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HomeMy WebLinkAboutA6211 - COACHELLA VALLEY MESQUITO & VECTOR CONTROL DISTRICTAMENDMENT NO. 2 TO MANAGEMENT AGREEMENT THIS AMENDMENT NO. 2 TO MANAGEMENT AGREEMENT ("Amendment") is made and entered into this 1st day of March, 2012 by and between the City of Palm Springs, a California charter city ("City") and CGPM Managers, LLC ('°,Manager"). RECITALS A. City and Manager entered into a Management Agreement for the purpose of managing the Legends and Resort Golf Courses on October 29, 2008. B. Amendment No. 1 to the Management Agreement, dated June 9, 2010, extended the term of the Management Agreement until June 30, 2012. Amendment No. 1 also provides that the term of the Agreement is automatically renewed on a monthly basis after June 30, 2012 unless or until either the City or the Manager provides at least 30 days written notice to the other party. C. The City and the Coachella Valley Mosquito and Vector Control District VCD") have entered into an agreement for the provision of golf course treatment for red imported fire ants ("RIFA Treatment Agreement"). The RIFA Treatment Agreement imposes certain obligations and responsibilities on City that the City and the Manager agree should be assumed by the Manager pursuant to the terms of the Management Agreement. Manager recognizes and acknowledges that the provision of the red imported fire ant treatment by VCD under the RIFA Treatment Agreement will provide benefits to Manager and its ability to effectively manage the golf course and perform all of its existing responsibilities under the Management Agreement. D. This Amendment No. 2 assigns the City's obligations and responsibilities under the RIFA Treatment Agreement to the Manager and Manager accepts such assignment. E. Attached hereto as Exhibit F is the RIFA Treatment Agreement and made a part of the Management Agreement by this reference. NOW, THEREFORE, in consideration of the foregoing Recitals and the promises and covenants contained herein below, City and Manager agree as follows: Page 1 of 3 678705.2 AGREEMENT 1. The foregoing Recitals are true and correct. 2. The City hereby assigns to Manager all rights, interests, obligations, responsibilities, and duties of City under the RIFA Treatment Agreement. Manager accepts the assignment of all of City's rights, interests, obligations, responsibilities, and duties under the RIFA Treatment Agreement. 3. Except as expressly provided above, all other terms and conditions of the Management Agreement, as amended, shall remain unchanged. APPROVED BY CITY MANCAGER CITY"Jy CITY OF PALM SPRINGS Date: By: David Ready, Ci y Mahager APPROVED TO FORM: ATTEST: By: Do glas Holland James Thompson City Attorney City Clerk c5lo4 ZCiy MANAGER" CGPM MANAGERS, LLC Date: 3 _ a— By: Name: Title: Page 2 of 3 678705.2 Exhibit F Golf Course RIFA Treatment Agreement Page 3 of 3 678705.2 l+.-a, u Coadidia Valley 43-420 Trader Place Phone:(760)342-8287 Mosquito and Vector Indio,CA 92201 Fax:(760)342-8110 Control District MAR ® 1 2012 This Agreement is entered into onlV 2012, by and between the Coachella Valley Mosquito and Vector Control District, an independent special district operating under the Mosquito Abatement and Vector Control District Law (California Health and Safety Code §§ 2000 et seq.) (the "District") and California(the "Owner"). EygPfik 5A+)pr, RECITALS WHEREAS, the District has developed and implemented a Red Imported Fire Ants (RIFA) control program using control products and equipment proven effective in controlling RIFA in green belt areas within the District's territory; and WHEREAS, in addition to their value in providing a pleasant recreational attraction, golf courses, by their nature create an environment for the attraction and breeding of Red Imported Fire Ants (RIFA); and WHEREAS, Owner desires to engage the services of the District to control RIFA throughout its facility located at 1885 Golf Club Drive, Palm Springs, CA, 92264, as depicted in Exhibit "A" the "Subject Property"), in order to reduce and eliminate the breeding and presence of RIFA. NOW THEREFORE, the parties do hereby agree as follows: 1. Recitals Incorporated. The Recitals set forth above are hereby incorporated into this Agreement by this reference as though fully set forth herein. 2. Entry Authorized Owner hereby authorizes the District to enter onto the Subject Property for the purpose of controlling RIFA as provided under this Agreement. 3. District's Obligations a.The District shall utilize its personnel to provide for the control of RIFA in areas determined by the District to be appropriate and necessary to control RIFA throughout the Subject Property. 1 b. The District will utilize Advion, an insecticide containing Indoxacarb, and Distance, an insect growth regulator containing pyriproxyfen (collectively, Pesticides"). The Pesticides meet the criteria of Toxicity Category III and bear the precautionary label "caution." C.The District will exercise due care in applying the Pesticides and will utilize its best efforts to reduce and eliminate the breeding and presence of RIFA within and upon the Subject Property. d. In providing such services, the District will utilize its own golf carts equipped with Herd and Maruyapia Back Pack Spreaders to apply the Pesticides within and upon the Subject Property. 