2022-23 Action Park Alliance, Inc - X-Park Operatins & MaintMEMORANDUM
DATE:
TO:
FROM:
RE:
Please list the Contracting Party / Vendor Name, type of agreement to be executed, including any change orders or
amendments, and the type of services to be provided. Make sure to list any related Project No. and Project Name.
Authority to execute this agreement is based upon:
___ Approved by City Council on ___________________________________________
___ City Manager’s signing authority provided under the City’s Purchasing Police
[Resolution No. 2019-021] for budget expenditures of $50,000 or less.
___ Department Director’s or Manager’s signing authority provided under the City’s
Purchasing Policy [Resolution No. 2019-021] for budget expenditures of $15,000 and
$5,000, respectively, or less.
Procurement Method (one must apply):
___ Bid ___ RFP ___ RFQ ___ 3 written informal bids
___ Sole Source ___ Select Source ___ Cooperative Procurement
Requesting department shall check and attach the items below as appropriate:
___ Agreement payment will be charged to Account No.: _____________________
___ Agreement term: Start Date ________________ End Date ________________
___ Amount of Agreement, Amendment, Change Order, etc.: $____________________
REMINDER: Signing authorities listed above are applicable on the aggregate Agreement amount,
not individual Amendments or Change Orders!
___ Insurance certificates as required by the Agreement for Risk Manager approval
Approved by: ______________________________ Date: _______________
___ Bonds (originals) as required by the Agreement (Performance, Payment, etc.)
___ Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s)
NOTE: Review the “Form 700 Disclosure for Consultants” guidance to determine if a Form 700 is
required pursuant FPPC regulation 18701(2)
___ Business License No. __________________; Expires: __________________
___ Requisition for a Purchase Order has been prepared (Agreements over $5,000)
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02/02/2022Monika Radeva
AGREEMENT FOR CONTRACT SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (the “Agreement”) is made
and entered into by and between the CITY OF LA QUINTA, (“City”), a California
municipal corporation, and Action Park Alliance Inc., a California Corporation
(“Contracting Party”). The parties hereto agree as follows:
1.SERVICES OF CONTRACTING PARTY.
1.1Scope of Services. In compliance with all terms and conditions of
this Agreement, Contracting Party shall provide those services related X Park
management and maintenance services, as specified in the “Scope of
Services” attached hereto as “Exhibit A” and incorporated herein by this
reference (the “Services”). Contracting Party represents and warrants that
Contracting Party is a provider of first-class work and/or services and
Contracting Party is experienced in performing the Services contemplated
herein and, in light of such status and experience, Contracting Party covenants
that it shall follow industry standards in performing the Services required
hereunder, and that all materials, if any, will be of good quality, fit for the
purpose intended. For purposes of this Agreement, the phrase “industry
standards” shall mean those standards of practice recognized by one or more
first-class firms performing similar services under similar circumstances.
1.2Compliance with Law. All Services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules,
regulations, and laws of the City and any Federal, State, or local governmental
agency of competent jurisdiction.
1.3Wage and Hour Compliance, Contracting Party shall comply with
applicable Federal, State, and local wage and hour laws.
1.4Licenses, Permits, Fees and Assessments. Except as otherwise
specified herein, Contracting Party shall obtain at its sole cost and expense
such licenses, permits, and approvals as may be required by law for the
performance of the Services required by this Agreement, including a City of
La Quinta business license. Contracting Party and its employees, agents, and
subcontractors shall, at their sole cost and expense, keep in effect at all times
during the term of this Agreement any licenses, permits, and approvals that
are legally required for the performance of the Services required by this
Agreement. Contracting Party shall have the sole obligation to pay for any
fees, assessments, and taxes, plus applicable penalties and interest, which
may be imposed by law and arise from or are necessary for the performance
of the Services required by this Agreement, and shall indemnify, defend (with
counsel selected by City), and hold City, its elected officials, officers,
employees, and agents, free and harmless against any such fees,
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assessments, taxes, penalties, or interest levied, assessed, or imposed
against City hereunder. Contracting Party shall be responsible for all
subcontractors’ compliance with this Section.
1.5Familiarity with Work. By executing this Agreement, Contracting
Party warrants that (a) it has thoroughly investigated and considered the
Services to be performed, (b) it has investigated the site where the Services
are to be performed, if any, and fully acquainted itself with the conditions
there existing, (c) it has carefully considered how the Services should be
performed, and (d) it fully understands the facilities, difficulties, and
restrictions attending performance of the Services under this Agreement.
Should Contracting Party discover any latent or unknown conditions materially
differing from those inherent in the Services or as represented by City,
Contracting Party shall immediately inform City of such fact and shall not
proceed except at Contracting Party’s risk until written instructions are
received from the Contract Officer, or assigned designee (as defined in
Section 4.2 hereof).
1.6Standard of Care. Contracting Party acknowledges and
understands that the Services contracted for under this Agreement require
specialized skills and abilities and that, consistent with this understanding,
Contracting Party’s work will be held to an industry standard of quality and
workmanship. Consistent with Section 1.5 hereinabove, Contracting Party
represents to City that it holds the necessary skills and abilities to satisfy the
industry standard of quality as set forth in this Agreement. Contracting Party
shall adopt reasonable methods during the life of this Agreement to furnish
continuous protection to the Services performed by Contracting Party, and the
equipment, materials, papers, and other components thereof to prevent losses
or damages, and shall be responsible for all such damages, to persons or
property, until acceptance of the Services by City, except such losses or
damages as may be caused by City’s own negligence. The performance of
Services by Contracting Party shall not relieve Contracting Party from any
obligation to correct any incomplete, inaccurate, or defective work at no
further cost to City, when such inaccuracies are due to the negligence of
Contracting Party.
1.7Additional Services. In accordance with the terms and conditions
of this Agreement, Contracting Party shall perform services in addition to
those specified in the Scope of Services (“Additional Services”) only when
directed to do so by the Contract Officer, or assigned designee, provided
that Contracting Party shall not be required to perform any Additional Services
without compensation. Contracting Party shall not perform any Additional
Services until receiving prior written authorization (in the form of a written
change order if Contracting Party is a contractor performing the Services) from
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the Contract Officer, or assigned designee, incorporating therein any
adjustment in (i) the Contract Sum, and/or (ii) the time to perform this
Agreement, which said adjustments are subject to the written approval of
Contracting Party. It is expressly understood by Contracting Party that the
provisions of this Section shall not apply to the Services specifically set forth
in the Scope of Services or reasonably contemplated therein. It is specifically
understood and agreed that oral requests and/or approvals of Additional
Services shall be barred and are unenforceable. Failure of Contracting Party
to secure the Contract Officer’s, or assigned designee’s written authorization
for Additional Services shall constitute a waiver of any and all right to
adjustment of the Contract Sum or time to perform this Agreement, whether
by way of compensation, restitution, quantum meruit, or the like, for
Additional Services provided without the appropriate authorization from the
Contract Officer, or assigned designee. Compensation for properly
authorized Additional Services shall be made in accordance with Section 2.3
of this Agreement.
1.8Special Requirements. Additional terms and conditions of this
Agreement, if any, which are made a part hereof are set forth in “Exhibit D”
(the “Special Requirements”), which is incorporated herein by this reference
and expressly made a part hereof. In the event of a conflict between the
provisions of the Special Requirements and any other provisions of this
Agreement, the provisions of the Special Requirements shall govern.
