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HomeMy WebLinkAboutResolution - 2022-R0117 - 2 Purchase Orders with Child's Play Inc 3.8.22Resolution No. 2022-RO 117 Item No. 7.12 March 8, 2022 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, two (2) Purchase Orders, as per BuyBoard Contract 592-19, for playground replacement at Aztlan Park and Strong Park, by and between the City of Lubbock and Child's Play, Inc. of Dallas, Texas, and related documents. Said Purchase Orders are attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on March 8, 2022 _tn_.7�A DANIEL M. POPE, 4AYOR ATTEST: Rebe a Garza, City Secr to APPROVED AS TO CONTENT: A�kw4mACl/m'. Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: RyA Brq6ke, Assistant City Attorney RES.POs for 2 playgrounds -Child's Play, Inc. 3.15.22 ► City of Lubt)om TEXAS PURCHASE ORDER TO: CHILD'S PLAY, INC. 10661 SHADY TRAIL DALLAS TX 75220 Page - Date - Order Number Branch/Plant 1 2/17/2022 10025025 000 OP 5223 SHIP TO: CITY OF LUBBOCK - CENTRAL 308 MUNICIPAL DRIVE LUBBOCK TX 79403 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 B : rta A10irez, Director of Purchasing & Contract Management Ordered 3/8/2022 Freight Requested 5/3/2022 Taken By K MORGAN Delivery PER M CHACON REQ 58469 BUYBOARD 592-19/PUR 16424 If you have any questions about this order, please contact Mariana Chacon at 806-775-2664 or via email at MChacon@mylubbock.us Description/Supplier Item Ordered Unit Cost UM Extension Request Date Playground Replacement for Strong Park 1.000 215,549.0600 EA 215,549.06 5/3/2022 Total Order Terms NET 30 INSITRANCR RF01lTRF.T)- 215,549.06 Commercial General Liability, per occurrence- $1,000,000 Automotive Liability- Combined Single limit for Any Auto - General Aggregate. $1,000,000 Products-Comp/Op AGG Personal & Adv. Injury Worker's Compensation Amounts- $500,000 or Employer's Contractual Liability Liability - $1,000,000. Med Exp (Any one Person) Copies of endorsements are required. City of Lubbock is named as an additional insured on a primary and non-contributory basis with a waiver of subrogation in favor of the City of Lubbock on liability coverages. To include products of completed operations endorsements. Waiver of subrogation provided on the workers' compensation. This purchase order encumbers funds in the amount of $215,549.06 awarded to Child's Play, Inc. of Dallas, TX, on March 8 , 2022. The following is incorporated into and made part of this purchase order by reference: Quote dated February 09, 2022, from Child's Play, Inc. of Dallas, TX, and BuyBoard Contract 592-19. Resolution # 2()22-R01 17 CITY OF LU>3 K Daniel M. Pope, Mayor ATTEST: AD I " , Reb ca Garza, City Secre'6- Rev. 9/2021 Seller and Buyer agree as follows: PURCHASE ORDER TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TX I SELLER TO PACKAGE GOODS Seller will package goods in accordance with good commercial practice Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e g box 1 of 4 boxes. and (d) the number of the container hearing the packing slip Sellet shall bear cost ofpackaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common tamers and any applicable specifications Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists 2 SHIPMENT UNDER RESERVATION PROHIBITED Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods 3 TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery 4 NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like If a tender is made ..firth does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided, where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward 5 INVOICES & PAYMENTS a. S e I I e r shall submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable Invoices shall be itemized and transportation charges, if any, shall be listed separately A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice Marl To Accounts Payable. City of Lubbock. P O Box 2000, Lubbock, Texas 79457 Payment shall not be due until the above instruments are submitted after delivery 6 GRATUITIES The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if at is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities 7 SPECIAL TOOLS & TEST EQUIPMENT If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such 8 WARRANTY -PRICE a The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others. or in the alternative Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense b The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage. or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business For breach of vitiation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without Lability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee 9 WARRANTY -PRODUCT Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the sample(s) furnished by the Seller, if any