HomeMy WebLinkAboutC-8113-1 - Purchase and Installation Agreement for Shade Structures at Sunset Ridge Parktr,
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PURCHASE AND INSTALLATION AGREEMENT
WITH SHADE STRUCTURES, INC., DBA USA SHADE AND FABRIC
STRUCTURES FOR SHADE STRUCTURES AT SUNSET RIDGE PARK
THIS PURCHASE AND INSTALLATION AGREEMENT ("Agreement') is made and
entered into as of this W' day of June, 2016 ("Effective Date') by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and
Shade Structures, Inc., a Delaware corporation doing business as ("DBA") USA Shade
and Fabric Structures ("Contractor'), whose principal place of business is 1085 Main
Street, Suite C, Orange, CA 92867, 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 and install shade structure equipment
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 solicited and 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:
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.
Shade Structures, Inc., DBA USA Shade and Fabric Structures 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: sell to City and install one (1) Shade
Structure fabric, cable and clamp replacement (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 Maieure. 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 June 30, 2017, 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 Nine Thousand Dollars and 001100 ($9,000.00), 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.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 2
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 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.
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 Ben Cover 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 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.
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.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 3
. 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 Contractors 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 Contractors 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,
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
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 4
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
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.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 5
8.8 Nothing in this Section shall be construed as„authorizing any award of
attorneys 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. 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 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.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 6
13. 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.
14. 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.
15. CONFLICTS OF INTEREST
15.1 The 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.
15.2 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.
16. NOTICES
16.1 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: Sean Levin
Recreation & Senior Services Department
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 7
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
16.2 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attention: Ben Cover
Shade Structures, Inc., DBA USA Shade and Fabric Structures
1085 Main Street, Suite C
Orange, CA 92867
17. TERMINATION
17.1 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.
17.2 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.
18. 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.
19. WARRANTY
19.1 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
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 8
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.
19.2 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.
19.3 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.
20. REPRESENTATIONS
20.1 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.
20.2 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.
20.3 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.
21. CONFIDENTIAL INFORMATION.
21.1 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.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 9
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.
21.2 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.
21.3 Riaht 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.
22. ASSIGNMENT
This Agreement shall not be assigned by any party, or any party substituted,
without prior written consent of the City and the Contractor.
23. STANDARD PROVISIONS
23.1 Recitals. City and Contractor acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
23.2 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 pen -nit requirements and be subject
to approval of the Project Administrator and City.
23.3 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.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 10
23.4 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.
23.5 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.
23.6 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.
23.7 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.
23.8 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.
23.9 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.
23.10 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.
23.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attomeys' fees.
