HomeMy WebLinkAboutC-7232-1 - Agreement for On-Call Scoreboard Inspection and Maintenace and for Purchase, Installation, and On-Call Maintenance of Motorized Basketball HoopsAGREEMENT WITH BSN SPORTS, LLC FOR ON-CALL SCOREBOARD
INSPECTION AND MAINTENANCE AND FOR PURCHASE, INSTALLATION, AND
ON-CALL MAINTENANCE OF MOTORIZED BASKETBALL HOOPS
THIS PURCHASE, INSTALLATION, AND ON-CALL MAINTENANCE AND
REPAIR AGREEMENT ("Agreement') is made and entered into as of this 3rd day of July,
2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and BSN SPORTS, LLC, a Delaware
Limited Liability Company ("Contractor"), whose address is 1180-A California Avenue,
Corona, California 92881, 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 basketball backboards, rims, and nets and to engage
Contractor to perform installation of said products as detailed in the Scope of Work,
attached hereto as Exhibit A, as well as to perform on-call maintenance and/or
repair services for City ("Project').
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the installation, maintenance and/or repair services
described in this Agreement.
D. Contractor has examined the location of all proposed work, carefully reviewed and
evaluated the specifications set forth by City for the Project, is familiar with all
conditions relevant to the performance of services, and has committed to perform
all work required for the compensation specified in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 14, 2020, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Contractor shall perform product installation and on-call maintenance and
repair services described in the Scope of Services attached hereto as Exhibit A and
incorporated herein by reference ("Services" or "Work"). Upon written request from the
Project Administrator as defined herein, Contractor shall provide a letter proposal for
Services requested by the City (hereinafter referred to as the "Letter Proposal'). The
Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
2.1.3 The estimated number of hours and cost to complete the Services;
and
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. SCOPE OF SERVICES
3.1 Contractor shall provide all tangible items as described in the Scope of
Services attached hereto as Exhibit "A" and incorporated herein by reference. As a
material inducement to the City entering into this Agreement, Contractor represents and
warrants that Contractor is a provider of first class work and services and Contractor is
experienced in performing the work and services contemplated herein and, in light of such
status and experience, Contractor covenants that it will perform ail Services in a manner
commensurate with community professional standards and with the ordinary degree of
skill and care that would be used under reasonably competent practitioners of the same
discipline under similar circumstances and that all materials will be of good quality.
3.2 Contractor shall perform everything required to be performed, and shall
provide and furnish all the labor, materials, necessary tools, expendable equipment and
all utility and transportation services necessary for the Project.
3.3 In consideration of the payment of the billing rates contained in the
Schedule of Billing Rates, attached hereto as Exhibit "B" and incorporated herein by
reference, and subject to all the terms and conditions hereof, Contractor shall: sell to City
and install six (6) basketball backboards, goal rims and nets (hereinafter referred to as
'Products"), as listed and set forth in the Scope of Services attached hereto as Exhibit "A"
and incorporated in full by this reference.
4. TIME OF PERFORMANCE
4.1 Time is of the essence in the performance of Services under this Agreement
and Contractor shall perform the Services in accordance with the schedule included in
Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services
shall be performed to completion in a diligent and timely manner. The failure by
Contractor to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal,
if any, or perform the Services in a diligent and timely manner may result in termination
of this Agreement by City.
4.2 Notwithstanding the foregoing, Contractor shall not be responsible for
delays due to causes beyond Contractor's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
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4.3 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein, not later than two (2) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Contractor's control.
4.4 For all time periods not specifically set forth herein, Contractor shall respond
in the most expedient and appropriate manner under the circumstances, by fax, hand -
delivery or mail.
5. COMPENSATION TO CONTRACTOR
5.1 City shall pay Contractor for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Letter Proposal
and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein
by reference. Except as otherwise provided herein, no rate changes shall be made during
the term of this Agreement without the prior written approval of City. Contractor's
compensation for all Services performed in accordance with this Agreement, including all
reimbursable items, shall not exceed Seventy Five Thousand Dollars and 00/100
($75,000.00), without prior written amendment to the Agreement.
5.2 Contractor shall submit monthly invoices to City describing the Work
performed the preceding month. Contractor's bills shall include the name and/or
classification of employee who performed the Work, a brief description of the Services
performed and/or the specific task in the Scope of Services to which it relates, the date
the Services were performed, the number of hours spent on all Work billed on an hourly
basis, and a description of any reimbursable expenditures. City shall pay Contractor no
later than thirty (30) calendar days after approval of the monthly invoice by City staff.
5.3 City shall reimburse Contractor only for those costs or expenses specifically
identified in Exhibit B to this Agreement and the Letter Proposal, or specifically approved
in writing in advance by City.
5.4 Contractor shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B
and the Letter Proposal.
6. PROJECT MANAGER
6.1 Contractor shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Michael Penaflor to be its
Project Manager. Contractor shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
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6.2 Contractor, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Contractor warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
7. ADMINISTRATION
This Agreement will be administered by the Recreation & Senior Services
Department. City's Recreation Manager or designee shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator shall represent City in all matters pertaining to the Services to be rendered
pursuant to this Agreement.
8. CITY'S RESPONSIBILITIES
To assist Contractor in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Contractor, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Contractor's Work schedule.
9. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE
9.1 Contractor shall use only the standard materials described in Exhibit A in
performing Services under this Agreement. Any deviation from the materials described
in Exhibit A shall not be installed or utilized unless approved in advance and in writing by
the Project Administrator.
