Contract - Fun Abounds, Inc. - 12/5/2024 CITY OF ROUND ROCK AGREEMENT FOR
THE CDBG BOWMAN PARK PLAYGROUND PROJECT
WITH
FUN ABOUNDS,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 Bowman Park Playground Project through the
Community Development Block Grant (CDBG) Program (referred to herein as the
"Agreement"), is made and entered into on this the _,�fh day of the month of
"AY1bCX- , 2024 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 FUN ABOUNDS, INC., whose offices are located at
114 Venice Street, Sugar Land,Texas 77478 (referred to herein as"Services Provider").
RECITALS:
WHEREAS, City desires to purchase certain goods and services, specifically playground
equipment and demolition and installation services at Bowman Park through the CDBG
Program;and
WHEREAS, City has issued a"Request for Proposal"for the provisions of said services;
and
WHEREAS, City has determined that the Proposal submitted by Services Provider
provides the best value to the City;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 Services Provider
whereby City agrees to buy specified goods and services and Services Provider is obligated to
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sell same. The Agreement includes the Request for Proposal ("RFP"), Solicitation No. 24-032)
dated May 2024 and the Services Provider's Proposal, attached as Exhibit "A" hereto, and
incorporated herein by reference and all additional exhibits described herein and attached hereto.
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 Services Provider
to comply with promised delivery dates,specifications,and technical assistance specified.
2.01 EFFECTIVE DATE AND TERM
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 completion of the playground work as
described in Exhibit"A."
C. City reserves the right to review the relationship with Services Provider at any
time and may elect to terminate this Agreement with or without cause or may elect to continue.
3.01 CONTRACT DOCUMENTS
The Contract Documents shall consist of. 1) this Agreement; 2) the RFP; and 3) the
Service Provider's Proposal; and 4)any additional exhibits described herein and attached hereto.
4.01 SCOPE OF WORK
Services Provider shall satisfactorily provide all goods and complete all services
described in Exhibit "A." This Agreement shall evidence the entire understanding and
agreement between the parties and shall supersede any prior proposals, correspondence or
discussions.
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Services Provider 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 written
Supplemental Agreement executed by both parties.
5.01 CONTRACT AMOUNT
In consideration for the deliverables and services related to the deliverables, the City
agrees to pay Services Provider One Hundred Fifty-Five Thousand Six Hundred Twenty-
Three and No/100 Dollars($155,623.00)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 Services Provider;
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 Services Provider 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
Services Provider 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. Services Provider 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 Services Provider, a contractor,
subcontractor or supplier about the goods delivered or the service performed that
cause the payment to be late;or
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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 Services Provider 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 Services Provider, cancel this Agreement without liability
to Services Provider if it is determined by City that gratuities or bribes in the form of
entertainment, gifts, or otherwise were offered or given by Services Provider or its agents or
representatives to any City officer, employee or elected representative with respect to the
performance of this Agreement. In addition, Services Provider 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 Services Provider's charges.
11.01 ORDERS PLACED WITH ALTERNATE SERVICES PROVIDERS
If Services Provider 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 REPRESENTATIVES
City hereby designates the following representatives authorized to act in its behalf with
regard to this Agreement:
Katie Baker
PARD Development Manager
301 W.Bagdad Avenue, Suite 250
Round Rock,Texas 78664
(512)341-3355
kbakera,roundrocktexas.go v
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Elizabeth Alvarado
CDBG Coordinator
221 East Main Street
Round Rock,Texas 78664
(512)341-3328
ealvarado(axoundrocktexas.gov
13.01 INSURANCE
Services Provider 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:
htt2://www.roundrocktexas.gov/w2-content/u2ioads/2014/12/corr insurance 07.20112.2df
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 Services Provider abandons or defaults under this Agreement and is a cause of City
purchasing the specified goods elsewhere, Services Provider 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.
Services Provider 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 Services
Provider.
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B. In the event of any default by Services Provider, City has the right to terminate
this Agreement for cause,upon ten(10)days' written notice to Services Provider.
C. Services Provider 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 Services Provider,
Services Provider 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, Services Provider 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 Services Provider that portion of the charges, if undisputed. The parties agree that Services
Provider 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
Services Provider 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
Services Provider, or Services Provider's agents, employees or subcontractors, in the
performance of Services Provider'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
Services Provider (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 FEDERAL REQUIREMENTS
The project described herein is being assisted by the United States of America. Services
Provider acknowledges and agrees that this is a federally assisted project, and as such, Services
Provider shall comply with all such requirements. Said requirements include, but are not limited
to, Federal Labor Standards Provisions (HUD4010) and David-Bacon and Related Acts
contained in 29 CFR Parts 1, 3 and 5.
19.01 COMPLIANCE WITH LAWS,CHARTER AND ORDINANCES
A. Services Provider, 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.
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B. 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 Services Provider verifies that Services Provider does not boycott Israel and will not boycott
Israel during the term of this Agreement.
C. 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 Services Provider verifies Services Provider 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.
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 boycott energy companies; and(2) will not boycott
energy companies during the term of this Agreement. The signatory executing this Agreement on
behalf of Services Provider verifies Services Provider does not boycott energy companies, and it
will not boycott energy companies during the term of this Agreement.
20.01 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.
21.01 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 Services Provider:
Fun Abounds,Inc.
114 Venice Street
Sugar Land,Texas 77478
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 Services Provider.
22.01 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.
23.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Services Provider 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.
24.01 DISPUTE RESOLUTION
City and Services Provider 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.
25.01 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.
26.01 MISCELLANEOUS PROVISIONS
Standard of Care. Services Provider 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. Services Provider understands and agrees that time is of the
essence and that any failure of Services Provider to fulfill obligations for each portion of this
Agreement within the agreed timeframes will constitute a material breach of this Agreement.
Services Provider 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 Services
Provider'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 Services Provider 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 Services Provider have executed this Agreement on
the dates indicated.
City of Rond Roc Texas Fun Abounds, Inc.
By: By: F--Q� H24-1��
Printed Name: Printed Name: E -M
Title: �I1 QMtX'- Title: qpQXCj6ft,(�hS Ma iGQRA-
Date Signed: Date Signed:0 iA 12,4
Attest:
By:
Ann Franklin, City Clerk
For City,Approved as to Form:
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' ep a ie I. San re, ity Attorney