4. Owner's Obligations and Acknowledgments a.Owner acknowledges that the Pesticides are water soluble baits that must be collected by the ants to be effective. The ants must be provided sufficient time in which to forage and retrieve the bait. b. To ensure the effectiveness of the treatment, Owner agrees to the following: 1) To ensure that the grass will not be wet from irrigation on the day of treatment, to turn off all irrigation on the Subject Property no later than 9:00 P.M. the evening prior to the treatment date during the months of November through February, and to turn off all irrigation at 12:00 A.M. the day of the treatment during the months of March through October; throughout the calendar year, the irrigation system shall not be turned on after treatment until at least 6:00 P.M. of the day of treatment. 2) Not to mow the grass until 6:00 A.M. of the morning following the date of RIFA control product treatment. 3) The District shall be permitted to place monitoring devices upon the Subject Property in all locations where the Pesticide treatment shall be scheduled, to ensure that Owner shall comply with the irrigation restrictions set forth above. The District's logo and labels containing language such as "Water Monitoring Devices" and "Do Not Remove," shall be affixed to the District's monitoring devices. Owner shall not remove these devices. C.Owner acknowledges that these Pesticides may be harmful if swallowed by humans or animals, and that contact of skin with these Pesticides may cause skin irritation. Owner agrees not to permit people and pets within the treatment area during the application of the Pesticides. d.Owner acknowledges that these Pesticides may cause property damage, including damage to porous and nonporous surfaces. Owner further acknowledges that as 2 the Pesticides are applied, droplets produced by the nozzles of the spray equipment may disperse the Pesticides to sites not intended for Pesticide application ("Spray Drift"), which is a reasonable consequence of the application of the Pesticides. Owner agrees to advise owners of any real property located within or adjacent to the Subject Property to take precautionary measures to protect their property from damage from the Pesticides, including damage from Spray Drift. e.Owner has been advised and acknowledges that the District's ability to effectively reduce and eliminate the breeding and presence of RIFA varies, depending upon circumstances beyond the control of the District. Owner understands and agrees that the District makes no warranty, expressed or implied, concerning the level of control that may be provided under this Agreement but is engaged to use it best efforts to reduce and eliminate the breeding and presence of RIFA within and upon the Subject Property. 5. Compensation; Payment a.Initial Broadcast Application of the RIFA control product,Advion or Extinguish Plus (hereinafter, "product"), Owner agrees to reimburse the District for its cost to apply the product within and upon the Subject Property, if Owner fails to comply with any of the obligations required of Owner under Sub-sections 4b(1), 4b(2), or 4b(3) of this Agreement. The cost to apply product will be billed at the rate 1. Advion - $9.50 per pound, which is applied at the rate of 1.5 pounds per acre($14.25 per acre). 2. Extinguish Plus - $6.44 per pound, which is applied at the rate of 1.5 pounds per acre($9.66 per acre). The District shall invoice Owner for the amount of product applied during treatment. Owner agrees to pay the District the full amount of the invoice within 30 days of receipt of the invoice. b. Follow up Advion treatments. During the term of this Agreement, the District agrees not to charge Owner for subsequent follow up applications of Advion upon the Subject Property provided Owner complies with the terms of this Agreement, including the provisions set forth in section 4 above. In the event Owner does not fully comply with its duties under this Agreement and the treatment is ineffective because of said non-compliance, Owner agrees to pay for the initial broadcast application of Advion under the same terms set forth above. 3 6. Indemnification and Hold Harmless Owner shall indemnify, defend, and hold harmless, the District and its trustees, employees, agents and representatives, against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, accounting fees, expert witness fees, settlement costs and other costs and expenses) directly or indirectly arising from or related to any suits, actions or claims arising from or related to the District's application of the Pesticides, except for any such claim arising out of the sole negligence or willful misconduct of the District, its employees, agents and representatives. This provision shall apply to any claims of property damage resulting from any staining or discoloring of any surfaces located within or adjacent to the Subject Property. Nothing contained in this paragraph is intended to obligate Owner for any worker's compensation claim. 