Agenda 12/11/2012 Item #16D29/1/12012 Item 16. D.29.,
That the Collier County Board of County Commissioners:
• Authorize the necessary budget amendment in the amount of $78,919.* for the purchase of ,
playground equipment, and;
• Authorize the use of US Communities contract number 110179, with GM*ime, Inc, and,
• Waive purchasing policy to deem - GameTime, Inc a sole source vendoi for the purchase and
endz
n,
12/11/2012 Item 16.D.29.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.D.29.
Item Summary: Recommendation to waive the Purchasing Policy and deem GameTime,
Inc a sole source vendor, and authorize the necessary budget amendment in the amount of
$78,919.94 for the purchase of playground equipment at the Eagle Lakes Park and approve the
cooperative purchase under US Communities contract # 110179.
Meeting Date: 12/11/2012
Prepared By
Name: BetancurNatali
Title: Operations Analys, Parks & Rec -NCRP Admin
11/2/2012 3:58:38 PM
Submitted by
Title: VALUE MISSING
Name: McPhersonJeanine
11/2/2012 3:58:40 PM
Approved By
Name: AlonsoHailey
Title: Operations Analyst, Public Service Division
Date: 11/15/2012 8:39:24 AM
Name: WilliamsBarry
Title: Director - Parks & Recreation,Parks & Recreation
Date: 11/20/2012 3:08:18 PM
Name: BetancurNatali
Title: Operations Analys, Parks & Rec -NCRP Admin
Date: 11/27/2012 8:33:38 AM
Name: NorthrupAdam
Title: Procurement Strategist, Purchasing
n Date: 11/27/2012 4:58:20 PM
Packet Page -3680-
Name: Alonsoflailey
Title: Operations Analyst, Public Service Division
Date: 11/28/2012 10:04:41 AM
Name: MarkiewiczJoanne
Title: Manager - Purchasing Acquisition,Purchasing & Gene
Date: 11/28/2012 11:15:15 AM
Name: CarnellSteve
Title: Director - Purchasing /General Services,Purchasing
Date: 11/28/2012 11:43:32 AM
Name: TeachScott
Title: Deputy County Attorney,County Attorney
Date: 12/5/2012 1:13:07 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 12/5/2012 2:00:32 PM
Name: UsherSusan
Title: Management/Budget Analyst, Senior,Office of Manage
Date: 12/5/2012 2:09:40 PM
Name: OchsLeo
Title: County Manager
Date: 12/5/2012 4:42:39 PM
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12/11/2012 Item 16.D.29.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
12/11/2012 Item 16.D.29.
CONTRACT NO.
AGREEMENT TO PROVIDE PLAYGROUND EQUIPMENT,
SURFACING, SITE FURNISHINGS AND RELATED
PRODUCTS AND SERVICES
This Agreement (the "Agreement") is entered into as of this 17'h Day of September, 2010-0he "Effective Date"), by
and between PlayCore Wisconsin, Inc. dba GameTime (the "Company 'l a corporation doing business in North
Carolina (the "Company"), and Mecklenburg County, a political subdivision of the State of North Carolina (the
"County").
Statement or Background and Intent
A. The County issued a Request for Proposals (RFP Number 269-2010-t83) dated March t9, 2010 requesting
proposals from qualified firms to provide the County and other Participating Public Agencies with Playground
Equipment, Sur6icing, Site Fumishings, and Related Products and Services hereafter referred to as
("Products"). This Request for Proposals, together with all attachments and any amendments, is referred to
herein as the "RFP".
B. The Company submitted a proposal in response to RFP Number 269-2010-183 on May 5, 2010, This bid,
together with all attachments and separately sealed confidential trade secrets, is referred to herein as the
"Proposal."
C. The County awarded this contract on July 6, 2010, to Company to provide Playground Equipment, Surfacing,
Site Furnishings, and Rotated Products and Services to the County all in accordance with the tern-is and
conditions set forth herein.
D, Charlotte- Mecklenburg (herein "Lead Public Agency'), in cooperation with the U.S. Communities Government
Purchasing Alliance (herein "U.S- Communitics'j, and on behalf of other public agencies that elect to access
the Master Agreement (herein "Participating Public Agencies*), competitively solicited and awarded the Master
Agreement to the Company. Lead Public Agency has designated U.S. Communities as the administrative and
marketing conduit for the distribution of the Master Agreement to participating Public Agencies.
Lead Public Agency is acting as the "Contracting Agent- for the Participating Public Agencies, and shall riot be
liable or responsible for any costs, damages, liability or other obligations incurred by the Participating Public
Agencies. The Company shall deal directly with each Participating Public Agency concerning the placement of
orders, issuance of purchase orders, contractual disputer., invoicing, payment and all other matters relating or
referring to such Participating Public Agency's access to the Master Agreement.
.j
The ;Master Agreement shall be construed to be in accordance with and governed by the laws of the State in
which the Participating Public Agency exists. Participating Public Agencies are required to register on-line with
U.S. Communities at vvv� or , The registration allows the Participating Public Agency to enter
into a Master Intergovernmental Cooperative Purchasing Agreement ("MICIPA"), which is intended to allow
the Participating Public Agencies to meet applicable legal requirements and facilitate access to [he Master
Agreement and the Company.
GameTime Contract
September 17, 2010
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12/11/2012 Item 16.D.29.
