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HomeMy WebLinkAboutShade Structures Inc; 2014-09-24; PWM15-11PEMPWM15-11PEM CITY OF CARLSBAD MINOR PUBLIC WORKS CONTRACT ALGA NORTE COMMUNITY PARK SHADE STRUCTURE CONTRACT NO. 38372 This agreement is made on the f //^^ day of Q>4y//y^] /Jr /^. 2014, by the City of Carlsbad, California, a municipal corporation, (hereinafter called'"City"), and Shade Structures Inc., a Delaware corporation, whose principal place of business is 1085 N Main Street, Suite C, Orange, CA 92867 (hereinafter called "Contractor"). City and Contractor agree as follows: DESCRIPTION OF WORK. Contractor shall perform all work specified in the Contract documents for the project described by these Contract Documents (hereinafter called "Project"). PROVISIONS OF LABOR AND MATERIALS. Contractor shall provide all labor, materials, tools, equipment, and personnel to perform the work specified by the Contract Documents unless excepted elsewhere in this Contract. CONTRACT DOCUMENTS. The Contract Documents consist of this Contract, exhibits to this Contract, Contractor's Proposal, the Plans and Specifications, the General Provisions, addendum(s) to said Plans and Specifications, and all proper amendments and changes made thereto in accordance with this Contract or the Plans and Specifications, all of which are incorporated herein by this reference. When in conflict, this Contract will supersede terms and conditions in the Contractor's proposal. LABOR. Contractor will employ only skilled workers and abide by all State laws and City of Carlsbad Ordinances governing labor. GUARANTEE. Contractor guarantees all labor and materials furnished and agrees to complete the Project in accordance with directions and subject to inspection approval and acceptance by: Jesse Zunke (Project Manager) PREVAILING WAGES NOT REQUIRED. The City of Carlsbad is a Charter City. Carlsbad Municipal Code Section 3.28.130 supersedes the provisions of the California Labor Code when the public work is not a statewide concern. Payment of prevailing wages is at Contractor's discretion. FALSE CLAIMS. Contractor hereby agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026, 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference. ALGA NORTE PARK SHADE STRUCTURE CONT NO. 38372 Page 1 of 5 City Attorney Approved 2/7/13 PWM15-11PEM Contractor hereby acknowledges that the filing of a false claim may subject the Contractor to an administrative debarment proceeding wherein the contractor may be prevented from further bidding on public contracts for a period of up to five years and that d^arment by another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractor or subcomnlctor^onvf^iliciBat^ contract bidding. Signature: ' \ Print Name: REQUIRED INSURANCE. The successful contractor shall provide to the City of Carlsbad, a Certification of Commercial General Liability and Property Damage Insurance and a Certificate of Workers' Compensation Insurance indicating coverage in a form approved by the California Insurance Commission. The certificates shall indicate coverage during the period of the contract and must be furnished to the City prior to the start of work. The minimum limits of liability insurance are to be placed with insurers that have: (1) a rating in the most recent Best's Key Rating Guide of at least A-:V and (2) are admitted and authorized to transact the business of insurance in the State of California by the Insurance Commissioner. Commercial General Liability Insurance of Injuries including accidental death, to any one person in an amount not less than $500,000 Subject to the same limit for each person on account of one accident in an amount not less than $500,000 Property damage insurance in an amount of not less than $100,000 Automobile Liability Insurance in the amount of $100,000 combined single limit per accident for bodily injury and property damage. In addition, the auto policy must cover any vehicle used in the performance of the contract, used onsite or offsite, whether owned, non-owned or hired, and whether scheduled or non- scheduled. The automobile insurance certificate must state the coverage is for "any auto" and cannot be limited in any manner. The above policies shall have non-cancellation clauses providing that thirty (30) days written notice shall be given to the City prior to such cancellation. The policies shall name the City of Carlsbad as an additional insured. INDEMNITY. The Contractor shall assume the defense of, pay all expenses of defense, and indemnify and hold harmless the City, and its officers and employees, from all claims, loss, damage, injury and liability of every kind, nature and description, directly or indirectly arising from or in connection with the performance of the Contract or work; or from any failure or alleged failure of Contractor to comply with any applicable law, rules or regulations including those related to safety and health; and from any and all claims, loss, damages, injury and liability, howsoever the same may be caused, resulting directly or indirectly from the nature of the work covered by the Contract, except for loss or damage caused by the sole or active negligence or