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HomeMy WebLinkAbout11 - Shade Structure at Bonita Canyon Sports ParkCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 11 June 27, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Recreation and Senior Services Marie Knight, Director 644 -3157 — mknight @city.newport- beach.ca.us SUBJECT: Contract for Purchase and Installation of Shade Structures at Bonita Canyon Sports Park ISSUE Should the City Council approve the attached Contract with United States Sports Surfacing of America for the purchase and installation of shade structures at Bonita Canyon Sports Park? RECOMMENDATION Recommend that the City Council approve the attached Contract with United Sports Surfacing of America for the purchase and installation of shade structures at Bonita Canyon Sports Park in the amount of $58,706. BACKGROUND Since the grand opening over three years ago, the Bonita Canyon Sports Park continues to be the most highly utilized sports parks with year round use by both soccer and baseball, in addition to the active use of the tennis courts, playgrounds and picnic areas. One of the only complaints staff ever receives regarding this park is the lack of shade. Although there were over 1,000 trees planted in the park, it will take several more years until they are mature enough to provide useful shade for park - goers. There are no covered picnic areas in the park and this is a popular spot for family gatherings. We have received numerous requests from the Youth Sports Commission members to look into shade options for the bleacher areas that are adjacent to the sports fields. (See attached letters of support from the two major youth sports organizations utilizing the park — Newport Beach Little League and AYSO Region 57.) DISCUSSION As you may recall, the opening of this park was delayed on several occasions due to construction related issues. One fortunate side effect of the extended construction delays was that nearly $2 million in interest earnings were credited to the construction proceeds during the course of construction. The Bonita Canyon bond indenture provides that the interest earnings can be (1) transferred to the Newport-Mesa Unified School District improvement account; (2) utilized to reduce the outstanding bonds; or (3) for improvements to the sports park. The majority of the interest earnings were utilized for enhancements to the original construction contract and for the design and construction of the Newport Coast Loop Road project (an eligible NMUSD improvement account project). After the completion of the Loop Road project, $88,411 remained in the City's improvement account for further use. As part of the FY 2005/06 Capital Improvement Plan, City Council authorized $75,457 for an onsite storage facility at the park to be used by the various youth sports organizations for equipment. Contract for Purchase and Installation of Shade Structures at Bonita Canyon Sports Park Page 2 (June 27, 2006) Ultimately prefabricated sheds were installed with staff labor at a significant savings leaving appropriations of $53,681 available for closely related projects. (A budget amendment in the amount of $5,025 was approved to increase: the balance carried over from the Storage Building CIP to meet the expenses for the Shade Structures. Those funds were transferred from the Bonita Canyon Sports Park interest account. ) With the concurrence of the Youth Sports Commission, staff recommends that the remaining appropriation be used for sun shades providing shade and protection for the park patrons using the 8 ball field spectator stands and 6 picnic tables. Attachment A is a photo of the proposed structures. Attachment B identifies the areas within the park that the structures will be placed. In addition to the obvious benefit of shade that the structures will provide, they will also address a safety issue that exists at fields 1 and 2, where the fields are so close that foul balls from each field often land in the stands of the adjacent field. These structures would also then provide the necessary overhead protection. Shade structures that meet the necessary safety specifications are a specialized item only manufactured by a limited number of vendors. In addition, the structures come in standard sizes that would not accommodate our needs and necessitate custom structures to be manufactured. Custom colored concrete will also be used to match the existing pavers in the park. United Sports Surfacing of America (USSA) provided bids from two vendors for the purchase and installation of the structures. The City has worked with USSA in the past and they have proven to be a qualified and reliable vendor. In addition a warranty sheet has been provided from USSA guaranteeing work. Staff brought this item to the Parks, Beaches & Recreation Commission for their input at the May 2, 2006 meeting. At that meeting several of the Commissioners expressed that they did not feel comfortable supporting this project as they felt it was unnecessary and too costly. Upon hearing the input of the Commission several members of the Youth Sports Commission contacted their Council representatives and asked that this item continue to be forwarded to the Council for approval. by: Marie Krjight, Recreatio0 & Senior Services Director A. Shade Structure Picture B. Contract C. Maps with locations for shade structures depicted D. Email letters of support for YSO � ��� 1 � '. .'f�:i - K ', . .. 