2024 USA Shade & Fabric Structure - LQ Park Shade Structures Proj. 2023-25MEMORANDUM
DATE: February 1, 2024
TO: Jon McMillen,City Manager
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FROM: Dianne Hansen, M&O Superintendent
RE: Shade Structures, Inc. dba USA Shade & Fabric Structures, Inc. Project No 2023-25
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 January 16, 2024 Business Item No. 1
.a 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):
.a Bid F-1 RFP 0 RFQ _❑. 3 written informal bids
QSole Source F] Select Source IVY] Cooperative Procurement
Reauestina deuartment shall check and attach the items below as anurouriate:
7 Agreement payment will be charged to Account No.: 503-0000-71060
✓� Agreement term: Start Date 01/30/2024 End Date 07/30/2024
Amount of Agreement, Amendment, Change Order, etc.: $482,354
REMINDER: Signing authorities listed above are applicable on the aggregate Agreement amount,
not individual Amendments or Change Orders!
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Insurance certificates as required by the Agreement for Risk Manager approval
Approved by: Laurie McGinley Date: 2/1/2024
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)
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Business License No. LIC762670
Expires:
4/30/2024
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. 2023-25
LQ Park Playground Shade; 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
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.
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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.
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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 Four -Hundred, Eighty -Two Thousand, Three -
Hundred and Fifty -Four Dollars ($482,354). (the "Contract Sum"), except as provided in
Section 1.7. The method of compensation set forth in the Schedule of Compensation may
include progress payments or 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 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
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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 mutually agreed upon
Schedule of Performance, as set forth in Section 3.2 and "Exhibit C", it is understood that
the City will suffer damage.
3.2 Schedule of Performance. All Services rendered pursuant to this
Agreement shall be performed diligently and within the time period established in "Exhibit
C" (the "Schedule of Performance"). Extensions to the time period specified in the
Schedule of Performance may be approved in writing by the Contract Officer or assigned
designee.
3.3 Force 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 January
30, 2024, and terminate on completion and acceptance of installation on or around July
30, 2024.
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:
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(a) Name: David Schneider
Tel No. 214-601-1518
E-mail: dsshneider@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 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, Maintenance & Operation Superintendent 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.
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City shall have no voice in the selection, discharge, supervision, or control of Contracting
Party's employees, servants, representatives, or agents, or in fixing their number or hours
of service. Contracting Party shall perform all Services required herein as an independent
contractor of City and shall remain at all times as to City a wholly independent contractor
with only such obligations as are consistent with that role. Contracting Party shall not at
any time or in any manner represent that it or any of its agents or employees are agents
or employees of City. City shall not in any way or for any purpose become or be deemed
to be a partner of Contracting Party in its business or otherwise or a joint venture or a
member of any joint enterprise with Contracting Party. Contracting Party shall have no
power to incur any debt, obligation, or liability on behalf of City. Contracting Party shall
not at any time or in any manner represent that it or any of its agents or employees are
agents or employees of City. Except for the Contract Sum paid to Contracting Party as
provided in this Agreement, City shall not pay salaries, wages, or other compensation to
Contracting Party for performing the Services hereunder for City. City shall not be liable
for compensation or indemnification to Contracting Party for injury or sickness arising out
of performing the Services hereunder. Notwithstanding any other City, state, or federal
policy, rule, regulation, law, or ordinance to the contrary, Contracting Party and any of its
employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment
by City, including but not limited to eligibility to enroll in the California Public Employees
Retirement System (TERS") as an employee of City and entitlement to any contribution
to be paid by City for employer contributions and/or employee contributions for PERS
benefits. Contracting Party agrees to pay all required taxes on amounts paid to
Contracting Party under this Agreement, and to indemnify and hold City harmless from
any and all taxes, assessments, penalties, and interest asserted against City by reason
of the independent contractor relationship created by this Agreement. Contracting Party
shall fully comply with the workers' compensation laws regarding Contracting Party and
Contracting Party's employees. Contracting Party further agrees to indemnify and hold
City harmless from any failure of Contracting Party to comply with applicable workers'
compensation laws. City shall have the right to offset against the amount of any payment
due to Contracting Party under this Agreement any amount due to City from Contracting
Party as a result of Contracting Party's failure to promptly pay to City any reimbursement
or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Contracting Party represents that it
employs or will employ at its own expense all personnel required for the satisfactory
performance of any and all of the Services set forth herein. Contracting Party represents
that the Services required herein will be performed by Contracting Party or under its direct
supervision, and that all personnel engaged in such work shall be fully qualified and shall
be authorized and permitted under applicable State and local law to perform such tasks
and services.
4.6 City Cooperation. City shall provide Contracting Party with any plans,
publications, reports, statistics, records, or other data or information pertinent to the
Services to be performed hereunder which are reasonably available to Contracting Party
only from or through action by City.
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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.
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
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and Records at all times during normal business hours of City, including the right to
inspect, copy, audit, and make records and transcripts from such Books and Records.
Such Books and Records shall be maintained for a period of three (3) years following
completion of the Services hereunder, and City shall have access to such Books and
Records in the event any audit is required. In the event of dissolution of Contracting
Party's business, custody of the Books and Records may be given to City, and access
shall be provided by Contracting Party's successor in interest. Under California
Government Code Section 8546.7, if the amount of public funds expended under this
Agreement exceeds Ten Thousand Dollars ($10,000.00), this Agreement shall be subject
to the examination and audit of the State Auditor, at the request of City or as part of any
audit of City, for a period of three (3) years after final payment under this Agreement.
