CONTRACT
Contractor Lic. # 957776
Class A/B/C61/D34/D12
Pacific Play Systems, Inc.
Phone (760) 599-7355
Date 6/17/2025
Est. No. 2025-623
Contractor
City of San Marino
1800 Huntington Dr.
San Marino, CA 91108
Attn: Amber Shah
Customer Project Lacy Park_Phase II
Terms Net 30
Valid for 30 Days
www.pacificplayinc.com
Attached Exhibit A (Terms and Conditions) and Exhibit B (City of San Marino Insurance Requirements) shall be made a part of this Contract. Total PACIFIC PLAY SYSTEMS, INC. 3288 Grey Hawk Court, Carlsbad, CA 92010 - Phone 760-599-7355 or 855-599-7355 - Fax 760-599-7385 Description Qty Rate Total
Project Name: Lacy Park_Phase II
Project Address: 1485 Virginia Road, San Marino, CA 91108 Scope of Work: Provide, equipment, materials and services as outlined per below:
Play Equipment:
Playcraft SN#R502CCB3A, Custom R5" OD Steel Play System, 2-5 age-group 1 84,420.00 84,420.00T Playcraft PC 2472 Spin Max, Orbit 1 30,363.00 30,363.00T Playcraft 1309-2L Custom Printed Sign LAN. (Double) 2 1,463.00 2,926.00T Sub-total of equipment and materials cost 117,709.00
CMAS Discount, CMAS Contract ID 4-19-78-0095A -11,771.00 -11,771.00 ID Sculpture Home Tree 1 28,823.00 28,823.00T
ID Sculpture Mini Transit 1 8,770.00 8,770.00T
Sub-total 37,593.00
Discount on IDS items -3,760.00 -3,760.00
Demo & Site prep:
1. Demo, hauling and disposal of the existing 2-5 playground structure. (Includes footing removal)
2. Stockpile existing EWF before the installation of the playground equipment to avoid contamination and put it back after installation.
3. Mobilization, site prep (preparing the site for installation, unloading and receiving the playground equipment, payment and performance bond & temp fencing) 1 11,800.00 11,800.00
Installation:
Installation labor, playground equipment with in-ground concrete footings using Factory Certified Installers. Installation cost is based on using manufacturer's standard size footings.
1 95,000.00 95,000.00
Sub-total of demo, site prep and installation 106,800.00 Freight costs, Playcraft playground equipment 1 4,107.89 4,107.89 Freight costs, IDS playground equipment 1 4,980.86 4,980.86 Project administration, submittals, non specific item 1 5,000.00 5,000.00 PAYMENT TERMS: Net 30
CONTRACT
Contractor Lic. # 957776
Class A/B/C61/D34/D12
Pacific Play Systems, Inc.
Phone (760) 599-7355
Date 6/17/2025
Est. No. 2025-623
Contractor
City of San Marino
1800 Huntington Dr.
San Marino, CA 91108
Attn: Amber Shah
Customer Project Lacy Park_Phase II
Terms Net 30
Valid for 30 Days
www.pacificplayinc.com
Attached Exhibit A (Terms and Conditions) and Exhibit B (City of San Marino Insurance Requirements shall be made a part of this Contract. Total PACIFIC PLAY SYSTEMS, INC. 3288 Grey Hawk Court, Carlsbad, CA 92010 - Phone 760-599-7355 or 855-599-7355 - Fax 760-599-7385 Description Qty Rate Total
Additional Services: None
EXCLUSIONS: This Contract only covers the cost of equipment, materials and services that are clearly outlined in the Scope of Work. All other equipment, materials and/or services that are not clearly outlined in this quotation are excluded. Exclusions include, but are not limited to the following:
1. Additional services, site work (new EWF for playground surfacing, drainage, site drains, border, sidewalks, pavement, striping, etc.), site materials, ADA accessible path of travel, builders risk insurance, furnishing plans, obtaining permits, dealing with inspections and/or permit agencies, engineering calculations, stamped engineered or architectural drawings, etc.
2. Inspection costs, CPSI report, surfacing HIC test, survey work of any kind, removal of hazardous materials or contaminated soils, digging through rock and rocky soils.
3. Customer shall hire a utility locating service to mark all underground utilities prior to the start of our work, in order to minimize any damage to utilities. Modifications and/or repairs to any existing or damaged utilities as a result of this work is excluded. If owner would like us to hire a utility locating company, additional cost will be $1,000. Initial here to authorize this additional service _________.
4. Customer shall be responsible for keeping traffic away from the PIP rubberized surfacing area for at least 24 hours after it is poured so that surface can cure properly. PIP must be cured for a minimum of 2 weeks before any testing is performed.
