HomeMy WebLinkAboutresolution.council.025-21RESOLUTION #025
(Series of 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND EARTHSCAPE PLAY 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 the
Herron Park Playground, between the City of Aspen and Earthscape Play 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
the Herron Park Playground, between the City of Aspen and EARTHCAPE PLAY
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 91h day of March 2021. '� j]'f�
1 ���"�/
Torre, Mayor
I, Nicole Henning, 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 9, 2021.
Nicole Henning, City Clerk
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CITY OF ASPEN STANDARD FORM OF AGREEMENT - xoro CITY OFASPEN
SUPPLY PROCUREMENT AND PROFESSIONAL SERVICES
City of Aspen Project No.: 50993
AGREEMENT made as of 9th day of March in the year 2021.
BETWEEN the City:
The City of Aspen
c/o Mike Tunte
130 South Galena Street
Aspen, Colorado 81611
Phone: (970) 920-5055
And the Professional:
Earthscape Play Inc.
c/o Nathaniel Grant
7215 Wellington Rd. 86
Wallenstein, ON NOB 2SO
Canada
Phone: (519) 804-6854
For the Following Project:
Herron Park Playground
Contract Amount:
Procurement: $250,000.00
Professional Services: Included
Total: $250,000.00
Exhibits appended and made a part of this Agreement:
If this Agreement requires the City to pay
an amount of money in excess of
$50,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Council Approval:
Date:
Resolution No.:
Exhibit A: Scope of Work, Not to Exceed Fee Schedule, Warranty.
The City and Professional agree as set forth below.
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SUPPLY PROCUREMENT
Purchase. Professional agrees to sell and City agrees to purchase the supplies, equipment, or
materials as described in Exhibit A, appended hereto and by this reference incorporated
herein, for the sum of set forth above.
2. Delivery. (DAP -Delivered at Place -substantial completion September 31. 2021).
3. Contract Documents. This Agreement shall include all Contract Documents as the same are
listed in the Invitation to Bid or Request for Proposals and said Contract Document are
hereby made a part of this Agreement as if fully set out at length herein.
4. Warranties. (See Exhibit A)
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 Professional respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor
the Professional shall have the right to assign, transfer or sublet its interest or obligations
hereunder without the written consent of the other party.
6. Scope of Work. Herron Park includes one of Aspen's premiere playgrounds. The goal of
this effort is to replace the existing play structures with a new play structure or play structures
that are supported by the community and fit within the aesthetic of the park. The site is along the
Rio Grande Riverfront and part of the larger park, which is characterized by a multi-tise lawn, a
river cobble beach area, and sunny and shaded areas.
The play structures shall provide play opportunities for both 2-5 and 5-12-year-old groups
Accessibility should be integrated as a value. Careful consideration for long term maintenance
must be given in the final design, while also considering the historical wood materials in existing
structure.
The Scope of Work includes design, fabrication and delivery of playground equipment. The
selected vendor will work with the City of Aspen Parks and Open Space staff to develop a
custom or a modified standard playground that reflects community desires and is reflective of
Aspen.
Professional shall perform in a competent and professional manner the Scope of Work as set forth at
Exhibit A attached hereto and by this reference incorporated herein.
7. Completion. Professional shall commence Work immediately upon receipt of a written
Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is
consistent with professional skill and care and the orderly progress of the Work in a timely manner.
The parties anticipate that all Work pursuant to this Agreement shall be completed no later than
September 31, 2021. Upon request of the City, Professional shall submit, for the City's approval, a
schedule for the performance of Professional's services which shall be adjusted as required as the
project proceeds, and which shall include allowances for periods of time required by the City's
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project engineer for review and approval of submissions and for approvals of authorities having
jurisdiction over the project. This schedule, when approved by the City, shall not, except for
reasonable cause, be exceeded by the Professional.
