HomeMy WebLinkAboutRes 2022-11-1316 Construction Agreement with Texas & Transcend, Inc.CITY OF ANNA, TEXAS
RESOLUTION NO. 20 ;Z �Z - 11 131(0
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A
CONSTRUCTION AGREEMENT WITH TEXAS AND TRANSCEND, INC. D/B/A
SPA SKATEPARKS FOR THE CONSTRUCTION OF A SKATEPARK AT
SLAYTER CREEK PARK.
WHEREAS, the City Council of the City of Anna, Texas, ("City Council") finds that the construction
agreement with SPA Skateparks is instrumental and necessary to the construction of a skatepark
at Slayter Creek Park; and
WHEREAS, the City Council considers the skatepark to be beneficial to the neighbors of Anna,
Texas, meeting several goals and objectives set forth in the Strategic Plan adopted by City
Council; and
WHEREAS, the City Council approves the proposed construction agreement with SPA
Skateparks to include the following Guaranteed Maximum Price:
"The total amount for fiscal year 2023: $1,800,000.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA,
TEXAS, THAT:
Section 1. Recitals Incorporated.
The recitals above are incorporated herein as if set forth in full for all purposes as set forth in full.
Section 2. Approval and Authorization of Agreement.
The City Council hereby approves the extension attached hereto as Exhibit 1 to enter into a
construction agreement with SPA Skateparks and ratifies and approves the City Manager's
execution of the same. The City Manager is hereby authorized to execute all documents and to
take all other actions necessary to finalize and enforce the construction agreement with SPA
Skateparks.
PASSED, APPROVED, AND ADOPTED on first and final reading on this 22"d day of November
2022.
ATTEST: APPROVED:
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City Secretary, Car k Land :.• .K?laydr, Nate Pike
AGREEMENT BETWEEN CITY OF ANNA, TEXAS
AND TRANSCEND, INC. DB/A SPA SKATEPARKS
THIS AGREEMENT BETWEEN THE CITY OF ANNA, TEXAS AND TRANSCEND,
INC. DB/A SPA SKATEPARKS (this "Agreement") is made and entered into effective as of the
22nd of December 2022 and between THE CITY OF ANNA, TEXAS (the "City"), and
TRANSCEND, INC. DB/A SPA SKATEPARKS ("Contractor").
WITNESSETH:
A. The City owns certain real property, with improvements situated thereon, located
at 111 N Powell Parkway, Anna, TX 75409 and known locally as Slayter Creek Park (the
"Property").
B. The City desires to have certain improvements constructed on the Property
consisting of a new Skatepark, including the creation of a paved skateboard area to include a paved
bowl and/or street style elements (the "Improvements"), such Improvements to be constructed in
accordance with the Plans and Specifications hereinafter described.
C. Contractor desires to serve as the original or general contractor for the
aforementioned construction project (the "Project") for purposes of furnishing the necessary labor
and materials (collectively, the "Work," as more specifically detailed in the Scope of Work, which
is attached hereto as Exhibit A and incorporated herein by reference for all purposes) to be utilized
in the construction of such Improvements, and Contractor shall, subject to and in accordance with
the terms and provisions of this Agreement, supervise the construction of, purchase the materials
and furnish the equipment necessary to timely complete, the Project.
NOW, THEREFORE, for and in consideration of the premises, the mutual covenants and
agreements contained herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, the City and Contractor hereby agree as
follows:
l . Subcontractors. All portions of the Work not performed directly by Contractor or
Contractor's employees shall be performed under subcontracts that shall be subject to, and will
conform with the requirements of this Agreement and the other Contract Documents. To the extent
required by law all work shall be performed by individuals duly licensed and authorized by law to
perform said Work. Contractor shall famish to the City a written list identifying all subcontractors
Contractor proposes to use for the Work to be performed hereunder, if any. The Contractor shall
assume the obligation to pay for and control the work performed by subcontractors, if any.
2. Construction Work; City to Provide Utilities for the Work. Contractor shall, in a
good and workmanlike manner and in accordance with this Agreement, prosecute and perform the
Work necessary to construct the Improvements described in and reflected on the Plans and
Specifications. All work shall be completed in a workmanship like manner and in compliance with
all building codes and other applicable laws. Contractor understands and acknowledges that the
City is entering into this Agreement in reliance upon Contractor's special skill and abilities in
DESIGN/BITII.D AGREEMENT BETWEEN CITY OF ANNA Page 1 of 19
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
performing the Work hereunder. Contractor has visited the Project site and immediately adjacent
areas and has become familiar with the local conditions under which the Work is to be performed.
