HomeMy WebLinkAboutC-8113-1B - Purchase and Installation Agreement for Shade Structures at Sunset Ridge Park, Amendment No. 1I
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AMENDMENT NO. ONE TO
PURCHASE AND INSTALLATION AGREEMENT
WITH SHADE STRUCTURES, INC., DBA USE SHADE FOR
V SHADE STRUCTURES AT SUNSET RIDGE PARK
THIS AMENDMENT NO. ONE TO PURCHASE AND INSTALLLATION
AGREEMENT ("Amendment No. One") is made and entered into as of this 18th day of
November, 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 and Fabric Structures
("Contractor"), whose principal place of business is 2580 Esters Blvd., Suite 100, DFW
Airport, Dallas, Texas 75261 and is made with reference to the following:
RECITALS
A. On September 19, 2024, City and Contractor entered into a Purchase and
Installation Agreement ("Agreement") to provide and install shade structure
equipment ("Project").
B. The parties desire to enter into this Amendment No. One to reflect additional
Services not included in the Agreement, to require bonding, and to increase the
total compensation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. SERVICES TO BE PERFORMED
Exhibit A to the Agreement shall be supplemented to include the Scope of
Services, attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). The Scope of Services in Exhibit A to the Agreement and the Scope of
Services in Exhibit A to this Amendment No. One shall collectively be known as the Scope
of Services to "Exhibit A." The City may elect to delete certain Services within the Scope
of Services at its sole discretion.
2. COMPENSATION TO CONSULTANT
The "Schedule of Billing Rates" in Exhibit A to the Agreement shall be replaced in
its entirety with the "Schedule of Billing Rates", attached hereto as Exhibit A and
incorporated herein by reference.
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Forty Two Thousand
Seven Hundred Eighteen Dollars and 33/100 ($42,718.33), 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."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. One,
including all reimbursable items and subconsultant fees, in an amount not to exceed
Seventeen Thousand Seven Hundred Thirty Two Dollars and 61/100 ($17,732.61).
3. BONDING
Section 24, shall be added to the Agreement as follows:
24. BONDING
24.1 Contractor shall obtain, provide and maintain at its own
expense during the term of this Contract both of the following: (1) 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 Contract in the form
attached as Exhibit C and incorporated herein by reference; and (2) 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 Contract and in
the form attached as Exhibit B and incorporated herein by reference.
24.2 The Faithful Performance Bond and Labor and Materials
Payment Bond shall be issued by an insurance organization or surety (1)
currently authorized by the Insurance Commissioner to transact business
of insurance in the State of California, (2) listed as an acceptable surety in
the latest revision of the Federal Register Circular 570, and (3) assigned a
Policyholders' Rating A- (or higher) and Financial Size Category Class VII
(or larger) in accordance with the latest edition of Best's Key Rating Guide:
Property Casualty.
24.3 Contractor shall deliver, concurrently with execution of this
Contract, the Faithful Performance Bond and Labor and Materials Payment
Bond, and 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.
Exhibit B "Labor and Materials Payment Bond" shall be added to the
Agreement, attached hereto as Exhibit B and incorporated herein by reference.
Exhibit C "Faithful Performance Bond" shall be added to the Agreement,
attached hereto as Exhibit C and incorporated herein by reference.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 2
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: Il / 1 Z�
By: 1�1
a on C. Harp
Cif Attorney
ATTEST:
Date: �- ��-
li:��l, ►_��
Brown
City Clerk
;Z-tIFOai
CITY OF NEWPORT BEACH,
a California municip I corporation
Date: 7 2(!;-
evi
Recreation 8/Senior Services Director
CONSULTANT: Shade Structures, Inc.,
a Delaware Corporation, DBA USA
Shade and Fabric Structures
Date:
Signed in Counterpart
By:
David Schneider
Vice President of Operations
Date:
Signed in Counterpart
By:
David Starr
Senior Services Direction
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services and Schedule of Billing Rates
Exhibit B — Labor and Materials Payment Bond
Exhibit C — Faithful Performance Bond
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 4
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 1 Z4
By: '_
n C. Harp
CW Attorney
ATTEST:
Date:
By:
Leilani 1. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Sean Levin
Recreation & Senior Services Director
CONSULTANT: Shade Structures, Inc.,
a Delaware Corporation, DBA USA
Shade and "ab is Structures
Dater
...�.. r
.. .