2. COMPENSATION.
2.1Contract Sum. For the Services rendered pursuant to this
Agreement, Contracting Party shall be compensated in accordance with
“Exhibit B” (the “Schedule of Compensation”) in a total amount not to exceed
Two Hundred Eighty Five Thousand Three Hundred Ninety Dollars
($285,390.00) per year for the life of the Agreement, encompassing the initial
and any extended terms. (the “Contract Sum”), except as provided in
Section 1.7. The method of compensation set forth in the Schedule of
Compensation may include a lump sum payment upon completion, or
pursuant to an agreed upon monthly or quarterly schedule, payment in
accordance with the percentage of completion of the Services, payment for
time and materials based upon Contracting Party’s rate schedulebut not
exceeding the Contract Sum, or such other reasonable methods as may be
specified in the Schedule of Compensation. The Contract Sum shall include
the attendance of Contracting Party at all project meetings reasonably deemed
necessary by City; Contracting Party shall not be entitled to any additional
compensation for attending said meetings. Compensation may include
reimbursement for actual and necessary expenditures for reproduction costs,
transportation expense, telephone expense, and similar costs and expenses
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when and if specified in the Schedule of Compensation. Regardless of the
method of compensation set forth in the Schedule of Compensation,
Contracting Party’s overall compensation shall not exceed the Contract Sum,
except as provided in Section 1.7 of this Agreement.
2.2Method of Billing & Payment. Any month in which Contracting
Party wishes to receive payment, Contracting Party shall submit to City no
later than the tenth (10th) working day of such month, in the form approved
by City’s Finance Director, an invoice for Services rendered prior to the date
of the invoice. The Contract Sum shall be paid to Contracting Party in
installment payments made in accordance with the amount identified in
Contracting Party’s Schedule of Compensation (Exhibit B) for work performed
and properly invoiced by Contracting Party. Such invoice shall contain a
certification by a principal member of Contracting Party specifying that the
payment requested is for Services performed in accordance with the terms of
this Agreement. Upon approval in writing by the Contract Officer, or assigned
designee, and subject to retention pursuant to Section 8.3, City will pay
Contracting Party for all items stated thereon which are approved by City
pursuant to this Agreement no later than thirty (30) days after invoices are
received by the City’s Finance Department.
2.3Compensation for Additional Services. Additional Services
approved in advance by the Contract Officer, or assigned designee, pursuant
to Section 1.7 of this Agreement shall be paid for in an amount agreed to in
writing by both City and Contracting Party in advance of the Additional
Services being rendered by Contracting Party. Any compensation for
Additional Services amounting to five percent (5%) or less of the Contract
Sum may be approved by the Contract Officer, or assigned designee. Any
greater amount of compensation for Additional Services must be approved by
the La Quinta City Council, the City Manager, or Department Director,
depending upon City laws, regulations, rules and procedures concerning public
contracting. Under no circumstances shall Contracting Party receive
compensation for any Additional Services unless prior written approval for the
Additional Services is obtained from the Contract Officer, or assigned
designee, pursuant to Section 1.7 of this Agreement.
3. PERFORMANCE SCHEDULE.
3.1Time of Essence. Time is of the essence in the performance of
this Agreement. If the Services not completed in accordance with the
Schedule of Performance, as set forth in Section 3.2 and “Exhibit C”, it is
understood that the City will suffer damage.
3.2Schedule of Performance. All Services rendered pursuant to this
Agreement shall be performed diligently and within the time period
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established in “Exhibit C” (the “Schedule of Performance”). Extensions to the
time period specified in the Schedule of Performance may be approved in
writing by the Contract Officer, or assigned designee.
3.3 Force Majeure. The time period specified in the Schedule of
Performance for performance of the Services rendered pursuant to this
Agreement shall be extended because of any delays due to unforeseeable
causes beyond the control and without the fault or negligence of Contracting
Party, including, but not restricted to, acts of God or of the public enemy,
fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes,
freight embargoes, acts of any governmental agency other than City, and
unusually severe weather, if Contracting Party shall within ten (10) days of
the commencement of such delay notify the Contract Officer, or assigned
designee, in writing of the causes of the delay. The Contract Officer, or
assigned designee, shall ascertain the facts and the extent of delay, and
extend the time for performing the Services for the period of the forced delay
when and if in the Contract Officer’s judgment such delay is justified, and the
Contract Officer’s determination, or assigned designee, shall be final and
conclusive upon the parties to this Agreement. Extensions to time period in
the Schedule of Performance which are determined by the Contract Officer, or
assigned designee, to be justified pursuant to this Section shall not entitle
the Contracting Party to additional compensation in excess of the Contract
Sum.
3.4 Term. Unless earlier terminated in accordance with the provisions
in Article 8.0 of this Agreement, the term of this agreement shall commence
on -DQXDU\ , 202, and terminate on June 30, 2023 (“Initial Term”). This
Agreement may be extended for one (1) additional year(s) upon mutual
agreement by both parties (“Extended Term”), and executed in writing.
4.COORDINATION OF WORK.
4.1 Representative of Contracting Party. The following principals of
Contracting Party (“Principals”) are hereby designated as being the principals
and representatives of Contracting Party authorized to act in its behalf with
respect to the Services specified herein and make all decisions in connection
therewith:
D Mark Laue, Executive Director
Tel No. 951-634-6537
E-mail: mark@actionparkalliance.com
E Kirsten Dermer, CEO
Tel No. 626-330-5803
Email: kirsten@actionparkalliance.com
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It is expressly understood that the experience, knowledge,
capability, and reputation of the foregoing Principals were a substantial
inducement for City to enter into this Agreement. Therefore, the
foregoing Principals shall be responsible during the term of this
Agreement for directing all activities of Contracting Party and devoting
sufficient time to personally supervise the Services hereunder. For
purposes of this Agreement, the foregoing Principals may not be changed
by Contracting Party and no other personnel may be assigned to perform
the Services required hereunder without the express written approval of
City.
4.2Contract Officer. The “Contract Officer”, otherwise known as
Chris Escobedo, Community Resources Director or assigned designee
may be designated in writing by the City Manager of the City. It shall be
Contracting Party’s responsibility to assure that the Contract Officer, or
assigned designee, is kept informed of the progress of the performance of
the Services, and Contracting Party shall refer any decisions, that must be
made by City to the Contract Officer, or assigned designee. Unless
otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer, or assigned designee. The Contract
Officer, or assigned designee, shall have authority to sign all documents on
behalf of City required hereunder to carry out the terms of this Agreement.
4.3Prohibition Against Subcontracting or Assignment. The
experience, knowledge, capability, and reputation of Contracting Party, its
principals, and its employees were a substantial inducement for City to enter
into this Agreement. Except as set forth in this Agreement, Contracting Party
shall not contract or subcontract with any other entity to perform in whole or
in part the Services required hereunder without the express written approval
of City. In addition, neither this Agreement nor any interest herein may be
transferred, assigned, conveyed, hypothecated, or encumbered, voluntarily or
by operation of law, without the prior written approval of City. Transfers
restricted hereunder shall include the transfer to any person or group of
persons acting in concert of more than twenty five percent (25%) of the
present ownership and/or control of Contracting Party, taking all transfers into
account on a cumulative basis. Any attempted or purported assignment or
contracting or subcontracting by Contracting Party without City’s express
written approval shall be null, void, and of no effect. No approved transfer
shall release Contracting Party of any liability hereunder without the express
consent of City.
4.4Independent Contractor. Neither City nor any of its employees
shall have any control over the manner, mode, or means by which Contracting
Party, its agents, or its employees, perform the Services required herein,
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except as otherwise set forth herein. City shall have no voice in the selection,
discharge, supervision, or control of Contracting Party’s employees, servants,
representatives, or agents, or in fixing their number or hours of service.
Contracting Party shall perform all Services required herein as an independent
contractor of City and shall remain at all times as to City a wholly independent
contractor with only such obligations as are consistent with that role.
Contracting Party shall not at any time or in any manner represent that it or
any of its agents or employees are agents or employees of City. City shall not
in any way or for any purpose become or be deemed to be a partner of
Contracting Party in its business or otherwise or a joint venture or a member
of any joint enterprise with Contracting Party. Contracting Party shall have
no power to incur any debt, obligation, or liability on behalf of City.
