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R-2022-004 - 1/13/2022 RESOLUTION NO.R-2022-004 WHEREAS, the City of Round Rock ("City") desires to purchase certain deliverables, installation and demolition services for play equipment at Kinningham Park, and related goods and services; and WHEREAS, Chapter 271, Subchapter F of the Texas Local Government Code allows for local governments to participate in cooperative purchasing programs with other local governments; and WHEREAS, the Buy Board Cooperative Purchasing Program ("Buy Board") is a cooperative purchasing program administered by the Texas Association of School Boards for the purpose of procuring goods and services for its members; and WHEREAS,the City is a member of Buy Board; and WHEREAS, We Build Fun, Inc. is an approved vendor of Buy Board; and WHEREAS, the City desires to purchase said goods and services from We Build Fun, Inc. through Buy Board Cooperative Contract No. 592-19,Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Agreement for Purchase and Installation of Play Equipment at Kinningham Park with We Build Fun, Inc., a copy of said Agreement being attached hereto as Exhibit"A"and incorporated herein. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551,Texas Government Code, as amended. 0112.20222;48584726-8488 RESOLVED this 13th day of January, 2022. i CRAIG MOIJ4GAN, ayor City of Round Rock, Texas ATTEST: �"m 041L, MEAGAN S INKS, Ci y Clerk 2 EXHIBIT CITY OF ROUND ROCK AGREEMENT FOR PURCHASE AND INSTALLATION OF PLAY EQUIPMENT AT KINNINGHAM PARK WITH WE BUILD FUN,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 Kinningham Park, and for related goods and services(referred to herein as the"Agreement"), is made and entered into on this the day of the month of .2021 by and between the CITY OF ROUND ROCK,a Texas home-rule municipality, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299(referred to herein as the"City"), and We Build Fun, Inc., whose offices are located at 103 West McDermott Drive,#300,Allen,TX 75013(referred to herein as"Vendor"). RECITALS: WHEREAS, City desires to purchase certain deliverables, installation and demolition services for play equipment at Kinningham 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. 592-19 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: 4867-747"1141ss2 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 October 18,2021 (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 goverunent 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 tern 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 Forty-One Tbousand Two Hundred Sixty Tbree and 271100 Dollars($141,263.27)for the goods and services set forth in Exhibit"A." 6.01 INVOICES All invoices shalt 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 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 3 City receives a correct invoice for the performance and/or deliverables or services, whichever is later. Vendor 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: 4 Katie Baker Park Development Manager City of Round Rock 301 West 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- hap: www,rouTidroc1(texa,sq ky 201412 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. 16.01 TERMINATION AND SUSPENSION A. City has the right to terminate this Agreement, in whole or in part, for convenience and without cause, at any time upon thirty (30) days' written notice to Vendor, B. In the event of any default by Vendor, City has the right to terminate this Agreement for cause, upon ten (10)days' written notice to Vendor. 5 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 mutual 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 delivery of the referenced notice to Vendor, Vendor shall 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 ail 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 14139 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 stonmwater 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 6 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 tens of this Agreement. D. In accordance with 2274, Texas Government Code, a governmental entity may not enter into a contract with a company with at least ten(10)full-time employees for a value of at least One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has provision in the contract verifying that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and(2)will not discriminate during the term of the contract against a firearm entity or firearm trade association. The signatory executing this Agreement on behalf of Consultant verifies consultant does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association,and