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R-2017-4448 - 5/25/2017 RESOLUTION NO. R-2017-4448 WHEREAS, The Play for All Foundation ("Play for All") is a 501(c)(3) organization that was formed March 13, 2009 to receive contributions for the original Play for All Abilities Project, which contributions are deductible under Section 170 of the Internal Revenue Code; and WHEREAS, the City of Round Rock ("City") also contributed funds towards the construction of the Play for All Abilities Park which is located on City property at 151 North A.W. Grimes Boulevard, Round Rock, Texas; and WHEREAS, the City and Play for All desire to expand the existing Play for All Abilities Park by adding several additional play spaces and parking improvements (the "Play for All Expansion Project"); and WHEREAS, Play for All has raised additional funds to pay for construction costs associated with Phase I of the Play for All Expansion Project; and WHEREAS, Play for All is continuing to raise funds to pay for construction costs associated with Phase II of the Play for All Expansion Project; and WHEREAS, the City and Play for All desire to enter into an Agreement to set forth in writing their respective rights, duties, and obligations regarding the Play for All Expansion Project; 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 Between City of Round Rock and The Play for All Foundation for the Play for all Abilities Park Expansion Project, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. 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 0112.1704;00378434/rmc (Th hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 25th day of May, 2017. CRAIG RGAN ayor City of Round Rock, Texas ATTEST: ?5L -4bUL SARA L. WHITE, City Clerk 2 EXHIBIT "All AGREEMENT BETWEEN CITY OF ROUND ROCK AND THE PLAY FOR ALL FOUNDATION FOR THE PLAY FOR ALL ABILITIES PARK EXPANSION PROJECT This Agreement(referred to herein as the"Agreement') is entered into on this _day of the month of May, 2017 by and between the CITY OF ROUND ROCK, TEXAS, a Texas home- rule municipality (referred to herein as the "City"), and THE PLAY FOR ALL FOUNDATION (referred to herein as"Play for All"),an organization with public charity status that is exempt from federal income tax under-section 501(c)(3) of the Internal Revenue Code. WITNESSETH: WHEREAS, Play for All is a 501(c)(3) organization that was formed March 13, 2009 to receive contributions for the original Play for All Abilities Project, which contributions are deductible under Section 170 of the Internal Revenue Code; and WHEREAS, the City also contributed funds towards the construction of the Play for All Abilities Park which is located on City property at 151 North A.W. Grimes Boulevard, Round Rock, Texas; and WHEREAS, the City and Play for All (the "parties") desire to expand the existing Play for All Abilities Park by adding several additional play spaces and parking improvements (the "Play for All Expansion Project'); and WHEREAS, Play for All has raised additional funds to pay for construction costs associated with Phase I of the Play for All Expansion Project; and WHEREAS, Play for All is continuing to raise funds to pay for construction costs associated with Phase II of the Play for All Expansion Project; 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 receipt and sufficiency of which are hereby acknowledged, the parties mutually agree as follows: I. TERM I.I. This Agreement shall be effective on the date it has been signed by both parties hereto, and shall remain in full force and effect until the final completion of the Play for All Expansion Project. 00377840'ss2 2. SCOPE OF SERVICES 2.1. The parties shall satisfactorily provide all services set forth herein and as set forth in Exhibit"A,"incorporated for all purposes herein, for Phase I of the Play for All Expansion Project. Phase I shall include: Brushy Creek Village and Track; Adventure Pod and Adventure Hill; Large Playscape Pad Expansion; Nature Pod Expansion; Retreat Pod Expansion; Rock Band Pod Expansion; and Swing Pod Expansion. 2.2. Play for All shall continue to raise funds to complete Phase II of the Play for All Expansion, which shall include: Quarry Cut Wall at Adventure Pod; Bus Parking; and Additional play equipment. Work for Phase II may be added or included in the construction contract documents if Play for All is successful in raising funds sufficient to pay for construction costs associated with Phase 11 before or during the constriction of Phase I. 3. PLAY FOR ALL RESPONSIBILITIES 3.1. Play for All shall be responsible for raising funds in a sufficient amount to pay for construction costs associated with the Play for All Expansion Project. 3.2. Play for All shall select one (1) contractor or multiple contractors for the construction of the Play for All Expansion Project and said contractor(s) shall be approved by the City. 3.2.1. No contractor shall proceed with any work until approved by the City. 3.2.2. The selected contractor(s) shall perform construction activities in a manner consistent with the City's Design and Construction Specifications and other requirements set forth herein. 3.3. Play for All shall be responsible for the payment to the contractor once the monthly applications for payment are reviewed and approved for payment by the City. 3.4. Upon final completion of the Play for All Expansion Project, Play for All shall donate all improvements associated with and set forth in the approved construction documents 4. CITY RESPONSIBILITIES 4.1. The City shall oversee the design work and shall produce stamped construction drawings and specifications to provide to the contractor(s)selected by Play for All. 4.2. The City shall perform project management roles for the Play for All Expansion Project, including but not limited to: overseeing the construction work; overseeing the installation of new playground equipment; completing a construction schedule; 2 working with inspectors to verify construction meets City specifications; and reviewing all applications for payment submitted by the contractor(s) to Play for All. 4.3. The City shall perform several tasks separate from but in coordination with the construction of improvements, including but not limited to: construction of a tree house; construction of multiple amenities in the Nature Pod; forming and pouring concrete areas; construction of a learning wall; "finishing touches" in the Village and Race Track Pods; electrical conduit and wiring; and landscaping. Play for All shall not be responsible for payment of any of these separate tasks performed by the City. 4.4. The City shall oversee volunteer work days with service clubs and the community to complete various tasks associated with the Play for All Expansion Project. 