5. Additional move-in costs, if required (only one move-in cost is included in this quote), dealing with unforeseen conditions and extra work required as a result of these conditions and anything else that is not clearly outlined in this Contract. See Exhibit A, Terms and Conditions for a description of Unforeseen Conditions.
LABOR RATES: Prevailing Wage Rates.
CONTRACT
Contractor Lic. # 957776
Class A/B/C61/D34/D12
Pacific Play Systems, Inc.
Phone (760) 599-7355
Date 6/17/2025
Est. No. 2025-623
Contractor
City of San Marino
1800 Huntington Dr.
San Marino, CA 91108
Attn: Amber Shah
Customer Project Lacy Park_Phase II
Terms Net 30
Valid for 30 Days
www.pacificplayinc.com
Attached Exhibit A (Terms and Conditions) and Exhibit B (City of San Marino Insurance Requirements) shall be made a part of this Contract. Total PACIFIC PLAY SYSTEMS, INC. 3288 Grey Hawk Court, Carlsbad, CA 92010 - Phone 760-599-7355 or 855-599-7355 - Fax 760-599-7385 Description Qty Rate Total
Required Statement for California Projects:
Contractors are required by law to be licensed and regulated by the Contractors' State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a latent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors' State License Board, P.O. Box 26000, Sacramento, California 95826.
This Contract is executed between Pacific Play Systems, Inc., a California corporation and Customer (also referred to as Owner), identified in the Customer section of this Contract.
Either Customer or Pacific Play Systems, Inc. may be referred to as Party, together as Parties. The purpose of this Contract is for Pacific Play Systems, Inc. to provide Customer with equipment, materials and/or services as outlined in the Scope of Work section of this Contract in exchange for the sum of money as outlined in this Contract.
By signing below, both Parties acknowledge that they are entering into a legally binding Contract, which includes Exhibit A. Customer acknowledges the receipt and review of Exhibit A (Terms and Conditions) which shall be made a part of this Contract and enforceable to the full extent allowed by law.
ACCEPTED BY CUSTOMER:
Customer’s Name: _____________________ Date accepted: ______________ Signature: ____________________________ Signed By: __________________ ACCEPTED BY PACIFIC PLAY SYSTEMS, INC.:
Federal Tax I.D. #: 27-4620108 - DIR No. 1000012253 Date accepted: ______________ California Contractors License #957776, Classifications: A, B, C61-D12, C61-D34 Signature: ____________________________ Signed By:
CA Sales Tax, Los Angeles County 9.50% 13,278.25
$273,938.00
1 Pacific Play Systems, Inc. - 3288 Grey Hawk Court, Carlsbad, CA 92010, Phone 760-599-7355 - California Contractors Lic. #957776
EXHIBIT A- TERMS AND CONDITIONS
(Revised 12-01-2024)
1. ACTS OF GOD: In the event either party is unable to perform its obligations under the terms of this Agreement because of acts of God, interruption of electrical power or other utilities, shortages of materials and/or labor, manufacturing issues or delays beyond its control, failures or damage reasonably beyond its control, pandemic related issues, or other causes reasonably beyond its control, such party shall not be liable to the other party for any damages resulting from such failure to perform or otherwise from such causes. Pacific Play Systems, Inc. and Customer shall notify each other as soon as reasonably possible following the occurrence of an event described in this subsection.
2. ATTORNEY FEES & EXPENSES: In the event of any dispute under this Contract, the prevailing party shall be entitled to recover from the other party reasonable attorneys' fees and costs of suit, including any fees and costs incurred in preparation of such suit. If timely payments are not made by Customer and collection becomes necessary, Pacific Play Systems, Inc. shall be entitled to collect interest and all reasonable collection and legal costs incurred to the extent allowed by law.
3. BUSINESS LICENSE: If obtaining a business license becomes necessary for a city in which Pacific Play Systems, Inc. does not hold a current license, Pacific Play Systems, Inc. shall obtain the required license and Customer shall reimburse Pacific Play Systems, Inc. for its cost (including staff time) at cost plus 20%.
4. CHANGE ORDERS: Extra Work and change orders shall become part of the contract once the change order is prepared in writing and signed by the parties prior to the commencement of any work covered by the new change order. Change order shall describe the scope of the extra work or change, the cost to be added or subtracted from the contract and describe effects on the schedule (if applicable). Change Orders encountered during the installation phase of the project require immediate action by the Customer to avoid stoppage of work which may cause demobilization and remobilization and Customer agrees to pay the additional cost.
5. COST ESCALATION CLAUSE: Given the recent increases in the cost of equipment, materials, playground safety surfacing, labor and freight, if Pacific Play’s cost of equipment, materials, labor or freight associated with any portion of this project increases by over 2% by the time this project gets installed, Customer shall be responsible for paying the additional cost.
