The following is the complete text of Part 1 of NYC's initial contract for animal management with the NYC-formed Center for Animal Care & Control, Inc.
November, 1994
THE CENTER FOR ANIMAL CARE & CONTROL INC.
Board of Directors
Margaret A. Hamburg, M.D.
Commissioner of the Department of Health
John J. Doherty
Commissioner of the Department of Sanitation
Walter Alicea
Deputy Commissioner in Charge of Community Affairs
Jane R. Bicks
Doctor of Veterinary Medicine
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The Center for Animal Care & Control, Inc.
11 Park Place
New York, NY 10007
Box 66P
Martin B. Kurtz, Executive Director
Telephone - (212) 442-2059
Fax Number - (212) 274-1041
AGREEMENT, effective as of the first day of September, 1994 between THE CITY OF NEW YORK, a municipal corporation (the "City"), acting by and through the Commissioner or Health (the "Commissioner") of the Department of Health (the "Department") of the City and THE CENTER FOR ANIMAL CARE AND CONTROL (the "Center" or the "Contractor" or the "Corporation"), a not-for-profit corporatlon having its principal office at 11 Park Place, New York, New York 10007.
W I T N E S S E T H
WHEREAS, the Department has jurisdiction under the City Charter to regulate all matters affecting healtn withln the City of New York including the control of disease and conditions hazardous to llfe and health, and the abatement of nuisances affecting or likely to affect public health; and
WHEREAS, pursuant to Chapter 179 of the Laws of 1987, the City is authorized to maintain, in each Borough, shelters or facilities for animals and has designated the Department as the agency to exercise such authority and powers; and
WHEREAS, within the Department there exists the Bureau of Veterinary Public Health Services (the "Bureau") under the direction of the Commissioner's designee (the "Director") having the power and duty to administer Oepartmental programs relating to the impact of animals on public health, including, but not limited to, issuing dog licenses, collecting fees therefor, seizing unlicensed dogs and cats whose owners cannot be identified, the surveillance of animal bites, the surveillance of rabies, the investigation of all animal related diseases, the inspection of animal shelters and holding facilities; and
WHEREAS, the Contractor was establlshed as a not-for-prcfit corporation under Section 201 of the Not-For-Profit Corporation Law, in part, for the public purposes of seizing animals deemed to be a threat to the public health, providing and operating facilitles to shelter, hold, examine, test, treat, spay, neuter, place for adoption, assure humane care and disposition of and otherwise control animals which the Corporation or the City has seized or accepted for shelter; and
WHEREAS, the City desires the Corporation to undertake animal control functions and duties on behalf of the Department and City, includinq but not limited to those authorized by the New York City Dog License Law (Chapter 115 of the Laws of 1894, as amended) the New York State Public Health Law, the New York City Health Code, the New York City Administrative Code, and rules and regulations promulgated thereunder, in accordance with this agreement;
NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties hereto agree as follows:
PART I
TERM, SCOPE OF SERVICES, PAYMENT, ETC.
I. TERM
The term of this Agreement shall commence on September 1, 1994 and shall terminate December 31, 1997, unless terminated at an earlier date as hereinafter provided (the "Term"). This agreement may be renewed, at the optlon of the City, for one additional three year period.
II. SCOPE OF SERVICES
(a) The Contractor shall provide animal seizure, shelter and care services (the "Services") and related services (the "Related Services") all in the manner set forth in the "Scope of Services", annexed hereto and incorporated herein as Annex "A".
(b) Other Provisions Applicable to the Services/Related Services
(l) The Contractor shall meet all its obligations under this Agreement in accordance with all federal, state and local laws and regulations pertaining thereto.
(2) The Contractor shall meet all its obligations under this Agreement in a humane manner and respecting the rights of the owners of animals as required by law.
(3) The Contractor shall provide all reports required to be provided under this Agreement on a timely basis and shall provide all other reports (and other information) when and as requested from time to time by the Department.
(4) Each party shall, upon request and reasonable notice, meet with representatives of the other party with reasonable frequency to discuss reasonable and appropriate additional accounting principles and procedures, or other matters to be used by the Contractor.
(5) The Contractor shall assist and cooperate with the Department's dog licensing program with regard to the securing of dog licenses for dogs not currently llcensed.
(6) The Contractor shall cooperate with the City in order to attempt to increase the collectlon of dog license fees by the City to the maximum amount possible, and shall solicit bequests, donation and contributlons to support the activities hereunder.
