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HomeMy WebLinkAboutC-8113-1A - Purchase and Installation Agreement for Shade Structure at Bonita Creek ParkZ .wmr� CZ PURCHASE AND INSTALLATION AGREEMENT WITH SHADE STRUCTURES, INC. FOR v SHADE STRUCTURE AT BONITA CREEK PARK THIS PURCHASE AND INSTALLATION AGREEMENT ("Agreement") is made and entered into as of this 1 st day of March, 2024 ("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 & FABRIC STRUCTURES ("Contractor"), whose address is 2580 Esters Blvd., Suite 100, DFW Airport, Dallas, TX 75261, 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 construct and install a cantilever shade structure 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. 1.2 Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, reach fork, skid steer 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: furnish and install the items (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" upon a mutually agreed schedule. 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 December 31, 2024, whichever occurs first. 4. COMPENSATION 4.1 City shall pay Contractor for the Services in accordance with the provisions of this Section and Exhibit "A" which is 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 Thirty Four Thousand Four Hundred Fifty Five Dollars and 75/100 ($34,455.75) without prior written authorization from Shade Structures, Inc. Page 2 City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 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. 4.3 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". 4.4 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. 4.5 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. 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 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 and 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. 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 Shade Structures, Inc. Page 3 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, without limitation, defects in workmanship or materials and/or design defects; and/or (3) Shade Structures, Inc. Page 4 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 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. 8.7 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. Shade Structures, Inc. Page 5 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 a Policyholders' Rating A (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best's Key Rating 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 Shade Structures, Inc. Page 6 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. 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. Shade Structures, Inc. Page 7 16.2 If subject to the Act and/or Government Code §§ 1090 et seq., 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: Attn: Recreation and Senior Services Director Recreation and Senior Services City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 17.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Contracts Department Shade Structures, Inc. dba USA Shade & Fabric Structures 2580 Esters Blvd., Suite 100 DFW Airport, TX 75261 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 Shade Structures, Inc. Page 8 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. KII TI%1:7:7_1 k 11 CA 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 one year from the date of final acceptance by City for hardware products not manufactured by the Contractor, and one year 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 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. 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 Shade Structures, Inc. Page 9 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. 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 permit 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. 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. Shade Structures, Inc. Page 10 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 attorneys' 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. 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: �21a 9/0q By: /' ( A" n C. Harp ads City Attorney ATTEST: r^ Date: v( I B I �I /�� �l ��� City Clerl CITY OF NEWPORT BEACH, a Californo m4nicipal corporation Date: art LOVin cr6kion & Senior Services Director CONTRACTOR: SHADE STRUCTURES, INC., a Delaware corporation doing business as ("DBA") USA SHADE & FABRIC STRUCTURES Date: Signed in Counterpart Rob Blakely Senior Vice President [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 Shade Structures, 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'S OFFICE Date: :�L,-)iz-)y By: %0 Ko ron C. Harp �1s ty Attorney as�a y ATTEST: Date: Leilani I. Brown City Clerk Attachments CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Sean Levin Recreation & Senior Services Director CONTRACTOR: SHADE STRUCTURES, INC., a Delaware corporation doing business as ("DBA") USA SHADE & FABRIC STRUCTURES Date: 3-1 q —Z31 By: ` � b Blakely Senior Vice President [END OF SIGNATURES] 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 Shade Structures, Inc. Page 12 EXHIBIT A SCOPE OF SERVICES AND SCHEDULE OF BILLING RATES Shade Structures, Inc. Page A-1 EXHIBIT A SCOPE OF SERVICES AND SCHEDULE OF BILLING Contractor shall construct and install one (1) single post pyramid cantilever shade structure at Bonita Creek Park in a location designated by City. SINGLE POST PYRAMID CANTILEVER 4 M71 Our Single post Pyramid Cantilever structures can provide almost 400 square feet of shade from a single column. USASHADE & Fabric Structures. Date Proposal for USA SHADE & Fabric Structures q/1 q/7f)7q Project Information: Purchaser: City of Newport Beach Contact: Brian Cordeiro Sales Rep: Sales Information: Ben Cover Bonita Creek Community Center Project Name: Phone: 949-644 3156 Phone: 949 466 4413 Shade Structure Quote No: BC457 Email: BCordeiro@newportbeachca.gov Email: ben.cover@usa-shade.com PO No: Fax: Fax: Information: City of Newport Beach ShippingBilling SOUTHERN CALIFORNIA .b Bonita Creek Community Center 100 Civic Center Drive 1085 N. Main Street, Suite C 3010 La Vida Newport Beach Orange Newport Beach CA CA CA 92660 92867 92660 Contact: Brian Cordeiro Contact: Ben Cover Contact: Brian Cordeiro Phone 949-644-3156 Phone 949-466-4413 Phone 949-644-3156 Email: BCordeiro@newportbeachca.gov Email: ben.cover@usa-shade.com Email: BCordeiro@newts beachca.�ov Fax: Fax: Fax: CORPORATE ADDRESS: 2580 Esters Blvd., Suite 100 DFW Airport, TX 75261 SOUTHERN CALIFORNIA: 1085 N. Main Street, Suite C Orange, CA 92867 NOTE: RESERVED. MAILING ADDRESS: P.O. Box 3467 Coppell, TX 75019 NORTHERN CALIFORNIA: ARIZONA: 927 Enterprise Way, Suite A 2452 W. Birchwood Ave, Suite 112 Napa, CA 94558 Mesa, AZ 85202 REMITTANCE ADDRESS: P.O. Box 734158 Dallas, TX 75373-4158 LAS VEGAS: 6225 S. Valley View Blvd., Suite I Las Vegas, NV 89118 www.usa-shade.com 800-966-5005 AZ:289388 CA:989458 LA:61718 NV:78724 NV:78724 NM:383826 TN:68712 DIR:1000003533 USASHADE & Fabric Structuream Structure Pricing UNIT IMAGE UNIT DETAILS Unit Quantity: Unit Type: Structure Size: 1 Foundations By USA Shade Single Post Pyramid Cantilever Grout Installation Not Applicable 20 ft. X 20 ft. Footing Type: Drilled Pier USA Shade Model Number 124.1 Base Attachment: PIH - Embed i Entry Height: 10 ft. Anchor Bolts: N/A No of Columns: 1 Concrete Cutting: N/A No of Fabric Tops: 1 Dirt Removal: Included Fabric Type: Colourshade FR Surface Type: Grass Fabric Color: TBDNOTES Steel Finish: Powder Coated Steel Color: TBD Electrical Provisions: N/A $34,v455.75 cable/HDwFinish: Galvanized Concept No: N/A www.usa-shade.com 800-966-5005 AZ:289388 CA:989458 LA:61718 NV:78724 NV:78724 NM:383826 TN:68712 DIR:1000003533 USASHADE & Fabric Structures.. RESERVED Building Code I CBC 2022 Wind Load 115 mph Snow Load 5 psf If remobilizations or spread footing is required, change orders will be issued. Drawing Size Electronic No. of Sealed Drawings I Electronic I Calculations Required I Yes INCLUDED EXCLUDED ❑+ ❑ INCLUSIONSEXCLUSIONS ENGINEERING REQUIREMENTS INCLUDED EXCLUDED INSTALLATION - MISCELLANEOUS Sealed Drawings & Calculations El ❑ Prevailing Wage / Certified Payroll ❑ 121 Permit Submittal ❑ I] Union Wages ❑ (21 Permit Fee 2 ❑ Fencing ❑ 0 DSA Submittal & Fees ❑❑ Curb Repair 9 ❑ Design and Engineering of Structure ❑ 2 Landscape Repair ❑ Design and Engineering of Foundation ❑ 121 Demolition (Existing Structures) ❑ 21 Reactions and Loads for attachment to Walls, Rooftops, or Other 121 ❑ Payment and Performance Bonds ❑ 121 Foundation Location and Elevation Survey ❑ 0 Special Inspection Fees www.usa-shade.com 800-966.5005 AZ: 289388 CA: 989458 LA: 61718 NV: 78724 NV:78724 Nk 383826 TN: 68712 DIR: 1000003533 U! ASHADE & Fabric Structuros, Construction Assumptions 1) The designated area for our structures will be accessible by drive -up for unloading of our trucks and equipment, including personnel man -lifts, forklifts, etc. Should a crane be required and direct access not available, additional costs for such will be submitted by a Change Order. 2) Our pricing is based on the ability to perform all of our work with clear, sequential, and continuous access without interruption during normal daytime working hours. We have assumed one mobilization for the installation of foundations, steel and fabric; if additional mobilizations are required, there will be an additional charge. We will require exclusive access to the area for our work during the construction process. 3) Our pricing does not include daily site delays accessing the work areas. USA SHADE will submit a Change Order for any delays caused by other trades which interfere or cause us to stop working. 4) Pricing assumes secure storage and adequate lay down area for our tools, equipment, and materials, within close proximity to the installation site will be provided, free of charge. 5) Our price assumes others to provide 110-volt electrical service and necessary potable water available within 100 feet of our work. 6) We will require site sanitary facilities and refuse containers by others within 200 feet of our work. 7) USA SHADE will leave its work and materials in a clean condition at the conclusion of our work. 8) Barricades and public security requirements are not included. 9) Unless specifically included in this proposal, this agreement does not include, and Company will not provide, services, labor, or materials for any of the following work: (a) removal and disposal of any materials containing asbestos or any hazardous materials as defined by the EPA; (b) moving Owner's property around the installation site; (c) repair or replacement of any Purchaser or Owner -supplied materials; or (d) repair of damage to existing surfaces that may occur when construction equipment and vehicles are being used in the normal course of construction. 