Contractor shall supervise and direct the Work to be performed in connection with the construction
of the Improvements upon the Property and the completion of the Project using Contractor's best
efforts, skill, judgment, abilities and attention, and Contractor shall be solely responsible for all
fabrication, shipment, delivery and installation means, methods, techniques, sequences and
procedures, and for coordinating and implementing all portions of the Work to be performed under
this Agreement. The City will provide temporary water and electricity utilities at no cost to the
Contractor for the purpose of the Work. The City will furnish Contractor temporary water and
electricity service connections to within 150 feet of the Work. Contractor will utilize the temporary
water and electricity service solely the benefit of the Work. Contractor will cooperate with the
City and any of the City's separate or other contractors or laborers whose work might interfere
with the Work to be performed by Contractor hereunder, and Contractor shall, as requested by the
City, participate in the preparation of coordinated plans and schedules to alleviate any such
interference or congestion. Contractor shall provide and pay for all labor, materials, equipment,
tools, machinery, transportation, storage and other facilities and services necessary for the proper
execution and completion of the Work, whether temporary or permanent and whether or not
incorporated or to be incorporated in the Project. Contractor shall at all times enforce strict
discipline and good order among Contractor's employees and shall not employ on the Project any
unfit person or anyone not skilled in the task assigned them. Contractor will clean up and haul
away all debris resulting from the performance of the Work hereunder and will at all times keep
and leave the Project in as clean and orderly condition as the circumstances will permit. All
materials, equipment, furnishings and fixtures incorporated in the Work will be new unless
otherwise specified, and all Work to be performed hereunder will be of a good quality, free from
faults and defects, and in conformance with the documents referenced herein as the "Contract
Documents," which consist solely of the following: (i) this Agreement, any written amendments
hereto, and the exhibits attached hereto; (ii) the plans and specifications by New Line Skateparks
Inc. dated the day of j� t .. ^ Jot � (the "Plans and Specifications") (iii) the
Budget; and (iv) any change orders approAd by the City and Contractor in writing in accordance
with Paragraph 8. ` V
3. Adequate Safety Precautions. Hazardous Substances. Differing Site Conditions
(a) Adequate Safety Precautions. Contractor shall be responsible for initiating,
maintaining and supervising all safety precautions and programs in
connection with the performance of its obligations pursuant to this
Agreement. Contractor shall take reasonable precautions for the safety of,
and shall provide reasonable protection to prevent damage, injury or loss to,
(a) employees at the Project and other persons who may be affected thereby,
(b) the Work and all materials and equipment to be incorporated therein,
whether in storage on or off the Project site, and (c) all other property at the
Project site or adjacent thereto, such as trees, shrubs, walkways, pavement,
driveways, streets and utilities not designated for removal, relocation or
replacement during the course of construction. Contractor shall erect and
maintain, as may be dictated by the conditions surrounding the performance
of the Work, reasonable safeguards for the safety and protection of all
Page 2 of 19
DESIGNBUIL.D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. DB/A SPA SKATEPARKS
persons and property, including, without limitation, posting danger signs
and warnings against potential hazards, promulgating safety regulations,
and installing and maintaining safety and silt fencing around the perimeter
of the Project site, if necessary. If and to the extent any hazardous materials
or equipment or other unusual methods become necessary for the execution
of the Work, Contractor shall exercise utmost care and carry on such
activities under the supervision of properly qualified personnel. The City
shall be responsible for regulating access to the Project site, and for
excluding the City's guests, employees and the public from the Project site
during the period when the Work is being performed, provided that
Contractor shall cooperate with such efforts.
(b) Hazardous Substances. In the event Contractor encounters on the Property
any Hazardous Substances (defined below) that Contractor knows, or
reasonably believes, to be a Hazardous Substance which has not been
rendered harmless, Contractor shall immediately stop Work in the affected
area, report the condition to City in writing, and, if required by applicable
legal requirements, report the condition to all government or quasi -
government entities with jurisdiction over the Project or Property. The
Work in the affected area shall thereafter be resumed in the absence of a
Hazardous Substance, or when it has been rendered harmless by City or, if
reasonably disputed, by written agreement of City and Contractor.