7.3 Ownership of Documents. All drawings, specifications, maps, designs,
photographs, studies, surveys, data, notes, computer files, reports, records, documents,
and other materials plans, drawings, estimates, test data, survey results, models,
renderings, and other documents or works of authorship fixed in any tangible medium of
expression, including but not limited to, physical drawings, digital renderings, or data
stored digitally, magnetically, or in any other medium prepared or caused to be prepared
by Contracting Party, its employees, subcontractors, and agents in the performance of
this Agreement (the "Documents and Materials") shall be the property of City and shall be
delivered to City upon request of the Contract Officer, or assigned designee, or upon
the expiration or termination of this Agreement, and Contracting Party shall have no claim
for further employment or additional compensation as a result of the exercise by City of
its full rights of ownership use, reuse, or assignment of the Documents and Materials
hereunder. Any use, reuse or assignment of such completed Documents and Materials
for other projects and/or use of uncompleted documents without specific written
authorization by Contracting Party will be at City's sole risk and without liability to
Contracting Party, and Contracting Party's guarantee and warranties shall not extend to
such use, revise, or assignment. Contracting Party may retain copies of such Documents
and Materials for its own use. Contracting Party shall have an unrestricted right to use the
concepts embodied therein. All 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,
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to agree in writing that City is granted a non-exclusive and perpetual license for the
Documents and Materials the subcontractor prepares under this Agreement. Contracting
Party represents and warrants that Contracting Party has the legal right to license any
and all of the Documents and Materials. Contracting Party makes no such representation
and warranty in regard to the Documents and Materials which were prepared by design
professionals other than Contracting Party or provided to Contracting Party by City. City
shall not be limited in any way in its use of the Documents and Materials at any time,
provided that any such use not within the purposes intended by this Agreement shall be
at City's sole risk.
7.6 Release of Documents. The Documents and Materials shall not be released
publicly without the prior written approval of the Contract Officer, or assigned designee,
or as required by law. Contracting Party shall not disclose to any other entity or person
any information regarding the activities of City, except as required by law or as authorized
by City.
7.7 Confidential or Personal Identifying Information. Contracting Party
covenants that all City data, data lists, trade secrets, documents with personal identifying
information, documents that are not public records, draft documents, discussion notes, or
other information, if any, developed or received by Contracting Party or provided for
performance of this Agreement are deemed confidential and shall not be disclosed by
Contracting Party to any person or entity without prior written authorization by City or
unless required by law. City shall grant authorization for disclosure if required by any
lawful administrative or legal proceeding, court order, or similar directive with the force of
law. All City data, data lists, trade secrets, documents with personal identifying
information, documents that are not public records, draft documents, discussions, or other
information shall be returned to City upon the termination or expiration of this Agreement.
Contracting Party's covenant under this section shall survive the termination or expiration
of this Agreement.
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,
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safety, or general welfare, City may take such immediate action as City deems warranted.
Compliance with the provisions of this Section shall be a condition precedent to
termination of this Agreement for cause and to any legal action, and such compliance
shall not be a waiver of any party's right to take legal action in the event that the dispute
is not cured, provided that nothing herein shall limit City's right to terminate this
Agreement without cause pursuant to this Article 8.0. During the period of time that
Contracting Party is in default, City shall hold all invoices and shall, when the default is
cured, proceed with payment on the invoices. In the alternative, City may, in its sole
discretion, elect to pay some or all of the outstanding invoices during any period of default.
8.3 Retention of Funds. City may withhold from any monies payable to
Contracting Party sufficient funds to compensate City for any losses, costs, liabilities, or
damages it reasonably believes were suffered by City due to the default of Contracting
Party in the performance of the Services required by this Agreement.
8.4 Waiver. No delay or omission in the exercise of any right or remedy of a
non -defaulting party on any default shall impair such right or remedy or be construed as
a waiver. City's consent or approval of any act by Contracting Party requiring City's
consent or approval shall not be deemed to waive or render unnecessary City's consent
to or approval of any subsequent act of Contracting Party. Any waiver by either party of
any default must be in writing and shall not be a waiver of any other default concerning
the same or any other provision of this Agreement.
8.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies
of the parties are cumulative and the exercise by either party of one or more of such rights
or remedies shall not preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default by the other party.
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.
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8.8 Termination for Default of Contracting Party. If termination is due to the
failure of Contracting Party to fulfill its obligations under this Agreement, Contracting Party
shall vacate any City -owned property which Contracting Party is permitted to occupy
hereunder and City may, after compliance with the provisions of Section 8.2, take over
the Services and prosecute the same to completion by contract or otherwise, and
Contracting Party shall be liable to the extent that the total cost for completion of the
Services required hereunder exceeds the compensation herein stipulated (provided that
City shall use reasonable efforts to mitigate such damages), and City may withhold any
payments to Contracting Party for the purpose of setoff or partial payment of the amounts
owed City.
8.9 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this
Agreement, the prevailing party in such action or proceeding, in addition to any other relief
which may be granted, whether legal or equitable, shall be entitled to reasonable
attorneys' fees; provided, however, that the attorneys' fees awarded pursuant to this
Section shall not exceed the hourly rate paid by City for legal services multiplied by the
reasonable number of hours spent by the prevailing party in the conduct of the litigation.
Attorneys' fees shall include attorneys' fees on any appeal, and in addition a party entitled
to attorneys' fees shall be entitled to all other reasonable costs for investigating such
action, taking depositions and discovery, and all other necessary costs the court allows
which are incurred in such litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not such action is
prosecuted to judgment. The court may set such fees in the same action or in a separate
action brought for that purpose.
9. CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
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
-11-
interest of any corporation, partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. Contracting Party warrants that
it has not paid or given and will not pay or give any third party any money or other
consideration for obtaining this Agreement.
