MAINTENANCE SERVICES AGREEMENT
[Maintenance Services for City Fountains (RFB 21-22.16)]
THIS MAINTENA NCE SERVICES AGREEMENT (the “Agreement”) is made at Orange, California, on this _____ day of ______________________, 2022 by and between the CITY OF ORANGE, a mun icipal corporation (“City”) and CALIFORNIA WATERS DEVELOPMENT, INC., a California corporation, doing business as CALIFORNIA WATERS (“Contractor”), who agree as follows.
1. Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to the reasonable satisfaction of City the services set forth in Exhibit “A ,” which is attached hereto and incorporated herein by this reference. As a material inducement to City to enter into this Agreement, Contractor represents and warrants that it has thoroughly investigated and considered the scope of services and fully under stands the difficulties and restrictions in performing the work. Contractor represents that it is experienced in performing the work and will follow the highest professional standards in performance of the work. All services provided shall conform to all federal, state and local laws, rules and regulations and to the best professional standards and practices.
The terms and conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A" to the contrary.
Nathan Bluhm, Senior Project Landscape Coordinator (“City’s Project Manager”), shall be the person to whom Contractor will report for the performance of services hereunder. It is understood that Contractor’s performance hereunder shall be under the supervision of City’s Project Manager (or designee), that Contractor shall coordinate its services hereunder with City’s Project Manager to the extent required by City’s Project Manager, and that all performances required hereunder by Contractor shall be performed to the satisfaction of City’s Project Manager and the City Manager.
2. Total Compensation, Annual Compensation and Fee Schedule.
a. Contractor’s total compensation for all services performed under this Agreement, shall not exceed SEVENTY-SIX THOUSAND FIVE HUNDRED TEN DOLLARS and 80/100 ($76,510.80) without the prior written authorization of City.
b. The compensation for services performed under this Agreement shall be paid as specified in Exhibit “B.”
c. The above fee shall include all costs, including, but not limited to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto and equipment rental, and all related expenses.
2 3. 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 invoice s 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 within thirty (30) days after the approval of the invoice.
d. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice.
4. 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 therefor have been previously authorized in writing and approved by City as an amendment to this Agreement. City’s Project Manager is authorized to direct a reduction in services to be performed and compensation therefore. The amendment shall set forth the changes of wo rk, extension of time , and adjustment of the compensation to be paid by City to Contractor.
5. Licenses. Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state or federal law to pe rform the work contemplated by this Agreement and that Contractor and its subcontractors shall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Agreement.
6. Independent Contractor. At all times during the term of this Agreement, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar as the result of Contractor's services rendered pursuant to this Ag reement.
City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be requir ed for furnishing services pursuant to this Agreement.
Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security, withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever. Contractor acknowledges that it and any subcontractors, agents or employees employed by Contractor shall not, under an y circumstances, be considered employees of City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System be nefits, or health, life, dental, long -term disability or workers' compensation insurance benefits.
3 7. Contractor Not Agent. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent.
Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever.
8. Designated Persons. Except as otherwise authorized by City’s Project Manager, only the employees of Contractor shall perform work provided for under this Agreement. It is understood by the parties that clerical and other nonprofessional work may be performed by persons other than those designated.
9. Assignment or Subcontracting . No assignment or subcontracting by Co ntractor of any part of this Agreement or of funds to be received under this Agreement shall be of any force or effect unless the assignment has had the prior written approval of City. City may terminate this Agreement rather than accept any proposed assi gnment or subcontracting. Such assignment or subcontracting may be approved by the City Manager or his/her designee.
10. Term. The term of this Agreement shall be FOUR (4) years, commencing on March 1, 2022, and ending on February 28, 2026.
11. Time Is of the Essence . Time is of the essence in this Agreement. Con tractor shall do all things necessary and incidental to the prosecution of Contractor's work.
12. Reserved.
13. Delays and Extensions of Time. Contractor's sole remedy for delays outsid e its control, other than those delays caused by City, 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 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 at the time the delay occurs. No additional costs can be paid that exceed the not to exceed amount stated in Section 2.a, above, absent a written amendment to this Agreement.
14. Products of Contractor. The documents, studies, evaluations, assessments, reports, plans, citations, materials, manuals, technical data, logs, files, designs and other products produced or provided by Contractor for this Agreement shall become the property of City upon receipt. Contractor shall deliver all such products to City prior to payment for same. City may use, reuse or otherwise utilize such products without restriction.
15. Equal Employment Opportunity . During the performance of this Agreement, Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. Contractor s hall ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex,
4 national origin, mental or physical disability, or any other basis prohibited by applicable law. Such actions s hall include, but n ot be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration f or employment without regard to race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
c. Contractor shall cause the foregoing paragraphs (a) and (b) to be inserted in all subcontracts for any work covered by this Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.
16. Conflicts of Interest . Contractor agrees that it shall not make, participate in the making, or in any way attempt to use its position as a contractor to influence any decision of City in which Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code.
