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2023 USA Shade & Fabric Structures, Inc - Monticello Park Project 2022- 20MEMORANDUM DATE: November 3, 2022 TO: Jon McMillen,City Manager FROM : Dianne Hansen, Management Analyst RE: Shade Structures, Inc. dba USA Shade & Fabric Sturctures, Inc. Project No 2022-20 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 September 20, 2022 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 n RFQ [ 3 written informal bids Sole Source LI Select Source U Cooperative Procurement Requesting department shall check and attach the items below as appropriate: Agreement payment will be charged to Account No.: 503-0000-71060 Agreement term: Start Date 11/01/2022 End Date 06/30/2023 Amount of Agreement, Amendment, Change Order, etc.: $62'209 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: Laurie McGinley Date: 11/3/2022 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. LIC760670 Expires: 4/30/2023 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 Shade Structures, Inc. dba USA SHADE & Fabric Structures, Inc. ("Contracting Party"). The parties hereto agree as follows: 1. 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 Project No. 2022-20 Monticello Park Shade Structure 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 such licenses, permits (permit fees waived), 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 -2- 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. 1.8 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 of Sixty -Two Thousand, Two Hundred and Nine Dollars ($62,209). (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, payment in 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 -3- 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 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. 2.3 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. -4- 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 or around November 1, 2022, and terminate on completion and acceptance of installation prior to June 30, 2023. 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) Name: David Schneider Tel No. 214-601-1518 E-mail: ''^^'^"^`''^ iaib55 ^h�''^ ^5 david.schneider@usa-shade.com (b) Name: Ashley Donde Tel No. 714-427-6981 Email: adonde©usa-shade.com 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 -5- 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 Dianne Hansen, Management Analyst Parks/Landscape 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 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. 4.4 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 w th only such obligations as are consistent w th that role. -6- 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. 4.5 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. -7- 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 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. 6.1 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. -8- 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. -9- 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. 7.4 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 -10- 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. 8.1 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. -11- 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. 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 -12- 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. 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 -13- 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. M SCELLANEOUS 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. To City: CITY OF LA QUINTA Attention: Dianne Hansen Management Analyst, Parks/Landscape 78495 Calle Tampico La Quinta, California 92253 To Contracting Party: USA SHADE and Fabric Structures. Inc. Attention: Ashley Donde Senior Regional Manager 1085 N. Main Street, Suite C Oran, CA 92867 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. -14- 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. 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. 10.10Authority. 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 -15- 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] -16- IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. CITY OF LA QUINTA, a California Municipal Corporation Digitally signed by Claudia Martinez Date: 2023.01.03 14:03:36-08'00' CONTRACTING PARTY: By: ��•Y-� Name: David Schneider JON MCMILLEN, City Manager Claudia Martinez, Acting City Manager City of La Quinta, California Title: Vice President Dated: January 3, 2023 ATTEST: MONIKA RADEVA, City Clerk La Quinta, California APPROVED AS TO FORM: WILLIAM H. IHRKE, City Attorney City of La Quinta, California By: Name: A hlcy Dondc Virginia Marquez Title: Rcgional Salcs Manager Assistant Secretary Exhibit A Scope of Services 1. Services to be Provided: Installation of a shade structure one over the swing set at Monticello park located at the corner of Monticello and Fred Waring Drive. 