6. DELAYS: If a project is delayed for reasons beyond Pacific Play Systems, Inc. control, Customer agrees to pay for the cost of equipment, materials and products which are already manufactured. Storage fees may be added for stored products. If a project installation is delayed, new installation date will be assigned based on availability of installer. Any cost escalation incurred during the delayed period shall be passed onto the Customer and Customer agrees to pay it. Customer shall hold Pacific Play Systems, Inc. harmless for additional delays due to unavailability of the installer or resources when a project is delayed. If additional mobilization becomes necessary to receive and unload the equipment when a project is not ready for installation, Customer shall pay the cost incurred plus 20%.
7. DEMOLITION: Unless other arrangements are made prior to the start of demolition, all demolition items shall be disposed of by Pacific Play Systems, Inc. in a manner selected by Pacific Play Systems, Inc. For demo purposes, unless otherwise noted in the Contract, all slab thicknesses are assumed to be 4” or less with no reinforcement. If thickness of slab turns out to be greater than 4” or has reinforcement in it, its demo, hauling and disposal cost shall increase at the rate of our actual cost plus 20% and Customer agrees to pay the additional cost.
All PIP rubberized surfacing thicknesses are assumed to be no more than 3.5” thick. If PIP thickness turns out to be greater than 3.5”, its demo, hauling and disposal cost shall increase at the rate of our actual cost plus 20% and 2 Pacific Play Systems, Inc. - 3288 Grey Hawk Court, Carlsbad, CA 92010, Phone 760-599-7355 - California Contractors Lic. #957776 Customer agrees to pay the additional cost. All changes in the scope of the work shall be managed with a change order, promptly executed by both Parties so that no delays are experienced.
8. DISCOUNTS: Discounts (if any) provided are valid only if the Customer completely fulfills his or her obligations under this Contract for the scope identified, including making timely payments per Payment Terms of Contract. Customer’s failure to pay amounts due under this Contract in a timely fashion or reducing the scope of work shall constitute forfeiture of all discounts provided under this Contract and shall increase Contract sum by the amounts of discounts provided.
9. ENGINEERED WOOD FIBERS (EWF) are sold in quantities of cubic yards. EWF will settle during and after installation, reducing its depth. Therefore, its depth cannot be guaranteed. Generally speaking,18” of material settles to a compacted depth of 10”-12”. EWF requires maintenance and topping off is necessary from time to time.
10. ENTIRE AGREEMENT: This Contract constitutes the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they relate in any way to the subject matter hereof. In the event of conflicting provisions between this Contract and Customer’s own Contract (if any), the provisions of this Contract shall prevail.
11. EXPANSIVE, UNSUITABLE SOILS: Pacific Play Systems, Inc. shall not be responsible for undesirable effects (poor drainage, settlement, expansion, contraction, finish surface cracking, etc.) of unsuitable grounds or soils provided to us. Unsuitable grounds or soils include expansive soils, poorly drained soils, uncompacted or poorly compacted grounds, unstable and/or expansive soils such as clay, excessively moist soils, uncompacted sand, etc. If applicable, it shall be the Customer’s responsibility to evaluate soil samples and determine if the existing soil is suitable for the intended work, prior to the start of any work. If applicable, expansive, loose, or uncompacted soil shall be removed and replaced by others at Customer’s cost, prior to our mobilization on site. Additional engineering and deeper footings may be required if excessive moisture is encountered during the excavation, and Customer agrees to reimburse Pacific Play Systems, Inc. for the additional cost encountered at cost plus 20 percent.
12. FINAL INSPECTION: Customer shall perform a final inspection of the project while Pacific Play Systems, Inc. and its agents are still on site and shall report any concerns to Pacific Play Systems, Inc. at that time so that valid concerns can be corrected right away to avoid delays and additional trips to the job site.
13. FOOTINGS. Installation cost for excavation and pouring playground footings (Playcraft equipment or any other manufacturer) is based on using the manufacturer’s standard footing details. Unless otherwise noted in Quotation, Contract or Purchase Order, if playground footings are upgraded due to permit requirements or to remedy unsuitable soil conditions or to add rebar cages, etc. the upgrade cost shall be extra.
Some permit agencies may require structural calculations for footings which may cause larger footings and deeper embedment of posts into concrete footings than shown in the manufacturer’s standard footings details.
Additional rebar cages may also be needed. Our equipment and installation costs are based on supplying standard length posts and using the manufacturer’s standard footing details with no rebar cages. If footings are enlarged due to permit requirements or for any other reason, Customer agrees to pay the additional cost for longer posts, rebar cages and additional labor and materials required for excavating and installing deeper and larger footings. Additional cost shall be billed at the rate of Pacific Play Systems’ cost plus 20% and the Customer agrees to pay for it.
