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HomeMy WebLinkAboutC-8831-1 - Purchase and Installation Agreement for Containment Netting Extension for the Filed at Grant Howald Parko- 0 MJ VV ` PURCHASE AND INSTALLATION AGREEMENT WITH FORTALEZA GROUP, INC. FOR CONTAINMENT NETTING EXTENSION FOR THE FIELD AT GRANT HOWALD PARK THIS PURCHASE AND INSTALLATION AGREEMENT ("Agreement") is made and entered into as of this 20th day of October, 2021 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and FORTALEZA GROUP, INC., a California corporation ("Contractor"), whose principal place of business is 4484 Avon St., Riverside, CA 92509, 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 engage Contractor to provide Containment Netting Extension for the field at Grant Howald Park as detailed in the Scope of Work and Schedule of Billing Rates attached hereto as Exhibit "A" ("Project"). C. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the 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 price specified in this Agreement. D. City has received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SCOPE OF WORK 1.1 Contractor shall provide all tangible items and perform all the services described in the Scope of Work 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 all 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. Fortaleza Group, Inc. Page 1 1.2 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. 1.3 In consideration of the payment of the purchase price and subject to all the terms and conditions hereof, Contractor shall: provide Containment Netting Extension for the field at Grant Howald Park (hereinafter referred to as "Products"), as listed and set forth in the Scope of Work attached hereto as Exhibit "A" and incorporated in full by this reference. 2. TIME OF PERFORMANCE 2.1 Time is of the essence in the performance of services under this Agreement and Contractor shall complete the Project installation, implementation and acceptance testing within the time set forth in Exhibit "A". The failure by Contractor to meet this schedule may result in termination of this Agreement by City as outlined in Section 18 below. 2.2 Force Majeure. The time period(s) specified in Exhibit "A" for performance of services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including but not restricted to acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, and/or acts of any governmental agency, including the City, if Contractor shall within ten (10) days of the commencement of such delay notify City in writing of the cause of the delay. City shall ascertain the facts and extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the City such delay is justified. City's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3. TERM Unless earlier terminated in accordance with Section 18 of this Agreement, this Agreement shall continue in full force and effect until completion of the services agreed to herein or until October 1, 2022, whichever occurs first. 4. COMPENSATION 4.1 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 Exhibit "A" and incorporated herein by reference. Contractor's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subcontractor fees, shall not exceed Fifty Six Thousand Nine Hundred Thirty Two Dollars and 00/100 ($56,932.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name of the person who Fortaleza Group, Inc. Page 2 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. 4.3 City shall reimburse Contractor only for those costs or expenses specifically identified in Exhibit "A" to this Agreement or specifically approved in writing in advance by City. 4.4 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 the Schedule of Billing Rates as set forth in Exhibit "A". 4.5 Contractor shall provide City with a minimum fourteen (14) days' notice of its dates of installation to enable the City to prepare the installation sites for the Products in accordance with the instructions of Contractor. The City shall complete site preparation prior to the date of installation of the Products, and the site shall thereafter be available for inspection and approval. All costs and expenses related to the site preparation shall be at the sole expense of City. 4.6 Extra Work. Contractor shall not receive any compensation for Extra Work without the prior written authorization of the City. As used herein, "Extra Work" means any work that is determined by the City to be necessary for the proper completion of the Project, but which is not included in the Purchase Price as specified in Exhibit "A", and which parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the hourly rates set forth in Exhibit "A". 5. PROJECT MANAGER 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 term of the Agreement. Contractor has designated Caesar Patlan to be its Project Manager. Contractor shall not remove or reassign the Project Manager without the prior written consent of City. City's approval shall not be unreasonably withheld. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. Fortaleza Group, Inc. Page 3 7. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 7.1 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 unless approved in advance by the City Project Administrator. 7.2 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. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8. RESPONSIBILITY FOR DAMAGES OR INJURY 8.1 City and all officers, employees and representatives thereof and all persons and entities owning or otherwise in legal control of the property upon which Contractor performs the Project and/or Services shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed 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 and/or Services by Contractor, or its subcontractors, or its workers, or anyone employed by either of them, unless caused by the City's negligent acts, omissions, or willful misconduct. 8.2 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 to the extent arising from the negligent acts, omissions, or willful misconduct of the Contractor' or any subcontractor or supplier selected by the Contractor. 8.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council. Boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Contractor performs the Project and/or Services contemplated by this Agreement (collectively, the "Indemnified Parties") from and against: (1) 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, liability, 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, and 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); (2) use of improper materials in performing this Project including, Fortaleza Group, Inc. Page 4 without limitation, defects in workmanship or materials and/or design defects; and/or (3) any and all claims asserted by Contractor's subcontractors or suppliers on the Project, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. Contractor's liability in this Subsection shall be limited to the maximum amount of its insurance coverage for claims arising out non -negligent and non -intentional acts performed under this Agreement. Contractor shall not be held responsible for consequential or special damages, or claims made to City for such consequential or special damages. Nothing herein shall require Contractor to indemnify City from the negligence or willful misconduct of City, its officers or employees. 8.4 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. 8.5 Contractor shall perform all Project work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. 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. 8.6 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. 8.7 Traffic control and detours shall at a minimum meet the following requirements: 8.7.1 Emergency vehicle access shall be maintained at all times. 8.7.2 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. 8.7.3 All advanced warning sign installations shall be reflectorized and/or lighted. 8.7.4 Traffic signal system shutdown or planned "red flash" shall be limited to 4 -hour periods between the hours of 9:00 a.m. and 3:00 p.m. on weekdays (Monday through Thursday), except as authorized by the Project Administrator. 8.7.5 "STOP AHEAD" and "STOP" signs shall be furnished by the Contractor and shall conform to the provisions in Section 12-3.06, "Construction Area Fortaleza Group, Inc. Page 5 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. 8.8 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. 8.9 The rights and obligations set forth in this Section shall survive the termination of this Agreement. 9. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees, nor any of its subcontractors, are to be considered employees of the 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 express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 10. 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 the Contractor on the Project. 11. 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 B, and incorporated herein by reference. 12. BONDING 12.1 Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement: 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 this Agreement and in the form attached hereto as Exhibit C which is incorporated herein by this reference; and a Faithful Performance Bond in the amount of one hundred percent (100%) of the total amount to be paid Contractor as set forth in this Agreement in the form attached hereto as Exhibit D which is incorporated herein by this reference. 12.2 The Labor and Materials Payment Bond and Faithful 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 Fortaleza Group, Inc. Page 6 a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Ratinq Guide: Property -Casualty. 12.3 The Contractor shall deliver, concurrently with execution of this Agreement, 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. 