willful misconduct of the City. The expenses of defense include all costs and expenses including attorneys' fees for litigation, arbitration, or other dispute resolution method. JURISDICTION. The Contractor agrees and hereby stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this agreement is San Diego County, California. Start Work: Contractor agrees to start within one (1) working days after receipt of Notice to Proceed. Completion: Contractor agrees to complete work within ninety (90) working days after receipt of Notice to Proceed. ALGA NORTE PARK SHADE STRUCTURE CONT NO. 38372 Page 2 of 5 City Attorney Approved 2/7/13 PWM15-11PEM CONTRACTOR'S INFORMATION. SHADE STRUCTURES INC. (name of Contractor) 989458 (Contractor's license number) , B-12/31/15 1085 N MAIN STREET, SUITE C (street address) ORANGE, CA 92867 (city/state/zip) 714-241-5517 (license class, and exp. date) (telephone no.) 714-538-2445 (fax no.) nreid@usa-shade.com (e-mail address) AUTHORITY. The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR SHADE STJRDCTURES INC., a Delaware corporatiq By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California t City MQn^j(6r, Doputy City Monagor -ef Deji^artment Director as authonzed by the City Manager Jim Howell „ (sign here) (print name/title) j If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A.^BREWER, City AttQjTiey BY: ALGA NORTE PARK SHADE STRUCTURE CONT NO. 38372 Page 3 of 5 City Attomey Approved 2/7/13 NOTARIAL ACKNOWLEDGEMENT State of Texas County of Dallas 1, Virginia 1. Marquez of Texas of Shade Structures, Inc. Notary Public of Dallas County, in the State do hereby certify that'^y^^ (V\AV^ A-g.f ,C is personally known to me to be the same person whose name subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he/she signed, sealed and delivered said instrument, for and on behalf of Shade Structures, Inc., for the uses and purposes therein set forth. Given under my hand and notarial seal at my office in the City of Dallas in said County, this 12 day of September ^ A.D. 2014 . VIRGINIA MARQUE/ My Commission Expires June 22, 2018 (Notary Seal) Notary P ignature in and for the State of Texas Commission Expires NOTARIAL ACKNOWLEDGEMENT State of Texas County of Dallas I, Virginia I. Marquez Notary Public of Dallas _County, in the State of Texas do hereby certify that of Shade Structures, Inc. is personally known to me to be the same person whose name subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he/she signed, sealed and delivered said instrument, for and on behalf of Shade Structures, Inc., for the uses and purposes therein set forth. Given under my hand and notarial seal at my office in the City of Dallas in said County, this 12 day of September ^ A.D. 2014 . VIRGINIA MARQUEZ My Commission Expires June 22. 2018 (Notary Seal) Notary P Signature in and for the State of Texas U-y-^'U 3ion Expires Commission Expires Check a License - License Detail - Contractors State License Board Page 1 of 2 DEPARTIVIENT OF CONSUMER AFFAIRS . Contractors State License Board Contractor's License Detail - License # 989458 /t^ DISCLAIMER: A license status check provides information taken from ttie CSLB license database. Before relying on this information, you should be aware of the following limitations. CSLB complaint disclosure is restricted by law (B&P 7124.6) If this entity is subject to public complaint disclosure, a link for complaint disclosure will appear below. Click on the link or button to obtain complaint and/or legal action information. •* Per B&P 7071.17 . only construction related civil judgments reported to the CSLB are disclosed. -» Arbitrations are not listed unless the contractor fails to comply with the terms of the arbitration. ^ Due to workload, there may be relevant information that has not yet been entered onto the Board's license database. License Number Business Information Entity Issue Date Expire Date License Status Classifications Bonding 989458 Extract Date 8/29/2014 SHADE STRUCTURES INC Business Phone Number: (214) 905-9500 8505 CHANCELLOR ROW DALLAS, TX 75247 Corporation 12/31/2013 12/31/2015 ACTIVE This license is current and active. All information below should be reviewed. CLASS DESCRIPTION B GENERAL BUILDING CONTRACTOR CONTRACTOR'S BOND This license filed a Contractor's Bond with ATLANTIC SPECIALTY INSURANCE COMPANY. Bond Number: 800009785 Bond Amount: $12,500 Effective Date: 11/22/2013 BOND OF QUALIFYING INDIVIDUAL 1. https://www2.cslb.ca.gov/OnlineServices/CheckLicensell/LicenseDe... 8/29/2014 Ciieck a License - License Detail - Contractors State License Board Page 2 of 2 This license filed Bond of Qualifying Individual number CIVIS278559 for LANEY MICHAEL D in the amount of $12,500 with RLI INSURANCE COMPANY. Effective Date: 06/27/2014 WORKERS' COMPENSATION This license has workers compensation insurance with LIBERTY INSURANCE CORPORATION Workers' Compensation poij^y Number: WA764D004540123 Effective Date: 09/01/2013 Expire Date: 09/01/2014 Personnel listed on this license (current or disassociated) are listed on other licenses. Personnel List Other Licenses Conditions of Use | Privacy Policy Copyright © 2010 State of California https://\AA/vw2.cslb.ca.gov/OnlineServices/CheckLicensell/LicenseDe... 