40 UHDE Itr Fabric Struceures, Structure Pricing Swing Set Shade U nit Quantity, Structure 3 Foundations 5V USA Shade U nit Type: Mw rar Peak G ro ut install atic n Not Applicable Structure5r:e: 24ftx34ft FootigType Drilled Pier u54 Shade Model Numbir 407.2 ease Attachmin-. PIH - Embed EntryHeght 12ft Anchor 8olts Not Applicable NoDfcolumns 4 Concre¢eCuttiM: NotApplicable NaofFabncPanels 4 Dirt Removal, Included Fabric Type' fabric color. Green : oiourshade_FR Blue JT}fYeRDW{B].1JL Surface Type: Wood chips steel Finish: steel Color: White £2�yy ��yy0�y{} ��yy V L�LkJO.�L Elerkrical Provisions: CableJHDW Finish: N/A Galvanized Concept No, Exhibit A Page 1 of 11 Last revised summer 2017 USASHADE S. Fabric Structures. Construction Assumptions 1) The designated area for our structureswill be accessible by drive -up for unloading of our trucks and equipment, including personnel ma - forklift etc. Should a crane be required and direct access not available, additional costs for such will be submitted by a Change Order. 2) Our pricing is based on the ability to perform all of our work with clear, sequential, and continuous access without interruption during normal daytime wn rki ng hours. We have assumed one mob it i zatio n for the i nsta I ati on of f oundatio ns steel and fabri c; fi additi onal mobil l i aatio ns are requi red, there wil l be an additional charge. We will require eeclusiveaccess tothe aeafor our work duringthe construction process. 3) Our pricing does not include daily site delays accessing the work areas. USA SHADE will submit a Change Order for ay delays caused by other trades which interfere or cause us to stopworking 4) Wewill require site sanitary facilities and refuse contaners by others within 200 feet of bur work. 5) USA SHADE will leave its work and materials in a clean condition at the conclusion of our work. 6) Barricades and public security requirements are not included. 1) Unless specifically included in this proposal, this agreement does not include, and Comp aywill not provide, services, labor, ormaterialsfor ay of the followingwnrk: (a) removal and disposal of ay materials containing asbestos or ay hazadousmaterials as defined by the EPA (b) moving Owner's property around the installation site; (c) repair or replacement of ary Purchaser or Owner -supplied materias; or (d) repair of dam to existing surfaces that may occur when construction equipment and vehicles ere being used in the normal course of construction. 8) Pricing for foundation design is based on drilled pier footings. In the event the geotechni cal report requires an alternate configuration, ay additional costs incurred will be submitted to the client by a Change Order. 9) Diggngof our foundations will not be constrned by any e.isting concrete or utilities. USA SHADE will not beresponablefor mixing or repairing ay underground utility lines such as d ectrical, telephone, gas, water, or sprinkler lines that may be encountered during installation. 10) Ary additional costs incurred as a result of had rock conditions requiring extra equipment, utility removal or repair, resulting in delay, will result in additional charges unless they ere detailed on as -built site drawings provided to USASHADE ormaked on the ground and communicated to USASHADE in writing prior to installation. GENERAL TERMS & CONDITIONS AND WARRANTY 1) Proposal: The above proposal is vaid for 1 Year from the date first set forth above After 30 da s, we reserve the right to increase prices due to the rise in cost of raw materials, fuel, or other cost ino eases. When applicable, USA SHADE & Fabric Structures reserves the right to implement a surchagefor significant increases in rave materials, including, but not limited to; fuel, steel, and concrete. Due to the duration of time between proposals contracts, and final i nstal I ati on, USA SHADE & Fabric Structures reserves the ri ght to implement this surcharge, when applicable. 2) Purchase: By executing this proposal, or submitting a purchase order pursuantto this proposal (which shaI incorporate the terms of this agreement specificaly by reference) which is accepted by USA SHADE & Fabric Structures (the "Compay"), the purchaser identified above ("you" or the "Purchased') agrees to purchase Shade Structures braid shade structures ("Structures') and the servi ces to be provided by the Comp ay, as detailed in the "Structure Pricing' and "General Scope of Work" sections of this agreement, above, or in the relevant purchase order accepted by the Compary, for use by Purchaser or for i nstal I ati on by Com pay or Purchaser on behalf of a thi rd-patty who will be the ultimate owner of the Structures (the ultimate owner of a Structure, whether Purchaser or a third- pargy, being the "Own eel'). 