HomeMy WebLinkAboutresolution.council.022-25RESOLUTION #022
(Series of 2025)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORAnn , APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND EARTHSCAPE PLAY 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
Playground Fabrication for the Wagner Park Playground, between the City of
Aspen and Earthscape Play, 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
Playground Fabrication for the Wagner Park Playground, between the City of
Aspen and Earthscape Play, 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 25th day of February 2025.
/09pgw��
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, February 25, 2025.
Nicole Henning, City (clerk
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CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT and PROFESSIONAL SERVICES
AGREEMENT made 02-07-2025.
BETWEEN the City:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 920-5079
And the Professional:
Earthscape Play Inc.
7215 Wellington Rd 86
Wallenstein, ON NOB 2S0
CA
519-804-6854
alex.waffle@earthscapeplay.com
For the Following Project:
Wagner Playground
City of Aspen Contract No.: 2025-079 - SPPS 1361782
Contract Amount:
Total: $ 499,942.17
If this Agreement requires the City to pay
an amount of money in excess of
$1005000.00 it shall not be deemed valid
untiI it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date: 2025-02-25
Resolution No.: 2025-022
Exhibits appended and made a part of this Agreement:
Exhibit A: List of supplies, equipment, or materials to be purchased, Scope of Work, and
Fee Schedule.
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1. 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. (FOB 350 E Durant Avenue, Aspen CO 81611)
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. 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 Worlc 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 12-01-2025, with the installation and operation of all the
equipment no later than I M 1-2025. 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 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. Pa moment_. 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
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incorrect or untimely, the City shall review the matter with Professional within ten days from
receipt of the Professional's bill.
9. Non-Assi ang_bility0 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 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,
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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) Worker's Compensation insurance to cover obligations imposed by applicable
laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance with minimum limits of ONE MILLION DOLLARS
($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00)
disease - policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease - each
employee. Evidence of qualified self -insured status may be substituted for the
Worker's Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single
limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and THREE
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MILLION DOLLARS ($3,000,000.00) 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 include coverage
for explosion, collapse, and underground hazards. The policy shall contain a
severability of interests provision.
(iii) CompNehensive Azctomobile 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 TWO MILLION DOLLARS ($2,000,000)
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.
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(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(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 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. 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 Property/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.
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
Property/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 Lite 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 >!nay 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.
Any business that enters into a contract for goods or services with the City of Aspen or any of its
boards, agencies, or departments shall:
(a) Implement an employment nondiscrimination policy prohibiting discrimination in
hiring, discharging, promoting or demoting, matters of compensation, or any other
employment -related decision or benefit on account of actual or perceived race,
color, religion, national origin, gender, physical or mental disability, age, military
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status, sexual orientation, gender identity, gender expression, or marital or
familial status.
(b) Not discriminate in the performance of the contract on account of actual or
perceived race, color, religion, national origin, gender, physical or mental
disability, age, military status, sexual orientation, gender identity, gender
expression, or marital or familial status.
The foregoing provisions shall be incorporated in all subcontracts hereunder.
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 of 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 City Manager of the City of Aspen (or a duly authorized official in the City
Manager's absence) and if above $100,000, following a Motion or Resolution of the Council of the
City of Aspen authorizing the City Manager (or other duly authorized official in the City Manager's
absence) to execute the same.
21. Warranties Against Continent 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.
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(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 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.
22. 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.
23. 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.
(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.
24. Additional Provisions. In addition to those provisions set forth herein and in the Contract
Documents, the parties hereto agree as follows:
[ ] No additional provisions are adopted.
[X] See attached Exhibit A.
25. 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
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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.
26. The Professional in performing the Services hereunder must comply with all applicable
provisions of Colorado laws for persons with disability, including the provisions of 662445401,
et seq., C.R.S., and the Rules Establishing Technology Accessibility Standards, as established by
the Office Of Information Technology pursuant to Section §24-85- 103(2.5) and found at 8 CCR
1501-11. Services rendered hereunder that use information and communication technology, as the
term is defined in Colorado law, including but not limited to websites, applications, software,
videos, and electronic documents must also comply with the latest version of Level AA of the Web
Content Accessibility Guidelines (WCAG), currently version 2.1. To confirm that the information
and communication technology used, created, developed, or procured in connection with the
Services hereunder meets these standards, Professional may be required to demonstrate
compliance. The Professional shall indemnify the CITY pursuant to the Indemnification section
above in relation to the Professional's failure to comply with §§24-85401, et seq., C.R.S., or the
Technology Accessibility Standards for Individuals with a Disability as established by the Office
of Information Technology pursuant to Section §24-85-103(2.5).
