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HomeMy WebLinkAboutR2023-096 2023-04-24DocuSign Envelope ID:4Al2DC92-3A88-4024-BC90-D91FE50022BA RESOLUTION NO. R2023-96 A Resolution of The City Council of the City of Pearland, Texas, authorizing the City Manager or his designee to participate in an interlocal cooperative pricing arrangement with the Texas Buyboard purchasing cooperative for the replacement of the Southgate Park Playground equipment, in the estimated amount of $54,609.90, from Lone Star Recreation of Texas, LLC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That contract pricing has been obtained through interlocal cooperative partner Texas Buyboard purchasing cooperative for the replacement of the Southgate Park Playground equipment. Section 2. That the City Manager or his designee is hereby authorized to participate in an interlocal cooperative pricing arrangement with The Buyboard Purchasing System for the replacement of the Southgate Park Playground equipment, in the estimated amount of $54,609.90, from Lone Star Recreation of Texas, LLC. PASSED, APPROVED and ADOPTED this the 24th day of April, A.D., 2023. (—DocuSigned by: 9z 184884 A61./P F4F2... J. KEVIN COLE MAYOR ATTEST: cuSigned by: Do : EC22G31 FFF41, FRANCES AGUILAR, TRMC, MMC CITY SECRETARY PPRLQ),(E.6): AS TO FORM: `_-_ tYYt DAAWK8RFr6OKER CITY ATTORNEY F -U • r ��i DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 OE 444, d • TEXAS 4Sr. 89d City of Pearland 3519 Liberty Drive Pearland, TX 77581 SERVICE CONTRACT NO. C0323-06 Southgate Park Playground Replacement Project THIS CONTRACT ("Contract") is entered into by and between the City of Pearland, a Texas home - rule municipal corporation ("City") and Contractor ("Contractor"), and consisting of the following parts: Summary of Contract Terms Signatures Standard Contractual Provisions Special Terms and Conditions Additional Contract Attachments I. Summary of Contract Terms. Contractor: Description of Services: Contract Amount: Effective Date: End Date: Renewals: Resolution No/Bid No: II. Signatures GI -T1 F PEARLAND �ktara r LI Purchasing Officer ,-DocuSigned Dy: �.t22 Lone Star Recreation of Texas 10701 Corporate Drive Suite 390 Stafford, Texas 77477 Contractor will provide City of Pearland with demolition, disposal, and installation of damaged playground components and installation of new playground features in accordance with specifications of quote # 11648-02 via BuyBoard contract #679-22. $54,609.90 04/30/2023 09/30/2023 None CONTRACTOR 4/25/2023111:14 A Date Title: Principal Owner 4/25/2023111:41 ANr-c;DT 4/11 /2023 *Signed by: Date Superintendent/Manager Director Deputy/Assistant City Manager City Manager *City Contract Signature Authority: Superintendent/Manager — up to $10,000 Director - $10,001 - $30,000 City Manager/Deputy/Assistant City Manager - $30,001 + City Council Resolution over $50,000 Service Contract Standard Form Page 1 of 7 Approved as to Legal Form 6.28.2021 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 III. Standard Contract Provisions WHEREAS, Contractor has bid to provide Services ("Services") in response to Request for Bid/Proposal or Quote No. # 11648-02.("Solicitation"), which Solicitation includes the required scope of work and all specifications and which Solicitation and the Contractor's bid or proposal response, as applicable, are incorporated by reference in this Contract as Exhibits 1 and 2, respectively, as if each were fully set out here in its entirety. NOW, THEREFORE, City and Contractor agree as follows: 1. Scope. Contractor will provide Services in accordance with the attached Scope of Work, as detailed in Attachment A, the content of which is incorporated by reference into this Contract as if fully set out here in its entirety, and in accordance with Exhibit 2. 2. Term. This Contract is for 6 months, with performance commencing upon the effective date or the date of issuance of the notice to proceed issued by the Contract Administrator or the Purchasing Division, or upon the performance date listed in the notice to proceed, whichever is later. The parties may mutually extend the Term of this Contract for up to 0 additional one- year periods ("Option Period(s)"), provided, the parties do so by written amendment prior to the expiration of the original term or the then -current Option Period. The City's extension authorization must be executed by the City Manager or designee. 3. Compensation and Payment. This Contract is for an estimated amount of $54,609.90, subject to approved extensions and changes. Payment will be made for Services completed and accepted by the City within thirty (30) days of acceptance, subject to receipt of an acceptable invoice. Contractor shall invoice no more frequently than once per month. All pricing must be in accordance with the attached Bid/Pricing Schedule, as shown in Attachment B, the content of which is incorporated, in its entirety, by reference into this Contract. Any amount not expended during the initial term or any option period may, at the City's discretion, be allocated for use in the next option period. Invoices will be emailed to the following email address with a copy provided to the Contract Administrator: City of Pearland Attn: Accounts Payable Email: accountspayable@pearlandtx.gov 4. Contract Administrator. The Contract Administrator designated by the City is responsible for approval of all phases of performance and operations under this Contract, including deductions for non-performance and authorizations for payment. The City's Contract Administrator for this Contract is as follows: Name: Chrystopher Bickham Department: Parks and Recreation Phone: 281-652-1982 Email: cbickham@pearlandtx.gov 5. Insurance; Bonds. (A) Before performance can begin under this Contract, the Contractor must deliver a Certificate of Insurance ("COI"), as proof of the required insurance coverages, to the City's Contract Administrator. Additionally, the COI must state that the City shall be provided no less than thirty (30) days' advance written notice of cancellation, material Service Contract Standard Form Page 2 of 7 Approved as to Legal Form 6.28.2021 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 change in coverage, or intent not to renew any of the policies. The City must be named as an additional insured. The City Attorney must be given copies of all insurance policies within ten (10) days of the City Manager or his designee's written request. Insurance requirements are as stated in Attachment C, the entirety of which is incorporated by reference into this Contract. (B) Contractor shall provide any required payment bond, performance bond, or both, prior to commencement of performance under this Contract. The terms, conditions, and amounts of the bonds and appropriate surety information shall be included in the RFB/RFP or as may be added to Attachment C, and such content, the entirety of which, shall be incorporated into this Contract. 