HomeMy WebLinkAboutresolution.council.037-14 RESOLUTION #37
(Series of 2014)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND TERRAPLAS USA, INC. AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a contract for
outdoor flooring for special events, between the City of Aspen and Terraplas USA,
Inc., a true and accurate copy of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for outdoor flooring for special events, between the City of Aspen and Terraplas
USA, Inc., a copy of which is annexed hereto and incorporated herein, and does
hereby authorize the City Manager to execute said agreement on behalf of the City
of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 24th day of March 2014.
teven Skadron, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held, March 24, 2014.
Kat ' n S. Koch, City Clerk
The City of Aspen
CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT
City of Aspen Project No.: 2013-140.
AGREEMENT made as of 24"' day of March, in the year 2014.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Parks
130 South Galena Street Total: $337,828.00
Aspen, Colorado 81611
Phone: (970) 920-5055
If this Agreement requires the City to pay
And the Vendor: an amount of money in excess of
$25,000.00 it shall not be deemed valid
Terraplas USA, Inc. until it has been approved by the City
c/o J. Michael Beane Council of the City of Aspen.
1104 State Highway 31 W City Council Approval:
Kilgore, Texas 75662
Phone: 903-983-2111 Date: March 24, 2014
Resolution No.: . ��
Summary Description of Items to be Purchased:
Outdoor flooring for use during special events.
Exhibits appended and made a part of this Agreement:
Exhibit A: List of supplies, equipment, or materials to be purchased.
Exhibit B: Terraplas USA Associates Program Agreement
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The City and Vendor agree as set forth below.
1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A
appended hereto and by this reference incorporated herein as if fully set forth here for the sum
set forth hereinabove.
2. Delivery. (FOB )
[Delivery Address]
3. Contract Documents. This Agreement shall include all Contract Documents as the
same are listed in the Invitation to Bid and said Contract Document are hereby made a part of
this Agreement as if fully set out at length herein.
4. Warranties. 6-YEk126 POP T Duct S6Fo- ,L A",c aNE—` CA-'r r�OR
1-oe,o4, eAm4, trUld�ClCc:jiOh� �iNS
5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure
to the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
6. Third Parties. This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or parties, except to parties to whom Vendor or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Vendor
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
7. Waivers. No waiver of default by either party of any of the terms, covenants or
conditions hereof to be performed, kept and observed by the other party shall be construed, or
operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to
be exclusively in the courts of Pitkin County, Colorado.
9. Attorney's Fees. In the event that legal action is necessary to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney's fees.
10. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
2U -41*1
IL Certification Re ag rding Debarment, Suspension, Ineligibility, and Voluntary
Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Vendor or any lower tier participant was unable to certify to the statement, an explanation
was attached to the Bid and was determined by the City to be satisfactory to the City.
12. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(A)Vendor warrants that no person or selling agency has been employed or retained to solicit
or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Vendor for the purpose of
securing business.
(B)Vendor agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(C)Vendor represents that no official, officer, employee or representative of the City during
the term of this Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of this Agreement.
(D)In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Vendor; and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of City. The sale contemplated by this
Agreement may be canceled by the City prior to acceptance by the City whenever for any reason
and in its sole discretion the City shall determine that such cancellation is in its best interests and
convenience.
14. Fund Availability. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise
made available. If this Agreement contemplates the City using state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
15. City Council Approval. If this Agreement requires the City to pay an amount of
money in excess of$25,000.00 it shall not be deemed valid until it has been approved by the City
Council of the City of Aspen.
16. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap,
or religion shall be made in the employment of persons to perform under this Agreement.
Vendor agrees to meet all of the requirements of City's municipal code, section 13-98, pertaining
to nondiscrimination in employment. Vendor further agrees to comply with the letter and the
spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and
federal laws respecting discrimination and unfair employment practices.
17. Integration and Modification. This written Agreement along with all Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a council
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement
to be duly executed the day and year first herein written in three (3) copies, all of which, to all
intents and purposes, shall be considered as the original.
[SIGNATURES ON FOLLOWING PAGE]
FOR THE CITY OF ASPEN:
ATTEST: By:
City Manager
City Clerk —
VENDOR:
Terraplas USA,Inc.