9.3 Covenant against Discrimination. Contracting Party covenants that, by and
for itself, its heirs, executors, assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation of, any person or group of
persons on account of any impermissible classification including, but not limited to, race,
color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry in
the performance of this Agreement. Contracting Party shall take affirmative action to
ensure that applicants are employed and that employees are treated during employment
without regard to their race, color, creed, religion, sex, marital status, sexual orientation,
national origin, or ancestry.
10. MISCELLANEOUS PROVISIONS.
10.1 Notice. Any notice, demand, request, consent, approval, or communication
either party desires or is required to give the other party or any other person shall be in
writing and either served personally or sent by prepaid, first-class mail to the address set
forth below. Either party may change its address by notifying the other party of the change
of address in writing. Notice shall be deemed communicated forty-eight (48) hours from
the time of mailing if mailed as provided in this Section.
To City:
CITY OF LA QUINTA
Attention: Dianne Hansen
M&O Superintendent
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.
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.
-12-
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.
10.10 Authority. The persons executing this Agreement on behalf of each of the
parties hereto represent and warrant that (i) such party is duly organized and existing,
(ii) they are duly authorized to execute and deliver this Agreement on behalf of said party,
(iii) by so executing this Agreement, such party is formally bound to the provisions of this
Agreement, and (iv) that entering into this Agreement does not violate any provision of
any other Agreement to which said party is bound. This Agreement shall be binding upon
the heirs, executors, administrators, successors, and assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
-13-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
stated below.
CITY OF LA QUINTA,
a California Municipal Corporation
c ILLEN, City Manager
City of La Quinta, California
Dated:
ATTEST:
MONIKA RADEVA, City CI
La Quinta, California
rffCj r`
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
CONTRACTING PARTY:
By:
Name: David Schneider
Title: Vice President
Name: Rob Blakl
Title: Senior Vice President
-14-
Exhibit A
Scope of Services
1. Services to be Provided:
Installation of new shade structure over the playground in La Quinta Park located at the
corner of Black Hawk Way and Adams Street.
i
s '
Unit Quantity:
li nit Type:
Stricture Size:
USA Shade Model Num
Entry Height:
No of Columns:
No of Fabric Tops:
Fabric Type:
Fabric Color.
Steel Finish:
Steel Color:
r
Electrical Provisions:
$ 482f354.27
CablefHDW Finish:
Concept No:
1
Foundations By
USA Shade
Custom 2f3
Grout Installation
WA
(see drawing)
Footing Type:
Drilled Pier
Custom Multi Panel
Base Attachment:
PIH- Embed
14ft
Anchor Bolts:
N/A
12
Concrete Cutting:
N/A
Multiple Panels
DirtRemoval:
Included
Colourshade FR
Surface Type:
Wood Chips
Green M j Yellow (Bj
Coastal Primer wj Powder
Coating
Beige
wl
N/A Pricing does not include demo of ebsiting structures.
Galvanized
Y■
tt
i
4 t
Ira
Exhibit A
Page 1 of 8 Last revised summer 2017
Construction Assumptions
11 The designated area for our structures will be aicessihle by drive-upfor unloading of our trucks and equipment, including personnel man -I ts, forkliftr
etc- should crane be required and direct acress not avail able, additional coats for such will be submitted by a Change order.
21 our pricing is based an the ability to perform all of our work with dear, sequentia I, and continuous aicess without interruption during normal dayti me
working hours. We have assumed one mobilization for the installation of foundations, steel and fabric i if additional mobiliatiom are required. there kill
bean additional charge- we will require exclusive access to the area for our work duringthe construction process-
3) our pricing does not include daily site delays accessing the work areas. USA SHADE will submit a Change orderfor any delays caused by other trades
which interfere or cause us to stop working-
4) We wil I require site sanita ry facil 6n and refuse containers by others within 206 feet of our work.
SM U5A SFIADE wi I leave its work and materials in a clean condition at the conclusion of our work.
eM Barricades a nd public security requirements are not included.
7) unless specifically included in this proposal, this agreement does not include, and Company will not provide, services, labor, or materials for any of the
following work: (a) remova I and disposal of any materials containing ashestos or any hazardous materials as defined by the EPA;;b] moving owner's
property around the installation site; (cj repair or replacement of any Purchaser or owner supplied materials; or;d) repair of damage to existing stwFaces
a nd landscapi ng that may occur when construction equipment and vehicles are being used in the normal course of construction.
81 Pdcin; for foundation desigh is based on drilled pier footings. In the event the gewedtniml report regtires an alternate €orrfgrration, any additional
costs incurred will be submitted to the client by a Change order.
9E Digging of our foundations will not be constrained by any existing concrete or utifties. USA SHADE will not he resporrsihle for moving or repairing any
underground utility lines such as electricalrtelephonne, gas, water, or sprinkler lines that may be en€ounteredduring installation.
101 Any additional costs incurred as a result of hard rod€ conditions requiring extra equipment, including drill r'Esr utility removal or repair, resulting in
delay, will result in additional charges unless they are detailed on as -built site drawings l rovidedto USA SHADE or marked on the ground and
communicated to USA SHADE in writing prior to installation-
11) Scheduling of workwill he on a mutually agreed schedule based on USA SHADES current lead times with engineerirrg, mWliers,manufarturing.