6. Purchase Release Order. For multiple -release purchases of Services provided by the Contractor over a period of time, the City will exercise its right to specify time, place and quantity of Services to be delivered in the following manner: the authorized City department or division shall send to Contractor a purchase release order signed by an authorized agent of the department or division. The purchase release order shall refer to this Contract, and Services shall not be rendered until the Contractor receives the signed purchase release order. 7. Inspection and Acceptance. City may inspect all Services and products supplied before acceptance. Any Services or products that are provided but not accepted by the City must be corrected or re -worked immediately at no charge to the City. If immediate correction or re- working at no charge cannot be made by the Contractor, a replacement service may be procured by the City on the open market and any costs incurred, including additional costs over the item's bid/proposal price, shall be paid by the Contractor within thirty (30) days of receipt of City's invoice. 8. Warranty. (A) The Contractor warrants that all products supplied under this Contract are new, quality items that are free from defects, fit for their intended purpose, and of good material and workmanship. The Contractor warrants that it has clear title to the products and that the products are free of liens or encumbrances. (B) In addition, the products purchased under this Contract shall be warranted by the Contractor or, if indicated in Attachment D by the manufacturer, for the period stated therein. Attachment D, the entirety of which, is attached to this is incorporated into this Contract. (C) Contractor warrants that all Services will be performed in accordance with the standard of care used by similarly situated contractors performing similar services. 9. Quality/Quantity Adjustments. Any Service quantities indicated on the Bid/Pricing Schedule are estimates only and do not obligate the City to order or accept more than the City's actual requirements nor do the estimates restrict the City from ordering less than its actual needs during the term of the Contract including any Option Period. Substitutions and deviations from the City's product requirements or specifications are prohibited without the prior written approval of the Contract Administrator. 10. Non -Appropriation. The continuation of this Contract after the close of any fiscal year of the City, which fiscal year ends on September 30th annually, is subject to appropriations and budget approval specifically covering this Contract as an expenditure in said budget, and it is within the sole discretion of the City's City Council to determine whether or not to fund this Service Contract Standard Form Page 3 of 7 Approved as to Legal Form 6.28.2021 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 Contract. The City does not represent that this budget item will be adopted, as said determination is within the City Council's sole discretion when adopting each budget. 11. Independent Contractor. Contractor shall perform all work required by this Contract as an independent contractor and will furnish such Services in its own manner and method, and under no circumstances or conditions will any agent, servant or employee of the Contractor be considered an employee of the City. 12. Subcontractors. In performing the Services, the Contractor will not enter into subcontracts or utilize the services of subcontractors unless the subcontractors were identified in the bid/quote/proposal or approved by the Contract Administrator. 13. Amendments. This Contract may be amended or modified only in writing and executed by authorized representatives of both parties. 14. Waiver. No waiver by either party of any breach of any term or condition of this Contract waives any subsequent breach of the same. 15. Taxes. The Contractor covenants to pay payroll taxes, Medicare taxes, FICA taxes, unemployment taxes and all other applicable taxes. Upon request, the City Manager shall be provided proof of payment of these taxes within 15 days of such request. 16. Notice. Any notice required under this Contract must be given by hand delivery, or certified mail, postage prepaid, and is deemed received on the day hand -delivered or on the third day after postmark if sent by certified mail. Notice must be sent as follows: IF TO CITY: City of Pearland Attn: Chrystopher Bickham Title: Park and Natural Resources Superintendent Address: 3519 Liberty Drive Pearland, Texas 77584 IF TO CONTRACTOR: Name of Company: Lone Star Recreation of Texas Attn: Ryan Cicatello Title: Sales Address: 10701 Corporate Drive Suite 390 Stafford, Texas 77477 17. Liability and Indemnity. ANY PROVISION OF ANY ATTACHED CONTRACT DOCUMENT THAT LIMITS THE CONTRACTOR'S LIABILITY TO THE CITY OR RELEASES THE CONTRACTOR FROM LIABILITY TO THE CITY FOR ACTUAL OR COMPENSATORY DAMAGES, LOSS, OR COSTS ARISING FROM THE PERFORMANCE OF THIS CONTRACTOR THAT PROVIDES FOR CONTRACTUAL INDEMNITY BY ONE PARTY TO THE OTHER PARTY TO THIS CONTRACT IS NOT APPLICABLE OR EFFECTIVE UNDER THIS CONTRACT. EXCEPT WHERE AN ADDITIONAL CONTRACT DOCUMENT PROVIDED BY THE CITY PROVIDES OTHERWISE, EACH PARTY TO THIS CONTRACT IS RESPONSIBLE FOR DEFENDING AGAINST AND LIABLE FOR PAYING ANY CLAIM, SUIT, OR JUDGMENT FOR DAMAGES, LOSS, OR COSTS ARISING FROM THAT PARTY'S NEGLIGENT ACTS OR OMISSIONS IN THE PERFORMANCE OF Service Contract Standard Form Page 4 of 7 Approved as to Legal Form 6.28.2021 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 THIS CONTRACT IN ACCORDANCE