Contractor will not be required to perform, without Contractor's consent,
any Work relating to Hazardous Substances existing on the Property and
not placed on the Property by Contractor, a Subcontractor, or any other
person or party acting by, through, at the direction of, or under the authority
of any of them (a "City Hazardous Substance"). Contractor will be entitled,
in accordance with the Agreement, or as mutually agreed by City and
Contractor, to an adjustment in the Contract Price and/or Contract Times to
the extent Contractor's cost and/or time of performance have been adversely
impacted by the presence of Hazardous Substances. To the fullest extent
permitted by law, City shall indemnify, defend and hold harmless
Contractor, Subcontractors, anyone employed directly or indirectly by any
of them, and their officers, directors, employees and agents (collectively,
the "Contractor Indemnitees") from and against any and all claims, losses,
damages, liabilities and expenses, including reasonable attorneys' fees and
expenses, arising out of or resulting from the performance of the Work in
the affected area if, in fact, the material is a City Hazardous Substance, and
provided that such claim, damage, loss or expense is attributable to bodily
injury, sickness, disease or death, or to injury to or destruction of tangible
property including loss of use resulting therefrom, but not if caused by the
negligent, grossly negligent willful conduct, or omissions of Contractor,
anyone directly or indirectly employed by Contractor or anyone for whose
acts Contractor may be liable. To the fullest extent permitted by law,
Contractor shall indemnify, defend and hold harmless City, its officers,
Page 3 of 19
DESIGNBUII.D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. DB/A SPA SKATEPARKS
directors, employees, agents, consultants, and representatives (collectively,
the "City Indemnitees") from and against claims, damages, losses and
expenses, including but not limited to attorney's fees, arising out of or
resulting from any Hazardous Substance provided by, through, or under
Contractor ("Contractor Hazardous Substances"), provided that such
claim, damage, loss, or expense is attributable to bodily injury, sickness,
disease, or death, or to injury to or destruction of tangible property including
loss of use resulting therefrom, but not if caused by the negligent, grossly
negligent willful conduct, or omissions of City, anyone directly or indirectly
employed by City or anyone for whose acts City may be liable. "Hazardous
Substances" are defined as (a) any "hazardous waste" or "regulated
substance" as defined by the Resource Conservation and Recovery Act of
1976 (42 U.S.C. Section 6901 et seq.), as amended from time to time, and
regulations promulgated thereunder; (b) any "hazardous substance" as
defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.) ("CERCLA"), as
amended from time to time, and regulations promulgated thereunder; (c)
any "toxic substance" as defined by the Toxic Substance Control Act (15
U.S.C. Section 2601 et seq.), Texas Water Quality Act (Tex. Water Code
Ann. Sections 26.001-225), Texas Solid Waste Disposal Act (Tex. Rev.
Civ, Stat. Ann. art. 4477-7), Texas Clear Air Act (Tex. Rev. Civ. Stat. Ann.
art. 4477-5), and Texas Hazardous Substance and Spill Prevention and
Control Act (Tex. Water Code Ann. Sections 26.261-268), as amended from
time to time, and any regulations promulgated thereunder; (d) asbestos or
"asbestos containing materials" defined in the National Emissions
Standards for Asbestos (40 C.F.R. Section 61.140 et seq.); (e)
polychlorinated byphenyls; (f) underground storage tanks, whether empty,
filled or partially filled with any substance; (g) any substance the presence
of which on the Site is prohibited by any governmental requirements; and
(h) any other substance which is deemed to be hazardous under applicable
legal requirements or which by any governmental requirements requires
special handling or notification of any federal, state or local governmental
entity in its collection, storage, transportation, treatment or disposal.
(c) Differing Site Conditions. Concealed or latent physical conditions or
subsurface conditions at the Property that (i) materially differ from the
conditions indicated in the Contract Documents or (ii) are of an unusual
nature, differing materially from the conditions ordinarily encountered and
generally recognized as inherent in the Work are collectively referred to
herein as "Differing Site Conditions." If Contractor encounters a Differing
Site Condition, Contractor will be entitled to an adjustment in the Contract
Price and/or Contract Times to the extent Contractor's cost and/or time of
performance are adversely impacted by the Differing Site Condition. Upon
encountering a Differing Site Condition, Contractor shall provide prompt
written notice to Owner of such condition, which notice shall not be later
Page 4 of 19
DESIGNBUII,D AGREEMENT BETWEEN CITY OF ANNA
AND'I'RANSCEND, INC. DB/A SPA SKATEPARKS
than five (5) days after such condition has been encountered. In any event
other than emergency circumstances, Contractor shall provide such notice
before the Differing Site Condition has been substantially disturbed or
altered.
