HomeMy WebLinkAboutC2021-048 - PlaySpace Designs
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Contract No. 2021-048
COOPERATIVE PURCHASING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
PLAYSPACE DESIGNS, INC.
THIS COOPERATIVE PURCHASING AGREEMENT (this “Agreement”) is entered into
as of May 18, 2021 between the Town of Fountain Hills, an Arizona municipal corporation (the
“Town”), and PlaySpace Designs, Inc., a Utah corporation (the “Contractor”) in a Joint Venture
with JP and Sons, Inc. and Shasta Industries, Inc.
RECITALS
A. After a competitive procurement process, Mohave Educational Services
Cooperative, Inc., a nonprofit political subdivision providing procurement services pursuant to
A.R.S. 11-592 and A.R.S. 41-2632, entered into Contract No. 19O-PSDJ-0221 (the “Mojave
Contract”) with Playspace Designs, Inc. in a joint venture with JP and Sons, Inc. and Shasta
Industries, Inc., dated February, 21, 2020 as amended (collectively, the “Mohave Contract”) for
the Contractor to provide playground, splash pad, outdoor fitness, and related equipment. A copy
of the Mohave Contract attached hereto as Exhibit A and is 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 and Section
10 of the Town Procurement Policy, to make purchases under the Mojave Contract, at its discretion
and with the agreement of the awarded Contractor, and the Mojave 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 Mojave Contract and this
Agreement, (ii) establishing the terms and conditions by which the Contractor may provide the
Town with playground, splash pad, outdoor fitness, and related equipment (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 May 18, 2022 (the “Initial Term”), unless
terminated as otherwise provided in this Agreement or the Mohave Contract. After the expiration
of the Initial Term, this Agreement may be renewed for up to two successive one-year terms (the
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“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 Mohave Contract
has 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 Mohave 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 Mohave Contract. The Town does
not guarantee that any minimum or maximum number of purchases will be made pursuant to this
Agreement. Purchases will only be made 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 Materials and Services to the Town in such
quantities and configurations agreed upon between the parties, in a written invoice, quote, work
order or other form of written agreement describing the work to be completed (each, a “Work
Order”). Each Work Order approved and accepted by the parties pursuant to this Agreement shall
(i) contain a reference to this Agreement and the Mohave Contract and (ii) be attached hereto as
Exhibit B and incorporated herein by reference. Work Orders submitted without referencing this
Agreement and the Mohave Contract will be subject to rejection.
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 Mohave 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 a
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 the 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 Work Orders within a
reasonable period of 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 Town notice of cancellation, or for lost profits, shipment of product
prior to issuance of Work Order or for anything not expressly permitted pursuant to this Agreement.
3. Compensation. The Town shall pay Contractor for the Term and for each an
aggregate amount not to exceed $1,200,000 for the Materials and Services at the rates reflected in
the Mohave 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 Mohave
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
Mohave 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, any Town-approved work orders, the Mohave 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 Mohave 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 Mohave 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 Mohave Contract, the Town
shall be afforded all of the rights and privileges afforded to Mohave and shall be “Mohave” (as
defined in the Mohave Contract) for the purposes of the portions of the Mohave 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 Mohave to the extent provided under the Mohave 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 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Grady E. Miller, Town Manager
With copy to: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Aaron D. Arnson, Town Attorney
If to Contractor: PlaySpace Designs, Inc.
5698 Shady Farms Ln.
Murray, Utah 84107
Attn: Rebecca Selph
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]
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
Grady E. Miller, Town Manager
ATTEST:
Elizabeth A. Klein, Town Clerk
APPROVED AS TO FORM:
Aaron D. Arnson, Town Attorney
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
Elizabeth A. Klein (Jun 14, 2021 10:50 PDT)
Elizabeth A. Klein
“Contractor”
____________________________________,
By:
Name:
Title:
PlaySpace Designs, Inc., a Utah corporation
Morgan Selph
President
EXHIBIT A
TO
COOPERATIVE SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
PLAYSPACE DESIGNS, INC.
[Mohave Contract]
See following pages.
EXHIBIT A
EXHIBIT B
TO
COOPERATIVE SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
PLAYSPACE DESIGNS, INC.
[Quote or Work Order]
See following pages.
jeff@goplayspace.com
(801) 274-0212
Jeff Anderson
Prepared By:
Expiration Date: 2021-06-30
Created Date: 2021-01-04
00000628
Quote Number:
QUOTE
5698 S Shady Farm Lane
Murray, Utah 84107
801-274-0212
Please inventory product within 5 days of receipt and notify us of any problems.
We are a supplier only. Customer is responsible for accuracy and conformity to plans and specifications.
Freight has been quoted for single delivery. If customer requires multiple deliveries, additional costs will apply.
Customer will be prepared to receive material upon delivery, which may include offloading equipment. If unable, customer is
responsible for additional storage and/or re-consignment fees.
NOTES
Accepted Date:Accepted By:
$330,155.06Grand Total
$27,815.26Sales/Use Tax
9.20%Tax Percentage
$302,339.80Total Cost
PROJECT NAME: Fountain Park Option 1
Location: Fountain Hills, Arizona
Payment Terms: 50% Deposit - Net 30
Qty Manufacturer Product Code Product Description Unit Price Extended Price
1 Kompan COR103901-1102 Agility Package 39,IG IG110, Blue $26,514.00 $26,514.00
1 Kompan PCT111201-0901 GIANT XL URBAN PLASTIC TUBE SLIDE $154,197.00 $154,197.00
1 Kompan BLX410602-3717 BLOQX 6, Lime Green,IG IG90 $31,581.00 $31,581.00
1 Kompan GXY960012-3417 SUPERNOVA - GREY/LIME GREEN INGROUND 60CM ASTM $7,137.00 $7,137.00
1 Kompan M21102-3417P AGE APPROPRIATE SIGN 5-12 YEARS INGR $0.00 $0.00
1 Kompan PSF - K Equipment Freight $17,560.80 $17,560.80
1 Installation Services Installation JP & Sons $65,350.00 $65,350.00
EXHIBIT B