7. Waiver and Release Owner hereby waives, releases and discharges the District and its trustees, employees, agents and representatives from any and all responsibility or liability for injury or damage to people, pets and/or property that may result from the District's application of the Pesticides, including property damage resulting from any staining or discoloring of any surfaces located within or adjacent to the Subject Property. Notwithstanding the provisions of California Civil Code Section 1542, and for the purpose of implementing a full and complete release and discharge of the District, Owner expressly acknowledges that this Waiver and Release provision is intended to include in its effect without limitation all of the claims, causes of action and liabilities which Owner does not know or suspect to exist in its favor at the time of execution of this Agreement and this Waiver and Release provision contemplates extinguishment of all such claims, causes of action and liabilities. In furtherance of the intentions stated in this Waiver and Release provision, Owner expressly waives its rights or benefits under California Civil Code Section 1542, or any equivalent statute. California Civil Code Section 1542 provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY, AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Initials: Owner acknowledges that the foregoing waiver of the proves' 6f Section 11542 of the California Civil Code was bargained for separately. 8. Orientation 4 Owner shall make a rest room facility available to the District's, personnel who are engaged in providing services to the Subject Property pursuant to this Agreement. Owner shall provide orientation to the District employees providing services pursuant to this Agreement, which includes explanation of the physical layout of the Subject Property and entry gate requirements. Owner agrees to provide the District's personnel providing services pursuant to this Agreement with written rules and regulations of the Subject Property. 9. Distinctive Uniforms and Field Service Vehicles The District's technicians will wear a distinctive uniform, identifying them as employees of the District while providing services to the Subject Property pursuant to this Agreement. The District's vehicles utilized in the performance of this Agreement, including golf carts, will be marked with the District's distinctive logo. 10. Term; Yearly Evaluation a.Term. The term of this Agreement shall be two years, commencing on the date indicated above. b. Yearly Evaluation. At least once a year, the Superintendent of the Subject Property, the Chairman of the Owner's subcommittee overseeing the golf course, and a representative from the District shall meet to evaluate the control effectiveness of the services provided hereunder. 11. Contact Personnel The contact person at the District is: Rodney Chamberlain, Supervisor, (760) 342-8287. The contact person for Owner is: I bs /itSpy AS; e.pY Mslugl,E?t 12. General Provisions a.Litigation Expenses and Attorneys Fees. In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorneys fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. b.Entire Agreement; Amendments. This Agreement contains the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings, if any, with respect thereto. This Agreement may not be 5 modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by each party. C.Effectiveness. This Agreement shall not be binding upon the District, until signed by Owner's authorized representative(s), and approved as to form by the District's General Counsel, and executed by the District's General Manager or his or her designee. d. Authority. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the parties each purports to represent. e.Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 6 DISTRICT: OWNER: COACHELLA VALLEY MOSQUITO & VECTOR CONTROL DISTRIeT Branka B. Lo hrop, Ph.D., General G' By. Manager ATTEST:AP p3 TO FORM City MOM Cry 111,16,Garcia, Odrk of the Board 03 J4.H 12—. 0ate APPROVED AS TO FORM: 3 2 C:! Steven . Quinta ' a, eneral Counsel Please mail your signed Agreement form to: Rodney Chamberlain; RIFA Field Supervisor Coachella Valley Mosquito and Vector Control District 43-420 Trader Place Indio, CA 92201 b\1 Coachella Valley 43-420 Trader Place Rhone:(760)342-8287 Mosquito and Vector Indio,CA 92201 Fax:(760)342-8110 Control D6 ict MAR o 1 2012 aMMy,..wWARAMW This Agreement is entered into on/W-4eL404 2012, by and between the Coachella Valley Mosquito and Vector Control District, an independent special district operating under the Mosquito Abatement and Vector Control District Law (California Health and Safety Code §§ 2000 et seq.) (the "District") and California(the "Owner"). Ei a sa .tlrH Sio 1.OS RECITALS WHEREAS, the District has developed and implemented a Red Imported Fire Ants (RIFA) control program using control products and equipment proven effective in controlling RIFA in green belt areas within the District's territory; and WHEREAS, in addition to their value in providing a pleasant recreational attraction, golf courses, by their nature create an environment for the attraction and breeding of Red Imported Fire Ants (RIFA); and WHEREAS, Owner desires to engage the services of the District to control RIFA throughout its facility located at 1885 Golf Club Drive, Palm Springs, CA, 92264, as depicted in Exhibit "A" the "Subject Property"), in order to reduce and eliminate the breeding and presence of RIFA. NOW THEREFORE, the parties do hereby agree as follows: 1. Recitals Incorporated. The Recitals set forth above are hereby incorporated into this Agreement by this reference as though fully set forth herein. 