10-045 Cupertino Cricket Academy, Construction and Maintenance of a Cricket Pitch at Library Field AGREEMENT BETWEEN THE CITY OF CUPERTINO AND CUPERTINO CRICKET
ACADEMY FOR CONSTRUCTION AND MAINTENANCE OF A CRICKET PITCH
THIS AGREEMENT, for reference dated April (7/ , 2010 is by and between CITY OF
CUPERTINO, a municipal corporation (hereinafter referred to as "City "), and
California Cricket Academy, a California non - profit association whose address is 10397 Bret
Avenue, Cupertino CA hereinafter called the Contractor, and is made with reference to the
following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being conducted
under the Constitution and the statutes of the State of California and the Cupertino Municipal
Code.
B. City and Contractor desire to enter into an agreement for
the removal of current cricket pitch and construction and maintenance of a new Cricket Pitch at
Library Field (insert address), in accordance with the International Cricket Council
specifications. (Exhibit A)
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM:
The Contractor shall begin work within thirty (30) working days after receiving notice
from the Director of Parks and Recreation to commence the work, and shall diligently prosecute
the work to completion before the expiration of ninety (30) consecutive working days from the
date of receipt of notice to begin work.
2. SERVICES TO BE PERFORMED:
Contractor agrees, at its own cost and expense, to furnish all labor, tools, equipment,
materials, except as otherwise specified, and to do all work strictly in accordance with the
International Cricket Council Specifications for construction of a Cricket Pitch, which
Specifications are hereby referred to and expressly made a part hereof with the same force and
effect as if the same were fully incorporated herein. See attached Exhibit A. Said work must be
reviewed and approved by City prior to commencement of work. City agrees, at an expense of
up to five - thousand dollars ($5,000) per year, to maintain the Cricket Pitch in accordance with
International Cricket Council standards, provided that these standards do not conflict with other
Library Field use. In the event maintenance cDsts of the Cricket Pitch exceed five - thousand
dollars ($5,000) annually, City and Contractor agree to discuss alternatives for the additional
maintenance. Contractor acknowledges that additional licensing or insurance requirements may
be required in the event Contractor arranges for additional maintenance. All maintenance must
conform to City standards and specifications.
3. COMPENSATION TO CONTRACTOR:
Contractor shall be compensated for services performed pursuant to this Agreement in the
amount of an amount not to exceed Three Thousand dollars ($3,000.00), to be determined by
written invoice itemizing materials, labor, etc. to remove the existing pitch and to construct the
new pitch and agrees to pay the balance over the City contribution, to satisfactorily complete
construction from Contractor's own funds. City shall receive an accounting of all project costs.
Contractor shall submit invoices detailing prevailing labor and material expenses. Payment will
be made when the project is completed and accepted by City, upon submission of an invoice, in
the same manner that claims of a like character are paid by the City, with checks drawn on the
treasury of the City, to be taken from the general fund.
4. TIME IS OF THE ESSENCE:
'Contractor and City agree that time is o f the essence regarding the performance of this
Agreement.
It is further agreed that in case the work called for under the Agreement is not finished
and completed in all parts and requirements within the time specified, the City shall have the
right to extend the time for completion or not, as may seem best to serve the interest of the City;
and if it decides to extend the time limit for the completion of the Agreement, it shall further
have the right to charge the Contractor, his or her heirs, assigns, or sureties, and to deduct from
the final payment for the work, all or any part, as it may deem proper, of the actual costs and
overhead expenses which are directly chargeable to the Agreement, and which accrue during the
period of such extensions.
5. STANDARD OF CARE:
Contractor agrees to perform all services hereunder to industry standard and in a manner
commensurate with the prevailing standards in the San Francisco Bay Area. Additionally,
Contractor agrees to install safety fencing around the work site during the duration of the
construction project.
