2023-24 Desert Pickleball LeagueMEMORANDUM
DATE: September 11, 2023
TO: Christina Calderon, CS Deputy Director
FROM: Caroline Doran, Sr. CS Specialist/Luis Magallanez, CS Specialist
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RE: Coachella Valley Grand Prix Tennis, LLC, DBA Desert Pickleball League
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
F-1_ 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 F-1. RFP F-1 RFQ E_ 3 written informal bids
QSole Source 1:1 Select Source Cooperative Procurement
Reauestina department shall check and attach the items below as auurouriate:
�✓ _ Agreement payment will be charged to Account No.: 101-0000-42211
❑✓u Agreement term: Start Date October 1, 2023 End Date October 1, 2024
Fv L Amount of Agreement, Amendment, Change Order, etc.: $ 0
REMINDER; Signing authorities listed above are applicable on the aggregate Agreement amount,
not individual Amendments or Change Orders!
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Insurance certificates as required by the Agreement for Risk Manager approval
Approved by: Laurie McGinley Date: 9/25/2023
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)
F-1_ Business License No. Expires:
❑_ Requisition for a Purchase Order has been prepared (Agreements over $5,000)
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 Coachella Valley Grand Prix Tennis, LLC (CVGPT) DBA Desert
Pickleball League, a California Limited Liability Corporation, with a place of business at
45750 San Luis Rey Ave #134, Palm Desert, CA ("Contracting Party"). The parties hereto
agree as follows:
SERVICES OF CONTRACTING PARTY.
1.1 Scope of Services. In compliance with all terms and conditions of
this Agreement, Contracting Party shall provide those services related to the
organizing the Desert Pickleball League, 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.
1.2 Compliance 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.
1.3 Wage and Hour Compliance, Contracting Party shall comply with
applicable Federal, State, and local wage and hour laws.
1.4 Licenses, 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,
assessments, taxes, penalties, or interest levied, assessed, or imposed against
City hereunder. Contracting Party shall be responsible for all subcontractors'
compliance with this Section.
1.5 Familiarity 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).
1.6 Standard 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.
1.7 Additional 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 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
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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.
1.8 Special 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.
2.1 Contract 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 Zero Dollars ($0.00),
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, paymenTin accordance with the percentage of completion of the
Services, payment for time and materials based upon Contracting Party's rate
schedule, but 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 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.
2.2 Method 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. Such invoice shall (1)
describe in detail the Services provided, including time and materials, and (2) specify
each staff member who has provided Services and the number of hours assigned to
each such staff member. 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.
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2.3 Compensation 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.
3.1 Time 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.
3.2 Schedule of Performance. All Services rendered pursuant to this
Agreement shall be performed diligently and within the time period 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 Maieure. 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.
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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 October
1, 2023 and terminate on October 1, 2024 ("Initial Term"). This Agreement may be
extended for 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:
(a) Coachella Valley Grand Prix Tennis LLC
48375 Big Horn Drive, La Quinta, CA La
Quinta, CA 92253
ATTN: Kim Scholz
(b) City of La Quinta
78495 Calle Tampico
La Quinta, CA 92253
ATTN: Caroline Doran
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.
4.2 Contract Officer. The "Contract Officer", otherwise known as the
Senior Community Resources Specialist 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.
4.3 Prohibition 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 restriAd 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.
4.4 Independent 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, 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
(TERS") 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.
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4.5 Identity 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 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.
4.6 City 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.
5.1 Insurance. 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.
5.2 Proof of Insurance. Contracting Party
Insurance to Agency along with all required endorsements
endorsements must be approved by Agency's
commencement of performance.
6. INDEMNIFICATION.
shall provide Certificate of
Certificate of Insurance and
Risk Manager prior to
6.1 Indemnification. 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.
7.1 Reports. 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. Contracting Party hereby acknowledges that
City is greatly concerned about the cost of the Services to be performed pursuant to
this Agreement. For this reason, Contracting Party agrees that if Contracting Party
becomes aware of any facts, circumstances, techniques, or events that may or will
materially increase or decrease the cost of the Services contemplated herein or, if
Contracting Party is providing design services, the cost of the project being designed,
Contracting Party shall promptly notify the Contract Officer, or assigned designee, of said
fact, circumstance, technique, or event and the estimated increased or decreased cost
related thereto and, if Contracting Party is providing design services, the estimated
increased or decreased cost estimate for the project being designed.
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7.2 Records. 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 Services. Any and all such Books
and Records shall be maintained in accordance with generally accepted
accounting principles and shall be complete and detailed. 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. 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.
7.3 Ownership of Documents. 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 (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. 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
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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.
7.4 In 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.
7.5 Licensing of Intellectual Property. 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.
7.6 Release 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 disclose to
any other entity or person any information regarding the activities of City, except
as required by law or as authorized by City.
7.7 Confidential 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.
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8. ENFORCEMENT OF AGREEMENT.