WITH APPLICABLE LAW. THIS PROVISION DOES NOT AFFECT THE RIGHT OF EITHER PARTY TO THIS CONTRACT WHO IS SUED BY A THIRD PARTY FOR ACTS OR OMISSIONS ARISING FROM THIS CONTRACT TO BRING IN THE OTHER PARTY TO THIS CONTRACT AS A THIRD - PARTY DEFENDANT AS ALLOWED BY LAW. 18. Dispute Resolution Procedures. The Contractor and City desire an expeditious means to resolve any disputes that may arise between them regarding this Contract. If either party disputes any matter relating to this Contract, the parties agree to try in good faith, before bringing any legal action, to settle the dispute by submitting the matter to mediation before a third party who will be selected by agreement of the parties. The parties will each pay one-half of the mediator's fees. 19. Attorney's Fees. Should either party to this Contract bring suit against the other party for breach of contract or for any other cause relating to this Contract, neither party will seek or be entitled to an award of attorney's fees or other costs relating to the suit. 20. Termination. (A) City Termination for Convenience. Under this paragraph, the City may terminate this Contract during its term at any time for the City's own convenience where the Contractor is not in default by giving written notice to Contractor. If the City terminates this Contract under this paragraph, the City will pay the Contractor for all services rendered in accordance with this Contract to the date of termination. (B) Termination for Default. Either party to this Contract may terminate this Contract as provided in this paragraph if the other party fails to comply with its terms. The party alleging the default shall provide the other party notice of the default in writing citing the terms of the Contract that have been breached and what action the defaulting party must take to cure the default. If the party in default fails to cure the default as specified in the notice, the party giving the notice of default may terminate this Contract by written notice to the other party, specifying the date of termination. Termination of this Contract pursuant this paragraph does not affect the right of either party to seek remedies for breach of the Contract as allowed by law, including any damages or costs suffered by either party. 21. Owner's Manual and Preventative Maintenance. Contractor agrees to provide a copy of the owner's manual and/or preventative maintenance guidelines or instructions if available for any equipment purchased by the City pursuant to this Contract. Contractor must provide such documentation upon delivery of such equipment and prior to receipt of the final payment by the City. 22. Limitation of Liability. The City's maximum liability under this Contract is limited to the total amount of compensation listed in this Contract. In no event shall the City be liable for incidental, consequential or special damages. 23. Assignment. No assignment of this Contract by the Contractor, or of any right or interest contained herein, is effective unless the City Manager first gives written consent to such assignment. The performance of this Contract by the Contractor is of the essence of this Contract, and the City Manager's right to withhold consent to such assignment is within the sole discretion of the City Manager on any ground whatsoever. 24. Severability. Each provision of this Contract is considered to be severable and, if, for any reason, any provision or part of this Contract is determined to be invalid and contrary to Service Contract Standard Form Page 5 of 7 Approved as to Legal Form 6.28.2021 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 applicable law, such invalidity shall not impair the operation of nor affect those portions of this Contract that are valid, but this Contract shall be construed and enforced in all respects as if the invalid or unenforceable provision or part had been omitted. 25. Order of Precedence. In the event of any conflicts or inconsistencies between this Contract, its attachments, and exhibits, such conflicts and inconsistencies will be resolved by reference to the documents in the following order of priority: A. this Contract (excluding attachments and exhibits); B. its attachments; C. the bid solicitation document including any addenda (Exhibit 1); then, D. the Contractor's bid response (Exhibit 2). 26. Certificate of Interested Parties. Contractor agrees to comply with Texas Government Code Section 2252.908, as it may be amended, and to complete Form 1295 "Certificate of Interested Parties" as part of this Contract if required by said statute for items approved by the City Council. 27. Governing Law. Contractor agrees to comply with all federal, Texas, and City laws in the performance of this Contract. The applicable law for any legal disputes arising out of this Contract is the law of the State of Texas, and such form and venue for such disputes is the appropriate district, county, or justice court in and for Brazoria County, Texas. 28. H.B. 89. In accordance with Chapter 2270 of the Texas Government Code, the signatory executing this contract on behalf of company verifies that the company does not boycott Israel and will not boycott Israel during the term of this contract. This clause is subject to companies with ten or more full time employees and the contract value is $100,000 or more that is to be paid wholly or partially with public funds of the governmental entity. 29. Public Information Act Requirements. This paragraph applies only to Contracts that have a stated expenditure of at least $1,000,000 or that result in the expenditure of at least $1,000,000 by the City. The requirements of Subchapter J, Chapter 552, Government Code, regarding certain entities requirement to provide contracting information to governmental bodies in connection with a public information request, may apply to this contract and the Contractor agrees that the contract can be terminated if the Contractor knowingly or intentionally fails to comply with a requirement of that subchapter. 