6. INDEPENDENT PARTIES:
City and Contractor intend that the relationship between them created by this Agreement
is that of employer- independent contractor. The manner and means of conducting the work are
under the control of Contractor. except to the extent they are limited by statute, rule or regulation
and the express terms of this Agreement. No civil service status or other right of employment
will be acquired by virtue of Contractor's services. None of the benefits provided by City to its
employees, including but not limited to unemployment insurance, workers' compensation plans,
vacation and sick leave are available from City to Contractor, its employees or agents.
Deductions shall not be made for any state or feieral taxes, FICA payments, PERS payments, or
other purposes normally associated with an employer- employee relationship from any fees due
Contractor. Payments of the above items, if required, are the responsibility of Contractor.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Contractor assumes any and all responsibility for verifying the identity and employment
authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA
or other federal, or state rules and regulations. Contractor shall indemnify and hold City
harmless from and against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Contractor.
8. NON - DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are unacceptable
employer /employee conduct, Contractor agrees that harassment or discrimination directed
toward a job applicant, a City employee, or a cit_zen by Contractor or Contractor's employee on
the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual orientation will not be tolerated. Contractor agrees that any
and all violations of this provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS:
Contractor shall indemnify, defend, and hold harmless City, its City Council, boards,
commissions, officials, employees, and volunteers ( "Indemnitees ") from and against any and all
loss, damages, liability, claims, suits, costs ar..d expenses whatsoever, including reasonable
attorneys' fees ( "Claims "), arising from or in any manner connected to Contractor's negligent act
or omission, whether alleged or actual, regarding; performance of services or work conducted or
performed pursuant to this Agreement. If Claims are filed against Indemnitees which allege
negligence on behalf of the Contractor. Contractor shall have no right of reimbursement against
Indemnitees for the costs of defense even if negligence is not found on the part of Contractor.
However, Contractor shall not be obligated to indemnify Indemnitees from Claims arising from
the sole or active negligence or willful misconduct of Indemnitees.
10. INSURANCE:
Prior to commencement of work, as described in this Agreement, Contractor or
Contractor's Designated Sub - Contractor, Rayit Construction, shall furnish City with certificates
showing the type, amount, class of operations covered, effective dates and dates of expiration of
insurance coverage in compliance with paragraphs 10A, B, C and D. Such certificates. which do
not limit Contractor's indemnification, shall also contain substantially the following statement:
"Should any of the above insurance covered by this certificate be canceled or coverage reduced
before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days'
advance written notice to the City of Cupertino by certified mail. "Attention: City Manager."
It is agreed that Contractor or designated sub - contractor shall maintain in force at all
times during the performance of this Agreement all appropriate coverage of insurance required
by this Agreement with an insurance company that is acceptable to City and licensed to do
insurance business in the State of California. Endorsements naming the City as additional
insured shall be submitted with the insurance certificates.
A. COVERAGE:
Contractor shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
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(2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $1,000,000
each occurrence
$2,000,000
aggregate - all other
Property Damage: $500,000 each occurrence
$1,000,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $2,000,000 will be considered equivalent to the required
minimum limits shown above .
(3) Automotive:
Comprehensive automobile liability coverage in the
following minimum limits:
Bodily injury: $500,000 each occurrence
Property Damage: $500,000 each occurrence
or
Combined Single Limit: $1,000,000 each occurrence
B. SUBROGATION WAIVER:
Contractor agrees that in the event of loss due to any of the perils for which it has agreed
to provide comprehensive general and automotive liability insurance, Contractor shall look
solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer
providing comprehensive general and automotive liability insurance to either Contractor or City
with respect to the services of Contractor herein, a waiver of any right to subrogation which any
such insurer of said Contractor may acquire against City by virtue of the payment of any loss
under such insurance.
C. FAILURE TO SECURE:
If Contractor at any time during the term hereof should fail to secure or maintain the
foregoing insurance, City shall be permitted to obtain such insurance in the Contractor's name or
as an agent of the Contractor and shall be compensated by the Contractor for the costs of the
insurance premiums at the maximum rate permitted by law and computed from the date written
notice is received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, hoards and commissions, officers, employees. and volunteers shall
be named as an additional insured under all insurance coverages, except worker' s compensation
insurance. The naming of an additional insured shall not affect any recovery to which such
additional insured would be entitled under this policy if not named as such additional insured.