4. Commencement and Completion of Work; Mobilization Fee. Contractor shall
commence the Work promptly upon receiving a Notice to Proceed from the City, it being
understood that the City shall not unreasonably withhold the Notice to Proceed. At the time the
Notice to Proceed is issued by the City, the City shall pay to Contractor a Mobilization Fee in an
amount equal to ten percent (10%) of the total Budget for the Work. At Contractor's sole risk,
Contractor may commence preparing for the Work at the Property prior to receiving the Notice to
Proceed, subject to the terms of this Agreement, provided that no such Work preparation shall
occur at the Property unless pursuant to written instructions from the City to Contractor. The City
will obtain any required permits and licenses prior to commencement of construction, with
Contractor's reasonable assistance, if requested. Contractor will, from and after the date on which
construction commences, diligently and continuously perform and prosecute the Work to its
completion in accordance with the Contract Documents and shall use its best efforts to achieve
final completion of the entire Project within three hundred (300) business days after Contractor's
receipt of the City's Notice to Proceed (such date of required completion being referred to herein
as the "Scheduled Completion Date"). Notwithstanding any provision contained herein which
could be construed to the contrary, final completion of the Project (herein called "Completion of
the Project") shall not be deemed to have occurred until and unless (a) construction thereof is
sufficiently complete so that the Project may be used by the City for its intended purpose, subject
only to minor "punch list" -type items, (b) all required permits, licenses, certificates of compliance,
certificates of occupancy and other approvals from the applicable governmental authorities
exercising jurisdiction over the Project shall have been issued, (c) all utilities necessary to service
the Improvements have been connected and are available for immediate use and (d) the City shall
have conducted an inspection of the Project, shall have reasonably approved of same, and shall
have reasonably determined that all Work has been completed substantially in compliance with
the Contract Documents, subject only to completion of punch -list items, if any. Within ten (10)
days of notice from Contractor that Completion has occurred, the City and Contractor shall inspect
the Work for purposes of creating a list of punch -list items. Upon Completion of the Project, if
requested by the City, Contractor shall join with the City in the execution of an Affidavit of
Completion (herein so called) or similar instrument evidencing Completion of the Project;
provided, however, that any failure or refusal on the part of Contractor to execute such Affidavit
of Completion upon Completion of the Project shall not prejudice the right of the City to
unilaterally execute such Affidavit of Completion and cause the same to immediately be filed of
record in the county in which the Property is located.
5. Force Maieure. Contractor shall be excused from performance entirely or in part,
or for the period of any delay in performance of any obligations hereunder when it is prevented
from doing so by the wrongful or negligent acts or omissions of the City or by causes beyond
either patty's control, which shall include pandemics (but not including the COVID-19 pandemic),
all labor disputes, civil disturbance, war, warlike operations, invasions, rebellion, hostilities,
military or usurped power, sabotage, governmental orders, regulations or controls, fires or other
casualties, adverse weather conditions, inability to obtain any material or service, or acts of God.
Page 5 of 19
DESIGN/BUILD AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
In the event that Contractor claims any cause for delay under this paragraph, Contractor shall
immediately provide written notice to the City and shall resume its obligations under this
Agreement in full immediately after such cause ceases. During the period of any delay under this
paragraph, Contractor shall provide to the City —at least once every 14 days —a written update
detailing all efforts made by Contractor to be able to perform its obligations under this Agreement
and the extent to which such cause for delay continues to endure.
6. Contractor's Fee. For and in consideration of the faithful performance of this
Contract in accordance with all terms herein contained, the City agrees to pay the total construction
cost of the Work as set forth in the Budget in the amount of one million eight hundred thousand
dollars ($1,800,000.00) inclusive of the specific payments made to Contractor as provided above.
Such fee will be paid by the City to Contractor as the Work progresses as described in Paragraph
8 below. Contractor shall be entitled to no other compensation for the Work to be performed
hereunder, and Contractor expressly covenants and agrees that all expenses incurred by Contractor
in the conduct of its activities and the performance of its obligations and services hereunder shall
be borne exclusively by Contractor (even if at variance with the Budget), and Contractor shall be
solely responsible for the payment of same. Contractor understands and agrees that Contractor
shall not be entitled to any benefits not expressly specified in this Agreement.
7. Changes in the Work. No change, modification, addition, deletion or other revision
to the Work and/or the Contract Documents in furtherance of the Project shall be valid, binding or
effective unless a written change order approved by the City and signed by the City and Contractor
shall authorize the same. In the event of any such written change order approved by the City and
signed by the City and Contractor, the value of the labor or materials, or both, added or omitted
From the Work to be performed in furtherance of the Project shall be computed and determined by
Contractor, subject to the written approval and acceptance by the City, and the amount so
determined shall be added to or deducted from the Budget. Contractor shall have no claim for
additional work performed by Contractor unless such work has been done pursuant to a written
change order approved by, and signed by The City and Contractor. If, as the result of any valid
change order effected pursuant to the provisions of this Paragraph 8, the applicable changes in the
Work may reasonably be expected to delay Contractor in achieving Completion of the Project, the
City and Contractor may agree and stipulate in the written change order itself that the Scheduled
Completion Date will be extended by the appropriate number of days corresponding to the
anticipated delay. However, absent any such stipulation in the change order serving to extend the
Scheduled Completion Date, the Scheduled Completion Date shall not be deemed to be extended
and Contractor will be expected to achieve Completion of the Project (including those portions of
the Work covered by the change order) on or prior to the Scheduled Completion Date.
