HomeMy WebLinkAboutC2020-045 - Stabilizer Solutions, Inc. Contract No.2020-045
COOPERATIVE PURCHASING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
STABILIZER SOLUTIONS, INC.
THIS COOPERATIVE PURCHASING AGREEMENT(this"Agreement")is entered into
as of December 3, 2019, between the Town of Fountain Hills, an Arizona municipal corporation
(the"Town"), and Stabilizer Solutions, Inc., an Arizona corporation (the"Contractor").
RECITALS
A. After a competitive procurement process, the City of Phoenix (the "City") entered
into Contract No. 149767, dated May 2, 2019 (the "City Contract"), for the Contractor to provide
necessary staff, services and associated resources to provide the City with stabilizer "Pro Red"
infield mix and preparation, blending, placement/compaction, and related services. A copy of the
City Contract is attached hereto as Exhibit A and incorporated herein by reference, to the extent
not inconsistent with this Agreement.
B. The Town is permitted, pursuant to Section 3-3-27 of the Town Code, to make
purchases under the City Contract, at its discretion and with the agreement of the awarded
Contractor, and the City Contract permits its cooperative use by other public entities, including the
Town.
C. The Town and the Contractor desire to enter into this Agreement for the purpose of
(i) acknowledging their cooperative contractual relationship under the City Contract and this
Agreement, (ii) establishing the terms and conditions by which the Contractor may provide
necessary staff, services and associated resources to provide the City with installation of a new
parking lot at Four Peaks Park and annual maintenance and repairs of fields at parks and parking
lots (the "Materials and Services"), and (iii) setting the maximum aggregate amount to be
expended pursuant to this Agreement related to the Materials and Services.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which
are incorporated herein by reference, the following mutual covenants and conditions, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Town and the Contractor hereby agree as follows:
1. Term of Agreement. This Agreement shall be effective as of the date first set forth
above and shall remain in full force and effect until December 2, 2020 (the "Initial Term"),unless
terminated as otherwise provided in this Agreement or the City Contract. After the expiration of
the Initial Term, this Agreement may be renewed for up to four successive one-year terms (each,
a"Renewal Term") if: (i) it is deemed in the best interests of the Town, subject to availability and
appropriation of funds for renewal in each subsequent year, (ii) the term of the City Contract has
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not expired or has been extended, (iii) at least 30 days prior to the end of the then-current term of
this Agreement, the Contractor requests, in writing, to extend this Agreement for an additional
one-year term and (iv) the Town approves the additional one-year term in writing (including any
price adjustments approved as part of the City Contract), as evidenced by the Town Manager's
signature thereon, which approval may be withheld by the Town for any reason. The Contractor's
failure to seek a renewal of this Agreement shall cause this Agreement to terminate at the end of
the then-current term of this Agreement; provided, however, that the Town may, at its discretion
and with the agreement of the Contractor, elect to waive this requirement and renew this
Agreement. The Initial Term and any Renewal Term(s) are collectively referred to herein as the
"Term."Upon renewal, the terms and conditions of this Agreement shall remain in full force and
effect.
2. Scope of Work. This is an indefinite quantity and indefinite delivery Agreement
for Materials and Services under the terms and conditions of the City Contract. The Town does
not guarantee any minimum or maximum number of purchases will be made pursuant to this
Agreement. Purchases will be made only when the Town identifies a need and proper
authorization and documentation have been approved. For purchase(s)determined by the Town to
be appropriate for this Agreement,the Contractor shall provide the specific Materials and Services
to the Town in such quantities and configurations agreed upon between the parties, in a written
invoice, quote, materials order or other form of written agreement describing the materials to be
delivered (each, a "Materials Order"). Each Materials Order shall (i) contain a reference to this
Agreement and the City Contract and (ii) be attached hereto as Exhibit B and incorporated herein
by reference. A Materials Order submitted without referencing this Agreement and the City
Contract will be subject to rejection. Contractor acknowledges and agrees that a Materials Order
containing unauthorized exceptions, conditions, limitations, or provisions in conflict with the
terms of this Agreement, other than Town's project-specific requirements, is hereby expressly
declared void and shall be of no force and effect.
2.1 Inspection; Acceptance. All Materials and Services are subject to final
inspection and acceptance by the Town. Materials failing to conform to the requirements of this
Agreement and/or the City Contract will be held at Contractor's risk and may be returned to the
Contractor. If so returned, all costs are the responsibility of the Contractor. Upon discovery of non-
conforming Materials or Services, the Town may elect to do any or all of the following by written
notice to the Contractor: (i) waive the non-conformance; (ii) stop the work immediately; or (iii)
bring Materials or Services into compliance and withhold the cost of same from any payments due
to the Contractor.