2Y ���' � �. i W � 'w� Y. �' _ _ _ ___ .` ... _ __ a Attachment B CONTRACT WITH UNITED SPORTS SURFACING OF AMERICA, INC. FOR THE PURCHASE AND INSTALLATION OF SHADE STRUCTURES AT BONITA CANYON SPORTS PARK THIS CONTRACT is made and entered into as of this _ day of 2006, by and betweer the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and UNITED SPORTS SURFACING OF AMERICA, INC, a California corporation, whose principal place of business is 4000 Barranca Parkway Suite 250, Irvine, CA, 92604 ( "Seller"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to purchase nine "Custom Canopies" Shade Structures from Seller (hereinafter referred to as the "Shade Structures "). C. City also desires to engage Seller to install the Shade Structures at Bonita Canyon Sports Park in Newport Beach over the picnic area and over eight baseball field stands, as outlined further herein (hereainafter referred to as the "Project "). Seller also has agreed to provide a 6 -year warranty on the fabric and a 10 -year warranty on the steel frames upon which the fabric will be hung. D. Seller has examined the location of all proposed work, is familiar with all conditions relevant to the performance of the services contemplated herein, and has committed to provide the required goods and services for the price specified in this Contract. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: �1dd »d.'i elN 1 Seller shall provide all of the project deliverables and perform all the services described in the Quotation attached hereto as Attachment A and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Seller represents and warrants that Seller is a provider of first -class products and services and that Seller is experienced in performing the work and services contemplated herein and, in light of such status and experience, Seller covenants that it shall follow the highest professional standards in performing the work and services and that all products and materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. Seller shall install the Shade Structures at Bonita Canyon Sports Park in Newport Beach, CA as described in the Quotation attached. 2. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Contract and Seller shall complete the Project within 60 days of execution of this Agreement. The failure by Seller to meet this deadline may result in termination of this Contract by City. 3. COMPENSATION As full compensation for providing the products and services outlined in the Proposal, City shall pay to Seller and Seller accepts as full payment the sum of Fifty -Eight Thousand, Seven Hundred and Five Dollars and Ninety -Two Cents ($58,705.92). Seller shall not receive any additional compensation unless approved in advance by the City in writing. The City shall pay Seller forty percent (40 %) of the purchase price upon execution of this Contract, and the balance upon satisfactory delivery and installation. 4. ADMINISTRATION This Contract will be administered by the Recreation & Senior Services Department. Sean Levin shall be the Project Administrator and shall have the authority to act for City under this Contract. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Contract. 5. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 5.1 Seller shall use only the products and materials described in Attachment A in performing Contract Services. Any deviation from the products and materials described in Attachment A shall not be installed unless approved in advance by the City Administrator. 5.2 Seller shall perform all work diligently, carefully, and in a good and workmanlike manner, and shall fumish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore. 5.3 All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 5.4 Seller shall use colored concrete to match the existing pavers adjacent to the eight (8) bleachers. S. RESPONSIBILITY FOR DAMAGES OR INJURY Seller agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees and agents ( "City Indemnities ") from any claims, demands or liability of any kind or nature, including, but not limited to, personal injury or property damage, arising from or related to the products, services or other performance provided by Seller pursuant to this Contract, unless such injury is caused by the sole negligence or concurrent active negligence of the City or City Indemnities. If Seller's negligence combines with the City's active negligence to cause injury, Seller and City agree that liability will be apportioned as determined by a court of competent jurisdiction. Neither party shall request ajury appointment. 7. INDEPENDENT CONTRACTOR City has retained Seller as an independent Seller and neither Seller nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Seller, except to the extent they are limited by statute, rule or regulation and the express terms of this Contract. No civil service status or other right of employment shall accrue to Seller or its employees. E1 9. COOPERATION Seller agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Seller on the Project. INSURANCE Without limiting Seller's indemnification of City, and prior to commencement of work, Seller shall obtain, provide and maintain at its own expense during the term of this Contract, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Seeller shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Contract. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policie +s. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Seller shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written noti ;e of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Seller for City. ii. General Liability Coverage. Seller shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Contract, or the general aggregate limit shall be at least twice the required occurrence limit. Automobile Liabilitx Coverage. Seller shall maintain covering bodily injury and property damage for all arising out of or in connection with work to be Contract, including coverage for any owned, vehicles, in an amount not less than one combined single limit for each occurrence. 10. SUBCONTRACTING hired, millio nautomobile insurance activities of the Seller performed under this non -owned or rented dollars ($1,000,000) The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Seller. Assignments of any or all rights, duties or obligations of the Seller under this Agreement will be permitted only with the express written consent of City. Seller shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 11. WITHHOLDINGS City may withhold payment to Seller of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Contract. Seller shall not discontinue work as a result of such withholding. Seller shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Seller shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 12. CONFLICTS OF INTEREST The Seller or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act'), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Contract, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Seller shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Contract by City. Seller shall indemnify and hold harmless City for any and all claims for damages resulting from Seller's violation of this Section. 13. NOTICES All notices, demands, requests or approvals to be given under the terms of this Contract shall be given in writing, to City by Seller and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Seller to City shall be addressed to City to: Sean Levin, Recreation Manager Recreation & Senior Services Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3159 - Fax: 949 -644 -3155 All notices, demands, requests or approvals from CITY to Seller shall be addressed to Seller to: Karoleen Alexander United Sports Surfacing of America, Inc. 4000 Barranca Parkway, Suite 250 Irvine, CA 92604 Phone: 949 - 551 -4696 - Fax: 949- 551 -4695 14. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Contract at the time and in the manner required, that party shall be deemed in default in the performance of this Contract. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the: Contract forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Contract at any time by giving seven (7) calendar days prior written notice to Seller. In the event of termination under this Section, City shall pay Seller for services satisfactorily performed and costs incurred up to the effective date of termination for which Seller has not been previously paid. On the effective date of termination, Seller shall deliver to City all materials purchased in performance of this Contract. 15. COMPLIANCE WITH ALL LAWS Seller shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 16. WAIVER A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 17. INTEGRATED CONTRACT This Contract represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Contracts of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 18. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Contract and the attached Proposal, the terms of this Contract shall govern. 19. AMENDMENTS This Contract may be modified or amended only by a written document executed by both Seller and City and approved as to form by the City Attorney. 20. EFFECT OF SELLER'S EXECUTION Execution of this Contract by Seller is a representation that Seller has visited the Project Sites, has become familiar with the conditions under which the work is to be performed, and has taken into consideration these factors in submitting its Proposal. 21. INFRINGEMENT Unless otherwise expressly provided in this Contract, Seller shall be solely responsible for clearing the right to use any patented or copyrighted materials in the performance of this Contract. Seller warrants that any software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Seller shall indemnify and defend City, at Seller's expense, against all claims, demands, suits, liability, and expense on account of alleged infringement of any patent, copyright or trademark, resulting from or arising in connection with the manufacture, sake, normal use or other normal disposition of any good or article of material furnished hereunder. 22. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Contract and all matters relating to it and any action brought relating to this Contract shall be adjudicated in a court of competent jurisdiction in the County of Orange. 