An additional insured named herein shall not be held liable for any premium, deductible portion
of any loss, or expense of any nature on this policy or any extension thereof. Any other
insurance held by an additional insured shall nct be required to contribute anything toward any
loss or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient to protect
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Contractor. Contractor is advised to consult Con:ractor's insurance broker to determine adequate
coverage for Contractor.
11. BONDS:
Contractor shall furnish the following bonds from a bonding company acceptable to the
City Attorney:
A. Faithful Performance:
A bond in the amount of $10,000 guaranteeing the faithful performance of this
contract, and
B. Labor and Materials:
A bond for labor and materials in the amount of $10,000.
12. PROHIBITION AGAINST TRANSFERS:
Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any
interest therein, directly or indirectly, by operation of law or otherwise, without prior written
consent of City. Any attempt to do so withou: said consent shall be null and void, and any
assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such
attempted assignment, hypothecation or transfer. However, claims for money by Contractor
from City under this Agreement may be assigned to a bank, trust company or other financial
institution without prior written consent. Written notice of such assignment shall be promptly
furnished to City by Contractor.
The sale, assignment, transfer or other disposition of any of the issued and outstanding
capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate
member or cotenant, if Contractor is a partnership or joint venture or syndicate or cotenancy.
which shall result in changing the control of Contractor, shall be construed as an assignment of
this Agreement. Control means fifty percent (50%) or more of the voting power of the
corporation.
13. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only Rayit Construction, Inc. shall be
used in the performance of this Agreement.
Requests for additional subcontracting shall be submitted in writing, describing the scope
of work to be subcontracted and the name of the proposed subcontractor. Such request shall set
forth the total price or hourly rates used in pr. paring estimated costs for the subcontractor's
services. Approval of the subcontractor may, at the option of City, be issued in the form of a
Work Order.
In the event that Contractor employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required to carry
general and automobile liability insurance in reasonable conformity to the insurance carried by
Contractor. In addition, any work or services sThcontracted hereunder shall be subject to each
provision of this Agreement.
14. PERMITS AND LICENSES:
E.
Contractor, at its sole expense, shall obtain and maintain during the term of this
Agreement, all appropriate permits, certificates and licenses, including a City Business License,
that may be required in connection with the performance of services hereunder.
15. RECORDS:
Contractor shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts and other such information required by City that relate to the performance of
services under this Agreement.
Contractor shall maintain adequate records of services provided in sufficient detail to
permit an evaluation of services. All such records shall be maintained in accordance with
generally accepted accounting principles and shall be clearly identified and readily accessible.
Contractor shall provide free access to such books and records to the representatives of City or
its designees at all proper times, and gives City the right to examine and audit same, and to make
transcripts therefrom as necessary, and to allow inspection of all work, data, documents,
proceedings and activities related to this Agreement. Such records, together with supporting
documents, shall be kept separate from other documents and records and shall be maintained for
a period of three (3) years after receipt of final payment.
If supplemental examination or audit of the records is necessary due to concerns raised by
City's preliminary examination or audit of records, and the City's supplemental examination or
audit of the records discloses a failure to adhere to appropriate internal financial controls, or
other breach of contract or failure to act in gooc faith, then Contractor shall reimburse City for
all reasonable costs and expenses associated with the supplemental examination or audit.
16.. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement shall be
given in writing and conclusively shall be deerred served when delivered personally or on the
second business day after the deposit thereof in the United States Mail, postage prepaid.
registered or certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Contractor to City shall be addressed to
City at:
City of Cupertino
10300 Torre Avenue
Cupertino CA 95014
Attention: Mark Linder
All notices. demands. requests. or approvals from City to Contractor shall be addressed to
Contractor at:
_ Cupertino Cricket Academy
10307 Bret Avenue
_Cupertino, CA 95014
17. TERMINATION:
In the event Contractor fails or refuses to perform any of the provisions hereof at the time
and in the manner required hereunder, Contractor shall be deemed in default in the performance
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of this Agreement. If such default is not cured within a period of two (2) days after receipt by
Contractor from City of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, City may terminate the Agreement forthwith by giving to
the Contractor written notice thereof.