[END OF
Attachments: Exhibit A — Scope of Services and Schedule of Billing Rates
Exhibit B — Labor and Materials Payment Bond
Exhibit C — Faithful Performance Bond
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page 4
1W4:I1 31r_1
SCOPE OF SERVICES AND SCHEDULE OF BILLING RATES
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page A - 1
EXHIBIT A
SCOPE OF SERVICES AND
SCHEDULE OF BILLING RATES
Excluded I Seated Drawings & Calculations I Included I Prevailing Wage / Certified Payroll
Excluded I Permit Submittal I Excluded I Union Wages
Excluded I Permit Fee I Excluded I Fencing
Excluded
DSA Submittal & Fees
Excluded
Water and Electrical
Design and Engineerin4Of
Excluded
Excluded
Landscape Repair
Structure
Excluded
Design and Engineering of
Excluded
Demolition (Existing Structures)
Foundation
Reactions and Loads for
Excluded
attachment to Walls, Rooftops,
Excluded
Payment and Performance Bonds
or Other
Excluded
Foundation Location and
Excluded
Special Inspection Fees
Elevation Survey
Schedule of Billing Rates
Amended Billing Rates Effective November 2024
CONTRACTOR SHALL PERFORM SERVICES AS DESCRIBED IN THIS AGREEMENT AND RECEIVE
COMPENSATION FOR WORK IN ACCORDANCE WITH THE FOLLOWING RATE:
Sunset Ridge Shade Fabric Replacement
Sunset Ridge Hardware Replacement
Miscellaneous
$24,985.72
$16, 895.00
$837.61
Not to Exceed - $42,718.33
EXHIBIT B
CITY OF NEWPORT BEACH
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, the City of Newport Beach, State of California, has awarded to Shade
Structures, Inc., hereinafter designated as the "Principal," a contract to provide and install
shade structure equipment, in the City of Newport Beach, in strict conformity with the
Contract on file with the office of the City Clerk of the City of Newport Beach, which is
incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a bond, providing that if Principal or any of
Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies
used in, upon, for, or about the performance of the Work agreed to be done, or for any
work or labor done thereon of any kind, the Surety on this bond will pay the same to the
extent hereinafter set forth.
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 Forty
Two Thousand Seven Hundred Eighteen Dollars and 33/100 ($42,718.33) 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 Contract; for which
payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the Work
contracted to be done, or for any other work or labor thereon of any kind, or for amounts
due under the Unemployment Insurance Code with respect to such work or labor, or for
any amounts required to be deducted, withheld and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with
respect to such work and labor, then the Surety will pay for the same, in an amount not
exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the
obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required
by the provisions of Section 9554 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 9100 of the California Civil Code so as
to give a right of action to them or their assigns in any suit brought upon this Bond, as
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-1
required by and in accordance with the provisions of Sections 9500 et seq. of the Civil
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 Contract or to the Work to
be performed thereunder shall in any wise affect its obligations on this Bond, and it does
hereby waive notice of any such change, extension of time, alterations or additions to the
terms of the Contract or to the Work or to the specifications.
In the event that any principal above named executed this Bond as an individual,
it is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the day of 12024.
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
am
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR
AND SURETY MUST BE ATTACHED
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-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.
State of California
(seal)
County of I ss.
On , 20 before me,
Notary Public, personally appeared
, 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., DBA USA Shade and Fabric Structures Page B-3
EXHIBIT C
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $
rate of $
, being at the
thousand of the Contract price.
WHEREAS, the City of Newport Beach, State of California, has awarded to Shade
Structures, Inc., hereinafter designated as the "Principal," a contract to provide and install
shade structure equipment, in the City of Newport Beach, in strict conformity with the
Contract on file with the office of the City Clerk of the City of Newport Beach, which is
incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a Bond for the faithful performance of the Contract.
NOW, THEREFORE, we, the Principal, and
, 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 Forty Two Thousand
Seven Hundred Eighteen Dollars and 33/100 ($42,718.33) lawful money of the United
States of America, said sum being equal to 100% of the estimated amount of the Contract,
to be paid to the City of Newport Beach, its successors, and assigns; for which payment
well and truly to be made, we bind ourselves, our heirs, executors and administrators,
successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the Work, covenants, conditions, and
agreements in the Contract Documents and any alteration thereof made as therein
provided on its part, to be kept and performed at the time and in the manner therein
specified, and in all respects according to its true intent and meaning, or fails to indemnify,
defend, and save harmless the City of Newport Beach, its officers, employees and agents,
as therein stipulated, then, Surety will faithfully perform the same, in an amount not
exceeding the sum specified in this Bond; otherwise this obligation shall become null and
void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys' fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond. Surety, for value received, stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Contract or to the Work to
be performed thereunder shall in any way affect its obligations on this Bond, and it does
Shade Structures, Inc., DBA USA Shade and Fabric Structures C-1
hereby waive notice of any such change, extension of time, alterations or additions
of the Contract or to the Work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for one (1) year following the date of formal acceptance of the
Project by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the day of )2024.