Contracting Party shall not at any time or in any manner represent that it or
any of its agents or employees are agents or employees of City. Except for
the Contract Sum paid to Contracting Party as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Contracting Party
for performing the Services hereunder for City. City shall not be liable for
compensation or indemnification to Contracting Party for injury or sickness
arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the
contrary, Contracting Party and any of its employees, agents, and
subcontractors providing services under this Agreement shall not qualify for
or become entitled to any compensation, benefit, or any incident of
employment by City, including but not limited to eligibility to enroll in the
California Public Employees Retirement System (“PERS”) as an employee of
City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits. Contracting
Party agrees to pay all required taxes on amounts paid to Contracting Party
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.
Contracting Party shall fully comply with the workers’ compensation laws
regarding Contracting Party and Contracting Party’s employees. Contracting
Party further agrees to indemnify and hold City harmless from any failure of
Contracting Party to comply with applicable workers’ compensation laws. City
shall have the right to offset against the amount of any payment due to
Contracting Party under this Agreement any amount due to City from
Contracting Party as a result of Contracting Party’s failure to promptly pay to
City any reimbursement or indemnification arising under this Section.
4.5Identity of Persons Performing Work. Contracting Party
represents that it employs or will employ at its own expense all personnel
required for the satisfactory performance of any and all of the Services set
forth herein. Contracting Party represents that the Services required herein
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will be performed by Contracting Party or under its direct supervision, and
that all personnel engaged in such work shall be fully qualified and shall be
authorized and permitted under applicable State and local law to perform such
tasks and services.
4.6City Cooperation. City shall provide Contracting Party with any
plans, publications, reports, statistics, records, or other data or information
pertinent to the Services to be performed hereunder which are reasonably
available to Contracting Party only from or through action by City.
5.INSURANCE.
5.1Insurance. Prior to the beginning of any Services under this
Agreement and throughout the duration of the term of this Agreement,
Contracting Party shall procure and maintain, at its sole cost and expense,
and submit concurrently with its execution of this Agreement, policies of
insurance as set forth in “Exhibit E” (the “Insurance Requirements”) which is
incorporated herein by this reference and expressly made a part hereof.
5.2Proof of Insurance. Contracting Party shall provide Certificate of
Insurance to Agency along with all required endorsements. Certificate of
Insurance and endorsements must be approved by Agency’s Risk Manager
prior to commencement of performance.
6.INDEMNIFICATION.
6.1Indemnification. To the fullest extent permitted by law,
Contracting Party shall indemnify, protect, defend (with counsel selected by
City), and hold harmless City and any and all of its officers, employees,
agents, and volunteers as set forth in “Exhibit F” (“Indemnification”) which is
incorporated herein by this reference and expressly made a part hereof.
7.RECORDS AND REPORTS.
7.1Reports. Contracting Party shall periodically prepare and submit
to the Contract Officer, or assigned designee, such reports concerning
Contracting Party’s performance of the Services required by this Agreement
as the Contract Officer, or assigned designee, shall require.
7.2Records. Contracting Party shall keep, and require any
subcontractors to keep, such ledgers, books of accounts, invoices, vouchers,
canceled checks, reports (including but not limited to payroll reports), studies,
or other documents relating to the disbursements charged to City and the
Services performed hereunder (the “Books and Records”), as shall be
necessary to perform the Services required by this Agreement and enable the
Contract Officer, or assigned designee, to evaluate the performance of such
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Services. Any and all such Books and Records shall be maintained in
accordance with generally accepted accounting principles or similar industry
accepted standards and shall be complete and detailed. Upon giving the
Contracting Party no less than 72 hours’ prior notice, the Contract Officer, or
assigned designee, shall have full and free access to such Books and Records
at all times during normal business hours of City, including the right to inspect,
copy, audit, and make records and transcripts from such Books and Records.
Such Books and Records shall be maintained for a period of three (3) years
following completion of the Services hereunder, and City shall have access to
such Books and Records in the event any audit is required upon giving the
Contracting Party no less than 72 hours’ prior notice. In the event of
dissolution of Contracting Party’s business, custody of the Books and Records
may be given to City, and access shall be provided by Contracting Party’s
successor in interest. Under California Government Code Section 8546.7, if
the amount of public funds expended under this Agreement exceeds Ten
Thousand Dollars ($10,000.00), this Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part
of any audit of City, for a period of three (3) years after final payment under
this Agreement.
7.3Ownership of Documents. In addition to the foregoing, contracting
party shall retain all its rights in its personal and intangible property, including
as outlined in Government Code Section 6254.15. All drawings, specifications,
maps, designs, photographs, studies, surveys, data, notes, computer files,
reports, records, documents, and other materials plans, drawings, estimates,
test data, survey results, models, renderings, and other documents or works
of authorship fixed in any tangible medium of expression, including but not
limited to, physical drawings, digital renderings, or data stored digitally,
magnetically, or in any other medium prepared or caused to be prepared by
Contracting Party, its employees, subcontractors, and agents in the
performance of this Agreement that are delivered to the City, or intended to
be delivered to the City for the City’s use (the “Documents and Materials”)
shall be the property of City and shall be delivered to City upon request of the
Contract Officer, or assigned designee, or upon the expiration or termination
of this Agreement, and Contracting Party shall have no claim for further
employment or additional compensation as a result of the exercise by City of
its full rights of ownership use, reuse, or assignment of the Documents and
Materials hereunder. Provided, however, any item that Contracting Party
creates, develops, modifies, for its internal or proprietary use, that
Contracting Party reasonably determines is proprietary or confidential, shall
remain Contracting Party’s sole property without any further action by
Contracting Party. By way of example only, the following items are
understood to remain Contracting Party’s property: operation manuals,
company email and communications, strategic plans, internal analysis,
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contracts with third parties, social media pages, advertisements, budgets,
planning documents, and employee files. Any use, reuse or assignment of
such completed Documents and Materials for other projects and/or use of
uncompleted documents without specific written authorization by Contracting
Party will be at City’s sole risk and without liability to Contracting Party, and
Contracting Party’s guarantee and warranties shall not extend to such use,
revise, or assignment. Contracting Party may retain copies of such
Documents and Materials for its own use. Contracting Party shall have an
unrestricted right to use the concepts embodied therein. All subcontractors
shall provide for assignment to City of any Documents and Materials prepared
by them, and in the event Contracting Party fails to secure such assignment,
Contracting Party shall indemnify City for all damages resulting therefrom.
7.4In the event City or any person, firm, or corporation authorized
by City reuses said Documents and Materials without written verification or
adaptation by Contracting Party for the specific purpose intended and causes
to be made or makes any changes or alterations in said Documents and
Materials, City hereby releases, discharges, and exonerates Contracting Party
from liability resulting from said change. The provisions of this clause shall
survive the termination or expiration of this Agreement and shall thereafter
remain in full force and effect.
7.5Licensing of Intellectual Property. In addition to the foregoing,
contracting party shall retain all its rights in its personal and intangible
property as outlined in Government Code Section 6254.15. Furthermore, this
Agreement creates a non-exclusive and perpetual license for City to copy, use,
modify, reuse, or sublicense any and all copyrights, designs, rights of
reproduction, and other intellectual property embodied in the Documents and
Materials. Contracting Party shall require all subcontractors, if any, to agree
in writing that City is granted a non-exclusive and perpetual license for the
Documents and Materials the subcontractor prepares under this Agreement.
Contracting Party represents and warrants that Contracting Party has the legal
right to license any and all of the Documents and Materials. Contracting Party
makes no such representation and warranty in regard to the Documents and
Materials which were prepared by design professionals other than Contracting
Party or provided to Contracting Party by City. City shall not be limited in any
way in its use of the Documents and Materials at any time, provided that any
such use not within the purposes intended by this Agreement shall be at City’s
sole risk.