GENERAL TERMS & CONDITIONS AND WARRANTY
1) Proposal: The above proposal is valid for is days from the date first set forth above. After 15 days, we reserve the right to i ncrease prices due to the rise
in cost of raw materials, fuel, or other cost increases- when applicable, USA SHADE & Fabrc structures reserves the right to implement a surcharge for
significant increases in raw materials, including, but not limited t% fuel, steel, and co ncrete. Due to the duration of time between proposals, contracts, and
final installation, USA SHADE & Fabric Structures reserves the right to implement this surcharge, when apQlicable-
2j Purchase: By executing this proposal, or submitting a purchase order pursuant to this proposal 1whi€h shal I incorporate the terms of this agreement
specifically by reference♦ which is accepted by USA SHADE & Fabric Structures (the "Company'), the purchaser identified above ('you' or the 'Purchaser)
agrees to purchase Shade Structures brand shade structures ('structures") and the services to be provided by the Company, as detailed in the "Structure
Pricing" a nd "General scope of work' sections of this agreementr above, or in the relevant purchaseorder accepted by the Company, for use by Purchaser
or for installation by Company or Purchaser on behalf of a third -party who will be the ultimate owner of the Structures (the ultimate owner of a Structurer
whether Purchaser or a third -party, being the "awner"f.
3) Short Ship claims_ Purchaser has is days from receipt of the structures to file a shortship report in writing to its sales representative. Company will not
honor claims made after this time.
4) Standard Exclusions: Unless spe€ifi€al ly included under the "General 5€ope of work' section above, this agreement does not indude, and Company will
not provide, services, labor, or materials for any of the fol lowing work: 1a] removal and disposal of any materials containing asbestos or any haMrdous
materials as defined by the EPA; �bf moving owner's property around the instal lation situ (c) repair or replacement of any Purchaser or owner -supplied
materials; 1dj repair of concealed underground utilities not located on prints supplied to Company by Owner during the bidding process, or physi€aI ly
staked out by owner, and which are damaged during construction during normal course of construction.
Exhibit A
Page 2 of 8
5) Bonding Guidelines: If Purchaser will use or provide the Structures and services for an Owner other than Purchaser �indudinigr without limitation, as a
subcontractor of Purchaser], Purchaser will ind ude the following statement in Purchaser's contract with Owner:
`The manufacturer's warra my for the Shade Structures brand shade structures is a separate document between USA SHADE d: Fabric Structures and
the ultimate owner of the Shade structures brand shade structures, which will he provided to the ultimate owner at the time of completion of the
instal lation and other services to be provided by USA SHADE & Fa bric Structures. Due to surety requiremerrL r any performance and{or payment
bond will cover only the first year of the USA SHADE & Fabric Structures warranty-"
6) Insura nce Requi rements: Company is not required to provide any insurance coverage in excess of Compa nyf s standa rd insura nce. A o3py of the
Company's standard insurance is available for your review prior to acceptance of the Company's propma I.
7) PaYment=Terms of payment are defined in the 'Pricing Details" section and are specific to this €ontrmt_ For purposes of this agreement, "Completimi" is
defined as being the point at which the Structure is suitable for its intended use, the issue of occupancy consent, or a final building department approtia I is
issued, whichever occurs first. Progress billing and payment will be required- All payments most be made to Shade Structures, Inc., P.O. Boor 734158,
Dallas, Tx 75373-4158. Company may use all remedies available to it under current laws including, but not limited to, filing of liens againstthe property
a nd using a collection agency or the courts to secure the col Iection of the outstanding debt.
8) Lien Releases: upon request by owner, companywil I issue appropriate partial lien releases as corresponding payments are received from Pud•raser, but
prior to receiving final payment from Purchaser or Owner. rom pa ny wil I provide a full release of I iens upon receipt of final payment. In accordance with
state laws, Company reserves the right to placea lien on the property if final payment has not been received 10 days prior to the filing deadline for liens.
9) Srte Plan Approval- Permitfs. Permit Fees, Plarrs, Er&onreering Drawings, and Surveying: site plan approva I, permits, permit fees, plants, errg•reedrig
drawings, and surveying are spedfically excluded from this agreement and the services unless specified under the "General Scope of work". The company
does not in anyway warrant or representthat a permit or site plan approval for construction will be obtained. Sealed engineered drawings that are
required but not included in the "General Scope of work" wil I result in an additional cost to Purchaser-
10j Manufacturing & Delivery_ Manufacturing lead-time from Comparry's receipt of the "Notice To Proceed" is approximately Gto 8 weeks for standard
stnxlazu, and 8 to 12 weeks for custom structures. Delivery is approximately 1 week thereafter. Delivery of structures may be prior to or at start of
assembly. Please note that these timelines do not include approval or permitting timeframes.
it) Retuned Product Deposits, aWor Cancelled Order: within the first 45 days after shipment from our facility, all returned prodluct>5) and cancelled
orders are subject to a 5D%restocking fee. No returns are available foll owing this 45 day period. All deposits are non-refundable- All expenses incurred
[engineering, site surreys, shipping. hand ing, etc_f are the resporrsihilityr of the Purchaserr up to notice of cancellation.
12) Concealed Canditie ns: "Concealed conditiore induce, without Iimitrtionr water, gas, sprinklerr ele€trica I and sewage limes, post tension cables, and steel
rebar. This agreement is based solely on observations the Company was a ble to make either by visua I inspection or by drawings and/or plans submitted by
Owner at the time this agreement was bid- If additional Concealed Conditions are discovered once work has commenced, which were not visible at the
time this proposal was hid, Company will shop work and indicate these unforeseen Concealed Conditions to Purchaser or owner so that Purchaser a nd
Company can execute a Change Order for any additional work. in any event, any damage caused by or to unforeseen Concealed Conditions is the sole
responsibility of the Pu rchaser and Company shal I not be held I iable for any such da mage. 5Di conditions are assu med to he soil that does not contain a cry
waterr hard rock [such as limestone, caliche, etc.], rocks larger than a inches in diameter, or any other condition that will require additional labor,
equipment an cVor materials not specified by the Purchaser or owner in the bidding process. Any condition requiring additions I laborr equipment, andfor
materials to complete the dril ling or concrete operations will require a Change Order before Company will complete the process_ Price quotes are based
on a drilled pier food ng- Any variation wil I incur additional charges i.e. spread footings, concrete mat, sa nd, water, IandFil I, etc-1. Costs for footing and
instal Iation do not incl ude any allowance for Enending below frost I ines Ithe additional costs for which vary by geograph ical region.