23.12 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]
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 11
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: 6z -9 M
By: 219�9:��
Aaron C. Harp
City Attorney
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:'t
By- -
L ura Detw it r
R creation & enior Services Director
ATTEST: 22) CONTRACTOR: Shade Structures, Inc.
Date: �]. �'l,/� DBA USA Shade & Fabric Structures, a
Delawar rption
Date: l
By://IUr"lam By: �.
Leilani I. Brown JohnSaunders
City Clerk President
Attachments:
0
C�F9 BrSeereEt rl 1N t� �th
As�s}-�t�fi se�r�►-"�
[END OF SIGNATURES]
Exhibit A — Scope of Services and Schedule of Billing Rates
Exhibit B — Insurance Requirements
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 12
EXHIBIT A
SCOPE OF SERVICES AND
SCHEDULE OF BILLING RATES
Supply and install the following:
DESCRIPTION:
STRUCTURE SIZE:
NUMBER OF POSTS:
NUMBER OF FABRIC TOPS:
FABRIC TYPE:
FABRIC COLOR:
STEEL COLOR:
POST ATTACHMENT METHOD:
ENTRY HEIGHTS:
WINDLOAD:
SNOW LOAD:
PRICE:
DESCRIPTION:
STRUCTURE SIZE:
NUMBER OF POSTS:
NUMBER OF FABRIC TOPS
FABRIC TYPE:
FABRIC COLOR:
STEEL COLOR:
POST ATTACHMENT METHOD:
ENTRY HEIGHTS:
WINDLOAD:
SNOW LOAD:
PRICE:
TOTAL:
Baseball Field Shade Structure
Clamp Replacement
705 sf
4
1
COLOURSHADEFR
DESERTSAND
CUSTOM
EMBED
NA
85 MPH
5 LB
$3,955.75
Fabric, Cable &
Playground Shade Structure, Fabric, Cable &
Clamp Replacement with Hardware
Reinforcement
970 sf
4
COLOURSHADEFR
DESERT SAND
CUSTOM
EMBED
NA
115 MPH
5 LB
$4&02.90
$8,558.65
*Contract Compensation shall not exceed $9,000.00
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page A-1
GENERAL SCOPE OF WORK
YES
®
NO
P
YEST NO
P
X
Purchaser is responsible for DSA/ permh submittal
X
Underground obstacles
X
USA Shade is responsible for DSAI permh submittal
Building Code N/A
X
X
X
Dirt Removal & Disposal
Soil Tests
Concrete Cutting
Type of drawings NIA
X
Concrete Truck Access
# of sealed drawings NIA
X
Fencing
calculations Regtmed NIA
X
Special Inspection
Note: Customer to provide cunantarchitectural site plan toscale
X
Permits (see Perm@Requirements)
rasI
No
X
X
Prevailing Wages & Certified Payroll
Union Wages
X
Assembly/ Installation
X
Removal of existing structure or poles
X
Shipping and Handling
X
Curb Repair
X
Engineered Drawings
X
Landscaping Repair
X
Sales Tax
X
Electrical hook-up or trenching
X
DSA/ Permit Submdtal
X
Site Plan Approval
X
DSA/ Permit fees
X
Site Layout/ Verification
X
Artificial Turf Repair/ Replacement
X
Bobcat Access
X
Zinc l Coastal Primer
X
Liquidated Damages
X
Payment and Performance Bonds
X
Anchor Bolts Included
X
Dig and Pour Footings (Inc. Rebar& Concrete]
X
Other special conditions:
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page A-2
STRU CTU R E DETAILS
(1) 1 Playground Shacle Structure
fabric, Cable and Clamp
Replacement vvith IIardware
Structure Size
Number of Posts
Number of Fabric Tops
Fabric Type
Fabric Color
Sleet Calor
Post Attachment Method
Entry Height
W nd lozd
Snow load
Notes:
970 sf
4
1
Colourshade FR^
Desert Sand
Custom
Embed
N/A
115 MPH
5 LbsfSFt
5-1,60_90
7'olcl Price
GENERAL SCOPE C P WORK
D
YES NO
Ir1iscellanee
us
ITEM
ble for DSAJ permit submittal
DETAILS COST
Underground obstacles
Total for Miscellaneous Items: 5 NIA
'Units
Included
Dirt Removal B Disposal
Soil Tests
concrete Culling
Engineering
WA
(1) Upon execution ofMe Agreement(Deposit) P.O.
Shipping
Included
(2) Upon issuanceorpermq prior tomanufadure
:Accessories/ Miscellaneous
Included
(3) Uponmmpletlonofaesemblylinstalladon In full
', Sales Tax I8%
IrtcWded
Installaacn
Included
a
•
$4,602.90
•
GENERAL SCOPE C P WORK
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page A-3
YES NO
ble for DSAJ permit submittal
X
Underground obstacles
p7p;
ible for DSA/ permit submittal
ing Code NIA
X
X
X
Dirt Removal B Disposal
Soil Tests
concrete Culling
drawings NIA
X
Concrete Truck Access
# of sealed drawings NIA
X
Fencing
Calculations Required NIA
X
Special Inspection
rEs
•
X
X
X
Permits (see Permit Requirements)
Prevailing Wages & Certified Payroll
Union Wages
X
Assembly/Installation
X
Removal of existing structure or poles
X
Shipping and Handling
X
Curb Repair
X
Engineered Drawings
X
Landscaping Repair
X
Sales Tax
X
Electrical hook-up ortrenching
X
DSAI Permit Submittal
X
Site Plan Approval
X
DSA/Permit fees
X
Site Layoutf Verification
X
Artificial Turf Repair/Replacement
X
Bobcat Access
X
Zinc/Coastal Primer
X
Liquidated Damages
X
PUrmentand Performance Bonds
X
Anchor Botts included
X
Dig and Pour Footings (Inc. Reber & Concrete)
X
Other special conditions:
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page A-3
16) Warran .
• USA SHADE provides a limited warranty on all USA SHADE -supplied labor and materials. No other warranty is implied.
• The warranty set forth shall be the purchasers sole and exclusive warranty, and is void If structures are not paid for in full.
• The warranty is void any changes, modifications, additions or attachments are made to the structures withoutthe prior mitten consent of
USA SHADE
• The warranty is void If the structures are not assembled in strict compliance with USA SHADE specifications.
• The warranty will be void R regular maintenance is not performed. This is particularly critical in regions where dirt/sand may cause abrasion
of fabric
• The warranties below are effective from the date of sale, or, 9 assembled by USA SHADE, the date of construction completion.
