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Contract - Playwell Group - 1/13/2022 CITY OF ROUND ROCK AGREENIENTFOR PURCHASE OF PLAN' EQUIPMENT AT BUCK EGGER PARK WITH THE PLAYWELL GROUP, INC. THE STATE OFTEXAS § CITY OF ROUND ROCK § KNONV ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON § COUNTY OF TRAVIS § THATTHIS AGREEMENT for the purchase of play equipment and the demolition and removal of existing eqUipinent at Buck Egger Park, and for related goods and ser-vices (referred to heifin as the "Agreement"), is made and entered into oil this the day of the month o uar4l 20221)y and between the CITY 01"' ROUND ROCK, a Texas 11011le-I.-Lile municipality, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (referred to herein as the"City"),and THE PLA YWf".`1L,l_ GROUP, INC., whose offices are located at 203A State Highway 46 East, Boerne, TX 78006 (referred to herein as "Venclor"). RECITALS: WHEREAS, City desires to purchase certain defiverables and demolition sel-vices for play equipment at Buck Egger Park-, and WHEREAS, City is a member of the Buy Board (I ooperative 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 Conti-act No. 592-19 as, set forth herein: and WHEREAS. the parties desire to enter into this AcTreement to set forth in writinty then- resp ective rights, dUties, and obligations; NOW, THEREFORE, WITNESSET11: 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: R-202-2-005 1 004�209'; ,2 1.01 DEFINITIONS A. Agreement means the binding legal contract between City and Vendor whereby City is obligated to buy specified goods and services and Vendor is obligated to sell same. The Agreement includes Vendor's Proposal dated September 14, 2021 (attached as Exhibit"A"). B. City means the City of Round Rock, Williamson and Travis Counties, Texas. C. Effective Date means the date upon which the binding signatures of both parties to this Agreement are affixed. D. Force Majeure means acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, orders of any kind from the government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides,lightning,earthquakes,fires,hurricanes,storms,floods,restraint of the government and the people, civil disturbances,explosions, or other causes not reasonably within the control of the party claiming such inability. E. Goods mean the specified supplies,materials, commodities, or equipment. F. Services mean work performed to meet a demand or effort by Vendor to comply with promised delivery dates, specifications, and technical assistance specified. 2.01 EFFECTIVE DATE,TERM AND PRICES FIRM A. This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. B. This Agreement shall terminate upon the demolition of the existing play equipment and the purchase and installation of all play equipment as described in Exhibit"A." C. Prices shall be firm for the duration of this Agreement. No separate line item charges shall be permitted for invoicing purposes, including but not limited to equipment rental, demurrage, costs associated with obtaining permits, or any other extraneous charges. D. City reserves the right to review the relationship with Vendor at any time, and may elect to terminate this Agreement with or without cause or may elect to continue. 3.01 CONTRACT DOCUMENTS AND EXHIBITS The goods and services which are the subject matter of this Agreement are described in Exhibit "A" and, together with this Agreement, comprise the Contract Documents. Any inconsistencies or conflicts in the contract documents shall be resolved by giving preference to the terms and conditions of this Agreement. 2 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 Eight Thousand Two Hundred Seventy-Two and 57/100 Dollars ($108,272.57) for the goods and services set forth in Exhibit"A." 6.01 INVOICES All invoices shall include, at a minimum,the following information: A. Mame 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 affect such termination by giving Vendor a written notice of termination at the end of its then current fiscal year. 8.01 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A.,Texas Government Code,payment to Vendor will be made within thirty(30) days of the day on which City receives the performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on which the performance of services was complete,or within thirty(30)days of the day on which City receives a correct invoice for the performance and/or deliverables or services, whichever is later. Vendor 3 may charge interest on an overdue payment at the"rate in effect"on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b); however, this Policy does not apply to payments made by City in the event: A. There is a bona fide dispute between City and Vendor, a contractor, subcontractor or supplier about the goods delivered or the service performed that cause the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Vendor and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late;or D. Invoices are not mailed to City in strict accordance with instructions, if any,on the purchase order or the Agreement or other such contractual agreement. 