8/29/2014 PWM15-11PEM EXHIBIT A LISTING OF SUBCONTRACTORS BY GENERAL CONTRACTOR Set forth below is the full name and location of the ptace of business of each sub-contractor whom the Contractor proposes to subcontract portions of the Project in excess of one-half of one percent of the total bid, and the portion of the Project which will be done by each sub-contractor for each subcontract. NOTE: The Contractor understands that if it fails to specify a sub-contractor for any portion of the Project to be performed under the contract in excess of one-half of one percent of the bid, the contractor shall be deemed to have agreed to perform such portion, and that the Contractor shall not be permitted to sublet or subcontract that portion ofthe work, except in cases of public emergency or necessity, and then only after a finding, reduced in writing as a public record of the Awarding Authority, setting forth the facts constituting the emergency or necessity in accordance with the provisions of the Subletting and Subcontracting Fair Practices Act (Section 4100 et seq. of the Califomia Public Contract Code). If no subcontractors are to be employed on the project, enter the word "NONE." SUBCONTRACTORS Portion of Project to be Subcontracted Business Name and Address License No., Classification & Expiration Date %of Total Contract V]|1V Total % Subcontracted: ALGA NORTE PARK SHADE STRUCTURE CONT NO. 38372 Page 4 of 5 City Attorney Approved 2/7/13 PWM15-11PEM EXHIBIT B Scope of Work: Shade Structures Inc. will install a 15' x15' Cantilever Single Post Pyramid Shade Structure. • Contractor will provide Engineered Drawings according to CBC2013 • Contractor includes obtaining a permit from the City of Carlsbad • Contractor demolition scope to include the following: - Excavation - Removal of Dirt - Disposal off site • Minimum Entry Height 15' • Color- Blue to match existing shade structures in the Park • Wind Load- 90 MPH • Concrete Footings- Contractor will provide Concrete footing that is appropriately sized for the shade structure. -Contractor is responsible to provide a containable wash out area. -There will be no disposal of extra concrete -3'''* Party Concrete workers (i.e. Pump, Concrete Truck) will not be allowed to clean any of their equipment on site. • Contractor includes all assembly and installation on a single mobilization. • Any residual cleaning as a result of the project that the City of Carlsbad has to complete will be billed at the following rates. -Maintenance Worker- $40/hr. -Custodian- $30/hr. JOB QUOTATION ITEM NO. UNIT QTY DESCRIPTION PRICE 1 1 Furnish and install 15' x 15' Cantilever Single Post Pyramid Shade Structure per Scope described in proposal dated 5/1/14 $9,496.00 TOTAL* $9,496.00 *lncludes taxes, fees, expenses and all other costs. ALGA NORTE PARK SHADE STRUCTURE CONT NO. 38372 Page 5 of 5 City Attorney Approved 2/7/13 USASHADE & Fabric Structures® CORPORATE OFFICE Corporate Headquarters 8505 Chancellor Row Dallas, TX 75247 800-968-5005 Phone 214-905-9514 Fax West Coast Headquarters 350 Kalmus Drive Costa Mesa, CA 92626 714-427-6981 Phone 714-427-6982 Fax REGIONAL OFFICES Arizona 2628-B W. Birchwood Cir. Mesa, AZ 85202 480-446-0066 Phone 480-446-8679 Fax Austin 1508-A Ferguson Lane Austin, TX 78754 512-836-5500 Phone 512-836-5600 Fax Northem Caiifomia 927 Enterprise Way Suite A Napa, CA 94558 707-257-7296 Phone 707-257-7297 Fax LasVegas 6225 8. Valley View Blvd. Suite I LasVegas, NV89118 702-227-5273 Phone 702-227-5132 Fax COVER SHEET PROPOSAL FOR SHADE STRUCTURES Date To Fax Phone May 1,2014 Cahn Tran (858) 334-9414 Pages including this cover page: 8 Project Name: Alga Norte - Add On Quote Number: BJl107563 COMMENTS: Attached is quotation for shade structures as we discussed. Refer to the above quote number with any questions or comments. When you are ready to place your order, please initial all pages ofthe proposal and sign the last page. Do not hesitate to call me for further assistance. Sincerely, Brett Ivey Regional Sales Manager Phone: (619) 616-8272 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. Ifyou 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 ofthis communication is strictly prohibited. Ifyou have received this communication In error, please notily us immediately by phone and retum the original message to Uie above address. PROPOSAL Corporate Mailing Address: P.O. Box 560168 Dallas, TX 75356-0168 (800) 966-5005 USASHADE % & Fabric Structures' Remittance Addrsss Shade Structures, Inc. PO Box 204691 Dallas, Texas 75320-4691 GENERAL SCOPE OF WORK DSA / PERMIT REQUIREMENTS ASSEMBLY REQUIREMENTS YES NO YES NO X Purchaser is responsible fbr pemiit submittal X Underground Obstacles X Purchaser is responsible for DSA submittal X Dirt Removal ENGINEERING REQUIREME ENTS X Soil Tests Building Code CBC2013 X Concrete Cutting Type of drawings Wet Sealed X Concrete Tmck Access # of sealed drawings 3 X Fencing Calculations Required 3 X Special Inspection Notes: X Pemiits (see DSA/Permit Requirements) PF MCING INCLUDES X Prevailing Wages & Certified Payroll YES NO X Union Wages X Assembly/Installation (based on a single mobilization) X Removal of existing structure or poles X Shipping and Handling X Curb Repair X Engineered Drawings X Landscaping Repair X Sales Tax X Electrical connection or trenching X DSA / Pemiit Submittal X Site Plan Approval X DSA/Permit Fees X Site Survey X Accessories X Bobcat Access X Coastal Primer X Liquidated Damages X Payment and Performance Bonds X Anchor Bolts Included X Other special conditions (noted below): GENERAL TERMS AND CONDITIONS ANP 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, fijel 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; fijel, 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. 