23. WARRANTY Seller expressly warrants that the goods covered by this Contract are: (1) free of liens or encumbrances, (2) of merchantable quality and fit for the ordinary purposes for which they are used, and (3) fit for the particular purpose for which they are intended, and (4) satisfactory and safe for consumer use. Seller also has agreed to provide a 5 -year warranty on the Custom Canopies fabric and a 10 -year warranty on the steel frame structures upon which the Shade Structures will be installed. This warranty is outlined in more detail in Attachment B. 24, 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. IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the day and year first written above. APPROVED AS TO FORM: By: Aaron C. Harp Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless, City Clerk Attachments: Exhibit A. Quotation Exhibit B. Warranty CITY OF NEWPORT BEACH, A Municipal Corporation M Don Webb Mayor for the City of Newport Beach UNITED SPORTS SURFACING OF AMERICA, INC: By: Name: Title: By: Name: Title: �.I naayu L/SSA tinhetl Spaa S�rttlht [t.insrica, Ins. Ar CtywirM hem., #a "•ur!o[3f{.[N[. }kude Atmoura.* QUOTATION DAYS: •sxs.aar }23,:fdK. 10: Andrew 16UG.lt.- Sur4tintc0enc Od R[- .trxsint, City of ive4p3sl 84Aeh PA Ctr l kbx 949.6c�3161 944 -04-1-)355 Tisifi1x"—(h[_11&ggp4rigg<it 10 [ "rtn'ai�nbnlrh ¢nf 16114 N— "T[A[sliul". PROJECT ?+ ".tl1E: 11QSIT.4, r;,r+-MN 51.ORT-. P. Ntk 5HAm STF4CC'rutirs by {:gstunt c ... i.irs Elgll {S} Fdf Cu4trvr I Posts in %iJeg Fl, h0,.,j 1f 1: 12'%2115 "x 12' 2; 33'x 13'6 "x 12• 3- %tV ,% 1116c x 32 40 l5r s 24'311- . W "n &i ro.hgl st[x1 {.whir <, 3dxck 41 h[iy *oj caslom tolois a..il at addr "I a e[ 54 nph,lindlsad 5hadt ,,, hlghd� nary NlyeJhykpa Clod HAI pTrAmdon, hppro; 90% JtaJa, W1. T.A' pra+r.•tfag Eepac[sd lit. liil'r yens%, 63 u, iaueaxal sra:.r) narraaty against irb -mg, [rq[kfag, owing, isnylny and milieu 51x,407.1 R Pprmi[i ard' Fir6+rgtarm.'f7 +n[.,ttm 84,.4,4 Ktroccit Alcxwdl ,};ir au"w (oiP[ J11 4-M5 Stngld'.his Prrl -n:.tl iGd KIZ n}R!rcni:, Plesse l.°3a: Pan<hn ^.e �rler tn. DSSA, Tar. 1=2• (949j 5ot -4655 Cvmr;mS Nye fr,wnud 4;,'r, Nrrtnta Park-.ay. £Mite 2311 L v Cs, i um-s v7r'.1i tel: :.9d!TY S3 6% dm: "iifl 55144 95 Exhibit B LMS4 Rmm SVtfwUC OrAmittlem. for. USSAJ' M-"TJM CANOIUS INTL Purchisift Insuallw'm Lmfkf-.; Pmiuct l,'S5A2C'4,s1r;m Cmopl-5 M. lm. "mitift thii- fa"' Is rgildillorolly waffaawd 3�r six e,6) )wrs 7,) fists Wing. cratkfng sewing, *-.'d mi3dfk. Is 00 M I W F*r h ma rand L4,zd C) 94 Density Oulti V) Stott wxk is wmm#t4 fa IwL (10) 1w, lt,- ffl %Ymp Ivemm of irtiialiWm dm- 2,) 'n50 WUTXY*• is nut tanglWoll; F-) Tbii %m4moly doft nut cover AaKE , f voccouticUable nauft. This wapuuW sleoll kv;ly bv YaNd A) JFcciginmJ."tjWngy is that was s,pNj fl- VSSA- hn. is priekthled U ft qVitul u1musanty Im", USU. will em"" 10 tb qmner rrifhtn 44"ta (7) bg3izeua d4% to Ukjl site impra:lne, v sditatiss w. 11be &Wmipd sad m-mgd and pmnflol f sJsra to ptt&" ripr OT Olht *EJ C pjuvi*,d r4thin a remmusthlip and tVc(-Ab1s, time framt, wq&xt ittrmitdni. 'Puffimte's 012fgim under -.h-4 w*114-.O will be limited to F) ltaplatmeciatihtprodutas, y, �u�pEiCfR7ltnLle (ICp!SjdU:tiS,r; Reptirof the pteituasw4produai will bgprc rjjL%jLO altwsn*19, perinij. lnfl. I 1 1 lti �r ,I I -i J�I Attachment D Page 1 of 1 Knight, Marie From: Fred Cornwell [fcomwell@pcat.net] Sent: Tuesday, June 20, 2006 1:35 PM To: Knight, Marie Marie — Newport Harbor Baseball Association uses Bonita Canyon sports park's baseball fields and supports the installation of the proposed shade structures. Our parents have brought canoples during hot days to try and get some protection from the sun. These generally do not work well and tend to block people's view of the game. Additionally the structures would provide protection from the foul balls and the occasional light rain that we elect to play through which the parents must endure. Thank you for considering enhancing an already very nice facility. Fred Cornwell (Vice President N.H.B.A.) PARDUE, CORNWELL 8 ASSOCIATES, INC. 18551 Von Karman Ave., Ste. 140 Irvine, Ca. 92612 Phone: (949) 724 -9480 x12 Fax: (949) 724-9484 06(20(2006 Page 1 of 1 Knight, Marie From: Emery Molnar[emery@taisei.com] Sent: Wednesday, June 14, 2006 3:07 Pld To: Knight, Marie Cc: Levin, Sean Subject: Bonita Canyon Shade Structures Mane NBLL supports the addition of the shade structures at BCSP. The park is a beautiful facility but the shade structures would make it that much better and even safer. BCSP 1 and 2 are very close together and foul balls from both fields land in the adjacent stands, besides providing shade the structures would also provide overhead protection. The playgroundifilmic areas are designed without shade The bees installed are move ornamental in nature and not located near seating/gathering areas. Not a baseball Issue, but I bet the parents will small kids would appreciate the proposed structures as well. Lastly, NELL worsting with the City added shade screens to the dugouts of BCSP 1,2, 3 and 4. One of the only complaints we have received regarding BCSP is that with the combination of sun and temperature the dugouts were unbearable for the players. Makes sense if the funds are available for capital improvements, let the fans have shade as well. Investing the funds that the Bonita Canyon home owners created via a Mello Roos fund should be spent on the BCSP facility and not used for other