9.2 All of the Services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to perform
the Services required by this Agreement, and that it will perform all Services in a manner
commensurate with community professional standards and with the ordinary degree of
skill and care that would be used by other reasonably competent practitioners of the same
discipline under similar circumstances. All Services shall be performed by qualified and
experienced personnel who are not employed by City. By delivery of completed Work,
Contractor certifies that the Work conforms to the requirements of this Agreement, all
applicable federal, state and local laws and legally recognized professional standards.
9.3 Contractor represents and warrants to City that it has, shall obtain and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
9.4 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Contractor's Work promptly, or delay or faulty performance by City,
contractors, or governmental agencies.
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10. RESPONSIBILITY FOR DAMAGES OR INJURY
10.1 City and all officers, employees and representatives thereof shall not be
responsible in any manner for any loss or damage to any of the materials or other things
used or enployed in performing the Project or for injury to or death of any person as a
result of Contractor's performance of the Services required hereunder; or for damage to
property from any cause arising from the performance of the Project by Contractor, or its
subcontractors, or its workers, or anyone employed by either of them.
10.2 Contractor shall be responsible for any liability imposed by law and for
injuries to or death of any person or damage to property resulting from defects,
obstructions or from any cause arising from Contractor's Work on the Project, or the Work
of any subcontractor or supplier selected by Contractor.
10.3 To the fullest extent permitted by law, Contractor shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Contractor's presence or activities conducted on
the Project (including the negligent and/or willful acts, errors and/or omissions of
Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them).
10.4 Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Contractor.
10.5 Intellectual Property Indemnity - Contractor shall defend, indemnify and
hold City, its agents, officers, representatives, employees and City Council, boards and
commissions harmless from any proceeding brought against City for any intentional or
unintentional violation of the intellectual property rights of any third party with respect to
Products deliverables purchased in this Agreement This indemnification shall include, but
is not limited to, infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Contractor's deliverables provided under this
Agreement.
10.6 Contractor shall perform all Work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original condition
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and former usefulness as soon as possible, and to protect public and private property.
Contractor shall be liable for any private or public property damaged during the
performance of the Work by Contractor or its agents. Contractor shall perform work as
specified in Exhibit "A" to limit impacts to traffic during the system installation period.
Contractor shall be liable for any private or public property damaged during the
performance of the Project work.
10.7 Contractor shall provide traffic control and access in accordance with
Section 7-10 of the State Standard Specifications and the latest edition of the Work Area
Traffic Control Handbook (WATCH), as published by Building News, Inc.
10.8 Traffic control and detours shall at a minimum meet the following
requirements:
10.8.1 Emergency vehicle access shall be maintained at all times
10.8.2 The locations and wordings of all barricades, signs, delineators,
lights, warning devices, parking restrictions, and any other required details shall ensure
that all pedestrian and vehicular traffic will be handled in a safe manner with a minimum
of inconvenience to the public.
10.8.3 All advanced warning sign installations shall be reflectorized and/or
lighted.
10.8.4 "STOP AHEAD" and "STOP" signs shall be furnished by the
Contractor and shall conform to the provisions in Section 12-3.06, "Construction Area
Signs," of the State Standard Specifications except that the base material for the signs
shall not be plywood. Two "STOP AHEAD" signs and two "STOP" signs shall be placed
for each direction of traffic. Locations of the signs shall be per the WATCH manual.
10.8.5 Nothing in this Section shall be construed as authorizing any award
of attorney's fees in any action to enforce the terms of this Agreement, except to the
extent provided in Section 8.3 above.
10.8.6 The rights and obligations set forth in this Section shall survive the
termination of this Agreement.
10.9 To the extent authorized by law, as much of the money due Contractor
under and by virtue of the Agreement as shall be considered necessary by City may be
retained by it until disposition has been made of such suits or claims for damages as
aforesaid.
11. INDEPENDENT CONTRACTOR
11.1 It is understood that City retains Contractor on an independent contractor
basis and Contractor is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Contractor, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Contractor or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Contractor or any
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of Contractor's employees or agents, to be the agents or employees of City. Contractor
shall have the responsibility for and control over the means of performing the Work,
provided that Contractor is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Contractor as to the details
of the performance of the Work or to exercise a measure of control over Contractor shall
mean only that Contractor shall follow the desires of City with respect to the results of the
Services.
11.2 Consultant agrees and acknowledges that no individual performing
Services or Work pursuant to this Agreement shall: work full-time for more than six (6)
months; work regular part-time service of at least an average of twenty (20) hours per
week for one year or longer; work nine hundred sixty (960) hours in any fiscal year; or
already be a CalPERS member.
12. COOPERATION
Contractor 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 Contractor on the Project.
13. CITY POLICY
Contractor shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
14. PROGRESS
Contractor is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
15. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
16. BONDING
16.1 For any Letter Proposal accepted by City of over Twenty Five Thousand
Dollars and 00/100 ($25,000.00), Contractor shall obtain, provide and maintain at its own
expense during the term of this Agreement: (1) a Labor and Materials Payment Bond in
the amount of one hundred percent (100%) of the total amount to be paid Contractor as
set forth in any Letter Proposal accepted by City of over Twenty Five Thousand Dollars
and 00/100 ($25,000.00), and in the form attached hereto as Exhibit D which is
incorporated herein by this reference; and (2) a Faithful Performance Bond in the amount
of one hundred percent (100%) of the total amount to be paid Contractor as set forth in
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any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100
($25,000.00), and in the form attached hereto as Exhibit E which is incorporated herein
by this reference.
j6.2 The Labor and Miiaterials Paymeni Bond and Faithtui Performance Bond
shall be issued by an insurance organization or surety (1) currently authorized by the
Insurance Commissioner to transact business of insurance in the State of California, (2)
listed as an acceptable surety in the latest revision of the Federal Register Circular 570,
and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class
VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -
Casualty.