III. REIMBURSEMENT; BOOKS AND RECORDS; AUDITS
(a) Maximum Reimbursable Amount
The Maximum Reimbursable Amount for the period September 1, 1994 through December 31, l994 shall not exceed $587,499.00, and for the period January 1, 1995 through December 31, 1995 shall not exceed $4,666,395.00 in accord with the line item budgets which are attached hereto and hereby made a part of this Agreement as Annex "B". The period September 1, 1994 through December 31, 1994 shall be known as the first budget interval. Thereafter, each period from January 1st through December 31st shall be known as a budget year. The total reimbursment for the period September 1, 1994 through December 31, 1995 shall not exceed $5,253,894.00. It is understood that with regard to funding for the period July 1, 1995 to December 31, 1995, this contract shall be deemed executory only to the extent of the monies appropriated and available for the purpose of the contract, and no liability on account thereof shall be incurred by the City beyond the amount of such monies. It is understood that neither this contract nor any representation by any public employee or officer, creates any legal or moral obligation to request, appropriate or make available additional monies for the purpose of the contract.
(b) Schedule of Payments and Recoveries
(1) Payment for services provlded pursuant to thls Agreement shall be made solely for actual, necessary, and verifiable expendltures, including agreed upon overhead expenses, made by the Contractor. Upon execution of this Agreement, the City shall make an initial advance of $195,000.00 to the Corporation to perform transition and start-up services. The Contractor may request, in writing, additional advances to cover additional start-up expenditures; the Department will respond to such written request in writing within five business days. If such request is approved, the Department shall make such advance. All expenditures for this budget interval shall be reported in the Monthly Financial Reports and the Final Report described ln Sectlon (d) of this Article. Payments for this period shall be reconciled against all approved, reported expenditures in accordance with Section (b)(4) of this Article. Total reimbursment for the first budget interval snall not exceed $587,499.00. On or about January 1, 1995 the City shall make an advance payment for the first budget year of $388,867.00. Thereafter, for the next ten (10) months the City shall, on or about the first day of each month, make an advance payment to the Corporation in the amount of $388,867.00, equal to one twelfth of the Maximum Reimbursable Amount for each respective budget year.
(2) The City's advance, as described above, shall be deposited by the Corporation in a money market bank account, earning interest at prevailing rates, and will be drawn upon by the Corporation as needed to meet the actual expenditures incurred while fulfilling its responsibilities under this Agreement.
(3) Upon delivery of the Corporation's Final report, required by section (d) below, the Corporatton shall also remit to the City, by check made payable to the Comptroller of the City of New York, the net interest earned in the money market bank account wherein the City's advances were deposited. The calculation of net interest earned will be the total interest earned less any interest due to the Corporation for delays experienced in receiving monthly advances from the City as stipulated in subsection III(b)(l) above.
(4) Upon delivery of the Corporation's Final Report containing a comprehensive statement of actual expenditures and revenue pursuant to section (d) below, the City shall pay to the Corporation an amount equal to the difference between the cumulative approved net actual expenaitures for the period, such net expenditures reported in accordance with the line item Budget contained in Annex B, the specifications contained in subsection III(b)(5) below, and the cumulative payments made, consisting of the initial payment, subsequent payments, and the succeeding monthly advance payments. In the event that cumulative approved net actual expenditures for each budget period are less than the cumulative advance payments, the Corporation shall remit to the City the excess amount in a check made payable to the New York City Department of Health upon submission of the Final Report.
(5) The Contractor shall be reimbursed for, and the Final Report may include, miscellaneous expenditures incurred in providing the Services including such items as advertising, petty cash, in-town travel, and conferences and seminars, within the line item limits set forth in Annex B.
(6) All income generated by the Contractor as a result of shelter activities, includlng but not llmited to, fees charged to any Society for the Prevention of Cruelty to Animals and/or any other humane or animal care organization for the care of animals seized by, or otherwise in the custody of, such Soclety, fees charged to owners for services relating to the adoption or placement for adoptton of animals, fees for spay and neuter services, and shelter fees, shall be deemed "revenue" under Annex B. It is understood that all such income shall be fully credited to the City under this Agreement.
(7) To the extent expenditures are made from funds provided to the Contractor by the Department to purchase supplies, equipment, fixtures or other personalty the Corporation shall retaln all purchase orders and invoices for the purposes of reports and audit, shall provide a copy of the same upon request to the Department and the Comptroller, and such purchased items shall be deemed the property of the City.