3) short Ship Claims: Purchaserhasl5 daysfrom receipt of the structuresto file a short ship report in writing to its saesrepresentative. Comparywill not honor claims made after this time 4) Standard Exclusions: Unless specifically included under the 'General Scope of Work" section above, this agreement does not include, and Comp ay will not provide, service labor, or materials for ary of the following work: (a) rem oval and disposal of ary materials containing asbestos or ary hazardous materials as defined by the EPA (b) moving Owner's property around the installation site; (c) repair or replacement of arty Purchaser or Owner -supplied materials; (d) repair of concealed underground utilities not located on prints supplied to Compaq by Owner during the bidding process, or physically staked out by Owner, and which are damaged during construction during normal course of construction. www.usa-shade.com 800-966-5005 AZ.289388 CA.909450 LA.61710 NV.70724 NV.70724 NM:383026 TN.60712 DIR: 1000003533 Exhibit A Page 2 of 11 USASHADE & Fabric Structures, 5) Bonding Guidelines: If Purchaser will use or providethe Structures and Services for an Owner other than Purchaser (including without limitation, as a subcontractor of Purchaser), Purchaser will i nclu de the following statement in Purchasers contract with Owner: "The maiufacturerswaranty for the Shade Structures brand shade strucaares is a separate document between USA SHADE & Fabric Structures and the ultimate owner of the Shade Structures brand shade structures, which will be prcwidedto the ultimate owner atthe time of completion of the installation and other servicesto be provided by USA SHADE & Fabric Structures. Due to surety requirements, any performance and/or payment bond will cover only the first year of the USA SHADE & Fabric Structureswaranty." 6) Insurance Requirements: Company is not required re provide any insurance cover ge in excess of Compary's standard insurance A copy of the Corn pary's standard insurance is mail abl a for your review prior to acceptance of the Corn pangs proposal. 7) Payment: Terms of payment are defined in the "Pricing Detils" section and are specific to this contract. For purposes of this reernent, "Completion" is defined as bengthe point at which the Structure is suitable for its intended use, the issue of occupancy consent, or afinal building department approval is issued, whichever occurs first Progress billing aid payment will be required. All payments must be made to Shade Structures, Inc., P.O. Box 734158, Dallas, TX 75373-4158. Cornpary may use all remedies availableto it under current laws including but not limited to, filing of liens against the property and using a collection agency or the courts to secure the collection of the outstanding debt. 8) Lien Releases: Upon request by Owner, Company will issue appropriate partial lien releases as corresponding payments are received from Purchaser, but prior to receivi ng fi nal payment from Purchaser or Owner. Cornpary will provide afull release of liens upon receipt of final payment. In accordance with state laws, Compary reserves the right to place alien on the property if final payment has not been receved10 days priorto the filing deadline for liens 9) Ske Plan Approval. Permk/s, Permit Fees. Plans. Engineering Drawings. and Surveying: Site plan approval, permits, permit feed plains, engineering drawings, and surveying ere specifically excluded from this agreement and the Services unless specified under the "General Scope of Work". The Cornpary does not in any way warrant or represent that a permit or site plan approve for construction will be obtaned. Sealed engineered drawings that are required but not induded inthe "Genera Scope of Work' will result in an additional costto Purchaser. 10) Manufacturing & Delivery: Manufacturing I eal-tim e from Corn s receipt of the "NoticeTo Proceed" is approximateY 6 to 8 weeks for staida-d structures, and 8 to 12 weeks for custom structures Delivery is approximately 1 week theredter. Delivery of structures mai be prior to or at scat of assembly. Please note that these ti rneli nes do not include approval or perrnittingtimeframes 11) Returned Product. Deposits. and/or Cancelled Order: Within the first45 days d-ter shipment from our facility, all returned product(s) and cancelled orders are subjectto a50% restocking fee. No returns a-e a aiIable following thi s 45 day period. All deposits are non-refundable. All expenses incurred (engineering site surveys, shipping, handling etc.) arethe responsibility of the Purchaser, up to notice of cancellation. 12) Concealed Conditions: "Concealed condition include, without limitation,waer, gas, sprinkler, electrical and sewage lines, post tension cables, and steel reba. This agreement is based solely on obsenvaions the Company was able to make either try visue inspection or by drawings and/or plans submitted try Owner a thetimethis agreement was bid. If additional Concealed Conditions are discovered once work has commenced, which were not visible a the tirnethis proposal was bid, Company will stpwork and indicate these unforeseen Concealed Conditions to Purchaser or Owner so that Purchaser and Cornpary can execute a Change Order for anyy additional work. In any event, any damage caused by or to unforeseen Concealed Conditions is the sole responsibility of