In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govem Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -free performance and fault -free result in the processing date and date related data (including, but not limited to calculating. comparing and sequencing) of all hardware software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract The obligations contained herein apply to products and services provided by the Seller, its sub- Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Sellers liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference 10 SAFETY WARRANTY Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U S Department of Labor under the Occupational Safety and Health Act of 1970 In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Sellers expense In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense I I NO WARRANTY BY BUYER AGAINST INFRINGEMENTS As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any durd person by way of infringement of the like Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement If Buyer does not receive nonce and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void 12 NON APPROPRIATION All funds for payment by the City under this contract are subject to the availability of an annual appropriation for this purpose by the City In the event of nonappropriatron of funds by the City Council of the City of Lubbock for the goods or semces provided under the contract, the City will terminate the contract, without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then -current year for the goods or services covered by this contract is spent, whichever event occurs first If at any time funds are not appropriated for the continuance of this contract, cancellation shall be accepted by the Seller on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this contract beyond the date of termination 13 RIGHT OF INSPECTION Buyer shall have the right to inspect the goods at delivery before accepting them 14 CANCELLATION Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity 15 TERMINATION The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision Temunation of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 14, herein 16 FORCE MAJEURE Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent 17. ASSIGNMENT -DELEGATION No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph 18 WAIVER No claim or right arising out of a breach of this contract can be discharged in whole or in pan by a warver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party 19 INTERPRETATION -PAROLE EVIDENCE This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control 20 APPLICABLE LAW This agreement shall be governed by the Uniform Commercial Code Whereever the term ' Unrfoinm Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the date of this agreement 21 RIGHT TO ASSURANCE Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract 22 INDEMNIFICATION Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anyvmse result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and. if anyjudgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided 23 TIME It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement 24 MBE The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will he afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award 25 NON -ARBITRATION The City reserves the right to exercise any right or remedy to it by law, contract. equity, or otherwise, including without limitation, the right to seek my and all forms of relief in a court of competent jurisdiction Further, die City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control 26. RIGHT TO AUDIT At any time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the State of Texas, at its expense and at reasonable times. reserves the right to audit Contractors records and books relevant to all services provided to the City under this Contract In the event such an audit by the City reveals any errors or overpayments by the City. Contractor shall refund the City the full amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor 27 ASSIGNING OR SUBLETTING THE CONTRACT The Contractor shall not assignor sublet the contract, or any portion of the contract, without written consent from the Director of Purchasing and Contract Management Should consent be given, the Contractor shall insure the Subcontractor or shall provide proof on insurance from the Subcontractor that complies with all contract Insurance requirements 29 HOUSE BILL 1295 DISCLOSURE OF INTERESTED PARTIES House Bill 1295, adopted by the 84th Legislature, created §2252 908, Texas Government Code. Section 2252 908 requires a business entity entering into certain contracts with a governmental entity or state agency to file with the governmental entity or state agency a disclosure of interested parties at the time the business entity submits the signed contract to the governmental entity or state agency Instructions for completing Form 1295 are available at hnn 1'www• ci.iubbock tx.issldeparimenta!