(8) It is understood that all supplies, equipment, fixtures or other personalty purchased with funds provided under this agreement, or otherwise purchased, acquired or installed in shelter, receiving or other facilities by the City shall remain the property of the City and shall be subject to the provisions of Part II, Article 4 of this Agreement.
(c) Modifications
To further the purpose of this Agreement, the Department and the Corporation may, by letter of agreement, reallocate budgeted amounts for services to be provided hereunder, provided that the Maximum Reimbursable Amount specified in section (a) of this Article III is not increased; and provided, further, that said letter is processed prior to the expenditure of any monies in excess of the amounts set forth in Annex B. This modification provision shall survive the termination of the contract.
(d) Financlal Reports
(1) Monthly Flnancial Reports
Beginning with the second month of the Agreement and continuing through the month subsequent to the last month of this Agreement, the Contractor shall submit a detailed Monthly Financial Report itemizing the applicable revenue and actual expenditures of the previous month to which the report pertains. The Monthly Report shall be made in a form designated and approved by the Department and shall be accompanied by supporting schedules and documentation, including payroll printouts, and all invoices for fringe benefits and .all expenditures for other than personal services ("O.T.P.S."), including consultant agreements, contracts, and leases, in accordance with Annex B. The Department, in its sole discretion, may require the production of any other supporting documentation.
(2) Final Report
Within sixty (60) days after each budget year or budget interval of this agreement, or within sixty (60) days after the termination or expiration of this Agreement, the Corporation shall furnish the Department with a report (the "Final Report") of its fiscal operations during the preceding budget year or budget interval under this Agreement, including a comprehensive statement of actual gross expenditures and revenues generated, in such form as shall be established by the Department. The Final Report shall be subject to audit by designees of the Department, in accord with generally accepted accounting principles; but in no event shall the Corporation use such audits to challenge or refute any audit or finding of the City Comptroller.
(3) The Final Report shall show the calculation-of interest earned by the Corporation as required in subsection III(b)(3) above.
(4) The City may review the Final Report, the comprehensive statement of actual gross expenditures and revenues generated, and such other documentation and information as the City may deem appropriate, and may disallow payment for services and/or expenses which were not rendered, authorized or documented in accordance with the terms of this Agreement.
(5) The Corporation shall prepare all financial reports and supporting schedules in accordance with generally accepted accounting principles.
(6) The Corporation shall furnish to the City a copy of the Corporation's annual audit report covering all of the Corporation's activities during each budget period of this Agreement. Such audit report shall be provided to the Department when distributed to the Corporation's Board of Directors. The Corporation shall disclose and describe to the Department all other financial and operational reports that are prepared by or on behalf of the Corporation, and when requested to do so, shall provide copies of such to the Department.
(e) Leases
In the event that the Corporation, using funds provided hereunder, leases facilities, vehicles or equipment, the Corporation shall submit copies of any such leases to the Department for written approval prior to the execution, and shall attach to such lease a cover sheet indicating the name and address of the lessor, the term of the lease, the annual rental amount, and, in the case of facilities, the tota1 usable floor area of the facility, and shall provide any information requested by the Oepartment
(f) Contractual/Consultant Services
The Corporation may enter into and renew various contracts and consultant and rental agreements for the provision of services or equipment to the Corporation related to the performance of this Agreement upon the prior written approval by the Department.
(g) Fidelity Bond
The Corporation will obtain, and maintain at all times during the term of this Agreement, a fidelity bond equal to the amount of any advance covering the activities of each person who receives, handles or disburses the monies granted under this Agreement. This bond shall be issued by an insurer duly licensed by the Superintendent of Insurance of the State of New York, and shall name the City of New York as a loss payee. A copy of said fidelity bond sha11 be proviced to the Department for review and approval. If said bond is at any time cancelled, the Department shall be provided with written notice thereof at least thirty (30) days prior to the effective date of said cancellation.
IV. ADDITIONAL CONTRACTOR REPORTS AND RECORDS
(a) Monthly Reports
The Corporation shall submit to the City monthly reports in quadruplicate, in statlstical and narrative form, and in a form that is approved by the Department, that shall contain sufficient information and data to allow evaluation of Corporation's monthly operations and activities agreed to hereunder. These reports will include, but not be limited to, number, type, orlgin and disposition of animals, number and type of activities, length of stay, holding cases, cage utilization rates and other specific information related to the types and quantity of services provided during the report period as more specifically set forth in Annex A. Sample formats for service delivery reports are annexed hereto in Annex D.