9.01 GRATUITIES AND BRIBES City may, by written notice to Vendor, cancel this Agreement without liability to Vendor if it is determined by City that gratuities or bribes in the form of entertainment, gifts,or otherwise were offered or given by Vendor or its agents or representatives to any City officer,employee or elected representative with respect to the performance of this Agreement. In addition,Vendor may be subject to penalties stated in Title 8 of the Texas Penal Code. 10.01 TAXES City is exempt from Federal Excise and State Sales Tax;therefore,tax shall not be included in Vendor's charges. 11.01 ORDERS PLACED WITH ALTERNATE VENDORS If Vendor cannot provide the goods as specified,City reserves the right and option to obtain the products from another supplier or suppliers. 12.01 CITY'S REPRESENTATIVE City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Rachel Morris Park Development Specialist City of Round Rock 301 W. Bagdad Avenue, Suite 250 Round Rock,Texas 78664 4 13.01 INSURANCE Vendor shall meet al I City of Round Rock Insurance Requirements set forth at insurance reqUirelnel)tS as required by the I ty'S PUrChaSing Department as set forth at: htla./1/W-W W,1-0 U ri d ro c k t ex a s W �, y/ IL p )qd��Q]4/12/corr olSilrance 07.'�)112 )gtf 14AI RIGHT TO ASSURANCE Whenever either party to this Agreement, in good faith, has reason to qUeStI011 the other party's intent to perforill hereunder, then demand may be made to the other party for Written assurance of the intent to perforni. In the event that no %vritten assurance is Given within the reasonable time specified when demand is made, then and in that event the dernanding party may treat such failure as all 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 time difference in cost, ifany, and that it will not be considered in the re-advertisement of the service and that it may not be considered Ill future bids for the carne type of work unless the scope of work is significantly changed. Z7 Vendor-,hall 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. Falls to provide adequate assurance of performance Linder the "Right to Assurance- section herein" 01' C. Becomes Insolvent or seeks relief Under the bankruptcy laws of the United States. 16.01 TERMINATION AND SUSPENSION A. City has the right to terminate this Agreement, in whole or ill part, for convenience incl without cause, at any time upon thirty (30) days' written notice to Vendor. B. In the event of any defaLlIt by Vendor,City has the right to terminate this Agreement for cause, Upon tell (10) days' written notice to Vendor. C. Vendor has the right to terminate this Agreement only for cause, that being in the event of a material and substantial breach by City, or by 1111.1tual agreement to terminate evidenced in writing by and between the parties. D, In the event City terminates under subsections (A) or (B) of this section, the following shall apply: Upon City's deliver), of the referenced notice to Vendor, Vendor shall 5 discontinue all services in connection with the performance of this Agreement and shall proceed to cancel promptly all existing orders and contracts insofar as such orders and contracts are chargeable to this Agreement. Within thirty (30) days after such notice of termination, Vendor shall submit a statement showing in detail the goods and/or services satisfactorily performed under this Agreement to the date of termination. City shall then pay Vendor that portion of the charges, if undisputed. The parties agree that Vendor is not entitled to compensation for services it would have performed under the remaining term of the Agreement except as provided herein. 17.01 INDEMNIFICATION Vendor shall defend (at the option of City), indemnify, and hold City, its successors, assigns,officers,employees and elected officials harmless from and against all suits,actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of Vendor, or Vendor's agents, employees or subcontractors, in the performance of Vendor's obligations under this Agreement,no matter how,or to whom,such loss may occur. Nothing herein shall be deemed to limit the rights of City or Vendor (including, but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. 18.01 COMPLIANCE WITH LAWS,CHARTER AND ORDINANCES A. Vendor, its agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. B. Vendor acknowledges and understands that City has adopted a Storm Water Management Program(SWMP) and an Illicit Discharge Ordinance, Sections 14-139 through 14- 152 of the City's Code of Ordinances, to manage the quality of the discharges from its Municipal Separate Storm Sewer System (MS4) and to be in compliance with the requirements of the Texas 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 stormwater 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 2271, 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. 