1) 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 the USA SHADE & Fabric Staictures (the "Company"), the purchaser identified above ("you" or the "Purchaser") agrees to purchase the Shade Structures brand shade structures ("Structures") and the services to be provided by the Company, as detailed in the "Stmcture Pricing" and "General Scope of Work" sections ofthis agreement, above, or in the relevant purchase order accepted by the Company, for use by Purchaser or fbr installation by Company or Purchaser on behalf of a third- party who will be the ultimate owner ofthe Structures (the ultimate owner of a Structure, whether Purchaser or a third-party, being the "Owner"). Pages Initials PROPOSAL 1^ USASHADE K Corporate Mailing Address: P.O. Box 560168 Dallas, TX 75356-0168 f WW^Wi If 1— aiM|Pl (800)966-5005 y ^ & FdbriC StrUCtUrCS shade structures, mc. PO Box 204691 Remittance Address Dallas, Texas 75320-4691 2) Short Ship Claims: Purchaser has 15 days fi-om receipt of the Stmctures to file a short ship report in writing to its sales representative. Company will not honor claims made after this time. 3) Standard Exclusions: Unless specifically included under "General Scope of Work" section above, this agreement does not indude, and Company will not provide Services, labor or materials fbr any ofthe following wotk: (a) removal and disposal of any materials containing asbestos or any hazardous materials as defined by the EPA; (b) moving Owner's property around the installation site; (c) repair or replacement of any Purchaser or Owner-supplied materials; (d) repair of concealed underground utilities not located on prints, supplied to Company by Owner during the bidding process, or physically staked out by Owner, and which are damaged during constmction; or (e) repair of damage to existing surfaces that could occur when constmction equipment and vehicles are being used in the normal course of constmction. 4) Bondinq Guidelines: If Purchaser will use or provide the Stmctures and Services fbr an Owner other than Purchaser (including, without limitation, as a subcontractor of Purchaser), Purchaser will include the following statement in Purchaser's contract with Ovmer "The manufacturer's wan-anty forthe Shade Stmctures brand shade stmctures is a separate document between USA SHADE & Fabric Stmctures and the ultimate owner ofthe Shade Stmctures brand shade stmctures, 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 Stmctures. Due to surety requirements, any perfomiance and/or payment bond will cover only the first year of USA SHADE & Fabric Stmctures wan-anty." 5) Insurance Requirements: Company is not required to provide any insurance coverage in excess of Companys standard insurance. A copy ofthe Company's standard insurance is available for your review prior to acceptance ofthe Company's proposal. 6) Pavment: Temis 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 Stmcture is suitable for its intended use, the issue of occupancy consent, or a final building department approval is issued, whichever occurs first In any event where Completion cannot be effected due to delays or postponements caused by the Purchaser or Owner, final payment (less 10% retainage) is due within 30 days of the date when Completion was scheduled, had the delay not occurred. All payments must be made to USA SHADE & Fabric Stmcture, Department 41349, P.O. Box 650823, Dallas TX 75265. Ifthe Purchaser or Owner fails or delays in making any scheduled milestone payments, the Company may suspend the fijifillment of its obligations hereunder until such payments are made, or Company may be relieved of its obligations hereunder if payment is more than 60 days past due. Company may use all remedies available to it under cunent laws, including but not limited to filing of liens against the property and using a collection agency or the courts to secure the collection ofthe outstanding debt 7) Lien Releases: Upon request by Owner, Company will issue appropriate partial lien releases as corresponding payments are received fi-om Purchaser, but priorto receiving final payment fi'om Purchaser or Owner Company will provide a ftjil 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. 8) Site Plan Approval. Pemiit/s. Pennit Fees. Plans. Enqineerinq Drawings and Surveying: Site plan approval, permits, pemiit fees, plans, engineering drawings and surveying are specifically excluded fi-om this agreement and the Services unless specified under the "General Scope of Wori<". The Company does not in any way wan-ant or represent that a permit or site plan approval for constmction will be obtained. Sealed engineered drawings that are required but not included in the "General Scope of Wori<" will result in an additional cost to Purchaser. 