the Purchaser aid Company shall not be held liablefor anyy such damage. Soil conditions are assumed to be soil that does not contain atyy water, hard rock (such as limestone, caliche, etc.), rocks lager than 4 inches in diameter, or arr." other condition that will require additione labor, equipment and/or rnaeri e s not specified by the Purchaser or Owner in the bidding process. Ary condition requiring addition labor, equipment, and/or materials to complete the drilling or concrete operaions will require a Change Order before Compary will complete the process. Price quotes are based on a drilled pier footing Arty vaiation will incur additional charges (i.e spread footings, concrete ma, sand, water, IandfiII, etc.). Costsfor footing and installation do not include arty allowance for extending belowfrost lines (the additional costsfor which vary by geographical region). www.usa-shade.com 800-966-5005 AZ.289388 CA.989450 LA.61710 NV.70724 NV.70724 NM:383026 TN.60712 DIR: 1000003533 Exhibit A Page 3 of 11 USASHADE B. Fabric structures, 13) Changes in the Work: During the course of this project, Purchaser may order changes in the work (both additions and deletions). Additionaly, an approving agency may require changes in the wo rk from the on nal design or engineering quoted and provided by the Company (both additions and deletions.) The cost of these changes will be determined by the C omparry, and a Change Order form must be completed and signed by both the Purchaser and the Company, which will detail the "General Scope of the Change Order". Should any Change Order be essential to the completion of the project, and the Purchaser refuses to authorize such Change Order, then Company will be deemed to have performed its part of the project, and the project and sevices will be terminated. Upon such termi natio n, Company will submit a final biIIingto Purchaser for payment, less a labor diowancefor work not performed but including additional charges incurred due to the stoppage. No credit vvill be allowed for rn aerial s sold and supplied, which will remain the property of the Purchaser. 1 and employees or any of then from and aganst claims, dames, losses and e(penses, including, but not limited to, attorneys' fees mated to the urcnaser or rts aga employee, or suocorttrators, or anyone oire coy or inoirecny ernployeo oytnern or ayoneror' nose aastney may DeIiaoIe, construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in Section 15. 15) Statement of Limited Warranty: • The structural integrity of all supplied steel is warranted for ten years. • If assembly is provided by the Company, workmanship of the structure is covered for oneyear, including labor for the removal of ary fated part, disassembly (if necessary), cost of shipping and reassembly. • All steel surface fi nishes are warantedfor one year. • Shadesure"',ColourshadeeFR, e<trerne32"",Commercial95",SaFRshade"',and Monotec370— fabrics all caryaten year limited manufacturer s warranty against fa lu re from significant fading deterioration, breakdown, outdoor heat, cold, or discoloration. Should the fabri c need to be replaced under the warranty, the Company will manufacture and ship a new replacementfabric at no charge for the first six years, thereafter pro -rated at 20% per year overthe re n ningfour yeas. Thefollowing ate exceptions to the preceding waranty terms o Shad eure—fabric in Red, Yellow, Atomic Orange, Electric Purple, Zesty Lime, Cinnamon, Olive, and Mulberry carry a fiv e year pro -rated o Fabric tops attached to Cool brel la"" structures carry a three y ear warranty; o Individual fabric tops measuring greater than 40' in length are covered by a non -prorated fiv eyear warranty; o Precontraint502' waterproof membrane is subject to an eghtyear pro-ratedwaranty. • Sewing thread is waranted for ten years. www.usa-shade.com 800-966-5005 AZ.289388 CA.909450 LA.61710 NV.70724 NV.70724 NM:383026 TN.60712 DIR: 1000003533 Exhibit A Page 4 of 11 USASHADE B. Fabric structures, General Li mited Warranty Tams and Conditions • These limitedwaranties are effective from the date of sale, or, if assembly is provided by the Company, upon receipt by Company from Purchaser of a completed and signed "Customer Checklist and Sign -off" form. • In its sole discretion, the Company will repair and or/replace defective structures, products or workmanship, or refund that portion of the price related to the defective product, labor, or service rendered. • The Comparry reserves the right, in cases where certain fabric colors have been discontinued, to urrcrthe Purchaser or Owner a choice of available alternative col ors to replace the warranted fabric. The Company does not guaantee that ary particular color will be av a I abl a for ary period of time, aid reservesthe right to discontinue ary color for ary reason, without recourse by the Purchaser or Owner of the d isconti nued fabric color. Should the Purchaser or Owner sell the structures to another party, thewarranty cannot be transferred to the new owner without