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR
AND SURETY MUST BE ATTACHED
Shade Structures, Inc., DBA USA Shade and Fabric Structures 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 (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of } ss.
On , 20 before me,
Notary Public, personally appeared
, 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., DBA USA Shade and Fabric Structures C-3
Name_
Shade Structures, Inc DBA USA Shade & Fabric Struc
Account Number.
FV00001116
Address:
2580 Esters Blvd, Suite 100, DFW Airport, TX, 75261
Status: Compliant with Waived Deficiencies_
1
a0 PURCHASE AND INSTALLATION AGREEMENT
WITH SHADE STRUCTURES, INC., DBA USA SHADE & FABRIC
V STRUCTURES FOR SHADE STRUCTURES AT SUNSET RIDGE PARK
THIS PURCHASE AND INSTALLATION AGREEMENT ("Agreement") is made and
entered into as of this 19th day of September, 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
and Fabric Structures ("Contractor"), whose principal place of business is 2580 Esters Blvd.,
Suite 100, DFW Airport, Dallas, Texas 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 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 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
required by this agreement. 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 the City and install two (2) Shade
Structure fabrics ("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," or if no timeframe is specified, promptly in
accordance with industry standards. The failure by Contractor to meet this schedule may
result in termination of this Agreement by City as outlined in Section 17 below.
2.2 Force Maieure. The time period(s) 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 the provisions of this Agreement, this
Agreement shall continue in full force and effect until completion of the services agreed to
herein or until December 31, 2025, 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," 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
Twenty Four Thousand Nine Hundred Eighty Five Dollars and 72/100 ($24, 985.72),
without prior written authorization from City. No billing rate changes shall be made during
the term of this Agreement without the prior written approval of City.
4.2 Contractor shall submit monthly invoices to City describing the Work
performed the preceding month. Contractor's bills shall include the name of the person who
Shade Structures, Inc., doing business as USA Shade and Fabric Structures Page 2
performed the Work, a brief description of the Services performed and/or the specific task
in the Scope of Services to which it relates, the date the Services were performed, the
number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Contractor no later than thirty (30) calendar days
after approval of the monthly invoice by City staff.
4.3 City shall reimburse Contractor only for those costs or expenses specifically
identified in Exhibit "A" to this Agreement or specifically approved in writing in advance by
City.
4.4 Contractor shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any Work
that is determined by City to be necessary for the proper completion of the Project, but which
is not included within the Scope of Services and which the parties did not reasonably
anticipate would be necessary at the execution of this Agreement. Compensation for any
authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set
forth in Exhibit "A".
4.5 Contractor shall provide City with a minimum fourteen (14) days' notice of its
dates of installation to enable the City to prepare the installation sites for the Products in
accordance with the instructions of Contractor. The City shall complete site preparation
prior to the date of installation of the Products, and the site shall thereafter be available for
inspection and approval. All costs and expenses related to the site preparation shall be at
the sole expense of City.
4.6 Extra Work. Contractor shall not receive any compensation for Extra Work
without the prior written authorization of the City. As used herein, "Extra Work" means any
work that is determined by the City to be necessary for the proper completion of the Project,
but which is not included in the Purchase Price as specified in Exhibit "A", and which parties
did not reasonably anticipate would be necessary. Compensation for any authorized Extra
Work shall be paid in accordance with the hourly rates set forth in Exhibit "A".
5. PROJECT MANAGER
Contractor shall designate a Project Manager, who shall coordinate all phases of the
Project. This Project Manager shall be available to City at all reasonable times during the
term of the Agreement. Contractor has designated Tracy Stayton 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 and Senior Services
Department. City's Recreation Supervisor or designee shall be the Project Administrator
and shall have the authority to act for City under this Agreement.
Shade Structures, Inc., doing business as USA Shade and Fabric Structures Page 3
7. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE
7.1 Contractor shall use only the standard materials described in Exhibit "A" in
performing services under this Agreement. Any deviation from the materials described in
Exhibit "A" shall not be installed unless approved in advance by the City Project
Administrator.
7.2 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to perform the
services required by this Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall be performed by
qualified and experienced personnel who are not employed by City, nor have any
contractual relationship with City.
8. RESPONSIBILITY FOR DAMAGES OR INJURY
8.1 City and all officers, employees and representatives thereof and all persons
and entities owning or otherwise in legal control of the property upon which Contractor
performs the Project and/or Services shall not be responsible in any manner for any loss or
damage to any of the materials or other things used or employed in performing the Project
or for injury to or death of any person as a result of Contractor's performance of the services
required hereunder; or for damage to property from any cause arising from the performance
of the Project and/or Services by Contractor, or its subcontractors, or its workers, or anyone
employed by either of them, unless caused by the City's negligent acts, omissions, or willful
misconduct.