NOW, THEREFORE. for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in further consideration of the covenants and conditions contained in this Agreement, the parties
agree as follows:
AGREEMENT
1. INCORPORATION OF EXHIBITS- The following Exhibits are attached to this Agreement and incorporated
into and made a part of this Agreement by reference:
Exhibit A: Contract Pricing, Discount Structures and Pricing incentives
Exhibit B: Installation Fees
Exhibit C: National Network of Distributors and Certified Installers
Exhibit D: U.S. Communities Administrative Agreement
Exhibit E: Freight Rate Schedules
Exhibit F: Product Warranties
Lxhibit G: Company's Proposal (not attached, but incorporated herein by reference)
Exhibit H: RFP x#269- 2010 -133 (not attached, but incorporated herein by reference)
Each reference to the Agreement shall be deemed to include all Exhibits. Any conflict between language in an
Exhibit to this Agreement and the main body of this Agreement shall be resolved in favor of the main body of
this Agreement. Each reference to GameTime in the Exhibits and Appendices shall be deemed to mean the
Company.
2. DEFINITIONS. The following terms shall have the following meanings for purposes of this Agreement
(including all Exhibits):
2.1. AGREEMENT. The term "Agreement" shall mean this Agreement including the Company's Proposal,
the RFP and all attachments, exhibits, and addenda (all as defined in the Statement of Background and
Intent).
2.2. DOCUMENTATION. The term "Documentation" shall mean all written, electronic, or recorded works,
and all enhancements and updates thereto, that describe the use, functions, features, or purpose of the
Products and Services, including without limitation all functional and technical specifications, end user
manuals, guides and other materials which relate to the Products and Services, or which are necessary to
fully utilize the Products and Services.
2.3. DELIVERABLES. The term "Deliverables' shall mean all equipment, materials, drawings, data, wiring,
cable, installation services, 'incidentals and all other items that the Company is required to complete and
deliver to the County in connection with this Agreement.
2.4. DEFECT. The term "Defect" shall mean any failure of the Products, or any component thereof; to
conform fully to the Specifications and Requirements. Non - conformity is not a Defect if it results from
the County's misuse, improper use, alteration, or damage of the Products.
2.5. EFFECTIVE DATE. The temi "Effective Date" refers to the date this Agreement is fully executed by all
parties to the Agreement.
2.6. PARTICfPATING PUSLIC AGENCY. The term shall mean any and all states, local governments, school
districts, and higher education institutions and other public agencies and nonprofit organizations that
have authority to purchase from another public agency's competitively solicited contract.
GameTime Contract September 17, 2010 2
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12/11/2012 Item 16.D.29.
2.7. PRODUC73. The tens "Products" shall mean Playground Equipment, Surfacing, Site Furnishings, and
Related Products that the Company agreed to provide in the Company's Proposal.
2.8. SERVICES. The terns "Services" shall include all services that the Company agreed to provide in the
Company's Proposal, including all design, assembly, installation, reporting, and optional work.
2.4. SPECIFICATIONS AND REQUIREtV0NTS. The term "Specifications and Requirements" shall mean all
definitions, descriptions, requirements, criteria, warranties and performance standards relating to the
Products and Services which are set forth or referenced in: (a) this Agreement, including all Exhibits; (b)
the Company's proposal; (c) the RFP; (d) the Documentation; and (e) any funcrional and/or technical
specifications which are published or provided by the Company or its licensors or suppliers from time to
time with respect to all or any part of the Products. Notwithstanding the forgoing, if die Company
improves the Products or Services over time to incorporate new technology or improved features or
functionality, and provided the improved Products or Services tinder this Agreement, the descriptions,
specifications and requirements for such improvements hall be deemed part of the Specifications and
Requirements, Also notwithstanding the forgoing, the Company's Bid shall only take precedence over
the ITB to the extent the Company properly took exception to the terms of the rM in the manner
required by the ITB ":
3. TERM.
The initial term of this Agreement will be for five (5) yea from the Effective Date with an option to renew
for two (2) additional one -year terms. This Agreement may be extended only by a written amendment to
the contract signed by both panics.
4. GENERAL DESCRIPTION OF PRODUCTS AND SERVICES.
The Company shall provide the Products and Services in accordance with the terms of the Company's
proposal, and incompliance with all other conditions, covenants, stipulations, terms and provisions
contained in this AD eement.
S. SHIPPING AND DELIVERY.
All shipments shall be F.O.B. destination with freight charges prepaid and listed separately. Actual freight
charges shall be added at time of invoicing as determined and supported by the carrier's freight bill.
Estimated freight charges shall be provided at the time of quotation utilizing (lie freight rate schedules
incorporated into this Agreement as Exhibit E.
6. INSTALLATION, MAINTENANCE AND SAFETY INSPECTIONS.
The County and Participating Public Agencies shall be responsible for contracting installation services on a
project -by project basis as needed. If included with purchase, all equipment shall be installed by a
GameTme Installer in accordance with the standards established by the terms, specifications, drawings, and
construction notes for each project and meet manufacturer's specifications and industry standards. County
and Participating Public Agencies shall be responsible for scheduling coordination and site preparation.
Site should be level and permit installation equipment access. Participating Public Agency shall be
responsible for unknown conditions such as buried utilities, tree stumps, bedrock or any concealed
materials or conditions that may result in additional labor or material costs.
COMPENSATION.
7.1. The County shall pay the Company for Products and Services compliant with the Specifications and
requirements of this Agreement based on the fixed percentage discounts from the current
manufacturer's price index as identified and incorporated into this Agreement as Exhibit A.
7.2. The Company agrees the fixed percentage discounts will remain fitzrt for the entire contract term.
7.3. Pricing shall remain in effect until December 31, 2011. Thereafter, the Company shall advise the
Charlotte - Mecklenburg Procurement Services Department in writing of any proposed price increases
no later than sixty (6) days prior to the effective date of the requested increase.
Game -fine Contract September 17, 2010
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12/11/2012 Item 16.D.29.
7.4. The Company shall be responsible for furnishing and delivering approved price lists and the most
current catalogs to the County and other participating public entities, upon request.
7-5. The Company agrees that if a public agency is otherwise eligible for lower pricing through a federal,
state, regional, or local contract, the C:nrnpany will thatch the pricing.