•websimsrdenarnncntsr�y=rjtgtin �vcndor-inlomianon 30 CONTRACTOR ACKNOWLEDGES, by supplying any Goods or Services that the Contractor has read fully understands, and will be in full compliance with all terms and conditions and the descriptive material contained herein and any additional associated documents and Amendments. The City disclaims any terms and conditions provided by the Contractor unless agreed upon in writing by the parties. In the event of conflict between these terms and conditions and any terms and conditions provided by the Contractor, the terms and conditions provided herein shall prevail The terms and conditions provided herein are the final terms agreed upon by the parties, and any prior conflicting terms shall be of no force or effect 31 TEXAS GOVERNMENT CODE, CHAPTER 2252 The undersigned representative of the undersigned company or business, being an adult over the age of eighteen (18) years of age, pursuant to Texas Government Code, Chapter 2252, Section 2252 152, certify that the company named above is not listed on the websrte of the Comptroller of the State of Texas concerning the listing of companies that are identified under Section 806 051, Section 807-051 or Section 2253 153 1 further certify that should the above -named company enter into a contract that is on said listing of companies on the websrte of the Comptroller of the State of Texas, which do business with Iran. Sudan or any Foreign Terrorist Organization, I will immediately notify the City of Lubbock Purchasing and Contract Department 32 TEXAS GOVERNMENT CODE. CHAPTER 2270 This section applies only to a contract that (1) is between a governmental entity and a company with 10 or more full-time employees, and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of the governmental entity (b) A governmental entity may not enter into a contract with a tympany for goods or services unless the contract contains a written verification from the company that it (1) does not boycott Israel, and (2) will not boycott Israel during the term of the contract 33 TEXAS PUBLIC INFORMATION ACT The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, Pursuant to Section 552 301(c) of the Texas Government Code, the City of Lubbock has designated the following email address for which public information requests may be made by an entailed request Please send this request to this email address for to be processed n*r fe niwlu REV 92021 10661 Shady Trail Dallas, TX 75220 Child's play, Inc. Date: 219122 Parks & Playgrounds Expires 3111/22 Delivery: 6-8 weeks Customer: City of Lubbock, TX Parks Department Consultant: Tom Sawyers Attn: ColbyVangundy (806)775-2673 cvangun mvlubbock.us Mobile: (972)5697258 Re: Strong Park Playground Replacement Office: (972) 484.0600 Bill to: 1314 Avenue K Lubbock TX 79401 tom hildsplayinc.net Site: 80th Street & Sherman Avenue Lubbock TX 79423 BuyBoard Vendor ID 1501 Ship to: Child's Play, Inc.10661 Shady Trail Dallas TX 75220 BuyBoard Contract # 592-19 ITEM OTY I DESCRIPTION EACH I SUBTOTAL TOTAL Price assumes permit & drainage away from play area be provided by "other" at no cost to Child's Play, Inc. Strong Park Playground Replacement PERMIT 1 Permit(s), if necessary, to be provided by "other' at no cost to Child's Play, Inc. FENCE 1 Price assumes temporary V chain link fencing to be provided by The City at no cost DEMO 4406 Demolition of existing play equipment, safety surfacing, footings and any concrete within existing play area to be provided by "other' at no cost to Child's Play, Inc. Compacted subgrade to be within 10" to 12" below the top of the existing playground border DRAINAGE 4406 Install 4" ADS pipe w/ sock around perimeter of play area. Install up to 6.5" depth of C57 $4.19 $18,461.14 drain rock. "Daylight" drain up to 20 linear feet beyond the existing play area. Terminate drain into a 9" X 9" ADS drain basin w/ flat grate, flush with the ground. Secure grate to basin w/ stainless steel screws. COMPACTION 4406 Compaction of drain rock to prep for safety surfacing $1.00 $4,406.00 36-147108-2 1 Burke equipment per design: 36-147108-2 $94,445.00 DISC 1 BuyBoard and Child's Play, Inc. discount on Burke equipment -$14,468.63 SHIP 1 Freight for play equipment listed above $6,969.15 INSTALL 1 Installation ofequipment listed above $28,333.50 PIP 4406 Install 5.5" (total depth) of Bondflex safety surfacing on top of compacted drain rock $17.15 $75,562.90 DUMPSTER 1 Dumpslerfor PIP debds $1.840.00 TAX 0.0825 Sales tax (please add sales tax or provide an exemption certificate) Total for: Strong Park Playground Replacement $215,549.06 Tom Sawyers Prepared By: Approved by (print/signldate): Child's Play Inc. warrants the labor for