8.2 Contractor shall be responsible for any liability imposed by law and for injuries
to or death of any person or damage to property resulting from defects, obstructions or from
any cause to the extent arising from the negligent acts, omissions, or willful misconduct of
the Contractor' or any subcontractor or supplier selected by the Contractor.
8.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and
hold harmless City, its City Council. Boards and commissions, officers, agents, volunteers,
employees, and any person or entity owning or otherwise in legal control of the property
upon which Contractor performs the Project and/or Services contemplated by this
Agreement (collectively, the "Indemnified Parties") from and against: (1) any and all claims
(including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liability, costs and expenses (including, without limitation, attorneys' fees,
disbursements and court costs) of every kind and nature whatsoever (individually, a Claim;
collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly)
to any breach of the terms and conditions of this Agreement, and Work performed or
Services provided under this Agreement including, without limitation, defects in
workmanship or materials or Contractor's presence or activities conducted on the Project
(including the negligent and/or willful acts, errors and/or omissions of Contractor, its
principals, officers. Agents, employees, vendors, suppliers, consultants, subcontractors,
anyone employed directly or indirectly by any of them or for whose acts they may be liable
or any or all of them); (2) use of improper materials in performing this Project including,
Shade Structures, Inc., doing business as USA Shade and Fabric Structures Page 4
without limitation, defects in workmanship or materials and/or design defects; and/or (3) any
and all claims asserted by Contractor's subcontractors or suppliers on the Project, and shall
include reasonable attorneys' fees and all other costs incurred in defending any such claim.
Contractor's liability in this Subsection shall be limited to the maximum amount of its
insurance coverage for claims arising out non -negligent and non -intentional acts performed
under this Agreement. Contractor shall not be held responsible for consequential or special
damages, or claims made to City for such consequential or special damages. Nothing
herein shall require Contractor to indemnify City from the negligence or willful misconduct of
City, its officers or employees.
8.4 Intellectual Property Indemnity - Contractor shall defend, indemnify and hold
City, its agents, officers, representatives, employees and City Council, boards and
commissions harmless from any proceeding brought against City for any intentional or
unintentional violation of the intellectual property rights of any third party with respect to
Products deliverables purchased in this Agreement This indemnification shall include, but
is not limited to, infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Contractor's deliverables provided under this
Agreement.
8.5 Contractor shall perform all Project work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original condition
and former usefulness as soon as possible, and to protect public and private property.
Contractor shall perform work as specified in Exhibit "A" to limit impacts to traffic during the
system installation period. Contractor shall be liable for any private or public property
damaged during the performance of the Project work.
8.6 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., doing business as USA Shade and Fabric Structures 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. PREVAILING WAGES
12.1 Pursuant to the applicable provisions of the Labor Code of the State of
California, not less than the general prevailing rate of per diem wages including legal
holidays and overtime work for each craft or type of workman needed to execute the work
contemplated under the Agreement shall be paid to all workmen employed on the work to
be done according to the Agreement by the Contractor and any subcontractor. In
accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial
Relations has ascertained the general prevailing rate of per diem wages in the locality in
which the work is to be performed for each craft, classification, or type of workman or
mechanic needed to execute the Agreement. A copy of said determination is available by
calling the prevailing wage hotline number (415) 703-4774, and requesting one from the
Department of Industrial Relations. The Contractor is required to obtain the wage
determinations from the Department of Industrial Relations and post at the job site the
prevailing rate or per diem wages. It shall be the obligation of the Contractor or any
subcontractor under him/her to comply with all State of California labor laws, rules and
regulations and the parties agree that the City shall not be liable for any violation thereof.
12.2 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.
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.
Shade Structures, Inc., doing business as USA Shade and Fabric Structures Page 6
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") 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.
15.2 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.
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:
Attn: Recreation Supervisor
Recreation and Senior Services Department
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
16.2 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: Contract's Department
Shade Structures, Inc.
2580 Esters Blvd. Suite 100, DFW Airport
Dallas, Texas 75261
Shade Structures, Inc., doing business as USA Shade and Fabric Structures Page 7
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 familiarwith the local conditions underwhich 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 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
Shade Structures, Inc., doing business as USA Shade and Fabric Structures Page 8
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.
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
Shade Structures, Inc., doing business as USA Shade and Fabric Structures Page 9
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 Right to Injunctive Relief. Because of the unique nature of the Confidential
Information, the parties agree that each party may suffer irreparable harm in the event that
the other party fails to comply with any of its obligations under this Section, and that
monetary damages may be inadequate to compensate either party for such breach.