2.2 Cancellation. The Town reserves the right to cancel any work order within
a reasonable time after issuance. Should a work order be canceled, the Town agrees to reimburse
the Contractor, but only for actual and documentable costs incurred by the Contractor due to and
after issuance of the work order. The Town will not reimburse the Contractor for any costs incurred
after receipt of the Town notice of cancellation, or for lost profits, shipment of product prior to
issuance of a work order or for anything not expressly permitted pursuant to this Agreement.
3. Compensation. The Town shall pay Contractor an amount not to exceed
$200,000.00 for the Materials and Services at the rates set forth in the City Contract.
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4. Payments. The Town shall pay the Contractor monthly,based upon acceptance and
delivery of Materials and/or Services performed and completed to date, and upon submission and
approval of invoices. Each invoice shall (i) contain a reference to this Agreement and the City
Contract and (ii) document and itemize all work completed to date. The invoice statement shall
include a record of materials delivered, time expended, and work performed in sufficient detail to
justify payment. Additionally,invoices submitted without referencing this Agreement and the City
Contract will be subject to rejection and may be returned.
5. Records and Audit Rights. To ensure that the Contractor and its subcontractors are
complying with the warranty under Section 6 below, Contractor's and its subcontractors' books,
records, correspondence, accounting procedures and practices, and any other supporting evidence
relating to this Agreement, including the papers of any Contractor and its subcontractors'
employees who perform any work or services pursuant to this Agreement (all of the foregoing
hereinafter referred to as "Records"), shall be open to inspection and subject to audit and/or
reproduction during normal working hours by the Town, to the extent necessary to adequately
permit evaluation of the Contractor's and its subcontractors' compliance with the Arizona
employer sanctions laws referenced in Section 6 below. To the extent necessary for the Town to
audit Records as set forth in this Section,Contractor and its subcontractors hereby waive any rights
to keep such Records confidential. For the purpose of evaluating or verifying such actual or
claimed costs or units expended, the Town shall have access to said Records, even if located at its
subcontractors' facilities, from the effective date of this Agreement for the duration of the work
and until three years after the date of final payment by the Town to Contractor pursuant to this
Agreement. Contractor and its subcontractors shall provide the Town with adequate and
appropriate workspace so that the Town can conduct audits in compliance with the provisions of
this Section. The Town shall give Contractor or its subcontractors reasonable advance notice of
intended audits. Contractor shall require its subcontractors to comply with the provisions of this
Section by insertion of the requirements hereof in any subcontract pursuant to this Agreement.
6. E-verify Requirements. To the extent applicable under ARIz. REv. STAT. § 41-
4401, the Contractor and its subcontractors warrant compliance with all federal immigration laws
and regulations that relate to their employees and their compliance with the E-verify requirements
under ARIz. REv. STAT. § 23-214(A). Contractor's or its subcontractors' failure to comply with
such warranty shall be deemed a material breach of this Agreement and may result in the
termination of this Agreement by the Town.
7. Israel. Contractor certifies that it is not currently engaged in and agrees for the
duration of this Agreement that it will not engage in a "boycott," as that term is defined in ARIz.
REV. STAT. § 35-393, of Israel.
8. Conflict of Interest. This Agreement may be canceled by the Town pursuant to
ARIZ.REV.STAT. § 38-511.
9. Applicable Law;Venue. This Agreement shall be governed by the laws of the State
of Arizona and a suit pertaining to this Agreement may be brought only in courts in Maricopa
County,Arizona.
10. Agreement Subject to Appropriation. The Town is obligated only to pay its
obligations set forth in this Agreement as may lawfully be made from funds appropriated and
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budgeted for that purpose during the Town's then current fiscal year. The Town's obligations
under this Agreement are current expenses subject to the "budget law" and the unfettered
legislative discretion of the Town concerning budgeted purposes and appropriation of funds.
Should the Town elect not to appropriate and budget funds to pay its Agreement obligations, this
Agreement shall be deemed terminated at the end of the then-current fiscal year term for which
such funds were appropriated and budgeted for such purpose and the Town shall be relieved of
any subsequent obligation under this Agreement. The parties agree that the Town has no obligation
or duty of good faith to budget or appropriate the payment of the Town's obligations set forth in
this Agreement in any budget in any fiscal year other than the fiscal year in which this Agreement
is executed and delivered. The Town shall be the sole judge and authority in determining the
availability of funds for its obligations under this Agreement. The Town shall keep Contractor
informed as to the availability of funds for this Agreement. The obligation of the Town to make
any payment pursuant to this Agreement is not a general obligation or indebtedness of the Town.