approved uses, i.e. other school district property or paying down the bond. Emery Molnar Newport Beach LitUe League 06/20/2006 1 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT COUNCIL AGENDA _a _ o Agenda Item No. 17 June 13, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Recreation and Senior Services Marie Knight, Director 644 -3157 — mknight @city.newport- beach.ca.us SUBJECT: Contract for Purchase and Installation of Shade Structures at Bonita Canyon Sports Park ISSUE Should the City Council approve the attached Contract with United States Sports Surfacing of America for the purchase and installation of shade structures at Bonita Canyon Sports Park. RECOMMENDATION It is recommended that the Council approve the attached Contract with United Sports Surfacing of America for the purchase and installation of shade structures at Bonita Canyon Sports Park in the amount of $58,706. A budget amendment in the amount of $5,025 was approved to increase the balance carried over from the Storage Building CIP to meet the expenses for the Shade Structures. Those funds ($5,024.92) were transferred from the Bonita Canyon Sports Park interest account. Shade structures that meet the necessary safety specifications are a specialized item only manufactured by a limited number of vendors. In addition, the structures come in standard sizes that would not accommodate our needs and necessitate custom structures to be manufactured. Custom colored concrete will also be used to match the existing pavers in the park. United Sports Surfacing of America (USSA) provided bids from two vendors for the purchase and installation of the structures. The City has worked with USSA in the past and they have proven to be a qualified and reliable vendor. In addition a warranty sheet has been provided from USSA guaranteeing work. BACKGROUND Since the grand opening over three years ago, the Bonita Canyon Sports Park continues to be the most highly utilized sports parks with year round use by both soccer and baseball, in addition to the active use of the tennis courts, playgrounds and picnic areas. One of the only complaints staff ever receives regarding this park is the lack of shade. Although there were over 1,000 trees planted in the park, it will take several more years until they are mature enough to provide useful shade for park - goers. There are no covered picnic areas in the park and this is a popular spot for family gatherings. We have received numerous requests from the Youth Sports Commission members to look into shade options for the bleacher areas that are adjacent to the sports fields. DISCUSSION As you may recall, the opening of this park was delayed on several occasions due to construction related issues. One fortunate side effect of the extended construction delays was that nearly $2 million in interest earnings were credited to the construction proceeds during the course of construction. The Bonita Canyon bond indenture provides that the interest earnings can be (1) Contract for Purchase and Installation of Shade Structures at Bonita Canyon Sports Park Page 2 (June 13, 2006) transferred to the Newport-Mesa Unified School District improvement account; (2) utilized to reduce the outstanding bonds; or (3) for improvements to the sports park. The majority of the interest earnings were utilized for enhancements to the original construction contract and for the design and construction of the Newport Coast Loop Road project (an eligible NMUSD improvement account project). After the completion of the Loop Road project, $88,411 remained in the City's improvement account for further use. As part of the FY 2005/06 Capital Improvement Plan, City Council authorized $75,457 for an onsite storage facility at the park to be used by the various youth sports organizations for equipment. Ultimately prefabricated sheds were installed with staff labor at a significant savings leaving appropriations of $53,681 available for closely related projects. With the concurrence of the Youth Sports Commission, staff recommends that the remaining appropriation be used for sun shades providing shade and protection for the park patrons using the 8 ball field spectator stands and 6 picnic tables. Attachment A is a photo of the proposed structures. Staff brought this item to the Parks, Beaches & Recreation Commission for their input at the May 2, 2006 meeting. At that meeting several of the Commissioners expressed that they did not feel comfortable supporting this project as they felt it was unnecessary and too costly. Upon hearing the input of the Commission several members of the Youth Sports Commission contacted their Council representatives and asked that this item continue to be forwarded to the Council for approval. lam CONTRACT WITH UNITED SPORTS SURFACING OF AMERICA, INC. FOR THE PURCHASE AND 114STALLATION OF SHADE STRUCTURES AT BONITA CANYON SPORTS PARK THIS CONTRACT is made and entered into as of this _ day of , 2006, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and UNITED SPORTS SURFACING OF AMERICA, INC, a California corporation, whose principal place of business is 4000 Barranca Parkway, Suite 250, Irvine, CA, 92604 ( "Seller "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to purchase nine "custom Canopies" Shade Structures from Seller (hereinafter referred to as the 'Shade Structures'). C. City also desires to engage Seller to install the Shade Structures at Bonita Canyon Sports Park in Newport Beach over the picnic area and over eight baseball field stands, as outlined further herein (hereainafter referred to as the "Project "). Seller also has agreed to provide a 6 -year warranty on the fabric and a 10 -year warranty on the steel frames upon which the fabric will be hung. D. Seller has examined the location of all proposed work, is familiar with all conditions relevant to the performance of the services contemplated herein, and has committed to provide the required goods and services for the price specified in this Contract. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SCOPE OF WORK Seller shall provide all of the project deliverables and perform all the services described in the Quotation attached hereto as Attachment A and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Seller represents and warrants that Seller is a provider of first -class products and services and that Seller is experienced in performing the work and services contemplated herein and, in light of such status and experience, Seller covenants that it shall follow the highest professional standards in performing the work and services and that all products and materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. Seller shall install the Shade Structures at Bonita Canyon Sports Park in Newport Beach, CA as described in the Quotation attached. 2. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Contract and Seller shall complete the Project within 60 days of execution of this Agreement. The failure by Seller to meet this deadline may result in termination of this Contract by City. i Contract for Purchase and Installation of Shade Structures at Bonita Canyon Sports Park Page 2 (June 13, 2006) 3. COMPENSATION As full compensation for providing the products and services outlined in the Proposal, City shall pay to Seller and Seller accepts as full payment the sum of Fifty -Eight Thousand, Seven Hundred and Five Dollars and Ninety -Two Cents ($58,705.92). Seller shall not receive any additional compensation unless approved in advance by the City in writing. The City shall pay Seller forty percent (40 %) of the purchase price upon execution of this Contract, and the balance upon satisfactory delivery and installation. 4. ADMINISTRATION This Contract will be administered by the Recreation & Senior Services Department. Sean Levin shall be the Project Administrator and shall have the authority to act for City under this Contract. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Contract. 5. TYPE AND INSTALLATION OF MATERIALSISTANDARD OF CARE 5.1 Seller shall use only the products and materials described in Attachment A in performing Contract Services. Any deviation from the products and materials described in Attachment A shall not be installed unless approved in advance by the City Administrator. 52 Seller shall perform all work diligently, carefully, and in a good and workmanlike manner, and shall furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore. 5.3 All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 5.4 Seller shall use colored concrete to match the existing pavers adjacent to the eight (8) bleachers. 6. RESPONSIBILITY FOR DAMAGES OR INJURY Seller agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees and agents ( "City Indemnities ") from any claims, demands or liability of any kind or nature, including, but not limited to, personal injury or property damage, arising from or related to the products, services or other performance provided by Seller pursuant to this Contract, unless such injury is caused by the sole negligence or concurrent active negligence of the City or City Indemnities. If Seller's negligence combines with the City's active negligence to cause injury, Seller and City agree that liability will be apportioned as determined by a court of competent jurisdiction. Neither party shall request a jury appointment. 7. INDEPENDENT CONTRACTOR City has retained Seller as an independent Seller and neither Seller nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Seller, except to the extent they are limited by statute, rule or .. regulation and the express terms of this Contract. No civil service status or other right of employment shall accrue to Seller or its employees. 9. Contract for Purchase and Installation of Shade Structures at Bonita Canyon Sports Park Page 3 (June 13, 2006) COOPERATION Seller agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Seller on the Project. INSURANCE Without limiting Seller's indemnification of City, and prior to commencement of work, Seller shall obtain, provide and maintain at its own expense during the term of this Contract, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Seller shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Contract. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Seller shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Seller for City. ii. General Liability Coverage. Seller shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Contract, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Seller shall maintain covering bodily injury and property damage for all arising out of or in connection with work Contract, including coverage for any owned vehicles, in ar amount not less than one combined single limit for each occurrence. to be hired, millio nautomobile insurance activities of the Seller performed under this non -owned or rented dollars ($1,000,000) Contract for purchase and Installation of Shade Structures at Bonita Canyon Sports Park Page 4 (June 13, 2006) 10. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Seller. Assignments of any or all rights, duties or obligations of the Seller under this Agreement will be permitted only with the express written consent of City. Seller shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 11. WITHHOLDINGS City may withhold payment to Seller of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Contract. Seller shall not discontinue work as a result of such withholding. Seller shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Seller shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 12. CONFLICTS OF INTEREST The Seller or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act'), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Contract, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Seller shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Contract by City. Seller shall indemnify and hold harmless City for any and all claims for damages resulting from Seller's violation of this Section. 13. NOTICES All notices, demands, requests or approvals to be given under the terms of this Contract shall be given in writing, to City by Seller and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Seller to City shall be addressed to City to: Sean Levin, Recreation Manager Recreation & Senior Services Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3159 - Fax: 949 - 6443155 All notices, demands, requests or approvals from CITY to Seller shall be addressed to Seller to: Karoleen Alexander k, 1 United Sports Surfacing of America, Inc. 4000 Barranca Parkway, Suite 250 Irvine, CA 92604 Phone: 949 - 551 -4696 - Fax: 949 - 551 -4695 Contract for Purchase and Installation of Shade Structures at Bonita Canyon Sports Park Page 5 (June 13, 2006) 14. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Contract at the time and in the manner required, that party shall be deemed in default in the performance of this Contract. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Contract forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, amity shall have the right, at its sole discretion and without cause, of terminating this Contract at any time by giving seven (7) calendar days prior written notice to Seller. In the event of termination under this Section, City shall pay Seller for services satisfactorily performed and costs incurred up to the effective date of termination for which Seller has not been previously paid. On the effective date of termination, Seller shall deliver to City all materials purchased in performance of t )is Contract. 15. COMPLIANCE WITH ALL LAWS Seller shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 16. WAIVER A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 17. INTEGRATED CONTRACT This Contract represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Contracts of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 18. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Contract and the attached Proposal, the terms of this Contract shall govern. 19. AMENDMENTS This Contract may be modified or amenc'ed only by a written document executed by both Seller and City and approved as to form by the City Attorney. 20. EFFECT OF SELLER'S EXECUTION Execution of this Contract by Seller is a representation that Seller has visited the Project Sites, has become familiar with the conditions under which the work is to be performed, and has taken into consideration these factors in submitting its Proposal. 21. INFRINGEMENT Unless otherwise expressly provided in this Contract, Seller shall be solely responsible for clearing the right to use any patented or copyrighted materials in the performance of this Contract. Seller warrants that any software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Seller shall indemnify and defend City, at Seller's expense, against all claims, demands, suits, liability, and expense on Contract for Purchase and Installation of Shade Structures at Bonita Canyon Sports Park Page 6 (June 13, 2006) account of alleged infringement of any patent, copyright or trademark, resulting from or arising in connection with the manufacture, sale, normal use or other normal disposition of any good or article of material furnished hereunder. 22. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Contract and all matters relating to it and any action brought relating to this Contract shall be adjudicated in a court of competent jurisdiction in the County of Orange. 23. WARRANTY Seller expressly warrants that the goods covered by this Contract are: (1) free of liens or encumbrances, (2) of merchantable quality and fit for the ordinary purposes for which they are used, and (3) fit for the particular purpose for which they are intended, and (4) satisfactory and safe for consumer use. Seller also has agreed to provide a 5 -year warranty on the Custom Canopies fabric and a 10 -year warranty on the steel frame structures upon which the Shade Structures will be installed. This warranty is outlined in more detail in Attachment B. 24. 