14. GOVERNING LAW: This Contract shall be governed by and construed in accordance with the domestic laws of the State of California without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of California. Jurisdiction shall be the County of San Diego, North County Judicial District.
3 Pacific Play Systems, Inc. - 3288 Grey Hawk Court, Carlsbad, CA 92010, Phone 760-599-7355 - California Contractors Lic. #957776
15. INSURANCE: Pacific Play Systems, Inc. agrees to carry the following limits during the course of project:
Liability Insurance: $1,000,000 Each Occurrence, $1,000,000 Personal and Advertising Injury, $2,000,000 General Aggregate, $2,000,000 Products, Completed Operations Aggregate.
Excess Liability Insurance: $3,000,000 Each Occurrence, $3,000,000 General Aggregate.
Workers Compensation: $1,000,000
Commercial Auto Insurance: $1,000,000
Proof of insurance or standard additional insured certificates (issued to Customer only) shall be provided upon request. Any custom wording (Primary Wording, Waiver of Subrogation, Cancellation Notices, etc.) on insurance policies or certificates, custom and non-standard additional insured certificates or certificates to multiple entities shall be provided at additional cost, if requested and only if available. Customer acknowledges that Pacific Play Systems’ subcontractors may have lower insurance limits and carry no excess liability insurance. Additional insurance not listed here, if required & available, may be provided at additional cost.
16. LABOR RATES: Unless otherwise noted in writing, all labor rates are Non-Prevailing Wage Rates. It shall be the Customer’s responsibility to inform us if a project is Prevailing Wage before a contract is signed.
17. LIABILITY LIMIT: Pacific Play Systems, Inc.’s liability on any claim of any kind, including negligence, for any loss or damage arising out of, connected with or resulting from this Contract, or from the performance or breach thereof, or from the manufacture, sale, delivery, installation, resale, repair or use of any products covered by or furnished under this Contract, shall in no case exceed the price of the products or parts thereof which gives rise to this claim. In no event shall Pacific Play Systems, Inc. be liable for special, incidental, or consequential damages, or for damages in the nature of penalties.
18. LEAD TIME: Unless otherwise noted, lead time for delivery of equipment varies depending on the type of equipment ordered and can range between 6-24 weeks (+/-) AFTER receipt of a signed Contract, deposit, and color selection from the Customer. Lead time does not include time needed for shipping, site work and installation. Lead time may vary for different projects and different products, depending on product, size and scope of work.
19. MOBILIZATION: Unless otherwise noted in the Quotation, Contract or Purchase Order, our cost includes only one mobilization per project. If additional mobilizations become required due to various factors beyond Pacific Play Systems control such as site not being ready, stop notices by the Customer, permit and governing agencies, etc., additional mobilization cost shall apply at the rate of cost plus 20% or $2,000 minimum for private projects and $2,500 for public works projects whichever is greater. The minimum charge for receiving and unloading equipment when project is not ready for installation shall be $1,500 for private projects and $2,500 for public works projects and Customer agrees to pay these additional costs.
20. MAINTENANCE: Customer shall be responsible for maintenance and upkeep of all acquired equipment and materials associated with this Contract, including but not limited to maintenance of equipment, materials, surfacing, drainage system, etc. Playground equipment and surfacing require daily, weekly, and monthly inspections. It is common that some bolts may come loose after the initial installation and some use, particularly in moving parts. It shall be the Customer’s responsibility to inspect for loose or missing hardware and address it as needed.
21. NOTICES: All notices required by this Agreement shall be in writing and be delivered via email, United States Certified Mail, addressed to the party to whom such notices are directed. Either party may change its address for notices hereunder by giving notice to the other party in the same manner as provided herein. 4 Pacific Play Systems, Inc. - 3288 Grey Hawk Court, Carlsbad, CA 92010, Phone 760-599-7355 - California Contractors Lic. #957776
22. OWNERSHIP: Once equipment and materials are delivered to the Customer's premises, it is considered delivered and Customer shall become responsible for its security. All costs associated with replacement of vandalized and/or stolen equipment and materials shall be the Customer’s responsibility. Customer shall take necessary steps to secure site and protect the work under progress, including keeping traffic away from the equipment under construction and protecting finished surfaces (concrete, PIP surfacing, etc.) for a minimum of 24 hours after pour.
23. OPTIONS, ADDITIONAL SERVICES: Equipment, materials and services listed under Options or Additional Services are not included in the Scope of Work (cost is extra). If the Customer chooses to add any of these items, Customer shall notify Pacific Play Systems, Inc. in writing as soon as possible and prior to the ordering of equipment so that Contract can be modified to incorporate the added items. Once equipment and materials are ordered, it may be too late to make any changes, without incurring additional costs.