8.1 California 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.
8.2 Disputes. 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 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 Retention of Funds. City may withhold from any monies payable to
Contracting Party sufficient funds to compensate City for any losses, costs,
liabilities, or damages it reasonably believes were suffered by City due to the
default of Contracting Party in the performance of the Services required by this
Agreement.
8.4 Waiver. 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.
8.5 Rights 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.
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8.6 Legal 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.
8.7 Termination 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 (30) 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. 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.
8.8 Termination 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.
8.9 Attorneys' 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.
NIB
9.1 Non -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.
9.2 Conflict 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 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.
9.3 Covenant 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.
10.1 Notice. 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.
-12-
To City: To Contracting Party:
CITY OF LA QUINTA
Attention: Caroline Doran Coachella Valley Grand Prix Tennis LLC
78495 Calle Tampico Attention: Kim Scholz
La Quinta, California 92253 48375 Big Horn Drive
La Quinta, California 92253
10.2 Interpretation. 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.
10.3 Section 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.
10.4 Counterparts. 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.
10.5 Integrated 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.
10.6 Amendment. 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.
10.7 SeverabilitY. 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.
10.8 Unfair 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.
-13-
10.9 No 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.
10.10 Authority. 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]
-14-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
stated below.
CITY OF LA QUINTA,
a California Municipal Corporation
JOK-McMILLEN, City Manager
`"City of La Quinta, California
Dated: C1 Z..-[/W2::;,
ATTEST
't
MONIKA RADEVA, City Clerk
City of La Quinta, California
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
-14-
CONTRACTING PARTY:
Coachella Valley Grand Prix Tennis LLC
KIM StHOLZ, Director
48375 Big Horn Drive
La Quinta, California
❑ated: AP: 3
Exhibit A Scope of
Services
1. Services to be Provided.
• Division Captains will let players know which teams to sign up with
• City of La Quinta will retain 100% of City's registration fees for court usage
for La Quinta players.
• Desert Pickleball League will retain 100% of Desert Pickleball League
registration fees from all league players.
• Contracting Party will coordinate league pickleball games at private
country clubs, and at Fritz Burns Park.
• League matches take place January through March 2024.
• Pickleball league registrations will be available for registration on the city
website or in person at the Wellness Center.
• Reserved signs will be placed on the Pickleball courts (12 courts) area a
week before league play.
• List of La Quinta players by division will be given to CVGPP.
• Registration for league play will begin in November 2023.
Contracting Party will coordinate league pickleball games at private
country clubs, and at Fritz Burns Park.
Dates for the Event:
Mixed: Select, Elite and Premier Divisions
Wednesdays: Jan 10, Jan. 17, Jan. 24, Jan. 31, Feb. 7, Feb. 14, Feb. 21, Feb. 28
Mar. 6, Mar. 13
Fridays (If needed): Jan. 19, Feb. 23, Mar. 15
Men's & Women's: Select, Elite and Premier Divisions
Thursdays_ Jan. 11, Jan. 18, Jan. 25, Feb. 1, Feb. 8, Feb. 15, Feb. 22, Feb. 29,
Mar. 7, Mar. 14,
Mondays (If needed): Jan. 22, Feb. 26, Mar. 4
(Dates above are subject to change depending on the number of registered participants)
Exhibit A Page
1 of 4
Last revised summer 2017
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:
1. 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 twentyfive 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-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,
Exhibit A Page
2 of 4
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.
2. Retention. Payments shall be made in accordance with the provisions of
Article 2.0 of the Agreement. In accordance with said Sections, City shall pay Contracting
Party a sum based upon ninety-five percent (95%) of the Contract Sum apportionment of
the labor and materials incorporated into the Services under this Agreement during the
month covered by said invoice. The remaining five percent (5%) thereof shall be retained
as performance security to be paid to Contracting Party within sixty (60) days after final
acceptance of the Services by the City Council of City, after Contracting Party has
furnished City with a full release of all undisputed payments under this Agreement, if
required by City. In the event there are any claims specifically excluded by Contracting
Party from the operation of the release, City may retain proceeds (per Public Contract
Code § 7107) of up to one hundred fifty percent (150%) of the amount in dispute. City's
failure to deduct or withhold shall not affect Contracting Party's obligations under the
Agreement.
3. Utility_ Relocation. City is responsible for removal, relocation, or protection
of existing main or trunk -line utilities to the extent such utilities were not identified in the
invitation for bids or specifications. City shall reimburse Contracting Party for any costs
incurred in locating, repairing damage not caused by Contracting Party, and removing or
relocating such unidentified utility facilities. Contracting Party shall not be assessed
liquidated damages for delay arising from the removal or relocation of such unidentified
utility facilities.
4. Trenches or Excavations. Pursuant to California Public Contract Code
Section 7104, in the event the work included in this Agreement requires excavations more
than four (4) feet in depth, the following shall apply:
(a) Contracting Party shall promptly, and before the following conditions
are disturbed, notify City, in writing, of any: (1) material that Contracting Party believes
may be material that is hazardous waste, as defined in Section 25117 of the Health and
Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site
in accordance with provisions of existing law; (2) subsurface or latent physical conditions
at the site different from those indicated by information about the site made available to
bidders prior to the deadline for submitting bids; or (3) unknown physical conditions at the
site of any unusual nature, different materially from those ordinarily encountered and
Exhibit A Page
3 of 4
generally recognized as inherent in work of the character provided for in the Agreement.