7.6Release of Documents. The Documents and Materials shall not be
released publicly without the prior written approval of the Contract Officer, or
assigned designee, or as required by law. Contracting Party shall not
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disclose to any other entity or person any information regarding the activities
of City, except as required by law or as authorized by City.
7.7Confidential or Personal Identifying Information. Contracting
Party covenants that all City data, data lists, trade secrets, documents with
personal identifying information, documents that are not public records, draft
documents, discussion notes, or other information, if any, developed or
received by Contracting Party or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Contracting Party to any
person or entity without prior written authorization by City or unless required
by law. City shall grant authorization for disclosure if required by any lawful
administrative or legal proceeding, court order, or similar directive with the
force of law. All City data, data lists, trade secrets, documents with personal
identifying information, documents that are not public records, draft
documents, discussions, or other information shall be returned to City upon
the termination or expiration of this Agreement. Contracting Party’s covenant
under this section shall survive the termination or expiration of this
Agreement.
8.ENFORCEMENT OF AGREEMENT.
8.1California Law. This Agreement shall be interpreted, construed,
and governed both as to validity and to performance of the parties in
accordance with the laws of the State of California. Legal actions concerning
any dispute, claim, or matter arising out of or in relation to this Agreement
shall be instituted in the Superior Court of the County of Riverside, State of
California, or any other appropriate court in such county, and Contracting
Party covenants and agrees to submit to the personal jurisdiction of such court
in the event of such action.
8.2Disputes. In the event of any dispute arising under this
Agreement, the injured party shall notify the injuring party in writing of its
contentions by submitting a claim therefore. The injured party shall continue
performing its obligations hereunder so long as the injuring party commences
to cure such default within ten (10) days of service of such notice and
completes the cure of such default within forty-five (45) days after service of
the notice, or such longer period as may be permitted by the Contract Officer,
or assigned designee; provided that if the default is an immediate danger to
the health, safety, or general welfare, City may take such immediate action
as City deems warranted. Compliance with the provisions of this Section shall
be a condition precedent to termination of this Agreement for cause and to
any legal action, and such compliance shall not be a waiver of any party’s right
to take legal action in the event that the dispute is not cured, provided that
nothing herein shall limit City’s right to terminate this Agreement without
cause pursuant to this Article 8.0. During the period of time that Contracting
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Party is in default, City shall hold all invoices and shall, when the default is
cured, proceed with payment on the invoices. In the alternative, City may, in
its sole discretion, elect to pay some or all of the outstanding invoices during
any period of default.
8.3[Reserved]
8.4Waiver. No delay or omission in the exercise of any right or
remedy of a non-defaulting party on any default shall impair such right or
remedy or be construed as a waiver. City’s consent or approval of any act by
Contracting Party requiring City’s consent or approval shall not be deemed to
waive or render unnecessary City’s consent to or approval of any subsequent
act of Contracting Party. Any waiver by either party of any default must be in
writing and shall not be a waiver of any other default concerning the same or
any other provision of this Agreement.
8.5Rights and Remedies are Cumulative. Except with respect to
rights and remedies expressly declared to be exclusive in this Agreement, the
rights and remedies of the parties are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise
by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
8.6Legal Action. In addition to any other rights or remedies, either
party may take legal action, at law or at equity, to cure, correct, or remedy
any default, to recover damages for any default, to compel specific
performance of this Agreement, to obtain declaratory or injunctive relief, or
to obtain any other remedy consistent with the purposes of this Agreement.
8.7Termination Prior To Expiration of Term. This Section shall govern
any termination of this Agreement, except as specifically provided in the
following Section for termination for cause. City reserves the right to
terminate this Agreement at any time, with or without cause, upon thirty
(120) days’ written notice to Contracting Party. Upon receipt of any notice of
termination, Contracting Party shall immediately cease all Services hereunder
except such as may be specifically approved by the Contract Officer, or
assigned designee, or, in Contracting Party’s discretion, such time that
is necessary to safely and effectively wind up operations, remove its
property, and turn over operations on the first day of the next calendar
month. Contracting Party shall be entitled to compensation for all Services
rendered prior to receipt of the notice of termination and for any Services
authorized by the Contract Officer, or assigned designee, thereafter in
accordance with the Schedule of Compensation or such as may be approved
by the Contract Officer, or assigned designee, except amounts held as a
retention pursuant to this Agreement.
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8.8Termination for Default of Contracting Party. If termination is due
to the failure of Contracting Party to fulfill its obligations under this Agreement,
Contracting Party shall vacate any City-owned property which Contracting
Party is permitted to occupy hereunder and City may, after compliance with
the provisions of Section 8.2, take over the Services and prosecute the same
to completion by contract or otherwise, and Contracting Party shall be liable
to the extent that the total cost for completion of the Services required
hereunder exceeds the compensation herein stipulated (provided that City
shall use reasonable efforts to mitigate such damages), and City may withhold
any payments to Contracting Party for the purpose of setoff or partial payment
of the amounts owed City.
8.9Attorneys’ Fees. If either party to this Agreement is required to
initiate or defend or made a party to any action or proceeding in any way
connected with this Agreement, the prevailing party in such action or
proceeding, in addition to any other relief which may be granted, whether
legal or equitable, shall be entitled to reasonable attorneys’ fees; provided,
however, that the attorneys’ fees awarded pursuant to this Section shall not
exceed the hourly rate paid by City for legal services multiplied by the
reasonable number of hours spent by the prevailing party in the conduct of
the litigation. Attorneys’ fees shall include attorneys’ fees on any appeal, and
in addition a party entitled to attorneys’ fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and
discovery, and all other necessary costs the court allows which are incurred in
such litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not such
action is prosecuted to judgment. The court may set such fees in the same
action or in a separate action brought for that purpose.
9.CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
9.1Non-liability of City Officers and Employees. No officer, official,
employee, agent, representative, or volunteer of City shall be personally liable
to Contracting Party, or any successor in interest, in the event or any default
or breach by City or for any amount which may become due to Contracting
Party or to its successor, or for breach of any obligation of the terms of this
Agreement.
9.2Conflict of Interest. Contracting Party covenants that neither it,
nor any officer or principal of it, has or shall acquire any interest, directly or
indirectly, which would conflict in any manner with the interests of City or
which would in any way hinder Contracting Party’s performance of the
Services under this Agreement. Contracting Party further covenants that in
the performance of this Agreement, no person having any such interest shall
be employed by it as an officer, employee, agent, or subcontractor without
-14-
the express written consent of the Contract Officer, or assigned designee.
Contracting Party agrees to at all times avoid conflicts of interest or the
appearance of any conflicts of interest with the interests of City in the
performance of this Agreement.
No officer or employee of City shall have any financial interest, direct
or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to this Agreement which effects his financial
interest or the financial interest of any corporation, partnership or association
in which he is, directly or indirectly, interested, in violation of any State statute
or regulation. Contracting Party warrants that it has not paid or given and will
not pay or give any third party any money or other consideration for obtaining
this Agreement.
9.3Covenant against Discrimination. Contracting Party covenants
that, by and for itself, its heirs, executors, assigns, and all persons claiming
under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of any
impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry in
the performance of this Agreement. Contracting Party shall take affirmative
action to ensure that applicants are employed and that employees are treated
during employment without regard to their race, color, creed, religion, sex,
marital status, sexual orientation, national origin, or ancestry.
10.MISCELLANEOUS PROVISIONS.
10.1Notice. Any notice, demand, request, consent, approval, or
communication either party desires or is required to give the other party or
any other person shall be in writing and either served personally or sent by
prepaid, first-class mail to the address set forth below. Either party may
change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from
the time of mailing if mailed as provided in this Section.
