Agreement for Sale & Purchase of New Aquatic Climbing Wall CITY OF SALINA,KANSAS
AGREEMENT FOR SALE AND PURCHASE OF EQUIPMENT
This Agreement for Sale and Purchase of Equipment ("Agreement") is entered into March
14, 2016, by and between the City of Salina, Kansas (the "City") and Pyramide USA Inc., a
Maryland Corporation (the "Contractor").
Recitals
A. The City desires to contract for the purchase and delivery of a new aquatic climbing wall at
Kenwood Cove Aquatic Park, in compliance with federal, state, and local regulations.
B. The Contractor has the requisite qualifications and experience to furnish the goods and
services needed by the City and desires to furnish the goods and services pursuant to the terms of this
Agreement.
The parties, in consideration of the mutual promises set forth in this Agreement, agree and
covenant:
1. Sale of Deliverables. The Contractor agrees to sell, and the City agrees to buy, the
equipment, accessories, and services specified in the attached and incorporated Exhibit A (the
"Deliverables"), all in accordance with the terms of this Agreement.
2. Schedule. The Contractor agrees to deliver the Deliverables to the Kenwood Cove
Aquatic Park, Salina, Kansas, on or before May 1, 2016.
3. Payment. In consideration for the Seller's delivery of the Deliverables, the City shall
pay to the Contractor the sum of$27,627.00. Notwithstanding anything to the contrary contained in
the City's Standard Purchase Terms and Conditions, the purchase price shall be paid in two (2) equal
lump sum amounts of $13,813.50 with one payment due as deposit with the order and the second
payment upon the satisfactory delivery of all Deliverables to the Kenwood Cove Aquatic Park on the
Acceptance Date.
4. Incorporation of Standard Purchase Terms and Conditions. This Agreement
shall be deemed to include, and shall be subject to, the City's Standard Purchase Terms and
Conditions, which are set forth in the attached and incorporated Exhibit B.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
authorized representatives.
CITY 0 S• KANSAS Pyramide USA Inc.
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By: MVO By: / Cf-'"v�-
Jon R. Blanc ard, Mayor Dou ooke, Sales Director
Attest: 11.t I k ,Ai
Sh : W' s, CMC, City Clerk
Form: �., j 4111..�'
Couns j
Exhibit A
Description of Deliverables
The Deliverables purchased under this Agreement shall consist of the following items, all of
which shall conform to the design specifications and drawings attached hereto (the "Specifications"):
Account:
Pyramide USA Inc.
Aquaclimb Classic Product (5 panel high x 2 panel wide) Quantity
Model AC-C-A Ascent-Fiberglass Contoured Colored Panels I
Set of Support Legs
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EXHIBIT B
CITY OF SALINA, KANSAS
STANDARD PURCHASE TERMS AND CONDITIONS
1. Contractor's Obligations. The Contractor shall fully and timely provide all Deliverables described in
the Agreement in strict accordance with the terms, covenants, and conditions of this Agreement, the
Specifications, and all applicable federal, state, and local laws.
2. Effective Date; Term. This Agreement shall be effective as of the date of the City's purchase order,
and shall continue in effect until all obligations are performed in accordance with this Agreement. The
Contractor shall furnish the Deliverables, and provide all related services, on or before the date(s)or within the
time(s)specified in the Agreement.
3. Title&Risk of Loss.Title to and risk of loss of the Deliverables shall pass to the City only when clear
and unencumbered title to the Deliverables has been furnished to the City and Notification of Acceptance has
been issued by the City.
4. Delivery Terms and Transportation Charges. All deliveries shall be F.O.B. destination with all
transportation and handling charges paid by the Contractor. The place of delivery shall be that location set
forth in the purchase order.
5. Inspections; Rejection: Withholding Acceptance Pending Cure. The City expressly reserves all rights
to inspect the Deliverables within a reasonable time after delivery, and to reject defective or non-conforming
goods. Notwithstanding anything to the contrary contained in applicable law or in any laws of sales or
standards and practices in the industry, any acknowledgement of receipt or delivery of the Deliverables by the
City shall not constitute acceptance by the City or waiver of any defects or nonconformance. Acceptance of
the Deliverables shall not be deemed to occur until the City's issuance of the written Notification of
Acceptance to the Contractor. The City reserves the right to reject the Deliverables, in whole or in part, if the
Deliverables fail in any respect to conform to the Specifications and requirements contained in or made a part
of the Bid; if they are defective in any respect; or if they have not been properly or satisfactorily installed or
equipped. If the Deliverables are substantially in compliance with the Specifications, but are defective or
nonconforming to some degree, the City may, in its sole discretion, withhold acceptance until the Deliverables
are rendered non-defective and conform in every respect to the Agreement.
6. Invoices. Invoices shall be prepared and submitted in duplicate to the "ship-to" address specified on
the purchase order. Separate invoices are required for each purchase order. Invoices shall contain the
following information: purchase order number, item number, description of goods or services, sizes, units of
measure,quantity, unit price, and extended totals.
7. Payment. The City shall pay the Contractor for goods and services rendered, in one lump sum, which
shall be due and payable to Contractor within thirty (30) calendar days after the City's receipt of the invoice.
Provided, however, that no payment shall be due until after: (a) the City has issued a Notification of
Acceptance with respect to all Deliverables covered by the invoice; and (b) the Contractor has provided clear
and unencumbered title to the Deliverables. No. C.O.D.s will be accepted.
8. Warranties. The Contractor warrants and represents that all Deliverables sold to the City under this
Agreement shall be free from defects in design, workmanship or manufacture, and further represents and
warrants that all Deliverables shall conform in all material respects to: (i) the Specifications, drawings, and
descriptions; (ii) any samples furnished by the Contractor; (iii) the terms, covenants and conditions of this
Agreement; and (iv) all applicable state, federal or local laws, rules, and regulations, and industry codes and
standards. These warranties shall be in addition to any other warranty or guarantee provided by the Contractor.
Unless otherwise stated in the Specifications, the Deliverables shall be new merchandise, and not used or
reconditioned. The Contractor may not limit, exclude or disclaim the forgoing warranties or any warranty
implied by law, and any attempt to do so shall be without force or effect. The warranty period shall be at least
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one year from the date of acceptance of the Deliverables or from the date of acceptance of any replacement
Deliverables, or such longer period as may be required by the Specifications. If the Contractor is not the
manufacturer and the Deliverables are covered by a separate manufacturer's warranty, the Contractor shall
transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty
cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest
extent to enforce such manufacturer's warranty for the benefit of the City.
9. Indemnification. To the fullest extent permitted by law, the Contractor shall defend, indemnify and
hold harmless the City, its agents, representatives, officers, officials and employees from and against all
claims,damages, losses and expenses (including but not limited to attorney fees and court costs) attributable to
bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property, including loss of
use resulting therefrom, to the extent that such claims, damages, losses, and expenses relate to, arise out of, or
are alleged to have resulted from the wrongful acts, errors, mistakes, omissions, or defective work or services
of the Contractor,its employees, agents,or any tier of subcontractors in the performance of this Agreement.
10. Default. The Contractor shall be in default under this Agreement if the Contractor fails to perform any
of its obligations under this Agreement within ten (10)days after written notice to comply has been mailed by
the City to the Contractor("Event of Default").
11. Remedies. Upon the occurrence of an Event of Default, the City may exercise any or all of the
following remedies, which are in addition to, and not in lieu of, any other remedies available to the City under
law or equity: (a) terminate this Agreement and the Contractor's rights under the Agreement; (b) procure the
Deliverables from another source, and hold the Contractor liable for the difference in cost together with
incidental and consequential damages, including costs and reasonable attorney fees; or(c)hold the Contractor
liable for the difference between market price of the Deliverables and the agreed price herein, together with
incidental and consequential damages, including costs and reasonable attorney fees. In addition, the City may
pursue any available remedy at law or in equity(including specific performance)by suit, action, mandamus or
other proceeding to enforce and compel the performance of the Contractor's duties and obligations set forth in
this Agreement, to enforce or preserve any other rights or interests of the City under this Agreement or
otherwise existing at law or in equity and to recover any damages incurred by the City resulting from such
Event of Default.
12. Termination without Cause. The City shall have the right to terminate this Agreement, in whole or in
part, without cause, at any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice
of termination, the Contractor shall promptly cease all further work pursuant to the Agreement, with such
exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of
funds appropriated or otherwise legally available for such purposes, for all goods delivered and services
performed and obligations incurred prior to the date of termination in accordance with the terms hereof.
13. Special Tools and Test Equipment. If the price stated in the Agreement includes the cost of any
special tooling or special test equipment fabricated or required by the Contractor for the purpose of fulfilling
this Agreement, such special tooling equipment and any process sheets related thereto shall become the
property of the City and shall be identified by the Contractor as such.
14. Equal Opportunity.
(a) In conformity with the Kansas act against discrimination and Chapter 13 of the Salina Code, the
Contractor and its subcontractors, if any, agree that:
(1) The Contractor shall observe the provisions of the Kansas act against discrimination and Chapter 13
of the Salina Code and in doing so shall not discriminate against any person in the performance of
work under this Agreement because of race, sex, religion, age, color, national origin, ancestry or
disability;
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(2) The Contractor shall include in all solicitations, or advertisements for employees, the phrase "equal
opportunity employer,"or a similar phrase to be approved by the city's human relations director;
(3) If the Contractor fails to comply with the manner in which the Contractor reports to the Kansas
human rights commission in accordance with the provisions of K.S.A. 44-1031 and amendments
thereto, the Contractor shall be deemed to have breached this Agreement and it may be canceled,
terminated or suspended, in whole or in part,by the City;
(4) If the Contractor is found guilty of a violation of Chapter 13 of the Salina Code or the Kansas act
against discrimination under a decision or order of the Salina human relations commission or the
Kansas human rights commission which has become final, the Contractor shall be deemed to have
breached this Agreement and it may be canceled, terminated or suspended, in whole or in part, by the
City;
(5) The Contractor shall not discriminate against any employee or applicant for employment in the
performance of this Agreement because of race, sex, religion, age, color, national origin, ancestry or
disability; and
(6) The Contractor shall include similar provisions in any subcontract under this Agreement.
(b) The provisions of this section shall not apply to this Agreement if the Contractor:
(1) Employs fewer than four employees during the term of this Agreement;or
(2) Contracts with the City for cumulatively$5,000 or less during the City's calendar fiscal year.
15. Taxes. The equipment purchased hereunder is purchased by the City, a tax exempt entity, for public
and municipal purposes and the parties understand that this sale shall be exempt from taxation.
16. Patent and Copyright Infringement. The Contractor shall be required to pay all royalties and license
fees and shall defend, indemnify, and hold harmless the City, its agents, representatives, officers, officials and
employees from liability of any nature or kind, including costs and expenses,for or on account of any patented
or unpatented invention, process, article, or appliance manufactured or used in the performance of this
Agreement, including its use by the City.
17. Non-appropriation. The City is subject to Kansas budget and cash basis laws, and operates on a
calendar fiscal year. In the event that this Agreement involves financial obligations spanning multiple fiscal
years for the City, it is subject to annual appropriation by the City's governing body for future fiscal years. If
the City's governing body does not appropriate the funds necessary to fulfill the City's financial obligations
pursuant to this Agreement, the City shall so notify the other parties to this Agreement and this Agreement
shall be null and void for purposes of the fiscal year(s) affected by the decision of the governing body not to
appropriate.
18. Relationship. It is expressly understood that the Contractor, in performing services under this
Agreement, does so as an independent contractor. The City shall neither have nor exercise any control or
direction over the methods by which Contractor performs its services hereunder. The sole interest and
responsibility of the City is to see that the services covered by this Agreement are performed and rendered in a
competent, efficient, and satisfactory manner. The Contractor shall be exclusively responsible for all taxes,
withholding payments, employment-based benefits, deferred compensation plans, including but not limited to
its workers compensation and social security obligations, and the filing of all necessary documents, forms, or
returns pertinent to the foregoing.
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19. Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing
and delivered personally or sent by registered or certified mail, return receipt requested, or by generally
recognized,prepaid,commercial courier or overnight air courier service. Notice shall be considered given when
received on the date appearing on the return receipt, but if the receipt is not returned within five (5) days, then
three (3) days after mailed, if sent by registered or certified mail or commercial courier service; or the next
business day, if sent by overnight air courier service. Notices to the Contractor shall be to the address specified
in the Agreement,or at such other address as the Contractor may designate via a written notice to the City. Notices
to the City shall be addressed to the City of Salina,Attn:City Clerk,P.O.Box 736,Salina,Kansas 67402-0736.
20. Compliance with Applicable Law. The Contractor shall comply with all applicable federal, state, and
local law in the performance of this Agreement.
21. Administration of Agreement. All references in this Agreement to City's participation or approval shall
mean the participation or approval of the City Manager,or his or her designee,unless otherwise provided herein.
22. Attorney Fees. If any suit or action is instituted by either party hereunder, including all appeals, the
prevailing party in such suit or action shall be entitled to recover reasonable attorney fees and expenses from the
non-prevailing party, in addition to any other amounts to which it may be entitled.
23. Right to Independent Legal Advice. The Contractor understands and acknowledges the right to have this
Agreement reviewed by legal counsel of the Contractor's choice.
24. Applicable Law; Venue. This Agreement and its validity, construction and performance shall be
governed by the laws of Kansas. In the event of any legal action to enforce or interpret this Agreement, the sole
and exclusive venue shall be in the Saline County,Kansas District Court.
25. Interpretation. This Agreement shall be interpreted according to its fair meaning, and not in favor of or
against any party.
26. Time. Time is of the essence of this Agreement. No extension will be granted unless in writing and
signed by the parties. Should the end of a time period fall on a legal holiday that termination time shall extend to
5:00 p.m.of the next full business day.
27. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not
render the other provisions unenforceable,invalid,or illegal.
28. Amendments. Neither this Agreement nor any of its terms may be changed or modified, waived, or
terminated except by an instrument in writing signed by an authorized representative of the party against whom the
enforcement of the change, waiver, or termination is sought. Without limiting the foregoing, no pre-printed or
similar terms on any invoice, order, or other document shall have any force or effect to change the terms,
covenants,and conditions of this Agreement.
29. Waiver. No failure or delay by a party hereto to insist on the strict performance of any term of this
Agreement, or to exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any
breach or any subsequent breach of such term. No waiver of any breach hereunder shall affect or alter the
remaining terms of this Agreement, but each and every term of this Agreement shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof.
30. Conflict Resolution. No interpretation of this Agreement shall be allowed to find the City has agreed to
binding arbitration.
31. No Third Party Beneficiaries. Solely the parties to this Agreement shall have rights and may make claims
under this Agreement. There are no intended third party beneficiaries under this Agreement, and no third parties
shall have any rights or make any claims hereunder.
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32. Feminine-Masculine,Singular-Plural.
Wherever used, singular shall include the plural, plural the singular, and use of any gender shall include all
genders.
33. Headings. The headings of the sections of this Agreement are included for the purposes of
convenience only and shall not affect the interpretation of any provision hereof.
34. Binding Effect. This Agreement shall extend to and bind the heirs, executors, administrators, trustees,
successors and authorized assigns of the parties hereto.
35. Non-Assignable.Due to the unique qualifications and capabilities of the Contractor,neither the rights nor
responsibilities provided for under this Agreement shall be assignable by either party,either in whole or in part.
36. Entire Agreement. This Agreement constitutes the entire agreement between parties and supersedes all
prior oral written understandings. This Agreement shall not be altered, modified, amended or changed except
by written amendment signed by the parties.
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