S. OPTIONAL WORK.
The County and Participating Public Agencies may elect to request quotations for additional services not
Specifically listed in the Company's proposal or this Agreement. The Company shall provide quotations for
optional products and services as requested, to provide a full turnkey solution.
q. BILLING.
Each invoice sent by the Company shall detail all items delivered which are necessary to entitle the
Company to the requested payment under the terms of this Agreement. The Company shall mail all
invoices to:
Mecklenburg County
Finance Accounts Payable
600 East 0 St.
Charlotte, NC 28202
The County will pay all accurate, properly submitted, uncontested invoices within thirty (30) days of
receipt. Proposals may include an incentive discount for early payment. invoices must include state and
local sales tax.
10. GENERAL WARRANTIES.
Company represents and warrants that:
10.1 It is a corporation duly incorporated, validly existing and in good standing under the laws of the
state of North Carolina, and is qualified to do business in North Carolina;
10.2 It has all the requisite corporate power and authority to execute, deliver and perform its obligations
under this Agreement;
10.3 The execution, delivery, and performance of this Agreement have been duly authorized by
Company;
10.4 No approval, authorization or consent of any governmental or regulatory authority is required to
be obtained or made by it in order for it to enter into and perform its obligations under this
Agreement;
10.5 In connection with its obligations under this Agreement, it shall comply with all applicable
Federal, state and local laws and regulations and shall obtain all applicable permits and licenses;
and
10.6 The Company shall not violate any agreement with any third parry by entering into or performing
this Agreement.
11. ADDITIONAL REPRESENTATIONS AND WARRANTIES.
Company represents warrants and covenants that:
11.1 The Services shall satisfy all requirements set Forth in this Agreement, including but not limited to
the attached Exhibits;
GameTime Contract
September 17. 20 10 4
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12/11/2012 Item 16.D.29.
11.2 All worts performed by the Company and/or its subcontractors pursuara to this Agreement shalt
meet industry accepted standards, and shalt be performed in a professional and workmanlike
manner by staff with the necessary skills, experience and knowledge;
t 1.3 Neither the Service%, nor any Deliverables provided by the Company under this Agreement will
infringe or misappropriate any patent, copyright, trademark or trade secret rights of any third
party; and
11.4 The Company has taken and will continue to take precautions sufficient to ensure that it will not
be prevented from performing all or part of its obligations under this Agreement by virtue of
interruptions in the computer systems used by the Company.
12. TERI UNATIOtN.
12.1. TERAII'1VArf0JV WITHOUT CAUSE, The County may terminate this Agreement at any time
without cause by giving thirty (30) days written notice to the Company.
12.2. TERAMINATION FOR DEFAULT BY EITMER PARTY By giving written notice to the other party,
either parry may terminate this Agreement upon the occurrence of one or more of the following
events;
(a) The other party violates or fails to perform any covenant, provision, obligation. term. or
condition contained in this Agreement, provided that, unless otherwise stated in this
Agreement, such failure or violation shall not be cause for termination if both of the
following conditions are satisfied: (i) such default is reasonably susceptible to cure; and (ii)
the other party cures such default within thirty (30) days of receipt of written notice of
default from the non - defaulting parry; or
(b) The other parry attempts to assign, terminate or cancel this Agreement contrary to the terms
hereof; or
(c) The other party ceases to do business as a going concern, makes an assignment for the
benefit of creditors, admits in writing its inability to pay debts as they become; due, files a
petition in bankruptcy or has an involuntary bankruptcy petition tiled against it (except in
connection with a reorganization under which the business of such party is continued and
performance of all its obligations under this Agreement shall continue), or if a receiver,
trustee or liquidator is appointed for it or any substantial part of other party's assets or
properties.
Any notice of default pursuant to this Section shall identify and state the party's 'intent to terminate
this Agreement if the default is not cured within the specified period.
111 ADDITIONAL GROUNDS FOR DEFAULT TERMTVA TION B Y 7T/E COUNTY. By giving written
notice to the Company, the County may also terminate this Agreement upon the occurrence of
one or more of the following events (which shall each constitute grounds for termination without a
cure period and without the occurrence of any of the other events of default previously listed);
(a) The Company snakes or allows to be made any material written misrepresentation or
provides any materially misleading written information in connection with this
Agreement. Company's Proposal. or any covenant, agreement, obligation, tarn or
condition contained in this Agreement; or
(b) The Company takes or fails to take any action which constitutes grounds for immediate
termination under the terms of this Agreement, including but not limited to failure to
obtain or maintain the insurance policies and endorsements as required by this
Agreement, or failure to provide the proofof insurance as required by this Agreement.
GameTime Contract
September 17, 2010
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12/11/2012 Item 16.D.29.
12.4. CANCELLATION OF ORDERS AND SUBCONTRACTS.
in the event this Agreement is terminated by the County for any reason prior to true end of the
tern, the Company shall upon termination itnnediately discontinue all Service in con=nection with
this Agreement and promptly cancel alt existing, orders and subcontracts, which are chargeable to
this Agreement. As soon as practicable after receipt of notice of termination, the Company shall
submit a statement to the County showing in detail the services performed under this Agreement
to the date of termination.
12.5. NO EFFECT ON TAXES, FEES, CHARGES, OR REPORTS. art fees,
Any termination of the Agreement shall not relieve the Company of the obligation to pay y
taxes or other charges then due to the County, nor relieve the Company of the obligation to file
any daily, monthly, quarterly or annual reports covering the period to termination nor relieve the
Company from any claim for damages previously accrued or then accruing against the Company.
12.6. OBGI 'AT10NS UPON EXPIRATION OR TERrV1NAT10N. Upon expiration or terninatio o i tles,
Agreement, the Company shall promptly (a) return to the County all computer programs,
documentation, data, media, related material and any other recording devices, information, or
compact discs that are owned by the County; (b) deliver to the County all Work Product;
(c) allow the County or a new service provider access to the systems, software, infrastructure, or
processes of the Company that are necessary to migrate the Services to a new service provider,
and (d) refund to the County all pre -paid Warranty Fees (other than pre -paid Warranty Fees for
the then current year).