17. Indemnity.
a. To the fullest extent permitted by law, Contractor agrees to indemnify, defend and hold City, its City Counci l and each member thereof, and the officers, officials, agents and employees of City (collectively the “Indemnitees”) entirely harmless from all liability arising out of:
(1) Any and all cl aims under worker s’ compensation acts and other employee benefit acts with respect to Contractor’s employees or its subcontractor’s employees arising out of Contractor’s work under this Agreement, including any and all claims under any law pertaining to Contractor or its employees’ status as an independent contractor and any and all claims under Labor Code section 1720 related to the payment of prevailing wages for public works projects; and
(2) Any claim, loss, injury to or death of persons or damage to property caused by any act, neglect, default, or omission other than a professional act or omission of Contractor, or person, firm or corporation employed by Contractor, either directly or by independent contract, including all damages due to loss or theft sustained by any person, firm or corporation including the Indemnitees, or any of them, arising out of, or in any way connected with the work or services which are the subject of this Agreement, including injury or damage either on or off City’s property; but not for any loss, injury, death or damage caused by the ac tive negligence or willful misconduct of City.
Contractor, at its own expense, cost and risk, shall indemnify any and all claims, actions, suits or other proceedings that may be brought or instituted against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay or satisfy any judgment that may be rendered against the Indemnitees, or any of them, in any action, suit or other proceedings as a result of coverage under this subparagraph.
5 b. Reserved.
c. Except for the Ind emnitees, the indemnifications provided in this Agreement shall not be construed to extend any third party indemnification rights of any kind to any person or entity which is not a signatory to this Agreement.
d. The indemnities set forth in this section shall survive any closing, rescission, or termination of this Agreement, and shall continue to be binding and in full force and effect in perpetuity with respect to Contractor and its successors.
18. Insurance.
a. Contractor shall carry workers’ compensation insurance as required by law for the protection of its employees during the progress of the work. Contractor understands that it is an independent contractor and not entitled to any workers’ compensation benefits under any City program.
b. Contractor shall maintain during the life of this Agreement the following minimum amount of comprehensive general liability insurance or commercial general liability insurance: the greater of (1) Two Million Dollars ($2,000,000) per occurrence; or (2) all the insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover bodily injury, death and property damage and be written on an occurrence basis.
c. Contractor shall maintain during the life of this Agree ment, the following minimum amount of automotive liability insurance: the greater of (1) a combined single limit of One Million Dollars ($1,000,000); or (2) all the insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover bodily injury, death and property damage for all owned, non - owned and hired vehicles and be written on an occurrence basis.
d. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of Contractor under this Agreement.
e. Each policy of general liability and automotive liability shall provide that City, its officers, officials, agents, and employees are declared to be additional insureds under the terms of the policy, but only with respect to the work performed by Contractor under this Agreement. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional insured as a contracting party. The minimum coverage required by Subsection 18.b and c, above, shall apply to City as an additional insured. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth herein shall be maintained for the duration of the Agreement.
6 f. Reserved.
g. The insurance policies maintained by Contractor shall be primary insurance and no insurance held or owned by City shall be called upon to cover any loss under the policy. Contractor will determine its own needs in procurement of insurance to cover liabilities other than as stated above.
h. Before Contractor performs any work or prepares or delivers any materials, Contractor shall furnish certificates of insurance and endorsements, as required by City, evidencing the aforementioned minimum insurance coverages on forms acceptable to City, which shall provide that the insurance in force will not be canceled or allowed to lapse without at least ten (10) days’ prior written notice to City.
i. All insurance maintained by Contractor shall be issued by companies admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide.
j. Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Agreement unless otherwise directed by City. In such a case, City may procure insurance or self -insure the risk and charge Contractor for such costs and any and all damages resulting therefrom, by way of set-off from any sums owed Contractor.
k. Contractor agrees that in the event of loss due t o any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such insurance.
l. Contractor shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor to City for review and approval. All coverages for subcontractors shall be subject to all of the requirements stated herein.
19. Termination. City may for any reason terminate this Agreement by giving Contractor not less than five (5) days ’ written notice of intent to terminate. Upon receipt of such notice, Contractor shall immediately cease work, unless the notice from City provides otherwise. Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with this Agreement, unless termination by City shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits.
20. 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. City and its 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) ye ars after termination or completion of this Agreement.
7 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 City, and copies thereof shall be furnishe d if requested.
21. Compliance with Laws/Background.
a. Contractor shall be knowledgeable of and comply with all local, state and federal laws which may apply to the performance of this Agreement.
b. The work provided for in this Agreement constitutes a “public works,” as that term is defined in Section 1720 of the California Labor Code, for which prevailing wages must be paid, t o the extent Contractor’s employees will perform any work that falls withi n any of the classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it, shall pay not less than the specified prevailing rates of wages to all such workers and shall comply with all statutory requirements thereunder . Statutory provisions for penalties for failure to comply with prevailing wage laws will be enforced. The general prevailing wage determinations for c rafts can be located on the web site of the Department of Industrial Relations (www.dir.ca.gov/DLSR).