16.3 Contractor shall deliver, concurrently with City's approval of any Letter
Proposal over Twenty Five Thousand Dollars and 00/100 ($25,000.00), the Labor and
Materials Payment Bond and Faithful Performance Bond, a certified copy of the
"Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner,
which authorizes the Insurer or Surety to transact surety insurance in the State of
California.
17. PREVAILING WAGES
Pursuant to the applicable provisions of the Labor Code of the State of California,
not less than the general prevailing rate of per diem wages including legal holidays and
overtime Work for each craft or type of workman needed to execute the Work
contemplated under the Agreement shall be paid to all workmen employed on the Work
to be done according to the Agreement by the Contractor and any subcontractor. In
accordance with the California Labor Code (Sections 1770 of seq.), the Director of
Industrial Relations has ascertained the general prevailing rate of per diem wages in the
locality in which the Work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Agreement. A copy of said determination
is available by calling the prevailing wage hotline number (415) 703-4774, and requesting
one from the Department of Industrial Relations. The Contractor is required to obtain the
wage determinations from the Department of Industrial Relations and post at the job site
the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any
subcontractor under him/her to comply with all State of California labor laws, rules and
regulations and the parties agree that the City shall not be liable for any violation thereof.
18. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Contractor, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or
joint -venture or syndicate or cotenancy, which shall result in changing the control of
Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
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19. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Contractor shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and City. Except as specifically authorized herein,
the Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
20. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by Contractor,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Contractor or any
other party. Contractor shall, at Contractor's expense, provide such Documents to City
upon prior written request.
21. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
22. RECORDS
Contractor shall keep records and invoices in connection with the Services to be
performed under this Agreement. Contractor shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Contractor
under this Agreement. All such records and invoices shall be clearly identifiable.
Contractor shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Contractor shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Contractor
under this Agreement.
23. WITHHOLDINGS
City may withhold payment to Contractor 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 Agreement. Contractor shall not
discontinue Work as a result of such withholding. Contractor shall have an immediate
right to appeal to the City Manager or his/her designee with respect to such disputed
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sums. Contractor 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.
24. CITY'S RIGHT TO EMPLOY OTHER GONTRAGI ORS
City reserves the right to employ other contractors in connection with the Project.
25. CONFLICTS OF INTEREST
25.1 Contractor 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 Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
25.2 If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this Agreement by City. Contractor shall indemnify and hold harmless City for any and
all claims for damages resulting from Contractor's violation of this Section.
26. NOTICES
26.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
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.
26.2 All notices, demands, requests or approvals from Contractor to City shall be
addressed to City at:
Attn: Recreation & Senior Services Director
Recreation & Senior Services Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
26.3 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: Michael Penaflor
BSN Sports, LLC
1180-A California Avenue
Corona, CA 92881
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27. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Contractor's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Contractor in writing as unsettled at the time of its final request for payment.
Contractor and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Contractor shall be required to file any claim Contractor may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
28. TERMINATION
28.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. 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, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
28.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Contractor. In the
event of termination under this Section, City shall pay Contractor for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination, Contractor
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
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29.1 Contractor shall conform with all applicable provisions of state and federal
law including, but not limited to, applicable provisions of the federal Fair Labor Standards
Act ("FLSA") (29 USCA § 201, et seq.).
29.2 Whenever Contractor has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of this Agreement,
Contractor shall immediately give written notice to City, and provide all relevant
information.
29.3 Contractor represents that all persons working under this Agreement are
verified to be U.S. citizens or persons legally authorized to work in the United States.
29.4 To the fullest extent permitted by law, Contractor shall indemnify, defend,
and hold harmless City, its City Council, boards and commissions, officers, agents,
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volunteers, and employees from loss or damage, including but not limited to attorneys'
fees, and other costs of defense by reason of actual or alleged violations of any applicable
federal, state and local labor laws or law, rules, and/or regulations. This obligation shall
survive the expiration and/or termination of the Agreement.
30. EFFECT OF CONTRACTOR'S EXECUTION
Execution of this Agreement by Contractor is a representation that Contractor has
visited the Project site(s), has become familiar with the local conditions under which the
work is to be performed, and has taken into consideration these factors in submitting its
Project proposal and Scope of Work.
31. WARRANTY
31.1 Contractor warrants to City that all Products to be delivered hereunder will
be free from defects in material or workmanship and will be of the kind and quality
designated or specified by Contractor in Exhibit "A". The warranty shall apply only to
defects appearing within two years from the date of final acceptance by City for hardware
products not manufactured by the Contractor, and two years from the date of final
acceptance by City for hardware products manufactured by Contractor. If Contractor
installs the Products and associated hardware and materials, or supplies technical
directions of installation by Agreement, the warranty period shall run from the date of final
acceptance of installation by City, provided same is not unreasonably delayed by City.
31.2 If Contractor -manufactured equipment delivered hereunder does not meet
the above warranty, and if City promptly notifies Contractor in writing, Contractor shall
thereupon correct any defect, including non-conformance with the specifications, either
(at its option) by repairing any defective or damaged parts of the equipment, or by making
available any necessary replacement parts, delivered and installed without additional
charge to City within seven (7) working days. City will return the defective product to
Contractor, at Contractor's expense. Contractor shall repair or replace the defective item
and return it to City, shipping costs prepaid. Contractor shall perform any necessary
testing, hardware and equipment removal, repair, replacement, certification, and
installation at no cost to the City during the warranty period, using Contractor's equipment.