To City:
CITY OF LA QUINTA
Attention: Chris Escobedo
78495 Calle Tampico
La Quinta, California 92253
To Contracting Party:
ACTION PARK ALLIANCE INC.
Mark Laue
6824 S. Centinela Ave.
Los Angeles, California 90230
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10.2Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed
for or against either party by reason of the authorship of this Agreement or
any other rule of construction which might otherwise apply.
10.3Section Headings and Subheadings. The section headings and
subheadings contained in this Agreement are included for convenience only
and shall not limit or otherwise affect the terms of this Agreement.
10.4Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, and such counterparts shall
constitute one and the same instrument.
10.5Integrated Agreement. This Agreement including the exhibits
hereto is the entire, complete, and exclusive expression of the understanding
of the parties. It is understood that there are no oral agreements between
the parties hereto affecting this Agreement and this Agreement supersedes
and cancels any and all previous negotiations, arrangements, agreements,
and understandings, if any, between the parties, and none shall be used to
interpret this Agreement.
10.6Amendment. No amendment to or modification of this Agreement
shall be valid unless made in writing and approved by Contracting Party and
by the City Council of City. The parties agree that this requirement for written
modifications cannot be waived and that any attempted waiver shall be void.
10.7Severability. In the event that any one or more of the articles,
phrases, sentences, clauses, paragraphs, or sections contained in this
Agreement shall be declared invalid or unenforceable, such invalidity or
unenforceability shall not affect any of the remaining articles, phrases,
sentences, clauses, paragraphs, or sections of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent
of the parties hereunder unless the invalid provision is so material that its
invalidity deprives either party of the basic benefit of their bargain or renders
this Agreement meaningless.
10.8Unfair Business Practices Claims. In entering into this Agreement,
Contracting Party offers and agrees to assign to City all rights, title, and
interest in and to all causes of action it may have under Section 4 of the
Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2,
(commencing with Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods, services, or materials
related to this Agreement. This assignment shall be made and become
effective at the time City renders final payment to Contracting Party without
further acknowledgment of the parties.
-16-
10.9No Third-Party Beneficiaries. With the exception of the specific
provisions set forth in this Agreement, there are no intended third-party
beneficiaries under this Agreement and no such other third parties shall have
any rights or obligations hereunder.
10.10Authority. The persons executing this Agreement on behalf of
each of the parties hereto represent and warrant that (i) such party is duly
organized and existing, (ii) they are duly authorized to execute and deliver
this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) that
entering into this Agreement does not violate any provision of any other
Agreement to which said party is bound. This Agreement shall be binding
upon the heirs, executors, administrators, successors, and assigns of the
parties.
[SIGNATURES ON FOLLOWING PAGE]
2/2/2022
Exhibit A
Page 1 of 8
Exhibit A
Scope of Services
Contracting party agrees to operate, manage, maintain, and supervise the La Quinta
X Park facilities which includes the skate park, pro shop/concession building,
and restrooms (Facilities).
La Quinta X Park Hours of Operation and Staffing:
Monday – Tuesday: CLOSED
Wednesday – Friday - 12:00pm-2:00pm - Two (2) staff
Wednesday – Friday - 2:00pm-9:00pm - Three (3) staff
Saturday - Sunday - 9:00am-12:00pm – Two (2) staff
Saturday – Sunday – 12:00pm- 9:00pm- Three (3) staff
Observed Holiday Schedule:
The X Park will be closed on Christmas Day, Thanksgiving, and Easter.
Membership and Entry Fees:
Resident daily use fee:
Resident annual membership fee: DQQXDOPHPEHUVKLSUHPRYHVGDLO\IHH
Non-resident daily use fee:
Non-resident annual membership fee: DQQXDOPHPEHUVKLSUHPRYHVGDLO\IHH
APA shall collect and retain 100% of the fees collected from membership fees, daily
use fees, concession sales, and pro-shop sales.
Programming:
Camps: Four 5-day camps per year, maximum 30 participants per session Lessons &
Clinics: Scheduled throughout the year TBD
Special Events: Grand Opening, Christmas Skate Camp, WCMX World
Championship, etc., TBD
APA shall collect and retain 100% of revenue generated by special events.
Action Park Alliance Responsibilities
Staffing and Security
x The park will be staffed with a minimum of qualified employees
over the age of eighteen, at all times.
Exhibit A
Page 2 of 8
xAdditional staff members will be on duty for each session or activity
where additional participants require it. A minimum of one staff
person per 35 participants will be on duty at all times.
xCPR Training—all of our employees are CPR and First-Aid certified.
xIf there are union or prevailing wage requirements, costs may
increase.
xAPA shall provide adequate security measures (video monitoring,
alarm system, etc.), meeting APA’s guidelines.
Maintenance of skatepark
xAction Park Alliance will conduct daily park inspections; any
significant findings, especially those that may present warranty
issues, will be promptly reported to La Quinta for further action.
xExamples of maintenance that will be performed by APA are minor
painting, trash removal, graffiti removal from within the fenced
skatepark, and minor concrete patching (if not under warranty).
xAll structural, major, or warranty work needed will be reported to La
Quinta, who will be responsible for completing the repairs or filing
warranty claims with the builder.
xAPA will facilitate and coordinate any necessary warranty filings and
procedures.
Maintenance of pro shop
xAll exterior maintenance of the pro shop building is the responsibility
of La Quinta, including major appliances, such as HVAC and electrical.
xAPA will maintain the interior of the pro shop building, including all
fixtures provided, and will replace, at its cost, anything under
$500.00.
xIf any warranty service is needed for any appliances or parts of the
building, APA will coordinate the service and maintain all appropriate
documentation.
Insurance/ Liability
Exhibit A
Page 3 of 8
xAPA will require all participants to sign a liability waiver, releasing La
Quinta and APA of liability. These waivers must be signed by parent
or legal guardian for anyone under the age of 18, and identification
is required. Final wording of the waiver may be modified by La
Quinta’s attorney/ risk manager.
xAPA will require safety gear to be worn at all times, in compliance
with the laws of the State of California, and will enforce such
requirements.
xAPA will maintain a liability policy naming La Quinta (and all related
parties), in the amounts of $1M per occurrence, $2M aggregate.
xAPA will maintain an accident and excess medical insurance policy to
drastically reduce the likelihood of lawsuits and insurance claims,
especially for medical and injury reasons.
Garbage disposal
xAPA shall collect trash in the bins, and take it to the dumpster.
Record-keeping
xAPA will keep detailed injury reports, maintenance reports, liability
waivers, and incident reports, both electronically and physically.
xAPA will report all major incidents and injuries to the City of La
Quinta.
xAPA will complete and submit the required annual reporting and
documentation to the State of California, to comply with recreational
immunity provisions.
xComplete financial information including detailed inventory tracking
and all accounting.
xAPA provides quarterly park usage reporting to La Quinta, and annual
recap reporting.
Taxes
xAPA will be responsible for the collection and payment of all sales
taxes on sales of non-exempt items in the pro shop.
Exhibit A
Page 4 of 8
xAPA will be responsible for paying business personal property tax for
its property within the pro shop building, including any fixtures and
inventory. Any property taxes or special assessments for the building
or the property shall be the responsibility of La Quinta.
Concessions services
xAPA will maintain a fully-stocked concession operation, including
drinks, water, snack foods, etc.
xRetail goods
APA will maintain an inventory of necessary and replacement items,
including skateboard decks, wheels, trucks, etc.
Sponsorship
xAPA will work alongside the City of La Quinta to sell sponsorship for
the skatepark, within any guidelines or restrictions from the city.
Consultation
xAPA will provide consultation regarding any action sports events or
marketing efforts in the city at no additional charge.
City of La Quinta Responsibilities
Skatepark
xLa Quinta shall provide a professionally designed and constructed
skatepark.
xSkatepark shall be in good condition, and meet all ASTM guidelines.
xSkatepark shall have adequate access control (fencing), meeting
APA’s guidelines.