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IN WITNESS WI�REOF, 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 �.SP.F..�N.,.COLORADO:
By:
Title:
Date:
��� �bS{t,V'
Diane Foster
[Name]
Deputy City Manager
2/26/2025 � 11:48:20 AM MST
Approved as to form:
5ipned by:
�'a.v��s 12. �u�,
City Attorneys Office
PROFESSIONAL:
By:
—Signed h
�� W�
Alex Waffle
[Name]
Title: vice president
Date: 2/11/2025 � 6:01:43 PM MST
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Playground Fabrication and Supply Contract
Wagner Park Playground - Aspen, CO
This Agreement made on the 27th day of January, 2025
Between the Buyer
City of Aspen Parks and Open Space
585 Cemetery Lane
Aspen CO 81611
USA
and
Earthscape Play Inc.
7215 Wellington Road 86
Wallenstein ON N0B 2S0
Canada
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1. GENERAL PROVISIONS
The following is Earthscape Play Inc.’s (Earthscape’s) proposal for the playground fabrication
and supply at Wagner Park Playground, Aspen, CO.
1.1. The Scope of Work (SOW) is based on (Hierarchical Order)
• This Proposal Document
• Wagner Park – Preliminary Design Package – V1.2 – 22/Jan/2025
1.2. The Project Performance Period is estimated to be twelve (12) months from time of
executed contract. Earthscape reserves the right to request additional compensation by
way of Change Order, if the delivery date extends beyond the estimated performance
period.
1.3. Quote v3.0 – Wagner Park - Aspen, CO – Jan 23, 2025
(SEE NEXT PAGE)
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1.4. This agreement shall become binding upon the Buyer’s 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 inure to the benefit of and be binding upon parties hereto and their
respective heirs, executors, and successors.
2. FINANCIAL TERMS –
2.1. Payment milestones
30% due upon Contract Award. This retainer is required for Detailed Design,
Construction Drawings, and the procurement of long lead time components.
Wagner Park - Aspen, CO
Playground quote - Version 3.0
Quote is subject to revision if not accepted within 30 days
Quantity Units Unit Price Extended
Play Equipment
2 Single Post Towers 1.00 lot 250,085.09$ $250,085.09
- 9' Plastic Open Turn Slide 1.00 incl
- 5' Plastic Open Turn Slide 1.00 incl
- Talk Tube Pair 2.00 incl
- WWM Tunnel 1.00 each 39,998.93$ $39,998.93
- Bridge Access incl posts & circular platforms 1.00 each 34,259.61$ $34,259.61
- Post & Rope Access incl fireman pole 1.00 each 30,240.78$ $30,240.78
Ground Level Hut 1.00 each 61,343.20$ $61,343.20
Log Steppers 20.00 each 624.80$ $12,496.00
Notched Posts 4.00 each 2,316.47$ $9,265.88
Jr. Form - Round - Large 1.00 each 19,466.12$ $19,466.12
Log Pile 2.1 1.00 each 3,520.00$ $3,520.00
Horizontal Log 1.00 each 2,288.00$ $2,288.00
General Conditions
ASTM Review Drawings - 3rd party
ASTM Review - On Site - By Others
Freight (2 loads) - budget only, to be confirmed at time of
shipment 1.00 lot 21,649.58$ $21,649.58
- Allow 3 weeks for shipping
Project Administration 1.00 lot 5,068.18$ $5,068.18
Supervisor for Install, incl. 5 days & 1 mobilization 1.00 lot 10,260.80$ $10,260.80
Subtotal USD $499,942.17
Applicable Taxes Extra
Optional Elements. All options are incremental to base price above
Trees Planted
Trees Planted for this Order: 74
Jan 23, 2025
Earthscape plants at least one tree for every tree used in the construction of our play structures. It is estimated that this order
will use 74 trees. Earthscape will plant the equivalent number of trees (or more) through local reforestation projects or through
One Tree Planted (a global non-profit). In 2022, we used 2060 trees to produce our playgrounds; we planted 4500.
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The balance of the contract will be billed progressively, monthly based on the
Statement of Value (SOV). All payments must be received upon Factory Acceptance
and equipment Ready to Ship. Photographic documentation will be provided for
clients not able to attend Factory Acceptance.
2.2. Terms
Interest 1% per month after 30 days. Effective annualized interest rate of 18.4%.
Statutory Holdbacks do not apply.
This contract is not subject to Pay When Paid Terms of the General Contractor.
Please sign below and return one copy to Earthscape Play Inc. if you wish to proceed with the work. If
you have any questions, or require further information, please call. Thank you for your business.
Sincerely,
Ross Ricupero
EARTHSCAPE PLAY INC.
I, the undersigned, having authority to bind the company, agree to the proposal as outlined above.