Contractor hereby waives any and all rights to bring any claim against the Town from or relating
in any way to the Town's termination of this Agreement pursuant to this section.
11. Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among
the terms of this Agreement, the City Contract, and invoices, the documents shall govern in the
order listed herein. Notwithstanding the foregoing, and in conformity with Section 2 above,
unauthorized exceptions, conditions, limitations or provisions in conflict with the terms of this
Agreement or the City Contract (collectively, the "Unauthorized Conditions"), other than the
Town's project-specific requirements, are expressly declared void and shall be of no force and
effect. Acceptance by the Town of any work order or invoice containing any such Unauthorized
Conditions or failure to demand full compliance with the terms and conditions set forth in this
Agreement or under the City Contract shall not alter such terms and conditions or relieve
Contractor from, nor be construed or deemed a waiver of, its requirements and obligations in the
performance of this Agreement.
12. Rights and Privileges. To the extent provided under the City Contract, the Town
shall be afforded all of the rights and privileges afforded to the City and shall be the "City" (as
defined in the City Contract) for the purposes of the portions of the City Contract that are
incorporated herein by reference.
13. Indemnification; Insurance. In addition to and in no way limiting the provisions set
forth in Section 12 above, the Town shall be afforded all of the insurance coverage and
indemnifications afforded to the City to the extent provided under the City Contract, and such
insurance coverage and indemnifications shall inure and apply with equal effect to the Town under
this Agreement including, but not limited to, the Contractor's obligation to provide the
indemnification and insurance. In any event, the Contractor shall indemnify, defend and hold
harmless the Town and each council member, officer, employee or agent thereof(the Town and
any such person being herein called an "Indemnified Party"), for, from and against any and all
losses, claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable
attorneys' fees, court costs and the costs of appellate proceedings)to which any such Indemnified
Party may become subject, under any theory of liability whatsoever ("Claims"), insofar as such
Claims (or actions in respect thereof) relate to, arise out of, or are caused by or based upon the
negligent acts, intentional misconduct, errors, mistakes or omissions, in connection with the work
or services of the Contractor, its officers, employees, agents, or any tier of subcontractor in the
performance of this Agreement.
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14. Notices and Requests. Any notice or other communication required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have been duly given if
(i) delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail,registered
or certified, return receipt requested, to the address set forth below or (iii) given to a recognized
and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 E. Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Grady E. Miller, Town Manager
With copy to: Pierce Coleman PLLC
4711 E. Falcon Dr., Ste. 111
Mesa, Arizona 85215
Attn: Aaron D. Arnson, Town Attorney
If to Contractor: Stabilizer Solutions, Inc.
33 S. 28th St.
Phoenix, Arizona 85034
Attn: Jonathan Hubbs
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received: (i) when delivered to the party, (ii) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (iii) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If
a copy of a notice is also given to a party's counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a party shall mean and
refer to the date on which the party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first set forth above.
"Town"
TOWN OF FOUNTAIN HILLS,
an Arizona Municipal Corporation
liiGrady E. Mi , i s n Manager
ATTEST:
lizabeth urke, Town Cl
APPROVED AS TO FORM:
Aaron D. rnson, Town Attorney
(ACKNOWLEDGEMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On trr 5 ,2019,before me personally appeared Grady E.Miller,the Town
Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, whose identity
was proven to me on the basis of satisfactory evidence to be the person who he claims to be, and
acknowledged that he signed the above document, on behalf of the Town of Fountain Hills.
lit
JAMIE S Mary Public-State of Ar
►=o iiAARiCOPACOUNTY
Commission#t 550103 y
xGires July 11.2022
(Affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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"Contractor"
STABILIZER SOLUTIONS, INC.,
an Arizona corporation r`. ;, 201J
By(—
Name: Cti' / 5
Its: ().--vz_s
(ACKNOWLEDGEMENT)
STATE OF Arizona )
) ss.
COUNTY OF Maricopa )
On Novle.mbex 12. , 2019, before me personally appeared Join 14U.bb5 , the
Qrpgjden-t- of STABILIZER SOLUTIONS, INC., an Arizona corporation, whose identity
was proven to me on the basis of satisfactory evidence to be the person who he or she claims to be,
and acknowledged that he or she signed the above document, on behalf of the corporation.