8. Progress Payments. All payments to Contractor hereunder shall be made on a
work -in -place basis following inspection and approval by the City, such approval not to be
unreasonably withheld. Every four (4) weeks or less during the progress of construction,
Contractor will submit to the City an application for payment (referred to herein as an "Application
for Payment") covering the portion of the Work performed (and materials used) for which payment
has not been previously made. Each such Application for Payment shall be in form and substance
reasonably satisfactory to the City and shall include, without limitation, (a) the amount due for the
Work performed for which Contractor is requesting payment, (b) a reasonably detailed breakdown
Page 6 of 19
DESIGNBUII.D AGREEMENT BETWEEN CITY OF ANNA
AND "TRANSCEND, INC. D/B/A SPA SKATEPARKS
and itemization of such Work and the amount due, (c) the percentage of completion of the Work
performed, (d) the sum of all prior payments made from the City to Contractor hereunder and (e)
such other information and attachments as shall be reasonably required by the City for purposes
of evaluating the Work performed for which Contractor is requesting payment. At the time
Contractor submits an Application for Payment to the City, if requested by the City, Contractor
will also provide to the City true, correct and legible copies of all invoices and bills for labor and
materials incorporated in the Work and which are to be paid from the proceeds of the payment to
be made by the City at such time. Within five (5) business days following the timely submission
of an Application for Payment by Contractor to the City, the City shall provide notice to Contractor
stating either (1) that the Application for Payment as submitted by Contractor has been approved
by the City, or (2) that payment will be withheld until Contractor shall perform such corrective
measures as shall reasonably be specified by the City to ensure that the Work performed for which
payment is to be made conforms in all substantive respects to the Contract Documents. Within
ten (10) business days following the City's receipt of the Application for Payment or, as applicable,
within two (2) business days after Contractor's completion of such corrective measures as shall
have been reasonably identified by the City as aforesaid, and subject to the other provisions of this
Agreement, the City shall make payment to Contractor.
9. Effect of Application for Payment. Each Application for Payment made from
Contractor to the City hereunder shall be deemed a representation and warranty by Contractor to
the City that, as of the date of such Application for Payment, (a) there exists no Event of Default
as hereinafter defined) and no event or condition that, with notice or lapse of time, or both, would
constitute an Event of Default, (b) there has been no material variance from the Contract
Documents with respect to the Work performed through the date of such Application for Payment
and (c) all Work performed in furtherance of the construction of the Improvements at the then
current state of construction has been done in a good and workmanlike manner, and all materials,
equipment, furnishings and fixtures usually furnished and installed at such time have been so
furnished and installed in a good and workmanlike manner.
10. Retainage. During the period in which the Work is being performed and for thirty
(30) days thereafter, the City shall retain iive percent (5%) of the amounts paid by the City under
Paragraph 6 above (the "Retainage"). Subject to the provisions of this Agreement, such Retainage
as aforesaid will be advanced to Contractor as the final payment hereunder upon the later of (i) the
expiration of thirty-one (31) days following Completion of the Project or (ii) Contractor's
completion of the punch -list items referred to in Paragraph 4 above.
11. Withholding of Payments. Notwithstanding any provision contained herein which
could be construed to the contrary, the City shall not be obligated to make any payment to
Contractor hereunder (whether a progress payment or the final payment) if any one or more of the
following conditions exist.
(a) An Event of Default, or any event or condition which, with notice or lapse
of time, or both, would constitute an Event of Default, has occurred;
12. Inspection by the City. The City shall have the right, but not the obligation, at any
time and from time to time during construction of the Improvements to inspect the progress of the
Page 7 of 19
DESIGN/BUn,D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
Work and to ensure that the same is being prosecuted and performed fully in accordance with the
Contract Documents; provided, however, no inspection made by the City shall relieve Contractor
of any of its obligations hereunder, including, without limitation, Contractor's obligations to
correct defects in the Work and to provide the warranties set forth in this Agreement. In addition,
the City, at its own expense, shall have the right, but not the obligation, to appoint a person or firm
with architectural and/or engineering expertise (for convenience, referred to herein as the "City's
Architect") to observe, inspect and monitor the Work performed hereunder and the progress of
construction at the Project. Contractor covenants and agrees that the City's Architect shall be
permitted to visit and be on the Project from time to time for such purposes and Contractor shall
use its best efforts to cooperate fully with the City's Architect in the performance of its duties and
to supply the City's Architect with such materials and information as the City's Architect may
reasonably request for such purposes.