30. Entire Agreement. This Contract constitutes the entire agreement between the parties concerning the subject matter of this Contract and supersedes all prior negotiations, arrangements, agreements, and understandings, either oral or written, between the parties. IV. Special Terms and Conditions. None V. Additional Contract Documents Attached and Incorporated by Reference: Attachment A: Scope of Work Attachment B: Bid/Pricing Schedule Attachment C: Insurance and Bond Requirements Attachment D: Warranty Requirements Service Contract Standard Form Page 6 of 7 Approved as to Legal Form 6.28.2021 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 Incorporated by Reference Only: Exhibit 1: RFB/RFP/Quote No.#11648-02 Exhibit 2: Contractor's Bid/Proposal Response Service Contract Standard Form Page 7 of 7 Approved as to Legal Form 6.28.2021 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 ATTACHMENT A - SCOPE OF WORK Scope of services provided shall consist of: • Demo and replacement of concrete curb damaged by fire. • Removal, haul off, and dispose of approximately 1,400 sq ft of engineered wood fiber. • Supply Playbooster 2 -5 -year -old rated playground with all associated material, supplies, and hardware. • Provide installation services for identified Playbooster 2 -5 -year -old playground set and associated work. • Deliver and install approximately 73 cubic yards of IPEMA certified engineered wood fiber with geofabric weed barrier underlayment. DocuSign Envelope ID: 59ACFFF2-5O16-449B-A75B-4C6D416E1985 /PRICING SCHEDULE LONE V STAR Contact: Company: Phone: Email: Ship To: Lone Star Recreation of Texas, LLC. 10701 Corporate Drive Suite 390 Stafford, TX 77477 Chrystopher Bickham City of Pearland 281-652-1982 CBickham@pearlandtx.gov Landscape Structures, Inc. Certified Installer Phone: 281-970-9010 Bill To: City of Pearland Accounts Payable P.O. Box 2719 Pearland, TX 77588-2719 accountspayable@pearlandtx.gov Installation Site: South Gate Park 11417 Harris Ave Pearland, TX 77584 Design Number: 1169488-01-01 Date: Proposal Expires: Terms INCO Terms: Estimated Mfg. Lead Time: Payment Terms: Equipment: Installation: Surface: Proposal Prepared By Contact: Phone: Email: Sales Contact: Phone: Email: We are pleased to submit this proposal to supply the following items: PROPOSAL Quote # 11648-02 4/10/2023 5/10/2023 F.O.B. Manufacturing Plant 24-26 weeks ARO Net 30 Due upon completion Due upon completion Vanessa Zelaya 281-970-9010 Vanessa.Zelaya@LonestarRecreation.com Ryan Cicatello 281-970-9010 Ryan.Cicatello@lonestarrecreation.com QTY ITEM NO. DESCRIPTION UNIT PRICE EXTENDED AMT 1 1169488-01-01 PlayBooster® (2-5 years) DB, Mixed Material $ 30,687.00 $ 30,687.00 1 182503A Welcome Sign (LSI Provided) Ages 2-5 years DB $ - $ - 1 INSTALLATION Installation of Landscape Structures equipment referenced above by Manufacturer Trained and Certified CPSI Installer w/ 12 month labor warranty $ 13,093.00 $ 13,093.00 1 INSTALLATION Demo and replacement of concrete curb damaged by fire $ 2,187.00 $ 2,187.00 1 DEMO Removal/Haul-off/disposal of Approx. 1,400sf of existing EWF $ 3,645.00 $ 3,645.00 1 SURFACE Delivered and installed IPEMA certified EWF - Engineering Wood Fiber approx. 73 cubic yards w/ geofabric weed barrier Subbase & Drainage: Not Included Dumpster: Not Included $ 5,030.00 $ 5,030.00 By signing this proposal, the customer is agreeing to the scope of work and terms. Accepted by Customer Date Print Name PO/Ref. # Title Pricing is for the above listed equipment only: NO installation, subgrade, drainage, additional contract terms, additions or deletion, change orders, insured addendum, off loading of equipment, storage of product, site security, retainage, or any applicable taxes, bonds, permits or freight are included unless listed as separate line items. Freight charges will be included with initial invoice. Tax Exemption Certificate must be supplied with order if applicable Change orders, cancellation, and/or rescheduling of services will be subject to available schedule and payment for incurred time & expenses, freight and fees. LSRT reserves the right to apply payments to past due invoices first before applying payments to specific orders. 1.5% per month late payment fee will be applied for late payments LSRT Terms and Conditions apply unless Subcontract is on file. EQUIPMENT $ INSTALLATION $ SURFACE $ BUYBOARD #679-22 $ FREIGHT $ SALES TAX 30,687.00 18,925.00 5,030.00 (2,732.10) 2,700.00 Exempt TOTAL $ 54,609.90 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 Lone Liar Recreation of Texas, LLC. 10701 Corporate Drive Suite 390 Stafford, TX 77477 LONE w grim SCHEDULE OF PAYMENTS Quote # 11648-02 Phone: 281-970-9010 Contact: Chrystopher Bickham Company: City of Pearland Phone: 281-652-1982 Email: CBickham@pearlandtx.gov Ship To: Landscape Structures, Inc. Certified Installer Bill To: City of Pearland Accounts Payable P.O. Box 2719 Pearland, TX 77588-2719 accountspayable@pearlandtx.gov Installation Site: South Gate Park 11417 Harris Ave Pearland, TX 77584 Design Number: 1169488-01-01 Date: Proposal Expires: Terms INCO Terms: Estimated Mfg. Lead Time: Payment Terms: Equipment: Installation: Surface: Proposal Prepared By Contact: Phone: Email: Sales Contact: Phone: Email: 4/10/2023 5/10/2023 F.O.B. Manufacturing Plant 24-26 weeks ARO Net 30 Due upon completion Due upon completion Vanessa Zelaya 281-970-9010 Vanessa.Zelaya@LonestarRecreation.com Ryan Cicatello 281-970-9010 Rya n.Cicatel to@lonestarrecreation.com Schedule of Project Payments Invoice # _ Due Equipment Installation Surface Discounts Freight Total Value Equipment Installation Surface BuyBoard Discount Freight 100% 100% 100% 100% 100% Net 30 from Shipment Upon Completion Upon Completion with Final Bill with order $ 30,687.00 $ 18,925.00 $ 5,030.00 $ (2,732.10) $ 2,700.00 30,687.00 $ 18,925.00 $ 5,030.00 $ (2,732.10) $ 2,700.00 $ 54,609.90 $ - $ 30,687.00 - $ 18,925.00 - $ 5,030.00 $ (2,732.10) - $ 2,700.00 - $ 54,609.90 $ 54,609.90 $ DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 L UNE sTAR Teetec ADDITIONAL TERMS AND CONDITIONS Entire Agreement: This document, including the proposal and any referenced attachments in the proposal, if any, contains the entire agreement and understanding between the parties with respect to the transaction contemplated. This document sets forth all of the promises, agreements, conditions, and understandings between the parties respecting the subject matter hereof, and replaces and supersedes all negotiations, conversations, discussions, correspondence, memorandums, and