13. PREVAILING WAGES 13.1 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 et 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. 13.2 Unless otherwise exempt by law, Contractor warrants that no contractor or subcontractor was listed on the bid proposal for the Services that it is not currently registered and qualified to perform public work. Contractor further warrants that it is currently registered and qualified to perform "public work" pursuant to California Labor Code section 1725.5 or any successor statute thereto and that no contractor or subcontractor will engage in the performance of the Services unless currently registered and qualified to perform public work. 14. SUBCONTRACTING The subcontractors authorized by City, if any, to perform work on this Project are identified in Exhibit "A". 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. Fortaleza Group, Inc. Page 7 15. 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 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. 16. CONFLICTS OF INTEREST 16.1 The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 16.2 If subject to the Act and/or Government Code §§ 1090 et seg., Contractor shall conform to all requirements therein. 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. 17. NOTICES 17.1 All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Contractor 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 Contractor to City shall be addressed to City at: Attention: Public Works Director City of Newport Beach 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92658 17.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Caesar Patlan Fortaleza Group, Inc. 4484 Avon St. Riverside, CA 92509 Fortaleza Group, Inc. Page 8 18. TERMINATION 18.1 Termination With Cause - 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 five (5) calendar days, or if more than five (5) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within five (5) 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 Agreement forthwith by giving to the defaulting party written notice thereof. 18.2 Termination Without Cause. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving 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 in the performance of such services up to the effective date of termination for which Contractor has not previously been paid. In the event of termination under this Section, City shall also pay Contractor for all Products, associated materials, and hardware delivered to City site under this Agreement that City deems usable. 19. 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. 20. WARRANTY 20.1 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. 20.2 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 Fortaleza Group, Inc. Page 9 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. 20.3 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. 21. REPRESENTATIONS 21.1 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. 21.2 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 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. 21.3 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. 22. CONFIDENTIAL INFORMATION. 22.1 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. 22.2 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 Fortaleza Group, Inc. Page 10 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. 22.3 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. 23. ASSIGNMENT This Agreement shall not be assigned by any party, or any party substituted, without prior written consent of the City and the Contractor. 24. STANDARD PROVISIONS 24.1 Recitals. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 24.2 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. 24.3 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. 24.4 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. 24.5 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. 24.6 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. Fortaleza Group, Inc. Page 11 24.7 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. 24.8 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. 24.9 Controllinq 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. 24.10 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, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 24.11 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. 24.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Fortaleza Group, Inc. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY' OFFICE Date: �� �� CITY OF NEWPORT BEACH, a California municipal corporation Date: '),- 7 i ?/� By: By: ) ' A on C. ar z� David Webb ity Attorne � Public Works Director ATTEST: Dater? 