Additionally, to perform work under this Contract, Contractor must meet all State registration requirements and criteria, including project compliance monitoring.
c. Contractor represents and warrants that it:
(1) Has complied and shall at all times during the term of this Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders, including, without limitation, the Immigration Reform and Control Act of 1986 (IRCA); and
(2) Has not and will not knowingly employ any individual to perform services under this Agreement who is ineligible to work in the United States or under the terms of this Agreement; and
(3) Has properly maintained, and shall at all times during t he term of this Agreement properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I-9 for each of Contractor’s employees; and
(4) Has responded, and shall at all times during the term of this Agreement respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration.
d. Contractor shall, upon request of City, provide a list of all employees working under this Agreement and shall provide, to the reasonable satisfaction of City, verification that all such employees are eligible to work in the United States. All costs associated with such verification shall be borne by Contractor. Once such request has been made, Contractor may not change employees working under this Agreement without written notice to City, accompanied by the verification required herein for such employees.
8 e. Contractor shall require all subcontractors to make the same representations and warranties as set forth herein.
f. If Contractor or subcontractor knowingly employs an employee providing work under this Agreement who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee, that shall constitute a material breach of this Agreement and may be cause for immediate termination of this Agreement by City.
g. All personnel performing any services to City under this Contract shall possess sufficient experience and security records to perform the work at public facilities. Contractor shall conduct and complete, to City’s satisfaction, sufficient background checks to ensure no personnel performing services under this Contract is listed on the National Sex Offender Public Registry (“NSOPR”). Contractor shall monitor personnel security records to ensure no existing or new employees performing services under this Contract are added to the NSOPR or convicted of any crimes that would disqualify them from adhering to conduct conducive to public safety.
h. All costs associated with the documentat ion and verification required herein shall be borne by Contractor. Contractor shall require all subcontractors to provide the same documentation and verification when hired to perform services under this Contract. City has the right, in its sole and absolute discretion, to reject any employee of Contractor assigned to perform services for City, with or without cause, at the time of such assignment or at any time thereafter, and Contractor shall remove that employee from providing services to City to the e xtent permitted by law and any applicable collective bargaining agreement. City’s rights under this Article shall not be exercised in an arbitrary or capricious manner, or with the intent of forcing a termination of this Contract
i. Contractor agrees to indemnify and hold City, its officials, and employees harmless for, of and from any loss, including but not limited to fines, penalties and corrective measures, City may sustain by reason of Contractor's failure to comply with said laws, rules and regulations in connection with the performance of this Agreement.
22. Governing Law and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California and Contractor agrees to submit to the jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in Orange County, California.
23. Integration. This Agreement constitutes the entire agreement of the parties. No other agreement, oral or written, pertaining to the work t o be performed under this Agreement shall be of any force or effect unless it is in writing and signed by both parties. Any work performed which is inconsistent with or in violation of the provisions of this Agreement shall not be compensated.
24. Notice. Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally, by e-mail, or by first class mail, postage prepaid, to each party at the address listed below. Either party may change the not ice address by notifying the other party in writing. Notices shall be deemed received upon receipt of same or within 3 days of deposit
9 in the U.S. Mail, whichever is earlier. Notices sent by e-mail shall be deemed received on the date of the e-mail transmission.
“CONTRACTOR” “CITY”
California Waters Development, Inc. dba City of Orange California Waters 300 E. Chapman Avenue
23311 E. La Palma Ave. Orange, CA 92866-1591
Yorba Linda, CA 92887
Attn.: Jeff Barman Attn.: Nathan Bluhm, Senior Project Landscape Coordinator
Telephone: 949-528-0900 Telephone: 714-532-6491
E-Mail: [email protected] E-Mail: [email protected]
25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimi le and electronic mail shall have the same effect as original signatures.
[Remainder of page intentionally left blank; signatures on next page]
10 IN WITNESS of this Agreement, the parties have entered into this Agreement as of the year and day first above written.
“CONTRACTOR” “CITY”
CALIFORNIA WATERS DEVELOPMENT, CITY OF ORANGE, a municipal corporation INC. a California corporation, doing business
as CALIFORNIA WATERS
*By: By:
Printed Name: Mark A. Murphy, Mayor
Title:
*By: ATTEST:
Printed Name:
Title:
Pamela Coleman, City Clerk
APPROVED AS TO FORM:
Mary Binning, Senior Assistant City Attorney
*NOTE: The City requires the following signature(s) on behalf of the Contractor:
-- (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.
EXHIBIT “A”
SCOPE OF SERVICES
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Exhibit A
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EXHIBIT “B”
COMPENSATION FOR SERVICES
[Beneath this sheet.]
Compensation for CALIFORNIA WATER DEVELOPMENT, INC., dba
CALIFORNIA WATERS
Fountain Maintenance Services for City Fountains
4-year Term
March 1, 2022 to February 28, 2026
Base Bid Contingency
(20%)
Total Not
to Exceed
Year 1: 3/2022 through 2/2023 $15,240 $3,048 Up to $18,288 Year 2: 3/2023 through 2/2024 $15,697 $3,139.40 Up to $18,836.40 Year 3: 3/2024 through 2/2025 $16,168 $3,233.60 Up to $19,401.60 Year 4: 3/2025 through 2/2026 $16,654 $3,330.80 Up to $19,984.80 4-year Total $63,759 $12,751.80 Up to $75,510.80
Exhibit B