Pro shop building
xLa Quinta shall provide a pro shop building of approximately 1400
Exhibit A
Page 5 of 8
square feet at the skatepark for APA to set up pro shop and
concession operations, to APA’s specifications, including restrooms
for APA’s staff.
x APA will need possession of the completed pro shop building 30 days
prior to the desired opening of the skatepark. Pro shop must have
all utilities including phone, internet, HVAC, electrical, etc. in working
order prior to APA taking possession.
Utilities costs
x La Quinta shall be responsible for all ongoing utilities bills.
Maintenance
x La Quinta will be responsible for major landscape and general site
maintenance, including any repairs needed for lighting, fencing and
major concrete repairs.
x La Quinta will be responsible for minor landscape and general site
maintenance within the fenced area of the skatepark.
Garbage disposal
x La Quinta shall be responsible for supplying a dumpster for APA to
dispose of skatepark trash from skatepark participants.
Taxes
x Any property taxes or special assessments for the building or the
property shall be the responsibility of La Quinta.
Marketing/ Promotion
x La Quinta shall include the APA skatepark in its monthly mailers and
any other promotional materials it produces.
Staffing Fees
x La Quinta’s annual staffing fee to APA shall be payable quarterly, in
Exhibit A
Page 6 of 8
advance of the beginning of each quarter.
Exhibit A
Page 7 of 8
ADDENDUM TO AGREEMENT
Re: Scope of Services
If the Scope of Services include construction, alteration, demolition,
installation, repair, or maintenance affecting real property or structures or
improvements of any kind appurtenant to real property, the following apply:
Prevailing Wage Compliance . If Contracting Party is a contractor
performing public works and maintenance projects, as described in this
Section 1.3, Contracting Party shall comply with applicable Federal, State, and
local laws. Contracting Party is aware of the requirements of California Labor
Code Sections 1720, et seq., and 1770, et seq., as well as California Code of
Regulations, Title 8, Sections 16000, et seq., (collectively, the “Prevailing
Wage Laws”), and La Quinta Municipal Code Section 3.12.040, which require
the payment of prevailing wage rates and the performance of other
requirements on “Public works” and “Maintenance” projects. If the Services
are being performed as part of an applicable “Public works” or “Maintenance”
project, as defined by the Prevailing Wage Laws, and if construction work over
twenty-five thousand dollars ($25,000.00) and/or alterations, demolition,
repair or maintenance work over fifteen thousand dollars ($15,000.00) is
entered into or extended on or after January 1, 2015 by this Agreement,
Contracting Party agrees to fully comply with such Prevailing Wage Laws
including, but not limited to, requirements related to the maintenance of
payroll records and the employment of apprentices. Pursuant to California
Labor Code Section 1725.5, no contractor or subcontractor may be awarded
a contract for public work on a “Public works” project unless registered with
the California Department of Industrial Relations (“DIR”) at the time the
contract is awarded. If the Services are being performed as part of an
applicable “Public works” or “Maintenance” project, as defined by the
Prevailing Wage Laws, this project is subject to compliance monitoring and
enforcement by the DIR. Contracting Party will maintain and will require all
subcontractors to maintain valid and current DIR Public Works contractor
registration during the term of this Agreement. Contracting Party shall notify
City in writing immediately, and in no case more than twenty-four (24) hours,
after receiving any information that Contracting Party’s or any of its
subcontractor’s DIR registration status has been suspended, revoked, expired,
or otherwise changed. It is understood that it is the responsibility of
Contracting Party to determine the correct salary scale. Contracting Party
shall make copies of the prevailing rates of per diem wages for each craft,
classification, or type of worker needed to execute the Services available to
interested parties upon request, and shall post copies at Contracting Party’s
principal place of business and at the project site, if any. The statutory
penalties for failure to pay prevailing wage or to comply with State wage and
hour laws will be enforced. Contracting Party must forfeit to City TWENTY-
Exhibit A
Page 8 of 8
FIVE DOLLARS ($25.00) per day for each worker who works in excess of the
minimum working hours when Contracting Party does not pay overtime. In
accordance with the provisions of Labor Code Sections 1810 et seq., eight
(8) hours is the legal working day. Contracting Party also shall comply with
State law requirements to maintain payroll records and shall provide for
certified records and inspection of records as required by California Labor Code
Section 1770 et seq., including Section 1776. In addition to the other
indemnities provided under this Agreement, Contracting Party shall defend
(with counsel selected by City), indemnify, and hold City, its elected officials,
officers, employees, and agents free and harmless from any claim or liability
arising out of any failure or alleged failure to comply with the Prevailing Wage
Laws. It is agreed by the parties that, in connection with performance of the
Services, including, without limitation, any and all “Public works” (as defined
by the Prevailing Wage Laws), Contracting Party shall bear all risks of payment
or non-payment of prevailing wages under California law and/or the
implementation of Labor Code Section 1781, as the same may be amended
from time to time, and/or any other similar law. Contracting Party
acknowledges and agrees that it shall be independently responsible for
reviewing the applicable laws and regulations and effectuating compliance
with such laws. Contracting Party shall require the same of all subcontractors.
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for
in Section 2.3 of this Agreement, the maximum total compensation to be paid
to Contracting Party under this Agreement is not to exceed Two Hundred
Eighty Five Thousand Three Hundred Ninety Dollars ($285,390.00) (“Contract
Sum”). The Contract Sum shall be paid to Contracting Party in installment
payments in an amount identified in Contracting Party’s schedule of
compensation attached hereto for the work tasks performed and properly
invoiced by Contracting Party in conformance with Section 2.2 of this
Agreement.
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Exhibit B
Page 1 of 1
Exhibit C
Page 1 of 1
Exhibit C
Schedule of Performance
Contracting Party shall complete all services identified in the Scope of
Services, Exhibit A of this Agreement, in accordance with the Project
Schedule, attached hereto and incorporated herein by this reference.
Exhibit E
Page 1 of 8
Exhibit D
Special Requirements
None.
Exhibit E
Page 2 of 8
Exhibit E
Insurance Requirements
E.1 Insurance. Prior to the beginning of and throughout the duration of
this Agreement, the following policies shall be maintained and kept in full force
and effect providing insurance with minimum limits as indicated below and
issued by insurers with A.M. Best ratings of no less than A-VI:
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Non-contributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Personal Auto Declaration Page if applicable
Workers’ Compensation
(per statutory requirements)
Must include the following endorsements:
Workers Compensation with Waiver of Subrogation
Workers Compensation Declaration of Sole Proprietor if applicable
Cyber Liability
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Contracting Party shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, Commercial General
Liability insurance against all claims for injuries against persons or damages
to property resulting from Contracting Party’s acts or omissions rising out of
or related to Contracting Party’s performance under this Agreement. The
insurance policy shall contain a severability of interest clause providing that
the coverage shall be primary for losses arising out of Contracting Party’s
performance hereunder and neither City nor its insurers shall be required to
contribute to any such loss. An endorsement evidencing the foregoing and
naming the City and its officers and employees as additional insured (on the
Commercial General Liability policy only) must be submitted concurrently with
the execution of this Agreement and approved by City prior to commencement
of the services hereunder.
Exhibit E
Page 3 of 8
Contracting Party shall carry automobile liability insurance of
$1,000,000 per accident against all claims for injuries against persons or
damages to property arising out of the use of any automobile by Contracting
Party, its officers, any person directly or indirectly employed by Contracting
Party, any subcontractor or agent, or anyone for whose acts any of them may
be liable, arising directly or indirectly out of or related to Contracting Party’s
performance under this Agreement. If Contracting Party or Contracting
Party’s employees will use personal autos in any way on this project,
Contracting Party shall provide evidence of personal auto liability coverage for
each such person. The term “automobile” includes, but is not limited to, a
land motor vehicle, trailer or semi-trailer designed for travel on public roads.