8. Payment. In consideration of the work performed, City shall pay Professional on a time and
expense basis for all work performed. The hourly rates for work performed by Professional shall not
exceed those hourly rates set forth at Exhibit A appended hereto. Except as otherwise mutually
agreed to by the parties the payments made to Professional shall not initially exceed the amount set
forth above. Professional shall submit, in timely fashion, invoices for work performed. The City
shall review such invoices and, if they are considered incorrect or untimely, the City shall review
the matter with Professional within ten days from receipt of the Professional's bill.
9. Non-Assi nag bility. Both parties recognize that this Agreement is one for personal services
and cannot be transferred, assigned, or sublet by either party without prior written consent of the
other. Sub -Contracting, if authorized, shall not relieve the Professional of any of the responsibilities
or obligations under this Agreement. Professional shall be and remain solely responsible to the City
for the acts, errors, omissions or neglect of any subcontractors' officers, agents and employees, each
of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the
extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any
sums due which may be due to any sub -contractor.
10. Termination of Procurement. 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.
11. Termination of Professional Services. The Professional or the City may terminate the
Professional Services component of this Agreement, without specifying the reason therefor, by
giving notice, in writing, addressed to the other party, specifying the effective date of the
termination. No fees shall be earned after the effective date of the termination. Upon any
termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models,
photographs, reports or other material prepared by the Professional pursuant to this Agreement shall
become the property of the City. Notwithstanding the above, Professional shall not be relieved of
any liability to the City for damages sustained by the City by virtue of any breach of this Agreement
by the Professional, and the City may withhold any payments to the Professional for the purposes of
set-off until such time as the exact amount of damages due the City from the Professional may be
determined.
12. Independent Contractor Status. It is expressly acknowledged and understood by the parties
that nothing contained in this agreement shall result in, or be construed as establishing an
employment relationship. Professional shall be, and shall perform as, an independent Contractor
who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent,
employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or
servant of the City. City is interested only in the results obtained under this contract. The manner
and means of conducting the work are under the sole control of Professional. None of the benefits
provided by City to its employees including, but not limited to, workers' compensation insurance
and unemployment insurance, are available from City to the employees, agents or servants of
Professional. Professional shall be solely and entirely responsible for its acts and for the acts of
Professional's agents, employees, servants and subcontractors during the performance of this
contract. Professional shall indemnify City against all liability and loss in connection with, and
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shall assume full responsibility for payment of all federal, state and local taxes or contributions
imposed or required under unemployment insurance, social security and income tax law, with
respect to Professional and/or Professional's employees engaged in the performance of the services
agreed to herein.
13. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers,
employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on
account of injury, loss, or damage, including without limitation claims arising from bodily injury,
personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind
whatsoever, which arise out of or are in any manner connected with this contract, to the extent and
for an amount represented by the degree or percentage such injury, loss, or damage is caused in
whole or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission,
error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of
the Professional, or any officer, employee, representative, or agent of the Professional or of any
subcontractor of the Professional, or which arises out of any workmen's compensation claim of any
employee of the Professional or of any employee of any subcontractor of the Professional. The
Professional agrees to investigate, handle, respond to, and to provide defense for and defend against,
any such liability, claims or demands at the sole expense of the Professional, or at the option of the
City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in
connection with, any such liability, claims, or demands. If it is determined by the final judgment of
a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by
the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse
the Professional for the portion of the judgment attributable to such act, omission, or other fault of
the City, its officers, or employees.
14. Professional's Insurance.
(a) Professional agrees to procure and maintain, at its own expense, a policy or policies
of insurance sufficient to insure against all liability, claims, demands, and other obligations
assumed by the Professional pursuant to Section 8 above. Such insurance shall be in
addition to any other insurance requirements imposed by this contract or by law. The
Professional shall not be relieved of any liability, claims, demands, or other obligations
assumed pursuant to Section 8 above by reason of its failure to procure or maintain
insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts,
duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City.
All coverages shall be continuously maintained to cover all liability, claims, demands, and
other obligations assumed by the Professional pursuant to Section 8 above. In the case of
any claims -made policy, the necessary retroactive dates and extended reporting periods shall
be procured to maintain such continuous coverage.