13. Correction of Work. All Work not conforming to the requirements of the Contract
Documents, or which is rejected by any governmental authority, will be considered defective.
Contractor shall promptly correct defects in the Work, whether observed before or after
Completion of the Project and whether or not fabricated, installed or completed. Contractor shall
bear all costs and expenses of correcting defective Work. The City may correct any defective
Work (a) which Contractor does not undertake to correct within ten (10) days following written
notice from the City to Contractor of the need for such correction or which Contractor thereafter
fails to continue to correct with due diligence, or (b) without notice, in the case of an emergency.
In the event the City undertakes to correct defects in the Work as aforesaid, Contractor shall
reimburse the City for all costs and expenses reasonably incurred in connection therewith promptly
on demand, supported by reasonable documentation of such costs and expenses. The provisions
of this paragraph will apply to Work done or furnished by Contractor or its employees. If the City,
in its sole and absolute discretion and without any obligation to do so, elects to accept Work which
is defective, then the City may do so instead of requiring its correction, in which case the fee
payable to Contractor under Paragraph 6 above will be reduced as appropriate and equitable. Such
adjustment shall be effected whether or not final payment has been made to Contractor hereunder.
14. No Liens. As the Project is a public work and the Work is to be performed only on
public property, the Contractor is not permitted to fix any type of lien on the City's property.
15. Contractor's Representative. Yann Curtis ("Curtis") is hereby designated as the
person in charge of the Work to be performed by Contractor under this Agreement. Curtis will
participate in and will at all times be completely familiar with the performance by Contractor of
the Work hereunder and will serve as the Contractor's point of contact between the City and
Contractor.
16. Communications With the City. As to any matter on which the City's input shall
be required hereunder, Contractor shall provide the City with all necessary materials and
information from which the City may formulate its input and thereafter provide the City with a
reasonable opportunity to respond. Upon request by the City, Contractor shall prepare and
distribute minutes of all meetings and conferences held with the City to the participants of such
meetings and conferences indicating Contractor's interpretation of the decisions reached and
actions to be taken resulting therefrom.
Page 8 of 19
DESIGN/BiTII,D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
17. Bonds. Contractor shall provide performance and payment bonds executed with a
surety company authorized to do business in the State of Texas. Such bonds shall be furnished in
full accordance with Texas Government Code, Chapter 2253. Further, Contractor, or Contractor's
subcontractors, for each part of the Improvements, must execute and deliver a maintenance bond
naming the City as the obligee that guarantees the full costs of any repairs that may become
necessary to any part of the Work performed or Improvements constructed in connection with the
Project, arising from defective workmanship or materials used therein, for a full period of two (2)
years from the date of Completion of the Project.
18. Insurance. Contractor shall acquire and maintain, during the period of time when
any part of the Project is under construction or Work is being performced (and until Completion
of Project and completion of all punch -list items): (a) workers compensation insurance in the
amount required by law; and (b) commercial general liability insurance including personal injury
liability, premises operations liability, and contractual liability, covering, but not limited to, the
liability assumed under any indemnification provisions of this Agreement, with limits of liability
for bodily injury, death and property damage of not less than $1,000,000.00. Such insurance shall
also cover any and all claims which might arise out of the Work or Project construction contracts,
whether by Contractor, a contractor, subcontractor, material man, or otherwise. Coverage must be
on a "per occurrence" basis. All such insurance shall: (i) be issued by a carrier which is rated
"A-1" or better by A.M. Best's Key Rating Guide and licensed to do business in the State of Texas;
and (ii) name the City as an additional insured and contain a waiver of subrogation endorsement
iD. favor of the City. Before commencing the Work, Contractor shall provide to the City certificates
of insurance evidencing such insurance coverage together with the declaration of such policies,
along with the endorsement naming the City as an additional insured. Each such policy shall
provide that, at least 30 days prior to the cancellation, non -renewal or modification of the same,
the City shall receive written notice of such cancellation, non -renewal or modification.
19. Warranties Concerning Improvements. Contractor warrants and represents to the
City that the Work performed in connection with the construction %J the Improvements shall be
done in a timely, good and workmanlike manner and in accordance with the Contract Documents.
Contractor covenants and warrants that title to all work, materials and equipment incorporated in
the Work will pass to the City free and clear of all liens, claims, security interests or encumbrances.