10) Pricing for foundation design is based on drilled pier footings. In the event the geotechnical report requires an alternate configuration, any additional costs incurred will be submitted to the client by a Change Order. 11) Digging of our foundations will not be constrained by any existing concrete or utilities. USA SHADE 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. 12) 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 USA SHADE or marked on the ground and communicated to USA SHADE in writing prior to installation. Such additional charges will be submitted to the client by a Change Order. GENERAL TERMS & CONDITIONS AND WARRANTY 1) Proposal: RESERVED. Purchase: By executing this proposal, or submitting a purchase order pursuant to this proposal (which shall incorporate the terms of this agreement Z) specifically by reference) which is accepted by USA SHADE & Fabric Structures (the "Company"), the purchaser identified above ("you" or the "Purchaser") agrees to purchase Shade Structures brand shade structures ("Structures") and the services to be provided by the Company, as detailed in the "Structure Pricing" and "General Scope of Work" sections of this agreement, above, or in the relevant purchase order accepted by the Company, for use by Purchaser or for installation by Company or Purchaser on behalf of a third -party who will be the ultimate owner of the Structures (the ultimate owner of a Structure, whether Purchaser or a third -party, being the "Owner"). Short Ship Claims: RESERVED. 3) www.usa-shade.com 800.966.5005 AZ:289388 CA:989458 LA:61718 NV:78724 NV:78724 NM:383826 TN:68712 DIR:1000003533 USASHADE & Fabric Structur©s-. 4) Standard Exclusions: Unless specifically included under the "General Scope of Work" section above, this agreement does not include, and Company will not provide, services, labor, or materials for any of the following work: (a) removal and disposal of any materials containing asbestos or any hazardous materials as defined by the EPA; (b) moving Owner's property around the installation site; (c) repair or replacement of any Purchaser or Owner -supplied materials; (d) repair of concealed underground utilities not located on prints supplied to Company by Owner during the bidding process, or physically staked out by Owner, and which are damaged during construction; or (e) repair of damage to existing surfaces that may occur when construction equipment and vehicles are being used in the normal course of construction. 5) Bonding Guidelines: If Purchaser will use or provide the Structures and Services for an Owner other than Purchaser (including, without limitation, as a subcontractor of Purchaser), Purchaser will include the following statement in Purchaser's contract with Owner: "The manufacturer's warranty for the Shade Structures brand shade structures is a separate document between USA SHADE & Fabric Structures and the ultimate owner of the Shade Structures brand shade structures, which will be provided to the ultimate owner at the time of completion of the installation and other services to be provided by USA SHADE & Fabric Structures. Due to surety requirements, any performance and/or payment bond will cover only the first year of the USA SHADE & Fabric Structures warranty." 6) Insurance Requirements: RESERVED. 7) Payment: RESERVED. 8) Lien Releases: RESERVED. Site Plan Approval, Permit/s, Permit Fees, Plans, Engineering Drawings, and Surveying: Site plan approval, permits, permit fees, plans, engineering 9) drawings, and surveying are specifically excluded from this agreement and the Services unless specified under the "General Scope of Work". The Company does not in any way warrant or represent that a permit or site plan approval for construction will be obtained. Sealed engineered drawings that are required but not included in the "General Scope of Work" will result in an additional cost to Purchaser. Such additional costs will be submitted to Purchaser by Change Order prior to incurring said cost. 10) Manufacturing & Delivery: Manufacturing lead-time from Company's receipt of the "Notice To Proceed" is approximately 6 to 8 weeks for standard structures, and 8 to 12 weeks for custom structures. Delivery is approximately 1 week thereafter. Delivery of structures may be prior to or at start of assembly. Please note that these timelines do not include approval or permitting timeframes. 11) Returned Product, Deposits, and/or Cancelled Order: Within the first 45 days after shipment from our facility, all returned product(s) and cancelled orders are subject to a 50% restocking fee. No returns are available following this 45 day period. All deposits are non-refundable. All expenses incurred (engineering, site surveys, shipping, handling, etc.) are the responsibility of the Purchaser, up to notice of cancellation. www.usa-shade.com 800.966.5005 AZ:289388 CA:989458 LA:61718 NV:78724 NV:78724 NM:383826 TN:68712 DIR:1000003533 USASHADE & Fabric Structures. 