9) Manufacturing & Deliverv: Manufacturing lead-time ft-om Company's receipt of the "Notice To Proceed" is approximately 6 to 8 weeks for standard Stmctures, and 8 to 12 weeks for custom Stmctures. Delivery is approximately 1 week thereafter Delivery of Stmctures may be prior to or at start of assembly. 10) Returned Product. Deposits and/or Cancelled Order: Within the first 45 days after shipment from our facility, all returned product(s) and cancelled orders are subject to a 50% restocking fee. No returns are available following this 45 day period. All deposits are nonrefundable. All expenses incurred (engineering, site surveys, shipping and handling, etc) are the responsibility of the purchaser, up to notice of cancellation. 11) Concealed Conditions: "Concealed conditions" include, without limitation, water, gas, sprinkler, electrical and sewage lines, post tension cables, and steel rebar This agreement is based solely on observations 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 wori< has commenced which were not visible at the time this proposal was bid, Company will stop wori< and indicate these unforeseen Page 4 Initials PROPOSAL Corporate Mailing Address: P.O. Box 560168 Dallas, TX 75356-0168 WW^IWi 11 1— (800)966-5005 & FabrIc Structuros USASHADE 5^ Remittance Address Shade Structures, Inc. PO Box 204691 Dallas, Texas 75320-4691 Concealed Conditions to Purchaser or Owner so tiiat 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 tiie sole responsibility ofthe Purchaser and Company shall not be hekl liable ftjr any such damage. Soil conditions are assumed to be soil tiiat does not contain any water, hard rock (such as limestone, caliche, etc.), rocks bigger ttian 4 inches in diameter or any ottier condition that will require additional labor, equipment and /or materials not specified by ttie Purchaser or Owner in tiie bidding process. Any condition requiring additional labor, equipment and/or materials to complete tiie drilling or conaete operations will require a change order before Company will complete tiie process. Price quotes are based on a drill pier footing. Any variation will incur additional charges (i.e. spread fiDOtings, concrete mat, sand, water, landfill, etc.). Coste tor tooting and instellation do not include any allowance for extending below frost lines (the additional coste for which vary by geographical region). 12) Changes in the Work: During ttie course of tiiis project. Purchaser may order changes in tiie work (botti additions and deletions). The cost of ttiese changes will be determined by ttie Company, and a change order form must be completed and signed by botii ttie Purchaser and the Company, which will deteil the "General Scope of ttie Change Order". Should any change order be essential to tiie completion of the project, and ttie Purchaser reftjses to auttiorize such change order, ttien Company will be deemed to have performed ite part ofttie project, and ttie project and Services will be temiinated. Upon such temiination. Company will submit a final billing to Purchaser for payment less a labor allowance fbr wort< not perfomied but including additional charges incun-ed due to the stoppage. No aedit will be allowed for materials sold and supplied, which will remain ttie property ofttie Purchaser 13) Warrantv: Limitations of Liabilitv: • Company wan^nte ttiat all Company-supplied labor and Services will be peribrmed in a good and wori^manlike manner • The wan-anty set fortti in ttiis Section 14 will be ttie Purchaser's sole and exclusive wan-anty. • The wan-anty set ftjrtti in ttiis Section 14 will mn from tiie date of performance of ttie service by the Company, and any wananty claims brought by Purchaser must be brought wittiin one year of ttie date of pert'ormance of ttie Sen/ice giving rise to ttie claim. • Purchaser's sole remedy tor a breach of ttie wan-anty set fortti in tiiis Section 14 will be tiie re-performance of tiie Services, or if that is not possible or practical, tiie refijnd of tiie price of tiie Services tiiat breached tiie wan-anty. • Purchaser shall notify Company in writing detailing any defecte in Service for which a warranty claim is being made. • COMPANY SHALL NOT IN ANY EVENT BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR LIQUIDATED DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. • IN NO EVENT WILL COMPANY'S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE FEES PAID OR DUE AND PAYABLE FOR THE SERVICES UNDER THIS AGREEMENT (OR THE RELEVANT PURCHASE ORDER). • EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES, AND PURCHASER RECEIVES, NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ARISING OUT OF, RELATED TO, OR UNDER THIS AGREEMENT, AND SPECIFICALLY DENIES THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. FURTHER, EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY ACKNOWLEDGES THAT THE SERVICES AND STRUCTURES PROVIDED HEREIN ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. COMPANY DOES NOT WARRANT THAT THE SERVICES OR STRUCTURES WILL MEET YOUR REQUIREMENTS OR THOSE OF THE OWNER. • For all Stiuctures instelled by tiie Company, Purchaser must sign and retum the "Customer Checklist and Sign-off' form to the Company witiiin 10 business days from the constmction completion date, or Company will not be held responsible ftjr any wan-anties under tiiis Section 14 or any damage to ttie Stiucture. • The wan-anties for tiie Stmctures are conteined in a separate document between Company and the ultimate Owner of ttie Stmctures, which will be provided to Owner at the time of completion of the wori<. 