24. PAYMENT TERMS: All payments are due per Contract Payment Terms. Past due balances are subject to an annual interest rate of 18%, or the maximum allowed by law, whichever is greatest. If payments are not received on time and collection becomes necessary, aside from adding interest, all discounts provided shall be reversed and added to the contract sum and Pacific Play Systems, Inc. shall be entitled to collection costs incurred plus attorneys’ fees & expenses to the full extent allowed by the applicable laws. Additionally, Pacific Play Systems, Inc. may suspend all warranties until such a time that all past due balances, interest, and fees are paid in full.
25. PERMITS: Unless otherwise specified in writing, creating plans, obtaining structural calculations, and securing permits are the sole responsibility of the Customer. Permitting and plan requirements can vary from region to region, by signing this Agreement, the Customer agrees that the Customer has determined the necessary permitting and plan requirements, including all related costs, for the scope of the Project. The Customer must notify Pacific Play Systems, Inc. in writing within 10 days of the execution of this Agreement whether or not permit(s) are required. Additionally, the Customer is responsible for verifying that the installation of the proposed equipment complies with zoning regulations applicable to their property.
If permits are required, the Customer shall be solely responsible for obtaining all necessary permits, licenses, and approvals mandated by federal, state, or local laws, ordinances, or regulations related to the work outlined in this Contract. The Customer must ensure that all such permits and approvals are obtained and are in effect before work begins. Pacific Play Systems, Inc. will not be liable for any fines, penalties, or delays resulting from the Customer's failure to comply with this provision.
If Pacific Play Systems, Inc. is instructed in writing to obtain a permit, all associated costs (including plans and engineering fees) will be charged as additional expenses. Staff time will be billed at $120 per hour, building permit fees will be billed at cost, and an additional 20% will be added for all overhead and related expenses. The Customer agrees to pay all associated costs and fees.
While Pacific Play Systems, Inc. will make every effort to secure a permit as quickly as possible (if instructed in writing), no guarantees can be made regarding the successful acquisition of a permit. Furthermore, the permit process can be time-consuming and may result in significant delays, potentially extending the project timeline beyond the Customer's expectations.
The Customer agrees that Pacific Play Systems shall not be held liable for any delays or additional costs related to or arising out of the securing of any necessary permit(s). 5 Pacific Play Systems, Inc. - 3288 Grey Hawk Court, Carlsbad, CA 92010, Phone 760-599-7355 - California Contractors Lic. #957776
26. PROTECTION OF EXISTING PLAYGROUND SURFACING: Sites at some playground renovation projects may contain existing playground safety surfacing that may be either sand, engineered wood fibers, rubber tiles, PIP rubberized surfacing, artificial turf or a combination of these items that may need to be protected while new improvements are made. Unless otherwise noted in our Contract, Customer shall remove and stockpile filter fabric, sand and engineered wood fibers out of the way prior to the start of work to minimize its contamination during construction and shall be responsible to place it back after completion of our work. Customer acknowledges that some damage to the existing rubber tiles or PIP rubberized surfacing or artificial turf may occur due to our work and the use of machinery, regardless of various protection methods used. The Customer shall be responsible for the cost of its repair or replacement if damage occurs.
27. REPAIRS: If any part of the project requires repairs (during or after completion) and becomes a safety concern, Customer shall close site immediately and properly barricade the site until repairs are made.
28. RETURNS: Equipment, materials associated with this Contract are highly customized and shall be considered Non-Returnable. Once the Contact is signed and equipment, materials and services are ordered, it cannot be cancelled. No Returns or Substitutions are permitted under this Contract, unless agreed to in writing by Pacific Play Systems, Inc. If Pacific Play Systems, Inc. agrees to a change involving a reduction in the Scope of Work or the Contract Sum after the award of Contract, Pacific Play Systems, Inc. shall be entitled to charge the Customer a fee 30% of the cost of items deleted for the time and effort put forth into processing those items.
Additionally, any discounts associated with the deleted items shall be reversed.
29. SEVERABILITY: Any term or provision of this Contract that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
30. SHADE STRUCTURES: Shade structures, shade sails, umbrellas, shelters and canopies (hereafter referred to as Shade Structures) included in the Scope of Work (if any) are non-engineered (no calculations or engineering drawings are provided), non-structural (not rated for fire, wind or earthquakes), unless otherwise noted in writing.
Non-engineered, non-structural Shade Structures are considered temporary structures and will not be suitable for installation at locations that require obtaining a permit. It shall be Customer’s responsibility to determine if a permit is required for these Shade Structures and communicate same with Pacific Play Systems, Inc. in writing, prior to executing this Contract so that Shade Structures can be designed, fabricated and priced accordingly for the structural upgrades needed for engineered structures so that a permit can be obtained by others. Unless otherwise noted, if Pacific Play Systems, Inc. is instructed to obtain a permit, all associated engineering costs shall be billed at cost plus 20% as well as staff time at the rate of $120/hour, plus all applicable costs, permit fees, etc.
