Contract - Whirlix Design, Inc. - 2/22/2024 CITY OF ROUND ROCK AGREEMENT FOR
PURCHASE AND INSTALLATION OF PLAY EQUIPMENT
AT ROCK HOLLOW 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 Rock Hollow Park, and for related ooj��s and
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services (refe to herein as the"Agreement"), is made and entered into on this the oX.ay of
the month of , 2024 by and between the CITY OF ROUND ROCK, a Texas
home-rule municipality, wh e 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 1751 International Parkway, Suite 131 Richardson, TX 75081 (referred to herein as
"Vendor").
RECITALS:
WHEREAS, City desires to purchase certain deliverables, installation and demolition
services for play equipment at Rock Hollow 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. 679-22 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:
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 January 5th, 2024 (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,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.
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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 Two Hundred Thirty-Five Thousand Five Hundred Forty-Two and
19/100 Dollars ($235,542.19)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.
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
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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:
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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. og v/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.
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.
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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 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
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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.
D. In accordance with Chapter 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 a provision 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 term of this Agreement against a firearm
entity or firearm trade association.
E. In accordance with Chapter 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 a provision verifying that it: (1) does not boycott energy companies; and (2) will not boycott
energy companies during the term of the contract. 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.
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Notice to Vendor:
Whirlix Design, Inc
1751 International Parkway
Suite 131
Richarson, Texas 75081
Notice to City:
City Manager Stephanie L. Sandre, 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.
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
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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.]
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
City of Round Rock,Texas Whirlix Design Inc
By: By:
Printed e: Printed Name: !— .� �itE•ET�
Title: Title: -OA Grr
Date Signed. ZI 7,�7, Date Signed: cP/d/.;Lc,9 y
Attest:
Y:
Meagan Spi , City C rk
,�k
For City,Approved as to Form:
BY: v? �.
Stephanie L. Sandre, City Attorney
Exhibit"A"
Vendor's Proposal
Whirlixf
Always in Motion ,
Date:January 5th 2024
Project: Rock Hollow Park—Phase#1
Location: Rock Hollow Park 1415 Apollo Circle, Round Rock TX 78664
To:Katie Baker—Manager Parks Development
Proposal Expires: 30 days from the above date
Please note that current fluctuations in material pricing may cause a proposal increase between now and
The acceptance of this agreement.
BUYBOARD CONTRACT#679-22,VENDOR#3120
We are a self-reporting vendor for Buy Board. Please send all purchase orders,payments,etc.directly to
The Whirlix Design team.
LANDSCAPE STRUCTURES PLAY EQUIPMENT
Series: Landscape Structures per concept 1180513-03-01
Surface: Soil Express Engineered Wood Fiber System
Installation: By Factory Trained and Certified Installers
Quantity/Sizes: See Attached Renders and bid notes below
TOTAL: $235,542.19
(Two Hundred Thirty-Five Thousand, Five Hundred Forty-Two Dollars and Nineteen Cents)
Base Bid Includes:
0 1 Total—Landscape Structures Concept 1180513-03-01
o Volo Structure
■ Not available to render in design software until after Jan. 17th 2024. Katie
and the Round Rock PARD team have seen digital pictures and video of the
structure.
o Cube
o Single post swing with two belt seats
o Final colors TBD
o Freight
o Certified Installation
0 3,860 SQFT.Soil Express EWF—12 inch compacted depth.
0 700 SQFT.—Cube area
0 800 SQFT.—Swing area
0 2,360 SQFT.—Volo area
o Demo of existing swings and 2-5 equipment and haul off
o Demo of existing EWF in 2-5 area
o Removal and haul off of existing drain rock in the 2-5 area
o Demo of existing EWF in the existing swing area
o Removal and haul off of existing drain rock in the swing area (as needed). Installer thinks they
can work in this area with minimal impact to the existing rock
o New rock for all three play areas
o Up to 1,500 square ft.at 4 inches for the existing pits
0 2,360 square ft.at 4 inches for the new Volo area
o Materials and install new geo fabric in the 2-5 area and swing area
o Materials and install new geo fabric in the Volo area
o Temp.orange fence on T posts around the perimeter
Whirlix Design Inc.
1751 International Parkway,Suite 131
Richardson,TX 75081
Whirlix
Always in Motion ,
o Trash haul off
o Warranty As Specified—Best in the Business!
o Buy Board Discount
Base Bid Excludes:
o The GC work for the new Volo area:As discussed,the GC work of the grade adjustment,
concrete curb border/retaining wall,any drainage and the concrete ADA ramp going into the
new playground pit will be quoted separately as a phase#2 GC scopes quote.
o Metal Construction Fence
o Drilling Through Rocky Soil
o Drainage/Drainage system
o Hitting of New or Existing Sprinkler pipes
o Hitting of private electrical,water,sewer,internet,etc. that are not detectible during a
commercial line location
o Sod Replacement due to Reasonable Path of Travel to Project or Play Area Location. We need
access to project location.
o Surveying of Site
o Craning of Equipment
o Logistical Issues that Prevent Truck or Equipment Access to Site
o Special Augers or Drilling Equipment
o Setting of Control Points or Benchmarks
o Remobilization Charges Due to Weather or Project Delays
o Offsite Storage of Equipment Due to Weather or Project Related Delays
o On Site Security
o Dumpster
o Latrine on Site
o Permitting and Inspections
o Third Party Inspections
o Geotechnical Report
o Wet Stamped Engineering Drawings
o Certified Payroll/Progress Billing
o Textura,Oracle, etc.
o Professional Liability Insurance
o Construction Management Software Required for a Specific Project
o Payment, Performance,and Maintenance Bonds
o Use of Credit Cards as Payment
o Sales Tax
Terms: Net 30 for Existing Customers. All new customers are subject to a credit check and
Possible deposit.
Payment terms will be based,in part, on credit review that is pulled from The Experian Business
Division.
Pursuant to Tex. Prop.Code§53.159 Whirlix will need any and all Bond information at the time of
Signed Proposal,Contract,and/or Deposit.
Prepared by Josh Bailey•Whirlix Design Inc• ibailey@whirlix.com • 512-225-4314
Acceptance of Approval: The above prices,specifications,and conditions are satisfactory and accepted. You are hereby
authorized to provide all items described above. Any balances not paid within thirty(30)days of the date of the invoice shall
accrue interest at the rate of 18%per annum. Any action to construe,declare or enforce this contract shall only be brought in a
court of competent jurisdiction with venue lying solely and exclusively in Dallas County,Texas. The prevailing party in any action
brought to construe,declare or enforce this contract shall be entitled to recover its actual attorney's fees,attorney's travel time
Whirlix Design Inc.
1751 International Parkway,Suite 131
Richardson,TX 75081
Whirlix :�fi
Always in Motion
charges and expenses, paralegal fees,computer access and utilization charges,expert witness fees and expenses,costs,expenses
and expenses of investigation,discovery,and litigation. The parties to this contract expressly waive the right to trial by jury of any
cause of action or defense pertaining to this contract.The above prices,specifications,and conditions are satisfactory and
accepted. You are hereby authorized to provide all items described above.
Date: Signature:
Whirlix Design Inc.
1751 International Parkway,Suite 131
Richardson,TX 75081