2. Entry Authorized Owner hereby authorizes the District to enter onto the Subject Property for the purpose of controlling RIFA as provided under this Agreement. 3. District's Obligations a.The District shall utilize its personnel to provide for the control of RIFA in areas determined by the District to be appropriate and necessary to control RIFA throughout the Subject Property. t b. The District will utilize Advion, an insecticide containing Indoxacarb, and Distance, an insect growth regulator containing pyriproxyfen (collectively, Pesticides"). The Pesticides meet the criteria of Toxicity Category III and bear the precautionary label "caution." C.The District will exercise due care in applying the Pesticides and will utilize its best efforts to reduce and eliminate the breeding and presence of RIFA within and upon the Subject Property. d.In providing such services, the District will utilize its own golf carts equipped with Herd and Maruyagia Back Pack Spreaders to apply the Pesticides within and upon the Subject Property. 4. Owner's Obligations and Acknowledgments a.Owner acknowledges that the Pesticides are water soluble baits that must be collected by the ants to be effective. The ants must be provided sufficient time in which to forage and retrieve the bait. b. To ensure the effectiveness of the treatment, Owner agrees to the following: 1) To ensure that the grass will not be wet from irrigation on the day of treatment, to turn off all irrigation on the Subject Property no later than 9:00 P.M. the evening prior to the treatment date during the months of November through February, and to turn off all irrigation at 12:00 A.M. the day of the treatment during the months of March through October; throughout the calendar year, the irrigation system shall not be turned on after treatment until at least 6:00 P.M. of the day of treatment. 2) Not to mow the grass until 6:00 A.M. of the morning following the date of RIFA control product treatment. 3) The District shall be permitted to place monitoring devices upon the Subject Property in all locations where the Pesticide treatment shall be scheduled, to ensure that Owner shall comply with the irrigation restrictions set forth above. The District's logo and labels containing language such as "Water Monitoring Devices" and "Do Not Remove," shall be affixed to the District's monitoring devices. Owner shall not remove these devices. C.Owner acknowledges that these Pesticides may be harmful if swallowed by humans or animals, and that contact of skin with these Pesticides may cause skin irritation. Owner agrees not to permit people and pets within the treatment area during the application of the Pesticides. d. Owner acknowledges that these Pesticides may cause property damage, including damage to porous and nonporous surfaces. Owner fiuther acknowledges that as 2 the Pesticides are applied, droplets produced by the nozzles of the spray equipment may disperse the Pesticides to sites not intended for Pesticide application ("Spray Drift"), which is a reasonable consequence of the application of the Pesticides. Owner agrees to advise owners of any real property located within or adjacent to the Subject Property to take precautionary measures to protect their property from damage from the Pesticides, including damage from Spray Drift. e.Owner has been advised and acknowledges that the District's ability to effectively reduce and eliminate the breeding and presence of RIFA varies, depending upon circumstances beyond the control of the District. Owner understands and agrees that the District makes no warranty, expressed or implied, concerning the level of control that may be provided under this Agreement but is engaged to use it best efforts to reduce and eliminate the breeding and presence of RIFA within and upon the Subject Property. 5. Compensation; Payment a.Initial Broadcast Application of the RIFA control product,Advion or Extinguish Plus (hereinafter, "product"), Owner agrees to reimburse the District for its cost to apply the product within and upon the Subject Property, if Owner fails to comply with any of the obligations required of Owner under Sub-sections 4b(1), 4b(2), or 4b(3) of this Agreement. The cost to apply product will be billed at the rate 1. Advion - $9.50 per pound, which is applied at the rate of 1.5 pounds per acre ($14.25 per acre). 2. Extinguish Plus - $6.44 per pound, which is applied at the rate of 1.5 pounds per acre($9.66 per acre). The District shall invoice Owner for the amount of product applied during treatment. Owner agrees to pay the District the full amount of the invoice within 30 days of receipt of the invoice. b. Follow up Advion treatments. During the term of this Agreement, the District agrees not to charge Owner for subsequent follow up applications of Advion upon the Subject Property provided Owner complies with the terms of this Agreement, including the provisions set forth in section 4 above. In the event Owner does not fully comply with its duties under this Agreement and the treatment is ineffective because of said non-compliance, Owner agrees to pay for the initial broadcast application of Advion under the same terns set forth above. 