oral agreements between the parties, as well as any prior writings. Except as set forth in this document, including any attached exhibits, if any, there are no other agreements, representations, warranties, or covenants by or among the parties hereto with respect to the subject matter hereof. This document, including any attached exhibits, if any, supersedes all other agreements, written or oral, between the parties with respect to the transaction contemplated. Modification: No alteration, amendment, modification, or waiver of any provision of this Agreement shall be valid or effective unless it is in writing and signed by all parties. No oral agreement or course of conduct to the contrary, shall be deemed an alteration, amendment, modification, waiver, or cancellation. No evidence of any alteration, amendment, modification, or waiver shall be offered or received in evidence in any proceeding, mediation, or litigation between the parties hereto arising out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such alteration, amendment, modification, or waiver is in writing, duly executed by both parties. Any waiver or consent shall be effective only in the specific instance and for the purpose for which it was given. Severability: If any provision of this Agreement is determined to be invalid or not enforceable, or is prohibited by law for any reason, the invalidity shall not affect the validity of the remaining provisions of this Agreement. The rest of the Agreement will be unaffected. No Waiver of Rights: No waiver by any party of any of its rights or remedies hereunder shall be considered a waiver of any other subsequent right or remedy of that party. The waiver by any party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself Any course of performance shall not be deemed to amend or limit any provision of this Agreement. The failure of any party at any time to require performance by another party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. No delay or omission in the exercise of enforcement by either party of any rights or remedies shall ever be construed as a waiver of any right or remedy of that party. No exercise or enforcement of any rights or remedies shall ever be held to exhaust any right or remedy of any party. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant, or agreement contained herein or therein and in any documents delivered in connection herewith or therewith. Forbearance or neglect on the part of either party to insist upon strict compliance with the terms of this Agreement shall not be construed as or constitute a waiver thereof. Relationship of Parties: Nothing contained in this Agreement shall be deemed or construed by the parties, or by any third party, to create the relationship of employer/employee, partnership, or joint venture between the parties hereto, it being understood and agreed that no provision contained herein shall be deemed to create any relationship between the parties hereto other than as client and independent contractor. Compliance with Laws: The parties hereto shall each comply with the provisions of all applicable federal, state, county, and local laws, ordinances, regulations, and codes. Collaborative Dispute Resolution: The parties hereto shall cooperate with each other to affect the purpose and intent of this Agreement. If a dispute arises concerning this Agreement that cannot be resolved collaboratively, either with or without the assistance of collaborative counsel, the parties will try in good faith to settle the dispute through mediation conducted by a mediator to be mutually selected. The parties will share the cost of the mediator equally, but each party shall remain solely responsible for their own attorneys' fees and costs. The parties will cooperate fully with the mediator and will attempt to reach a mutually satisfactory resolution of the dispute. If the dispute is not resolved within thirty (30) days after it is referred to the mediator, the parties agree that the dispute can proceed to the courts of Harris County, Texas, governed by the laws of the State of Texas for Collaborative Law. Governing Law: This Agreement, and the rights and obligations of the parties hereunder, is being executed and delivered, and is intended to be performed in the State of Texas. Except to the extent that the laws of the United States may apply to the terms hereof, the substantive laws of the State of Texas applicable to contracts made and to be performed wholly within Texas, without regard to any choice or conflict of laws rules, shall govern the validity, construction, enforcement, and interpretation of this Agreement. Any litigation arising from this Agreement will be brought in the courts of Hams County. Attorneys' Fees: Excluding mediation, in the event that an action, litigation, or proceeding results from or arises out of this Agreement or the performance thereof, including any appeal or the collection of any judgment, the parties agree to reimburse the prevailing party's reasonable attorney's fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled, as allowable by law. A prevailing party is defined as a party who secures a judgment in its own favor through a legal process other than mediation. Successors and Assigns: Except as specifically provided in this Agreement, no party may assign, delegate, or transfer any of its rights or obligations under this Agreement, in whole or in part, without the prior written consent of the other, which consent will not be unreasonably withheld. The terms hereof are contractual in nature and are not mere recitals, and the obligations created by this Agreement shall be binding upon the successors, legal representatives, and permitted assigns of the parties hereto, forever. Force Majeure: Neither party shall be liable, nor held in breach of contract, for any loss, damage, and/or any delay in performance that may be suffered as a direct or indirect result of either party being prevented, hindered, or delayed in its performance by circumstances beyond that party's reasonable control due to force majeure, including among others, strikes; lock outs, accidents; trade or labor disputes; natural disasters, including explosions, fire, flood, storm, wind, or drought; war, terrorism, riots, civil