(i) Workers' Compensation insurance to cover obligations imposed by
applicable laws of Ontario.
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(ii) Commercial General Liability insurance with minimum combined single
limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE
MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to
all premises and operations. The policy shall include coverage for bodily injury,
broad form property damage (including completed operations), personal injury
(including coverage for contractual and employee acts), blanket contractual,
independent contractors, products, and completed operations. The policy shall
contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS
($1,000,000.00) aggregate with respect to each Professional's owned, hired and non -
owned vehicles assigned to or used in performance of the Scope of Work. The
policy shall contain a severability of interests provision. If the Professional has no
owned automobiles, the requirements of this Section shall be met by each employee
of the Professional providing services to the City under this contract.
(iv) Professional Liability insurance with the minimum limits of ONE MILLION
DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000)
aggregate.
(c) The policy or policies required above shall be endorsed to include the City and the City's
officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carried by or
provided through any insurance pool of the City, shall be excess and not contributory
insurance to that provided by Professional. No additional insured endorsement to the policy
required above shall contain any exclusion for bodily injury or property damage arising
from completed operations. The Professional shall be solely responsible for any deductible
losses under any policy required above.
(d) The certificate of insurance provided by the City shall be completed by the
Professional's insurance agent as evidence that policies providing the required coverages,
conditions, and minimum limits are in full force and effect, and shall be reviewed and
approved by the City prior to commencement of the contract. No other form of certificate
shall be used. The certificate shall identify this contract and shall provide that the coverages
afforded under the policies shall not be canceled, terminated or materially changed until at
least thirty (30) days prior written notice has been given to the City.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of
contract upon which City may immediately terminate this contract, or at its discretion City
may procure or renew any such policy or any extended reporting period thereto and may pay
any and all premiums in connection therewith, and all monies so paid by City shall be repaid
by Professional to City upon demand, or City may offset the cost of the premiums against
monies due to Professional from City.
(1) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
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(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently
$150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and
protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et
seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its
employees.
15. City's Insurance. The parties hereto understand that the City is a member of the Colorado
Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper-
ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk
Management Department and are available to Professional for inspection during normal business
hours. City makes no representations whatsoever with respect to specific coverages offered by
CIRSA. City shall provide Professional reasonable notice of any changes in its membership or
participation in CIRSA.
16. Completeness of Agreement. It is expressly agreed that this agreement contains the entire
undertaking of the parties relevant to the subject matter thereof and there are no verbal or written
representations, agreements, warranties or promises pertaining to the project matter thereof not
expressly incorporated in this writing.
17. Notice. Any written notices as called for herein may be hand delivered or mailed by
certified mail return receipt requested to the respective persons and/or addresses listed above.
18. 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 services under this contract.
Professional agrees to meet all of the requirements of City's municipal code, Section 15.04.570,
pertaining to non-discrimination in employment.
19. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate
as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition
of this Agreement can be waived except by the written consent of the City, and forbearance or
indulgence by the City in any regard whatsoever shall not constitute a waiver }f any term, covenant,
or condition to be performed by Professional to which the same may apply and, until complete
performance by Professional of said term, covenant or condition, the City shall be entitled to invoke
any remedy available to it under this Agreement or by law despite any such forbearance or
indulgence.
20. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto
and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein, this Agreement shall not be binding upon the City unless
duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence)
following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a
duly authorized official in his absence) to execute the same.
21. illegal Aliens — CRS 8-17.5-101 & 24-76.5-101.
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(a) Purpose. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added
new statutes relating to the employment of and contracting with illegal aliens. These new
laws prohibit all state agencies and political subdivisions, including the City of Aspen,
from knowingly hiring an illegal alien to perform work under a contract, or to knowingly
contract with a subcontractor who knowingly hires with an illegal alien to perform work
under the contract. The new laws also require that all contracts for services include
certain specific language as set forth in the statutes. The following terms and conditions
have been designed to comply with the requirements of this new law.