By:
Title
Exhibit A City of Aspen Supply Procurement Agreement
Terratile 32,000 sf at $7.75 per square foot $248,000
Terratrak Plus 2,000 sf at$17.50 per square foot $ 35,000
Ramp System (Terratile Edge pieces) 270 at$55 each $ 14,850
Transition from Terratile to Terratrack 120 at$105 each $ 12,600
Male Terratrak Plus Ramps 10 at$80 each $ 800
Female Terratrak Plus Ramps 10 at $80 each $ 800
Customs/Duties $ 6,278
Transportation (3 containers) $ 19,500
Total $337,828
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Exhibit B City of Aspen Supply Procurement Agreement
Terraplas USA Associates Program
January 1,2014
The Terraplas Products Purchasers,"The Buyer",will have a position in the Terraplas0 Turf Protection rental
network as an,"Associate"allowing The Buyer to make money by renting their TerraplasO Products through
the Terraplas USA Rental Network, Terraplas USA is the"The Seller"
It is understood by everyone in the event management business that any Terraplas0 Product Purchaser,buys
the Product with the purpose of protecting the turf at their own venue. The Associate seek a return on their
investment through the traditional avenues of income derived from some or all of the following: ticket sales,
concessions, and parking, merchandise sales, venue rental, etc. Income from these and other avenues are
generated at the special events where TerraplasO Products are used to protect the Buyer's turf.
If Seller and the Buyer agree to rent the Tiles outside the venue, the Tile rental income derived from the
Tile rentals will be divided as indicated in the Distribution of Rental Income. The Seller will conduct all
marketing of the Tile rentals from its separate income.
If the Buyer hosts an event that requires the rental of additional turf protection,the rental price paid by the
Buyer for such additional turf protection shall be the lowest allowed by the Terraplas Rental network and
shall be a special price for Associates only. There is no guarantee of the number of times per year that a
particular cover system can be rented or the number of sq ft per that a client may request for an individual
rental event.
Terraplas Products are designed to last. The system should be expected to last 10 years at a minimum
with the proper care and maintenance. The first Terraplas system manufactured in 1991 for Wembley
Stadium is still in use as a rental system. Wembley purchased a new Terraflor system for its use as a
cover system when it reopened after renovations in 2006 and sold the original Terraplas to a rental
company. In the United States,the first Terraplas systems purchased by Gillette Stadium in 1994 and
SMG for Chicago's Soldier Field in 1995 are still use.
Acceptance into the Associates Program through the purchase of Terraplas0 Products will allow the
Associate to access the rental market developed since 1995 by J. Michael Beane and his related companies.
Access to the Associates Program is governed by the guidelines outlined in the in this document. Associates
will have the opportunity to gain additional income through the rental of their TerraplasO Products outside
their own venue.
T E RRAPT.�AC
USA
1 � Pa �
Terraplas USA Associates Program -
Operational Guidelines
1. The Associate / TUSA relationship
a. All Terraplas Product Buyers are automatically enrolled in the Associates Rental
Program.
b. The Associates Rental Program is included as a separate section in the Sale
Agreement except when a state or local taxing authority issues a Purchase Order in
lieu of a typical TUSA Sales Agreement.
c. When the purchase is via a Purchase Order format from a governmental agency,the
Associates Rental Programs is not a part of the Sales Agreement.
d. Terraplas USA,by mutual agreement with the Buyer, will rent the Buyer's cover
system at the times it is not in use by the Buyer and such rentals are managed as per
the Guidelines established in the Associates Agreement.
e. This arrangement is consistent with all Terraplas product sales since 1995.
2. Associate accounting for income generation
a. Terraplas USA does not provide tax accounting advice; however, TUSA will pass
along information that has been provided to our company by other Terraplas product
owners.
i. Many Terraplas Product owners will charge the "event" a field protection
cost as a part of the stadium or venue rental and that income is accounted for
in a separate "field protection account"
ii. When the cover system is rented by Terraplas USA and the payment is
received by the owner, that amount is credited to the "field protection
account".
iii. This allows for the income vs. cost to be calculated so the "real value of the
cover system" can be accurately estimated.
iv. In addition,the Field Protection Account is used by many Terraplas Product
Owners to fund the refurbish the tiles as needed or purchase new tiles/
equipment.
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3. Terraplas USA Provides Turn-Key Services
a. Marketing- A Complete Marketing Plan is in place and the program includes, but is
not limited to:
i. Emails
ii. Mailings
iii. Conventions
iv. Industry Trade Shows
V. MLB /NFL Turf Managers Symposiums
vi. Personal Sales calls
vii. Referrals from Rental Clients since 1994
viii. Potential Client contacting by marketing partner Covermaster®
b. TUSA Issues Contract to the Rental Client including:
i. Tile rental sq footages
ii. Transport information for pickup and delivery
iii. Labor requirements
iv. Site Management to be provided by TUSA
V. Insurance
1. The Client is named as an additional insured on the TUSA Liability
Policy.