replacement parts for the duration of the factory warranty of BCI Burke components In the event rock is encountered, additional charges may be assessed. It is the responsibility of the owner to obtain permits (unless specified above). it is the responsibility of the owner to locate underground utility lines. At the owners requests, Child's Play, Inc. will assist with this by requesting a line locate. Child's Play Inc. will make every reasonable effort to respect marked utility lines, & will repair damage caused to marked utilities by Child's Play, Inc. Child's Play, Inc. will not be responsible for damage to unmarked utilities. Prices are guaranteed for 30 days from date listed on quote (unless otherwise noted above). Pa9a 3 W 6 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 2022-852083 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Child's Play, Inc. Dallas, TX United States Date Filed: 02/17/2022 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. PO 10025025 Playground 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Party. ❑ X 6 UNSWORN DECLARATION My name is Kathy M. RObermn, V.P. ,and my date of birth is _ My address is bi& (street) _ (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in _ County, State of f on the /�, day of 01; 2022. (month) (year) SignatUrZAf authorized agent of contracting business entity (Declarant) t-orms proviueo oy i exas tmics t✓ommission www.etnics.state.tx.us Version V1.1.191b5cdc CERTIFICATE OF INTERESTED PARTIES FORM 1295 lofl Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 2022-852083 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Child's Play, Inc. Dallas, TX United States Date Filed: 02/17/2022 2 Name of governmental entry or state agency that is a parry tot the contract for which the form is being filed. City of Lubbock Date Acknowledged: 02/21/2022 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. PO 10025025 Playground 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Party. ❑ X 6 UNSWORN DECLARATION My name is and my date of birth is My address is (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in County, State of on the day of , 20 (month) (year) Signature of authorized agent of contracting business entity (Declarant) U11110 N,uvwcu uy www.emtcs.siatexcus Version V1.1.191b5cdc City of Lubbock TEXAS PURCHASE ORDER TO: CHILD'S PLAY, INC. 10661 SHADY TRAIL DALLAS TX 75220 Page - Date - Order Number Branch/Plant 1 2/17/2022 10025027 000 OP 5223 SHIP TO: CITY OF LUBBOCK - CENTRAL 308 MUNICIPAL DRIVE LUBBOCK TX 79403 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: Marta AlOwk, Director of Purchasing & Contract Management Ordered 3/8/2022 Freight Requested 5/3/2022 Taken By K MORGAN Delivery PER M CHACON REQ 58471 BUYBOARD 592-19/PUR 16424 If you have any questions about this order, please contact Mariana Chacon at 806-775-2664 or via email at MChacon@atnylubbock.us Description/Supplier Item Ordered Unit Cost UM Extension Request Date Playground Replacement for Aztlan Park 1.000 204,833.6900 EA 204,833.69 5/3/2022 Total Order Terms NET 30 INSTTRANCF RROTTTRFI)- 204,833.69 Commercial General Liability, per occurrence- $1,000,000 Automotive Liability- Combined Single limit for Any Auto General Aggregate. - $1,000,000 Products-Comp/Op AGG Personal & Adv. Injury Worker's Compensation Amounts- $500,000 or Employer's Contractual Liability Liability - $1,000,000. Med Exp (Any one Person) Copies of endorsements are required. City of Lubbock is named as an additional insured on a primary and non-contributory basis with a waiver of subrogation in favor of the City of Lubbock on liability coverages. To include products of completed operations endorsements. Waiver of subrogation provided on the workers' compensation. This purchase order encumbers funds in the amount of $204,833.69 awarded to Child's Play, Inc. of Dallas, TX, on March 8 , 2022. The following is incorporated into and made part of this purchase order by reference: Quote dated February 09, 2022, from Child's Play, Inc. of Dallas, TX, and BuyBoard Contract 592-19. Resolution # 2022-RO 117 CITY OF LUB OCK ATTEST: Daniel M. Pope, Mayof Reb ca Garza, City Secreta Rev. 9/2021 Seller and Buyer agree as follows: PURCHASE ORDER TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TX I SELLER TO PACKAGE GOODS Seller will package goods in accordance with good commercial practice Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e g box 1 of 4 boxes and (d) the number of the container hearing the packing slhp Seller shall bear cost of packaging unless otherwise provided Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common tamers and any applicable specifications Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2 SHB'MENT UNDER RESERVATION PROHIBITED Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods 3 TITLE AND RISK OF LOSS