31. SITE WORK: Sitework includes all work that is needed to prepare the site for the installation of equipment and materials. Site work includes, but is not limited to demo, hauling, grading, installation of site materials, subbase, drainage, curbing, sidewalks, creating sufficient space to accommodate the Use Zone of the equipment, etc.
If sitework is excluded from the Scope of Work:
A. The Customer shall prepare site so that it is ready for Pacific Play Systems, Inc. to move in.
B. It shall be Customer’s responsibility to coordinate site requirements with Pacific Play Systems, Inc. and provide the proper rough grade elevation in order to have the site ready for installation.
C. If site is determined to not be ready upon move-in by Pacific Play Systems, Inc. and additional move-ins become necessary, a $2,000 - $2,500 extra move-in charge shall apply for each additional move-in and Customer shall become responsible for the safety of the site and for the safekeeping of the equipment and materials that are delivered to the job site until Pacific Play Systems, Inc. is able to return and re-start installation. Additionally, project delays due to unavailability of installers may occur if demobilization becomes necessary.
6 Pacific Play Systems, Inc. - 3288 Grey Hawk Court, Carlsbad, CA 92010, Phone 760-599-7355 - California Contractors Lic. #957776 Some damage to existing grounds, pavement and landscaping shall be expected due to Pacific Play Systems, Inc.’s operations. Unless otherwise noted in writing, repairs to underground utilities, landscaping and irrigation systems are excluded from Pacific Play Systems, Inc.’s scope of work and shall be the Customer’s responsibility. Pacific Play Systems, Inc.’s liability for cleaning marks (tire marks, etc.) on pavement shall be limited to power washing.
32. SLAB: All concrete slabs associated with the Scope of Work (if any), shall be 4" nominal (3 1/2" thick) without any reinforcement, unless otherwise noted.
33. SUCCESSION & ASSIGNMENT: This Contract shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. A Party may not assign either this Contract or any of its rights, interests, or obligations hereunder without the prior written approval of the other Party. Customer shall not assign this Contract to any third-party implementation agencies such as property management companies, contract compliance agencies, etc. without the prior written consent of Pacific Play Systems, Inc.
34. STORAGE FEES: If a project is delayed for any reason due to factors beyond Pacific Play Systems, Inc. control, Customer agrees to pay storage fees for equipment which has already been manufactured at cost plus 20% for monthly storage rental fees (cost varies based on space required and may be more for larger projects) for equipment stored at our warehouse or at the manufacturer. If a free-standing storage container becomes necessary to secure the equipment on site, Customer shall provide the space for it and become responsible for covering its cost at the rate of cost plus 20% plus unloading costs due to the additional mobilization to unload the equipment and forklift rental.
35. SUB-BASE: PIP rubberized surfacing, tiles or artificial turf require either a concrete slab sub-base or a 90- 95% compacted Class II or crushed aggregate sub-base. When replacing an existing surface (PIP, rubber tiles or turf), it is difficult to know what kind of sub-base is installed underneath the existing surface or if that sub-base is suitable for the installation of the new surfacing, without removing the existing surface and damaging it. Unless otherwise noted in our Contract, if during work, it becomes clear that the existing sub-base is not suitable for the installation of the new surfacing and requires repairs, removal and/or replacement, cost associated with this work shall be extra (via a change order) and shall be billed at our cost plus 20%. The Customer shall be notified of this condition and the associated cost to remedy it, once discovered. If additional work becomes necessary, Customer shall execute a change order for the additional scope without delay so that work can proceed timely. If an additional move-in becomes necessary due to Customer having this work done by others, an additional move in cost shall be added to our Contract.
36. SUB-CONTRACTORS: Pacific Play Systems, Inc. reserves the right to use subcontractors to perform labor without prior consent from the Customer as long as subcontractors used are licensed and insured. Sub-contractors insurance limit is limited to $1M for General Liability Insurance, $2M General Aggregate.
37. SYNTHETIC SURFACING: Synthetic surfacing includes PIP rubberized surfacing and artificial turf. Both products use petroleum-based materials with volatile cost fluctuations. It is difficult to quote these products accurately for projects that are not installed within a six-month time frame. Pacific Play Systems, Inc. reserves the right to pass on materials cost increases from the supplier of these products for projects that are installed beyond six months after the original award date and the Customer agrees to pay the additional cost.