7, A"C� F&Ml`_ Leilani 1. Brown- f City Clerk CONTRACTOR: FORTALEZA GROUP, INC., a California corporation Date: Signet. (_,,mterpart Caesar Patlan Chief Executive Officer/ Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services and Schedule of Billing Rates Exhibit B - Insurance Requirements Exhibit C - Labor and Materials Payment Bond Exhibit D - Faithful Performance Bond RABKa9�' ��Fi %ems%.. v,-�:�'�(�41Yn%XE kA3fkL+"g. 3}%�C'241R 3?.iv4M _-"".£!�i'YF_—;"4.�w4Rb• .iSSS?a �d>S'k:�cW#PBE#3TY+lNt�}.u_.4�M dar.�.��s4.fR:T�;'.0`iN(+ita)3ha Fortaleza Group, Inc. Page 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORN Y'S OFFICE Date- By: r ar n C. Ha dity Attorner7 ATTEST: Date: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: David A. Webb Public Works Director CONTRACTOR: FORTALEZA GROUP, INC., a C ifois corporation Date:By %�� C sar Patlan Chief Executive Officer/ Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services and Schedule of Billing Rates Exhibit B — Insurance Requirements Exhibit C — Labor and Materials Payment Bond Exhibit D — Faithful Performance Bond Fortaleza Group, Inc. Page 13 EXHIBIT A SCOPE OF SERVICES AND SCHEDULE OF BILLING RATES Fortaleza Group, Inc. Page A-1 Consultant shall provide Containment Netting Extension for the field at Grant Howald Park as further detailed in this Scope of Work and Schedule of Billing Rates: Scope of Work: Extend containment netting from 12' to 20' Inclusions: Includes all labor and materials, including, but not limited to: All netting, welling, field welding, industrial coatings, stainless steel hardware and cables, post extensions and painting procedures using zinc coating and Epoxy paint Total Price for all items: $56,932.00 X co ME W r' E N r I f t 1 a` 6Nutt3N ' IIT 1 { O v lY 9v5 � f o z N � � J H U LLj W 52" 8"1 12" 12" I 2" 132" LEGEND: A:HSS 6X.375 LINE POST / 6X.500 TERMINAL POST (POST ARE TO BE STEEL NOT STAINLESS) B:(3) #4 REBAR TIES @ 2" O.C. C: (8)#7 VERT. REBAR D43 REBAR TIES @ 4" O.C. E: 10" X 5/8" PLATE F: 3500PS1 3 NETTING POST FOOTING CUT VIEW Ci Fabrics 1 #420 NYLON Netting Specification Sheet • Description 210/D60 Knotless Nylon (# 420 Nylon) • Netting Fiber Type 66 Nylon • Treatment Dyed Black/ Acrylic Latex Urethane Bonding • Twine Size No. 21 app 2mm/,078" diameter • Mesh Break Strength 180.3 Ib Tensile • Mesh Size 1 7/8" Square Opening • Closed Surface Area 1, / <-- goo • Open Surface Area 83.67% - Netting pole design is based on 9%, solid ration. Increasing solid ratio to 13.33% would increase wind forces on entire system and would require larger structurally designed footings. Submit #420 knotless with 9% max solid ratio Call us or submit your quote through our website! (619) 661-7166 • cifabrics.com For HSS members use ASTM Tube and Pipe R.E. Borrmann Steel Co. A500 Grade B Pipe Sch Size (in) O.D. (in) I. D. (in) Wall Thickness (in) Wt/Ft P.E. 1 SCh 40 1/2 0.840 0.622 0.109 0.850 2 Sch 40 3/4 1.050 0.824 0.113 1.130 3 Sch 40 1 1.315 1.049 0.133 1.680 4 Sch 40 1 1/4 1.660 1.380 0.140 2.270 5 Sch 40 1 1/2 1.900 1.610 0.145 2.720 6 Sch 40 2 2.375 2.067 0.154 3.650 7 Sch 40 21/2 2.875 2.469 0.203 5.790 8 Sch 40 3 3.500 3.068 0.216 7.580 9 Sch 40 31/2 4.000 3.548 0.226 9.110 10 Sch 40 4 4.500 4.026 0.237 10.790 11 Sch 40 5 5.563 5.047 0.258 14.620 12 Sch 40 6 6.625 6.065 0.280 18.970 13 Sch 40 8 8.625 7.981 0.322 28.550 14 Sch 40 10 10.750 10.020 0.365 40.480 15 Sch 40 12 12.750 12.000 0.376 49.560 16 Sch 80 1/2 0.840 0.546 0.147 1.090 17 Sch 80 3/4 1.050 0.742 0.154 1.470 18 Sch 80 1 1.315 0.957 0.179 2.170 19 Sch 80 1 1/4 1.660 1.278 0.191 3.000 20 Sch 80 1 1/2 1.900 1.500 0.200 3.630 21 Sch 80 2 2.375 1.939 0.218 5.040 22 Sch 80 2112 2.875 2.323 0.276 7.660 23 Sch 80 3 3.500 2.900 0.300 10.250 24 Sch 80 31/2 4.000 3.364 0.318 12.510 25 Sch 80 4 4.500 3.826 0.337 14.980 26 Sch 80 5 5.563 4.813 0.375 20.780 27 Sch 80 6 6.625 5.761 0.432 28.570 28 Sch 80 8 8.625 7.625 0.500 43.390 29 Sch 80 10 10.750 9.750 0.500 54.740 30 Sch 80 12 12.750 11.750 0.500 65.420 31 Double Extra Strong 1 1.315 0.599 0.358 3.660 32 Double Extra Strong 1 1/4 1.660 0.896 0.382 5.210 33 Double Extra Strong 1 1/2 1.900 1.100 0.400 6.410 34 Double Extra Strong 2 2.375 1.503 0.436 9.030 35 Double Extra Strong 21/2 2.875 1.771 0.552 13.700 36 Double Extra Strong 3 3.500 2.300 0.600 18.580 37 Double Extra Strong 4 4.500 3.152 0.674 27.540 38 Double Extra Strong 5 5.563 4.063 0.750 38.550 39 Double Extra Strong 6 6.625 4.897 0.864 53.160 40 Double Extra Strong 8 8.625 6.875 0.875 72.420 The Contractor shall install or replace curb markings that indicate sewer laterals on the face of the curb. The Contractor shall mark the curb with a chiseled "S" for sewer. A two (2) day notice to the Engineer is required for requests to the Owner to determine the location of sewer laterals. 