3 6. Indemnification and Hold Harmless Owner shall indemnify, defend, and hold harmless, the District and its trustees, employees, agents and representatives, against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, accounting fees, expert witness fees, settlement costs and other costs and expenses) directly or indirectly arising from or related to any suits, actions or claims arising from or related to the District's application of the Pesticides, except for any such claim arising out of the sole negligence or willful misconduct of the District, its employees, agents and representatives. This provision shall apply to any claims of property damage resulting from any staining or discoloring of any surfaces located within or adjacent to the Subject Property. Nothing contained in this paragraph is intended to obligate Owner for any worker's compensation claim. 7. Waiver and Release Owner hereby waives, releases and discharges the District and its trustees, employees, agents and representatives from any and all responsibility or liability for injury or damage to people, pets and/or property that may result from the District's application of the Pesticides, including property damage resulting from any staining or discoloring of any surfaces located within or adjacent to the Subject Property. Notwithstanding the provisions of California Civil Code Section 1542, and for the purpose of implementing a full and complete release and discharge of the District, Owner expressly acknowledges that this Waiver and Release provision is intended to include in its effect without limitation all of the claims, causes of action and liabilities which Owner does not know or suspect to exist in its favor at the time of execution of this Agreement and this Waiver and Release provision contemplates extinguishment of all such claims, causes of action and liabilities. In furtherance of the intentions stated in this Waiver and Release provision, Owner expressly waives its rights or benefits under California Civil Code Section 1542, or any equivalent statute. California Civil Code Section 1542 provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY, AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Initials: Owner acknowledges that the foregoing waiver of the provisi s St Sect542 of the California Civil Code was bargained for separately. 8. Orientation 4 Owner shall make a rest room facility available to the District's personnel who are engaged in providing services to the Subject Property pursuant to this Agreement. Owner shall provide orientation to the District employees providing services pursuant to this Agreement, which includes explanation of the physical layout of the Subject Property and entry gate requirements. Owner agrees to provide the District's personnel providing services pursuant to this Agreement with written rules and regulations of the Subject Property. 9. Distinctive Uniforms and Held Service Vehicles The District's technicians will wear a distinctive uniform, identifying them as employees of the District while providing services to the Subject Property pursuant to this Agreement. The District's vehicles utilized in the performance of this Agreement, including golf carts, will be marked with the District's distinctive logo. 10. Term; Yearly Evaluation a.Term. The term of this Agreement shall be two years, commencing on the date indicated above. b. Yearly Evaluation. At least once a year, the Superintendent of the Subject Property, the Chairman of the Owner's subcommittee overseeing the golf course, and a representative from the District shall meet to evaluate the control effectiveness of the services provided hereunder. 11. Contact Personnel The contact person at the District is: Rodney Chamberlain, Supervisor, (760) 342-8287. The contact person for Owner is: 14. t oaf 1114&44 &-A, 12. General Provisions a.Litigation Expenses and Attorneys Fees. In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. b.Entire Agreement; Amendments. This Agreement contains the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings, if any, with respect thereto. This Agreement may not be 5 modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by each party. C.Effectiveness. This Agreement shall not be binding upon the District, until signed by Owner's authorized representative(s), and approved as to form by the District's General Counsel, and executed by the District's General Manager or his or her designee. d. Authority. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the parties each purports to represent. e.Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 6 DISTRICT: OWNER: COACHELLA VALLEY MOSQUITO & VECTOR CONTROL DISTRIOT Branka B. Lo hrop, Ph.D., General By. Manager ATTEST: GtY Attmoay ry I D. Garcia, Jerk of the Board O3, 12_ Date APPROVED AS TO FORM: Steven . Quinta - a, eneral Counsel Please mail your signed Agreement form to: Rodney Chamberlain; RIFA Field Supervisor Coachella Valley Mosquito and Vector Control District 43-420 Trader Place Indio, CA 92201