Accordingly, the parties agree that either party will, in addition to any other remedies
available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of
this Section.
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., doing business as USA Shade and Fabric Structures 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., doing business as 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: ��Y�Zo2y
By: 5:,e
-F� Aaron C. Harp 0 ,' A-1"A
City Attorney _'P4
ATTEST:
Date: .
By:
—A
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a Californiq muni ipal corporation
Date: 2
By:
S n e in
Recr a ' n & Senior Services Director
CONTRACTOR:SHADE
STRUCTURES, INC., DOING
BUSINESS AS ("DBA") USA SHADE
AND FABRIC STRUCTURES, a
Delaware corporation
Date:
Signed in Counterpart
Bv:
Bryan Yeazel
Chief Executive Officer
Date:
Signed in Counterpart
By:
David Starr
Secretary
[END OF SIGNATURES]
Attachments: 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
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: Y11glzgo
By:
''Aaron C. Harp
City Attorney AF
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., DOING
BUSINESS AS ("DBA") USA SHADE
AND FABRIC STRUCTURES, a
Delaware corporation
Date: q 1-14, (
B y : „JC
6E (�
Date: % 123 /ZY
[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
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page A-1
41* USASHADE
Shade Structure Proposal
713112024
Pricing Valid for 30 Days
Project Information:
Sates Information:
Purchaser:
City of Newport Beach
Contact:
Contreras, Joanna
Sales
Stayton, Tracy
Rep:
Project
Sunset Ridge- Playground
Phone:
949-644-3166
Phone:
949-446-3346
Name:
Only- Fabric Replacement
JContreras@newportbe
Tracy.Stayton@USA-
Quote No:
CA0724TS15605
Email:
achca.gov
Email:
I
Shade.com
AddressBitting
.. ..Jobsite
Information:
Sunset Ridge Park -
Name:
City of Newport Beach
Name:
SCA Warehouse
Name:
Playground Area
Address:
100 Civic Center Drive
Address:
1085 N Main Street
Address:
4850 West Coast Hwy
City:
Newport Beach
City:
Orange
City:
Newport Beach
State:
CA
State:
CA
State:
CA
Zip Code:
92658-8915
Zip Code:
92867
Zip Code:
92663
Contact:
Joanna Contreras
Contact:
Contact:
Joanna Contreras
JContreras@newportbeac
JContreras@newportbeac
Email:
Email:
Email:
hca.gov
hca.gov
Phone:
949-644-3166
Phone:
Phone:
949-644-3166
CORPORATE ADDRESS: MAILING ADDRESS: REMITTANCE ADDRESS:
2580 Esters Blvd., Suite 100 DFW P.O. Box 3467 Coppel, TX 75019 P.O. Box 734158 Dallas, TX 75373-
Airport, TX 75261 4158
SOUTHERN CALIFORNIA: NORTHERN CALIFORNIA: ARIZONA: LAS VEGAS:
1085 N. Main Street, Suite C 927 Enterprise Way, Suite A 2415 S. 18th Place
Napa, CA 94558 Phoenix, AZ 85024 3111 So. Valley View Blvd. Suite B-117
Orange, CA 92867 Las Vegas, NV 89102
NOTE: This message is intended only for the use of the individual to whom it is addressed, and contains information
that is privileged, confidential, and exempt from disclosure under applicable law. If you are not the intended recipient,
or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that
any unauthorized disclosure, distribution, or copying of this communication is strictly prohibited. If you have received
this communication in error, please notify us immediately by phone and return the original message to the applicable
address above.
www.usa-shade.com 800-966-5005
AZ: 289388 CA: 989458 LA: 61718 NV: 78724 NV:78724 NM: 383826TN: 68712 DIR: 1000003533
It* USASHADE
..
DESCRIPTIONDETAILS
TOTAL
Fabric Replacement -Playground
TWO Sails Only
Model Number
•
Varied
Varied
Fabric.e
Fabric Color
Provisions
- A",
Colourshade_FR
TBD
NA
See Below
See Below
2
-- _Steel Finish
Steel Color
r`
NA
NA
NA
FootingType
MountingType.