12) Concealed Conditions: "Concealed conditions" include, without limitation, water, gas, sprinkler, electrical and sewage lines, post tension cables, and steel rebar. This agreement is based solely on observations the Company was able to make either by visual inspection or by drawings and/or plans submitted by Owner at the time this agreement was bid. If additional Concealed Conditions are discovered once work has commenced, which were not visible at the time this proposal was bid, Company will stop work and indicate these unforeseen Concealed Conditions to Purchaser or Owner so that Purchaser and Company can execute a Change Order for any additional work. In any event, any damage caused by or to unforeseen Concealed Conditions is the sole responsibility of the Purchaser and Company shall not be held liable for any such damage. Soil conditions are assumed to be soil that does not contain any water, hard rock (such as limestone, caliche, etc.), rocks larger than 4 inches in diameter, or any other condition that will require additional labor, equipment and/or materials not specified by the Purchaser or Owner in the bidding process. Any condition requiring additional labor, equipment, and/or materials to complete the drilling or concrete operations will require a Change Order before Company will complete the process. Price quotes are based on a drilled pier footing. Any variation will incur additional charges (i.e. spread footings, concrete mat, sand, water, landfill, etc.). Costs for footing and installation do not include any allowance for extending below frost lines (the additional costs for which vary by geographical region). Any additional costs shall be presented to Purchaser by Change Order before the cost is incurred. Changes in the Work: During the course of this project, Purchaser may order changes in the work (both additions and deletions). Additionally, an 13) approving agency may require changes in the work from the original design or engineering quoted and provided by the Company (both additions and deletions.) The cost of these changes will be determined by the Company, and a Change Order form must be completed and signed by both the Purchaser and the Company, which will detail the "General Scope of the Change Order". Should any Change Order be essential to the completion of the project, and the Purchaser refuses to authorize such Change Order, then Company will be deemed to have performed its part of the project, and the project and services will be terminated. Upon such termination, Company will submit a final billing to Purchaser for payment, less a labor allowance for work not performed but including additional charges incurred due to the stoppage. No credit will be allowed for materials sold and supplied, which will remain the property of the Purchaser. 14) Indemnification: RESERVED 15) Statement of Limited Warra • The structural integrity of all supplied steel is warranted for ten years. • If assembly is provided by the Company, workmanship of the structure is covered for one year, including labor for the removal of any failed part, disassembly (if necessary), cost of shipping, and reassembly. • All steel surface finishes are warranted for one year. • ShadesureT'", Colourshade® FR, eXtreme 32TA1, Commercial 951m, SaFRshadeT1, and Monotec 370— fabrics all carry a ten year limited manufacturer's warranty against failure from significant fading, deterioration, breakdown, outdoor heat, cold, or discoloration. Should the fabric need to be replaced under the warranty, the Company will manufacture and ship a new replacement fabric at no charge for the first six years, thereafter pro -rated at 20% per year over the remaining four years. The following are exceptions to the preceding warranty terms: o ShadesureTI fabrics in Red, Yellow, Atomic Orange, Electric Purple, Zesty Lime, Cinnamon, Olive, and Mulberry carry a five year pro -rated o Fabric tops attached to CoolbrellaW structures carry a three year warranty; o Individual fabric tops measuring greater than 40' in length are covered by a non -prorated five year warranty; o Precontraint 502TI waterproof membrane is subject to an eight year pro -rated warranty. Sewing thread is warranted for ten years. www.usa-shade.com 800.966.5005 AZ:289388 CA:989458 LA:61718 NV:78724 NV:78724 NM:383826 TN:68712 DIR:1000003533 USASHADE & Fabric Structures. General Limited Warranty Terms and Conditions • These limited warranties are effective from the date of sale, or, if assembly is provided by the Company, upon receipt by Company from Purchaser of a completed and signed "Customer Checklist and Sign -off' form. • In its sole discretion, the Company will repair and or/replace defective structures, products or workmanship, or refund that portion of the price related to the defective product, labor, or service rendered. • The Company reserves the right, in cases where certain fabric colors have been discontinued, to offer the Purchaser or Owner a choice of available alternative colors to replace the warranted fabric. The Company does not guarantee that any particular color will be available for any period of time, and reserves the right to discontinue any color for any reason, without recourse by the Purchaser or Owner of the discontinued fabric color. • Should the Purchaser or Owner sell the structures to another party, the warranty cannot be transferred to the new owner