1292536.1
MAINTENANCE SERVICES AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of July 19, 2022 by and between the City of Diamond Bar, a municipal corporation ("City") and EcoFert, Inc. ("Contractor").
1. Contractor's Services.
Subject to the terms and conditions set forth in this Agreement Contractor shall provide to the reasonable satisfaction of the City the Pantera Park and Lobeer fertilizer injection system monthly services set forth in the attached Exhibit "A" which is incorporated herein by this reference. As a material inducement to the City to enter into this Agreement, Contractor represents and warrants that it has thoroughly investigated the work and fully understands the difficulties and restrictions in performing the work. Contractor represents that it is fully qualified to perform such consulting services by virtue of its experience and the training, education and expertise of its principals and employees.
Jason Williams, Maintenance Supervisor (herein referred to as the “City’s Project Manager”), shall be the person to whom the Contractor will report for the performance of services hereunder. It is understood that Contractor shall coordinate its services hereunder with the City’s Project Manager to the extent required by the City’s Project Manager, and that all performances required hereunder by Contractor shall be performed to the satisfaction of the City’s Project Manager and the City Manager
2. Term of Agreement. This Agreement shall take effect July 19, 2022, and shall continue until June 30, 2025. ("Term"), unless earlier terminated pursuant to the provisions herein.
The City shall have the option to extend the terms of this Agreement for up to an additional three (3) years, subject to the same terms and conditions contained herein, by giving Consultant written notice of the exercise of this option at least thirty (30) days prior to the expiration of the initial Term. In the event the City exercises its option to extend the Term, Consultant's compensation shall be subject to an adjustment upon the effective date of extension as follows:
Any increase in compensation will be negotiated between the City and the Consultant, but in no event shall the increase exceed the amount that the Consumer Price Index ("CPI") for the Los Angeles-Anaheim-Riverside metropolitan area for the month immediately preceding the Adjustment Date (the "Index Month") as reported by the Bureau of Labor Statistics of the United States Department of Labor, has increased over the CPI for the month one year prior to the Index Month.
3. Compensation. City agrees to compensate Contractor for each service which Contractor performs to the satisfaction of City in compliance with the scope of services set forth in Exhibit "A". Payment will be made only after submission of proper invoices in the form specified by City. Total payment to Contractor pursuant to this Agreement shall not exceed forty-five thousand seven hundred eighty dollars ($45,780) over the Term of the agreement, without the prior written consent of the City. The above not to exceed amount shall include all costs, including, but not limited to, all clerical, administrative, overhead, telephone, travel and all related expenses.
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4. Payment.
A. As scheduled services are completed, Contractor shall submit to City an invoice for the services completed, authorized expenses and authorized extra work actually performed or incurred.
B. All such invoices shall state the basis for the amount invoiced, including services completed, the number of hours spent and any extra work performed.
C. City will pay Contractor the amount invoiced the City will pay Contractor the amount properly invoiced within 35 days of receipt.
D. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice.
5. Change Orders. No payment for extra services caused by a change in the scope or complexity of work, or for any other reason, shall be made unless and until such extra services and a price therefore have been previously authorized in writing and approved by the City Manager or his designee as an amendment to this Agreement. The amendment shall set forth the changes of work, extension of time, if any, and adjustment of the fee to be paid by City to Contractor.
6. Priority of Documents. In the event of any inconsistency between the provisions of this Agreement and any attached exhibits, the provisions of this Agreement shall control.
7. Status as Independent Contractor.
A. Contractor is, and shall at all times remain as to City, a wholly independent contractor. Contractor shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent, except as specifically provided herein.
Neither City nor any of its agents shall have control over the conduct of Contractor or any of Contractor's employees, except as set forth in this Agreement. Contractor shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner employees of City.
B. Contractor agrees to pay all required taxes on amounts paid to Contractor under this Agreement, and to indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. In the event that City is audited by any Federal or State agency regarding the independent contractor status of Contractor and the audit in any way fails to sustain the validity of a wholly independent contractor relationship between City and Contractor, then Contractor agrees to reimburse City for all costs, including accounting and attorney's fees, arising out of such audit and any appeals relating thereto.