• USA SHADE reserves the Fight to repair or replace any item covered by this warranty.
• Purchaser shall notify USA SHADE in writing, detailing any defects for which a warranty claim is being made
• USA SHADE shall not in any event be liable for indirect, special, consequential, or liquidated damages.
• USA SHADE specifically denies the implied warranties of fitness for a particular purpose and merchantability.
• No signs, objects, fans, light fixtures, etc., may be hung from the structures, unless specifically engineered by USA SHADE. These items
may interfere with the fabric, voiding the warranty.
• The warranty shall be void if damage to the steel frame or fabric top is caused by misuse, willful or intentional damage, vandalism, any Act
of God (i.e. hurricane, tornado, microfmacroburst), including, but not limited to, ice, snow, or wind in excess of applicable building code
parameters.
• For all units assembled by USA SHADE the "Customer Checklist and Sign -off' form must be signed and returned to USA SHADE within 10
business days from the date of construction completion, or USA SHADE will riot be held responsible for any damage to the structures. The
warranty will also be considered null and void until this checklist is received by USA SHADE.
Shaclesuren Fabric:
• ShadesureTr^ fabricscarrya 10 -year limited manufacturers warranty from the date of assembly, against failure from significant fading,
deterioration, breakdown, mildew, outdoor heat, cold, or discoloration, with the exception of Red and Coolbrellal"fabrics, Mich carry a 3
year limited warranty. Should the fabric need to be replaced under the warranty, USA SHADE will manufacture and ship anew fabric at no
charge for the first 6 years, thereafter pro -rated at 18% per annum over the last years.
• This wananty shall be void if damage to the fabric is caused by contact with chemicals, misuse, vandalism, any Act of God (i.e. hurricane,
tomado, rtdao/macroburst), including, but not limited to, ice, snow, or wind in excess of the applicable building code parameters.
• All fabric tops are warranted for Wnds/gusts up to 90mph and prior to snowor ice accumulation.
• All fabric curtains, valances and flat vertical panels are not covered under the warranty.
• Fabric is not warranted where it is assembled on a structure that is not engineered and built by USA SHADE.
• USA SHADE structures are designed to eliminate friction between the rafters and fabric. The warranty will be voided'rf any modification or
attachment is made to the rafter(s). The fabric will wearftear should any object be placed between the rafter and the fabric, voiding the
warranty.
• Labor for the removal, assembly, and/or freight will be covered for a period of 1 year, where the structures supplied and assembled by USA
SHADE are defective. In all cases where the structures are not assembled by USA SHADE, or is agents, all labor for the removal,
assembly, and/orfreight will be at the customers' expense, and the warranty will only be applicable to the repair or replacement of the
defective materials.
• USA SHADE reserves the right, in caseswhere certain fabriccolors have been discontinued, to offer the customer a choice of available
colors to replace the warranted fabric of the discontinued color. USA SHADE does notwarrant that any particular color will be available for
any period of time, and reserves the right to discontinue any color for any reason, without recourse by the owner of the discontinued fabric
color.
Colourshade9 FR Fabric:
• Colourshade®FR fabrics carry a 5 -year limited manufacturer's warranty from the date of assembly, against failure from significant fading,
deterioration, breakdown, mildew, outdoor heat, cold, or discoloration, with the exception of FR Red and CoolbrellaTM' fabrics, which carry a
3year limited warranty. Should the fabric need to be replaced under the varranty, USA SHADE will manufacture and ship a newfabric at
no charge for 5 years.
• This warranty shall be void if damage to the fabric is caused by contact with chemicals, misuse, vandalism, any Act of God (i.e. hurricane,
tomado, miao/macroburst), including, but not limited to, ice, snow, or wind in excess of the applicable building code parameters.
• All fabric tops are warranted far Wnds/gusts up to 90mph and prior to snowor ice accumulation.
• All fabric curtains, valances and flat vertical panels are not covered under the warranty.
• Fabric is not warranted where it is assembled on a structure that is not engineered and built by USA SHADE
• USA SHADE structures are designed to eliminate friction between the rafters and fabric. The warrantywill be voided if any modification or
attachment is made to the rafter(s). The fabric will wear/tear should any object be placed between the rafter and the fabric, voiding the
warranty.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page A-4
• Labor for the removal, assembly, and/or freight will be covered for a period of 1 year, where the structures supplied and assembled by USA
SHADE are defective. In all cases where the structures are not assembled by USA SHADE or its agents, all labor for the removal,
assembly and/or freight will be at the customers' expense, and the warranty will only be applicable to the repair or replacement of the
. defectivematerials.