City shall have the option, at its sole discretion and without cause, of terminating this
Agreement by giving seven (7) days' prior written notice to Contractor as provided herein. Upon
termination of this Agreement, each party shall pay to the other party that portion of
compensation specified in this Agreement that is earned and unpaid prior to the effective date of
termination.
18. COMPLIANCES:
Contractor shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by City.
19. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of
California excepting any choice of law rules which may direct the application of laws of another
jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders,
rules, and regulations of the authorities having jurisdiction over this Agreement (or the
successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed
with the courts of the County of Santa Clara, State of California.
20. ADVERTISEMENT:
Contractor shall not post, exhibit, display or allow to be posted, exhibited, displayed any
signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services
performed under this Agreement unless prior wr tten approval has been secured from City to do
otherwise.
21. WAIVER:
A waiver by City of any breach of any term, covenant, or condition contained herein,
shall not be deemed to be a waiver of any subsequent breach of the same or any other term,
covenant, or condition contained herein, whether of the same or a different character.
22. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be
held to vary the provisions hereof. Any modific i tion of this Agreement will he effective only by
written execution signed by both City and Contractor.
23. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement shall be
deemed to be enacted herein, and the Agreement shall be read and enforced as though each were
included herein. If through mistake or otherwise, any such provision is not inserted or is not
correctly inserted, the Agreement shall be amended to make such insertion on application by
either party.
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24. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the Agreement
and in no way affect, limit or amplify the terms or provisions of this Agreement.
Contractor's attention is directed to laws, including but not limited to:
SAFETY REQUIREMENT
All work performed under this Agreement shall be performed in such a manner as to
provide safety to the public and to meet or exceed the safety standards outlined by CAL -OSHA.
City reserves the right to issue restraints or cease. and desist orders to Contractor when unsafe or
harmful acts or conditions are observed or reported relative to the performance of the work under
this Agreement.
Contractor shall maintain the work sites free of hazards to persons and/or property
resulting from his or her operations. Any hazardous condition noted by Contractor, which is not
a result of his or her operations, shall immediately be reported to City.
HOURS OF OPERATION
Contractor shall be allowed to operate only for the hours of 8 a.m. to 8 p.m Monday
through Friday unless prior written approval has been secured from City to do otherwise.
Contractor shall notify City at 777 -3269 at least two working days in advance of start of work.
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FIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF
CUPERTINO AND CUPERTINO CRICKET ACADEMY FOR CONSTRUCTION
AND MAINTENANCE OF A CRICKET PITCH
Whereas, the City and the California Cricket Academy entered into an agreement
concerning the construction and maintenance of a cricket pitch on April I y , 2010 and
now wishes to enter into this First Amendment, dated May ✓ t1 , 2010; and
Whereas, it has been difficult for the Contractor to obtain reasonably priced bonds
meeting the specifications set forth in Section 11 of the Agreement,
Now Therefore, the parties agree that in lieu of a faithful performance bond in the
amount of $10,000.00 and a labor and materials bond in the amount of $10,000.00, to the
following:
Contractor may provide City with a cash deposit in the amount of $10,000.00. City shall
keep the cash deposit in an interest bearing account until the project is completed and
accepted by the City. If the project is not completed, or if there are deficiencies in the
work performed, or a failure to compensate suppliers or laborers, the City may use the
funds on deposit to have the work corrected or completed or to pay suppliers or laborers
as necessary. Upon acceptance of the project, any remaining funds and any remaining
interest, will be returned to Contractor.
In all other respects, the original Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed
on the day and year first above written.