14) Indemnification: To ttie ftjilest extent permitted by law. Purchaser shall indemnify, defend and hold harmless ttie Company and ite consultente, agente and employees or any of ttiem from and against daims, damages, losses and expenses, induding but not limited to attorneys' fees, related to the instellation of the Sttucture or performance of tiie Services, provided that such daim, damage, loss or expense is attributable to bodily injury to, sickness, disease or deatti of a person or to injury to or destiuction of tangible property, but only to ttie extent caused by ttie negligent acte or omissions of ttie Purchaser or ite agente, employees, or subcontractors or anyone directly or indirecUy employed by ttiem or anyone for whose acte 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 constmed to negate, abridge or reduce otiier righte or obligations of indemnity tiiat would ottierwise exist as to a party or person described in tiiis Section 15. 15) Warrantv: Page 5 Initials PROPOSAL USASHADE >f Corporate Mailing Address: P.O. Box 560168 Dallas, TX 75356-0168 _ »9 » mSWBSa Remittance Address (800)966-5005 '.^ & Fabr'lC StrUCtUrCS shade structures, mc. PO Box 204691 Dallas, Texas 75320-4691 • USA SHADE provides a limited warranty on all USA SHADE-supplied labor and materials. No otiier wan-anty is implied. • The wan-anty set fbrtti shall be tiie purchaser's sole and exdusive wananty, and is void if stiudures are not paid for in ftjil. • The wan-anty is void if any changes, modifications, additions or attachmente are made to tiie stmctures wittiout ttie prior written consent of USA SHADE. • The warranty is void if the stiuctures are not assembled in stiict compliance witii USA SHADE spedfications. • The wan-anty will be void if regular maintenance is not perfonned. This is particulariy critical in regions where dirt/sand may cause abrasion of fabric. • The wancinties below are effective from ttie date of sale, or, if assembled by USA SHADE, ttie date of constiuction completion. • USA SHADE reserves ttie right to repair or replace any item covered by ttiis wan-anty. • Purchaser shall notify USA SHADE in writing, detailing any defecte for which a wan-anty daim is being made. • USA SHADE shall not in any event be liable for indirect, special, consequential, or liquidated damages. • USA SHADE spedfically denies tiie implied wan-anties of fitness for a particular purpose and merchantability. • No signs, objecte, fans, light fixtures, etc., may be hung from the stiuctures, unless specifically engineered by USA SHADE. These items may intertiere witii the fabric, voiding tiie warranty. • The wan-anty shall be void if damage to ttie steel frame or fabric top is caused by misuse, wflllfiji or intentional damage, vandalism, any Act of God (i.e. humcane, tornado, miao/maaoburst), induding, but not limited to, ice, snow, or wind in excess of applicable building code parameters. • For all unite assembled by USA SHADE ttie "Customer Checklist and Sign-off' form must be signed and retumed to USA SHADE wittiin 10 business days from ttie date of constiudion completion, or USA SHADE will not be held responsible for any damage to ttie stiuctures. The wan-anty will also be considered null and void until tiiis checklist is received by USA SHADE. Shadesure™ Fabric: • Shadesure™ fabrics cany a 10-year limited manufadurer's wan-anty from the date of assembly, against failure from significant fading, deterioration, breakdown, mildew, outdoor heat, cold, or discoloration, witii the exception of Red and Coolbrella™ fabrics, which cany a 3- year limited warranty. Should tiie fabric need to be replaced under the wan-anty, USA SHADE will manufadure and ship a new fabric at no charge for ttie first 6 years, ttiereafter pro-rated at 18% per annum over tiie last 4 years. • This wan-anty shall be void if damage to ttie fabric is caused by conted witti chemicals, misuse, vandalism, any Ad of God (i.e. humcane, tomado, miao/macroburst), induding, but not limited to, ice, snow, or wind in excess of the applicable building code parameters. • All fabric tops are wan-anted for winds/guste up to 90mph and prior to snow or ice accumulation. • All fabric curtains, valances and fiat vertical panels are not covered under the wan-anty. • Fabric is not wan-anted where it is assembled on a stmcture ttiat is not engineered and built by USA SHADE. • USA SHADE stiuctures are designed to eliminate fiidion between ttie rafters and fabric. The wan-anty will be voided if any modification or attachment is made to ttie rafter(s). The fabric will wear/tear should any objed be placed between tiie rafter and tiie fabric, voiding the