12.7. NO SUSPENSION. In the event that the County disputes in good faith an allegation of default by
the Company, notwithstanding anything to the contrary in this Agreement, the Company agrees
that it will not terminate this Agreement or suspend or limit the delivery of Products or Services or
any warranties or repossess, disable or render unusable any Software supplied by the Company.
unless (i) the parties agree in writing, or (ii) an order of a court of competent jurisdiction
determines otherwise.
12.8. AUTHORITY TO TERMINATE. The County Manager or their designee is authorized to terminate
this Agreement on behalf of the County.
12.9. AUDIT. During the tern of the Agreement and for a period of one (1) year after termination or
expiration of this Agreement for any reason, the County shall have the right to audit, either itself
or through a third party, all books and records (including but not limited to the technical records)
and facilities of the Company necessary to evaluate Company's compliance with the terms and
conditions of the Agreement or the County's payment obligations. The County shall pay its own
expenses, relating to such audits, but shall not have to pay any expenses or additional costs of the
Company. However, if non - compliance is found that would have cost the County in excess of
$5,000 but for the audit, then the Company shall be required to reimburse the County for the cost
of the audit.
B. TRANSITION SERVICES UPON TERUMINATTON. Upon termination or expiration of this
Agreement, the Company shall cooperate with the County to assist with the orderly transfer of the Services,
functions and operations provided by the Company hereunder to another provider or to the County as
determined by the County in its sole discretion. The transition services that the Company shall perform if
requested by the County include but are not limited to:
a. Working with the County to jointly.develop a mutually agreed upon transition services plan to
facilitate the termination of the Services; and
GameTime Contract
September 17, 20 10
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12/11/2012 Item 16.D.29.
b. Notifying all affected service providers and subcontractors of the Company of transition
activities;
c. Performing the transition service plan activities;
d. Answering questions regarding the products and services on an as- needed basis; and
e. Providing such other reasonable services needed to etTectuate an orderly transition to a new
system.
14. AMENDMENTS. In the event changes to the Agreement become necessary or desirable to the parties, the
parties shall follow the procedures set forth in this Section. A Change shall be effective only when
documented by a written, dated agreement executed by both parties which expressly references and is
attached to this Agreement (an "Amendment "). The Amendment shall set forth in detail: (i) the Change
requested, including all modifications of the duties of the parties: (ii) the reason for the proposed Change;
and (iii) a detailed analysis of the impact of the Change on the results of the Services and time for
completion of the Services, including the impact on any associated price.
In the event either party desires an Amendment, the party shall submit to the other parry a proposed change.
If the receiving party does not accept the Contract Amendment in writing within ten (10) days, the
receiving party shall be deemed to have rejected the proposed change. If the parties cannot reach
agreement on a proposed change, the Company shall nevertheless continue to render performance under
this Agreement in accordance with its (unchanged) terms and conditions.
15. INDEMNiFICATION. The Company shall indemnify, defend and hold harmless the County and the
County's officers, employees and agents from and against any an all losses, damages, costs, expenses
(including reasonable attorneys' fees). obligations and other liabilities (including settlement amounts) paid
�\ or incurred any of them as a result or any claims, demands, lawsuits, actions, or proceedings: (i) copyright,
trademark or patent infringement or other infringement of proprietary rights with respect to any of the
Products or Services delivered to the County pursuant to this Agreement ( "Infringement Claims "); (ii)
seeking payment for labor or materials purchased or supplied by the Company or its subcontractors in
connection with this Agreement; or (iii) arising from the Company's failure to perform its obligations
under this Agreement, or from any act of negligence or willful misconduct by the Company or any of its
agents, employees or subcontractors relating to this Agreement, including but not limited to any liability
caused by an accident or other occurrence resulting in bodily injury, death, sickness or disease to any
person(s) or damage or destruction to any property, real or personal, tangible or intangible; or (iv) arising
from any claim that a Company employee or subcontractor is an employee of the County. including claims
relating to worker's compensation, failure to withhold taxes and the like.
/,-\
If an Infringement Claim occurs, the Company shall either: (i) procure for the County the right to cuntinue
using the affected Product or Service: or (ii) repair or replace the infringing Product or Service so that it
becomes non - infringing, provided that the performance of the System or any component thereof shall not
be adversely affected by such replacement or modification. If the Company is unable to comply with the
preceding sentence within thirty days after the County is directed to cease use of a Product or Service, the
Company shall promptly refund to the County all amounts paid under this Agreement, other than Extended
Maintenance Fees.
The indemnification requirement is not intended to cover, and the Company is not responsible for, any
damages that result from lack of maintenance; inadequate supervision; negligence; intentional acts of
anyone other than the Company or their affiliates; inadequate surfacing; or vandalism.
It is the intent of any insurance provided by the Company to indemnify for product liability claims arising
solely from the negligent design or manufacture of the Playground Equipment when such goods and
services are provided by Company or Company's subcontractors. This clariftes and supersedes any other
section of the contract concerning indemnification that could be interpreted otherwise.
Game?ime Contract
September 17, 2010
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12/11/2012 Item 16.D.29.
16. INSURANCE, Throughout the term of this Agreement, the Company shall comply with the insurance
requirements described in this Section. [n the event the Company fails to procure and maintain each type
of insurance required by this Agreement, or in the event the Company fails to provide the County with the
required cettiftcates of insurance, the County shall be entitled to terminate this Agreement immediately
upon written notice to the Company.
16.1. General Requirements.
(a) Tice Company shalt not commence any work in connection with this Agreement until it has
obtained all of the types of insurance set forth in this Section and such insurance has been
approved by the County. The Company shall not allow any subcontractor to commence work
on its subcontract until all similar insurance required of the subcontractor has been obtained
and approved.