a complete and thorough on -site inspection performed by a Company representative Please contact the Compary atwarantyPusa-shadecorn for more details. • All warranty claims cowering Company supplied structures} products, and services must be submitted by Purchaser or Owner in writing to the Cornpary withinthirty days from the date of discovery of the alleged defect and must indude a detailed description and applicable photographs of the aleged defect or problem. Warranty clams should be submitted by ehneiltowarranty[avusa-shaiecorn. usk. Venue for litigation dispute sh utd )e in Riverside County • These limitedwarranties ere void if: o the supplied structures, products services and/or labor ere not pad for in full; o the structures ere not assembled in strict comp li ante with USASHADE specifications; o ahr changes, modifications, additions, or attachments are made to the structures in any way, without prior written apprrnval from the Company. Specificals, no signs, objects, fans, light fixtures, etc. ma" be hungfrom the structures unless specifically engineered by the Cornpary. • These limitedwaranties do not cover defectts and/or damages caused by: o normal wear aid tea; o misuse, willful or intentional damage, vandalism, contactwith chemicals, cuts aid Acts of God (i.e. tornado, hurricane, micro/macros burst, eathquarce, wildfires etc.); o ice, snow or wind loads in excess of the designed load parameters engineered for the supplied structures; o use, maintenance, negiect, repair, and/or service inconsistent with the Cornpany'swritten cue aid maintenance instructions} provided with the order. • The limited warranties explicitly exclude o workmanship related to assembly not provided by the Company or its agents; o fabric curtains valances and fl at vertical panels o fabrictops installed on structures that were not engineered and originals supplied bythe Company. • THE COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, LIQUIDATED, EXEMPLARY, OR PUNTfIVE DAMAGES, OR ANY LOSS OF REVENUE, PROFIT, USE OR GOODWLL, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, ARISING OUT OFA BREACH OF THIS WARRANTY OR IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE, USE, OPERATION OR REPAIR OF ANY PRODUCT OR SERVICE. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY AMOUNT GREATER TI-LAN THE PURCHASE PRICE FOR ANY PRODUCT OR SERVICE PROVIDED BY THE COMPANY. • THE FOREGOING LIMITED WARRANTY IS THE SOLE AND B<CLUSME WARRANTY FOR THE COMPANY'S PRODUCTS AND S E WIC ES, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT. SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WTHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING OR PERFORMANCE OR TRADE USAGE. PURCHASER, BY ACCEPTANCE AND USE OF THIS LIMITED WARRANTY, WAIVES ANY RIGHTS IT WOULD OTHERWISE HAVE TO CLAIM OR ASSERT THAT THIS LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. Co burshade° and e%treme 15" are regsteredtrademarks of Mutt ik nit Pty. Ltd. Commercial 95— a rd 5a F FGhade'" are registered tradem a rks of Gale Pacific USA Inc. Monotec 370'" is a registered t rude ea r k of PRO —I( NET Industries Pty. Ltd. Precontraint 505r" sa registered trademark of Serge Ferrari North America, Inc. www.usa-shade.cam 800-966-5005 AZ.289388 CA.909450 LA.61710 NV.70724 NV.70724 NM:383026 TN.60712 DIR: 1000003533 Exhibit A Page 5 of 11 USASHADE & Fabric Structures. 16) Assembly/Installation: • Corn pay will notify Purchaser of the scheduled assembly date. Owner agrees to have an owner representative meetthe assembly crew at the job site on the scheduled assembly date to verify the exact Iocationwherethe structure(s) is to be placed. • Labor for the removal, assembly, and/or freight charges will only be covered by Compary in i nstanceswhere the structures supplied and installed by Corn pay are determined by the Compary to be defective. In all cases where structures are not installed by Company, all labor for the removal, assembly, and/or freight of the structures will be the Purchasers responsibility. • Installation prices are based on a single mobilization charge. If additional mobilizations ere required, there will be additional charges. • If the requested services require Cornpay accessto Ownerspremise, Cornpay will be provided access to the Owners premisesfree aid clew of debris, auto mobil es or other interference Mond _ Fridw duringthe hours of8:00amm6:00pro, and Compay will have access to water and dectrical facilities during installation. Additional charges will apply if utilities ye not easily accessible. Where applicable all vehicles will be moved prior to Company's crew begnning ary installation. • Corn pay will not be responsible for moving or repairing ay underground utility lines such as electrical, telephone, gas, water, or sprinkler linesthat may be encountered during installation. • Ary aiditional costs incurred as a result of hard rock conditions requiring extra equipment, utility rernoval or repair resulting in delay will result in additional charges unless they ere detailed on as built site dra ings provided to Company or marked on the ground and communicated to Company in writing prior m fabrication and installation. 