6 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: The PlayWell Group, Inc. 203A State Highway 46 East, Boerne,TX 78006 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 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Vendor. 21.01 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock,Texas,and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County,Texas.This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 22.01 EXCLUSIVE AGREEMENT This document, and all appended documents, constitutes the entire Agreement between Vendor and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing,duly authorized by action of the City Manager or City Council. 7 23.01 DISPUTE RESOLUTION City and Vendor hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding,including without limitation,any proceeding under the Federal Arbitration Act(9 USC Section 1-14)or any applicable state arbitration statute. 24.01 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void.The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 25.01 MISCELLANEOUS PROVISIONS Standard of Care. Vendor represents that it employs trained, experienced and competent persons to perform all of the services, responsibilities and duties specified herein and that such services,responsibilities and duties shall be performed in a manner according to generally accepted industry practices. Time is of the Essence. Vendor understands and agrees that time is of the essence and that any failure of Vendor to fulfill obligations for each portion of this Agreement within the 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. [Signatures on the following page.] 8 ECJ WITNESS City and Vendor have executed this Agreement oil the dates indi'catted. Cit ry off'Round �l�ock, Te� as The Play ell G1`o1 , I11c�� �n Printed y w_ry a _ y _..__ . Prinfed Title: Title: e, e-- Date "i — _ Date Signed : .:Attest: Eby Wit= CityClerk-- � For City, h 4p oved as to F r;m: By _.... ..... telha Sleets, City Attorney Exhibit "A" This ell Group, Inc. Toll Free: (800)726-1816 Fax: (505) 296-8900 TEXAS CORPORATE OFFICE,.,SALES OFFICE & PROCESSING CENTER 203A State Highway 46 East Boerne,TX 78006 Colora4o Sales_O xg Arkansas SaQffi les ce Oklahle oma Sas 0 MtAi New co Sales Otag UL 11757 W.Ken Caryl Ave.Suite 0-231 692'9 JFK Blvd.,State 20-16 5030 North May,Suite 129 9430 Son Mateo Blvd NE Unit 6 fittleton,Co 8012,7 &tittle Rock,AR 76116 Oklahoma City,OK 73112 Albuquerque,NM 87113 TERMS AND CONDITIONS INVOICE TERMS Tax funded and bonded projects only, Net 30 days. All other entities required 50%down and balance Net 30. All Past ClUe amounts will be subject to a finance charge in accordance with the Texas Prompt Payment Act, Chapter 2251, Texas Government Code, Delay of Installation(if applicable).-If the Customer delays the installation,the stored product will be invoiced with a term of Net 30. OPEN ACCOUNT Credit terms are available to municipalities,government agencies, schoor systems,bonded contractors, and businesses (with prior approved credit). To establish credit your organization must have a satisfactory rating with Dun &Bradstreet and provide three credit references.To establish credit, your initial order must total at least$10,000.00. 50%deposit is required on all orders from non-tax funded entities. Prepayment may be required for any order at The PlayWell Group, Inc.sole discretion. METHODS OF PAYMENTS MasterCard,Visa,American Express, money order,checks,. Sorry no C.O.D. orders. FEDERAL)STATE GOVERNMENT AND CO-OP'S CONTRACT Available for Federal/ tate Government, Co-Op's and agency accounts on many items. Call your Sales Consultant for information. SALES TAX Will be added to the invoice, except when a tax-exempUresale certificate is furnished, or your entity qualifies in your state as tax exempt. FREIGHT CHARGESIDELIVERY TERMS All shipments are F.O.B factory, except where specifically stated otherwise Delivery of materials is up to eight weeks from the order date,plus a few days for transit, unless otherwise noted. Every effort is made to comply with scheduled shipping dates.however, The PlayWell Group, Inc. is riot liable for any ions or darnage arising out of delay in delivery of any of its products due to causes beyond the control of the Company. DAMAGE/SHORTAGE CLAIMS All claims for concealed loss or damage to product must be noted on the Bill of Lading or delivery ticket and reported immediately to our Customer Service Department, All claims for product damage and shortage via common carrier must be promptly made by consignee(customer)direct to The PlayWell Group's Customer Service Department, When reporting damage, be sure to hold all