303-5.5.4 Gutter The Contractor shall hold the flow line tolerances to within 0.01 feet of those elevations shown on the plan. 303-7 COLORED CONCRETE 303-7.1 General Delete the first sentence and replace with the following: Colored concrete shall be produced by Method B (Integral Color) as described in Section 303-7.3. SECTION 304B - METAL FABRICATION AND CONSTRUCTION FOR ALL ORNAMENTAL METAL FENCING, GATES, GUARD RAILS, AND HANDRAILS 304-2 METAL HANDRAILS 304-2.3 Ornamental Metal 304-2.3.1 General. The materials for ornamental metal items. 304-2.3.2 Fabrication: 1. Miscellaneous metal work which will be exposed to view shall only be fabricated with materials that are smooth and free of surface blemishes, including, but not limited to, pitting, seam marks, trade names, and roughness. Remove such blemishes by grinding or by welding and grinding prior to cleaning, treating, or applying surface finishes. 2. Shop Assembly: Work shall be fitted, shop assembled, and ready for erection when identified on construction schedule. 3. Workmanship: Form metals to shape and size with sharp lines and angles, and with smooth surfaces and faces free from distortion. Mill fastening to a close fit. Do all fitting true to line. Bend or form all tubing, pipe, and other members to continuous and true curves with all joints flush and neatly fastened together. All fabrications shall be square, plumb, straight, and true. 4. Jointing and Connections: Jointing and intersections shall be accurately made in true planes and tightly fitted to hairline joints. Connections shall be welded. Do not use screws unless specifically shown or required - if used, screws shall be countersunk with a metal compatible with the members being joined. CITY OF NEWPORT BEACH Technical Specifications Greenbook GRANT HOWALD PARK Page 35 1 Mh, r ._r �t a� p i I ry { a. .yy�33 nY i I ry EXHIBIT B INSURANCE REQUIREMENTS 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 officers, agents, employees and volunteers. 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) with no endorsement or modification limiting the scope of coverage for liability assumed under a 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 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Fortaleza Group, Inc. Page B-1 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 elected or appointed officers, agents, officials, employees and volunteers 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 subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents 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. 5. 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. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Fortaleza Group, Inc. Page B-2 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 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. 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. 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 performance under this Agreement, 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 Fortaleza Group, Inc. Page B-3 judgment may be necessary for its proper protection and prosecution of the Work. Fortaleza Group, Inc. Page B-4 EXHIBIT C CITY OF NEWPORT BEACH BOND NO. CE02671700285 LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to FORTALEZA GROUP, INC., a California corporation, hereinafter designated as the "Principal," an Agreement for the purchase and installation of Containment Netting Extension for the field at Grant Howald Park, in the City of Newport Beach, in strict conformity with the Agreement 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 Agreement 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. NOW, THEREFORE, We the undersigned Principal, and, PHILADELPHIA INDEMNITY 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 Fifty Six Thousand Nine Hundred Thirty Two & 32/100 ($56,932.00), lawful money of the United States of America, said sum being equal to 100% of the estimated amount payable by the City of Newport Beach under the terms of the Agreement; 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. Fortaleza Group, Inc. Page C-1 And Surety, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Agreement 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 Agreement 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 23rd day of November 12021 Fortaleza Group, Inc. Name of Contractor (Principal) PHILADELPHIA INDEMNITY INSURANCE COMPANY Name of Surety One Bala Plaza Suite 100, Bala Cynwyd, PA 19004 Address of Surety 888-518-8011 Telephone Valerie Ann Aber, Attorney -In -Fact Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED APPROVED AS TO FORM: CITY ATfORNV'S FFICE Date* �Z /, ZE By: C. H � G y Attorney a� Fortaleza Group, Inc. Page C-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 LC County of SS. of California On 20-2�t before me, 1' Z Notary Public, personally appeared 0,9 e-Sai- u�r'1 _ who proved to me on the basis of satisfactory evidence to be the person(s) whose names) 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 unoq PENALTY OF PERJU paragrap true/nd correct. nature laws