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. IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the day and year first written above. APPROVED AS TO FORM: I7 Aaron C. Harp Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk I:. Attachments: Exhibit A. Quotation Exhibit B. Warranty CITY OF NEWPORT BEACH, A Municipal Corporation Don Webb Mayor for the City of Newport Beach UNITED SPORTS SURFACING OF AMERICA, INC: Name: Title: By: Name: Title: 01/23/2006 16:11 FAX 9495514695 UNITED SPORTS SURFACING 10002/002 As Pogvesred Shade Structures DATE: TO: Phone / Fax United Sports Surfacing of America, Inc. QUOTATION January 23,2006 www.spart.5urfocin.g.com Andrea McGuire — Superintendent Of Recreation City of Newport Beach 949 -644 -3161 949 -644 -3155 Thank You for the opportunity to provide you with the following quotation. PROJECT NAME: BONITA CANYON SPORTS PARK SHADE STRUCTURES by Custom Canopies Eight (8) Full Cantilever 2 Posts Custom Field Heights: 1:12'x22'6 "x12' 2: 13' x 22'6" x 12' 3: 10' x 22'6" x 12 4: 16'x 24'10".x 12' powder coated steel (white, black or beige) custom colors avail at addt'I cost 80 roph windload Shadesure high - density polyethylene Cloth Hail protection, approx 80% shade, 90% U V protection Expected life 10 -12 years, 6 year (normal wear) warranty against fading, cracking, tearing, fraying and mildew 534,407.18 site survey Price Excludes: Permits and PerfitrmaneelWarranty Bonds Allow 6 weeks from date of Purchase Order (sane orders may be shipped in less fime). Karoleen Alexander, Eslimaior L949) 531 -1696 Should this proposal find your approval, please issue purchase order to. USSA, Inc - Fax (949) 551 -4695 Coverink New Ground 4000 Barranca Parkway, Suite 250, Irvine, California 92604 • tel: (949) 55I -4696 • fax: (949) 551 -4695 0313112006 00:30 FAX 9495514695 UNITED SPORTS SURFACING !71001/002 �l E) United Sports Surfacing of America, Inc. USSA / CUSTOM CANOPIES INTL. WARRANTY Purchaser Installation Location: Product: Date Ins USSR/ Custom Canopies Intl. Inc. warrants that: A.) Fabric is conditionally warranted for six (6) years (Normal Wear) warranty against fading, cracking, tearing, fraying and mildew. B.) SO Miles Per hour Wind Load C.) High Density Cloth D.) Steel work is warranted for ten (10) years from completion of installation date E.) This warranty is not transferable F.) This warranty does not cover structural movement or internal impact caused by any acts of uncontrollable nature. This warranty shall only be valid: A) If original warranty is that was signed by USSA, Inc. is presented B) If the purchaser has paid in full for the products. In the event of warranty issues, USSA will respond to the owner within seven (7) business days to make arrangements for a site visit. Upon site inspection, conditions will be determined and assessed and potential obligations to perform repair or other will be provided within a reasonable and agreeable time frame, weather permitting. Manufacture's obligations under this warranty will be limited to: a) Replacement of the product or, b) Supply of equivalent products or, C) Repair of the products and products will be prorated to the warranty period. Signed on behalf of USSA, Inc. / Custom Canopies Intl. Covering new ground 4000 Barranca Parkway, Suite 250, Irvine, California 92604 • tel: (949) 551 -4696 • fax: (949) 551.4695 M. Y y F� n c� ��r 11LI FO FL Mayor Don Webb Mayor Pro Tern TO: Steven Rosansky Council Members FROM: Keith D. Curry Leslie J. Daigle SUBJECT: Richard A. Nichols Tod W. Ridgeway DATE: Edward D. Selich CITY OF NEWPORT BEACH OFFICE OF THE CITY COUNCIL Honorable Mayor and Members of the City Council Keith Curry, Council Member, 7th District Shade Structures at Bonita Canyon Sports Park June 7, 2006 I asked the City Manager to place this item on the agenda for the June 13th meeting. My reasons for doing so is when staff from Recreation & Senior Services brought this item to PB &R for information, some PB &R members expressed a desire not to purchase and install the shade structures. The item on the PB &R agenda was not an action item, but an informational item only. Therefore, in the discussion that took place, PB &R did not actually vote to disapprove the action; thus, it did not provide me an opportunity to "call up" a PB &R vote. The shade structures were requested by sports groups which regularly utilize Bonita Canyon Sports Park. The existing trees are not of sufficient size to provide needed shade on hot days. Since the money which would be used to purchase shade structures is limited to Bonita Canyon Sports Parks uses, and since shade structures seem to be a high priority for park users, I hope the City Council will move forward with its approval to purchase and install them, so shade can be provided from the structures before the end of summer. I think this use and expenditure is entirely appropriate and justified, and I hope the rest of Council will agree. If there is some disagreement on my request, I do ask the item be continued until the June 27th Council meeting when I will be present. Thank you for your consideration. Keith Curry, Council Member 0 City Hall • 3300 Newport Boulevard • Post Office Box 1768 Newport Beach California 92658 -8915 • www.city.newport- beach.ca.us