2. All Terraplas Product are covered for Damage/Replacement up to
$750,000 when in the care, custody and control of TUSA
vi. Taxes are paid in each State by TUSA as appropriate.
vii. TUSA is registration for business in each state where it conducts business.
viii. Cleaning of the Tiles after each rental use.
ix. Replacement of any broken/damaged tiles by TUSA.
4. Working Relationship between Terraplas USA and the Associate.
a. TUSA agrees to:
i. Provide an Associate's Rental Confirmation Form for each rental.
1. The Associate counter signs the form and returns the completed form to
the TUSA to confirm the availability of the product and the arrangements
necessary of the rental to be completed.
2. The Associates Rental Agreement in on page 7 of this Agreement.
ii. Name the Buyer as an additional insured on the TUSA Liability policy
1. Coverage is $2,000,000 aggregate and $5,000,000 umbrella
2. Certificate of Insurance"COI" is issued to the Buyer.
iii. Cover the Buyer's Terraplas Product under the TUSA policy for up to$750,000
replacement cost while under the care and control of TUSA
iv. Pay the Associate $50.00 per truck to load/ unload transport trucks with their
own forklift and driver.
V. Arrange,as necessary,for the Associate to clean the product upon return from a
rental and paying the Associate the sum of$.05 per sq ft for that service.
vi. Pay, on a quarterly basis,the income due the Associate from rentals as defined
in the Distribution of Rental Income.
b. The Associate agrees to:
i. respond promptly to all emails and phone calls by TUSA
ii. promptly sign and return all Associates Agreements issued by TUSA
iii. maintain the Terraplas0 Products owned by the Associate in proper working
order, keeping the Tiles clean, banded, stacked on appropriately sized pallets
complete with edge protectors and ready for rental.
iv. maintain the effective working condition of the Product including the
replacement of broken or unusable locking cams.
V. provide the TerraplasO rental network, on a quarterly basis, with the calendar
of confirmed and tentative uses of the Associate's Terraplas0 Products.
vi. an Associates Review
1. Each January, a member of the Terraplas0 Products rental network
management team will evaluate the work of the Associate in its relation
to its agreed to responsibilities. If the evaluation indicates there are
deficiencies in the performance during the previous year, the Associate
will be given specific, written remedies designed to correct the
deficiencies.
2. Such deficiencies are to be corrected by the Associate so the Associate
can meet its requirements as a member of the Program. The Associate's
TerraplasO Products will not be included in the Associates rental
program if the identified deficiencies are not corrected.
3. Examples of remedies may include but are not limited to:
a. repairing any broken cams,
b. replacing any missing feet,
c. cleaning the tiles between uses so they are clean and ready for
rental to any potential rental client.
d. palletizing and banding the tiles with edge protectors in place.
VCq 114
Terraplas USA Associates Program
Rental Income Distribution
Distribution of Rental Income
December 13, 2013
Location of Rental Event and Split of Tile Rental
The level of rental services provided
Buyer Seller' Agent or
its designated
rental company/
One: Events at Buyer's Venue or at an event fully managed and 100% 0%unless
contracted by the Associate— contracted to work
Buyer provides all Rental Services. The Buyer receives 100% for the Buyer
of any rental charged for the system.
Two: Events outside of Buyer's Venue Terraplas USA Rentals $.14 per sq ft of Terraplas received
provides all rental services the tile rental the balance of the
income. rental contract
amount and pays
all cost associated
with the rental
5111 <iL c
SIGNATURES
The Parties confirm that they have read the Associates Agreement, all sections, and they are
authorized by their respective entities to sign this Agreement.
Terraplas USA,Inc.
Its: 'GAD Date
Witness to signature
Date
Buyer
By:
Its: Date
Witness to signature
Date
Fax a signed copy to 903.983.2324 and mail original signed copy to
Terraplas USA
1104 W Hwy 31, Kilgore, TX 75662
6111 die
TERRAPLAS USA, INC .
jarotectifts your turf " were ®ur Own*
1104 West State Hwy 31 Kilgore,Texas 75662 USA
(903)983-2111 Fax: (903)983-2324 Mobile(214)704-1090
TerraplasUSA'cTerraplasUSA.com
www.TerraplasU S A.coni
Terraplas Products - Associates Program
Rental Confirmation Form
Terraplas USA, Inc. is anticipating renting your Turf Protection to a Rental Client. The following chart
outlines the important information regarding the rental requirements as understood by the staff of
Terraplas USA, Inc. at this time. Please sign, date and fax back this page verifying your turf protection is
available on the specified dates, that your turf protection, if available, will be clean, palletized, properly
banded with edge protectors on the Load Date and that the other items are acceptable to you.