C. Contractor shall fully comply with Workers' Compensation laws regarding Contractor and Contractor's employees. Contractor further agrees to indemnify and hold City harmless from any failure of Contractor to comply with applicable Worker's Compensation laws.
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D. Contractor shall, at Contractor’s sole cost and expense fully secure and comply with all federal, state and local governmental permit or licensing requirements, including but not limited to the City of Diamond Bar, South Coast Air Quality Management District, and California Air Resources Board.
E. In addition to any other remedies it may have, City shall have the right to offset against the amount of any fees due to Contractor under this Agreement any amount due to City from Contractor as a result of Contractor's failure to promptly pay to City any reimbursement or indemnification required by this Agreement or for any amount or penalty levied against the City for Contractor’s failure to comply with this Section.
8. Standard of Performance. Contractor shall perform all work at the standard of care and skill ordinarily exercised by members of the profession under similar conditions and represents that it and any subcontractors it may engage, possess any and all licenses which are required to perform the work contemplated by this Agreement and shall maintain all appropriate licenses during the performance of the work.
9. Indemnification.
Contractor shall indemnify, defend with counsel approved by City, and hold harmless City, its officers, officials, employees and volunteers ("Indemnitees") from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys' fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with:
(1) Any and all claims under Worker’s Compensation acts and other employee benefit acts with respect to Contractor’s employees or Contractor’s contractor’s employees arising out of Contractor’s work under this Agreement; and (2) Any and all claims arising out of Contractor's performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, regardless of City’s passive negligence, but excepting such loss or damage which is caused by the sole active negligence or willful misconduct of the City. Should City in its sole discretion find Contractor’s legal counsel unacceptable, then Contractor shall reimburse the City its costs of defense, including without limitation reasonable attorneys' fees, expert fees and all other costs and fees of litigation. The Contractor shall promptly pay any final judgment rendered against the Indemnitees. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement. Except for the Indemnitees, this Agreement shall not be construed to extend to any third-party indemnification rights of any kind.
10. Insurance.
A. Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, with an insurance company authorized to do business in the State of California and approved by the City the following insurance:
(1) a policy or policies of broad-form comprehensive general liability insurance written on an occurrence basis with minimum limits of $1,000,000.00 combined single 1292536.1
limit coverage against any injury, death, loss or damage as a result of wrongful or negligent acts by Contractor, its officers, employees, agents, and independent contractors in performance of services under this Agreement; (2) property damage insurance with a minimum limit of $500,000.00 per occurrence;
(3) automotive liability insurance written on an occurrence basis covering all owned, non-owned and hired automobiles, with minimum combined single limits coverage of $1,000,000.00; and
(4) Worker's Compensation insurance when required by law, with a minimum limit of $500,000.00 or the amount required by law, whichever is greater.
B. The City, its officers, employees, agents, and volunteers shall be named as additional insureds on the policies as to comprehensive general liability, property damage, and automotive liability. The policies as to comprehensive general liability, property damage, and automobile liability shall provide that they are primary, and that any insurance maintained by the City shall be excess insurance only.
C. All insurance policies shall provide that the insurance coverage shall not be nonrenewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the insurance carrier giving City at least ten (10) day's prior written notice thereof. Contractor agrees that it will not cancel, reduce or otherwise modify the insurance coverage and in the event of any of the same by the insurer to immediately notify the City.
D. All policies of insurance shall cover the obligations of Contractor pursuant to the terms of this Agreement and shall be issued by an insurance company which is authorized to do business in the State of California or which is approved in writing by the City; and shall be placed have a current A.M. Best's rating of no less than A-, VII.
E. Contractor shall submit to City (1) insurance certificates indicating compliance with the minimum insurance requirements above, and (2) insurance policy endorsements or a copy of the insurance policy evidencing the additional insured requirements in this Agreement, in a form acceptable to the City.
F. Self-Insured Retention/Deductibles. All policies required by this Agreement shall allow City, as additional insured, to satisfy the self-insured retention (“SIR”) and/or deductible of the policy in lieu of the Contractor (as the named insured) should Contractor fail to pay the SIR or deductible requirements. The amount of the SIR or deductible shall be subject to the approval of the City. Contractor understands and agrees that satisfaction of this requirement is an express condition precedent to the effectiveness of this Agreement. Failure by Contractor as primary insured to pay its SIR or deductible constitutes a material breach of this Agreement.