(b) Organization and Timing of Monthly Reports
The monthly reports provided under Section (d) of this Article IV shall distinguish among dogs, cats, and other animals and shall categorize such other animals by genus, species, country or state or other place of origin and source within the City, method by which such animal came into possession of the Contractor, and such other characteristic as may be specified by the Department. The report for a given month shall be submitted to the City prior to the last day of the month following the month to which such report pertains.
(c) Abstract of Minutes of Meetings of Board of Directors
The Corporation shall submit to the City a copy or an abstract (the "Abstract") of the minutes of all meetings of the Board of Directors of the Corporation. The minutes shall include, but not necessarily be limited to, a copy or summary of all resolutions and any final determinations of the Board. The minutes for a given meeting shall be submitted to the City with the next monthly report after it shall have been approved by the Board of Directors at the following meeting. The Department agrees that such minutes, copies, summaries, resolutions and determinations of the Board shall be confidential and shall remain the property of the Board, but shall be subject to the "Investigations Clause" of this Agreement and shall be subject to subpoena.
(d) Other Reports
The Corporation will provide written responses to any findings of deficiencies in the Corporation's operations which are forwarded to it by the Department, within forty-five (45) days. The Corporation will provide such other reports as the Department may reasonably request.
V. ADDITIONAL CITY OBLICATIONS
(a) The Department shall promptly forward appropriate animal complaints to the Corporation.
(b) Subject to the conditions set forth below, the City shall defend the Corporation in the event both the City and the Corporation are sued pursuant to Article 78 of the C.P.L.R. in regard to the seizure of any animal pursuant to an order of the Commissioner of Health where the issue in question is the propriety of the Commissioner's Order. Such defense shall not be provided where there is a related action for money damages arising out of acts or omissions of the Corporation, or where the City's Corporation Counsel determines there is a conflict of interest.
(1) The defense provision set forth in this Section (b) hereof shall in each case be conditioned upon the following conditions: (i) The Corporation's representative shall deliver to the General Counsel of the Department the original or a copy of any summons, complaint, process, notice, demand or pleading served on the Corporation within forty-eight (48) hours after service thereof upon the Corporation; and (ii) The Corporation shall cooperate fully in aiding the City to investigate or defend any claim, action or proceedings.
(2) The Corporation Counsel of the City shall act as attorney in connection with all claims or actions or proceedings within the purview of this Section. No settlement of any such claim or action or dismissal of any action or proceedlng shall be made otherwise than in accordance with the procedures established by the City, including the Comptroller, for the settlement of claims.
(3) It is understood that the City is not obligated to hold harmless or indemnify the Corporation, its employees, agents, officers, trustees, servants or independent contractors as a result of any act committed by them, negligent, tortuous or otherwise.
VI. USE AND OCCUPANCY OF CITY-OWNED BUILDINGS
(a) Subject to the City having title to the premises, the Corporation shall be authorized to enter into the following City-owned buildings without charge, and shall occupy such for the sole purpose of and for so long as it is performing the services specified in this Agreement. The City reserves the right in its sole discretion to designate suitable alternative sites for shelter and receiving operations.
MANHATTAN SHELTER
326 East 110th Street
New York, NY 10128
BROOKLYN SHELTER
2336 Linden Boulevard
Brooklyn, N.Y. 11208
STATEN ISLAND ANIMAL RECEIVING FACILITY
3139 Veterans Road West
Staten Island 10314
(b) To the extent that funds are provided herein for the purpose, the Corporation will ensure that all necessary repairs of the above-specified shelter facilities or animal receiving facility, or of eguipment purchased or leased for the provision of the services set forth in Annex A, are made in an expeditious manner by qualified and responsible contractors, at a reasonable cost, through a competitive selection and procurement process. Repairs shall mean and include all remedial work, including structural work, necessary to preserve and protect the buildings and their contents. Individual repairs costing the City more than $500 must be approved in writing in advance by the Department except in the case of emergency repairs, costing the City no more than $1,000. In such emergency situations, the Corporation will obtain the written approval of the Department as soon as practicable during or after the emergency repair. The Corporation shall solicit at least three bids for all repairs costing the City more than $500, except for emergency repairs costing the City no more than $l,000, and shall accept the lowest responsible bid unless otherwise authorized by the Department.