Exhibit A
Page 3 of 8
13) Changes in the Work During the course of this project, Purchaser may order changes in the work jboth additions and deletions♦. Addilianallyr an
approving agency may require dharhges in the work from the original design or engineering quoted and provided by the Company (both additions and
deletions-) The cost of these changes wil I he determined by the Company, and a Change order form must be completed and signed by both the Purchaser
a nd the Comparry, which wil I detail the '%General Scope of the Change order". should any Change order be essential to the €omplebon of the projectr and
the Purchaser refuses to authorize such Cha nge orderr then Company will be deemed to have performed its part of the project, and the project and
services will he terminated. U pan such termination, Companyrwill submit final billing to Purchaser for payment, less a labor allowancefor work not
performed but including additional charges incurred drretothe stoppage- Ho credit will be al lowed for materials sold and supplied, which will remain the
property of the Purchaser.
1S) Statementof Limited Warranty_
■ The structural integrity of all suppl ied steel is warranted for ten years.
■ If assembly is provided by the Compa rryr workmanship of the structure is covered for one year, including labor for the removal of any failed part,
disassembly cif necessary)r cast of shippin& and reassembly.
■ All steel surface finishes a re warranted for one year.
■ 5hadesure-r Colourshade° M. eXtreme 32-r Com mercia l 95-r SaFPshade-. and hlonatec 3711- fabrics all carry a ten year limited manufacturers
warranty against failure from significant fading, deterioration, breakdowN outdoor heat, cold, or disoakrration- Should the fabric need to be replaced
under the warra My, the Company will manufactrre and ship a new replacement fabric at era charge for the first six yea rs, thereafter pro -rated at 20% per
yearover the remaining four years. The followiM are exceptions to the preceding warantyterms:
o Shadesure— fabrics in Red, Yellow, Atomicf3range, Electric Purple, asty time, Cinnamonr olive, and Mulberry carry a frve year pro -rated
o Fa brie tops attached to Coolbrellam stru€tures carry a three year wana nty;
o Individlual fabric tops measuring greater than 41Y in length are covered by a non -prorated five year warranty
o Precontraint 502— waterproof memb■a ne is subject to an eight year pro -rated warranty -
sewing thread is warranted for ten years -
General Limited warranty Terms and Conditions
■ These limited warra Mies 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 a nd sign -off' form.
■ In its sole discretion, the Company will repair and or/replace defective structures, products or workmanshipr or refund that portion of the price related to
the defective productr laborr or service rendered -
The Company reserves the rightr in cases where certain fabric colors have been discontinued, to offer the Purchaser or owner a choice of available
a Iternative colors to replace the warranted fabric. The Company does not guarantee that any particular color will be available for any period of time, and
reserves the right to disco Minue any color for any reason, without recourse by the Purchaser or owner of the discontinued fabric color.
■ 5houldthe Purchaser or owner sell the structures to another party, the warranty cannot be transferred to the new owner without complete and
thorough orrrsite inspection performed by a Com parry representative- P lease contact the Company at warra My@ usa-shade.cum fo r more deta ils-
■ All warrantydaims covering Company supplied structuresr prodrrct;r and services must he submitted by Purchaser or owner in writing to the Company
within thirty days from the date of discovery of the a Ileged defect and must include a detailed description and a ppli€able photographs of the alleged defect
or problem- warranty claims should be submitted by email to warranty@usa-shade.com.
■ Purchaser or owner agrees that venue for any court action to enforce these limited warranties shall be in the Riverside County in the State of California
■ These li m ited warra Mies are void if:
o the supplied stru turesr products, services arndior labor are not paid for in full;
o the structures are not assembled in strict rom plian€e with U54 5HADE specifications;
o any changes, modifications, additions, or attachments are made to the structures in anyway, without prior written approval from the Company.
Spedfimlly, no signs, objects, fans, light fixtures, etc. may be hung fro mthe structures, unless specifically engineered by the Company.
• These limited warranties do not cover defects and}or damages caused by:
o rhormalwear andtear,
o misuse, willful or intentional damager vandalismr romact with dhemicalsr cuts and Acts of God;i.e-tomado, hurricane, mk3v/macro5 burst,
earthquake, wildfires, etc);
o ice, snow or wind loads in excess of the designed load pa rameters engineered for the supplied structures;
o use, maintenance, neglect; repair, and/or service inconsistent with the Company's written care and maintenance instructions, provided with the
order -
The limited warranties explicitly exclude:
o workmanship related to assembly not provided by the company or its agerrts;
o fabric curtains, valancesr and fiat vertical panels;
o fabdc tops installed on structures that were not engineered and originally supplied by the Company.
Exhibit A
Page 4of8
• THE COMPANY SHALL NOT BE LIABLE FOR ANY INC DENTAL, CONSEQUENTIAL, SPECIAL, LIQUIDATED, EXEMPLARY, OR PUNITIVE DAMAGES, OR ANY LOSS
OF REVENUE, PROFIT, USE OR GOODWILL, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, ARISING
OUT OF A BREACH OF THIS WARRANTY OR IN OONNECTION WITIi THE SALE, INSTALLATION, MAINTENANCE, USE, OPERATION OR REPAIR OF ANY
PRODUCT OR SERACE. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY AMOUNT GREATER THAN THE PURCHASE PRICE FOR ANY PRODUCT OR
SERMICE PROVIDED BY THE COMPANY.