______________________________________________
Signature
______________________________________________
Name
______________________________________________
Date
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3. TERMS AND CONDITIONS
Terms and conditions are applicable to all work unless otherwise specified in this proposal.
3.1. General Conditions
3.1.1 Acceptance
This Proposal is valid for 30 calendar days; it is subject to revision if not accepted
within 30 days.
3.1.2 Bonding
Excluded from this Proposal.
3.1.3 Change Order
When Earthscape and the Buyer agree to an adjustment in the Contract Price, a
Change Order shall be issued by Earthscape to the Buyer. Both Parties must sign the
Change Order and such agreement shall be effective immediately. The value of the
work performed as the result of a Change Order shall be included in the applications
for progress payment.
3.1.4 Contract
This document forms the contract in its entirety. 3rd party contracts shall not apply.
3.1.5 Currency
For U.S. projects, all the dollar amounts set out in this Proposal and all
communications between the Buyer and Earthscape are expressed in and refer to
American Dollars. Canadian based projects are expressed in Canadian Dollars.
3.1.6 Damages
Neither party will be held liable for any consequential, special, or incidental losses or
damages.
3.1.7 Delays
Notification of shipping/installation delays must be provided to Earthscape no less
than three weeks prior to the scheduled installation date. In the event of a delay that
occurs less than three weeks before the scheduled delivery/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
3.1.8 Design Modifications
Modifications to the design may be required during the detailed design and
engineering phases of the work. Drawings for fabrication and installation will
resemble the Preliminary Drawings as closely as reasonably possible, while
maintaining the established goals and objectives for the Project. Earthscape will
notify the Buyer of any significant design modifications that may be required.
3.1.9 Drawings
Earthscape drawings include Fall Surface Plan View, basic Elevation and Isometric
drawings. Complete construction drawings can be provided, subject to signing a Non-
Disclosure Agreement by the Buyer and its agents.
3.1.10 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
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understood that the Earthscape shall use reasonable efforts which are consistent
with accepted practices in the engineering & construction industry to resume
performance as soon as practicable under the circumstances.
3.1.11 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.
3.1.12 Holdbacks
Holdbacks do not apply.
3.1.13 Incoterms
Delivered at Place (DAP). Earthscape is responsible for arranging the transport and
delivery of the goods ready for unloading at the named destination. The Buyer is
responsible for the transportation costs and applicable brokerage fees. Risk transfers
from Earthscape to the Buyer once the goods are available for unloading. The Buyer
is responsible for unloading the shipment upon delivery and must ensure that the
proper equipment is available at the time of delivery. The unloading is at the Buyer's
risk. If any part of the shipment has to be held, re-directed without notice, or
delivered again, surcharges may apply, for which the Buyer is responsible. The Buyer
is responsible for all applicable import duties, excise taxes, local taxes, and import
clearance costs.
3.1.14 Instruments of Service
Instruments of Service are the paper or Electronic Documents which comprise the
design, drawings, specifications, and reports authored by Earthscape, including, but
not limited to, plans, sketches, drawings, graphic representations, specifications,
materials, and 2D CAD or 3D Models, or the parts of which are authored by
Earthscape. Upon signing this contract, Earthscape grants the Owner a limited license
to use the Instruments of Service solely for using, maintaining, or adding to the
Project. The Instruments of Service do not include detailed fabrication drawings,
software systems, databases, or computer programs, unless otherwise agreed in
writing.
3.1.15 Liquidated Damages
Liquidated and penalty damages are excluded from this contract.
3.1.16 Material Substitutions
Substitutions may be necessary due to availability and/or price volatility. Earthscape
reserves the right to substitute originally specified material with equivalent materials
if necessary to maintain Project schedule and/or budget. Earthscape will notify all
relevant parties of any substitutions should they be necessary. Substitutions must be
approved with 15 days of formal submission to maintain the Project schedule.
3.1.17 Price Adjustments
Pricing may be adjusted due to factors that are outside of Earthscape’s control, such
as a significant fluctuation in exchange rates, material price increases over 5%, or
other factors resulting in a significant increase to direct input costs. Should a price
increase be required, Earthscape will notify the Buyer of the reason for the price
adjustment. Material substitutions or other value engineering strategies may be
explored as needed to balance costs with the budget.
3.1.18 Scheduling
The work is based on one mobilization and continuous access.
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3.1.19 Storage Costs
In the event the Buyer delays the shipping date, Earthscape will be entitled to
reimbursement of any expenses related to storage of equipment. Storage fees will
begin to accrue after a 30-day grace period from the original intended shipping date.
Partial months will be prorated. Storage fees are calculated at $1/sq. ft/month.
3.1.20 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.
3.2. Compliance
3.2.1 Accessibility
The client acknowledges its 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.