Should City pay the SIR or deductible on Contractor’s due to such failure in order to secure defense and indemnification as an additional insured under the policy, City may include such amounts as damages in any action against Contractor for breach of this Agreement in addition to any other damages incurred by City due to the breach. 1292536.1
G. Subrogation. With respect to any Workers' Compensation Insurance or Employer's Liability Insurance, the insurer shall waive all rights of subrogation and contribution it may have against the Indemnitees.
H. Failure to Maintain Insurance. If Contractor fails to keep the insurance required under this Agreement in full force and effect, City may take out the necessary insurance and any premiums paid, plus 10% administrative overhead, shall be paid by Contractor, which amounts may be deducted from any payments due Contractor.
I. Contractor shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor to the City for review and approval. All insurance for subcontractors shall be subject to all of the requirements stated herein.
11. Confidentiality. Contractor in the course of its duties may have access to confidential data of City, private individuals, or employees of the City. Contractor covenants that all data, documents, discussion, or other information developed or received by Contractor or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Contractor without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Contractor's covenant under this section shall survive the termination of this Agreement. Notwithstanding the foregoing, to the extent Contractor prepares reports of a proprietary nature specifically for and in connection with certain projects, the City shall not, except with Contractor's prior written consent, use the same for other unrelated projects.
12. Maintenance and Inspection of Records. In accordance with generally accepted accounting principles, Contractor and its subcontractors shall maintain reasonably full and complete books, documents, papers, accounting records, and other information (collectively, the “records”) pertaining to the costs of and completion of services performed under this Agreement. The City and any of their authorized representatives shall have access to and the right to audit and reproduce any of Contractor's records regarding the services provided under this Agreement. Contractor shall maintain all such records for a period of at least three (3) years after termination or completion of this Agreement. Contractor agrees to make available all such records for inspection or audit at its offices during normal business hours and upon three (3) days' notice from the City, and copies thereof shall be furnished if requested.
13. Conflict of Interest.
A. Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Contractor under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Contractor further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Contractor shall avoid the appearance of having any interest which would conflict in any manner with the performance of its services pursuant to this Agreement.
B. Contractor covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City as a result of the 1292536.1
performance of this Agreement. Contractor's covenant under this section shall survive the termination of this Agreement.
14. Termination. The City may terminate this Agreement with or without cause upon thirty (30) days' written notice to Contractor. The effective date of termination shall be upon the date specified in the notice of termination, or, in the event no date is specified, upon the thirtieth (30th) day following delivery of the notice. In the event of such termination, City agrees to pay Contractor for services satisfactorily rendered prior to the effective date of termination. Immediately upon receiving written notice of termination, Contractor shall discontinue performing services, unless the notice provides otherwise, except those services reasonably necessary to effectuate the termination. The City shall be not liable for any claim of lost profits.
15. Personnel. Contractor represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by Contractor or under it supervision, and all personnel engaged in the work shall be qualified to perform such services. Contractor reserves the right to determine the assignment of its own employees to the performance of Contractor's services under this Agreement, but City reserves the right, for good cause, to require Contractor to exclude any employee from performing services on City's premises.
16. Prevailing Wage. Notice is hereby given that in accordance with the provisions of California Labor Code, Division 2, Part 7, Chapter 1, Articles 1 and 2, the Contractor is required to pay not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public works is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work. In that regard, the Director of the Department of Industrial Relations of the State of California is required to and has determined such general prevailing rates of per diem wages. Copies of such prevailing rates of per diem wages are on file in the Office of the City Clerk of the City of Diamond Bar, 21810 Copley Drive, Diamond Bar, California, and are available to any interested party on request.
City also shall cause a copy of such determinations to be posted at the job site.
The Contractor shall forfeit, as penalty to City, not more than twenty-five dollars ($25.00) for each laborer, workman or mechanic employed for each calendar day or portion thereof, if such laborer, workman or mechanic is paid less than the general prevailing rate of wages hereinbefore stipulated for any work done under this Agreement, by him or by any subcontractor under him.