Issued to: Location of event:
By: Date issued:
Date of Event Materials #Sq Ft Load Date Return Date Washing Associate's
arrangements Income
Associate Approval
Received by: Position
Approved by: Position
Faxed to Terraplas Marketing and Operations offices Date: Time:
Comments and Notes:
7 1 P a - c
Cost Recovery Model
Terraplas Product Rentals
Terraplas USA Associate Program
Thursday, March 03, 2011
There is no guarantee of the number of times per year that a particular cover system can be
rented or the number of sq ft per that a client may request for an individual rental. The numbers
below in the net income illustrations are based on the experience of Terraplas USA since 1994.
Terraplas Products are designed to last. With proper care and maintenance, the system should be
expected to last 10 years at a minimum. The first Terraplas system manufactured in 1991 for
Wembley Stadium is still in use as a rental system. The stadium purchased a new Terraflor system
for its use as a cover system when it reopened after renovations in 2006.
In the United States, the first Terraplas systems purchased by Gillette Stadium in 1994 and SMG
for Chicago's Soldier Field in 1995 are still use.
1. Associates Rental Program
a. Terraplas does not sell any of its turf protection systems in units of over 10,000 sq ft without
including the Buyer in the Associates Rental Program.
b. The Associates Rental Program is included as a separate section in the Sale Agreement.
c. Terraplas USA will rent the Buyer's cover system at the times it is not in use by the Buyer and such
rentals are managed as per the Guidelines established in the Associates Agreement.
d. This arrangement is consistent with all Terraplas product sales since 1995.
e. illustrations of net income to the Buyer resulting from outside rentals:
i. 20,000 sq ft=$2,800 (20,000 x$.14)
ii. 50,000 sq ft=$7,000 (50,000 x$.14)
iii. 80,000 sq ft=$11,200 (80,000 x$.14)
iv. 100,000sgft=$14,000 (100,000 x$.14)
V. If a total of 400,000 sq ft is rented in a single year,the return on investment for the Buyer
would be$56,000
vi. If a total of 400,000 sq ft was rented per year for a 10-year period,the return to the Buyer
would be$560,000.
2. Owner Accounting for income generation
a. Terraplas USA does not provide tax accounting advice; however, we will pass along information that
has been provided to our company by other Terraplas product owners.
i. Many Terraplas Product owners will charge the"event"a field protection cost as a part of
the stadium or venue rental.
ii. When the cover system is rented by Terraplas USA and the payment is received by the
owner,that amount is credited to the field protection purchase account.
iii. The income generated by the field protection is then credited to the field cover purchase
account as a payment against the original cost of the cover system. This allows for the
income vs. cost to be calculated so the"real value of the cover system"can be accurately
estimated.
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Terraplas USA Associates
Return on Investment ("ROI") A Review of Rental Savings by owning
Terraplas Products instead of renting
and Rental Income derived from Terraplas USA Associates Program
March 3, 2011 (Does not include income from the 2011 rental season)
Owner # of years Total %return on %return on ROI %of Notes:
in rental income original original original ROI does take into account the
program from investment investment investment savings on tile rental,transport,taxes
TUSA from by use of and supervision, which account for
rental TUSA their own approximately $60,000 per event for
program rental Terraplas a full field coverage of approximately
income Products at 80,000 sq ft.
(Cash $$) their own
venue Example Owner#6 has hosted 13 full
instead of field events so there is a savings of
renting. $780,000. That is 118%of what the
See Notes Terraplas Products cost Owner#6.
Has added $30,000 in additional
rental income in 2010.
1 15 $692,886 100% 409% 509% First major system to be rented.
2 9 $474,996 48% 55% 103% Low# of events in this stadium/high
# of rentals
3 9 $87,822 21% 400% 412% Indoor synthetic cover(only).
Limited rental market
4 9 $69,379 20% 163% 183% Only own 30,000 sq ft—remote
location
5 5 $95,587 5% 72% 77% 3 events in house per year/ limited
rental
6 4 $172,434 26% 118% 134% See Notes Above
7 3 $76,713 8% 100% 108% Double the in-stadium events of
others. (5 to 6 events per yr) Limited
rentals as a result of high in-stadium
use.
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Phone: q-10, -711-1--1 DATE: �G�6
RE: '-'7i�ggz- CSC; A 4r,K6,,q- CC:
Comments:
t
' TrRANSMISSION VERIFICATION REPORT
TIME 03/17/2014 07: 40
SER.# H3W462196
DATE,TIME 03/17 07:33 +
FAX NO./NAME 19709205128
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