Botts
NA
NA
NA
Below
UNITTOTAL:See
TOTALS:PRICING
Unit Total See Below Payment terms subject to credit evaluation and approval
Shipping/Handling
Included
•
*Subject to market fluctuation
• I See Below
Building Code
Wind Loads Snow Loads
Sales Tax (7.75%) Included
CBC 2022
115 5
Engineering Included
•
Installation Included
• $24,985.72
SCOPEOF •• •
TWO Sails: Fabric and Install Only; No Hardware
.R
-
Excluded
Sealed Drawings & Calculations
Included
Prevailing Wage / Certified Payroll
Excluded
Permit Submittal
Excluded
Union Wages
Excluded
Permit Fee
Excluded
Fencing
Excluded
DSA Submittal & Fees
Excluded
Water and Electrical
Excluded
Design and Engineering of
Excluded
Landscape Repair
Structure
Excluded
Design and Engineering of
Excluded
Demolition (Existing Structures)
Foundation
Reactions and Loads for
Excluded
attachment to Walls, Rooftops,
Excluded
Payment and Performance Bonds
or Other
Foundation Location and
Excluded
Excluded
Special Inspection Fees
Elevation Survey
www.usa-shade.com 800-966-5005
AZ: 289388 CA: 989458 LA: 61718 NV: 78724 NV:78724 NM: 383826 TN: 68712 DIR: 1000003533
10 USASHADEw
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) We will require site sanitary facilities and refuse containers by others within 200 feet of our
work.
5) USA SHADE will leave its work and materials in a clean condition at the conclusion of our work.
6) Barricades and public security requirements are not included.
7) 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.
8) 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.
9) 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.
10) 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.
www.usa-shade.com 800-966-5005
AZ: 289388 CA: 989458 LA: 61718 NV: 78724 NV:78724 NM: 383826TN: 68712 DIR: 1000003533
4* USASHADE
GENERAL TERMS & CONDITIONS AND WARRANTY
1) Proposal: The above proposal is valid for 30 days from the date first set forth above. After 30
days, we reserve the right to increase prices due to the rise in cost of raw materials, fuel, or
other cost increases. When applicable, USA SHADE & Fabric Structures reserves the right to
implement a surcharge for significant increases in raw materials, including, but not limited to;
fuel, steel, and concrete. Due to the duration of time between proposals, contracts, and final
installation, USA SHADE & Fabric Structures reserves the right to implement this surcharge,
when applicable.
2) Purchase: By executing this proposal, or submitting a purchase order pursuant to this
proposal (which shall incorporate the terms of this agreement 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").
3) Short Ship Claims: Purchaser has 15 days from receipt of the structures to file a short ship
report in writing to its sales representative. Company will not honor claims made after this
time.
4) Short Ship Claims: Purchaser has 15 days from receipt of the structures to file a short ship
report in writing to its sales representative. Company will not honor claims made after this
time.
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: Company is not required to provide any insurance coverage in
excess of Company's standard insurance. A copy of theCompany's standard insurance is
available for your review prior to acceptance of the Company's proposal.
www.usa-shade.com 800-966-5005
AZ: 289388 CA: 989458 LA: 61718 NV: 78724 NV:78724 NM: 383826 TN: 68712 DIR: 1000003533
4* USASHADE'
7) Payment: Terms of payment are defined in the "Pricing Details" section and are specific to
this contract. For purposes of this agreement, "Completion" is defined as being the point at
which the Structure is suitable for its intended use, the issue of occupancy consent, or a final
building department approval is issued, whichever occurs first. Progress billing and payment
will be required. All payments must be made to Shade Structures, Inc., P.O. Box 734158,
Dallas, TX 75373-4158. Company may use all remedies available to it under current laws
including, but not limited to, filing of liens against the property and using a collection agency or
the courts to secure the collection of the outstanding debt.
8) Lien Releases: Upon request by Owner, Company will issue appropriate partial lien releases
as corresponding payments are received from Purchaser, but prior to receiving final payment
from Purchaser or Owner. Company will provide a full release of liens upon receipt of final
payment. In accordance with state laws, Company reserves the right to place a lien on the
property if final payment has not been received 10 days prior to the filing deadline for liens.
9) Site Plan Approval, Permit/s, Permit Fees, Plans, Engineering Drawings, and Surveying:
Site plan approval, permits, permit fees, plans, engineering 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.
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) Return Policy for USA Shade: At USA Shade, we strive to provide high -quality shade
structures that are built to order and tailored to meet the unique needs of our customers. Due
to the nature of our business and the customization involved, we have implemented the
following return policy:
1. No Cancellations or Changes: Once an order has been released for
production, we cannot accept any cancellations or changes to the order. It is
crucial for customers to review their order details carefully before finalizing the
purchase.
2. No Returns: Due to the customized nature of our shade structures, we do not
accept returns. Once the order has been delivered and installed, it is
considered a final sale. We encourage customers to thoroughly assess their
requirements and specifications before ordering.
3. Product Quality Assurance: We take pride in delivering high -quality shade
structures that meet industry standards. Our products undergo rigorous quality
control measures to ensure they meet or exceed customer expectations. In the
unlikely event that there is a manufacturing defect or an issue with the product,
please get in touch with our customer service department immediately for
assistance.