(b) City shall promptly investigate the conditions, and if it finds that the
conditions do materially so differ, or do involve hazardous waste, and cause a decrease
or increase in Contracting Party's cost of, or the time required for, performance of any part
of the work shall issue a change order per Section 1.8 of the Agreement.
(c) in the event that a dispute arises between City and Contracting Party
whether the conditions materially differ, or involve hazardous waste, or cause a decrease
or increase in Contracting Party's cost of, or time required for, performance of any part of
the work, Contracting Party shall not be excused from any scheduled completion date
provided for by this Agreement, but shall proceed with all work to be performed under this
Agreement. Contracting Party shall retain any and all rights provided either by contract
or by law which pertain to the resolution of disputes and protests between the contracting
Parties.
5. Safe . Contracting Party shall execute and maintain its work so as to avoid
injury or damage to any person or property. In carrying out the Services, Contracting
Party shall at all times be in compliance with all applicable local, state, and federal laws,
rules and regulations, and shall exercise all necessary precautions for the safety of
employees appropriate to the nature of the work and the conditions under which the work
is to be performed. Safety precautions as applicable shall include, but shall not be limited
to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions
in accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
6. Liquidated Damages. Since the determination of actual damages for any
delay in performance of the Agreement would be extremely difficult or impractical to
determine in the event of a breach of this Agreement, Contracting Party shall be liable for
and shall pay to City the sum of One Thousand dollars ($1,000.00) as liquidated damages
for each working day of delay in the performance of any of the Services required
hereunder, as specified in the Schedule of Performance. In addition, liquidated damages
may be assessed for failure to comply with the emergency call out requirements, if any,
described in the Scope of Services. City may withhold from any moneys payable on
account of the Services performed by Contracting Party any accrued liquidated damages.
Exhibit A Page
4of4
Exhibit B
Schedule of Compensation
Vendor shall not receive compensation for services rendered under this
agreement.
Page of
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.
"None"
Exhibit D
Special Requirements
Exhibit D
Page 1 of 1
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
Workers' Compensation
(Per statutory requirements)
Must include the following endorsements:
Workers Compensation Declaration of Sole Proprietor if applicable
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.
Professional Liability or Errors and Omissions Insurance as appropriate shall
be written on a policy form coverage specifically designed to protect against acts, errors
or omissions of the Contracting Party and "Covered Professional Services" as designated
in the policy must specifically include work performed under this agreement. The policy
limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must
"pay on behalf of the insured and must include a provision establishing the insurer's duty
to defend. The policy retroactive date shall be on or before the effective date of this
agreement.
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.
Exhibit E Page
1 of 6
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
deeplinking or framing, and infringement or violation of intellectual
property rights.
e. Liability arising from the failure to render professional services.
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.
Exhibit E
Page 2 of 6
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 Pertaininq to Provisions of Insurance Coverage b
Contracting Party. Contracting Party and City agree to the following with respect to
insurance provided by Contracting Party:
1. Contracting Party agrees to have its insurer endorse the third -party general
liability coverage required herein to include as additional 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all the coverages required and an additional insured
Exhibit E
Page 3 of 6
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.
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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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 4 of 6
14. 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.
15. 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. Acoverage 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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 E
Page 5 of 6
Exhibit F
Indemnification
F.1 Indemnitv for the Benefit of Ci
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 (with counsel
selected by City), 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 (with counsel selected by City), 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.
C. Indemnity Provisions for Contracts Related to Construction (Limitation on
Indemnity). Without affecting the rights of City under any provision of this agreement,
Contracting Party shall not be required to indemnify and hold harmless City for liability
attributable to the active negligence of City, provided such active negligence is
determined by agreement between the parties or by the findings of a court of competent
jurisdiction. In instances where City is shown to have been actively negligent and where
City's active negligence accounts for only a percentage of the liability involved, the
obligation of Contracting Party will be for that entire portion or percentage of liability not
attributable to the active negligence of City.
Exhibit F
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d. Indemnification Provision for Design Professionals.
1. Applicability of this Section F.1(d). Notwithstanding Section F.1(a)
hereinabove, the following indemnification provision shall apply to a Contracting Party
who constitutes a "design professional" as the term is defined in paragraph 3 below.
2. Scope of Indemnification. 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 and hold harmless City and any and all of its officials,
employees, and agents ("Indemnified Parties") from and against any and all 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, including, without limitation, incidental and consequential damages,
court costs, reimbursement of 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 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.
3. Design Professional Defined. As used in this Section F.1(d), the
term "design professional" shall be limited to licensed architects, registered professional
engineers, licensed professional land surveyors and landscape architects, all as defined
under current law, and as may be amended from time to time by Civil Code § 2782.8.
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.
Exhibit F
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