commotion, government action, embargoes, and/or acts of civil or military authorities; shortages of transportation, facilities, fuel, energy, labor, or materials; acts of God (specifically including hurricanes and inclement weather that shuts down city services); or any delay or failure resulting from a cause or causes outside either party's reasonable control. If timely completion is prevented by any cause of force majeure, then such failure or delay shall not constitute default. Escalation: During the performance of this agreement, if the price of materials, equipment or energy are significantly increased, through no fault of Lone Star Recreation of Texas, the price shall be equitably adjusted by an amount reasonably necessary to cover any such significant increases. As used herein, a significant price increase shall mean any increase exceeding 5% from the date of the contract signing. Such price escalations shall be documented through change order, quotes, invoices, and/or receipts in accordance with the agreed contract procedure. Where the delivery of material, equipment, or energy is delayed, through no fault of the contractor, as a result of the shortage or unavailability, contractor shall not be liable for any additional costs or damages associated with such delay(s). Gender and Numbers: Unless the context clearly indicates, whenever used, the singular shall include the plural, the plural the singular, and the use of any gender shall include all genders. No Third -Party Rights: This Agreement is solely for the benefit of the parties hereto and their respective successors and assigns, if any, and no other person or entity shall have any right, benefit, priority, or interest hereunder, or because of the existence of this Agreement. Headings: The section headings contained in this Agreement are for convenience and reference purposes only and shall not affect the meaning, interpretation, or construction of this Agreement, and in no way define, describe, extend, or limit the scope or intent of this Agreement, or the intent of any provisions hereof. Voluntary Agreement & Advice of Counsel: The parties confirm and agree that each (i) has relied on its own judgment and has not been induced to sign or execute this Agreement by promises, agreements, or representations not expressly stated herein, (ii) has freely and willingly executed this Agreement and hereby expressly disclaims reliance on any fact, promise, undertaking or representation made by any other party, save and except for the express agreements and representations contained in this Agreement, (iii) was not in a significantly disparate bargaining position with regard to any other party, and (iv) has been represented by legal counsel in this matter or has voluntarily waived that right. Multiple parts: This Agreement may be executed by the parties hereto in any number of separate counterparts, each and all of which taken together shall be deemed for all purposes to be one agreement. It shall not be necessary in making proof of this Agreement to produce or account for more than one counterpart signed by the party to be charged. Electronic Signatures: This Agreement may be executed by the parties hereto with electronic signatures, each of which shall be deemed for all purposes to be an original signature. It shall not be necessary in making proof of this Agreement to produce or account for an original signature made with a traditional ink writing instrument. Phone: 281.970.9010 10701 Corporate Drive Suite 390, Stafford, Texas 77477 lonestarrecreation.com Page 1 of 1 ftWrii DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 • rts'„*. • ih t. : Y ".: J�MG _ :.;iYdrli tie wit,. ' • �.i . it •�` •�'h• *S•. h�� �,''^'., II I' +' ''} i F T� 'k rti;. ,.}- •='r..ti: :: 1 jar rp„Y'�^,1 • 77: :41: 1 4:7:4 II. .!•:; :7; �fw LTAtR 1169488-01-01-01 i 11.07.2022 :x=.2022 Landscape Structures- i cserved • C DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 } A . ':► ;e• • I l� • Cr tr':.�xsx{ P {.•.yr •Y.1. S. '1 • i a v /y • h • • • 'x1.2O22 Landscape Structures_ i=s,u i:i4_anLs reserved_ DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 • t. - rs • J4 -r•' • .�. 1169488-01-01-03 • 11.07.2022 :r)2O22 Landscape SLructures_ i cserved_ DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 NOTE: DIMENSIONS TO BE FIELD VERIFIED 177718 RAIN SOUND NE -E_ PANEL I8A33. LEFT T3/,NISFEA MCDL. E PA 2-5 A=_ 182523 N. PlayBooster® (2-5 years) Max Fall Height: 96 inches /TOTAL ELEVATED PLAY COMPONENTS 5 TOTAL ELEVATED COMPONENTS ACCESSIBLE BY RAMP 0 REQUIRED 0 TOTAL ELEVATED COMPONENTS ACCESSIBLE BY TRANSFER 5 REQUIRED 3 TOTAL ACCESSIBLE GROUND LEVEL COMPONENTS SHOWN 4 REQUIRED 2 TOTAL DIFFERENT TYPES OF GROUND LEVEL COMPONENTS 3 REQUIRED 3 J r SCALE: IN =EL o ,' 10' 169319 REG IDLED WOOD-CR\ LOM3ER PANE_ 177712 \ COLOR SPLASH PAN FL 1641,5 POih N RING PANEL AT G[AD` 11884 40" DECK LOOP UDDER=0^Crop-E' WITH RPL SINGLE POST PYRAMID R„0= WOOD -GRAIN DE ,IA r HANDHOLDS., DB MOTE. -HE 22 TCPFER SINGE ' PEST IS NOT IP-NTU CERTIFIED. N N / / L \ EXISTING SWINGS 6"/8" RISE KICKPLATE (K.P.I) OT". (22_ ) Estimated manufacturing time: 6 weeks from the time of LSI order acceptance, or receipt of SkyWays release of fabrication form if applicable. South Gate Park Pearland, TX Lone Star Recreation of Texas Ryan Cicatello SO STEM TOPE'. PlayShaper DPAWINC H: 1169488-01-01 tUL landscape structures yr`> EMA e% CE fI!lEDL �'i8s r 1 t -I I PIA, AR -4 DI 'I AY-DNIPMTNT I.S 1111 -.ISN12 -1 _ 2-5 YEARS LN RCS 02 r2IWlgr NO --2 ON PIAN. 11 I DESIE .. -. -. IL o,-,.