(b) Definitions. The following terms are defined in the new law and by this reference
are incorporated herein and in any contract for services entered into with the City of
Aspen.
"Basic Pilot Program" means the basic pilot employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public
Law 156, 108th Congress, as amended, that is administered by the United States
Department of Homeland Security.
"Public Contract for Services" means this Agreement.
"Services" means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than
reports that are merely incidental to the required performance.
(c) By signing this document, Professional certifies and represents that at this time:
(i) Professional shall confirm the employment eligibility of all employees who
are newly hired for employment in the United States; and
(ii) Professional has participated or attempted to participate in the Basic Pilot
Program in order to verify that new employees are not employ illegal aliens.
(d) Professional hereby confirms that:
(i) Professional shall not knowingly employ or contract new employees
without confirming the employment eligibility of all such employees hired for
employment in the United States under the Public Contract for Services.
(ii) Professional shall not enter into a contract with a subcontractor that fails to
confine to the Professional that the subcontractor shall not knowingly hire new
employees without confirming their employment eligibility for employment in the
United States under the Public Contract for Services.
(iii) Professional has verified or has attempted to verify through participation
in the Federal Basic Pilot Program that Professional does not employ any new
employees who are not eligible for employment in the United States; and if
Professional has not been accepted into the Federal Basic Pilot Program prior to
entering into the Public Contract for Services, Professional shall forthwith apply
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to participate in the Federal Basic Pilot Program and shall in writing verify such
application within five (5) days of the date of the Public Contract. Professional
shall continue to apply to participate in the Federal Basic Pilot Program and shall
in writing verify same every three (3) calendar months thereafter, until
Professional is accepted or the public contract for services has been completed,
whichever is earlier. The requirements of this section shall not be required or
effective if the Federal Basic Pilot Program is discontinued.
(iv) Professional shall not use the Basic Pilot Program procedures to undertake
pre -employment screening of job applicants while the Public Contract for
Services is being performed.
(v) If Professional obtains actual knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or contracts with
a new employee who is an illegal alien, Professional shall:
(1) Notify such subcontractor and the City of Aspen within three days
that Professional has actual knowledge that the subcontractor has newly
employed or contracted with an illegal alien; and
(2) Terminate the subcontract with the subcontractor if within three
days of receiving the notice required pursuant to this section the
subcontractor does not cease employing or contracting with the new
employee who is an illegal alien; except that Professional shall not
terminate the Public Contract for Services with the subcontractor if during
such three days the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal
alien.
(vi) Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that
the Colorado Department of Labor and Employment undertakes or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S.
(vii) If Professional violates any provision of the Public Contract for Services
pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of
Aspen may terminate the Public Contract for Services. If the Public Contract for
Services is so terminated, Contractor shall be liable for actual and consequential
damages to the City of Aspen arising out of Professional's violation of Subsection
8-17.5-102, C.R.S.
(ix) If Professional operates as a sole proprietor, Professional hereby swears or
affirms under penalty of perjury that the Professional (1) is a citizen of the United
States or otherwise lawfully present in the United States pursuant to federal law,
(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall
produce one of the forms of identification required by CRS 24-76.5-103 prior to
the effective date of this Agreement.
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22. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(a) Professional 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 Professional for
the purpose of securing business.
(b) Professional 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) Professional 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:
I. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Professional, 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 Professional; and
4. Recover such value from the offending parties.
23. 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 utilizing 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.
22. General Terms.
(a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions,
representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the
parties.
(b) If any of the provisions of this Agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
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(c) The parties acknowledge and understand that there are no conditions or limitations
to this understanding except those as contained herein at the time of the execution hereof
and that after execution no alteration, change or modification shall be made except upon a
writing signed by the parties.
(d) This Agreement shall be governed by the laws of the State of Colorado as from time
to time in effect.
23. Electronic Signatures and Electronic Records. This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement in three copies each of which shall be deemed an original on
the date first written above.