The title and nsk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery 4 NO REPLACEMENT OF DEFECTIVE TENDER Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like If a tender is made which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a confomung tender, provided, where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward 5 INVOICES & PAYhffNI'S a S e 1 I e r shall submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable Invoices shall be itemized and transportation charges, if any, shall be listed separately A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice Mail To Accounts Payable. City of Lubbock_ P O Box 2000. Lubbock Texas 79457 Payment shall not be due until the above instruments are submitted after delivery 6 GRATUITIES The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities 7 SPECIAL TOOLS & TEST EQUIPMENT If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such 8 WARRANTY -PRICE a The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others. or in the alternative Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense b The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for conhnussion, percentage. brokerage. or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business For breach of vitiation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from die contract pnce, or otherwise recover without Lability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee 9 WARRANTY -PRODUCT Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bad invitation, and to the sample(s) furnished by the Seller, if any In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -free performance and fault -free result in the processing date and date related data (including, but not limited to calculating competing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, hndhvhdually or in combination, as the case may be from the effective date of this Contract The obligations contained herein apply to products and services provided by the Seller, its sub- Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference 10 SAFETY WARRANTY Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U S Department of Labor under the Occupational Safety and Health Act of 1970 In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Sellers expense In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense 11 NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful clam of any third person by way of infringement of the like Buyer makes no warranty that the production of goods according to the specification will not give nse to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller its sued on the grounds of infringement of the like If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void 12 NON APPROPRIATION All funds for payment by the City under this contract are subject to the availability of an annual appmpnation for this purpose by the City In the event of nonapproptiatmon of funds by the City Council of the City of Lubbock for the goods or services provided under the contract, the City will terminate the contract, without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then -current year for the goods or services covered by this contract is spent, whichever event occurs first If at any time funds are not appropriated for the continuance of this contract, cancellation shall be accepted by the Seller on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this contract beyond the date of termination 13 RIGHT OF INSPECTION Buyer shall have the right to inspect the goods at delivery before accepting them 14 CANCELLATION Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity 13 TERMINATION The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order its terminated and the date upon which such termination becomes effective Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 14, herein 16 FORCE MAJEURE Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the parry whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent 17 ASSIGNMENT -DELEGATION No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written pernussion of the Buyer Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph 18 WAIVER No claim or right arising out of a breach of this contract can be discharged in whole or in pan by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party 19 INTERPRETATION -PAROLE EVIDENCE This writing. plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control 20 APPLICABLE LAW This agreement shall be governed by the Uniform Commercial Code Whereever the ter "Uniform Commercial Code" its used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the date of this agreement 21 RIGHT TO ASSURANCE Whenever one parry to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give mitten assurance of his intent to perform In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract 22 INDEMNIFICATION Seller shall indemnify. keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims. suits, liabilities. Judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses ansing therefrom of incurred in connection therewith, and, if any Judgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided 23 TIME It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement 24 MBE The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, mmonty and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award 25 NON -ARBITRATION The City reserves the right to exercise any right or remedy to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent Jurisdiction Further, die City shall not be subject to any arbitration process prior to exercising its unrestncted right to seek judicial remedy The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control 26 RIGHT TO AUDIT At any time during the term of the contract, or thereafter, the City, or a duly authonzed audit representative of the City or the State of Texas, at its expense and at reasonable times, reserves the right to audit Contractors records and books relevant to all services provided to the City under this Contract In the event such an audit by the City reveals any errors or overpayments by the City, Contractor shall refund the City the full amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor 27 ASSIGNING OR SUBLETTING THE CONTRACT The Contractor shall not assign or sublet the contract, or any portion of the contract, without women consent from the Director of Purchasing and Contract Management Should consent be given, the Contractor shall insure the Subcontractor or shall provide proof on insurance from the Subcontractor that complies with all contract Insurance requirements 29 HOUSE BILL 1295 DISCLOSURE OF INTERESTED PARTIES House Bill 1295. adopted by the 84th Legislature, created §2252 908, Texas Government Code Section 2252.909 requires a business entity entering into certain contracts with a governmental entity or state agency to file with the governmental entity or state agency a disclosure of interested parties at the time the business entity submits the signed contract to the governmental entity or state agency Instructions for completing Form 1295 are available at hh tip ilm ww• ch.lubbuck Ix usidrp�,rtmertal.websuec'dcnarSntF �fpStSh utgA ndOr-rnformpjiy?? 30. CONTRACTOR ACKNOWLEDGES, by supplying any Goods or Services that the Contractor has read, fully understands, and will be in full compliance with all terms and conditions and the descriptive material contained herein and any additional associated documents and Amendments The City disclaims any terms and conditions provided by the Contractor unless agreed upon in writing by the parties. In the event of conflict between these terms and conditions and any terms and conditions provided by the Contractor, the terms and conditions provided herein shall prevail The terms and conditions provided herein are the final terms agreed upon by the parties, and any prior conflicting terms shall be of no force or effect 31 TEXAS GOVERNMENT CODE, CHAPTER 2252 The undersigned representative of the undersigned company or business, being an adult over the age of eighteen (IS) years of age, pursuant to Texas Government Code, Chapter 2252, Section 2252 152, certify that the company named above its not listed on the websue of the Comptroller of the State of Texas concerning the listing of companies that are identified under Section 806 051. Section 807 051 or Section 2253 153 1 further certify that should the above -named company enter into a contract that its on said listing of companies on the website of the Comptroller of the State of Texas, which do business with Iran, Sudan or any Foreign Terrorist Organization, I will immediately notify the City of Lubbock Purchasing and Contract Department 32 TEXAS GOVERNMENT CODE, CHAPTER 2270 This section applies only to a contract that (1) its between a governmental entity and a company with 10 or more full-time employees, and (2) has a value of $100,000 or more that its to be paid wholly or partly from public funds of the governmental entity (b) A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it (1) does not boycott Israel, and (2) will not boycott Israel during the term of the contract 33 TEXAS PUBLIC INFORMATION ACT The requirements of Subchapter J. Chapter 552, Government Code, may apply to this contract and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter To the extent Subchapter J. Chapter SS2, Government Code applies to this agreement, Pursuant to Section 552 301(c) of the Texas Government Code, the City of Lubbock has designated the following email address for which public information requests may be made by an emaded request Please send this request to this email address for it to be