(b) All insurance policies shalt be with insurers qualified and doing business in North Carolina
recognized by the Secretary of State and the Insurance Commissioner's Office- The
Company shall famish the County with proof of insurance coverage by certificates of
insurance accompanying this Agreement and shall name the County as an additional named
insured under the commercial general liability.
(c) The County shall be exempt from, and in no way liable for any sums of money which may
represent a deductible in any insurance policy. The payment of such deductible shall be the
sole responsibility of the Company and/or subcontractor providing such insurance.
16.2. Types of Insurawc, The Company agrees to purchase and maintain during the life of this
Agreement with an insurance company, acceptable to the County, authorized to do business in the
State of north Carolina the following insurance:
(a) Automobile Liability. Bodily injury and property damage liability covering all owned, non -
owned and hirer/ automobiles for limits of not less than $1,000,000 bodily injury each person, �
each accident and $1,000,000 property damage, or $1,000,000 combined single [in-tit - bodily
injury and property damage.
(b) Commercial General Liability. Bodily injury and property damage liability as shall protect
the Company and any subcontractor performing work under this Agreement, from claims of
bodily injury or property damage which arise from operation of this Agreement, whether such
operations are performed by the Company, any subcontractor, or anyone directly or indirectly
employed by either. The amounts of such insurance shall not be less than 51,000,000 bodily
in;ury each occurrencelaggregate and 51,000,000 property damage each
occurrence/aggrcgate, or 51,000,000 bodily injury and property damage combined single
limits each occurrence /aggregate. This insurance shall include coverage for products,
operations, personal injury liability and contractual liability, assumed under the indemnity
provision of this Agreement.
(c) Workers,' Compensation Insurance. The Company shall meet the statutory requit-cments of
the State of North Carolina, $100,000 per accident limit, 5500,000 disease per policy limit;
$100,000 disease each employee limit.
The County shall be named as additional insured under the commercial general liability insurance for
operations or services rendered under this Agreement. Cenif"tcates of all required insurance shall be
fumished to the County and shall contain the provision that the County will be given thirty (30) day written
notice of any intent to amend or terminate by either the insured or the insuring company.
It is understood that Playground Equipment will be in the care, custody, and control of the County or
Participating Public Agency following installation. [t is further understood that the Cornpany cannot
additionally insure the eventual owners of the equipment for Participating Public Agencies nationwide for
any damages that result from lack of maintenance, inadequate supervision, negligence, or intentional acts
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12/11/2012 Item 16.D.29.
by anyone other than the Company or their affiliates; inadequate surfacing, or vandalism. The
responsibility for maintenance and supervision belongs to the County or Participating Public Agency and
the public user respectively.
17. RELATIONSHIP OF THE PARTIES. The relationship of the parties established by this Agreement is
solely that of independent contractors, and nothing contained in this Agreement shall be construed to 6)
give any party the power to direct or control the day -to -day activities of the other; (ii) constitute such
panics as partners, joint ventures, co -owners or otherwise as participants in a joint or common undertaking;
(iii) make either party an agent of the other for any purpose whatsoever, or (iv) give either party the
authority to act for, bind, or otherwise create or assume any obligation on behalf of the other. Nothing
herein shall be deemed to eliminate any fiduciary duty on the part of the Company to the County that may
arise under law or under the terms of this Agreement.
18.
SUBCONTRACTING, The Company shall not subcontract any of its obligations under this Agreement
without the County's prior written consent. In the event the County does consent in writing to a
subcontracting arrangement. Company shall be the prime contractor and shall remain Mly responsible for
performance of all obligations which it is required to perform under this Agreement Any subcontract
entered into by Company shall name the County as a third party beneficiary.
NON- DISCRIMINATION. The Company agrees that it has adopted and will maintain and enforce a
policy of nondiscrimination on the basis of race, color, religion, sex, age, national origin, or disability.
The Company agrees that it will inform the County of any alleged violation(s) of employment practices
involving any employees who work on the Project which are asserted in any claims filed with the Equal
Employment Opportunity Commission, Labor Department or any other federal or state compliance agency,
The Company will also inform the County of the final disposition of such cases_
19. AUDIT. During the term of this Agreement and for a period of one (1) year after termination or expiration
of this Agreement for any reason, the County shall have the right to audit, either itself or through a third
party, the books and records (including but not limited to the technical records) of the Company in
connection with this Agreement, to ensure the Company's compliance with all the terms and conditions of
this Agreement or the County's payment obligations.
20. COMPANY WILL NOT SELL OR DISCLOSE DATA. The Company will treat as confidential
information all data provided by the County in connection with this agreement. County data processed by
the Company shall remain the exclusive property of the County. The Company will not reproduce, copy,
duplicate, disclose, or in any way treat the data supplied by the County in any manner except that
contemplated by this agreement.
2l. WORK ON COUNTY'S PREMISES. The Company will ensure that its employees and agents shall.
whenever on the County's premises, obey alt instructions and directions issued by the County's project
manager with respect to work on the County's premises. The Company agrees that its personnel and the
personnel of its subcontractors wilt comply with all rules. regulations and security procedures of the
County when on the County's premises.