• THE FDREGOING LIM RED WARRANTY ISTHE SOLE AND EXCLUSIVE WARRANTY FOR THE COMPANY'S PRODUCTS AND SERVICES, AND IS IN LIEU OF ALL
OTHER WARRANTI E5, EXPRESS OR IMPLIED, IN LAW OR IN FACT. SELLER SPECIFICALLY DISCLAIMS ALL OTH ER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WrrHOUT UMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE, AND ANY
IMPLIED WARRANTIES ARISING OUT OF CDURSE OF DEALING OR PER FORMANCE OR TRADE USAGE. PURCHASER, BY ACCEPTANCE AND USE OF TH IS
LIMITED WARRANTY, WANTS ANY RIGHTS rr WOULD OTHERWISE HAVE TO CLAIM OR ASSERT THAT THIS LIMITED WARRANTY FAILS OF ITS ESSENTIAL
PURPOSE.
Colour -,bade #and eXtreme 32 r are neGistered trademarks of Multikn it Pty. Ltd.
Camntcrdal 9d'• and SaMshade— arc registered trademarks of Gale Padfic USA Inc.
Marwxc 3AR• is a registered tranemark of PRMNrr l ndustries Pty. Ltd.
Precontraint 5OZ' is a r4A—ed trademark of Serge Fenari North Ammica. Inc.
16) Assemhlyllnstallatian:
• Company will notify Purchaser of the scheduled assembly date. Owner agrees to have an owner representative meet the assembly crew at the job site on
the scheduled assembly date to verify the exact location where the structures) is to be placed.
• Labor for the removalr assembly, andiorfreght charges will only be covered by Company in instances where the structures supplied and installed by
Company are determined by the Compa ny to be defective. In all cases where structures are not installed by Company, al I labor for the removal, assembly,
a nd/OF freight of the structures will be the Puchaser's responsibil ityr.
• In5ta Ilation prices are based on a single mobilization charge. If additional mobilizations are required, there will be addition I cha rges.
• If the requested services require Company access to Owner's premises, Company will he provided access to the owner's premises free and clear of debris,
a utomobiles, or other interference Monday w Friday during the hours of B:OOam to fs:copm, a rd Company will have access to water and electrical facil Sties
during installation. Additional charges will apply if utilities are not easily accessible. where applicable, all vehicles will be moved prior to ComparWscrew
beginning any insta Ilatian.
• Company will not he responsible for moving or repairing any underground A lity lines such as electrica 1, telephone, gas, water, or sprinkler lines that may
be encountered during installation.
• Any additional costs incurred as a result of hard rock conditions requiring extra equipment, util ityr removal or repair resulting in delay will result in
additional charges unless they are detailed on as -built site drawings provided to Company or marked on the ground and communicated to Company in
writiing prior to fabricatio n and instal lation.
17) Irrsi3l lationIAssemhly air -site: Where i nstallatio rtlassembl( is part of the servicesr Purchaser must provide the Company with a detailed drawing
prepared by or for the Owner showing exa€dy where the structures are to he assembled as well as detail ing any obstacles or other impediments that may
cause the assembly process to be more difficult_ Any inrture(s), e.g.r playgroundr poolsr etc., that the stmctrres are to be assembled over must also he
detailed, along with their peak heights �kf applicable).
is) Srteluse Review by Purchaser: Company relies on the Purchaser to determine that the Strum res ordered are appropriate and safe for the arrnerrs
installation site and}or intended use. Company is nut resporrsiblefor damages or injuries resulting fromi collisions by moving objects or persons with the
structure post(s). Company can recommend, or supply at additional cost, padding for pasts from a third party manufacturer.
19) Preparatory work: where instal latiogiassembly is part of the services and in the event that the foundation or job site is not suitable or ready for
assembly to begin on the scheduled day, a Delay of order notification must be sent to Company at least 4 working days prior, in order to allow Company to
reschedule the project In the event that Company is not notified and incurs an expense in attempting to execute the m3emblyr a re -mobilization charge
may be charged to Purchaser before Company wil I reschedule the assembly.
211) Delectation_ Subcontractors: The services and the manufacturing and assembly of the structures may be performed by subcontractors u nder appropriate
agreements with the Company.
21) Force Ma jeure: Impracticability: The Company steal I not be charged with any loss or damage for fail Lire or delay in delivering o r assemhl ing of the
structures when such Failure or delay is due to any cause beyond the control of the Company, due to compl iance with governmental regulations or orders,
or due to any Acts of God, stri kes, lockoutsr slowdowns, wars, or shortages in transportation, materials or labor.
ZZ) Dispute Resolution: Any controversy or claim arising out of or related to this agreement must be settled by binding arbitration administered in Riverside
Cou nty, California by a singe arbitrator selected by the parties or by the American Arbitration Association, a nd conducted in accordance with the
construction industry arbitration rules. Judgment upon the award may be entered in any court having jjulnsdiction thereof.
23) Entire Agree ment; No Relia nce: This agreement represents and contains the entire agreement between the parties. Prior discussion or verbal
representations by the parties that are not contained in this agreement are not part of this agreement_ Purdwser hereby acknowledges that it has not
received or relied upon any statements or represerrtations by Company or its agents which are not expressly stipulated hereinr including without limitation
a ny statements as to the structures, wa rranties, or services provided hereunder.
za) No Third -Party Beneficiaries: ills agreement creates no third -party rights or obligations between Company and any other person, i nd udina any Owner
who is not also a Purchaser. it is understood and agreed that the parties do not intend that any third parry should be a beneficiary of this agreement.