In addition, Contractor will obtain and provide, for the benefit of the City and its assigns, all
customary warranties and guarantees in regard to any materials, equipment, furnishings and
fixtures incorporated in the Work., said guarantees expressly expiring after two (2) years from
Substantial Completion. The duties, liabilities and obligations under this section do not extend to
any repairs, adjustments, alterations, replacements or maintenance which may be required as a
result of normal wear and tear in the operation of the Facility, normal degradation in the
performance of equipment, improper operation of equipment, Owners negligence, acts of God or
third parties.
20. Compliance With Laws; Payment of Taxes. Contractor warrants and represents to
the City that the Project and all Work to be performed in connection therewith and in furtherance
thereof shall conform to all applicable federal, state and/or local or municipal laws, rules,
regulations, codes and ordinances and with those of any other governmental or quasi -governmental
body having jurisdiction over the Project, or any portion thereof. Contractor has reviewed the
Page 9 of 19
DESIGN/BTJIL,D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
Plans and Specifications and is satisfied that they do not call for construction that would violate
such laws, rules, etc. Contractor will pay all employment, social security and other taxes imposed
upon it as an employer in connection with its performance of this Agreement and will furnish
evidence, when requested by the City, showing that payment of all such taxes has been made.
Contractor shall pay timely when due all applicable local, state and federal taxes in connection
with the Work to be performed hereunder and Contractor's business operations generally. City is
sales tax-exempt. Accordingly, no sales or use tax will be included in the Contract Price or
otherwise charged to City under this Agreement.
21. Indemnity. To the fullest extent permitted by law, Contractor shall defend,
indemnify and hold harmless The City, and its officer, officials, agents, employees and
representatives, from and against any and all claims, causes of action, damages, losses and
expenses of any nature whatsoever, including, without limitation, court costs, attorneys' fees and
related legal expenses, arising out of or resulting from any material defects in the Work or any
negligence, gross negligence, or other wrongful conduct or omissions in the performance of the
Work hereunder or occurring in connection therewith. Without limiting the generality of the
preceding sentence, Contractor understands and acknowledges that the indemnity provided
pursuant to this paragraph shall extend to and cover, and Contractor shall accordingly defend,
indemnify and hold harmless the City, its officers, officials, agents, employees and representatives,
from and against, any and all claims, causes of action, damages, losses and expenses of any nature
whatsoever brought or asserted by any person or party whomsoever (including, without limitation,
any third party purchaser of the Project) arising out of or resulting from defects in the Work. Such
obligations of indemnity on the part of Contractor hereunder shall survive the expiration or any
termination of this Agreement.
22. Default by the City and Contractor's Remedies. If the City fails to make payment
to Contractor hereunder for a period of ten (10) days after the date on which such payment became
due pursuant to the provisions hereof, Contractor may, upon seven (7) additional days' written
notice to the City, in addition to any other remedies which may be available to Contractor, (a)
bring a suit at law against the City for recovery of sums due Contractor and/or (b) discontinue the
performance of the Work hereunder until such time as the appropriate payment is received by
Contractor. All payments not made timely hereunder shall bear interest, without the necessity of
demand or presentment, which are hereby waived, from the date due at the rate of eight percent
(8%) per annum or the maximum rate of interest allowed by applicable federal or state law. No
waiver by Contractor of any of its rights or remedies hereunder shall be considered a waiver of
any other or subsequent right or remedy of Contractor, and no delay or omission in the exercise or
enforcement by Contractor of any rights or remedies shall ever be construed as a waiver of any
right or remedy of Contractor.
23. Default by Contractor. Any one or more of the following shall constitute an event
of default ("Event of Default") by Contractor hereunder:
(a) The breach by Contractor of any warranty or representation contained
herein;
Page 10 of 19
DESIGN/BITII,D AGREEMENT BETWEEN CTI'Y OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
(b) The failure of Contractor to perform or observe any term, provision,
covenant, agreement or condition contained herein or in any of the other Contract Documents and
the continuance of such failure for five (5) days following written notice thereof from the City to
Contractor, except that if the nature of the particular failure on the part of Contractor is such that,
by its nature, cannot be cured, the City shall not be required to give Contractor notice of such
failure, and such failure shall constitute an Event of Default immediately upon its occurrence;
(c) The insolvency of Contractor;
(d) The appointment of a receiver of Contractor, or of all or any substantial part
of its property, and the failure of such receiver to be discharged within thirty (30) days thereafter;
(e) The admission by Contractor in writing of its inability to pay its debts
generally as they become due;
(f) The execution by Contractor of an assignment for the benefit of its creditors;
(g) The filing by or against Contractor of a petition to be adjudged a bankrupt,
or a petition or answer seeking reorganization or admitting the material allegations of a petition
filed against it in any bankruptcy or reorganization proceeding, or the act of Contractor in
instituting or voluntarily being or becoming a party to any other judicial proceeding intended to
effect a discharge of the debts of Contractor, in whole or in part, or a postponement of the maturity
or the collection thereof, or a suspension of any other rights or powers granted to The City herein
or in any other documents executed in connection herewith,
(h) The failure of Contractor to pay any money judgment against it before the
expiration of thirty (30) days after such judgment becomes final and no longer appealable; or
(i) The failure of any attachment, sequestration or similar proceeding against
any of Contractor's property to remain undischarged or unbonded by Contractor, or undismissed,
for a period of thirty (30) days after the commencement thereof.