The automobile insurance policy shall contain a severability of interest clause
providing that coverage shall be primary for losses arising out of Contracting
Party’s performance hereunder and neither City nor its insurers shall be
required to contribute to such loss.
Contracting Party shall carry Workers’ Compensation Insurance in
accordance with State Worker’s Compensation laws with employer’s liability
limits no less than $1,000,000 per accident or disease.
Contracting Party shall procure and maintain Cyber Liability
insurance with limits of $1,000,000 per occurrence/loss which shall include
the following coverage:
a.Liability arising from the theft, dissemination and/or use of
confidential or personally identifiable information; including
credit monitoring and regulatory fines arising from such theft,
dissemination or use of the confidential information.
b.Network security liability arising from the unauthorized use of,
access to, or tampering with computer systems.
c.Liability arising from the failure of technology products
(software) required under the contract for Consultant to
properly perform the services intended.
d.Electronic Media Liability arising from personal injury, plagiarism
or misappropriation of ideas, domain name infringement or
improper deep-linking or framing, and infringement or violation
of intellectual property rights.
e.Liability arising from the failure to render professional services.
Exhibit E
Page 4 of 8
If coverage is maintained on a claims-made basis, Contracting Party shall
maintain such coverage for an additional period of three (3) years following
termination of the contract.
Contracting Party shall provide written notice to City within ten
(10) working days if: (1) any of the required insurance policies is terminated;
(2) the limits of any of the required polices are reduced; or (3) the deductible
or self-insured retention is increased. In the event any of said policies of
insurance are cancelled, Contracting Party shall, prior to the cancellation date,
submit new evidence of insurance in conformance with this Exhibit to the
Contract Officer. The procuring of such insurance or the delivery of policies
or certificates evidencing the same shall not be construed as a limitation of
Contracting Party’s obligation to indemnify City, its officers, employees,
contractors, subcontractors, or agents.
E.2 Remedies. In addition to any other remedies City may have if
Contracting Party fails to provide or maintain any insurance policies or policy
endorsements to the extent and within the time herein required, City may, at
its sole option:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement.
b. Order Contracting Party to stop work under this Agreement
and/or withhold any payment(s) which become due to Contracting Party
hereunder until Contracting Party demonstrates compliance with the
requirements hereof.
c. Terminate this Agreement.
Exercise any of the above remedies, however, is an alternative to
any other remedies City may have. The above remedies are not the exclusive
remedies for Contracting Party’s failure to maintain or secure appropriate
policies or endorsements. Nothing herein contained shall be construed as
limiting in any way the extent to which Contracting Party may be held
responsible for payments of damages to persons or property resulting from
Contracting Party’s or its subcontractors’ performance of work under this
Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage
by Contracting Party. Contracting Party and City agree to the following with
respect to insurance provided by Contracting Party:
Contracting Party agrees to have its insurer endorse the third
party general liability coverage required herein to include as additional
Exhibit E
Page 5 of 8
insureds City, its officials, employees, and agents, using standard ISO
endorsement No. CG 2010 with an edition prior to 1992. Contracting Party
also agrees to require all contractors, and subcontractors to do likewise.
No liability insurance coverage provided to comply with this
Agreement shall prohibit Contracting Party, or Contracting Party’s employees,
or agents, from waiving the right of subrogation prior to a loss. Contracting
Party agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors and
subcontractors to do likewise.
All insurance coverage and limits provided by Contracting Party
and available or applicable to this Agreement are intended to apply to the full
extent of the policies. Nothing contained in this Agreement or any other
agreement relating to City or its operations limits the application of such
insurance coverage.
None of the coverages required herein will be in compliance with
these requirements if they include any limiting endorsement of any kind that
has not been first submitted to City and approved of in writing.
No liability policy shall contain any provision or definition that
would serve to eliminate so-called “third party action over” claims, including
any exclusion for bodily injury to an employee of the insured or of any
contractor or subcontractor.
All coverage types and limits required are subject to approval,
modification and additional requirements by the City, as the need arises.
Contracting Party shall not make any reductions in scope of coverage (e.g.
elimination of contractual liability or reduction of discovery period) that may
affect City’s protection without City’s prior written consent.
Proof of compliance with these insurance requirements, consisting
of certificates of insurance evidencing all the coverages required and an
additional insured endorsement to Contracting Party’s general liability policy,
shall be delivered to City at or prior to the execution of this Agreement. In
the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is
provided, City has the right, but not the duty, to obtain any insurance it deems
necessary to protect its interests under this or any other agreement and to
pay the premium. Any premium so paid by City shall be charged to and
promptly paid by Contracting Party or deducted from sums due Contracting
Party, at City option.
Exhibit E
Page 6 of 8
It is acknowledged by the parties of this agreement that all
insurance coverage required to be provided by Contracting Party or any
subcontractor, is intended to apply first and on a primary, non-contributing
basis in relation to any other insurance or self-insurance available to City.
Contracting Party agrees to ensure that subcontractors, and any
other party involved with the project that is brought onto or involved in the
project by Contracting Party, provide the same minimum insurance coverage
required of Contracting Party. Contracting Party agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such
coverage is provided in conformity with the requirements of this section.
Contracting Party agrees that upon request, all agreements with
subcontractors and others engaged in the project will be submitted to City for
review.
Contracting Party agrees not to self-insure or to use any self-
insured retentions or deductibles on any portion of the insurance required
herein (with the exception of professional liability coverage, if required) and
further agrees that it will not allow any contractor, subcontractor, Architect,
Engineer or other entity or person in any way involved in the performance of
work on the project contemplated by this agreement to self-insure its
obligations to City. If Contracting Party’s existing coverage includes a
deductible or self-insured retention, the deductible or self-insured retention
must be declared to the City. At that time the City shall review options with
the Contracting Party, which may include reduction or elimination of the
deductible or self-insured retention, substitution of other coverage, or other
solutions.
The City reserves the right at any time during the term of this
Agreement to change the amounts and types of insurance required by giving
the Contracting Party ninety (90) days advance written notice of such change.
If such change results in substantial additional cost to the Contracting Party,
the City will negotiate additional compensation proportional to the increased
benefit to City.
For purposes of applying insurance coverage only, this Agreement
will be deemed to have been executed immediately upon any party hereto
taking any steps that can be deemed to be in furtherance of or towards
performance of this Agreement.
Contracting Party acknowledges and agrees that any actual or
alleged failure on the part of City to inform Contracting Party of non-
compliance with any insurance requirement in no way imposes any additional
obligations on City nor does it waive any rights hereunder in this or any other
regard.
Exhibit E
Page 7 of 8
Contracting Party will renew the required coverage annually as
long as City, or its employees or agents face an exposure from operations of
any type pursuant to this agreement. This obligation applies whether the
agreement is canceled or terminated for any reason. Termination of this
obligation is not effective until City executes a written statement to that effect.
Contracting Party shall provide proof that policies of insurance
required herein expiring during the term of this Agreement have been renewed
or replaced with other policies providing at least the same coverage. Proof
that such coverage has been ordered shall be submitted prior to expiration.
A coverage binder or letter from Contracting Party’s insurance agent to this
effect is acceptable. A certificate of insurance and an additional insured
endorsement is required in these specifications applicable to the renewing or
new coverage must be provided to City within five (5) days of the expiration
of coverages.
The provisions of any workers’ compensation or similar act will not
limit the obligations of Contracting Party under this agreement. Contracting
Party expressly agrees not to use any statutory immunity defenses under such
laws with respect to City, its employees, officials, and agents.
Requirements of specific coverage features, or limits contained in
this section are not intended as limitations on coverage, limits or other
requirements nor as a waiver of any coverage normally provided by any given
policy. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any
party or insured to be limiting or all-inclusive.