4.5. The City shall issue Purchase Orders for the purchase and installation of playground equipment and other miscellaneous construction items outside of Play for All's contractor(s) scope of services. These items shall include, but not be limited to: asphalt overlay in the parking lot and driveway; installation of irrigation; and installation of lighting; installation of fencing. 4.6. The City shall install traffic signals and signage in the Race Track and Village Pods. 4.7. The City shall ensure that all construction performed by the City and the selected contractor(s) is consistent with City specifications. 4.8. The City shall perform water-line installation and sewer-line installation as set forth in the engineer's drawings. 5. CONTRACT DOCUMENTS 5.1. Play for All shall require the selected contractor to file with the City a Performance Bond and Payment Bond, 5.1.1. The bonds shall be executed on forms approved by the City. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. 5.1.2. Each bond shall be issued in an arnount of one hundred percent (100%) of the contract amount set forth in the construction agreement between Play for All and the contractor as security for the faithful performance and/or payment of all the contractor's obligations under the construction agreement. The bonds shall be issued by a solvent surety company authorized to do business in the State of Texas, and shall meet any other requirements established by the law or the City pursuant to applicable law. 3 5.2. The Scope of Services to be included in the construction contract documents shall include, but is not limited to: erosion and sedimentation controls; demolition of selected existing amenities and features; clearing, grading and subgrade preparation;preparation of driveway and road subgrade with City-provided flexible base material; quant' cut wall installation; site concrete improvements; and stormwater improvements. 5.3. The construction contract docurnents between Play for All and the selected contractor(s) shall be in a form acceptable to the City and shall include: Standard Form Agreement; Statement of Bidder's Safety Experience; Payment and Performance Bonds; Certificate of Liability Insurance; City's General Conditions, Supplemental General Conditions, Special Conditions, and Technical Specifications; and any Construction Plans, Details and Notes. 5.4. The City shall review and approve the contract docurnents before they are executed by Play for All and the selected contractor(s). 6. INSURANCE REQUIREMENTS 6.1. The contractor(s) selected by Play for All shall provide a Certificate of Liability Insurance to the City naming the City as an additional insured. 6.2. The contractor shall comply with the insurance requirements of the City set forth at: httus:/hyww.roundrocktcxas.gov,`lt'u-contlnt Uploads 2014 12 111SUrancc Requirements-2ndf 7. INDEMNIFICATION 7.1. Play for All shall defend (at the option of the City), indemnify, and hold the 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 the Play for All or the selected, or agents, employees or subcontractors, in the performance of Play for All's obligations under this Agreement,no matter flow,or to whom, such loss may occur. 7.2. To the extent allowed by the law, the City shall defend(at the option of the Play for All), indemnify, and hold Play for All, 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 the City or the selected,or agents,employees or subcontractors,in the performance of the City's obligations under this Agreement, no matter how, or to whom, such loss may occur. 4 7.3. Nothing herein shall be deemed to limit the rights of the City or Play for All (including, but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. 8. BREACH AND TERMINATION 8.1. If any party breaches any of the teens and conditions of this Agreement and fails to rectify such default in accordance with a written notice from a non-defaulting party within fifteen(15) days after the date of such notice (or a longer period if all parties agree to same in wiiting), a non-defaulting party may terminate this Agreement at any time thereafter. 8.2. Either party 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 the other party. 9. NOTICES 9.1. All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 9.1.1. When delivered personally to the recipient's address as stated in this Agreement; or 9.1.2. 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 Play for All: Play for All P.O. Box 690 Round Rock, TX 78680 Notice to the City: Laurie Hadley, City Manager 221 East Main Street Round Rock, TX 78664 AND TO: Stephan L. Sheets, City Attorney 309 East Main Street Round Rock,TX 78664 5 9.1.3. Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of the City and Play for All. 10. MISCELLANEOUS PROVISIONS 10.1. Where reference is made in this Agreement to a provision of any document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. 10.2. City's representative is: Rick Atkins Director of Parks and Recreation 301 W. Bagdad Avenue, Suite 250 Round Rock, Texas 76664 10.3. Waiver of any breach of this Agreement shall not constitute waive of any subsequent breach. 10.4. 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 and conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and in accordance with the laws and court decisions of the State of Texas. 10.5. Both parties hereby expressly agree that no claims or disputes between parties arising out of or relating to this Agreement or a breach thereof shall be deducted by an arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 10.6. The parties, by execution of this Agreement, bind themselves, their heirs, successors, assigns, and legal representatives for the full and faithful performance of the terms and provisions hereof. 10.7. 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, 10.8. 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. 6 t 10.9. 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. 10.10. Neither Owner nor Contractor shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which they are not responsible or circumstances beyond their control. However,notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. 10.11. 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. 10.12 This Agreement is entered into as of the day and year first written above and is executed in at least two (2) original copies, of which one is to be delivered to the Play for All and to the City. [Signatures on the following page.] 7 IN WITNESS WHEREOF,the parties have executed this Agreement on the dates indicated. City of Round Rock,Texas By: Printed Name: Title: Date Signed: _ Attest: By: �_... Sara L. White, City Clerk For City, Approved as to Form: By: Stephan L. Sheets, City Attorney Play for All, a 501(c)(3) organization By: � --2 Printed Name: . Title: Date Signed: h7 8