Attachment 1 - Draft Purchase and Service Agreement with Exhibit A (NPPGov Cooperative Procurement Agreement) ATTACHMENT 1
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Purchase and Service Agreement - Ross Recreation Equipment
PURCHASE AND SERVICE AGREEMENT
THIS AGREEMENT is dated for identification this 15th day of August 2023 and is made by and
between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Ross Recreation
Equipment, (“Supplier”), identified as an S Corporation and whose address is 100 Brush Creek Road,
Suite 206, Santa Rosa, CA 95404. This Agreement is made with reference to the following facts.
I. RECITALS
1.1 Town reviewed potential suppliers through NPPgov, and Supplier was found to be an
approved supplier for this purchase.
1.2 Supplier represents that it is a qualified and competent supplier of the items to be purchased
under this Agreement.
1.3 The Town desires to engage Supplier to provide service to replace play structure equipment
at Howes Play Lot.
1.4 The Supplier represents and affirms that it is qualified and willing to perform the desired
work pursuant to this Agreement.
II. AGREEMENTS
2.1 Supplies and Terms. Supplier hereby agrees to deliver to Town the items and materials
described in Exhibit A, which is attached hereto and incorporated by reference. The terms
and conditions are as follows:
(1) Price. Town shall pay Supplier the amounts defined in Exhibit A $115,884 plus five
percent for unforeseen repairs for a total agreement amount not to exceed
$121,678, which include sales tax and delivery charges. Payment shall be net 30 days
from delivery.
(2) Delivery. The delivery of the items and materials shall be on a mutually agreed upon
date. Delivery shall be made between 8:00 a.m. and 5:00 p.m. on weekdays that are
not Town holidays or furlough days.
2.2 Time of the Essence. Prompt delivery of the items and materials is essential to this
Agreement.
2.3 Scope of Services. Supplier shall provide services as described in that certain Proposal sent
to the Town on May 10, 2023, which is hereby incorporated by reference and attached as
“Exhibit A.”
2.4 Time of Performance. Notwithstanding Section 2.1(2), this agreement will remain in effect
upon execution until December 31, 2024.
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2.5 Compliance with Laws. The Supplier shall comply with all applicable laws, codes, ordinances,
and regulations of governing federal, state and local laws. Supplier represents and warrants
to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature
which are legally required for Supplier to practice its profession. Supplier shall maintain a
Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los
Gatos.
2.6 Sole Responsibility. Supplier shall be responsible for employing or engaging all persons
necessary to perform the services under this Agreement.
2.7 Information/Report Handling. All documents furnished to Supplier by the Town and all
reports and supportive data prepared by the Supplier under this Agreement are the Town’s
property and shall be delivered to the Town upon the completion of Supplier's services or
at the Town's written request. All reports, information, data, and exhibits prepared or
assembled by Supplier in connection with the performance of its services pursuant to this
Agreement are confidential until released by the Town to the public, and the Supplier shall
not make any of the these documents or information available to any individual or
organization not employed by the Supplier or the Town without the written consent of the
Town before such release. The Town acknowledges that the reports to be prepared by the
Supplier pursuant to this Agreement are for the purpose of evaluating a defined project, and
Town's use of the information contained in the reports prepared by the Supplier in
connection with other projects shall be solely at Town's risk, unless Supplier expressly
consents to such use in writing. Town further agrees that it will not appropriate any
methodology or technique of Supplier which is and has been confirmed in writing by
Supplier to be a trade secret of Supplier.
2.8 Compensation. Compensation for the supplies and materials delivered and for supplier's
professional services in the amount of $115,884 plus five percent for unforeseen repairs
for a total agreement amount not to exceed $121,678, inclusive of all costs. Payment
shall be based upon Town approval of each task. Subject to appropriation of funds,
notwithstanding any other provision in this agreement.
2.9 Billing. Billing shall be by invoice within thirty (30) days of the rendering of the services and
shall be accompanied by a detailed explanation of the work performed by whom at what
rate and on what date. Also, plans, specifications, documents or other pertinent materials
shall be submitted for Town review, even if only in partial or draft form.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall be
addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031-0655
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2.10 Availability of Records. Supplier shall maintain the records supporting this billing for not less
than three years following completion of the work under this Agreement. Supplier shall
make these records available to authorized personnel of the Town at the Supplier's offices
during business hours upon written request of the Town.
2.11 Assignability and Subcontracting. The services to be performed under this Agreement are
unique and personal to the Supplier. No portion of these services shall be assigned or
subcontracted without the written consent of the Town.
2.12 Independent Contractor. It is understood that the Supplier, in the performance of the work
and services agreed to be performed, shall act as and be an independent contractor and not
an agent or employee of the Town. As an independent contractor he/she shall not obtain
any rights to retirement benefits or other benefits which accrue to Town employee(s). With
prior written consent, the Supplier may perform some obligations under this Agreement by
subcontracting, but may not delegate ultimate responsibility for performance or assign or
transfer interests under this Agreement. Supplier agrees to testify in any litigation brought
regarding the subject of the work to be performed under this Agreement. Supplier shall be
compensated for its costs and expenses in preparing for, traveling to, and testifying in such
matters at its then current hourly rates of compensation, unless such litigation is brought by
Supplier or is based on allegations of Supplier's negligent performance or wrongdoing.
2.13 Conflict of Interest. Supplier understands that its professional responsibilities are solely to
the Town. The Supplier has and shall not obtain any holding or interest within the Town of
Los Gatos. Supplier has no business holdings or agreements with any individual member of
the Staff or management of the Town or its representatives nor shall it enter into any such
holdings or agreements. In addition, Supplier warrants that it does not presently and shall
not acquire any direct or indirect interest adverse to those of the Town in the subject of this
Agreement, and it shall immediately disassociate itself from such an interest, should it
discover it has done so and shall, at the Town's sole discretion, divest itself of such interest.
Supplier shall not knowingly and shall take reasonable steps to ensure that it does not
employ a person having such an interest in this performance of this Agreement. If after
employment of a person, Supplier discovers it has employed a person with a direct or
indirect interest that would conflict with its performance of this Agreement, Supplier shall
promptly notify Town of this employment relationship, and shall, at the Town's sole
discretion, sever any such employment relationship.
2.14 Equal Employment Opportunity. Supplier warrants that it is an equal opportunity employer
and shall comply with applicable regulations governing equal employment opportunity.
Neither Supplier nor its subcontractors do and neither shall discriminate against persons
employed or seeking employment with them on the basis of age, sex, color, race, marital
status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or
medical condition, unless based upon a bona fide occupational qualification pursuant to the
California Fair Employment & Housing Act.
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III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. Supplier agrees to have and maintain, for the duration of the contract,
General Liability insurance policies insuring him/her and his/her firm to an
amount not less than: two million dollars ($2,000,000) combined single limit
per occurrence for bodily injury, personal injury and property damage.
ii. Supplier agrees to have and maintain for the duration of the contract, an
Automobile Liability insurance policy ensuring him/her and his/her staff to an
amount not less than one million dollars ($1,000,000) combined single limit
per accident for bodily injury and property damage.
iii. Supplier shall provide to the Town all certificates of insurance, with original
endorsements effecting coverage. Supplier agrees that all certificates and
endorsements are to be received and approved by the Town before work
commences.
iv. Supplier agrees to have and maintain, for the duration of the contract,
professional liability insurance in amounts not less than $1,000,000 which is
sufficient to insure Supplier for professional errors or omissions in the
performance of the particular scope of work under this agreement.
General Liability:
i. The Town, its officers, officials, employees and volunteers are to be covered
as insured as respects: liability arising out of activities performed by or on
behalf of the Supplier; products and completed operations of Supplier,
premises owned or used by the Supplier. This requirement does not apply to
the professional liability insurance required for professional errors and
omissions.
ii. The Supplier's insurance coverage shall be primary insurance as respects the
Town, its officers, officials, employees and volunteers. Any insurance or self-
insurances maintained by the Town, its officers, officials, employees or
volunteers shall be excess of the Supplier's insurance and shall not contribute
with it.
iii. Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the Town, its officers, officials, employees or
volunteers.
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iv. The Supplier's insurance shall apply separately to each insured against whom
a claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
3.2 All Coverages. Each insurance policy required in this item shall be endorsed to state that
coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except
after thirty (30) days' prior written notice by certified mail, return receipt requested, has
been given to the Town. Current certification of such insurance shall be kept on file at all
times during the term of this agreement with the Town Clerk Administrator.
3.3 Workers’ Compensation. In addition to these policies, Supplier shall have and maintain
Workers' Compensation insurance as required by California law and shall provide evidence
of such policy to the Town before beginning services under this Agreement. Further,
Supplier shall ensure that all subcontractors employed by Supplier provide the required
Workers' Compensation insurance for their respective employees.
3.4 Indemnification. The Supplier shall save, keep, hold harmless and indemnify and defend the
Town its officers, agent, employees and volunteers from all damages, liabilities, penalties,
costs, or expenses in law or equity that may at any time arise or be set up because of
damages to property or personal injury received by reason of, or in the course of performing
work which may be occasioned by a willful or negligent act or omissions of the Supplier, or
any of the Supplier's officers, employees, or agents or any sub-contractor.
IV. GENERAL TERMS
4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder
shall operate as a waiver of any other right or remedy that party may have hereunder, nor
does waiver of a breach or default under this Agreement constitute a continuing waiver of
a subsequent breach of the same or any other provision of this Agreement.
4.2 Severability. If any term of this Agreement is held invalid by a court of competent
jurisdiction, the remainder of this Agreement shall remain in effect.
4.3 Warranty. Supplier shall remedy any defects due to faulty materials and/or workmanship
and pay for any damages to other work and/or existing facilities resulting therefrom which
shall appear within a period of one year from the date of recording of final acceptance.
4.4 Governing Law. This Agreement, regardless of where executed, shall be governed by and
construed to the laws of the State of California. Venue for any action regarding this
Agreement shall be in the Superior Court of the County of Santa Clara.
4.5 Termination of Agreement. The Town and the Supplier shall have the right to terminate this
agreement with or without cause by giving not less than fifteen days (15) written notice of
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termination. In the event of termination, the Supplier shall deliver to the Town all supplies
and services scheduled to be delivered to Town within that fifteen (15) day period.
4.6 Prevailing Wages. This project is subject to the requirements of Section 1720 et seq. of the
California Labor Code requiring the payment of prevailing wages, the training of apprentices
and compliance with other applicable requirements. Contractors and all subcontractors who
perform work on the project are required to comply with these requirements. Prevailing
wages apply to all projects over $1,000 which are defined as a “public work” by the State of
California. This includes: construction, demolition, repair, alteration, maintenance and the
installation of photovoltaic systems under a Power Purchase Agreement when certain
conditions are met under Labor Code Section 1720.6. This include service and warranty
work on public buildings and structures.
1. The applicable California prevailing wage rate can be found at www.dir.ca.gov and are on
file with the Town of Los Gatos Parks and Public Works Department, which shall be available
to any interested party upon request. The contractor is also required to have a copy of the
applicable wage determination posted and/or available at each jobsite.
2. Specifically, contractors are reminded of the need for compliance with Labor Code Section
1774-1775 (the payment of prevailing wages and documentation of such), Section 1776
(the keeping and submission of accurate certified payrolls) and 1777.5 in the employment
of apprentices on public works projects. Further, overtime must be paid for work in excess
of 8 hours per day or 40 hours per week pursuant to Labor Code Section 1811-1813.
3. Special prevailing wage rates generally apply to work performed on weekends, holidays and
for certain shift work. Depending on the location of the project and the amount of travel
incurred by workers on the project, certain travel and subsistence payments may also be
required. Contractors and subcontractors are on notice that information about such special
rates, holidays, premium pay, shift work and travel and subsistence requirements can be
found at www.dir.ca.gov.
4. Only bona fide apprentices actively enrolled in a California Division of Apprenticeship
Standards approved program may be employed on the project as an apprentice and receive
the applicable apprenticeship prevailing wage rates. Apprentices who are not properly
supervised and employed in the appropriate ratio shall be paid the full journeyman wages
for the classification of work performed.
5. The public entity for which work is being performed or the California Department of
Industrial Relations may impose penalties upon contractors and subcontractors for failure
to comply with prevailing wage requirements. These penalties are up to $200 per day per
worker for each wage violations identified; $100 per day per worker for failure to provide
the required paperwork and documentation requested within a 10-day window; and $25
per day per worker for any overtime violation.
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6. As a condition to receiving progress payments, final payment and payment of retention on
any and all projects on which the payment of prevailing wages is required, the contractor
agrees to present to the TOWN, along with its request for payment, all applicable and
necessary certified payrolls (for itself and all applicable subcontractors) for the time period
covering such payment request. The term “certified payroll” shall include all required
documentation to comply with the mandates set forth in Labor Code Section 1720 et seq,
as well as any additional documentation requested by the Agency or its designee including,
but not limited to: certified payroll, fringe benefit statements and backup documentation
such as monthly benefit statements, employee timecards, copies of wage statements and
cancelled checks, proof of training contributions (CAC2 if applicable), and apprenticeship
forms such as DAS-140 and DAS-142.
7. In addition to submitting the certified payrolls and related documentation to the TOWN,
the contractor and all subcontractors shall be required to submit certified payroll and
related documents electronically to the California Department of Industrial Relations.
Failure to submit payrolls to the DIR when mandated by the project parameters shall also
result in the withholding of progress, retention and final payment.
8. No contractor or subcontractor may be listed on a bid proposal for a public works project
unless registered with the Department of Industrial Relations pursuant to Labor Code
section 1725.5 [with limited exceptions from this requirement for bid purposes only under
Labor Code section 1771.1(a)].
9. No contractor or subcontractor may be awarded a contract for public work on a public
works project, unless registered with the Department of Industrial Relations pursuant to
Labor Code section 1725.5. Contractors MUST be a registered “public works contractor”
with the DIR AT THE TIME OF BID. Where the prime contract is less than $15,000 for
maintenance work or less than $25,000 for construction alternation, demolition or repair
work, registration is not required.
4.7 Amendment. No modification, waiver, mutual termination, or amendment of this
Agreement is effective unless made in writing and signed by the Town and the Supplier.
4.8 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, including costs of appeal.
4.9 Notices. Any notice required to be given shall be deemed to be duly and properly given if
mailed postage prepaid, and addressed to:
Town of Los Gatos
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
Ross Recreation Equipment
100 Brush Creek Road, Suite 206
Santa Rosa, CA 95404
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OR personally delivered to Supplier to such address or such other address as Supplier
designates in writing to Town.
4.10 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the
terms and conditions of this Agreement in respect of the Products or Services and any
attachments to this Agreement, then the terms and conditions of this Agreement shall
prevail over attachments or other writings.
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4.11 Entire Agreement. This Agreement, including all Exhibits, constitutes the complete and
exclusive statement of the Agreement between the Town and Supplier. No terms,
conditions, understandings or agreements purporting to modify or vary this Agreement,
unless hereafter made in writing and signed by the party to be bound, shall be binding on
either party.
IN WITNESS WHEREOF, the Town and Supplier have executed this Agreement.
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Nicolle Burnham
Director of Parks and Public Works
Ross Recreation Equipment, by:
Heather Hailey, Contract Administrator
Approved as to Form:
Gabrielle Whelan, Town Attorney
Attest:
Wendy Wood, CMC, Town Clerk
alexh@rossrec.comAlex Hailey
Ross Recreation Representative
$115,883.8400041337
$115,883.84Total
$8,334.00Freight Amount
$38,116.00Labor Amount
$5,878.84Tax Amount
$63,555.00Materials AmountNet 30 On Materials ShipmentCredit Terms
Check with Sales RepEst Lead Time
7/7/2023Quote Exp Date
6/9/2023Quote Date
Howes Damage ReplacementQuote Name
Howes Damage ReplacementOpportunity Name
00041337Quote Number
41 Miles Ave
Los Gatos, California 95030
United States
Ship To
Los Gatos, Town ofShip To Name
(408)399-5774Phone
110 E Main Street Lobby
Los Gatos, California 95030
United States
Bill To
Los Gatos, Town ofBill To Name
Nicolle BurnhamContact Name
ALL PURCHASE ORDERS, CONTRACTS, AND
CHECKS TO BE MADE OUT TO:
Ross Recreation Equipment, Inc.
100 Brush Creek Road, #206
Santa Rosa, CA. 95404
707.538.3800 - accounting@rossrec.com
PS21070
Prepared For:
Quantity Product Product Description Sales
Price Total Price
1.00 Demolition Removal and haul away of existing play equipment. Existing EWF will be pulled back and
reinstalled.$14,467.00 $14,467.00
1.00 PlayBooster,
5-12
Landscape Structures PlayBooster, ages 5-12. Design #1174773-01-01
Includes Spyroslide, Pinnacle, Chimney Climber, Loop seat, Vert Ladder, Cliff Climber,
Balcony Deck, Peak Roof.
$66,900.00 $66,900.00
1.00 Install - Play
Equipment
Installation of Landscape Structures PlayBooster design #1174773-01-01 by a manufacturer
certified installer. Quote does not include removal of existing Youth playstructure or
surfacing.
*Project DIR # needed for State Prevailing Wage projects.
*Installation price quoted for favorable working conditions. If rock, poor soil conditions, a
high water table and/or other unforeseen site conditions exist requiring additional materials
and labor, additional charges may be incurred.
*Installation quoted includes standard manufacturer provided footing details. If different
footing details are provided by the owner/specifier, a change order will be required.
*Installation quoted includes installing footings through native soil or 95% compacted base
rock. If installing through concrete, asphalt or through less compacted or permeable base or
drain rock, or in other conditions, please provide additional details and a change order may
be required.
$20,274.00 $20,274.00
1.00 NPP Ross
Discount Please Provide Customer NPP #-$3,345.00 -$3,345.00
1.00 Bond Payment & Performance Bonds $3,375.00 $3,375.00
EXHIBIT A
alexh@rossrec.comAlex Hailey
Ross Recreation Representative
$115,883.8400041337
Thank you for the opportunity to quote your
upcoming project. PLEASE NOTE: Quote does
not include engineering calculations, security,
storage, permits, inspection or safety surfacing,
unless otherwise noted. Unless noted, freight
costs are based on semi-truck access and do not
include a lift-gate.
Deposits may be required before an order can
be placed depending on customer credit terms.
Your purchase is subject to the terms and
conditions of this quote. Approval of this quote
agrees to those terms.
If ordering materials after the quoted expiration
date, please contact your sales representative
for current pricing. Due to material cost
increases and a fluid pricing environment, Ross
Recreation cannot hold pricing past the stated
Expiration Date on this quote. To secure current
pricing, Ross Recreation will require the
following:
- PO, signed quote or contract with approval for
the order.
- Deposit if required by credit terms.
- Color selections and/or approved submittals.
- Acceptance of delivery when materials or
equipment is ready to ship. Products cannot be
held nor stored.
Sales tax will be based on the current rate at the
time of shipping, not the order date. Customer
will be expected to cover these, or any changes,
to sales taxes.
Ross Recreation will provide labor using a
subcontractor for all installation and labor
quoted. Neither Ross Recreation, nor our
subcontractors, are signatory to any unions;
however, compliance with prevailing wage rate
requirements will occur. If union enrollment is
required by our subcontractor for completion of
this project, Ross Recreation will require a
Change Order to cover the costs of a per project
enrollment and additional wage/benefit
requirements.
Note to CustomerSignature _________________________________
Name ____________________________________
Title _____________________________________
Date _____________________________________
SIGNATURE BELOW ACCEPTING THIS PROPOSAL WILL CONSTITUTE A PURCHASE ORDER
ONLY UPON APPROVAL BY ROSS RECREATION EQUIPMENT, INC. CUSTOMER RECEIPT OF
AN ORDER ACKNOWLEDGEMENT CONSTITUTES SUCH APPROVAL.
Notes to Customer
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