CITY OF A KN64;"ORADO:
euivasmF�"'c
[Slgnatm
By: Diane Foster
[Name]
Title: Acting City Manager
Date: 3/12/2021 1 1:12:50 PM MST
Approved as to form:
Attorney's Office
EARTHSCAPE PLAY INC.:
,7k wel Wade
Isignafure]
By: Darryl Wade
[Name]
Title: Contracts Manager
Date: March 1, 2021
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EXHIBIT A
(Exhibit A — Earthscape Proposal)
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T. 519.804.6854
TF. 1.877.269.2972
F. 519.669. 5085
February 18, 2021
Michael Tunte
City of Aspen Parks Department
585 Cemetery Lane
Aspen, CO 816111
Re: Playground Design Build, Herron Park
108 Neale Ave., Aspen, CO
7215 Wellington Rd 86
Wallenstein, ON NOB 250
E. info®earthscapeplay.com
via email: Michoel.tunte(@citZofaspen.com
PROJECT UNDERSTANDING
Provide playground concept design services for the new playground at Herron Park. The
budget for play equipment excluding installation costs is anticipated to be $238,000.
• Play area is meant to replace existing wood play structure while honoring the
materiality.
Play structures shall be designed to fit within the natural context of the
surrounding environment.
The playground is intended to be the primary drawing feature for children and
families to visit the park.
Equipment is to be geared towards 2-5 and 5-12 age groups and all abilities.
DESIGN PROCESS
1. Design Kickoff Meeting (by Earthscape/Client)
• Review functional requirements (space required for different activities, required
play elements, shade, materials, budget, etc.)
• Review or assemble precedent images
• Develop or review Rough Order Magnitude
• Prior to meeting, client to provide Site Plan or Survey, including elevations and
existing site features
2. Develop Project Design Program (by Earthscape)
• Playground user profile, specify activities, note any site problems or potentials
• Playground structure or sculptural elements precedents
• Finalize budget allocations
3. Create Concept Design (by Earthscape)
• Draft concept sketches
• Model solution using 3D CAD tools
4. Revise Concept Design
• Minor revisions to design.
• This proposal does not allow for multiple distinct concepts
5. Playground Cost Estimate and Specification Documents
• Itemized Work Breakdown for Earthscape to Fabricate playground elements
• Estimate of Installation Supervision to be provided by Earthscape
• Estimate of Installation labor and material required (to be performed by others)
1 of 7
3
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DESIGN DELIVERABLES
Design Program:
Summarizing principal design requirements and playground functional considerations with precedent
images, a statement of design intent or narrative, and hand sketches.
Animation:
MP4 Video file navigating through the playground design in three dimensions. Uploaded to Vimeo
with privacy settings as agreed on with client.
CAD Blocks:
.DWG format drawings showing playground equipment and safety surfacing zones in plan and
elevation views.
Specification Drawing Set:
A complete set of drawings required to specify Earthscape custom play features. Includes: elevation,
plan and isometric drawings, key data, fall zone requirements and typical foundation or footing
details.
Playground Quote:
Spreadsheet itemizing work to be performed by Earthscape. Includes fabrication, shipping, and site
supervision assistance. Installation to be performed by others.
DESIGN FEE
Description
Hours
Cost
Review requirements with client, project kick off
1
$ 95.00
Site Analysis and Base Plan Preparation
2
$ 190.00
Produce Client Brief
4
$ 380.00
Concept Plan Preparation - 3D Modelling
82
$ 7,790.00
ASTM 1487 Compliance Review
6
$ 600.00
Design Revision and Final Review
31
$ 2,945.00
TOTAL USD
126
$ 12,000.00
CONSTRUCTION PHASE DELIVERABLES (Separate contract)
Intro Packages:
Packages produced for each piece of equipment for client review and approval. Includes: plan, elevations,
isometric drawings, key data, and footing connection details.
Installation Packages:
Installation instructions provided for each piece of Earthscape equipment — for construction.