31.3 The foregoing warranty is exclusive and in lieu of all other warranties,
whether written, oral, implied or statutory. Contractor does not warrant any equipment of
other manufacture designated by City.
32. REPRESENTATIONS
32.1 Non -infringement. Contractor represents that to the best of its knowledge
the technology embodied in the products sold herein does not infringe upon a United
States patent or United States copyright in effect as of the Effective Date.
32.2 Authority. Each party represents as follows: (a) that it has full power and
authority to execute, deliver and perform its obligations under this Agreement; (b) that
there are no actions, proceedings or investigations, pending or, to the best of each party's
knowledge, threatened against such party which may in any manner whatsoever
materially affect the enforceability of this Agreement or the rights, duties and obligations
BSN Sports, LLC Page 12
of the parties hereunder; and (c) that the execution, delivery and performance of this
Agreement will not constitute a breach or default under any agreement, law or court order
under which such party is a party or may be bound or affected by or which may affect the
rights, duties and obligations hereunder
32.3 No Other Representations. Each party acknowledges and agrees that it is
relying on no representation of the other party except as expressly set forth herein.
33. CONFIDENTIAL INFORMATION.
33.1 Confidential Information. In the performance of this Agreement or in
contemplation thereof, the parties and their respective employees and agents may have
access to private or confidential information owned or controlled by the other party and
such information may contain proprietary details and disclosures. All information and data
identified in writing as proprietary or confidential by either party ("Confidential
Information") and so acquired by the other party or its employees or agents under this
Agreement or in contemplation thereof shall be and shall remain the disclosing party's
exclusive property. The recipient of Confidential Information shall use all reasonable
efforts (which in any event shall not be less than the efforts the recipient takes to ensure
the confidentiality of its own proprietary and other confidential information) to keep, and
have its employees and agents keep, any and all Confidential Information confidential,
and shall not copy, or publish or disclose it to others, nor authorize its employees, agents
or anyone else to copy or disclose it to others, without the disclosing party's written
approval; nor shall the recipient make use of the Confidential Information except for the
purposes of executing its obligations hereunder, and (except as provided for herein) shall
return the Confidential Information and data to the first party at its request. The City's duty
to maintain confidentiality as described hereunder shall be subject to the laws of the State
of California.
33.2 Excluded Information. The foregoing conditions will not apply to information
or data which is, or which becomes generally known to the public by publication or by any
means other than a breach of duty on the part of the recipient hereunder, is information
previously known to the recipient, is information independently developed by or for the
recipient or is information generally released by the owning party without restriction.
33.3 Right to Injunctive Relief. Because of the unique nature of the Confidential
Information, the parties agree that each party may suffer irreparable harm in the event
that the other party fails to comply with any of its obligations under this Section, and that
monetary damages may be inadequate to compensate either party for such breach.
Accordingly, the parties agree that either party will, in addition to any other remedies
available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms
of this Section.
34. ASSIGNMENT
This Agreement shall not be assigned by any party, or any party substituted,
without prior written consent of the City and the Contractor.
BSN Sports, LLC Page 13
35. STANDARD PROVISIONS
35.1 Recitals. City and Contractor acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference.
35.2 Compliance with all Laws. Contractor 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. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
35.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
35.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
35.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
35.6 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 the Agreement or any other rule of
construction which might otherwise apply.
35.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor and City and approved as to form by the
City Attorney.
35.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
35.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
35.10 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
BSN Sports, LLC Page 14
35.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
35.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be aeemea an original ana ail of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
BSN Sports, LLC Page 15
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: :715:1 ►-1
By:
A C. Harp
City Attorney -115
Date: EST: , ,y1
1
Cit,
1
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: ► ► ► 1 i•-
. Ca-
L ura Detweil
R reation & S nior Services Director
CONTRACTOR: BSN Sports, LLC, a
Delaware imit d Liability Company
Date: 83 1- 1 -j
'V By:
Lee Donovan
Assistant Secretary
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
Exhibit C - Insurance Requirements
Exhibit D - Labor and Materials Payment Bond
Exhibit E - Faithful Performance Bond
BSN Sports, LLC Page 16
EXHIBIT A
SCOPE OF SERVICES
NEWPORT COAST COMMUNITY CENTER GYM
o ON-CALL EMERGENCY SERVICES
• Contractor shall provide a lift when conducting any on-call services.
• Contractor shall only provide on-call services following receipt of a
Letter Proposal in accordance with Section 2 of the Agreement.
o ANNUAL MAINTENANCE OF SIX (6) MOTORIZED BASKETBALL HOOPS
■ Check that backboards are plumb and level and goal rings are at
proper height.
• Check wall and ceiling attachments and secure as necessary.
• Check all hoist pulleys, support cables and cable clamps for wear.
Make minor repairs as needed. Major pulley/cable replacement at
additional cost.
■ Check structural support and drop pipes for proper alignment and
adjust as necessary.
■ Lubricate and check all pivot/hinge points as necessary and check
auto locks.
■ Check hoist winches (manual/electric) for proper function.
■ Check and adjust limit on/off switches for proper operation on electric
winches.
• Check and tighten clamps as needed, adjust or replace loose or
missing nuts and bolts.
■ Run backstop up/down to ensure proper smooth function.
• Provide a written inspection report showing any additional equipment
or services recommended for proper orientation.
o SCOREBOARD INSPECTION
■ Thoroughly test the operation of City's system.
• Open board and perform and thorough cleaning and check for
corrosion.
■ Check all cable and terminal connections.
• Check function of console.
■ Check and replace fuses as necessary.
• Written report will be provide after completion of inspection.