wan-anty. • Labor for ttie removal, assembly, and/or freight will be covered for a period of 1 year, where ttie stiuctijres supplied and assembled by USA SHADE are defective. In all cases where the stiuctures are not assembled by USA SHADE, or ite agente, all labor for the removal, assembly, and/or freight will be at the customers' expense, and ttie wan-anty will only be applicable to ttie repair or replacement ofttie defective materials. • USA SHADE reserves ttie right, in cases w/here certain fabric colors have been discontinued, to offer the customer a choice of available colors to replace tiie wan-anted fabric of tiie discontinued color USA SHADE does not wan-ant that any particular color will be available for any period of time, and reserves ttie right to discontinue any color for any reason, without recourse by tiie owner of tiie discontinued fabric color Colourshade® FR Fabric: • Colourshade® FR fabrics cany a 5-year limited manufadurer's wananty from the date of assembly, against failure from significant fading, deterioration, breakdown, mildew, outdoor heat cold, or discoloration, witti tiie exception of FR Red and Coolbrella™ fabrics, which cany a 3-year limited wan-anty. Should tiie fabric need to be replaced under tiie warranty, USA SHADE will manufacture and ship a new fabric at no charge for 5 years. • This wan-anty shall be void if damage to tiie fabric is caused by contad witii chemicals, misuse, vandalism, any Ad of God (i.e. humcane, tomado, micro/macroburst), induding, but not limited to, ice, snow, or wind in excess of tiie applicable building code parameters. • All fabric tops are wan-anted for winds/guste up to 90mph and prior to snow or ice accumulation. • All fabric curtains, valances and flat vertical panels are not covered under tiie wan-anty. • Fabric is not wan^anted where it is assembled on a stmdure ttiat is not engineered and built by USA SHADE. Page 6 Initials PROPOSAL Corporate Mailing Address: . V P.O. Box 560168 * Dallas, TX 75356-0168 | f* »Fabric StructMres* ™" =r„~r„.. PO Box 204691 Dallas, Texas 75320-4691 USASHADE1 • USA SHADE stiuctijres are designed to eliminate fiiction between tiie rafters and fabric. The wan-anty will bie voided if any modification or attachment is made to tiie rafter(s). The fabric will wear/tear should any objed be placed between ttie rafter and ttie fabric, voiding ttie wan-anty. • Labor for ttie removal, assembly, and/or freight will be covered for a period of 1 year, where the stmdures supplied and assembled by USA SHADE are defective. In all cases where ttie stmdures are not assembled by USA SHADE or ite agente, all labor for ttie removal, assembly and/or fi-eight will be at the customers' expense, and ttie wan-anty will only be applicable to tiie repair or replacement of the defective materials. • USA SHADE reserves the right in cases where certein fabric colors have been discontinued, to offer ttie customer a choice of available colors to replace ttie wan-anted fabric of the discontinued color USA SHADE does not wan-ant tiiat 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 ttie owner of the discontinued fabric color NOTE: S/iactesure™ and Cok>urshade® FR fabric wananties cover fabric tops up to 40' in length. Fabric tops over 40' in length are covered by a non- prorated &-year wananty. Additionally, fabric tops made from other fabric types (i e. Sunbreii^) wiii indude their respective manufacturer's warranty. Stiadesure and Coolbrella are trademarl<s of USA SIHADE & Fabric Stiuctures. Colourstiade is a registered tirademark of Multiknit Pty. Ltd. Sunbrella is a registered trademaric of Glen Raven Custom Fabrics, LLC. Steel: • The stiudural integrity of ttie steel is wan-anted for 10 years. • Wort<manship and powder coated suri'aces are wan-anted for 1 year • This wan-anty shall be void if damage to ttie steel frame is caused by misuse, vandalism, any Ad of God (i.e. humcane, tomado, miao/maaoburst), induding, but not limited to, ice, snow, or wind in excess of applicable building code parameters. Thread: • USA SHADE wan-anties ite sewing ttiread for a period of 8 years. • The thread will be free from defects in material/wori<manship and will not be damaged by exposure to sunlight weattier, or water • This wan-anty does not cover damage from fire, cute, vandalism, misuse, or any Act of God (i.e. humcane, tomado, micro/macroburst), induding, but not limited to, ice, snow, or wind in excess ofttie applicable building code. • Labor for the removal, assembly and/or fi-eight of tops witti damage caused by thread will only be covered in instances where USA SHADE has assembled ttie unit In all cases where unite where not assembled by USA SHADE, all \abar for tiie removal, assembly and/or fieight will be for tiie customers account and ttie wan-anty will only be applicable to the repair or replacement of deffedive materials. 