25) Governing Law: The agreemerrt will be construed nd enforced in accordance with the laws of the State of Cal ifornia.
26) Assjgnmaor Purchaser may not assign this agreemerrt, by operation of law or otherwise, Wd outthe prior written consent of Company. The agreement
shall be bindi ng upon and insure to the benefit of the Company a nd the Pu rchaser, and their successors and permitted assigns.
Exhibit A
Page 5 of 8
ADDENDUM TO AGREEMENT
Re: Scope of Services
If the Scope of Services include construction, alteration, demolition, installation,
repair, or maintenance affecting real property or structures or improvements of any kind
appurtenant to real property, the following apply:
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-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,
Exhibit A
Page 6 of 8
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:
(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.
Exhibit A
Page 7 of 8
(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.
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 8of8
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 Four -Hundred, Eighty -Two Thousand, Three -
Hundred and Fifty -Four Dollars ($482,354) ("Contract Sum").
Progress billings to be submitted by Contractor, final retention amount (5%) to be
paid on completion and acceptance of the shade structure 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 January 30, 2024, and
terminate on completion and acceptance of installation on or before July 30, 2024.
Contractor is to provide the City with the schedule for installation three weeks prior to
the start date.
(Installation of the shade structure precedes installation of new playground
equipment and must be completed on or before July 30, 2024)
Exhibit C
Page 1of1
Exhibit D
Special Requirements
Contractor is responsible to pull required City permits (fees will be waived) and schedule
required inspections. Contractor is responsible to pay re -inspection fees if incurred should
the work not be completed in time for the inspection as called in by the contractor.
Shade structure posts/frame is to be white with blue and yellow fabric colors.
Contractor is responsible to ensure all measurements are accurate. Contractor is
responsible for mobilization, storage of materials, site protection, and any required
pedestrian and/or traffic control.
ENGINEERINU
Code
Blllidin.- Co
NTT 5F5yy
LP4 2022
Wind Load
115 mph
Snow Load
5 psf
Drawing Size
11 X 17
No_ of Sealed drawings
1
Calculations Required
Yes
0
EXCLUDED
❑
INCLUSIONSEXCLUSIONS
REQUIREMENTSINCLUDED
ENGINEERING
Sealed Drawings & Calculations 0
EXCLUDED
❑
INSTALLATIONMISCELLANEOUS
Prevailing Wage / Certified Payroll
❑
0
Permit Submittal
❑
p
Union Wages
❑
0
Permit Fee
❑
121
Fencing
❑
0
DSA Submittal & Fees
❑
0
water and Electrical
❑
❑
Design and Engineering of Structure
❑
p
Landscape Repair
❑
❑
Design and Engineering of Foundation
❑
p
Demolition (Existing Structures)
❑
❑
Reactions and Loads for attachment to Walls, Rooftops, orOthe�
❑
0
Payment and Performance Bonds
❑
❑
Foundation Location and Elevation Survey
I
H
Special Inspection Fees
Exhibit D
Page 1of1
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 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
Exhibit E
Page 1 of 5
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.
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:
Exhibit E
Page 2of5
1. Contracting Party agrees to have its insurer endorse the third -party general
liability coverage required herein to include as additional insureds City, its officials,
employees, and agents, using standard ISO endorsement No. CG 2010 with an edition
prior to 1992. Contracting Party also agrees to require all contractors, and subcontractors
to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Contracting Party, or Contracting Party's employees, or agents, from waiving the
right of subrogation prior to a loss. Contracting Party agrees to waive subrogation rights
against City regardless of the applicability of any insurance proceeds, and to require all
contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contracting Party and
available or applicable to this Agreement are intended to apply to the full extent of the
policies. Nothing contained in this Agreement or any other agreement relating to City or
its operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called "third party action over" claims, including any exclusion for bodily
injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Contracting Party shall not
make any reductions in scope of coverage (e.g. elimination of contractual liability or
reduction of discovery period) that may affect City's protection without City's prior written
consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all the coverages required and an additional insured
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
Exhibit E
Page 3of5
Party, provide the same minimum insurance coverage required of Contracting Party.
Contracting Party agrees to monitor and review all such coverage and assumes all
responsibility for ensuring that such coverage is provided in conformity with the
requirements of this section. Contracting Party agrees that upon request, all agreements
with subcontractors and others engaged in the project will be submitted to City for review.
10. Contracting Party agrees not to self -insure or to use any self -insured
retentions or deductibles on any portion of the insurance required herein (with the
exception of professional liability coverage, if required) and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any
way involved in the performance of work on the project contemplated by this agreement
to self -insure its obligations to City. If Contracting Party's existing coverage includes a
deductible or self -insured retention, the deductible or self -insured retention must be
declared to the City. At that time the City shall review options with the Contracting Party,
which may include reduction or elimination of the deductible or self -insured retention,
substitution of other coverage, or other solutions.
11. The City reserves the right at any time during the term of this Agreement to
change the amounts and types of insurance required by giving the Contracting Party
ninety (90) days advance written notice of such change. If such change results in
substantial additional cost to the Contracting Party, the City will negotiate additional
compensation proportional to the increased benefit to City.
12. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
13. Contracting Party acknowledges and agrees that any actual or alleged
failure on the part of City to inform Contracting Party of non-compliance with any
insurance requirement in no way imposes any additional obligations on City nor does it
waive any rights hereunder in this or any other regard.
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.
Exhibit E
Page 4 of 5
16. The provisions of any workers' compensation or similar act will not limit the
obligations of Contracting Party under this agreement. Contracting Party expressly
agrees not to use any statutory immunity defenses under such laws with respect to City,
its employees, officials, and agents.
17. Requirements of specific coverage features, or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue
and is not intended by any party or insured to be limiting or all-inclusive.