• Any components needing replacement will require additional
charges and will be quoted separately prior to any repair.
• Provide a written inspection report showing any additional equipment
or services recommended for proper orientation.
BSN Sports, LLC Page A-1
OUTDOOR BASKETBALL COURTS (CITY PARKS)
o ON-CALL EMERGENCY SERVICES
• Contractor shall provide a lift when conducting any on-call services.
• Contractor shall only provide on-call services following receipt of a
Letter Proposal in accordance with Section 2 of the Agreement.
o MAINTENANCE, REPAIR, AND/OR REPLACEMENT
• Check all basketball backboards, hoops, rims, extension bars, nets
and frame.
• Tighten all necessary nuts and bolts to make sure all is plum level
and safe for play.
• Provide a written inspection if any further service labor and or parts
are needed.
o PRODUCT INSTALLATION
• Six (6) rectangle or fan shaped basketball backboard.
• Tighten all necessary nuts and bolts to make sure all is plum
level and safe for play.
• Provide a written inspection if any further service labor and or
parts are needed.
• Six (6) basketball goal rims with six (6) nets.
• Make sure all is plum level and safe for play.
• Provide a written inspection if any further service labor and or
parts are needed.
BSN Sports, LLC Page A-2
EXHIBIT B
SCHEDULE OF BILLING RATES
MAINTENANCE & REPAIR RATES
Newport Coast Community Center Gym (" NCCC")
• Annual maintenance service
• On-call emergency service with a lift
• On-call emergency scoreboard inspection service
c Additional hours plus parts
• Purchase/install new backboard, if required for maintenance & repair
o Backboards (dependent on type, i.e., Conversion Glass,
Conversion Acrylic, Polycarbonate, etc.)
$995/year
$725/visit
$795 1st -2 hours
$125 each add'I hour
$1,00042,000 per backboard
For Outdoor Basketball Courts (City Parks)
• On-call emergency service without lift (weekdays) $395/visit
• On-call emergency service (weekends/holidays) $595/visit
• Purchase/install new backboard, if required for maintenance & repair $949 per backboard
PURCHASE & INSTALLATION RATES (at Citv Parks listed below
Arroyo Bonita Creek, Bonita Canvon, Irvine Terrace.
Newport Island & Bavview Parks
o
Install six (6) RECTANGLE SHAPED backboard and rims
$1,800.00
o
Purchase six (6) RECTANGLE SHAPED basketball backboards
$3,450.00
o
Purchase six (6) goal rims and nets
$ 354.00
o
Freight
$ 490.00
o
Sales Tax
301.79
$6,485.79
Arroyo, Bonita
Canyon, & Bayview Parks
o
Install six (6) FAN SHAPED backboard and rims
$1,800.00
o
Purchase six (6) FAN SHAPED basketball backboards
$2,700.00
o
Purchase six (6) goal rims and nets
$ 354.00
o
Freight
$ 350.00
o
Sales Tax
236.69
$5,440.69
PREVAILING WAGE /S INCLUDED /N ALL BILLING RATES - CONTRACTOR UNDERSTANDS
THAT THE PROJECT /S A "PUBLIC WORK"AS DEFINED UNDER CALIFORNIA LABOR CODE
SECTION 1720 ET SEQ. OR 1771
TOTAL CONTRACT NOT TO EXCEED
$75,000.00
BSN Sports, LLC Page B-1
EXHIBIT C
INSURANCE REQUIREMENTS —MAINTENANCE/REPAIR/JANITORIAL SERVICES
1. Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage.
2. 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.
3. Coverage Requirements
A. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Contractor shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, products -completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Contractor
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
BSN Sports, LLC Page C-1
vehicles, in an amount not less than one million dollars ($1,000,000)
combined sirfgle limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Contractor or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Contractor shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Contractor sixty (60) calendar days advance
written notice of such change. If such change results in substantial
BSN Sports, LLC Page C-2
additional cost to Contractor, City and Contractor may renegotiate
Contractor's compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Contractor shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
D. Enforcement of Agreement Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. 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 all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Contractor maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Contractor. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Contractor or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Contractor's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Contractor or reimbursed
by Contractor upon demand.
H. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
BSN Sports, LLC Page C-3
performance under this Contract, and that involve or may involve coverage
under any of the required liability policies. 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.
Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
BSN Sports, LLC Page C-4
Project: On-call Scoreboard Inspection and
maintenance and for purchase, installation,
and on-call maintenance of motorized basketball hoops
EXHIBIT D
CITY OF NEWPORT BEACH
BOND NO. 2259871
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, the City of Newport Beach, State of California, has awarded to BSN
Sports, LLC hereinafter designated as the "Principal," a contract for maintenance and/or
repair services, in the City of Newport Beach, in strict conformity with the Contract on file
with the office of the City Clerk of the City of Newport Beach, which is incorporated herein
by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a bond, providing that if Principal or any of
Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies
used in, upon, for, or about the performance of the Work agreed to be done, or for any
work or labor done thereon of any kind, the Surety on this bond will pay the same to the
extent hereinafter set forth.