USA SHADE reserves the right, in cases where certain fabric colors have been discontinued, to offer the customer a choice of available
colors to replace the warranted fabric of the discontinued color. USA SHADE does not warrant that any particular color will be available for
any period of time and reserves the right to discontinue any color for any reason, without recourse by the owner of the discontinued fabric
color.
NOTE: Shadesure- and Coloushade0 FR fabric warranties cover fabric tops up to 40' in length. Fabric fops over 40' In length are covered by a non-
prorated5-yearwamrnly. AddNonaffy, fabric bps made from otherfabric types (i.e. Sunbrella@) w8linclude their, respectfve manufacturer's warranty.
Shadesure and Coolbrella are trademarks of USA SHADE & Fabric Structures.
Cdourshade is a registered trademark of Wit knit Pty. Ud.
Sunbrella is a registered trademark of Glen Raven Custom Fabrics, I.I.C.
Steel:
The structural integrity of the steel is warranted for 10 years.
Workmanship and powder coated surfaces are warranted for 1 year.
This warranty shall be void If damage to the steel frame is caused by misuse, vandalism, any Act of God (.e. hurricane, tornado,
microlmacroburst), including, but not limited to, ice, snow, or wind in excess of applicable building code parameters.
Thread:
• USA SHADE warranties its sewing thread for a period of 8 years.
• The thread will be free from defects in material(workmanship and will not be damaged by exposure to sunlight, weather, or water.
• This warranty does not cover damage from fire, cuts, vandalism, misuse, or any Act of God (i.e. hurricane, tornado, micro/rracroburst),
including, but not limited to, ice, snow, or wind in excess of the applicable building code.
• Labor for the removal, assembly andfor freight of tops with damage caused by thread will only be covered in instances where USA
SHADE has assembled the unit In all cases where units where not assembled by USA SHADE, all labor for the removal, assembly
andfor freight will be for the customer's account and the warranty will only be applicable to the repair or replacement of defective
materials.
17) Assemblylinstallation:
• Company will notify Purchaser of the scheduled assembly date. Owner agrees to have an owner representative meet the assembly
crew at the job site on the scheduled assembly date to verify the exact location where the Structure(s) is to be placed
• Labor for the removal, assembly and/or freight charges will only be covered by Company in instances where the Structures supplied
and installed by Company are determined by the Company to be defective. In all cases where Structures are not installed by
Company, all labor for the removal, assembly and/or freight of the Structures will be Purchaser responsibility.
• Installation prices are based on a single mobilization charge. If additional mobilization is needed, there will be additional charges.
• If the requested Services require Company access to Owners premises Company will be provided access to the Owners premises
free and clear of debris, automobiles or other interference Monday thru Friday during the hours of Sam to 6pm, and Company will have
access to water and electricalfacilides during installation. Additional charges will apply ff utilities are not easily accessible. Al
automobiles will be moved prior to Company's crew beginning any installation.
• Company will not be responsible for moving or repairing any underground utility lines such as electrical, telephone, gas, water, or
sprinkler lines that may be encountered during installation.
• Any additional costs incurred as a result of hard rock conditions requiring extra equipment, utility removal or repair resulting in delay will
result in additional charges unless they are detailed on as -built site drawings provided to Company or marked on the ground and
communicated to Company in writing prior to fabrication and installation.
18) Installatlon/Assemblvon-site: Where installation/assembly is part of the Services. Purchaser must provide the Company with a detailed
drawing prepared by or for the Owner showing exactly where the Structure(s) are to be assembled as well as detailing any obstacles or
other impediments that may cause the assembly process to be more difficult Any fixture(s), e.g., playground, pools etc., that the
Structure(s) Ware to be assembled over must also be detailed, along with their peak heights (d applicable).
19) SitelUse Review by Purchaser. Company relies on the Purchaser to determine that the Structure(s) ordered are appropriate and safe for
the Owners installation site and/or intended use. Company's not responsible for damages or injuries resulting from collisions by moving
objects or persons with the structure post Company can recommend or supply at additional cost, padding for posts from a third party
manufacturer.
20) Preparatory Work Where installation/assembly is part of the Services and in the event that the foundation or job site is not suitable or
ready for assembly to begin on the scheduled day, a delay of order notification must be sent to Company at least 4 working days before in
order to allow Company to reschedule the project In the event that Company is not notified and incurs an expense in attempting to execute
the assembly, a re -mobilization charge may be charged to Purchaser before Company will reschedule the assembly.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page A-5
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
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-1
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.
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. City reserves the right to require complete, certified copies of
all required insurance policies, at anytime.
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
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-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.
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
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-3
judgment may be necessary for its proper protection and prosecution of
the Work.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-4