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Home My WebLink About24-247 Resolution No. 24-247 RESOLUTION AUTHORIZING THE EXECUTION OF A PURCHASE AGREEMENT WITH FULL SWING GOLF HOLDINGS, INC. D/B/A FULL SWING GOLF, INC. FOR THE PURCHASE AND INSTALLATION OF GOLF SIMULATORS AT WING PARK GOLF CLUBHOUSE (RFP 24-050) 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 Full Swing, Inc., d/b/a Full Swing Golf, Inc., for the purchase and installation of golf simulators at Wing Park golf clubhouse (RFP 24-050), a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: November 6, 2024 Adopted: November 6, 2024 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 6th day of November 2024, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as "City") and Full Swing Golf Holdings, Inc., d/b/a Full Swing Golf, Inc., a Delaware corporation(hereinafter referred to as"Seller"). 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 Seller shall sell the goods and/or services to the City as described in the two (2)page proposal, dated September 30, 2024, attached hereto and made a part hereof as Attachment A. 2. TERMS. This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A. In the event of any conflict between any of the terms and provisions this Agreement and Attachment A or any portion thereof, the terms and provisions of this Agreement shall supersede and control. 3. LAWNENUE. 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. Seller 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 Seller agrees that service by first class U.S. mail to Full Swing Golf, Inc., do Registered Agent Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware, 19808, shall constitute effective service. The Parties hereto waive any rights to a jury. 4. NO MODIFICATION. There shall be no modification of this Agreement, except in a written instrument executed by both Parties with the same formalities as the original Agreement. 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. Seller 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. 1 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, Seller 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,nondiscrimination and legal status of employees. 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. PAYMENT. City shall pay the total sum of Two Hundred Seventy-Four Thousand One Hundred Sixty-Five Dollars and Zero Cents ($274,165.00) (the"Purchase Price") for the goods and services set forth in Attachment A. City shall pay Seller a deposit in the amount of Fifty Thousand Four Hundred Sixteen Dollars and Twenty-Five Cents ($50,416.25) within thirty (30) days of the execution of this Agreement. City shall pay the balance of the Purchase Price in the amount of Two Hundred Twenty-Three Thousand Seven Hundred Forty- Eight Dollars and Seventy-Five Cents($223,748.75) 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 of Elgin is a tax-exempt governmental entity. 11. DELIVERY. Seller acknowledges and agrees that the goods and/or services provided for in this Agreement are intended for delivery at Wing Park Golf Course, 1010 Wing Street, Elgin, Illinois, on a future date that is to be determined by the City. Seller shall complete delivery and installation of the goods and/or services for the Purchase Price upon thirty(30)days written notice from the City to proceed with such delivery and installation, provided that such notice to proceed is issued within two (2) years of the date of the Agreement. In the event that such notice to proceed with delivery and installation is not issued within two(2) years of the date of the Agreement, the Seller may request that the Purchase Price be adjusted to reflect the Seller's then-current prices for such goods and services. 12. CONSTRUCTION CONTINGENCY. In the event that the construction of the clubhouse at the Wing Park Golf Course is delayed for any reason, the parties agree that the City may decide, in its sole discretion, to change the scope of the goods and/or services and the location of the delivery of the same such that Seller shall deliver and install one (1) golf simulator and any related software and equipment as set forth in Attachment A to The Highlands of Elgin, 875 Sports Way, Elgin, Illinois, upon the same terms and conditions as this Agreement. The deposit paid to Seller in paragraph 10 of this Agreement shall be applied to the cost for 2 delivery and installation of said simulator. The City shall pay the balance of the cost for the delivery and installation of the simulator within thirty (30) days of delivery or City's receipt of an invoice for the balance, whichever is later, and this Agreement and any obligations hereunder shall thereafter be terminated without any further liability between the parties hereto. 13. LIMITATION OF DAMAGES. In no event shall the City be liable for any monetary damages in excess of the Purchase Price set forth in paragraph 10 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, Seller 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 Seller or Seller'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, warranties of merchantability, and warranties of fitness for a particular purpose, are included as part of this Agreement, and shall apply to all goods, accessories,components, and services to the benefit of the City. 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 the Seller 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. 21. NONDISCRIMINATION. The Seller will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, 3 ancestry, order of protection status, familial status, marital status, physical or mental disability, military status, sexual orientation, or unfavorable discharge from military service which would not interfere with the efficient performance of the job in question. The Seller will take affirmative action to comply with the provisions of Elgin Municipal Code Section 5.02.040 and will require any subcontractor to submit to the City a written commitment to comply with those provisions. The Seller will distribute copies of this commitment to all persons who participate in recruitment, screening, referral and selection of job applicants, prospective job applicants, and subcontractors. The persons 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. FULL SWING GOLF, INC. CI ELGIN ii.z,r Cory Coder Print Name Richard G. Kozal, City Manager Co der(Oct 24,202412:43 PDT) Attest: Signature CFO Title City Clerk Legal Dept\Agreemenffull Swing Golf-Golf Simulators-Purchase Agr-10-24-24.docx 4 ATTACHMENT A Full Swing Goff, Inc. P: 858.675.1100 FULL S w i 1 1 G 1905 Aston Ave#100 F: 858.675.1191 Carlsbad,CA 92008 W: fullswinggolf.com TO I Brian Lode I Sales Representative Number:0-56512 1010 Wing St 1905 Aston Ave Issue Date:9/30/24 Elgin,IL 60123 Carlsbad,CA 92008 Expiration Date: 12/10/24 United Slates United States (858)251-0388 bri 2n.lodfak!lswin,colf.com Description Oty List Price Sales Price List Total Sales Total Simulators Pro 2.0 Series Simulator(P408-A) Pro 2.0 Simulator: What's Included:Pro 2.0 hardware components including overhead lon3&infrared HyperClear Cameras for both RH and LH players,premium 3 $55,900 00 $53,105 00 $167,700.00 $159,315.00 solid-wood enclosure&platform,custom-built computer,enhanced premium projector,24"LCD Touchscreen,energy absorbing diffuser screen and professional grade hitting mat&sound bar. Software FS Unlimited Subscription FS Unlimited:The Full Package combining Full Swing GOLF+Full Swing GAMES software to 6 $1,800.00 $1,800.00 $10,800.00 $10,800.00 give you the ultimate in simulator entertainment New courses,features,games and more being added through easy to download updates. FSG Bay Manager Software 8 $1,000.00 $1,000.00 $8,000.00 $8.000.00 Licensing,Per Bay Showdown Golf 3 $3,495.00 Included $10,485.00 Included 20 Golf Skills Challenges Software,Sports Pack 3 Multi-Sport License Includes.Soccer,Lacrosse, Rugby.Hockey,Cricket,Zombie Dodgeball,Home 3 $10,000.00 Included $30,000.00 Included Run Derby,Field Goal Challenge,High Heat,OB Challenge,Basketball,Bocce,Carnival Shipping&Installation Shipping Standard Simulator 3 $3,100.00 $3,100.00 $9,300.00 $9,300.00 Installation Standard Simulator 3 $3,750.00 $3,750.00 $11,250.00 $11,250.00 Booth Installation 3 $1,000.00 $1,000.00 $3,000.00 $3,000.00 Tax _ Tax 3 Included Included Included Included Projector Pro Standard Projector,Included 3 Included Included Included 1 Included Laser,HD,WUXGA,7000 Lumens List Total $250,535.00 Discount $48,870.00 Sales Tax See Local Rates Net Total $201,665.00 Deposit Amount $50,416.25 Signature: Date: Page 1 of 2 Full Swing Golf, Inc. P: 858.675.1100 FULL s w i n 6 1905 Aston Ave #100 F:858.675.1191 Carlsbad,CA 92008 W:fullswinggolf.com TO I Grant C.Ilahan I International Sales Number:Q-57228 1250 Bowes Creek Blvd Representative Issue Date: 10/10/24 Elgin,IL 60124 1905 Aston Ave Expiration Date: 12/29/24 United States Carlsbad,CA 92008 United States +18582329781 grant ca'Iahen(fullswmggolf. om Description Qty List Price Sates Price List Total Sales Total Software FS Golf Kit Subscription The newest way for everyone to enjoy full golf 10 $500.00 $500.00 $5,000.00 $5,000.00 experience while using the FS Kit Launch Monitor Quantity paced perjear,subscription product_ Shipping&Installation Installation 1 $3,500.00 $3,500.00 $3,500.00 $3,500.00 Shipping/Handling Shipping/Handling 1 Included Included Included Included Launch Monitor Full Swing Kit Studio:Kit,10ft Enclosure,PC, Projector,Ceiling Mount 5 $14,000.00 $12,800.00 $70,000.00 $64,000.00 Full Swing Kit Studio:Kit,10ft Enclosure,PC, Projector.Ceiling Mount List Total $78,500.00 Discount $6,000.00 Net Total $72,500.00 Signature: Date Pnnt Name: Page 1 of 1 Full Swing Golf-Golf Simulators-Purchase Agr-1 0-24-24-w-Attach A Final Audit Report 2024-10-24 Created: 2024-10-24 By: Lisa Richards(Lisa.Richards@fullswinggolf.com) Status: Signed Transaction ID. CBJCHBCAABAAvwzRnNPMcA9eRsFzN_ovg0JubTCV2f7G "Full Swing Golf-Golf Simulators-Purchase Agr-10-24-24-w-Attac h A" History `,J Document created by Lisa Richards (Lisa.Richards@fullswinggolf.com) 2024-10-24-7:15:49 PM GMT El Document emailed to Cory Coder(cory.coder@fullswinggolf.com) for signature 2024-10-24-7:16:10 PM GMT v Email viewed by Cory Coder(cory.coder@fullswinggolf.com) 2024-10-24-7:43:06 PM GMT C.)-6, Document e-signed by Cory Coder(cory.coder@fullswinggolf.com) Signature Date:2024-10-24-7:43:13 PM GMT-Time Source:server 0 Agreement completed. 2024-10-24-7:43:13 PM GMT 121 Adobe Acrobat Sign