Playground Equipment:
Playground equipment prefabricated at Earthscape shop in Wallenstein, Ontario. Equipment shipped to site on
flatbed truck(s).
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FEES AND STIPULATED SUM BREAKDOWN
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We will design to a stipulated sum of $250,000 USD total for design, fabrication, and supply of Playground m
equipment. An itemized cost breakdown will be provided upon completion of the Design Phase. d
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TERMS OF PAYMENT
Design Payment Milestones:
• Design fee is $12,000
• Design fee will be billed monthly based on progress of work
• Written client approval required before generating specification packages and completing design
Fabrication Payment Milestones (Separate contract):
• 30%of quote due upon Contract Award. This retainer is required for Detailed Design, Construction
Drawings, and procurement of long lead time components
• 40%due after completion of Construction Drawings, and start of Fabrication
• 30%due upon completed Factory Acceptance and equipment Ready to Ship. Payment due prior to
shipping. Photographic documentation will be provided for clients not able to attend Factory
Acceptance.
Terms:
Due on receipt of invoice
1% interest per month after 30 days
Effective annualized interest rate of 18.4%
This agreement shall become binding upon written acceptance. This document shall constitute the entire
agreement and be binding upon the parties, there being no covenants, promises or agreements, written or
oral, except herein set forth. This agreement shall insure to the benefit of and be binding upon parties hereto
and their respective heirs, executors, and successors.
Please sign below and return one copy to Earthscape if you wish to proceed with the work. If you have any
questions, please give us a call. Thank you for your business.
Sincerely,
EARTHSCAPE PLAY INC.
Darryl a e
Contracts Manager
I, the undersigned, having authority to bind the company, agree to this proposal its entirety.
Signature
Name
Date
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DocuSign Envelope ID: F67091 B6-9930-4EC5-8C2C-E08354A3D733
TERMS AND CONDITIONS
1.1. Terms and conditions are applicable to all work unless otherwise specified in this proposal.
1.2. General Conditions:
■ Acceptance:
Tender is subject to revision if not accepted within 30 days
■ Bonding:
Excluded from this Tender
■ Contract:
This document forms the contract in its entirety. 3rd party contracts shall not apply.
Currency:
All the dollar amounts set out in this Agreement and all communications between the Buyer
and Earthscape are expressed in and refer to American Dollars.
■ Damages:
Neither party will be held liable for any consequential, special, or incidental losses or
damages.
■ Delays:
Notification of installation delays should be provided no less than two weeks prior to the
scheduled installation date. In the event of a delay that occurs less than two weeks before the
scheduled installation date, Earthscape will be entitled to re-imbursement for any expenses
including but not limited to fees associated with change in rental accommodation, air -fare,
and rental vehicles. In the event of delays after installation is underway, Earthscape will bill a
pro -rated per day fee based on the value of the initial installation.
■ Design Build:
This is a Design Build proposal. If Construction Drawings are required or provided, shop
and/or field changes after approval of Construction Drawings that conform to design intent
may occur, to comply with Playground Safety Standards) or other requirements.
■ Drawings:
Earthscape drawings include Fall Surface Plan View, basic Elevation and Isometric drawings.
Complete construction drawings can be provided, subject to signing Non -Disclosure
Agreement by purchaser and their agents.
■ Force Majeure:
In no event shall Earthscape be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts
of God, and interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Earthscape shall use
reasonable efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
■ Hidden Conditions:
This contract does not include remediation or additional work required for hidden conditions,
conditions differing from contract documentation, or conditions differing from typical and not
anticipated. These conditions include: subsurface or groundwater, loose subsoil, buried
utilities, subsurface bedrock, buried obstacles, burial grounds, contaminated fill.
■ Holdbacks:
Holdbacks do not apply
■ Incoterms:
Delivered at Place (DAP). Earthscape is responsible for arranging transport and delivery of the
goods ready for unloading at the named destination. The Buyer is responsible for the d
transportation costs and applicable brokerage fees. Risk transfers from Earthscape to the
Buyer once the goods are available for unloading. Unloading is at the Buyer's risk. The Buyer is
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responsible for all applicable import duties, excise taxes, local taxes, and import clearance
costs.