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USAS HAD E
4. Warranty Coverage: Ours hade structures are backed by a warranty against
manufacturing defects or material faults. If you encounter any issues the
warranty covers, please take a look at our warranty policy for more instructions
on how to proceed.
5. Customer Support: We are committed to providing excellent customer service
throughout your purchasing journey. If you have any questions or concerns or
need help with your order, our dedicated customer support team is here to
help. Don't hesitate to contact us via phone, email, or our website's contact
form, and we will gladly assist you.
It is essential for customers to understand and acknowledge these terms and conditions
before placing an order with USA Shade. Customers agree to abide by this return policy by
proceedingwith a purchase.
12) Concealed Conditions: "Concealed conditions" include, without limitation, water, gas,
sprinkler, electrical and sewage lines, posttension 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)
13) Changes in the Work: During the course of this project, Purchaser may order changes in the
work (both additions and deletions). Additionally, an 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: To the fullest extent permitted by law, Purchaser shall indemnify, defend,
and hold harmless the Company and its consultants, agents, and employees or any of them
from and against claims, damages, losses and expenses, including, but not limited to,
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4* USASHADE
attorneys' fees related to the installation of the Structure or performance of the services,
provided that such claim, damage, loss, or expense is attributable to bodily injury to, sickness,
disease, or death of a person, or to injury to or destruction of tangible property, but only to the
extent caused by the negligent acts or omissions of the Purchaser or its agents, employees, or
subcontractors, or anyone directly or indirectly employed by them or anyone for whose acts
they may be liable, regardless of whether or not such claim, damage, loss, or expense is
caused in part by a party indemnified hereunder. Such obligation shall not be construed to
negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist
as to a party or person described in Section 15.
15) Statement of Limited Warranty:
• 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.
• Shadesure'", Colourshade° FR, eXtreme 32", Commercial 95—, SaFRshadeT', 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 ShadesureT" 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 CoolbrellaT" 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 502'" waterproof membrane is subject to an eight year pro-
rated warranty.
• Sewing thread is warranted for ten years.
• 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.
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10 USASHADE
• 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(�busa-shade.com.
• Purchaser or Owner agrees that venue for any court action to enforce these limited
warranties shall be in the City or County of Dallas in the State of Texas, USA.
• 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 any way, 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.
• THE COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL,
SPECIAL, LIQUIDATED, EXEMPLARY, OR PUNITIVE DAMAGES, OR ANY LOSS OF
REVENUE, PROFIT, USE OR GOODWILL, WHETHER BASED UPON CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR ANY OTHER LEGALTHEORY, ARISING OUT OF A
BREACH OF THIS WARRANTY OR IN CONNECTION WITH THE SALE, INSTALLATION,
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4..* USASHADE
MAINTENANCE, USE, OPERATION OR REPAIR OF ANY PRODUCT OR SERVICE. IN NO
EVENT WILL THE COMPANY BE LIABLE FOR ANY AMOUNT GREATER THAN THE
PURCHASE PRICE FOR ANY PRODUCT OR SERVICE PROVIDED BY THE COMPANY.
• 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 32- are registered trademarks of Multiknit Pty. Ltd.
Commercial 95- and SaFRShade- are registered trademarks of Gale Pacific USA Inc
Monotec 370- is a registered trademark of PRO -KNIT Industries Pty. Ltd.
Precontraint 502- is a registered trademark of Serge Ferrari North America, Inc.
16) Assembly/Installation:
• Company wilt 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.
• 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
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1, * USASHADE
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: Any controversy or claim arising out of or related to this agreement must
be settled by binding arbitration administered in Dallas, TX by a single arbitrator selected by
the parties or by the American Arbitration Association, and conducted in accordance with the
construction industry arbitration rules. Judgment upon the award may be entered in any court
having jurisdiction thereof.
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: The agreement will be construed and enforced in accordance with the laws of
the State of Texas.
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10 USASHADE
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.
27) Electronic Signatures. Each party agrees that the electronic signatures of the parties to this
Agreement, whether digital or encrypted, including but not limited to the use of a typed name,
are intended to authenticate this writing and to have the same force and effect as manual
signatures. Electronic signature means any electronic sound, symbol, or process attached to
or logically associated with a record and executed and adopted by a party with the intent to
sign such record, including but not limited to typed or email electronic signatures.
PURCHASER:
City of Newport Beach
Signature:
G=`��
By: Joanna Contreras
Title: Recreation Supervisor
Date: 8-6-2024
SELLER:
Shade Structures, Inc. DBA USA Shade
Signature:
By:
Title: Senior Regional WRada'c er
Date: 8/7/2024
NOTE: All purchase orders and contracts should be drafted in the name of
Shade Structures, Inc.