(c) To the extent that funding is available as specified in Annex B, the Corporation shall provide all facilities management services for the above premises including repairs of the building and grounds, and including but not limited to:
The Corporation shall be reimbursed by the City at a cost not to exceed the amounts specified in ANNEX B, for facilities management.
(d) The Corporation shall cooperate in all respects with the City, acting througn its agencies, in any capital improvement project, renovation, inspection, or other actlvity related to the repair, maintenance, integrity or safety of City facilities and shall allow access at any time.
VII. OPERATION OF LEASED FACILITIES
(a) The City anticipates accepting an assignment of exlsting leases for the following animal receiving facllities and the Corporation shall occupy and operate same for the purposes set forth in Annex "A" for as long as such leases are in effect and for the sole purpose of and for so long as it is performing the services specified in this Agreement. The City reserves the right in its sole discretion to designate suitable alternative sites for shelter and receiving operations.
Queens Animal Receiving Facility
92-29 Queens Blvd., Rego Park, NY11374
Bronx Animal Receiving Facility
1 Fordham Plaza, Bronx, NY 10458
(b) The Contractor shall, if requested by the City, accept an assignment of an existing lease, or a license for use and occupancy in the discretion of the City, for use as corporate headquarters and offices at 11 Park Place, New York, N.Y. 10007
(c) The Corporation shall provide such facilities management services as may be required by the existing leases, and renewals if any, and as may be required pursuant to any new leases entered into for the purpose of providing services hereunder, and in addition, to the extent funds are provided herein for the purpose, shall provide the following services to the extent such are not provided by the lessor thereof:
The Corporation shall be reimbursed by the City at a cost not to exceed the amount specifled in ANNEX B, for faclllties management.
VIII. MISCELLANEOUS PROVISIONS
(a) Notices
All notices and requests hereunder by either party to the other shall be directed to the addresses of the parties set forth in Annex"C", attached hereto and incorporated herein.
(b) Late Filing of Vendex Information
All information required to be flled pursuant to the Clty's Procurement Policy Board Rules (Vendex) concerning the Contractor's directors or officers shall be filed within thlrty (30) days of the registratlon of this Agreement wlth the Comptroller of the Clty of New York. The City may terminate thls Agreement without penalty lf this condition is not met, or in the event that:
(i) The Mayor or hls/her designee determines on the basis of the belatedly filed informatlon that it is in the best interest of the City to terminate the contract; and/or
(ii) The Comptroller or his/her designee determines that the belatedly filed information reveals matters which if provided earlier would have provided a basis for an objection to registration of the contract by the Comptroller and the Mayor or his/her designee determines that he/she would have agreed with such determination and therefore it is in the best interest of the City to terminate the contract.
(c) Aff1rmation
The Contractor shall complete and execute the affirmation annexed to Part II of this Agreement
(d) Indemnification
The City agrees that it will indemnify, defend and hold harmless each director of the Corporation, when such director is acting on behalf of the Corporation, in each case where, and to the extent that, such person is entitled to indemnification from the Corporation under the Corporation's corporate by-laws and in the event the Corporationis obligated, by contract or oherwise, to indemnify, defend and/or hold harmless the directors, provided, however, that the obligation of the City to indemnify, any such person, in any such case, as described above shall be conditioned upon a prlor findlng by the City's Corporation Counsel that the acts of such person giving rise to the suit, action or proceeding against which indemnification is sought, were made in good faith for a purpose that such person reasonably believed to be in the best interests of the Corporation, and that such person had no reasonable cause to believe that his or her conduct was unlawful. It is understood that for purposes of this section and the indemnification provisions of the Corporation's by-laws, unlawful conduct means conduct that is violative of criminal law. The City's obligation under this section, with regard to indemnification relating to acts of a person that occurred when this Contract was in effect, shall survive the termination of this Contract. All actions taken by the City pursuant to this section shall be as directed by the City's Corporation Counsel.
(e) A breach of any provision of this agreement by the contractor shall not automatically void, terminate, or otherwise affect this agreement unless and until the Department takes such specific action upon notice to the Contractor.
(f) Part II and Annexes A, B, C and D, and Rider attached hereto, are incorporated herein by reference.
(g) The Contractor agrees to complete and execute the affirmation following Part II concerning debt and taxes.
END OF PART I
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