of the State of California that the foregoing MARTHA LOPEZ Notary Public - California Z c San Bernardino County Commission # 2236113 ""O%Mmm. Expires Apr 25, 2022 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 County of Maricopa }ss. Arizona (9"Wow On November 23 20 21 before me, Joshua Ferman Notary Public, personally appeared Valerie Ann Aber Attorney -In -Fact who 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 and ��cial seal. Signa re oto BT, JOSHUA FERMAN Notary Public - State of Arizona • MARICOPA COUNTY Commission # 561267 bO• s •°� ExpiresApri 2 2 3 Fortaleza Group, Inc. Page C-3 PHILADELPHIA INDEMNITY INSURANCE COMPANY One Bala Plaza, Suite 100 Bala Cynwyd, PA 19004-0950 Power of Attorney KNOW ALL PERSONS BY THESE PRESENTS: That PHILADELPHIA INDEMNITY INSURANCE COMPANY (the Company), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint Valerie Any Aber and Daniel Rueee of Worldwide Insurance Snecialists, Inc. its true and lawful Attorney-in-fact with full authority to execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an amount not to exceed $50,000,000. This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of PHILADELPHIA INDEMNITY INSURANCE COMPANY on the 14"' of November, 2016. RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the Company: (1) Appoint Attorney(s) in Fact and authorize the Attorney(s) in Fact to execute on behalf of the Company bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof and to attach the seal of the Company thereto; and (2) to remove, at any time, any such Attorney -in -Fact and revoke the authority given. And, be it FURTHER RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any such Power of Attorney or certificate relating thereto by facsimile, and any such Power of Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. IN TESTIMONY WHEREOF, PHILADELPHIA INDEMNITY INSURANCE COMPANY HAS CAUSED THIS INSTRUMENT TO BE SIGNED AND ITS CORPORATE SEALTO BE AFFIXED BY ITS AUTHORIZED OFFICE THIS 5TH DAY OF MARCH, 2021. %�)fr (Seal) Job Glomb, President & CEO Philadelphia Indemnity Insurance Company On this 5"' day of March, 2021 before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that he is the therein described and authorized officer of the PHILADELPHIA INDEMNITY INSURANCE COMPANY; that the seal affixed to said instrument is the Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed. 1, Edward Sayago, Corporate Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do hereby certify that the foregoing resolution of the Board of Directors and the Power of Attorney issued pursuant thereto on the 5"' day March, 2021 are true and correct and are still in full force and effect. I do further certify that John Glomb, who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of PHILADELPHIA INDEMNITY INSURANCE COMPANY. In Testimony Whereof] have subscribed my name and affixed the facsimile seal ofeach Company this 23rd day of November 202 �—Z75 Edward Sayago, Corporate Secretary PHILADELPHIA INDEMNITY INSURANCE COMPANY Notary Public: Commonwealth of Pennsylvania - Notary Seal✓c=��L 1�C�-T�..c Vanessa Mckenzie, Notary Public Montgomery County My commission expires November 3, 2024 Commission number 1366394 Memear. Pgnntynrq�:� Atfgtitlien et Netariee residing at: Bala Cynwyd, PA My commission expires: November 3, 2024 1, Edward Sayago, Corporate Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do hereby certify that the foregoing resolution of the Board of Directors and the Power of Attorney issued pursuant thereto on the 5"' day March, 2021 are true and correct and are still in full force and effect. I do further certify that John Glomb, who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of PHILADELPHIA INDEMNITY INSURANCE COMPANY. In Testimony Whereof] have subscribed my name and affixed the facsimile seal ofeach Company this 23rd day of November 202 �—Z75 Edward Sayago, Corporate Secretary PHILADELPHIA INDEMNITY INSURANCE COMPANY EXHIBIT D CITY OF NEWPORT BEACH BOND NO. CE02671700285 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 1,707.96 , being at the rate of $ 30.00 per thousand of the Agreement price. WHEREAS, the City of Newport Beach, State of California, has awarded to FORTALEZA GROUP, INC., a California corporation, hereinafter designated as the "Principal," an Agreement for the purchase and installation of Containment Netting Extension for the field at Grant Howald Park, in the City of Newport Beach, in strict conformity with the Agreement 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 Agreement and the terms thereof require the furnishing of a Bond for the faithful performance of the Agreement. NOW, THEREFORE, we, the Principal, and PHILADELPHIA INDEMNITY 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 Fifty Six Thousand Nine Hundred Thirty Two & 32/100 ($56,932.00), lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Agreement, 