TAMMIE ANTRIM
Notary Public,State of Arizona ' At?2,Mt jfd-AtAl/t
kj\l
Marpaounty Commisscoion# 565929Notary Public
My Commission Expires
June 30, 2023
(Affix notary seal here)
4840-6310-0076,v. 1
7
it
I
EXHIBIT A
TO
COOPERATIVE PURCHASING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
STABILIZER SOLUTIONS, INC.
[City Contract]
See following pages.
"Contractor"
STABILIZER SOLUTIONS, INC.,
an Arizona corporation
By --
Name: /4-0 365
Its: 0---vz.,,5
Le)
(ACKNOWLEDGEMENT)
STATE OF Arizona )
) ss.
COUNTY OF MariCppa )
Ori November j 2, , 2019, before me personally appeared Jor 1` L h5 , the
Prezi r i- of STABILIZER SOLUTIONS, INC., an Arizona corporation, whose identity
was proven to me on the basis of satisfactory evidence to be the person who he or she claims to be,
and acknowledged that he or she signed the above document, on behalf of the corporation.
TAMMIE ANTRIM `
;;`:, Notary Public,State of Arizona FC):, Maricopa County
Commission# 665929 My Commission Expires Notary Public
June 30, 2023
(Affix notary seal here)
4840-6310-0076,v. 1
7
EXHIBIT B
TO
COOPERATIVE PURCHASING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
STABILIZER SOLUTIONS, INC.
[Materials Order]
See following pages (to be attached subsequent to execution).
SOLE SOURCE JUSTIFICATION FORM (FHPP11.1B)
This form must be provided with all sole source procurement requests. Please provide detailed information
on all questions.
Product or service requested: Rehabilitation of Town Parks
Vendor: Stabilizer Solutions, Inc, 33 South 28th St, Phoenix, AZ 85034
1. How was it determined that this commodity or service is a sole source? Provide all documentation
relevant to method for sole source determination.
• No Responsive Proposals to:
o Competitive Solicitation Process
o Advertisement of Town Need in the Town Newspaper of Record
o Formal Request for Information
• Other (Please provide information below describing the method used) X
Stabilizer Solutions reconstructed the GEP ballfields from the 2018 Monsoon and is the only Vendor
that provides the product needed on the parks infields and parking lot material.
2. Why is no other commodity or service suitable to meet your requirements? They are the Sole Proprietor
of these products.
• Not compatible with existing equipment. Please provide additional details.
In addition to the only Vendor that provides the product, they have proven its quality as well.
• Request is for testing purposes. Please describe the basis for the tests and benefit to the Town
expected. (Sole source requests for testing purposes do not substantiate a sole source for additional
requirements.)
N/A
• Unique knowledge or skills. Please provide specific information that describes why this knowledge or
skill is considered unique.
They are the only Vendor that supplies the specific product needed in order to have quality results.
• To prevent voiding a warranty or guarantee. What is the duration of the warranty or guarantee and
what terms require approval of this sole source request?
3. Does this request represent a mandate from the state or federal government?
Yes: No: X
If yes, please describe the mandate.
2054355.1/FHPP11.1B 1 of 2
4. What are the consequences of not approving the sole source request?
A non-approval would result in sending out for bids for product that would not match the color or meet
the quality and durability proven by the Vendor.
5. What negative consequences will result by formally bidding this requirement?
The negative consequence would be that no other vendor has a product that would match the existing
product that was used for the infields at all parks.
6. What is the estimated cost of this request? $200,000 over a 5 year period.
7. How was the cost determined to be fair and reasonable? The cost has been compared to pricing from
other municipal contracts.
8. Is this request a one-time requirement or is the requirement ongoing into future years?
One Time: Ongoing: X
If ongoing, are there a definite number of ongoing years? 5 years.
9. What other costs will be incurred with this request? Please take into consideration annual maintenance,
upgrades in future years, and other request-specific factors.
None.
10. Was this request budgeted for in the current or next fiscal year's budget?
Current: X Next
11. Will approval of this request increase future budget requests from your department?
Yes: No: X
If yes, what is the estimated amount of the increase?
What other methods of fulfilling this requirement have been explored? No other methods have been
explored due to the material is only provided by this Vendor and has been proven a quality product.
Requesting Employee Date: (( / ci
Department Head Approval Date: (( 17) (7
Finance Department Approval -pj2 Date: I I •`l. ici
Town Manager Approval Date: 1 I" 7 ' 1/
2054355.1/FHPP11.1B 2 of 2