CONTRACTOR CITY OF CUPERTINO
California Cricket Academy A. Municipal Corporation
By ( )114,4,-/ /xt-- B y
Title t-2s1.) ---6 �, Title
Date b ;` %C) j/ Date , 1 0
AP ' O ED £ S TO FORM:
BY
City Attorney
ATTEST:
4 7714 5-640
City Clerk
Exhibit A
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IJevefo,vrr�et�� �,
Programme 1
Americas `
March 4, 2010
Hemant Buch
California Cricket Academy
RE: Cricket Field
To Whom It May Concern:
This letter is to confirm that, I viewed the field and the condition of the playing surface.
I would therefore, recommend the playing surface. be converted to a turf wicket. This would
allow cricket to be played as well as other sporting; events, without any obstacles, or change to the
conditions that may increase the risk of injury.
For this to take place the current clay laid on the p laying will need to be replaced, with fine
stones and top soil. The area will need some excaA ations to a depth of (1) foot, back filled with
the fine stones, (6) inches rammed and (6) inches (clay) top soil, which will be rolled to a finish
playing surface.
This would also give the playing area the standard requirements to meet the ICC pitch and
playing field standards.
Should you require any further information please do not hesitate to contact me at my Barbados
office telephone or email below.
Sincerely,
.
Wendell Coppin
Regional Development Officer.
International Cricket Council - Americas
ICC . l mericas - Regional Office
3 Concorde Gate, Suite 301, Toronto, Ontario, 143C 3N7, Canada
Mission Gap, Britton's Cross Road, St Michael, Barbados.
(T) 416 - 426 -7312 (F) 416 - 426 -7172 (11)246 2331021 (Email) ii 'endell.coppin(aiccamericas.ca
•
Exhibit A
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j', CALIFORNIA CRICKET ACADEMY
Cupertino Library Cricket Pitch
Hemant Buch -
Founder, California Cricket Academy
Western Region Chairman, USA Cricket Association
International Cricket Council Volunteer of the year Award Winner
c. (k )f., 4 ,
*
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CALIFORNIA CRICKET ACADEMY
S cope of work-Turf P
Soil Removal
1. Removal of underlying subsoil to produce the
formation surface -8 -10 inches below the finished
2. Trimming of exposed subsoil to produce a smooth
uniform surface free from ruts, humps and
depressions. Fall of the land needs to be
considered and retained if appropriate.
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* ,� CALIFORNIA CRICKET ACADEMY
c o e of iior
Drainage Layer
• A 4 inch firmed depth layer of approved 1 /4 inch
hard angular gravel or broken stone is placed over
the drained sub - formation surface.
• Rock bed must be covered with fabric before filling
with top soil.
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• Y � Scope of work CALIFORNIA CPICKET ACADEMY
Topsoil Replacement
• The stockpiled topsoil is replaced in layers, firming
each one before applying the next.
• The upper 4 or 6 inches (as appropriate) is left for
the placement of cricket loam.
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CALIFORNIA CRICKET ACADEMY
,,,......, Basi'c Pitch Design
Top Soil (Loam) Grass
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Drainage Rock Bed Fabric
Size - 72ft. Long by 9ft. Wide.
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i CALIFORNIA CRICKET ACADEMY
a era a and Cost
Material Required
Type Qty Unit Rate /per Total
Drainage Rocks 24 Ton
WI I
Plywood (temp only) 25 Sheets
Delivery 2 Soil & Rock
Delivery 1 Plywood
Plastic Sheeting 2 15x120
Total $2,942.50
Note — Plywood is temporary to protect wet outfield from equipment
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i CALIFORNIA CRICKET ACADEMY
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Equipment Required
Type Qty
Skip Loader 1
Sod Cutter 1
1 -2 Ton Roller 1
Vibration Plate 1
Outcome
PRNIPETMY
PfNte International Cricket Council (ICC
standard turf cricket itch where CCA youth
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cricket la ers can be groomed to re resent
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USA against other nations in national and
international events.
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