16) Assembly/Installation: • Company will notify Purchaser of the scheduled assembly date. Owner agrees to have an owner representative meet the assembly crew at the job site on the scheduled assembly date to verify ttie exact location where tiie Stiudure(s) is to be placed. • Labor for ttie removal, assembly and/or freight diarges will only be covered by Company in instances where ttie Stmdures supplied and installed by Company are determined by ttie Company to be defedive. In all cases where Stiuctijres are not installed by Company, all labor for the removal, assembly and/or fieight of ttie Stmdures will be Purchaser's responsibility. • Installation prices are based on a single mobilization charge. If additional mobilization is needed, there will be additional charges. • If tiie requested Services require Company access to Owner's premises. Company will be provided access to ttie Owner's premises free and clear of debris, automobiles or otiier interterence Monday thm Friday during ttie hours of 8am to 6pm, and Company will have access to water and eledrical fadlities during instaiiation. Additional charges will apply if utilities are not easily accessible. All automobiles will be moved priorto Company's crew beginning any instellation. • Company will not be responsible for moving or repairing any underground utility lines such as eledrical, telephone, gas, water, or sprinkler lines tiiat may be encountered during instellation. • Any additional coste incurred as a result of hard rock conditions requiring exb-a equipment utility removal or repair resulting in delay will result in additional charges unless ttiey are detailed on as-built site drawings provided to Company or merited 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 ttie Services, Purchaser must provide the Company witti a detailed drawing prepared by or for ttie Owner showing exactiy where tiie Stmdure(s) are to be assembled as well as detailing any obstedes or otiier impedimente that may cause tiie assembly process to be more difficult. Any fixture(s), e.g., playground, pools etc., ttiat ttie Stmdure(s) is/are to be assembled over must also be detailed, along with their peak heighte (if applicable). Page 7 Initials PROPOSAL 1^1^ Corporate Mailing ~ ~ Address: \ P.O. Box 560168 Dallas, TX 75356-0168 I ,800,*^ 1^; »Fabric structures' "™" PO Box 204691 Dallas, Texas 75320-4691 USASHADE 2^ 18) Site/Use Review bv Purchaser: Company relies on ttie Purchaser to detennine that the Stiudure(s) ordered are appropriate and safe for tiie Owner's instellation site and/or intended use. Company is not responsible for damages or injuries resulting from collisions by moving objecte or persons with the stiudure post(s). Company can recommend or supply, at additional cost padding for poste from a third party manufadurer 19) Preparatorv Work: Where installation/assembly is part of tiie Services and in ttie event that ttie foundation or job site is not suitable or ready for assembly to begin on tiie scheduled day, a Delay of Order notification must be sent to Company at least 4 wori<ing days before in order to allow Company to reschedule the project. In tiie event tiiat 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 ttie assembly. 20) Delegation: Subcontractors: The Sen/ices and the manufacturing and assembly ofthe Stiuctures may be performed by subcontractors under appropriate agreemente with ttie Company. 21) Force Maieure: Impracticability: The Company shall not be charged witti any loss or damage for failure or delay in delivering or assembling ofttie stiuctijres when such failure or delay is due to any cause beyond ttie confrol ofttie Company, due to compliance with govemmental regulations or orders, or due to any acte of God, stiikes, lockoute, slowdowns, wars or shortages in ti-ansportation, materials or labor 22) Dispute Resolution: Any confroversy or daim arising out of or related to this agreement must be settied by binding artDifration administered in Dallas, Tx by a single ari^iti-ator seleded by the parties or by tiie American Artiifration Assodation, and conducted in accordance with ttie constiuction industry artjitration mles. Judgment upon tiie award may be entered in any court having jurisdiction tiiereof 23) Entire Agreement: No Reliance: This agreement represente and conteins the entire agreement between tiie parties. Prior discussion or veri^al representations by tiie parties tiiat are not contained in tills agreement are not part of tills 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) Goveming Law: The agreement will be constmed and enforced in accordance witii tiie laws of tiie State of Texas. 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 ofttie Company and the Purchaser, and ttieir successors and permitted assigns. Executed to be effective as ofthe date executed by the Company: NOTE: FOR ANY PURCHASE EQUAL TO OR EXCEEDING $100,000, NO WORK, OTHER THAN PRE-WORK, SHALL BE UNDERTAKEN WITHOUT A MUTUALLY ACCEPTABLE AND SIGNED CONSTRUCTION CONTRACT. PURCHASER: SELLER: Kitchell Total Building Solutions USA SHADE & Fabric Structures Signature: Signature: By: (Print) By: (Print) Brett Ivey Title: Title: Regional Sales Manager Date: Date: May 1,2014 Pages Initials. PROPOSAL Corporate Mailing Address: P.O. Box 560168 Dallas, TX 75356-0168 (800) 966-5005 USASHADE 5^ & Fabric Structures^ Remittance Address Shade Structures, Inc. PO Box 204691 Dallas, Texas 75320-4691 NOTE: All purchase orders and contracts should be drafted in the name of USA SHADE & Fabric Structures Page 9 Initials