it will not discriminate during the team of this Agreement against a firearm entity or firearm trade association. E. In accordance with 2274, Texas Government Code, a governmental entity may not enter into a contract with a company with at least ten(10)full-time employees for a value of at least One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has provision in the contract verifying that it:(1)does not boycott energy companies;and(2)will not boycott energy companies during the term of this Agreement. The signatory executing this Agreement on behalf of Consultant verifies consultant does not boycott energy companies,and it will not boycott energy companies 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. 7 Notice to Vendor: We Build Fun,Inc. 103 West McDermott Drive,#300 Allen,TX 75013 Notice to City: City Manager Stephan L.Sheets,City Attorney 221 East Main Street AND TO: 309 East Main Street Round Rock,TX 78654 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. 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. 8 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.] IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates indicated. City of Round Rock,Texas We Build Fun,Inc. By: By: Printed Name-. Pr me ame Title: Title: Ae, Date Signed: Date Signed: -Vol r Attest: By: Meagan Spin s,City Clerk For City,Approved as to Form: By: Stephan L. Sheets,City Attorney Exhibit"A" Vendor's Proposal PO OX 29 VMS Allen, TX 75013 P,hone: 972-727-0653 Fax: 2-396-4994 Mirade C=04 t"� Customer Information: Date. 10/118/2021 Katie Baker Est„ Delivery. Consultant: Round Rock Parks raw Ftec. 16-20, + weeks Josh Bailey 3131 W. Bagdad Ave #250 Round Rack, TX 78664 &iia Ro arld Contract ` 552-19 IBuy Board Vendor I -.29904 F'or 10 DESCWTION EACH TUFA1L Kinninghom Park Option#1 Pricing may not be guaranteed beyond 30 days. We are attempting to hold pricing when possible but due to material and labor cost, price increases have unfortunately become unavoidable.We value our customers and appreciate your understanding during these unprecedented timesl All finalized contracts and/or purchase orders must be accompanied by a valid quote within 30 days of issue. Please request a new quote when beyond the 30 days. Orders must ship when the factory is ready to ship. The supply chain issues that are creating price havoc are also creating extended lead times. For many of our partners we"re experiencing lead times beyond 14 weeks. Everyone is working to shorten these as quickly as possible but there are lots of elements involved so it's unfortunately not a quick fine. Again,we appreciate your understanding) Demo 1 Existing equipment demo and rmoval $3,50U0 $3,500,00 Surface Removal 1 Existing ewf surfacing removal and site prep $13,125.00 $13,125.00 61_44481402833 1 Miracle Recreation playground design drawing#61_44481402833 $93,382.00 $93,382,00 keyised to include Mie^cache Jax, rwads and balance )mart loofa Includes Miracle Phyzics New Moon top of the arch is 9 ft. *Includes Miracle Museum Dynamics lab Includes 4 seat arch swing with 2 tat seats and 2 belt seats Discount 1 Buy Board'discount applied for Miracle -$14,007.30 Shipping 1 Freight $2,366,00 install 1 Installation of the equipment quoted above $33,435:00 Surfacing 3831 Materials do install 12 inch compacted depth of engineered $2A0 $9,960.60 wood fiber over geotextile fabric-3,831square ft. Discount 1 Buy Board discount applied for ewf -,$498.03 Sales Tax 8.25% NA -the City of Round Rock is tax exempt $0.00 Total $143,26127 "Notes" *No metal construction fence is included in our quote. Price assumes ail site work done by"other"unless noted above Price assumes all drainage away from the play area by"other"unless noted above *Price assrraes border by"other*unless noted above *W site restoration is included in this quote THonk you for the OpporhMty to Proms tiffs quota If tax exempt, please provide tax exemption certificate Josh Bailey Prepared By: Approved by,. *In the event rock is erncouitered,charges may be assessed. *It is the responsibility of the owner to obtain permits(unless specified above). *It is the responsibility of the owner to locate all underground utility Goes.Webuidlufn will assist with this by re4testing a fine locate from Dig Test,at the owner's request. *webuildfun,Inc. Will make every reasonable effort to respect all marked utility lines,and will repair damage webuildfun,Inc.causes to *webuildfun,Inc,will not be respansWe for damage to unmarked utitties *Re-establishment of disturbed groes areas is not included in this quote and if necessary,is to be provided by owner *Prices are guaranteed for 30 days from date listed on quote.