North American Specialty
NOW, THEREFORE, We the undersigned Principal, and, Insurance Company
duly authorized to transact business under the laws of the State of California, as Surety,
(referred to herein as "Surety") are held and firmly bound unto the City of Newport Beach,
in the sum of Seventy Five Thousand Dollars ($75,000.00), lawful money of the United
States of America, said sum being equal to 100% of the amount of any Letter Proposal
accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), payable
by the City of Newport Beach under the terms of the Contract; for which payment well
and truly to be made, we bind ourselves, our heirs, executors and administrators,
successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the Work
contracted to be done, or for any other work or labor thereon of any kind, or for amounts
due under the Unemployment Insurance Code with respect to such work or labor, or for
any amounts required to be deducted, withheld and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with
respect to such work and labor, then the Surety will pay for the same, in an amount not
exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the
obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required
by the provisions of Section 9554 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 9100 of the California Civil Code so as
to give a right of action to them or their assigns in any suit brought upon this Bond, as
required by and in accordance with the provisions of Sections 9500 et seq. of the Civil
Code of the State of California.
BSN Sports, LLC Page D-1
And Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Contract or to the Work to
be performed thereunder shall in any wise affect its obligations on this Bond, and it does
hereby waive notice of any such change, extension of time, alterations or additions to the
terms of the Contract or to the Work or to the specifications.
In the event that any principal above named executed this Bond as an individual,
it is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the 18th day of August 20 17
BSN Sports, LLC
Name of Contractor (Principal)
3�✓U t�o��ed Signatu /Ti I
" ��/�t a -
North American Specialty Insurance Company dt"�
Name of Surety
1450 American Lane, Suite 1100
Schaumburg, IL 60173
Address of Surety
847-273-1210
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Authorized Agent Signature
Catherine M. Krueger, Attorney -In -Fact
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE
ATTACHED
BSN Sports, LLC Page D-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of Cal' r. i
County o iJ "� ss
On 20 before me _ I'l
Notary Public, p rson 0 m1m i�
who proved to me on the basis of satisfactory evidence to 66 t e person whose name, is/ate
subscribed to the within instrument anq acknowledged to me that he/ e/tla�y execute same
in his/ /t�r authorized capacity(ied, and that by his/heir signaturesoon the instrument
the person(, or the entity upon behalf of which the persocted, execulled the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
my
seal.
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California Ohio
County of Lucas ) ss.
On August 18 20 17 before me, Mac. L -ec 1
Notary Public, personally appeared Catherine M. Kni .ger
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand andQfficial seal.
Signatu rr,X(Jf�x 914 aoao (seal)
BSN Sports, LLC Page D-3
NAS SURETY GROUP
NORTH AMERICAN SPECIALTY INSURANCE COMPANY
WASHINGTON INTERNATIONAL INSURANCE COMPANY
WESTPORT INSURANCE CORPORATION
GENERAL POWER OF ATTORNEY
KNOW ALI. MEN BY THESE PRESENTS. THAT North American Specialty Insurance Company, a corporation duly organized and existing under
Imus of the State of New Hampshire, and having its principal office in the City of Manchester, New Hampshire and Washington International Insurance
Company a corporation organized and existine under the laws of the State of New Hampshire and having its principal office in the City of Schaumburg.
Illinois, and Westport Insurance Corporation, organized under the laws of the State of Missouri, and having its principal office in the City of Overland
Park, Kansas each does hereby make. constitute and appoint:
DENNIS G. JOHNSON. PAUL E. JOHNSON, JAMES N. LORTIE, CATHERINE M. KRUEGER and HOLLY R. CARVER
Its true and lawful Attomey(s)-in-Fact, to make, execute- seal and deliver, for and on its behalf and as its act and deed, bonds or other writings
obligator)in the nature of a bond on behalf of each of said Companies, as surety, on contracts of suretyship as are or may be required or pennitted by
law. regulation, contract or otherwise, provided that no bond or undertaking or contract m suretyship executed under this authoriy shall exceed the
amount olS ONE HUNDRED TWENTY FIVE MILLION ($125,000,000.00) DOLLARS
This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boards of
Directors of North American Specialty Insurance Company and Washington International Insurance Company at meetings duly called and held
on March 24, 2000 and Westport Insurance Corporation by written consent of its Executive Committee dated July 18, 2011.
"RESOLVED, that any two of the President, any Senior Vice President, any Vice President, any Assistant Vice President,
the Secretary or any Assistant Secretary be, and each or any of them hereby is authorized to execute a Power of Attorney qualifying the attorney named
in the given Power of Attorney to execute on behalf of the Company bonds, undertakings and all contracts of surety, and that each or any of them
hereby is authorized to attest to the execution of any such Power of Attorney and to attach therein the seal of the Company; and it is
FURTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any
certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be
binding upon the Company when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached."
O�nSrG\ 1411I7YI' �',7r.
'RF"S 0e0
SEAL F ?
g SEAL
c
. rn-
S W'•. .973 njfj _c
:�6 �'• N s?�`A�.�
�y/..:AMP•.
tli. n€
fik"i
\L>ti4......
pO BpNliiallt \p
IMMn,.*.ain"',f
NY'rmexmNo
By
sales .. esou, nor rte res. emu as mgmn nc,innana murvore Cian,inl
a&eSeniar\'ice President of North Ann iron Speeixlty I ..... nee Cnmpam'
& Senior Vire president of tzPe/s/"i t lana enter Curporolnit
Mi4.A, Ito, Senior Via Prradent of Washington International Insurance Company
& Senior \'int president of North American Specialty Insurance Company
& Senior \'ire Presidenl of Westport Insurance Corporation
M WI INF.SS WHEREOF, North American Specialty Insurance Company, Washington International Insurance Company and Westport
Insurance Corporation have caused their official seals to be hereunto affixed, and these presents to be signed by their authorized officers this
this 9th day of October .20 IS
North .American Specialty Insurance Company
Washington International Insurance Company
State of Illinois Westport Insurance Corporation
County of Cook SS:
On this 9th day of October . 20 155, before me, allotary Public personally appeared Steven P. Anderson ,Senior Vice President of
Washington International Insurance Company and Senior Vice President of North American Specialty Insurance Company and Senior Vice President of
Westport Insurance Corporation and Michael A. Ito Senior Vice President of Washington International Insurance Company and Senior Vice President
of North .American Specialty Insurance Company and Senior Vice President of Westport Insurance Corporation, personally known to me. who
being by me duly swan, acknowledged that they signed the above Power of Attorney' as officers of and acknowledged said instrument to be the
volunttup act and deed of their respective companies.