processed ra r:r,_ _ 1ubb cVus REV 9,2021 10061 Shady Trail Dallas, TX 75220 Child's play, tnc. Date: 219/22 Parks & Playgrounds Expires 3/11122 Delivery: 6-8 weeks Customer: City of Lubbock, TX Parks Department Consultant: Tom Sawyers Attn: Colby Vangundy (806) 775.2673 cvangundvD-mylubbock.us Mobile: (972) 569-7258 Re: Aztlan Park Playground Replacement Office: (972) 484-0600 Bill to: 1314 Avenue K Lubbock TX 79401 tom childspliii Site: Cesar Chavez & Avenue J Lubbock TX 79401 BuyBoard Vendor ID 1501 Ship to: Child's Play, Inc.10661 Shady Trail Dallas TX 75220 BuyBoard Contract # 59249 ITEM OTY I DESCRIPTION EACH I SUBTOTAL TOTAL Price assumes permit & drainage away from play area be provided by "other" at no cost to Child's Play, Inc. Azdan Park Playground Replacement PERMIT 1 Permit(s), if necessary, to be provided by "other' at no cost to Child's Play, Inc. FENCE 1 Price assumes temporary V chain link fencing to be provided by The City at no cost DEMO 5310 Demolition of existing play equipment safety surfacing, footings and any concrete within existing play area to be provided by "other' at no cost to Child's Play, Inc. Compacted subgrade to be within 10" to 12" below the top of the existing playground border DRAINAGE 5310 Install 4" ADS pipe w/ sock around perimeter of play area. Install up to 6.5" depth of C57 $22,302.00 drain rock. "Daylight" drain up to 20 linear feet beyond the existing play area. Terminate drain into a 9" X 9" ADS drain basin w/ flat grate, flush with the ground. Secure grate to basin w/ stainless steel screws. COMPACTION 5310 Compaction of drain rock to prep for safety surfacing $1.00 $5,310.00 36-147101-2 1 Burke equipment per design: 36-147101-2 $68,384.00 DISC 1 BuyBoard and Child's Play, Inc. discount on Burke equipment -$9,990.80 SHIP 1 Freight for play equipment listed above $5,406.79 INSTALL 1 Installation of equipment listed above $20,515.20 PIP 5310 Install 5.5" (total depth) of Bondflex safety surfacing on top of compacted drain rock $17.15 $91,066.50 DUMPSTER 1 Dumpster for PIP debris $1,840.00 TAX 0.0825 Sales tax (please add sales tax or provide an exemption certificate) Total for: Aztlan Park Playground Replacement $204,833.69 Tom Sawyers Prepared By: Approved by (print/sign/date): Child's Play Inc. warrants the labor for replacement parts for the duration of the factory warranty of BCI Burke components In the event rock is encountered, additional charges may be assessed. it is the responsibility of the owner to obtain permits (unless specified above). it is the responsibility of the owner to locate underground utility lines. At the owners requests, Child's Play, Inc. will assist with this by requesting a line locale. Child's Play Inc. will make every reasonable effort to respect marked utility lines, & will repair damage caused to marked utilities by Child's Play, Inc. Child's Play, Inc. will not be responsible for damage to unmarked utilities. Prices are guaranteed for 30 days from date listed on quote (unless otherwise noted above). Page I or $ CERTIFICATE OF INTERESTED PARTIES FORM 1295 1of1 Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 2022-852087 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Child's Play, Inc. Dallas, TX United States Date Filed: 02/17/2022 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock Date Acknowledged: g Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. PO 10025027 Playground 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Parry. X 6 UNSWORN DECLARATION Kathy M, Robertson, V.P. My name is ,and my date of birth is My address is (street) (city) (city) (state) (zip code) (country) I declare under penalty of perjurythat the foregoing is true and correct. Executed in rC�C# ► _ County, State of /`� on the llday of 202 L . (month) (year) Signa r of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics commission www.ethics.state.tx.us Version V1.1.191b5cdc CERTIFICATE OF INTERESTED PARTIES FORM 1295 1of1 Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 2022-852087 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Child's Play, Inc. Dallas, TX United States Date Filed: 02/17/2022 2 Name of governmental entity or state agency that Is a party tot the contract for which the form is being filed. City of Lubbock Date Acknowledged: 02/21/2022 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. PO 10025027 Playground 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling7 Intermediary 5 Check only if there is NO Interested Party. X 6 UNSWORN DECLARATION My name is and my date of birth is My address is (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in County, State of on the day of , 20 (month) (year) Signature of authorized agent of contracting business entity (Declarant) r-viiiib Niuvwau uy i exas r-uuus commission www.etnlcs.state.tx.us Version V1.1.191b5cdc