22. DRUG -FREE WORKPLACE. The County is a drug -free workplace employer. The Company hereby
certifies that it has or it will within thirty (30) days after execution of this Agreement:
22.1. Notify employees that the unlawful manufacture, distribution, dispensation, possession, or use of
controlled substance is prohibited in the workplace and specifying actions that will be taken for
violations of such prohibition;
22.2. Establish a drug -free awareness program to inform employees about (i) the dangers of drug abuse
in the workplace, (ii) the Company's policy of maintaining a drug -free workplace, (iii) any
�t
Gat neTime Contract
September 17, 2010
Packet Page -3690-
12/11/2012 Item 16.D.29.
available drug counseling, rehabilitation, and employee assistance programs, and (iv) the penalties
that may be imposed upon employees for drug abuse violations;
22.3. Notify each employee that as a condition of employment, the employee will (i) abide by the terms
of the prohibition outlines in (a) above, and (ii) notify the Company of any criminal drug statute
conviction for a violation occurring in the workplace not later than five days after such conviction;
22.4. ftnpose a sanction on, or requiring the satisfactory participation in a drug counseling, rehabilitation
or abuse program by an employee convicted of a drug crime;
215. Make a good faith effort to continue to maintain a drug -free workplace for employees; and
22.6. Require any party to which it subcontracts any portion of the work under the contract to comply
with the provisions of this Section.
A false cenification or the failure to comply with the above drug -free workplace requirements during the
performance of this Agreement shall be ground for suspension, termination or debarment.
23. NOTICES. Any notice, consent or other communication required or contemplated by this Agreement shall
be in writing, and shall be delivered in person, by U.S. mail, by overnight courier, by electronic rnail or by
tclefax to the intended recipient at the address set forth below. Notice shall be effective upon the date of
receipt by the intended recipient; provided that any notice which is sent by telefax or electronic mail shall
also be simultaneously sent by mail deposited with the U.S. Postal Service or by overnight courier. Each
party may change its address for notification purposes by giving the other party written notice of the new
address and the date upon which it shall become effective.
23.1. Communications that relate to any breach, default, termination, delay in performance, prevention
of performance, modification, extension, amendment, or waiver of any provision of this
Agreement shall be sent to:
any:
For The County:
rFo;rTjh�ecom
na
Core Wisconsin Inc dba GameTime
Pla core Drive
Karen Ru e
Charlotte- Mecklenburg Procurement Services
600 East f Street
ort Pa e. AL 35967
Phone: 256.997.5255
Charlotte, NC 28202
Phone: 704.33b.2992
Fax: 256.997.5455
Fax 704.632.8254
E -mail dking(aZplaycore.corn _
E- trail: kru e a i.charlotte.ne.us
With Copy To.
With Copy To �.. -_ .._
_.
Tyrone Wade
L ......_
D_Ppq Court Attorney
600 East Fourth Street
Charlotte. NC 28202
Phone: 704.336.4135
Fax:
j°
E -mail: Tvroa (_'. r �c�l cnb .can ,tv_s,rl
All other notices shall be sent to the other party's Project Manager at the most recent address provided in
writing by the other party.
24. MISCELLANEOUS
24.1. ENTIRE AGREEMENT. This Agreement, (including all Exhibits) and the Confidentiality
Agreement constitute the entire agreement between the parties with respect to the subject matter
GameTime Contract September 17, 2010 10
Packet Page -3691-
?1_%,
12/11/2012 Item 16.D.29.
herein. There are no other representations, understandings, or agreements between the panics with
respect to such subject matter. This Agreement supersedes all prior agreements, negotiations.
representations and proposals, written or oral.
24.2. AMENDMENT. No amendment or change to this Agreement shall be valid unless in writing and
signed by the party against whom enforcement is sought.
24.3. GOVERNING LAW AND JURISDICTION. North Carolina law shall govern the interpretation
and enforcement of this Agreement, and any other matters relating to this Agreement (all without
regard to North Carolina conflicts of law principles). All legal actions or other proceedings
relating to this Agreement shall be brought in a state or federal coup sitting to Mecklenburg
County, North Carolina. By execution of this Agreement, the parties submit to the jurisdiction of
said courts and hereby irrevocably waive any and all objections which they may have with respect
to venue in any court sitting in Mecklenburg County, North Carolina.
24.4. BINDING NATURE AND ASSIGNMENT. This Agreement shall bind the parties and their
successors and permitted assigns. Neither parry may assign this Agreement without the prior
written consent of the other. Any assignment attempted without the written consent of the other
parry shall be void. For purposes of this Section, a Change in Control, as defined to Section 25.10
constitute an assignment.
24.5. FORCE MAJEURE. Neither party shall he liable for any failure or delay in the performance of its
obligations pursuant to this Contract, and such failure or delay shall not be deemed a default of
this Contract or grounds for termination hereunder if all of the following conditions are satisfied:
(a) if such failure or de lay:
i. could not have been prevented by reasonable precaution;
ii. cannot reasonably be circumvented by the non - performing party through the use of
alternate sources, work- around plans, or other means; and
iii. if, and to the extent, such failure or delay is caused, directly or indirectly, by fire,
flood, earthquake, hurricane, elements of nature or acts of God. acts of war, terrorists,
riots, civil disorders. rebellions or revolutions or court order.
(b) An event which satisfies all of the conditions set forth above shall be referred to as a
"Force Majeure Event." Upon the occurrence of a Force Majeure Event, the Service
Provider shall be excused from any further performance of those of its obligations which
are affected by the Force Majeure Event for as long as (a) such Force Majeure Event
continues and (b) the Service Provider continues to use commercially reasonable efforts
to recommence performance whenever and to whatever extent possible without delay.
(c) Upon the occurrence of a Force Majeure Event, the Service Provider shall immediately
notify the County by telephone (to be confirmed by written notice within two (2) days of
the inception of the failure or delay) of the occurrence of a Force Majeure Event and shall
describe in reasonable detail the nature of the Force Majeure Event. If any Force
Majeure Event prevents Service Provider from performing its obligations for more than
five (5) days, the County shall have the right to terminate this Agreement by written
notice to the Service Provider.
Strikes, slowdowns, lockouts, walkouts, industrial disturbances and other labor disputes shall not
constitute Force Majeure Events and shall not excuse the Service Provider from the performance
of its obligations under this Agreement,
An event which satisfies all of the conditions set forth above shall be referred to as a "Force
Majeure Event." Upon the occurrence of a Force Majeure Event, the affected party shall be
excused from any further performance of those of its obligations which are affected by the Force
GameTimc Contract September 17, 2010 11
Packet Page -3692-
12/11/2012 Item 16.D.29.