■ Instruments of Service:
Earthscape reserves ownership of all drawings, specifications, and other documents, including
those in electronic form, authored by Earthscape. Upon signing this contract, Earthscape
grants the Buyer a limited license to use the Instruments of Service solely for using and
maintaining, or adding to the project- detailed construction documentation excluded.
■ Liquidated Damages:
Liquidated and penalty damages are excluded from this contract.
■ Scheduling:
The work is based on one mobilization and continuous access.
■ Union Forces:
We are a non -union, specialized playground installation contractor, and we use non -union
subcontractors for off -site fabrication and on -site installation.
1.3. Compliance
■ Accessibility:
The client acknowledges their responsibility to comply with Accessibility Legislation American
with Disabilities Act (ADA), and has complied with the Sections of Accessibility Legislation that
apply to Outdoor Playspaces. This client responsibility includes but is not limited to duty to
consult. This playground design conforms to structural and physical Accessibility Legislation
requirements including accessible path and ground level and elevated accessible play
elements.
■ Engineering and Structural Review:
Earthscape provides structural engineering review (performed by an Ontario licensed
engineer) and/or structural load testing as required by ASTM F-1487. Local engineering
approval, if required, for jurisdictions outside Ontario to be provided by others. Earthscape
designs and engineers for a frost penetration of 1219mm (48"), and sand or clay soil depth of
1829mm (72") or greater. Soil is assumed to be one of: Firm sand, sandy silt, clayey sand, silty
gravel, and/or clayey gravel (definitions from ASABE Shallow Foundation Design
Publication). Rooftop installations or sites with bedrock depth of less than 1829mm (72")
require custom Engineering, which is excluded unless specifically noted in this proposal Scope
of Work. The following are excluded from the scope of engineering review — items that would
not fall under ASTM/CSA playground standards, as well as items that would be categorized as
at grade (<23 5/8", <600mm.)
■ Inspection and Testing:
Inspection, testing (including Concrete testing), pre -construction surveys to be completed by
others. On site review or inspection by Engineer is not included in this proposal
1.4. Materials:
■ Concrete Finishing:
Due to the nature of the concrete finishing process, concrete may have minor non-structural
imperfections including honeycombing on vertical faces, uneven surface, uneven exposed
aggregate, and color variation. Earthscape does not cut out or replace non-structural
imperfections. Earthscape will not be held liable for animal or human traffic on the concrete
while it is curing.
■ Timber Specifications:
The timber species used in our playgrounds will contain knots, knot holes, checks, and splits
of a non-structural nature. The selection of logs with these cosmetic defects is solely at
Earthscape discretion.
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1.5. Fabrication, Shipping, and Installation A
■ Existing Equipment:
Moving existing playground equipment often results in damage or destruction of the
equipment. No warranty is provided when moving existing equipment, or plant material.
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■ Overtime:
Unless stated otherwise in this tender, contract is based on normal hours of work 7:OOam
until6:00pm Monday to Friday.
■ Installation:
Installation of custom play equipment to be performed by others, using appropriate skilled
trades, employing English working language. In order to achieve a successful installation, it is
imperative that labour forces provided by the General Contractor and its Subcontractors be
skilled, competent, and have knowledge of standard construction practices. For clarity, the
labour force provided to Earthscape must have competent knowledge related to following
Construction Specifications Institute (CSI) Master Format'm divisions;
Division 02 45 00 — Foundation and Load Bearing Elements
Division 03 1100 — Concrete
03 1100 Concrete Formwork
03 15 00 Concrete Accessories
03 20 00 Concrete Reinforcing
03 35 00 Concrete Finishing
Division 06 00 00 — Wood, Plastics, & Composites
06 10 00 Rough Carpentry
Onsite supervision of installation will be provided by Earthscape, or their designated
representative for the number of days allotted in this quotation document. In case of delays
or overruns the Buyer will submit a change order if additional supervision days are required.