The CONTRACTOR and any of its subcontractors must be registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5, which precludes the award of a contract for a public work on any public works project awarded after April 1, 2015. This Agreement is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
17. Non-Discrimination and Equal Employment Opportunity.
A. Contractor shall not discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation, in the performance of its services and duties pursuant to this Agreement, and will comply with all rules and regulations of City relating thereto. Such nondiscrimination shall 1292536.1
include but not be limited to the following: employment, upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
B. Contractor will, in all solicitations or advertisements for employees placed by or on behalf of Contractor state either that it is an equal opportunity employer or that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.
C. Contractor will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement except contracts or subcontracts for standard commercial supplies or raw materials.
18. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall do all things necessary and incidental to the prosecution of Contractor's work. 19 Delays and Extensions of Time. Contractor's sole remedy for delays outside its control shall be an extension of time. No matter what the cause of the delay, Contractor must document any delay and request an extension of time in writing at the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the length of the delay outside Contractor’s control. If Contractor believes that delays caused by the City will cause it to incur additional costs, it must specify, in writing, why the delay has caused additional costs to be incurred and the exact amount of such cost within 10 days of the time the delay occurs.
No additional costs can be paid that exceed the not to exceed amount absent a written amendment to this Agreement. In no event shall the Contractor be entitled to any claim for lost profits due to any delay, whether caused by the City or due to some other cause.
20. Assignment. Contractor shall not assign or transfer any interest in this Agreement nor the performance of any of Contractor's obligations hereunder, without the prior written consent of City, and any attempt by Contractor to so assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect.
21. Compliance with Laws. Contractor shall comply with all applicable laws, ordinances, codes and regulations of the federal, state, and local governments.
22. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Contractor constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.
23. Mediation. Any dispute or controversy arising under this Agreement, or in connection with any of the terms and conditions hereof, which cannot be resolved by the parties, may be referred by the parties hereto for mediation. A third party, neutral mediation service shall be selected, as agreed upon by the parties and the costs and expenses thereof shall be borne equally by the parties hereto. The parties agree to utilize their good faith efforts to resolve any such dispute or controversy so submitted to mediation. It is specifically 1292536.1
understood and agreed by the parties hereto that mutual good faith efforts to resolve the same any dispute or controversy as provided herein, shall be a condition precedent to the institution of any action or proceeding, whether at law or in equity with respect to any such dispute or controversy.
24. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during regular business hours or by facsimile before or during regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. “CONTRACTOR” “CITY”
EcoFert, Inc. City of Diamond Bar
1237 Wright St. 21810 Copley Drive
Santa Ana, CA 92705 Diamond Bar, CA 91765-4178
Attn.: Lou Franson Attn.: Jason Williams
Phone: 949.766.5800 Phone: 909.839.7059
E-Mail: [email protected] E-mail: [email protected]
25. Governing Law. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of California.
26. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument.
27. Entire Agreement. This Agreement, and any other documents incorporated herein by reference, represent the entire and integrated agreement between Contractor and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement.
Amendments on behalf of the City will only be valid if signed by a person duly authorized to do so under the City's Purchasing Ordinance.
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*NOTE: If Contractor is a corporation, the City requires the following signature(s):
-- (1) the Chairman of the Board, the President or a Vice-President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR
-- The corporate officer named in a corporate resolution as authorized to enter into this Agreement.
A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to the City.
EcoFert, Inc.
ORGANIC BASED LANDSCAPE SOLUTIONS
1237 S. Wright St., Santa Ana, Ca. 92705
www.ecofert.org
(714) 248-7006
ECOFERT PROGRAM – SPECIFICATIONS
Site Analysis – EcoFert personnel will thoroughly walk a site and obtain client information regarding maintenance, usage and watering schedule.
EcoFert will take pictures of the landscapes, and will make note of any property conditions that needs special attention.
Soil Test – Soil samples will be taken from the landscapes and sent to an independent lab for testing. The soil test results will help EcoFert to develop the most effective solution for treating the subject landscape.