18. These insurance requirements are intended to be separate and distinct from
any other provision in this Agreement and are intended by the parties here to be
interpreted as such.
19. The requirements in this Exhibit supersede all other sections and provisions
of this Agreement to the extent that any other section or provision conflicts with or impairs
the provisions of this Exhibit.
20. Contracting Party agrees to be responsible for ensuring that no contract
used by any party involved in any way with the project reserves the right to charge City
or Contracting Party for the cost of additional insurance coverage required by this
agreement. Any such provisions are to be deleted with reference to City. It is not the intent
of City to reimburse any third party for the cost of complying with these requirements.
There shall be no recourse against City for payment of premiums or other amounts with
respect thereto.
21. Contracting Party agrees to provide immediate notice to City of any claim
or loss against Contracting Party arising out of the work performed under this agreement.
City assumes no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to involve City.
Exhibit E
Page 5of5
Exhibit F
Indemnification
F.1 Indemnitv for the Benefit of Ci
a. Indemnification for Professional Liability. When the law establishes a
professional standard of care for Contracting Party's Services, to the fullest extent
permitted by law, Contracting Party shall indemnify, protect, defend (with counsel
selected by City), and hold harmless City and any and all of its officials, employees, and
agents ("Indemnified Parties") from and against any and all claims, losses, liabilities of
every kind, nature, and description, damages, injury (including, without limitation, injury
to or death of an employee of Contracting Party or of any subcontractor), costs and
expenses of any kind, whether actual, alleged or threatened, including, without limitation,
incidental and consequential damages, court costs, attorneys' fees, litigation expenses,
and fees of expert consultants or expert witnesses incurred in connection therewith and
costs of investigation, to the extent same are caused in whole or in part by any negligent
or wrongful act, error or omission of Contracting Party, its officers, agents, employees or
subcontractors (or any entity or individual that Contracting Party shall bear the legal
liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Contracting Party shall not be liable for
any injuries or property damage resulting from the reuse of the design at a location other
than that specified in Exhibit A without the written consent of the Contracting Party.
b. Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Contracting
Party shall indemnify, defend (with counsel selected by City), and hold harmless the
Indemnified Parties from and against any liability (including liability for claims, suits,
actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
losses, expenses or costs of any kind, whether actual, alleged or threatened, including,
without limitation, incidental and consequential damages, court costs, attorneys' fees,
litigation expenses, and fees of expert consultants or expert witnesses) incurred in
connection therewith and costs of investigation, where the same arise out of, are a
consequence of, or are in any way attributable to, in whole or in part, the performance of
this Agreement by Contracting Party or by any individual or entity for which Contracting
Party is legally liable, including but not limited to officers, agents, employees, or
subcontractors of Contracting Party.
C. Indemnity Provisions for Contracts Related to Construction (Limitation on
Indemnity). Without affecting the rights of City under any provision of this agreement,
Contracting Party shall not be required to indemnify and hold harmless City for liability
attributable to the active negligence of City, provided such active negligence is
determined by agreement between the parties or by the findings of a court of competent
jurisdiction. In instances where City is shown to have been actively negligent and where
City's active negligence accounts for only a percentage of the liability involved, the
obligation of Contracting Party will be for that entire portion or percentage of liability not
attributable to the active negligence of City.
Exhibit F
Page 1 of 2
d. Indemnification Provision for Design Professionals.
1. Applicability of this Section F.1(d). Notwithstanding Section F.1(a)
hereinabove, the following indemnification provision shall apply to a Contracting Party
who constitutes a "design professional" as the term is defined in paragraph 3 below.
2. Scope of Indemnification. When the law establishes a professional
standard of care for Contracting Party's Services, to the fullest extent permitted by law,
Contracting Party shall indemnify and hold harmless City and any and all of its officials,
employees, and agents ("Indemnified Parties") from and against any and all losses,
liabilities of every kind, nature, and description, damages, injury (including, without
limitation, injury to or death of an employee of Contracting Party or of any subcontractor),
costs and expenses, including, without limitation, incidental and consequential damages,
court costs, reimbursement of attorneys' fees, litigation expenses, and fees of expert
consultants or expert witnesses incurred in connection therewith and costs of
investigation, to the extent same are caused by any negligent or wrongful act, error or
omission of Contracting Party, its officers, agents, employees or subcontractors (or any
entity or individual that Contracting Party shall bear the legal liability thereof) in the
performance of professional services under this agreement. With respect to the design of
public improvements, the Contracting Party shall not be liable for any injuries or property
damage resulting from the reuse of the design at a location other than that specified in
Exhibit A without the written consent of the Contracting Party.
3. Design Professional Defined. As used in this Section F.1(d), the
term "design professional" shall be limited to licensed architects, registered professional
engineers, licensed professional land surveyors and landscape architects, all as defined
under current law, and as may be amended from time to time by Civil Code § 2782.8.
F.2 Obligation to Secure Indemnification Provisions. Contracting Party agrees
to obtain executed indemnity agreements with provisions identical to those set forth
herein this Exhibit F, as applicable to the Contracting Party, from each and every
subcontractor or any other person or entity involved by, for, with or on behalf of
Contracting Party in the performance of this Agreement. In the event Contracting Party
fails to obtain such indemnity obligations from others as required herein, Contracting
Party agrees to be fully responsible according to the terms of this Exhibit. Failure of City
to monitor compliance with these requirements imposes no additional obligations on City
and will in no way act as a waiver of any rights hereunder. This obligation to indemnify
and defend City as set forth in this Agreement are binding on the successors, assigns or
heirs of Contracting Party and shall survive the termination of this Agreement.
Exhibit F
Page 2of2