17) Installation/Assembly on -site: Where i nsial lati on/assembly is part of the services, Purchaser must provide the Company with a detailed drawing prepaed by or for the Owner showing ecactly where the structures are to be assembled as well as deta ling ay obstacles or other impedimentstha may cause the assembly process to be more difficult. Ary fixture(s), eg., playground, pools etc., that the structures ere to be assembled over must also be detaIed, along with their peak heights (if applicable). 18) Ske/tise Review by Purchaser: Compare./ relies on the Purchaser to determinethatthe structures ordered ere appropriate and sefefor the Owner's installation site and/or intended use. Company is not responsible for damages or injuries resulting from collisions by moving objects or personswith the structure post(s). Company can recommend, or supply atadditiona cost, padding for posts from athird party manufacturer. 19) prep orator v Work Where in Ica senib is part of the services and in the event that thefoundation orjob site is not suitable or ready for assembly m begin on the scheduled day, a Dday of Order notification must be sent to Company at least4 working dws prior, in order to allow Company ID reschedule the project Inthe event that Company is not notified and incurs an expense in attemptingto execute the assembly, a re -mobilization charge may be charged to Purchaser before Company will reschedule the assembly. 20) j)eleeation: Subcontractors: The services and the manufacturing and assembly of the structures may be performed by subcontractors under appropriate agreements with the Cornpay. 21) Force Majeure: Impracticability: The Co mpary shall not be chaiged with any loss or damage forfalure or del q, in delivering or assembling of the structures when such failure or delay is due to ay cause beyond the control of the Company, due to compliance with govern mental regulations or orders, or due to any Acts of God, strikes, lockouts, slowdowns, was, or shortages in transportation, materials or labor. 22) Dispute Resolution: Any controversy or clam arising out of or related to this agreement must be settled by binding arbitration administered in Dtzginsga Riverside County, CA by a singe arbitrator selected by the parties or by the American Arbitration Association, and conducted in accordance with the construction industry arbitration rules. Judgment upon the award may be entered in ay court having jurisdiction thereof. 23) Entire Agreement; No Reliance: This agreement represents and containsthe entire agreement between the parties. Prior discussion or verbal representations by the parties that ere not contaned in this agreement are not part of this agreement Purchaser hereby acknowledges that it has not received or relied upon any statements or representations by Cornpary or its agents which are not expressly stipulated herein, including without linnitaion any statements as to the structures, warranties, or services provided hereunder. 24) No Mid -Patty Bend iciaries: This agreement creates no third -perry rights or obligaions between Comp ay and ay other person, includingary Owner who is not also a Purdhaser. It is understood and agreed tha the parties do not intend tha ary third party should be a beneficiey of this agreement. 25) Govern itgLaw: The agreement will be construed and enforced in accordance withthe laws of the State of Tn2X8'sc California, without regard to conflict of laws principles 26) pcdrnment; Purchase may not assign this agreement, by operaion of law or otherwise, without the prior written consent of Company. The agreement shall be binding upon and insure ID the benefit of the Company and the Purchaser, and thdr successors and permitted assigns www.usa-shade.com 800-966-5005 AZ.289388 CA.909450 LA.61710 NV.70724 NV.70724 NM:383026 TN.60712 DIR: 1000003533 Exhibit A Page 6 of 11 USASHADE & Fabric Structural'. Executed to be effective as of the date executed by the Company: NOTE: FOR ANY PURCHASE EQUAL TO OR EXCEEDING $100,000.00 USD, NO WORK, OTHER THAN PRE -WORK, SHALL BE UNDERTAKEN WITHOUT A MUTUALLY ACCEPTABLE AND SIGNED CONSTRUCTION CONTRACT. PUR CHASER: City of La cuinta Signatu re: By: CPrintj Title: Date: SELLER: Shade Structures, Inc. DIM USA 5ha de Sign atu re: By: CPrintj Robert Blakley Title: Sr Vice President USA Shade (PlayPower) Date: 12/27/22 NOTE: All purchase orders and contracts should be drafted in the name of Shade Structures, Inc. www.usa-shade.com 800-966-5005 AZ.289388 CA.909450 LA.61710 NV.70724 NV:70724 NM:383026 TN.60712 DIR: 1000003533 Exhibit A Page 7 of 11 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 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 11 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. 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. 