Irrigation System Review – EcoFert will inspect the existing irrigation system to determine the type and condition. As the proper running of the irrigation system is vital to the success of the Program, EcoFert personnel will make note of any negative conditions or issues that will potentially affect the operation of the fertigation system to be installed by EcoFert and make recommendations to the client.
Install Preparation – Using the information gained from the property analysis, EcoFert designs the most effective type of injection system.
Locate point(s) of connection – The injection system is installed at the points of connection.
CAMINO REAL PARK, TUSTIN
EcoFert, Inc.
ORGANIC BASED LANDSCAPE SOLUTIONS
1237 S. Wright St., Santa Ana, Ca. 92705
www.ecofert.org
(714) 248-7006
Determine Power Source – There must be a 110 volt line into a junction box within 5 feet of the point of connection.
Type of Injection System – The proper injector and related hardware is based on a number of factors, including the condition of the irrigation system, type of water, and the size and use of the property.
Size of Holding Tank – Determined by the amount of the
amendments expected to be applied to the landscape.
Soil Amendments – The choice of soil amendments is primarily based upon the soil analysis, the type of landscape, use of property and climatic conditions.
Soil Needs – The results of the soil test(s) will largely determine the particular amendments that will be needed to achieve healthy, sustainable soils.
Type of Landscape – The types of grass and mix of grass to plants/shrubs will have a large affect on what types of amendments will be applied.
Property Use – A high use sports field, most particularly for football, soccer, lacrosse and other cleated sports activities, will require a different amount and type of soil amendments than a casual use park.
Type of Water – There are three types of water used for landscapes – potable, reclaimed and well. Reclaimed water has much higher negative effects on landscapes, which can be addressed by a special protocol of EcoFert amendments.
System Installation- The Ecofert team provides all installation materials, labor and hardware. The installation is coordinated with the client to assure the most effective start of the Program. Depending on the complexity of the connection and the type of equipment needed, the installation can take anywhere from a few hours to two days to complete.
EcoFert, Inc.
ORGANIC BASED LANDSCAPE SOLUTIONS
1237 S. Wright St., Santa Ana, Ca. 92705
www.ecofert.org
(714) 248-7006
Equipment – EcoFert provides all of the specialized equipment necessary for the installation. This typically includes an injector, tank, and equipment needed to connect with the irrigation system.
Labor – EcoFert utilizes specially trained personnel, who are able to install a properly operating fertigation system.
Electrical – There are a wide variety of electrical needs associated with the proper operation of the injector system. If there is a 110 volt electrical power to within 5 feet of the point of connection, EcoFert will provide all of the necessary electrical hook up. Otherwise, EcoFert will advise a client as to necessary steps for sufficient power to the point of connection.
Test at Conclusion – EcoFert will test the injection system at the conclusion of the installation to assure proper operation.
Clean Up – EcoFert will clean up the site to the condition existing prior to the installation.
Life of Program Guaranty – EcoFert will assure the proper operation of the injector system during the full time that the Program is in place for the subject property. This includes repair or replacement of all hardware, as well as associated labor costs.
Property Service – EcoFert trained personnel service the property at least once a month during the months that the irrigation system is operating.
Monthly Amendment Supply – EcoFert will provide the appropriate amount of soil amendments.
Monthly System Review – In addition to determining whether the amendments are properly being applied to the property. EcoFert will visually inspect the injector system to determine whether there are any malfunctions or irregularities.
EcoFert, Inc.
ORGANIC BASED LANDSCAPE SOLUTIONS
1237 S. Wright St., Santa Ana, Ca. 92705
www.ecofert.org
(714) 248-7006
Annual Soil Test – At least once a year, EcoFert will take a soils sample for testing by a qualified third party lab. The results of the soil test will be shared with the client and used to adjust the protocol of soil amendments.
Annual Program Review – In conjunction with the annual soil test, EcoFert will schedule an on-site property review with the client. The purpose of the review is to determine whether the desired results of the Program have been achieved, and to further determine as to whether there have been any changes in use or condition of the property.
Contact EcoFert for a complimentary landscape assessment and soil analysis
EL TORO CEMETERY