containers and packing materials for inspection(claims should be filed within 15 days of receipt of shipment). RETURNS/CANCELLATIONS No merchandise is to be returned without first obtaining written authorization from The PlayWell Group, Inc. Please provide invoice number, date and reason for your return, Any authorized merchandise must be carefully packed and in saleable condition to be accepted for return A 25%(of list price)re-stocking charge plus freight to and from the manufacturer applies on alll returned merchandise when error is not the fault of The PlayWell Group. All returned merchandise must be shipped insured and freight prepaid. Orders cancelled prior to shipment wail be charged 10%of list price. Once the material has been installed,no refund will be granted. FREIGHT CARRIER INFORMATION All freight is shipped unassembled via common carrier. Made via common carrier to the end user, the customer is responsible for unloading all deliveries. COLOR CHOICES Be sure to specify color selections when ordering. Please sign attached Color Selection Form(if applicable). INSTALLATION Installation/Prices are not included on this Quotation. A separate installation quotation rnust be included with your order if installation is required, PLAYGROUND SURFACING' ARNING All play equipment must be installed over impact absorbing surface. Go tosc�. ov for more information. PRODUCT WILL BE ORDERED IMMEDIATELY UPON RECEIPT OF WRITTEN APPROVALS. Please email or fax all pages. Sales Quote#: 17663 Purchase Order#: Signature: —Date: Exh b t „A„ i wwp�aywdgroup corn QUOTE# 941'4/2021 Play 800- m11 17663 the FW)WA Group Vr"dr,;.. 505.296.8900 (fax ,Attfleft,Park, ,md PIat flroaa ui E,,jwifbm eot s4mirrrrahGy Culrr tPa Tam a�u,Newt i^x'Hco aJU„Nahama m avulwdv'fluiimaMo'Icr TNn ' r ',w City of Round Rock City of Round Rock-Buck Egger Accounts Payable TA Masonry-Theodore Alvarado' 221 East Main Street 900 South days Street Round Rock,TX 78664 Round Rock„TX 78665 Phone. (512)341-3355 Phone. (512)633-5431 /04 NET 30 CES WILLIAMSON 1011412021 I A i + '+.6 MxM RI,uJ/i A .7'r /�'r I, //jl k% i r'� M / „ wr ,�r m Ti k%r- `' rrriri i r� ///it r / / r✓ii ,!%//�jiUri r,,,,,,, r r l OPTION 3 BUY#592-119 BUYBr3ARD CONTRACT#592-19 EXPIRES 09/3012022 1 0.00 0.00 0.00 PLAYCRAFT R554281 A R5 CUSTOM PLAY SYSTEM FOR KIDS AGES 5-12 1 44255,00 42,042,25 42,042.25' R507EFF3A R5 CUSTOM PLAY STRUCTURE FOR KIDS AGES 2-5 1 45446,18 43,173,87 43,173.87 PC-2464 SPINNER SEAT 1 727.95 691.55 691.55 PC-2120-2B 5"ARCH SWING(2-BELTS) 1 3546.86 3,369.52 3,369.52 P'C-21120-2FB-AB 5"ARCH SWING ADDS-A-BAY(2-FULL BUCKET SEATS) 1 2676.,59 2,545.61 2,545.61 LEFT PC-2457 BUCKET SPINNER. 1 920.67 874.64 874.64 SHIP' SHIPPING&HANDLING 1 9632.71 9,,632.71 9,632.71 GWG FIBER-G'YtW'G ENGINEERED,WOOD FIBER 210 18.67 17,74 3,725.40 SHIP SHIPPING&HANDLING 1 2217.02 2,217.02 2,217.02, FIBER RELY-GWG FIBER DELIVERY FROM GWG WOOD-The area where the 1 0,00 0.00 0.00 wood fiber is to be delivered mint be accessible to 45°Trailers/height of 13' 5"for unloading of safety surfacing.Please note that there may be signs of access afterwards.If the site is not accessible,please notify GWG Wood as soon as possible,as extra freight charges could be added.On split loads customers are responsible for determining the quantity needed at each site,accept deliveries on the same day and additional charge could be added.Customers will be contacted with a delivery time the day before delivery.30 minutes of driver wait time is included in freight chargee.Longer wait times will result in a$50 per half hoar additional freight charge. QI OTII'i'YAfLIIE] If'OIR 310 DAYS, Pirorlu ct wr ll be ordered upon a°'ecelpt of were tten ruLuprov,ai arid/or delluuortli 11lease a ma!11 or fax aril: pages SUBTOTAL PLEASE E RENIrr YOUR R l"�F.f�t��T 1'0 �1Q8,272,57 lIf0IIPLAYW II fl...GffOUP INC, 203A STATE E II°flG11WAY 40 EAST SALES TAX (0.0%) $0.00 B ERNE:, V'X V'„ 78006 Date SI'gn atk,ire TOTAL $108,272,57 CERTIFICATE OF INTERESTED PARTIES FORM1295 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 d 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. 2020-698232 The PlayWell Group,Inc. Boeme,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 12/1112020 being filed. City of Round Rock Date Acknowledged: 12/14/2020 3 Provide the Identification number used by the governmental entity or state agency to track or Idendly the contract,and provide a description of the services,goods,or other property to be provided under the contract. Old Settlers Park Custom Steel Shelter 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary 5 Check only If there Is NO Interested Party. 0 6 UNSWORN DECLARATION My name is and my date of birth is My address is (street) (city) (state) (zip axle) (Cow") 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 (Deciarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.1.cd34673b