— 11/4/22 Date Previous Drawing X Initials GAM ISO 14001:2016 1 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 Attachment C City of Pearland 3519 Liberty Drive Pearland, TX 77581 Purchasing Department 281.652.1775 ebidspearlandtx.gov Contractor Insurance Requirements & Agreement Contractors performing work on City property or public right-of-way for the City of Pearland shall provide the City a certificate of insurance or a copy of their insurance policy(s) evidencing the coverages and coverage provisions identified herein. Contractors shall provide the City evidence that all subcontractors performing work on the project have the same types and amounts of coverages as required herein or that the subcontractors are included under the contractor's policy. All insurance companies and coverages must be authorized by the Texas Department of Insurance to transact business in the State of Texas and must be acceptable to the City of Pearland. Listed below are the types and amounts of insurances required. The City reserves the right to amend or require additional types and amounts of coverages or provisions depending on the nature of the work. TYPE OF INSURANCE AMOUNT OF INSURANCE PROVISIONS 1. Workers' Compensation Employers' Liability (WC) Statutory Limits $1,000,000 per occurrence For WC, CGL, and BAL, the City is to be provided a WAIVER OF SUBROGATION. CGL and BAL, City to be listed as additional insured and provided 30 - day notice of cancellation or material change in coverage. WC, CGL and BAL, City shall be provided 30 -day notice of cancellation or material change in coverage. CGL will include a non-contributory addendum. 2. Commercial General (Public) Liability (CGL) to include coverage for: a) Premises/Operations b) Products/Completed Operations c) Independent Contractors d) Personal Injury e) Contractual Liability Personal Injury - $1,000,000 per person; Property Damage - $1,000,000 per occurrence; General Aggregate - $2,000,000 3. Business Auto Liability (BAL) to include coverage for: a) Owned/Leased vehicles b) Non -owned vehicles c) Hired vehicles Combined Single Limit - $1,000,000 f the contract involves a professional service, the contractor will also be required to provide the City with professional liability insurance in an amount of at least $1,000,000. Certificate of Insurance forms may be emailed to: Purchasing Department at ebids(a�pearlandtx.gov. Questions regarding required insurance should be directed to City of Pearland Purchasing Department, at ebids@pearlandtx.gov. This form must be signed and returned with your bid/quotation. You are stating that you do have the required insurance and if selected to perform work for the City, will provide a certificate of insurance, and a copy of insurance policy with the above requirements to the City. A purchase order will not be issued without evidence of required insurance. Agreement I agree to provide the above described insurance coverages within 10 working days if selected to perform work for the City of Pearland. I also agree to provide the City evidence of insurance coverage on any and all subcontractors performing work on the project. Project/Bid # 11648-02 Company: Lone Star Recreation of Texas Signature and Printed Name: �2GCi DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 ;ANTY Landscape Structures lnc.("Manufacturer") warrants that all playstructures and/ or equipment sold will conform in kind and in quality to the specifications manual for the products identified in the Acknowledgment of Order and will be free of defects in manufacturing and material. Manufacturer further warrants: 100 -Year Limited Warranty On all PlayBooster® and PlayShapei4aluminum posts, stainless steel fasteners, clamps, beams and caps against structural failure due to corrosion/natural deterioration or manufacturing defects, and on PlayBooster steel posts against structural failure due to material or manufacturing defects. 15 -Year Limited Warranty On all Evos® and Weevos® steel arches, all plastic components (including TuffTimbersm edging), all aluminum and steel components not covered above, Mobius® climbers, Rhapsody®Outdoor Musical Instruments, decks and TenderTuff" coatings (except Wiggle Ladders, Chain Ladders and Swing Chain) against structural failure due to material or manufacturing defects. 10 -Year Limited Warranty On concrete products against structural failure due to natural deterioration or manufacturing defects. Does not cover minor chips, hairline cracks or efflorescence. 8 -Year Limited Warranty On Aeronet® climbers and climbing cables against defects in materials or manufacturing defects. 5 -Year Limited Warranty On Rhapsody® cables and mallets against defects in materials or manufacturing defects, on polycarbonate panels against defects in materials or manufacturing defects, and on bamboo panels against delamination due to defects in materials or manufacturing defects. Does not cover damage which may be associated with the natural characteristics of bamboo aging, including but not limited to discoloration, splitting, cracking, warping or twisting, nor the formation of algae, mold and other forms of fungal -type bodies on bamboo. 3 -Year Limited Warranty On all other parts, i.e.: Pulse® products, all swing seats and hangers, Mobius climber handholds, Wiggle Ladders, Chain Ladders and ProGuard" Swing Chain, Track Ride trolleys and bumpers, all rocking equipment including Sway Fun® gliders, belting material, HealthBeat® resistance mechanisms, Seesaws, etc., against failure due to corrosion/ natural deterioration or manufacturing defects. The environment near a saltwater coast can be extremely corrosive. Some corrosion and/or deterioration is considered "normal wear" in this environment. Product installed within 500 yards (457 meters) of a saltwater shoreline will only be covered for half the period of the standard product warranty, up to a maximum of five years, for defects caused by corrosion. Products installed in direct contact with saltwater or that are subjected to salt spray are not covered by the standard warranty for any defects caused by corrosion. This warranty does not include any cosmetic issues or wear and tear from normal use of the product, or misuse or abuse of the product. It is valid only if the playstructures and/or equipment are erected to conform with Landscape Structures' installation instructions and maintained according to the maintenance procedures furnished by Landscape Structures Inc. Jl/ L landscape structures' 2023 Play Equipment Warranty You have our word. All the warranties commence on date of Manufacturer's invoice. Should any failure to conform to the above express warranties appear within the applicable warranty period, Manufacturer shall, upon being notified in writing promptly after discovery of the defect and within the applicable warranty period, correct such nonconformity either by repairing any defective part or parts, or by making available a replacement part within 60 days of written notification. Manufacturer shall deliver the repaired or replacement part or parts to the site free of charge, but will not be responsible for providing labor or the cost of labor for the removal of the defective part or parts, the installation of any replacement part or parts or for disposal costs of any part or parts. Replacement parts will be warranted for the balance of the original warranty. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. The remedies hereby provided shall be the exclusive and sole remedies of the purchaser. Manufacturer shall not be liable for any direct, indirect, special, incidental or consequential damages. Manufacturer neither assumes nor authorizes any employee, representative or any other person to assume for Manufacturer any other liability in connection with the sale or use of the structures sold, and there are no oral agreements or warranties collateral to or affecting this agreement. The warranties stated above are valid only if the structures and/or equipment are erected in conformance with Landscape Structures' installation instructions and maintained according to the maintenance procedures furnished by Landscape Structures Inc.; have been subjected to normal use for the purpose for which the goods were designed; have not been exposed to saltwater or salt spray; have not been subject to misuse, negligence, vandalism, or accident; have not been subjected to addition or substitution of parts; and have not been modified, altered, or repaired by persons other than Manufacturer or Manufacturer's designees in any respect which, in the judgement of Manufacturer, affects the condition or operation of the structures. To make a claim, send your written statement of claim, along with the original job number or invoice number to: Landscape Structures Inc. 601 7th Street South, Delano, Minnesota, 55328-8605. Signed: f resident Date: 01/01/2023 DocuSign Envelope ID: 59ACFFF2-5C16-449B-A75B-4C6D416E1985 Landscape Structures Inc. ("Manufacturer") warrants that all equipment sold will conform in kind and in quality to the specifications manual for the products identified in the Acknowledgment of Order and will be free of defects in manufacturing and material. Manufacturer further warrants: 20 -Year Limited Warranty On all SkyWays® and CoolToppers® steel components against structural failure due to material or manufacturing defects. 10 -Year Limited Warranty On SkyWays® and CoolToppers® fabric and thread against failure from significant fading, deterioration, breakdown, mildew, outdoor heat, cold or discoloration. This warranty is limited to the design loads as stated in the manual, and applies to standard colors only. 3 -Year Limited Warranty On all other parts, including Rapid Release® against failure due to corrosion/natural deterioration or manufacturing defects. The environment near a saltwater coast can be extremely corrosive. Some corrosion and/or deterioration is considered "normal wear" in this environment. Product installed within 500 yards (457 meters) of a saltwater shoreline will only be covered for half the period of the standard product warranty, up to a maximum of five years, for defects caused by corrosion. Products installed in direct contact with saltwater or that are subjected to salt spray are not covered by the standard warranty for any defects caused by corrosion. This warranty does not include any cosmetic issues or wear and tear from normal use of the product, or misuse or abuse of the product. It is valid only if the equipment is erected to conform with Landscape Structures' installation instructions and maintained according to the maintenance procedures furnished by Landscape Structures Inc. Maintenance is particularly critical in regions where dirt and/or sand may cause abrasion of the fabric. This warranty is void if conditions exceed local building codes. Slibt 2023 SkyWays' and CoolToppers' landscape Shade Warranty structures' You have our word. All the warranties commence on date of Manufacturer's invoice. Should any failure to conform to the above express warranties appear within the applicable warranty period, Manufacturer shall, upon being notified in writing promptly after discovery of the defect and within the applicable warranty period, correct such nonconformity either by repairing any defective part or parts, or by making available a replacement part within 60 days of written notification. Manufacturer shall deliver the repaired or replacement part or parts to the site free of charge, but will not be responsible for providing labor or the cost of labor for the removal of the defective part or parts, the installation of any replacement part or parts or for disposal costs of any part or parts. Replacement parts will be warranted for the balance of the original warranty. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. The remedies hereby provided shall be the exclusive and sole remedies of the purchaser. Manufacturer shall not be liable for any direct, indirect, special, incidental or consequential damages. Manufacturer neither assumes nor authorizes any employee, representative or any other person to assume for Manufacturer any other liability in connection with the sale or use of the structures sold, and there are no oral agreements or warranties collateral to or affecting this agreement. The warranties stated above are valid only if the structures and/or equipment are erected in conformance with Landscape Structures' installation instructions and maintained according to the maintenance procedures furnished by Landscape Structures Inc.; have been subjected to normal use for the purpose for which the goods were designed; have not been exposed to saltwater or salt spray; have not been subject to misuse, negligence, vandalism, or accident; have not been subjected to addition or substitution of parts; and have not been modified, altered, or repaired by persons other than Manufacturer or Manufacturer's designees in any respect which, in the judgement of Manufacturer, affects the condition or operation of the structures. To make a claim, send your written statement of claim, along with the original job number or invoice number to: Landscape Structures Inc. 601 7th Street South, Delano, Minnesota, 55328-8605. Signed: j resident Date: 01/01/2023