary manner and shall not permit any condition to exist that might constitute a public nuisance. DRHS shall develop Pet Park rules. 7.3. Establishment and Enforcement of Rules. DRHS shall manage and operate all aspects of the Pet Park including the provision and enforcement of Pet Park rules for users. SECTION 8. REPORTS. DRHS shall provide City with an annual report on a form approved by the City detailing the number of memberships and free memberships using the Pet Park, as well as educational programs provided and entities programs provided to under the terms of this Agreement. The report will be for each calendar year and is due by January 31 of the following year to the Leisure Services Manager. SECTION 9. HOURS OF SERVICE. DRHS shall keep the Pet Park open to the public daily, Monday through Sunday, 365 days a year for the convenience of the public and for the purpose of transacting business in connection with the services to be provided under this Agreement. DRHS may close the Pet Park for minimal time periods for emergencies or other non - standard issues. SECTION 10. DISPLAY OF LICENSING. DRHS shall prominently display in the Facility a Certificate of Registration and such other licenses as may be required by the Iowa Department of Agriculture. SECTION 11. INSPECTION OF PET PARK. The Pet Park shall be open for inspection by the City Manager or designee during regular DRHS business hours. SECTION 12. TERMINATION. 12.1. This Agreement may be terminated by either party up to such time as construction of the pet park begins by providing written notice as outlined in Section 16. 12.2. If, through any cause, DRHS fails to fulfill in timely and proper manner its obligations under this Agreement, or if DRHS violates any of the covenants, agreements or stipulations of this Agreement, City thereupon has the right to terminate this Agreement by giving written notice to DRHS of such termination and specifying the effective date thereof at least sixty (60) days before the effective date of such termination. Upon termination of this Agreement, DRHS will return to City all unexpended funds and a prorated share of the City's capital investment. The proration 3 will be the number of years remaining on the Pet Park agreement divided by 20 (the number of years of the agreement). SECTION 13. COMPLIANCE WITH LAWS. DRHS must comply with all applicable laws, ordinances and codes of the Federal Government, the State of Iowa, and the City of Dubuque. SECTION 14. COVENANTS OF DRHS. 14.1. Non - Discrimination. In carrying out the project, DRHS shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, gender identity, national origin, age or disability. 14.2. Conflict of Interest. DRHS agrees that no member, officer or employee of City, or its designees or agents, nor any consultant or member of the governing body of City, and no other public official of City who exercises or has exercised any functions or responsibilities with respect to the project during his or her tenure, or who is in a position to participate in a decision - making process or gain insider information with regard to the project, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the project, or in any activity, or benefit therefrom, which is part of this project at any time during or after such person's tenure. In connection with this obligation, DRHS shall have the right to rely upon the representations of any party with whom it does business and shall not be obligated to perform any further examination into such party's background. SECTION 15. EVENTS OF DEFAULT AND REMEDIES. 15.1. Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, any one or more of the following events: (1) Failure by DRHS to cause the construction of the Pet Park to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement. (2) Failure by DRHS or City to substantially observe or perform any other material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. (3) Failure by the DRHS to maintain property insurance which provides replacement coverage for the pet park and associated facilities from the perils of "special perils" coverage. (4) Failure by the DRHS to repair, maintain, or replace amenities of the pet park as originally established using capital funds of the City of Dubuque. 4 15.2. Remedies for Default by DRHS. Whenever any Event of Default referred to in Section 15.1 of this Agreement occurs and is continuing, City, as specified below, may take any one or more of the following actions after the giving of written notice by City to DRHS and DRHS of the Event of Default, but only if the Event of Default has not been cured within sixty (60) days following such notice, or if the Event of Default cannot be cured within sixty (60) days and the defaulting party does not provide assurances to City that the Event of Default will be cured as soon as reasonably possible thereafter: (1) City may suspend its performance under this Agreement until it receives assurances from DRHS, deemed adequate by City, that DRHS will cure its default and continue its performance under this Agreement; (2) City may take any action, including legal, equitable or administrative action, which may appear necessary or desirable to collect any payments due under this Agreement or to enforce performance and observance of any obligation, agreement, or covenant under this Agreement which may include, but is not limited to, termination and a prorated return of the City's capital investment under §12.2. 15.3. Remedies for Default by City. If City defaults in the performance of this Agreement, DRHS may take any action, including legal, equitable or administrative action that may appear necessary or desirable to collect any payments due under this Agreement, to recover expenses of DRHS, or to enforce performance and observance of any obligation, agreement, or covenant of City under this Agreement. DRHS may suspend their performance under this Agreement until they receive assurances from City, deemed adequate by DRHS, that City will cure its default and continue its performance under this Agreement. 15.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to City is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 15.5. No Implied Waiver. In the event any agreement contained in this Agreement should be breached by any party and thereafter waived by any other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. 15.6. Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity, including an action for declaratory relief or arbitration, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of litigation from the other party. Such 5 fees and costs of litigation may be set by the court in the trial of such action or by the arbitrator, as the case may be, or may be enforced in a separate action brought for that purpose. Such fees and costs of litigation shall be in to any other relief that may be awarded. SECTION 16. NOTICES AND DEMANDS. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: If to DF If to City: With copy to: City Manager 50 W. 13th Street Dubuque, Iowa 52001 Phone: (563) 589 -4110 Fax: (563) 589 -4149 City Attorney City Hall 50 W. 13th Street Dubuque, Iowa 52001 or at such other address with respect to any party as that party may, from time to time designate in writing and forward to the other as provided in this Section. SECTION 17. INSURANCE. DRHS shall provide and maintain or cause to be maintained at all times, and, from time to time at the request of City, furnish City with proof of property insurance which provides replacement coverage for the pet park and associated facilities from the perils of "special perils" coverage. SECTION 18. BINDING EFFECT. This Agreement is binding upon and inures to the benefit of City and DRHS and their respective successors and assigns. SECTION 19. EXECUTION BY FACSIMILE. The parties agree that this Agreement may be transmitted among them by facsimile machine. The parties intend that the faxed signatures constitute original signatures and that a faxed Agreement containing the signatures (original or faxed) of all the parties is binding on the parties. SECTION 20. AMENDMENTS. This Agreement may be modified or amended only in writing by a duly authorized representative and executed by both City and DRHS. It may not be amended or modified by oral agreement or understanding between the parties unless the same will be in writing, duly approved, and executed by both parties. 6 SECTION 21. SEVERABILITY. If any term, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, or unenforceable, the rest of the Agreement will remain in full force and effect and will in no way be affected, impaired, or invalidated, unless such enforcement will frustrate the purpose of this Agreement. SECTION 22. PARAGRAPH HEADINGS. The titles to the paragraphs of this Agreement are solely for the convenience of the parties and will not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Agreement. SECTION 23. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties, and any prior understanding or representation of any kind preceding the date of this Agreement will not be binding on either party except to the extent incorporated in this Agreement. SECTION 24. TERMINATION DATE. This Agreement and the rights and obligations of the parties hereunder terminates on April 30, 2033. CITY OF DUBUQUE, IOWA DUBUQUE HUMANE SOCIETY By: By: Roy D. Buol, Mayor By: Kevin S. Firnstahl City Clerk 7