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Home My WebLink About23-158 Resolution No.23-158 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT WITH PLAY ILLINOIS, LLC FOR THE PURCHASE OF PLAYGROUND REPLACEMENT EQUIPMENT AT MILLENNIUM PARK BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Purchase Agreement on behalf of the City of Elgin with Play Illinois, LLC, for the purchase of playground replacement equipment at Millennium Park, a copy of which is attached hereto and made a part hereof by reference. s/David J. Ka ptain T David J. Kaptain, Mayor Presented: August 9, 2023 Adopted: August 9, 2023 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis _ Kimberly Dewis, City Clerk ^ PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 9th day of August 2023, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Play Illinois, LLC, an Illinois limited liability company, (hereinafter referred to as "Play Illinois") NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. PURCHASE. City shall purchase, and Play Illinois shall sell the goods described in the one-page Purchase Order dated June 5, 2023, which is designated as Attachment A, and attached hereto and made a part hereof. 2. TERMS. This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A, attached hereto and made a part hereof. 3. LAW/VENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County, Illinois. Play Illinois hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and Play Illinois agrees that service by first class U.S. mail to 310 N. Grand Street, Westmont, IL 60559 shall constitute effective service. Both parties hereto waive any rights to a jury. 4. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 5. MERGER. This agreement embodies the whole agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein, and this agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 6. INTEREST. Play Illinois hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 7. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. 8. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, Play Illinois shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Play Illinois hereby certifies, represents and warrants to the City that all of Play Illinois's employees and/or agents who will be providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. 9. COUNTERPARTS AND EXECUTION. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. This Agreement may be executed electronically, and any signed copy of this Agreement transmitted by facsimile machine, email, or other electronic means shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by facsimile machine, email, or other electronic means shall be considered for these purposes an original signature and shall have the same legal effect as an original signature. 10. CONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A hereto, the terms and provisions of this purchase agreement shall supersede and control. 11. PAYMENT. City shall pay the total sum of$111, 122 within thirty (30) days of delivery or city's receipt of invoice,whichever is later. The aforementioned total sum is inclusive of all freight and shipping costs. The City is a tax-exempt governmental entity. 12. DELIVERY. Play Illinois shall complete delivery of all goods on or before August 31, 2023. 13. LIMITATION OF DAMAGES. In no event shall City be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In no event shall City be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 14. TRANSFER OF TITLE/RISK. Transfer of title, and risk of loss shall pass to the City upon delivery of the goods. 15. INDEMNIFICATION. To the fullest extent permitted by law, Play Illinois agrees to and shall indemnify and hold harmless the City, its officers, employees, boards and commissions from and against any and all claims, suits,judgments, costs, attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of Play Illinois or Play Illinois's officers, employees, agents or subcontractors in the performance of this agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify and hold harmless, such action shall be defended by legal counsel of the City's choosing. 16. WARRANTY. All applicable warranties, including but not limited to any and all applicable manufacturer's warranties are included as part of this purchase agreement, and shall apply to all goods, accessories and components to the benefit of the City. 2 17. RELATIONSHIP BETWEEN THE PARTIES. This Agreement shall not be construed so as to create a joint venture, partnership, employment or other agency relationship between the parties hereto. 18. WAIVER. Neither party hereto shall be responsible for any consequential, indirect, punitive or incidental damages for any reason whatsoever. Any delay or failure to enforce any rights by either party arising out of or pursuant to this Agreement shall not constitute, and shall not be construed as, a waiver of any such rights. 19. LIMITATION OF ACTIONS. The Parties hereto agree that any action by Play Illinois arising out of this Agreement must be filed within one year of the date the alleged cause of action arose or the same will be time-barred. 20. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement. The person signing this Agreement certifies that s/he has been authorized by the Seller to commit the Seller contractually and has been authorized to execute this Agreement on its behalf. IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. PLAY ILLINOIS,LLC CI LG1N Mike Maloney Print Name Richard G. Kozal, City Manager N46C UZ&Wy Attest: Signature President "&r6f��J JP44�'_ Title rty Clerk Legal Dept\Agreement\Play Illinois,LLC Structures Purchase Agr-Millenium Park 7-28-23.docx 3 ATTACHMENT A PURCHASE ORDER 04 M� P L AY OILLINDIS 6/5/23 PARK & PLAYGROUND SOLUTIONS Pr • •• • • 129-132061-3 5-12 Nucleus Play Structure with $140,762 PlayEnsemble, Swings, Little Digger ADA, Dino Fossil Dig, Freestanding Fun Phones. ,h Special CourtesyDiscount - 32,647 744k Y*w Y*— Shipping Cost 3,007 Total $111,122 PriorCall Delivery Name: Phone: TERMS AND CONDITIONS: Net 30 after receipt of equipment. Check or credit card are accepted forms of payment. PLEASE NOTE:SHIPPING ADDRESS AND CALL PRIOR INFORMATION CAN BE CHANGED UP TO 2 WEEKS PRIOR TO THE EQUIPMENT SHIPPING. Accepted Approved Purchased Order. Signature: Date: 310 N. Grant Street, Westmont, IL 60559 • 844-222-9990 • playil.com