38. TERMINATION: This Contract shall not be terminated by either party without material cause. Pacific Play Systems, Inc. may terminate this Contract with Customer for lack of payment and for other material breach, if not cured within 10 days of receipt of a written notice to Customer. If this Contract is terminated by any party for any reason, Customer shall remain fully liable for the cost of equipment and materials ordered, administrative and other time spent on the project and for services rendered to the full extent allowed by law. 7 Pacific Play Systems, Inc. - 3288 Grey Hawk Court, Carlsbad, CA 92010, Phone 760-599-7355 - California Contractors Lic. #957776
39. TESTING: Unless specifically noted in the contract, cost of any testing such as CPSI, surfacing HIC testing, soil testing, etc. shall be extra. HIC testing for PIP or turf shall not occur until the surface has a minimum of ten (10) days to cure.
40. UNFORESEEN CONDITIONS: Unforeseen conditions include, but are not limited to, having to deal with, modify or repair underground utilities (water, sewer, gas, electricity, irrigation lines & wiring, data, phone, drainage lines, etc.) found during excavation. Unforeseen Conditions shall also include having to excavate or remove boulders, rocks, rocky soil, etc. that cannot be cored through with a standard Bobcat, augur or excavated with a shovel and require the use of a jack hammer or other means. Other examples of Unforeseen Conditions include unexpected items found during excavation that were not obvious or not disclosed by Customer, such as discovery of unsuitable soil conditions, existing footings, curbing, border, pavement, tree roots, filter fabric, etc. found during the excavation for new footings, unless removal of these items was clearly noted in the Scope of Work. Finally, Unforeseen Conditions shall include any factors and/or conditions that adversely affect the cost of the project which were not disclosed by Customer in writing prior to the signing of this Contract. Cost of dealing with unforeseen conditions shall become extra and shall be added to the Contract sum at the rate of Pacific Play Systems, Inc.’s cost plus 20%. The Customer shall indemnify Pacific Play Systems, Inc. from any liability associated with damage to underground utilities due to Unforeseen Conditions.
41. UTILITIES: Utilities include but are not limited to water, sewer, gas, electricity, irrigation lines & wiring, data, phone, drainage lines, etc. To minimize damage to utilities, Customer shall mark, cap, or relocate all underground utilities that are located within the work area, prior to the start of work. Pacific Play Systems, Inc. and its subcontractors shall do their best to minimize damage to underground utilities that are identified by the Customer prior to the start of construction. However, should unintended damage occur due to site operations, repairs or relocation of underground utilities shall be excluded from the scope of our work. If utilities are damaged or have to be relocated, the Customer shall repair, replace, or relocate them at Customer’s cost as soon as possible to minimize delays. At Customer’s request, repairs may be made to damaged utilities by Pacific Play Systems, Inc., or its subcontractors at an additional cost of actual cost plus 20%.
42. UTILITY LOCATING SERVICE: For projects requiring excavation, prior to the start of work, Customer shall either clearly mark underground utilities and their depth, hire a utility locating service to locate them or authorize Pacific Play Systems, Inc. to hire a utility locating service to do so. Locating underground utilities is not an exact science and sometimes they are missed by utility locating companies or locations are not accurate, leading to unintended damage during excavation. Also, PVC or plastic pipes cannot be detected by these companies.
Therefore, some potential damage to utilities should be expected. If utilities are damaged, the Customer shall hold Pacific Play Systems, Inc., its subcontractors, employees, and officers harmless as it relates to any potential damages or liabilities. If underground utilities are damaged, regardless of whether a utility locating service was hired or not, the Customer shall be responsible for the cost of their repair, replacement, or relocation.
43. WARRANTY: Equipment warranties are provided by equipment manufacturers and not by Pacific Play Systems, Inc. Material warranties are provided by the supplier of materials and not by Pacific Play Systems, Inc.
When available, Pacific play Systems, Inc. shall provide copies of equipment and material warranties to the Customer upon request. Pacific Play Systems, Inc. shall warrant all Labor provided in the Scope of Work for a period of one year from the date of completion.
Customer acknowledges that moving parts (spinners, zip lines, track rides, rope connections, swings, etc.) require regular maintenance in order to stay operational. Pacific Play Systems, Inc. shall not be responsible for the maintenance of these items which may involve tightening of bolts, connections, etc. Any service calls required to maintain moving parts (even during the one-year labor warranty) shall be billed to Customer at cost plus 20%. Zip lines require additional maintenance to operate properly and shall be regularly maintained by the Customer.
EXHIBIT B
CITY OF SAN MARINO INSURANCE REQUIREMENTS
Contractor’s Duty to Show Proof of Insurance. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees.
Coverage shall be at least as broad as:
Commercial General Liability (CGL)Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $5,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $5,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile Liability
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 the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
Workers’ Compensation
Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000 for Contractor ’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Contractor shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.
Contractor shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of Agency, its officers, agents, employees, and volunteers.
Umbrella or excess liability insurance.