without a complete and thorough on -site inspection performed by a Company representative. Please contact the Company at warranty@usa-shade.com for more details. • All warranty claims covering Company supplied structures, products, and services must be submitted by Purchaser or Owner in writing to the Company within thirty days from the date of discovery of the alleged defect and must include a detailed description and applicable photographs of the alleged defect or problem. Warranty claims should be submitted by email to warranty@usa-shade.com. • Reserved. • These limited warranties are void if: o the supplied structures, products, services and/or labor are not paid for in full; o the structures are not assembled in strict compliance with USA SHADE specifications; o any changes, modifications, additions, or attachments are made to the structures in anyway, without prior written approval from the Company. Specifically, no signs, objects, fans, light fixtures, etc. may be hung from the structures, unless specifically engineered by the Company. • These limited warranties do not cover defects and/or damages caused by: o normal wear and tear; o misuse, willful or intentional damage, vandalism, contact with chemicals, cuts and Acts of God (i.e. tornado, hurricane, micro/macros burst, earthquake, wildfires, etc.); o ice, snow or wind loads in excess of the designed load parameters engineered for the supplied structures; o use, maintenance, neglect, repair, and/or service inconsistent with the Company's written care and maintenance instructions, provided with the order. • The limited warranties explicitly exclude: o workmanship related to assembly not provided by the Company or its agents; o fabric curtains, valances, and flat vertical panels; o fabric tops installed on structures that were not engineered and originally supplied by the Company. • RESERVED • THE FOREGOING LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY FOR THE COMPANY'S PRODUCTS AND SERVICES, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT. SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING OR PERFORMANCE OR TRADE USAGE. PURCHASER, BY ACCEPTANCE AND USE OF THIS LIMITED WARRANTY, WAIVES ANY RIGHTS IT WOULD OTHERWISE HAVE TO CLAIM OR ASSERT THAT THIS LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. Colourshade • and extreme 321 are registered trademarks of Multiknit Pty. Ltd. Commercial 951" and SaFRshade- are registered trademarks of Gale Pacific USA Inc. Monotec 37011 is a registered trademark of PRO -KNIT Industries Pty. Ltd. Precontraint 502" is a registered trademark of Serge Ferrari North America, Inc. www.usa-shade.com 800.966.5005 AZ:289388 CA:989458 LA:61718 NV:78724 NV:78724 NM:383826 TN:68712 DIR:1000003533 USASHADE & Fabric Structures- 16) Assembly/Installation: • 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 the Purchaser's responsibility. • Installation prices are based on a single mobilization charge. If additional mobilizations are required, there will be additional charges. Any additional charges will be submitted to Purchaser in a Change Order prior to incurring the cost. • If the requested services require Company access to Owner's premises, Company will be provided access to the Owner's premises free and clear of debris, automobiles, or other interference Monday — Friday during the hours of 8:00am to 6:00pm, and Company will have access to water and electrical facilities during installation. Additional charges will apply if utilities are not easily accessible. Where applicable, all vehicles 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. 17) Installation/Assembly on -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 structures 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 structures are to be assembled over must also be detailed, along with their peak heights (if applicable). 18) Site/Use Review by Purchaser: Company relies on the Purchaser to determine that the structures ordered are appropriate and safe for the Owner's installation site and/or intended use. Company is not responsible for damages or injuries resulting from collisions by moving objects or persons with the structure post(s). Company can recommend, or supply at additional cost, padding for posts from a third party manufacturer. 19) 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 prior, in order to allow Company to reschedule the project. In the event that Company is not notified and incurs an expense in attempting to execute the assembly, a re -mobilization charge may be charged to Purchaser before Company will reschedule the assembly. 20) Delegation: Subcontractors: The services and the manufacturing and assembly of the structures may be performed by subcontractors under appropriate agreements with the Company. 21) Force Majeure: Impracticability: The Company shall not be charged with any loss or damage for failure or delay in delivering or assembling of the structures when such failure or delay is due to any cause beyond the control of the Company, due to compliance with governmental regulations or orders, or due to any Acts of God, strikes, lockouts, slowdowns, wars, or shortages in transportation, materials or labor. 22) Dispute Resolution: RESERVED. 