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Schedule of Billing Rates
CONTRACTOR SHALL PERFORM SERVICES AS DESCRIBED IN THIS AGREEMENT AND RECEIVE
COMPENSATION FOR WORK IN ACCORDANCE WITH THE FOLLOWING RATE:
Sunset Ridge Shade Fabric Replacement
$24,985.72
Not to Exceed - $24,985.72
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 Contract, 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 providing statutory benefits and Employer's
Liability Insurance with limits of at least one million dollars ($1,000,000)
each employee for bodily injury by accident and each employee for bodily
injury by disease in accordance with the laws of the State of California.
In addition, Contractor shall require each subcontractor to similarly
maintain Workers' Compensation Insurance and Employer's Liability
Insurance in accordance with California law for all of the subcontractor's
employees.
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, 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.
B. General Liability Insurance. Contractor shall maintain commercial
general liability insurance, and if necessary excess/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 and four million dollars ($4,000,000) completed
operations aggregate. The policy shall cover liability arising from bodily
injury, property damage, products -completed operations, personal and
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-1
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
Contract, 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 for each accident.
D. Excess/Umbrella Liability Insurance. If any Excess or Umbrella Liability
policies are used to meet the limits of liability required by this contract,
then said policies shall be "following form" of the underlying policy
coverage, terms, conditions, and provisions and shall meet all of the
insurance requirements stated in this contract, including, but not limited
to, the additional insured and primary & non-contributory insurance
requirements stated herein. No insurance policies maintained by the City,
whether primary or excess, and which also apply to a loss covered
hereunder, shall be called upon to contribute to a loss until the
Contractor's primary and excess/umbrella liability policies are exhausted.
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 Contract shall be endorsed to waive subrogation against
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 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 and insurance clauses from each
of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess/umbrella 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, 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 shall be
included as additional insureds under such policies.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-2
C. Primary and Non -Contributory. Contractor's insurance coverage shall
be primary insurance and/or the primary source of recovery with respect
to City, its City Council, boards and commissions, officers, agents,
volunteers and employees. Any insurance or self-insurance maintained
by City shall be excess of Contractor's insurance and shall not contribute
with it.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation or nonrenewal of coverage (except
for nonpayment for which ten (10) calendar days' notice is required) 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. All of the
executed documents referenced in this Contract must be returned to City
within ten (10) regular City business days afterthe date on the "Notification
of Award". Insurance certificates and endorsements 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 Contract. 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.
B. City's Right to Revise Requirements. The City reserves the right at any
time during the term of the Contract 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.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-3
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters
into contracts with on behalf of City will be submitted to City for review.
Failure of City to request copies of such agreements will not impose any
liability on City, or its employees. Contractor shall require and verify that
all subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as
CG 20 38 04 13.
D. Enforcement of Contract 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 Exhibit A 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 proceeds in excess of specified
minimum limits of insurance and coverage shall be available to the City.
F. Self -Insured Retentions. Contractor agrees not to self -insure or to use
any self -insured retentions on any portion of the insurance required
herein and further agrees that it will not allow any indemnifying party to
self -insure its obligations to City. If Contractor's existing coverage
includes a self -insured retention, the self -insured retention must be
declared to City. City may review options with Contractor, which may
include reduction or elimination of the self -insured retention, substitution
of other coverage, or other solutions. Contractor agrees to be responsible
for payment of any deductibles on their policies.
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 Contract, 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.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-4
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 Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgement may be necessary for its proper protection and prosecution of
the Work.
J. Coverage Renewal. Contractor will renew the coverage required here
annually as long as Contractor continues to provide any Work under this
or any other Contract or agreement with City. Contractor shall provide
proof that policies of insurance required herein expiring during the term
of this Contract have been renewed or replaced with other policies
providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter
from Contractor's insurance agent to this effect is acceptable. A certificate
of insurance and/or additional insured endorsement as required in these
specifications applicable to the renewing or new coverage must be
provided to City with five (5) calendar days of the expiration of the
coverages.
K. Maintenance of General Liability Coverage. Contractor agrees to
maintain commercial general liability coverage for a period of ten (10)
years after completion of the Project or to obtain coverage for completed
operations liability for an equivalent period.
Shade Structures, Inc., DBA USA Shade and Fabric Structures Page B-5
Name
Account Number:
Address:
Status:
Shade Structures, Inc DBA USA Shade & Fabric Struc
FV00001116
- 2580 Esters Blvd, Sude 100 OFW Airport, TX, 75261
Compliant with Waived Deficiencies.