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: Exhibit A Page 9 of 11 (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 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. Safety. 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. Exhibit A Page 10 of 11 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 11 of 11 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 Sixty -Two Thousand, Two Hundred and Nine Dollars ($62,209) ("Contract Sum"). The Contract Sum shall be paid to Contracting Party in one lump sum on completion and acceptance of the work, attached hereto for the work tasks performed and properly invoiced by Contracting Party in conformance with Section 2.2 of this Agreement. Exhibit B 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. Work shall commence on an agreed upon date on or around November 1, 2022, and terminate on completion and acceptance of installation on or around June 30, 2023. Exhibit C Page 1 of 1 Exhibit D Special Requirements Contractor is responsible to pull required City permits (fees will be waived) and schedule required inspections. Shade fabric colors are to be green and yellow to coordinate with the playground Contractor is responsible to ensure all measurements are accurate. Contractor is responsible for mobilization, storage of materials, and any required pedestrian and/or traffic control. Equipment required for installation includes the use of a skid steer and 12kreachlift ; use of cranes is excluded. 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 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 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. 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 Exhibit E Page 1 of 6 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. 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. Exhibit E Page 2 of 6 Exercise of 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: 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. Exhibit E Page 3 of 6 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 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 Exhibit E Page 4 of 6 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. 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. 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. 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. Exhibit E Page 5 of 6 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 6 of 6 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 (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 Exhibit F Page 1 of 3 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. 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 Exhibit F Page 2 of 3 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 Page 3 of 3 CONSENT CALENDAR ITEM NO. 14 City of La Quinta CITY COUNCIL MEETING: September 20, 2022 STAFF REPORT AGENDA TITLE: APPROVE AGREEMENT FOR CONTRACT SERVICES WITH SHADE STRUCTURES, INC. DBA USA SHADE & FABRIC STRUCTURES, INC. THROUGH SOURCEWELL COOPERATIVE PURCHASING FOR INSTALLATION OF A SHADE STRUCTURE AT MONTICELLO PARK, PROJECT NO. 2022-20 RECOMMENDATION Approve Agreement for Contract Services for the installation of a shade structure at Monticello Park, Project No. 2022-20, with Shade Structures, Inc. dba USA Shade & Fabric Structures, Inc. through Sourcewell Cooperative Purchasing; and authorize the City Manager to execute the Agreement. EXECUTIVE SUMMARY • Monticello Park (Monticello) includes three play areas; the swing set area is in need of a shade structure. • The City utilizes Sourcewell Cooperative Purchasing (Sourcewell) for procurement of goods and services. • Shade Structures, Inc. dba USA Shade & Fabric Structures, Inc. (USA Shade) submitted a quote for the installation of a shade structure over the swing set at Monticello for $62,209. FISCAL IMPACT Funds for the installation of a shade structure at Monticello is budgeted in the fiscal year 2022/23 Capital Expenses, Parks (Account No. 503-0000-71060) SHADE STRUCTURE LOCATION COST Monticello Park $ 62,209 Contingency Amount 20% $ 12,442 TOTAL: $74,651 221 BACKGROUND/ANALYSIS Monticello has three play areas, and shade structures were installed over the playgrounds for ages 2-5 and 5-12 in the 2021/22 FY. Currently there is no shade over the swing set area. A shade structure over the swing set would provide relief from the sun and make the swings more user friendly. The City utilizes Sourcewell to streamline the procurement process. A quote from USA Shade was received through Sourcewell, which complies with the City's purchasing policy. Based on USA Shade's qualifications, staff recommends approval of the Agreement for Contract Services (Attachment 1) USA Shade submitted a quote for the installation of the structure over the swing set at Monticello. The cost to add the structure including a 20% contingency would be $74,651 ALTERNATIVES Council may direct staff to seek other alternatives or deny this request. Prepared by: Dianne Hansen, Management Analyst Approved by: Bryan McKinney, Public Works Director/City Engineer Attachment: 1. Agreement for Contract Services 222