Tools, Machinery, and material handling equipment such as telehandler, excavator, or crane
may be required and will be supplied by others.
■ Rigging and ground anchors:
When applicable, work to be performed on guy wire systems and ground anchors must be by
contractor certified by ACCT as a professional vendor. Certified tests results must be
produced at the time of install.
■ Delays:
Delays caused by purchaser will be paid at standard rates
■ Shipping:
Shipping will occur when complete payment is received. Crating and loading into container or
onto truck by Earthscape. Offloading at site and storage until installation to be supplied by
others
■ Private Utility Locates:
Buyer is responsible for private utility locates, and repair if damaged during construction.
■ Access:
The purchaser shall provide safe access and egress to and from work areas.
■ Permits:
Permits of any kind are to be provided by others (tree protection, hoarding, conservation,
building permits, plumbing, etc.)
■ Services:
Adequate supply of water, sanitation facilities to be provided by others.
■ Site Conditions:
The site will be prepared and continuously maintained in a manner suitable for installation
and operation of our equipment and delivery vehicles.
■ Site Facilities:
Site protection, including traffic control, barricades, hoarding, street cleaning, snow removal,
dust control, flagmen by others.
■ Survey and Facilities:
Survey work including benchmarks, lines and levels, pre -construction survey, as -built
drawings by others. a
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STATEMENT OF WARRANTY
Parts Replacement Warranty 5 Years
Earthscape warrants that if any of our playground components fail due to defects in workmanship or materials,
we will provide replacement for all parrs found defective without cost provided that the initial installation and
subsequent repair were completed by Earthscape or under their supervision/consultation. Labor and shipping
to replace warrantied parts to be supplied by others. Warranty period begins from date of delivery.
Earthscape additionally warrants against:
Structural failure, due to corrosion and/or deterioration caused by defects in materials and manufacturing
workmanship as follows:
Stainless Steel Hardware
15 years
Posts made of Robinia
30 years
Accoya® Wood Products
10 Years
AYC wood Products
30 years
Galvanized structural components
10 years
All Other Metal Components
5 years
All other Wood Elements
5 years
Plastic and Composite Components
3 years
Cables/Rope
2 years
Moving Parts
1 year
Moving water Components
1 year
Electronic Components
1 year
Wood stain - vertical
1 year
Wood stain - horizontal
no warranty
Exclusions
Warranty claims will be compromised should any claim be a result of:
1. Vandalism, abuse, misuse or accident.
2. Normal cosmetic changes such as: scratches, dents, marring, fading, discoloration, cable fraying.
3. Acts of God such as: hail, flooding, lightning, tornadoes, sandstorms, earthquakes, windstorms.
4. Environmental factors such as: windblown or human dispersed aggregates, salt spray, salt water, and
chlorinated water.
S. Timber elements contain knots, knot holes, checks, and splits. These cosmetic defects become more
prominent over time. Replacement or repair of these non-structural defects is excluded from
warranty.
6. Normal Wear and Tear
7. Failure to Maintain in accordance with Playground Safety Standards and manufacturer's requirements.
8. Improper Installation: When installed by a 311 party
9. Unauthorized additions, alterations or repairs by other than Earthscape
10. Unintentional Playground Safety Standards Non -Compliance oversight which was not reported within
12 months after the date of invoice.
11. Other regulatory requirements or inspector comments that exceed or are outside of the scope of
Playground Safety Standards.
12. Termite or other insect damage due to installation in areas known to be infested with aggressive
wood -damaging insects.
Playground Safety Standards Compliance
Earthscape warrants that all playground equipment products manufactured will be completed in accordance
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with Playground Safety Standards. Earthscape will supply replacement parts, without cost, to rectify any non-
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compliant issues caused by improper design or manufacturing processes. We reserve the right to have V party
Certified Playground Safety Inspector review the work. In the event of a disagreement regarding Playground
Safety Standard Compliance, the less stringent interpretation shall apply.
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