These insurance requirements are intended to be separate and
distinct from any other provision in this Agreement and are intended by the
parties here to be interpreted as such.
The requirements in this Exhibit supersede all other sections and
provisions of this Agreement to the extent that any other section or provision
conflicts with or impairs the provisions of this Exhibit.
Contracting Party agrees to be responsible for ensuring that no
contract used by any party involved in any way with the project reserves the
right to charge City or Contracting Party for the cost of additional insurance
coverage required by this agreement. Any such provisions are to be deleted
with reference to City. It is not the intent of City to reimburse any third party
for the cost of complying with these requirements. There shall be no recourse
against City for payment of premiums or other amounts with respect thereto.
Exhibit E
Page 8 of 8
Contracting Party agrees to provide immediate notice to City of
any claim or loss against Contracting Party arising out of the work performed
under this agreement. City assumes no obligation or liability by such notice,
but has the right (but not the duty) to monitor the handling of any such claim
or claims if they are likely to involve City.
Exhibit F
Page 1 of 2
Exhibit F
Indemnification
F.1 Indemnity for the Benefit of City.
a. Indemnification for Professional Liability. When the law
establishes a professional standard of care for Contracting Party’s Services, to
the fullest extent permitted by law, Contracting Party shall indemnify, protect,
defend, and hold harmless City and any and all of its officials, employees, and
agents (“Indemnified Parties”) from and against any and all claims, losses,
liabilities of every kind, nature, and description, damages, injury (including,
without limitation, injury to or death of an employee of Contracting Party or
of any subcontractor), costs and expenses of any kind, whether actual, alleged
or threatened, including, without limitation, incidental and consequential
damages, court costs, attorneys’ fees, litigation expenses, and fees of expert
consultants or expert witnesses incurred in connection therewith and costs of
investigation, to the extent same are caused in whole or in part by any
negligent or wrongful act, error or omission of Contracting Party, its officers,
agents, employees or subcontractors (or any entity or individual that
Contracting Party shall bear the legal liability thereof) in the performance of
professional services under this agreement. With respect to the design of
public improvements, the Contracting Party shall not be liable for any injuries
or property damage resulting from the reuse of the design at a location other
than that specified in Exhibit A without the written consent of the Contracting
Party.
b. Indemnification for Other Than Professional Liability. Other
than in the performance of professional services and to the full extent
permitted by law, Contracting Party shall indemnify, defend, and hold
harmless the Indemnified Parties from and against any liability (including
liability for claims, suits, actions, arbitration proceedings, administrative
proceedings, regulatory proceedings, losses, expenses or costs of any kind,
whether actual, alleged or threatened, including, without limitation, incidental
and consequential damages, court costs, attorneys’ fees, litigation expenses,
and fees of expert consultants or expert witnesses) incurred in connection
therewith and costs of investigation, where the same arise out of, are a
consequence of, or are in any way attributable to, in whole or in part, the
performance of this Agreement by Contracting Party or by any individual or
entity for which Contracting Party is legally liable, including but not limited to
officers, agents, employees, or subcontractors of Contracting Party.
Exhibit F
Page 2 of 2
F.2 Obligation to Secure Indemnification Provisions. Contracting
Party agrees to obtain executed indemnity agreements with provisions
identical to those set forth herein this Exhibit F, as applicable to the
Contracting Party, from each and every subcontractor or any other person or
entity involved by, for, with or on behalf of Contracting Party in the
performance of this Agreement. In the event Contracting Party fails to obtain
such indemnity obligations from others as required herein, Contracting Party
agrees to be fully responsible according to the terms of this Exhibit. Failure
of City to monitor compliance with these requirements imposes no additional
obligations on City and will in no way act as a waiver of any rights hereunder.
This obligation to indemnify and defend City as set forth in this Agreement are
binding on the successors, assigns or heirs of Contracting Party and shall
survive the termination of this Agreement.
City of La Quinta
CITY COUNCIL MEETING: October 19, 2021
STAFF REPORT
AGENDA TITLE: APPROVE AGREEMENT FOR CONTRACT SERVICES
WITH ACTION PARK ALLIANCE INC. FOR XPARK MANAGEMENT AND
MAINTENANCE SERVICES AND APPROPRIATE ADDITIONAL FUNDING
RECOMMENDATION
Approve Agreement for Contract Services with Action Park Alliance Inc. for X
Park management and maintenance; and authorize the City Manager to
execute the agreement.
EXECUTIVE SUMMARY
x The City issued a Request for Proposals (RFP) for skatepark
management and maintenance services on August 6, 2021; two
proposals were submitted.
x Staff reviewed the proposals and interviewed both candidates to assess
experience and qualifications.
x Action Park Alliance Inc. (APA) was selected based on their extensive
skatepark operation experience.
x Staff recommends approval of the Agreement for Contract Services
(Agreement) (Attachment 1).
FISCAL IMPACT
The cost for management and maintenance services would be $285,390 per
year. For the current fiscal year, the cost would be $166,478 for 7 months of
operation. The City has membership and user fees at the Wellness Center,
sports fields, Fritz Burns Pool, and the Creation Station. Should the Council
incorporate a charge for service, APA anticipates $25,000 in annual revenue,
reducing the cost to $260,390. The XPark Programming account has a
current budget of $150,000 available in account number
101-3003-60190. If approved, a budget adjustment of $20,000
would increase funding to $170,000.
BUSINESS SESSION ITEM NO.
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BACKGROUND/ANALYSIS
The La Quinta XPark is scheduled for completion in December 2021. The
3,600 square foot facility is the largest skatepark in the Coachella Valley and
features two bowls, a pump track, pro shop, and spectating areas. Due to the
size of the skatepark, there was consensus that the facility should be
maintained and supervised by an outside contractor who specializes in
operating skateparks.
An RFP for skatepark management and maintenance services was posted on
the City website on August 6, 2021. Two proposals were received and
reviewed by a selection committee; Action Park Alliance Inc. (APA) and King’s
Ride Shop. APA was selected based on their qualifications and experience in
operating large skateparks.
As operator of the XPark, APA is responsible for overseeing day-to-day
operations as well as programming including lessons, skate camps,
demonstrations, and events.
Staff is recommending a contract of $285,390 which includes day-to-day
management of the XPark and pro shop as well as coordination of clinics,
skate camps, and events throughout the year. Pro shop capabilities include
equipment rentals and repairs in addition to merchandise sales such as shoes,
skateboards, wheels, and apparel. The contract includes execution of
signature XPark events including the Grand Opening Skate & BMX Contest,
El Gato Classic, and WCMX World Championship, which will potentially
draw thousands of visitors and gain national attention. Contracted
services also utilize APA’s signature wavier and POS system to deliver
detailed reports regarding park usage. The recommended contract reflects
the following hours of operation and staffing levels:
Monday – Tuesday, (Closed)
Wednesday – Friday Noon-2pm, (2 staff)
Wednesday – Friday 2pm-9pm, (3 staff)
Saturday – Sunday 9am-Noon, (2 staff)
Saturday – Sunday Noon-9pm (3 staff)
Additional contract options exploring greater hours of operation were reviewed
by staff and APA. At this time, Staff’s goal is to bring the facility online, analyze
demand and user feedback, and based on that information present Council
with service options through the next fiscal year budget process. The contract
options include an initial two year term, November 1, 2021 through June 30,
2023, with an option of a one-year extension that may be reviewed each fiscal
year based on the contractor’s satisfactory performance.
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ALTERNATIVES
Council may elect to modify or not approve this Agreement with APA and direct
staff to re-publish an XPark Management and Maintenance Services RFP.
Prepared by: Michael Calderon, Community Resources Analyst
Approved by: Chris Escobedo, Community Resources Director
Attachment: 1. Agreement for Contract Services
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