OFFICIAL SEAL,` -�
M KENNY
NOTARY PUBLIC, STATE OF IL
MY t:Oh1MIB FF)C EXPIRES 1210412017 M. Kenny, Notary Public
I, Jeffrey Goldberg the duly eleoed Vire President and Assistant Secretary of North American Specialty Insurance Compa y. Washington
International. Insurance Company and Westport Insurance Corporation do hereby certify that the above and foregoing is a true and correct copy of a
Power ofAttorney given by said North American Specialty Insurance Company, Washington International Insurance Companyand Westport Insurance
Corporation which is still in full force and effect.
M WITNESS WHEREOF, I have set my hand and affixed the seals of the Companies this 18thday of —_ August _. 20_17 .
Jos, Goldhere, Vice Pcesidem & A .... tmn Secmtary of a'eshn,an. tmrmnhonal Insurance Company &
North American speerahy Insurance Company & \— Resident R Aminal secremry ofwesroon heron c. C
1*4251x:
CITY OF NEWPORT BEACH
BOND NO. 2259871
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $ 971.00 , being at the
rate of $ 12.95 thousand of the Contract price.
WHEREAS, the City of Newport Beach, State of California, has awarded to
7/3/2017 hereinafter designated as the "Principal," a contract for 1180-A California
Avenue, Corona, California 92881 in the City of Newport Beach, in strict conformity with
the Contract on file with the office of the City Clerk of the City of Newport Beach, which is
incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a Bond for the faithful performance of the Contract.
NOW, THEREFORE, we, the Principal, and
North American Specialty Insurance Company duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Seventy
Five Thousand ($75,000.00) lawful money of the United States of America, said sum
being equal to 100% of the amount of any Letter Proposal accepted by City of over
Twenty Five Thousand Dollars and 00/100 ($25,000.00), to be paid to the City of Newport
Beach, its successors, and assigns; for which payment well and truly to be made, we bind
ourselves, our heirs, executors and administrators, successors, or assigns, jointly and
severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the Work, covenants, conditions, and
agreements in the Contract Documents and any alteration thereof made as therein
provided on its part, to be kept and performed at the time and in the manner therein
specified, and in all respects according to its true intent and meaning, or fails to indemnify,
defend, and save harmless the City of Newport Beach, its officers, employees and agents,
as therein stipulated, then, Surety will faithfully perform the same, in an amount not
exceeding the sum specified in this Bond; otherwise this obligation shall become null and
void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Contract or to the Work to be performed
thereunder shall in any way affect its obligations on this Bond, and it does hereby waive
BSN Sports, LLC Page E-1
notice of any such change, extension of time, alterations or additions of the Contract or
to the Work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for one (1) year following the date of formal acceptance of the
Project by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the 18th day of August .20 17.
BSN Sports,LLC _
Name of Contractor (Principal) uthorized Signat e/Title
North American Specialty Insurance Company
Name of Surety Authorized Agent Signature
1450 American Lane, Suite 1 100
Schaumburg, IL 60173
Address of Surety
847-273-1210
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Catherine M. Krueger, Attorney -In -Fact
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
BSN Sports, LLC Page E-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of Calfmi
County f �� )SS i I
On 20 before m A. ^ - U V, I
ub _
Notary Pc, p rsonally appeared �Wl -
who proved to me on the basis of satisfactory evidence to be the person whose namg) is/aye
subscribed to the within instrument and acknowledged to me that helsexecuted the same
in his/Vr/t�it authorized capacity(iefi, and that by his/odt�r signaturesw on the instrument
the persoriL�, or the entity upon beh If of which the person acted, execute` d the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand an ial seal. t DIANA REYES
COMM. # 2188984
Novy waeo • cemo
RIVER XPWO. d 07
TY
My Comm. EepMes Ot10y, 2
0I0
5ignatUir-6 `T y (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of C-afifvrnia Uhio
County of Lucas 1 ss.
On August 18 20 17 before me, M aL•LeC�
Notary Public, personally appeared —Catherine A Krueger
proved
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that helshe/they executed the same
in his/her/their authorized capacity(ies), and that by his/herltheir signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
&
Signature QK�, 8-a-a0ao (seal)
BSN Sports, LLC
NAS SURETY GROUP
NORTH AMERICAN SPECIALTY INSURANCE COMPANY
WASHINGTON INTERNATIONAL INSURANCE COMPANY
WESTPORT INSURANCE CORPORATION
GENERAL POWER OF ATTORNEY
KNOW ALI. MEN BY THESE PRESENTS, TI IAT North American Specialty Insurance Company, a corporation duly organized and existing under
laws of the State of New Hampshire, and having its principal office in the City of Manchester, New Hampshire and Washington Intemational Insurance
Company a corporation organized and existing under the laws of the State of New Hampshire and having its principal office in the City of Schaumburg,
Illinois, and Westport Insurance Corporation, organized under the laws of the State of Missouri, and having its principal office in the City of Overland
Park. Kansas each does hereby make. constitute and appoint:
DENNIS G. JOHNSON, PAUL E. JOHNSON, JAMES N. LORTIE, CATHERINE M. KRUEGER and HOLLY R. CARVER
Its true and lawful Attomey(s)-in-Fact, to make, execute, seal and deliver, for and on its behalf and as its act and deed, bonds or other wri[inms
obligatm'y in the nature of a bond on behalf of each of said Companies, as surety, on contracts of suretyship as are or may be required or permitted by
law, regulation, contract or otherwise, provided that no bond or undertaking or contract or suretyship executed under this authority shall exceed the
amount of ONE HUNDRED TWENTY FIVE MILLION ($125.000,000.00) DOLLARS
This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boards of
Directors of North American Specialy Insurance Company and Washington International Insurance Company at meetings duly called and held
on March 24, 2000 and Westport Insurance Corporation by w'rihen consent of its Executive Committee dated July I S. 2011.