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 Agreement 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 Agreement or to the Work to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive Fortaleza Group, Inc. Page D-1 notice of any such change, extension of time, alterations or additions of the Agreement 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 23rd day of November 2021 . Fortaleza Group, Inc. Name of Contractor (Principal) Auth ri Signature/Title PHILADELPHIA INDEMNITY INSURANCE COMPANY Name of Surety Ahthorl/ed Agent Signature One Bala Plaza Suite 100, Bala Cynwyd PA 19004 Address of Surety 888-518-8011 Telephone Valerie Ann Aber, Attorney -In -Fact Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp, City Attorney a� �r CY Fortaleza Group, Inc. 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� `L& County of &X3 of California On II-(� �r�(Yt f��i' `, 20 ,--�,, before me, M 'Z ft , Notary Public, personally appeared e,c who 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 underff OF PERJURY paragraph iq/6,ide and correct. WITN re of the State of California that the forprini g E o MARTHA LOPEZ Notary Public - California Z - San Bernardino County Commission # 2236113 My Comm. Expires Apr 25, 2022 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 County of Maricopa )SS. On of Arizona ft xxx November 23 20 21 before me, Joshua Ferman Notary Public, personally appeared Valerie Ann Aber Attorney -In -Fact who 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 Wmyh and official seal. Si ure JOSHUAFERMAN Notary Public - State of Arizona w > , MARICOPACOUNTY Commission # 561267 • Expires April 12, 2023 (seal) Fortaleza Group, Inc. Page D-3 PHILADELPHIA INDEMNITY INSURANCE COMPANY One Bala Plaza, Suite 100 Bala Cynwyd, PA 19004-0950 Power of Attorney KNOW ALL PERSONS BY THESE PRESENTS: That PHILADELPHIA INDEMNITY INSURANCE COMPANY (the Company), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint Valerie Ann Aber and Daniel Rueee of Worldwide Insurance Specialists, Inc. its true and lawful Attorney-in-fact with full authority to execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an amount not to exceed $50,000,000. This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of PHILADELPHIA INDEMNITY INSURANCE COMPANY on the 14"' of November, 2016. RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the Company: (1) Appoint Attorney(s) in Fact and authorize the Attorney(s) in Fact to execute on behalf of the Company bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof and to attach the seal of the Company thereto, and (2) to remove, at any time, any such Attorney -in -Fact and revoke the authority given. And, be it FURTHER RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any such Power of Attorney or certificate relating thereto by facsimile, and any such Power of Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. IN TESTIMONY WHEREOF, PHILADELPHIA INDEMNITY INSURANCE COMPANY HAS CAUSED THIS INSTRUMENT TO BE SIGNED AND ITS CORPORATE SEALTO BE AFFIXED BY ITS AUTHORIZED OFFICE THIS 5TH DAY OF MARCH, 2021. (Seal) Joh Glomb, President & CE0 Philadelphia Indemnity Insurance Company On this 5"' day of March, 2021 before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that he is the therein described and authorized officer of the PHILADELPHIA INDEMNITY INSURANCE COMPANY; that the seal affixed to said instrument is the Corporate seal of said Company, that the said Corporate Seal and his signature were duly affixed. Notary Public: Commonwealth of Pennsylvania - Notary Se al Vanessa Mckenzie, Notary Public Montgomery County My commission expires November 3, 2024 Commission number 1366394 Mombor. Ponrtiyivan:e A!loeiNion of Notar9eo residing at: Bala Cynwyd, PA My commission expires: November 3, 2024 1, Edward Sayago, Corporate Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do hereby certify that the foregoing resolution of the Board of Directors and the Power of Attorney issued pursuant thereto on the 5"' day March, 2021 are true and correct and are still in full force and effect. I do further certify that John Glomb, who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of PHILADELPHIA INDEMNITY INSURANCE COMPANY. In Testimony Whereofl have subscribed my name and affixed the facsimile seal ofeach Company this 23rd day of November _2021 Edward Sayago, Corporate Secretary PHILADELPHIA INDEMNITY INSURANCE COMPANY From: Customer Service To: Moroan, Shelby Cc: lori.alcalaRebix.com Subject: Compliance Alert -Vendor Number FV00000693 Date: January 22, 2022 2:41:06 AM [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. This Account has moved from non-compliant to COMPLIANT status and is currently in compliance for certificate of insurance requirements. FV00000693 Fortaleza Group, Inc. Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach.