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Contract - Whirlix Design Inc. - 2/28/2019 CITY OF ROUND ROCK AGREEMENT FOR PURCHASE AND INSTALLATION OF PLAY EQUIPMENT AT MEMORIAL PARK WITH WHIRLIX DESIGN INC. THE STATE OF TEXAS § CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON § COUNTY OF TRAVIS § THAT THIS AGREEMENT for the purchase and installation of play equipment and the demolition and removal of existing equipment at Memorial Park, and for related goods and services (referred tq herein as the "Agreement"), is made and entered into on this the�day of the month of� ((� , 2019 by and between the CITY OF ROUND ROCK, a Texas home-rule municipality, Rose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (referred to herein as the "City"), and WHIRLIX DESIGN INC., whose offices are located at 1761 International Parkway, Suite 125, Richardson, Texas 75081 (referred to herein as"Vendor"). RECITALS: WHEREAS, City desires to purchase certain deliverables, installation and demolition services for play equipment at Memorial Park and City desires to procure same from Vendor; and WHEREAS, City is a member of the Buy Board Cooperative Purchasing Program ("Buy Board") and Vendor is an approved Buy Board vendor; and WHEREAS, City desires to purchase of certain goods and services from Vendor through Buy Board Contract No. 512-16 as set forth herein; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 00416426/ss2 inconsistencies or conflicts in the contract documents shall be resolved by giving preference to the terms and conditions of this Agreement. 4.01 SCOPE OF WORK Vendor shall satisfactorily provide all goods and complete all services described in Vendor's Proposal,Exhibit"A," attached hereto and incorporated herein. This Agreement shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Vendor shall satisfactorily provide all deliverables and services described in Exhibit "A" within the contract term specified. A change in the Scope of Services must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described herein. 5.01 CONTRACT AMOUNT In consideration for the deliverables and services related to the deliverables, the City agrees to pay Vendor One Hundred Sixty-Nine Thousand Four Hundred Twenty- Five and No/100 Dollars ($169,425.00)for the goods and services set forth in Exhibit"A." 6.01 INVOICES All invoices shall include, at a minimum,the following information: A. Name and address of Vendor; B. Purchase Order Number; C. Description and quantity of items received or services provided; and D. Delivery or performance dates. 7.01 NON-APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving Vendor a written notice of termination at the end of its then current fiscal year. 3 12.01 CITY'S REPRESENTATIVE City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Katie Baker Park Development Manager City of Round Rock 301 W.Bagdad Avenue, Suite 250 Round Rock, Texas 78664 13.01 INSURANCE Vendor shall meet all City of Round Rock Insurance Requirements set forth at insurance requirements as required by the City's Purchasing Department as set forth at: http://www.roundrocktexas.gov/wp-content/uploads/2014/12/corr insurance 07 20112 pdf 14.01 RIGHT TO ASSURANCE Whenever either party to this Agreement, in good faith, has reason to question the other party's intent to perform hereunder, then demand may be made to the other party for written assurance of the intent to perform. In the event that no written assurance is given within the reasonable time specified when demand is made, then and in that event the demanding party may treat such failure as an anticipatory repudiation of this Agreement. 15.01 DEFAULT If Vendor abandons or defaults under this Agreement and is a cause of City purchasing the specified goods elsewhere, Vendor agrees that it may be charged the difference in cost, if any, and that it will not be considered in the re-advertisement of the service and that it may not be considered in future bids for the same type of work unless the scope of work is significantly changed. Vendor shall be declared in default of this Agreement if it does any of the following: A. Fails to fully, timely and faithfully perform any of its material obligations under this Agreement; B. Fails to provide adequate assurance of performance under the "Right to Assurance" section herein; or C. Becomes insolvent or seeks relief under the bankruptcy laws of the United States. 5 Commission on Environmental Quality (TCEQ) and the Texas Pollutant Discharge Elimination System (TPDES). The Vendor agrees to perform all operations on City-owned facilities in compliance with the City's Illicit Discharge Ordinance to minimize the release of pollutants into the MS4. The Vendor agrees to comply with of the City's storrnwater control measures, good housekeeping practices and any facility specific stormwater management operating procedures specific to a certain City facility. In addition, the Vendor agrees to comply with any applicable TCEQ Total Maximum Daily Load(TMDL)Requirements and/or I-Plan requirements. C. In accordance with Chapter 2270, Texas Government Code, a governmental entity may not enter into a contract with a company for goods and services unless the contract contains written verification from the company that it: (1) does not boycott Israel; and (2) and will not boycott Israel during the term of the contract. The signatory executing this Agreement on behalf of Vendor verifies that Vendor does not boycott Israel and will not boycott Israel during the term of this Agreement. 19.01 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. 20.01 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 1. When delivered personally to the recipient's address as stated in this Agreement; or 2. Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Vendor: Whirlix Design Inc. 1761 International Parkway, Suite 125 Richardson, Texas 75081 Notice to City: City Manager Stephan L. Sheets, City Attorney 221 East Main Street AND TO: 309 East Main Street Round Rock, TX 78664 Round Rock, TX 78664 7 agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully responsible for its delays or for failures to use best efforts in accordance with the terms of this Agreement. Where damage is caused to City due to Vendor's failure to perform in these circumstances, City may pursue any remedy available without waiver of any of City's additional legal rights or remedies. Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible as defined herein. However, notice of such impediment or delay in performance must be timely given and all reasonable efforts undertaken to mitigate its effects. Multiple Counterparts. This Agreement may be executed in multiple counterparts, any one of which shall be considered an original of this document; and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates indicated. City of Rou Rock, Texas Whirlix Design Inc. By: By Printed N Printed e: Title: MA L4 Title: Date Signed: Date Signed: 1 ed Attest: By: Sara91.Klhiite., ity Clerk For City,Apf oved as to Fo . By: L C4.4 Stephan k Sheets, City Attorney DEBARMENT AND SUSPENSION CERTIFICATION This certification is required by the Federal Regulations implementing Executive Order 12549, Debarment and Suspension, 45 CFR Part 93, Government-wide Debarment and Suspension, for the Department of Agriculture (7 CFR Part 3017), Department of Labor(29 CFR Part 98), Department of Education (34 CFR Parts 85, 668, 682), Department of Health and Human Services (45 CFR Part 76). The undersigned certifies,to the best of his or her knowledge and belief,that both it and its principals: 1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency; 2. Have not within a three-year period preceding this contract been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or Local) transaction or contract under a public transaction, violation of federal or State antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements, or receiving stolen property; 3. Are not presently indicated for or otherwise criminally or civilly charged by a government entity with commission of any of the offense enumerated in Paragraph (2)of this certification; and, 4. Have not within a three-year period preceding this contract had one or more public transactions terminated for cause or default. Where the prospective recipient of federal assistance funds is unable to certify to any of the statements in this certification,such prospective recipient shall attach an explanation to this certification form. Name of Organization/Firm: LnlAA IP—L 1 X ) es)r, Signature of Authorized Representative: WHIRDES-01 ECARTWRIGHT CERTIFICATE OF LIABILITY INSURANCE DATDIYYYY) 1//161216/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Elaine M Cartwright Dyste Williams Agency PHONE FAX 6465 Wayzata Blvd,4700 (AIC,No,Ext):(952)843-4452 (A/c,No): Minneapolis,MN 55426-1751 ADD"RIESS:ecartwright@dystewilliams.com INSURERS AFFORDING COVERAGE NAIC# INSURER A:The Burlington Insurance Company 23620 INSURED INSURER 13:Chubb Insurance Company 41386 Whirlix Design Inc. INSURERC:SCottsdale Insurance Company 41297 1761 International Parkway,Suite 125 INSURER D: Richardson,TX 75081 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUER POLICY EFF POLICY EXP LIMITS L TYPE OF INSURANCE WVD POLICY NUMBER A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 CLAIMS-MADE [X]OCCUR X X 037BW46625 7/19/2018 7/19/2019 DAMAGE TO RENTED 100,000 PREMISES Ea occurrence $ X Blanket Forms MED EXP(Any oneperson) $ Excluded PERSONAL&ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY❑X PEI° 7X LOC PRODUCTS-COMP/OPAGG $ 2,000,000 OTHER: $ B AUTOMOBILE LIABILITY C e eBINEDtSINGLE LIMIT $ 1,000,000 X ANY AUTO 1973607283 1/2/2019 1/2/2020 BODILY INJURY Perperson) $ OWNEDSCHEDULED AUTOS ONLY AUTOS I BODILY INJURY Per accident $ HIRED NON.pWNED PROPERTY DAMAGE AUTOS ONLY X AUTOS ONLY Per accident $ C X UMBRELLA LIABX OCCUR EACH OCCURRENCE $ 2,000,000 EXCESS LIAB CLAIMS-MADE XLS0108819 1/1/2019 7/19/2019 AGGREGATE $ 2,000,000 DED I X I RETENTION$ 5,000 B WORKERS COMPENSATION X PER OTH- AND EMPLOYERS'LIABILITY STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVE YI❑N X 71771014 1/3/2019 1/3/2020 1,000,000 OFFICER/MEMBER EXCLUDED? NIA E.L.EACH ACCIDENT $ (Mandatory in NH) 1,000,000 If yes,describe under E.L.DISEASE-EA EMPLOYEE $ DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 B Property SERTXD5279335A1 1/3/2019 1/3/2020 As Scheduled DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Project:Contract#512-16,Memorial Park City of Round Rock,Williamson&Travis Counties,Texas City of Round Rock and its officers,employees and elected officials are named as an Additional Insured as their interest might appear.Coverage is primary non-contributory,with waiver of subrogation regarding general liability.Waiver of Subrogration applies to Work Comp as well.Policies provide for a 30-day notice of cancellation. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Round Rock THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Attn:Purchasing ACCORDANCE WITH THE POLICY PROVISIONS. 221 East Main Round Rock TX AUTHORIZED REPRESENTATIVE Round Rock,TX 78664 ACORD 25(2016/03) @ 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 037BW46625 COMMERCIAL GENERAL LIABILITY CG 24 04 05 09 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Person Or Organization: Any person or organization with whom you have agreed, in a written contract to waive the transfer of rights of recovery against others to us, provided such written waiver is fully executed prior to an 'occurrence" In which coverage is sought under this policy. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. The following is added to ParagrEph 8. Transfer Of Rights Of Recovery Against Others To Us of Section 1V—Cond it ions: We waive any right of recovery wemay have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products- completed operations hazard". This waiver applies only to the person or organization shown in the Schedule above. CG 24 04 05 09 0 Insurance Services Office, Inc.,2008 Page 1 of 1 ❑ C. With respect to the insurance afforded to these 2. Available under the applicable Limits of additional insureds, the following is added to Insurance shown in the Declarations; Section III—Limits Of Insurance: whichever is less. If coverage provided to the additional insured is This endorsement shall not increase the applicable required by a contract or agreement, the most we Limits of Insurance shown in the Declarations. will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement;or Page 2 of 2 0 Insurance Services Office, Inc., 2012 CG 20 10 0413 IL 00 1711 98 COMMON POLICY CONDITIONS All Coverage Parts included in this policy are subject to the following conditions. A. Cancellation b. Give you reports on the conditions we find; 1. The first Named Insured shown in the Declara- and tions may cancel this policy by mailing or deliv- c. Recommend changes. ering to us advance written notice of cancella- 2. We are not obligated to make any inspections, tion. surveys, reports or recommendations and any 2. We may cancel this policy by mailing or deliver- such actions we do undertake relate only to fin- ing to the first Named Insured written notice of surability and the premiums to be charged. We cancellation at least: do not make safety inspections. We do not un- a. 10 days before the effective date of cancel- dertake to perform the duty of any person or lation if we cancel for nonpayment of premi- organization to provide for the health or safety um;or of workers or the public. And we do not warrant b. 30 days before the effective date of cancel- that conditions:a. Are safe or healthful; or lation if we cancel for any other reason. 3. We will mail or deliver our notice to the first b. Comply with laws, regulations, codes or Named Insured's last mailing address known to standards. us. 3. Paragraphs 1. and 2. of this condition apply not 4. Notice of cancellation will state the effective only to us, but also to any rating, advisory, rate date of cancellation. The policy period will end service or similar organization which makes in- on that date. surance inspections, surveys, reports or rec- 5. If this policy is cancelled, we will send the first ommendations. Named Insured any premium refund due. If we 4. Paragraph 2. of this condition does not apply to cancel, the refund will be pro rata. If the first any inspections, surveys, reports or recom- Named Insured cancels, the refund may be mendations we may make relative to certifica- less than pro rata. The cancellation will be ef- tion, under state or municipal statutes, ordi- fective even if we have not made or offered a nances or regulations, of boilers, pressure ves- refund. sels or elevators. 6. If notice is mailed, proof of mailing will be suffi- E. Premiums cient proof of notice. The first Named Insured shown in the Declara- B. Changes tions: This policy contains all the agreements between 1. Is responsible for the payment of all premiums; you and us concerning the insurance afforded. and The first Named Insured shown in the Declarations 2. Will be the payee for any return premiums we is authorized to make changes in the terms of this pay. policy with our consent. This policy's terms can be F. Transfer Of Your Rights And Duties Under This amended or waived only by endorsement issued Policy by us and made a part of this policy. C. Examination Of Your Books And Records Your rights and duties under this policy may not be transferred without our written consent except in We may examine and audit your books and rec- the case of death of an individual named insured. ords as they relate to this policy at any time during If you die, your rights and duties will be transferred the policy period and up to three years afterward. to your legal representative but only while acting D. Inspections And Surveys within the scope of duties as your legal representa- 1. We have the right to: tive. Until your legal representative is appointed, anyone having proper temporary custody of your a. Make inspections and surveys at any time; property will have your rights and duties but only with respect to that property. IL 0017 1198 Copyright, Insurance Services Office, Inc., 1998 Page 1 of 1 ❑ shall not reduce any Such. a 3. Any payments made under Coverage A for 2payments y damages or under Coverage C for medical Designated Construction Project General expenses shall reduce the Designated Aggregate Limit. Construction Project General Aggregate Limit C. The most we will pay as damages caused by for that designated construction project. Such 'occurrences"for all Construction Projects whether payments shall not reduce the General designated or not is the General Aggregate For All Aggregate Limit shown in the Declarations nor Construction Projects Combined Limit shown in the shall they reduce any other Designated Schedule above. Construction Project General Aggregate Limit D. When coverage for liability arising out of the for any other designated construction project "products-completed operations hazard" is shown in the Schedule above. provided, any payments for damages because of 4. The limits shown in the Declarations for Each "bodily injury" or 'property damage" included in the Occurrence, Damage To Premises Rented To "products-completed operations hazard"will reduce You and Medical Expense continue to apply. the Products-Completed Operations Aggregate However, instead of being subject to the Limit, and not reduce the General Aggregate Limit General Aggregate Limit shown in the nor the Designated Construction Project General Declarations, such limits will be subject to the Aggregate Limit. applicable Designated Construction Project E. If the applicable designated construction project General Aggregate Limit. has been abandoned, delayed, or abandoned and B. For all sums which the insured becomes legally then restarted, or if the authorized contracting obligated to pay as damages caused by parties deviate from plans, blueprints, designs, "occurrences" under Section I - Coverage A, and specifications or timetables, the project will still be for all medical expenses caused by accidents under deemed to be the same construction project. Section I-Coverage C,which cannot be attributed F. The provisions of Section III-Limits Of Insurance only to ongoing operations at a single designated not otherwise modified by this endorsement shall construction project shown in the Schedule above: continue to apply as stipulated. 1. Any payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the amount available All other terms and conditions of this Policy remain under the General Aggregate Limit or the unchanged. Products-Completed Operations Aggregate Limit, whichever is applicable; and IFG-G-0065 03 17 Includes copyright material of Page 2 of 2 ISO Properties, Inc.,with its permission. CERTIFICATE OF INTERESTED PARTIES FORM 12J5 1 of 1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2019-442703 Whirlix Design Inc Richardson,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 01/17/2019 being filed. City of Round Rock Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. Memorial Park Purchase and Installation Agreement(01.15.19) (00416429xA08F8) 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary Foret,Tiffany Richardson,TX United States X Smith,Tom Richardson,TX United States X Paquette, David Richardson,TX United States X Edmundson,Jason Richardson,TX United States X Edgar,Tracey Spicewood,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION My name is re. and my date of birth is 20 My address is — (�i� �O(� l�� 1 Jr�A U� � —1 x `{ A (street) (city) (state) (zip code) (country) declare under penalty of perrj/j�uryy�that the foregoing is true and correct. Executed in ; VUJ County, State of I " 1` on the L—clay of 20 . (month) (year) Signature ofh rize4 a ent of kontcting bu ' ess entity (De arant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.1.28ab6150 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2019-442703 Whirlix Design Inc Richardson,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 01/17/2019 being filed. City of Round Rock Date Acknowledged: 01/31/2019 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. Memorial Park Purchase and Installation Agreement(01.15.19)(00416429xA08F8) 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling Intermediary Foret,Tiffany Richardson,TX United States X Smith,Tom Richardson,TX United States X Paquette, David Richardson,TX United States X Edmundson,Jason Richardson,TX United States X Edgar,Tracey Spicewood,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION My name is and my date of birth is My address is , (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in County, State of on the day of ,20 (month) (year) Signature of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.1.28ab6150