Contractor shall obtain and maintain an umbrella liability insurance policy with limits that will provide bodily injury, personal injury, and property damage liability coverage, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason, other than bankruptcy or insolvency of said primary insurer; • “Pay on behalf of” wording as opposed to “reimbursement”; • Concurrency of effective dates with primary policies. Should Contractor obtain and maintain an excess liability policy, such policy shall be excess over commercial general liability, automobile liability, and employer’s liability policies.
Such policy or policies shall include wording that the excess liability policy follows the terms and conditions of the underlying policies.
Installation floater. Contractor shall obtain an installation floater for the value of the property and covering the portion of the work to be constructed, installed, altered, or repaired by Contractor. The installation floater policy must include coverage for the fixtures, materials, supplies, machinery, and equipment used in or incidental to the construction project as well as property kept off-site or while in transit. Coverage must include property of others in the Contractor’s care, custody, or control. In addition to Contractor, the Agency and all subcontractors shall be named as additional insureds on the policy with coverage extending through the final completion date.
Proof of insurance.
Contractor shall provide certificates of insurance and required endorsements to Agency as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by Agency’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Agency for the contract period and any additional length of time required thereafter. Agency reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of coverage.
Contractor shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the Work hereunder by Contractor, their agents, representatives, employees, or subconsultants. Contractor must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims.
Agency and its officers, officials, employees, and agents shall continue as additional insureds under such policies.
Primary/noncontributing.
Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by Agency shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of Agency before the Agency’s own insurance or self-insurance shall be called upon to protect it as a named insured.
Products/completed operations coverage.
Products liability coverage shall extend for a minimum of three years (3) after project completion, and completed operations coverage for construction agreements shall extend for 10 years from the date of substantial completion of the project or the statute of repose, whichever is longer. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The Agency, its officials, officers, agents, and employees, shall be included as additional insureds under the Products and Completed Operations coverage.
Agency’s rights of enforcement.
In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, Agency has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by Agency will be promptly reimbursed by Contractor or Agency will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, Agency may cancel this Agreement.
Acceptable insurers.
All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers 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 Agency’s Risk Manager.
Waiver of subrogation.
All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Agency, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against Agency and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of contract provisions (non estoppel).
Contractor acknowledges and agrees that any actual or alleged failure on the part of the Agency to inform Contractor of non-compliance with any requirement imposes no additional obligations on the Agency nor does it waive any rights hereunder.
Requirements not limiting.
Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Agency.
Notice of cancellation.
Contractor agrees to oblige its insurance agent or broker and insurers to provide the Agency with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Contractor’s insurers are unwilling to provide such notice, then Contractor shall have the responsibility of notifying the Agency immediately in the event of Contractor’s failure to renew any of the required insurance coverages, or insurer’s cancellation or nonrenewal.
Additional insured status.
General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that Agency and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
Prohibition of undisclosed coverage limitations.
None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to Agency and approved of in writing.
Separation of insureds.
A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass through clause.
Contractor agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Contractor (hereinafter collectively “subcontractor”), provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Contractor’s subcontractor cannot comply with this requirement, which proof must be submitted to the Agency, Contractor shall be required to ensure that its subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with subcontractor’s scope of work and services, with limits less than required of the Contractor, but in all other terms consistent with the Contractor’s requirements under this agreement. This provision does not relieve the Contractor of its contractual obligations under the agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Contractor with the ability to utilize a subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Contractor under this agreement given the limited scope of work or services provided by the subcontractor. Contractor agrees that upon request, all agreements with subcontractors, and others engaged in the project, will be submitted to Agency for review.
Agency’s right to revise requirements.
The Agency reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Contractor a ninety (90)-day advance written notice of such change. If such change results in substantial additional cost to the Contractor, the Agency and Contractor may renegotiate Contractor’s compensation.
Self-insured retentions.
Any self-insured retentions must be declared to and approved by Agency. Agency reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
Timely notice of claims.
Contractor shall give Agency prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional insurance.
Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work.
Indemnification
Indemnity. Contractor shall indemnify, defend with legal counsel approved by Agency, and hold harmless Agency, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorney’s fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Contractor’s negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in this agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the Agency. Should conflict of interest principles preclude a single attorney from representing both Agency and Contractor, or should Agency otherwise find Contractor’s attorney unacceptable, then Contractor shall reimburse the Agency its costs of defense, including without limitation reasonable attorney’s fees, expert fees and all other costs and fees of litigation. The Contractor shall promptly pay any final judgment rendered against the Agency (and its officers, officials, employees, and volunteers) with respect to claims determined by a trier of fact to have been the result of the Contractor’s negligent, reckless, or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of the Agreement.
Contractor obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of Agency under any provision of this agreement, Contractor shall not be required to indemnify and hold harmless Agency for liability attributable to the sole or active negligence of Agency, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where Agency is shown to have been actively negligent and where Agency’s active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of Agency.