3.2.2 Engineering and Structural Review
3.2.2.1 As required, Earthscape may provide 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. Calculation packages, if
required, are an additional scope of work and have additional costs and
schedule requirements. Any ensuing revision to design or construction of
Earthscape’s scope of work will be billed at additional cost as a Change Order
and may impact schedule.
3.2.2.2 Engineering data including, but not limited to, Base Reaction Forces for
the purpose of designing accessory structures by others, is only available if paid
structural design has been included in the Scope of Work, per the quotation.
3.2.2.3 Subgrade conditions must meet soil bearing capacity and drainage
requirements as indicated in the General Notes of the Installation Drawing
Package
3.2.2.4 Site specific conditions including, but not limited to rooftops, shallow
bedrock, floodplains, etc. may require custom engineering services, which are
excluded, unless specifically noted in this proposal Scope of Work.
3.2.2.5 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).
3.2.2.6 All equipment subject to Professional Engineer (PE) review will be done
so according to local conditions, as per ASCE-7. All PE stamped documentation
will be done in accordance with the Professional Engineers Ontario (PEO).
3.2.2.7 Earthscape’s scope of work for Professional Engineer services is limited
to design only. On site review and verification by a Professional Engineer is not
included in our scope of work.
3.2.3 Inspection and Testing
Inspection, testing (including Concrete testing), and pre-construction surveys to be
completed by others. On-site review or inspection by an Engineer is not included in
this proposal.
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3.2.4 Safety Standards
“Playground Safety Standards” refers to ASTM F-1487. Earthscape reserves the right
to contract its own 3rd party Certified Playground Safety Inspector (CPSI). In the event
of a dispute, Earthscape reserves the right to contract a 3rd party CPSI to confirm or
refute non-compliances found after installation.
3.3. Materials
3.3.1 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 colour 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. The concrete work and materials
shall be completed by others.
3.3.2 Surfacing
When an impact absorbing surface is required, it must comply with ASTM F 1292
(most recent edition) for the defined fall height of the equipment specified in
drawings by Earthscape or a contractually obligated critical height specified in
advance. Ensuring that use zones, safety zones and/or protective surfacing zones
around all play equipment are compliant with ASTM F1487 (most recent edition) – by
others.
3.3.3 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’s discretion.
3.4. Fabrication, Shipping, and Installation
3.4.1 Delays
Delays caused by the buyer will be paid at standard rates.
3.4.2 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.
3.4.3 Installation
Installation of custom play equipment to be performed by others, using appropriate
skilled trades, employing English as its 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 the following Construction Specifications
Institute (CSI) Master Format™ divisions:
Division 02 45 00 – Foundation and Load Bearing Elements
Division 03 11 00 – Concrete
03 11 00 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 its designated
representative for the number of days allotted in this quotation document. In case of
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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.
3.4.4 Lift Plan and Craning Safety
Earthscape assumes no responsibility for safety during activities on site; as such, no
lift plans are provided as part of deliverables. It is advised that lift plans be prepared
by the Buyer or its Representative prior to Earthscape’s delivery to ensure that the
operations during unloading and placement of structures are safe.
3.4.5 Overtime
Unless stated otherwise in this proposal, this proposal is based on normal hours of
work from 7:00am until 6:00pm Monday to Friday.
3.4.6 Private Utility Locates
Buyer is responsible for private utility locates and repair if damaged during
construction.
3.4.7 Rigging and Ground Anchors
When applicable, work to be performed on guy wire systems and ground anchors
must be performed by a contractor certified by ACCT as a professional vendor.
Certified test results must be produced at the time of installation.
3.4.8 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.
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STATEMENT OF WARRANTY AND ASTM COMPLIANCE
Parts Replacement Warranty
Earthscape warrants that if any of our playground components fail due to defects in
workmanship or materials, we will provide replacement for all parts found defective without
cost provided that the initial installation and subsequent repair were completed by
Earthscape or under our 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 30 years
Posts Made Of Robinia 15 years
Accoya® Wood Products 10 years
AYC Wood Products (excluding Glulam) 10 years
Galvanized Structural Components 10 years
All Other Metal Components 10 years
Glulam Wood Products 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.
5. 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.
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7. Failure to Maintain in accordance with Playground Safety Standards and
manufacturer’s requirements.
8. Improper Installation: When installed by a 3rd 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 with Playground Safety Standards. Earthscape will supply
replacement parts, without cost, to rectify any non-compliant issues caused by improper
design or manufacturing processes. We reserve the right to have 3rd party Certified
Playground Safety Inspector review the work. In the event of a dispute, Earthscape reserves
the right to contract a 3rd party CPSI to confirm or refute non-compliances found after
installation.
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