"RESOLVED, that any two of the President, any Senior Vice President, any Vice President, any Assistant Vice President,
the Secretary or any Assistant Secretary be, and each or any of them hereby is authorized to execute a Power of Attorney qualifying the attorney named
in the given Power of Attorney to execute on behalf of the Company bonds, undertakings and all contracts of surety, and that each or any of them
hereby is authorized to attest to the execution of any such Power of Attomey and to attach therein the seal of the Company; and it is
FURTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any
certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be
binding upon the Company when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached."
sit.ehgsran, mar ,rt ..re C......
=C�f SEAL & Senior Vice President orNarlM1Americans Specialty less
same Cnmpara ni, iEAL
1973 Win= yam•' Q & Samar rice Posidtniof Wall,., I hamrsome, Corpomfitn r ••$^
B' �/ �io'r/•. ?a
/„l/rdlfehYlllll\�\\\ aa+ ,�x`nN”°� Mike A. lta, Senior r\rite President oft\'ashinelon Indianan anal lnsurant<Company We
&Senior Mite President of North Arrant.. Sped ty lnaurmm CComtism,1
& Senior Vice President of Westport Insurance Corporation
IN WITNESS WHEREOF, North American Specialty Insurance Company, Washington International Insurance Company and Westport
Insurance Corporation have caused their official seals to be hereunto affixed, and these presents to be signed by their authorized officers this
this 9th day of October .20 IS
North American Specialty Insurance Company
Washington International Insurance Company
State of Illinois Westport Insurance Corporation
County of Cook ss:
On this 9th day of October , 20155. before me, a Notan. Public personally appeared Steven P. Anderson , Senior Vice President of
Washington International Insurance Company and Senior Vice President of North American Specialty Insurance Company and Senior Vice President of
Westport Insurance Corporation and Michael A. Ito Senior Vice President of Washington International Insurance Company and Senior Vice President
of North American Specialty Insurance Company and Senior Vice President of Westport Insurance Corporation, personally known to me. who
beim, by me duly sworn, acknowledged that they signed the above Power of Attorney as officers of and acknowledged said instrument to be the
voluntary act and deed of their respective companies.
OFFICIAL SEAL -
M KENNY
[NOTARY PUBLIC, STATE OF ILLINOIS CAh1MISS10N EXPiRE512104!2017 M. Kenny, rotary Public
L JelYmy Goldberg the duly elected Vice President and Assistant Secretaryof North American Specialty Insurance Company, Washington
International Insurance Company and Westport Insurance Corporation do hereby certify that the above and foregoing is a true and correct copy of a
Power of Attorney given by said North American Specialty Insurance Company, Washington International Insurance Company and Westport Insurance
Corporation which is still in full force and effect
IN WITNESS WHEREOF, 1 have set my hand and affixed the seals of the Companies this I8thday of August _ .. 2017._
Company&
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 8/18/17 Dept./Contact Received From:
Date Completed: 9/21/17 Sent to:
Company/Person required to have certificate:
Type of contract:
Teri
Teri By: Jan
BSN Sports, LLC
Recreation
I. GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 7/30/17 - 7/30/18
A.
INSURANCE COMPANY: James River Insurance Co
B.
AM BEST RATING (A-: VII or greater): A: IX
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
❑ Yes ® No
D.
LIMITS (Must be $1M or greater): What is limit provided?
1M/2M
E.
ADDITIONAL INSURED ENDORSEMENT—please attach
® Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
(What is limits provided?)
include): Is it included? (completed Operations status does
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
not apply to Waste Haulers or Recreation)
® Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
G.
HIRED AND NON -OWNED AUTO ONLY:
COMPLETED OPERATIONS ENDORSEMENT (completed
H.
NOTICE OF CANCELLATION:
Operations status does not apply to Waste Haulers)
® Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
I,
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
® Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes ® No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
® N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 7/30/17 - 7/30/18
A.
INSURANCE COMPANY: Travelers Indemnity Co of CT
B.
AM BEST RATING (A-: VII or greater) A++: XV
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
IM
E.
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only):
® N/A ❑ Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY:
® N/A ❑ Yes ❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 7/30/17 - 7/30/18
A.
INSURANCE COMPANY: Travelers Property Casualty Co. of America
B.
AM BEST RATING (A-: VII or greater): A++: XV
C.
ADMITTED Company (Must be California Admitted):
® Yes
❑ No
D.
WORKERS' COMPENSATION LIMIT: Statutory
® Yes
❑ No
E.
EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
1 M
F.
WAIVER OF SUBROGATION (To include): Is it included?
® Yes
❑ No
G.
SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
® N/A ❑ Yes
❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes
❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved:
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
9/21/17
Date
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
®N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Risk Management approval needed due to GL carrier being non -admitted. Sheri Approved 6/19/17
Approved:
Risk Management
* Subject to the terms of the contract.
Date