Majeure Event for as long as (a) such Force Majeure Event continues and (b) the affected party
continues to use reasonable efforts to recommence performance whenever and to whatever extent
possible without delay.
Upon the occurrence of a Force Majeure Event, the affected party shall promptly notify the other
by telephone (to be confirmed by written notice within rive (5) days of the inception of the failure
or delay) of the occurrence of a Force Majeure Event and shall describe in reasonable detail the
nature of the Force Majeure Event. If any Force Majeure Event prevents the Company from
performing its obligations for more than fifteen (15) days, the County shall have the right to
terminate this Agreement by written notice to the Company.
24.6. SEVER.ABILITY. The invalidity of one or more of the phrases, sentences, clauses or sections
contained in this Agreement shall not affect the validity of the remaining portion of this
Agreement so long as the material purposes of this Agreement can be determined and effectuated.
If any provision of this Agreement is held to be unenforceable, then both parties shall be relieved
of all obligations arising under such provision, but only to the extent that such provision is
unenforceable, and this Agreement shall be deemed amended by modifying such provision to the
extent necessary to make it enforceable while preserving its intent.
24.7. NO PUBLICITY. No advertising, sales promotion or other materials of the Company or its agents
or representations may identify or reference this Agreement or the County in any manner without
the prior written consent of the County. Notwithstanding the forgoing, the parties agree that the
Company may list the County as a reference in responses to requests for proposals, and may
identify the County as a customer in presentations to potential customers.
24.8. WAIVER. No delay or omission by either party to exercise any right or power it has under this
Agreement shall impair or be construed as a waiver of such right or power. A waiver by either
party of any covenant or breach of this Agreement shall not constitute or operate as a waiver of
any succeeding breach of that covenant or of any other covenant. No waiver of any provision of
this Agreement shall be effective unless in writing and signed by the party waiving the rights.
24.9. CHANGE IN CONTROL. In the event of a change in "Control" of the Company (as defined
below), the County shalt have the option of terminating this Agreement by written notice to the
Company. The Company shall notify the County within ten days of the occurrence of a change in
control. As used in this Agreement, the term "Control" shalt mean the possession, direct or
indirect, of either (i) the ownership of or ability to direct the voting of, as the case may be filly -one
percent (51 %) or more of the equity interests, value or voting power in the Company or (ii) the
power to direct or cause the direction of the management and policies of the Company whether
through the ownership of voting securities, by contract or otherwise.
24.10. NO BRIBERY. The Company certifies that neither it, any of its affiliates or subcontractors, nor
any employees of any of the forgoing has bribed or attempted to bribe an officer or employee of
the County in connection with this Agreement.
24.11. FAMILIARITY AND COMPLIANCE WITH LAWS AW ORDINANCES. The Company
agrees to make itself aware of and comply with all locair state and federal ordinances, statutes,
laws, rules and regulations applicable to the Services. The Company further agrees that it will at
all times during the teen of this Agreement be in compliance with all applicable federal. state
and/or local laws regarding employment practices. Such laws will include, but shall not be limited
to workers' wmpensation, the Fair Labor Standards Act (FLSA), the Americans with Disabilities
Act (ADA), the Family and Medical Leave Act (FMLA) and all OSHA regulations applicable to
the work.
24.12. TAXES. The Company shall pay all applicable federal, state and local taxes which may be
chargeable against the performance of the Services.
GanteTime Contract September 17, 2010 I2
Packet Page -3693-
12/11/2012 Item 16.D.29.
22.13 WAIVER OF RJGHT TO JURY TRIAL, The County and Company waive and will waive all rights
to have a trial by jury in any action, proceeding, claim or counterclaim brought by either of them
against the other on any matter whatsoever arising out of or in any way related to or connected
with this,A;reentent.
25. Non- Appropriation of Funds. If the Board of County Commissioners does not appropriate the funding
needed by the County to make payments under this Agreement for a given fiscal year, the County will not
be obligated to pay amounts due beyond the end of the last fiscal year for which funds were appropriated.
In such event, the County will promptly notify the Company of the non - appropriation and this Agreement
will be terminated at the end of the last fiscal year for which funds were appropriated. No act or omission
by the County, which is attributable to non - appropriation of funds shall constitute a breach of or default
under this Agreement.
GameTime Contract
September 17, 2010
Parkpt Pnap - :ZF;QA-
12/11/2012 Item 16.D.29.
1 j-
71
M WITNESS WHEREOF, and in acknowledgment that the parties hereto have read and understood each and every
provision hereof, the parties have caused this Agreement to be executed on the date first written above.
PLAYCORE WISCONSIN, INC.
dba ANTETIME:
Company Signature
Donald R. King
Director of Sales Administration
Titic
[k^lEiE.LF�vI3UR:C;fi' /
-V
trr =ti=`t Via. County Manager
ark and ',ecrention irector
his ins ment has been pre -
audited in the manner re red
by the Local Govern5rift Budget
and Fiscal Contro et_
Fi9✓rnce Director
ATTEST;
Mary Cole
Sales Administration Manager
Title_....�__.
ATTEST:
G rk to the Board of County �nrstissita>ers
APPROVED ASTO INSURANCE
REOUIREMENTS:
^Dj.r�ic- Charlotte- k'Tecklcnfrtr"t'g Division of Insurance
Risk Management
GatneTitne Contract September 17, 2010
Packet Page -3695-
14
n
GameTime
C/o Dominica
P.O. Box 52070Qcreation Products, Inc.
Longwood, FL 32752 -0700
A P( -YCORE 800432 -0162 * 407- 331 -0101
Fax: 407-3314720
www.playdrp.com
Eagle Lake Park — Phase II (Revised 11/1/2012)
Collier County Parks & Recreation
Attn: Jeanine McPherson -Hogle
Eagle Lakes Community Park
11565 Tamiami Trail E
Naples, FL 34113
Phone: 239 -566 -2367
Fax: 239 -566 -8128
12/11/2012 Item 16.D.29.
QUOTE
#62190
1 1/01/2012
Ship To Zip: 34113
1
RDU
Game Time -� Mixlt Up PritneTime Phase 11
$12,474.00
$12,474.00
$5,455.22
Total Amount:
- includes 1 S Umbrella Shade
1
RDU
Game Time - JXS895 Custom Xscape System
$8,807.00
$8,807.00
1
6510
Game Time - Space Arch
$880.00
$880.00
l
6219
Game Time - See Saw
$1,366.00
$1,366.00
1
6201
Game Time - Tilted Sky Runner (F /S)
$3,161.00
$3,161.00
1
7082
Game Time - T -6" FS RockScape Arch
Climber
$9,310.00
$9,310.00
1
38002
Game Time - The Spider
$6,550.00
$6,550.00
1
12583
Game Time - Primetnne Swing Frame, 31/2"
Od
$1,111.00
$1,111.00
1
12584
Game Time - Primetime Swing Add -A -Bay, 3
$690.00
$690.00
1/2" Od
2
SS8696
Game Time - End Tot Seat 3 1/2 "78' High w/
$294.00
$588.00
Clevis
2
SS89I0
Game Tune - Belt Seat 3 1/2" /8' w /Clevis
$245.00
$490.00
1
38003
Game Time - Butterfly Net
$12,025.00
$12,025.00
1
INSTALL
Game Time - Installation of quoted
$11,995.00
$11,995.00
Playground Equipment
1
3680
Misc - Sealed Drawing for GameTime
$995.00
$995.00
Equipment
1
3017
GT -Shade - 20 X 40 Hip 14' Hi 90/10
$8,545.00
$8,545.00
1
3680
GT -Shade - Sealed Drawings
$834.00
$834.00
1
INSTALL
GT -Shade - Installation of quoted Shade
$3,845.00
$3,845.00
1
Permits
Misc - Obtaining and Acquiring Local Permits
$1,000.00
$1,000.00
for installation
SubTotal:
$84,666.00
Discount:
($11,201.28)
Freight:
$5,455.22
Total Amount:
$78,919.94
This quote was prepared by Gina Wilson, Senior Project Manager.
For questions or to orderplease call - 800- 432 -0162 ext. 101 ginaw@,gametime.com
Page I of 2 1 4 0 0 1
CEWTVIED
Packet Page -3696-
12/11/2012 Item 16.D.29.
Eagle Lake Park — Phase 11 (Revised 11/1/2012)
QUOTE
#62190
11/01/2012
Permits are not included in cost. Any costs for muncipal permits, paid by installer, will be charged back to the owner. Adding permits to
any job will increase the completion time frame, not due to manufacturing, but due to the local permit process.
GTSHADE TERMS:
- GTShade must be located T away from all portions of Playground Equipment.
- In winds greater than 90 mph, all fabric shades should be removed.
- Quote does not include any provisions for lighting protection, to be completed by others.
- GTShade Order Check Sheet (seperate form) must be completed with order. Order cannot be placed until that form is returned completed.
- Lead Time for GTShade is about 5 -6 weeks AFTER approval of permits (if required). For permits to be approved, it may take the city or
county several weeks or months.
- Permits are to be filed by the owner unless otherwise quoted.
- If a siteplan is required for the permit, this will be the responsibility of the owner. GT nor its installers can generate a siteplan or survey of your
site.
- Installer not responsible for site conditions. Holes may be upwards of 9' deep or wide, if additional drilling or digging is needed due to rock,
coral, utilities, or other unknown items; additional charges may be applied to order.
This Quotation is subject to policies in the current GameTime Park and Playground Catalog and the following terms and conditions. Our
quotation is based on shipment of all items at one time to a single destination, unless noted, and changes are subject to price adjustment.
Purchases in excess of$1,000.00 to be supported by your written purchase order made out to GameTime.
Pricing: F.O.B. factory, firm for 30 days from date of quotation.
Shipment: order shall ship within 3045 days after GameTime's receipt and acceptance of your purchase order, color selections, approved
submittals, and receipt of deposit, if required.
Payment terms: Net 30 days for tax supported governmental agencies. A 1.5% per month finance charge will be imposed on all past due
accounts. Equipment shall be invoiced separately from other services and shall be payable in advance of those services and project completion.
Retainage not accepted.
Taxes: State and local taxes will be added at time of invoicing, if not already included, unless a tax exempt certificate is provided at the time of
order entry.
Exclusions: Unless specifically discussed, this quotation excludes all sitework and landscaping; removal of existing equipment; acceptance of
equipment and off - loading; storage of goods prior to installation; security of equipment; security of poured rubber at night; equipment assembly
and installation; safety surfacing; borders; drainage; signed/sealed drawings; or permits.
Installation: Shall be by a GameTime & NPSI Certified Installer. Customer shall be responsible for scheduling and coordination with the
installer. Site should be level and allow for unrestricted access of trucks and machinery. Customer shall be responsible for unknown conditions
such as buried utilities, tree stumps, rock, or any concealed materials or conditions that may result in additional labor or material costs. Customer
will be billed hourly or per job directly by the installer for any additional costs.
SALES TAX EXEMPTION CERTIFICATE #:
(PLEASE PROVIDE A COPY OF CERTIFICATE)
Acceptance of auotation:
Accepted By (printed): —
Signature:
Title:
Facsimilie:
P.O. No:
Date:
Phone:
Purchase Amount: $78,919.94
Page 2 of 2
Packet Page -3697-
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