23) Entire Agreement; No Reliance: This agreement represents and contains the entire agreement between the parties. Prior discussion or verbal representations by the parties that are not contained in this agreement are not part of this agreement. Purchaser hereby acknowledges that it has not received or relied upon any statements or representations by Company or its agents which are not expressly stipulated herein, including without limitation any statements as to the structures, warranties, or services provided hereunder. 24) No Third -Party Beneficiaries: This agreement creates no third -party rights or obligations between Company and any other person, including any Owner who is not also a Purchaser. It is understood and agreed that the parties do not intend that any third party should be a beneficiary of this agreement. 25) Governing Law: RESERVED. 26) Assignment: Purchaser may not assign this agreement, by operation of law or otherwise, without the prior written consent of Company. The agreement shall be binding upon and insure to the benefit of the Company and the Purchaser, and their successors and permitted assigns. www.usa-shade.com 800.966.5005 AZ:289388 CA:989458 LA:61718 NV:78724 NV:78724 NM:383826 TN:68712 DIR:1000003533 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 City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Contractor shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than two million dollars ($2,000,000) per occurrence, four million dollars ($4,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Shade Structures, 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 City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, products and completed operations, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 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. Shade Structures, 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. 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. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. 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. F. 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. G. 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. H. Contractor's Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Shade Structures, Inc. Page B-3 EXHIBIT C CITY OF NEWPORT BEACH BOND NO. LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to SHADE STRUCTURES, INC., a Delaware corporation doing business as ("DBA") USA SHADE & FABRIC STRUCTURES, hereinafter designated as the "Principal," an Agreement for the purchase and installation of a cantilever shade structure, 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, 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 Thirty Four Thousand Four Hundred Fifty Five Dollars and 75/100 ($34,455.75), 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 Shade Structures, Inc. Page C-1 Code of the State of California. 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 day of , 20_ Name of Contractor (Principal) Name of Surety Address of Surety Telephone Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARYACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Shade Structures, 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 of California County of } ss. On 20 before me, Notary Public, personally appeared 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 my hand and official seal. Signature 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. (seal) State of California County of ) ss. On 20 before me, Notary Public, personally appeared 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 my hand and official seal. Signature (seal) Shade Structures, Inc. Page C-3 EXHIBIT D CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ , being at the rate of $ thousand of the Agreement price. WHEREAS, the City of Newport Beach, State of California, has awarded to SHADE STRUCTURES, INC., a Delaware corporation doing business as ("DBA") USA SHADE & FABRIC STRUCTURES, hereinafter designated as the "Principal," an Agreement for the purchase and installation of a cantilever shade structure, 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 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 Thirty Four Thousand Four Hundred Fifty Five Dollars and 75/100 ($34,455.75), 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. Shade Structures, Inc. Page D-1 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 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 day of , 20_ Name of Contractor (Principal) Name of Surety Authorized Signature/Title Authorized Agent Signature Address of Surety Print Name and Title Telephone NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Shade Structures, 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 of County of } ss. On California 20 before me, Notary Public, personally appeared 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 my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State County of )SS. On of California 20 before me, Notary Public, personally appeared 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 my hand and official seal. Signature (seal) Shade Structures, Inc. Page D-3 blame: Account Number - Address: Status: Shade Structures, Inc DBA USA Shade & Fabric Struc FV00001116 2580 Esters Blvd, Suite 100, DFW Airport, TX, 75261 Compliant with Waived Deficiencies.