24. The City's Remedies. Without limitation of the right of the City to all remedies
available to the City as otherwise provided herein, at law and/or in equity, upon the occurrence of
an Event of Default, the City, at its option, without any further notice or demand whatsoever, which
are hereby waived, may perform such acts or expend such sums as shall be reasonably necessary
to remedy any such Event of Default and may deduct the cost thereof from payments then or
thereafter due Contractor hereunder. Upon the occurrence of an Event of Default, at the City's
option, and without prejudice to any other remedy the City may have, the City may terminate this
Agreement and may finish the Work by whatever method the City may deem expedient, and to the
extent the costs thereof shall reasonably exceed those which would have otherwise become due to
Contractor hereunder had Contractor timely and properly performed its obligations under this
Agreement, Contractor shall pay and reimburse the City on demand for such costs, together with
interest thereon calculated at the lesser of (i) the maximum rate of interest allowed by applicable
federal or state law or (ii) eight percent (8%) per annum. All rights and remedies of the City
hereunder are cumulative of each other and of every other right or remedy which the City may
Page 11 of 19
DESIGNBUII.D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. DB/A SPA SKATEPARKS
otherwise have at law or in equity, and the exercise of one or more rights or remedies by the City
shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies. No
waiver by the City of any of its rights or remedies hereunder shall be considered a waiver of any
other or subsequent right or remedy of the City, and no delay or omission in the exercise or
enforcement by the City of any rights or remedies shall ever be construed as a waiver of any right
or remedy of the City.
25. Collection Rights. With respect to any sums or charges which may become due
from one party to the other pursuant to the provisions of this Agreement, the party to whom such
sums are due shall have all rights and remedies available at law or in equity to collect such sums
or charges, including, without limitation, the right to set off any such sums or charges against
payments becoming due to the other party hereunder.
26. Termination by the City. Notwithstanding any provision contained in this
Agreement which could be construed to the contrary, and irrespective of whether there shall have
occurred an Event of Default, the City may terminate this Agreement at any time effective upon
ten (10) days' written notice to Contractor of such termination, whereupon neither party shall have
any further liability or obligation to the other hereunder, except as otherwise expressly provided
herein. In the event of any such termination by the City pursuant to this provision, Contractor shall
be entitled to be paid for Work performed hereunder as of the date of termination (including
Contractor's fee hereunder earned as of such date), together with Contractor's actual and provable
costs and/or losses with respect to materials, equipment, tools and storage, including profit and
overhead, mobilization, demobilization and if there is no Event of Default, reasonable lost
opportunity costs. In the event the City and Contractor are unable to agree upon the amount to be
paid as a result of any such termination within ten (10) days after termination, the City and
Contractor shall jointly obtain, at the City's own expense, a mutually selected Professional
Engineer to form and deliver to the City and Contractor a sealed opinion of the amount due in
consideration of all circumstances surrounding the termination and shall make payment
accordingly. Such an Engineer shall be independent and unbiased, representing both the City and
Contractor equally. In such event, in addition to any other remedies available to Contractor,
Contractor shall have all the remedies available for other payment claims under Paragraph 22
above.
27. Special Circumstances —Right Of Termination. Should there be a rise in the cost
of any specified construction material or materials, exclusive of any other price changes, that
would cause the total contract price to increase by more than ten percent (10%), Contractor shall,
before making any additional purchases of specified material or materials, provide to the City a
written statement expressing the percentage increase of the contract price, the construction material
or materials in question, and the dollar amount of the price increase to be incurred. The City may
then, at its option, terminate the contract by providing within 10 business days both written notice
of termination to Contractor, and payment to Contractor for the Work performed hereunder as of
the date of termination (including Contractor's fee hereunder earned as of such date), together with
Contractor's actual and provable costs and/or losses with respect to materials, equipment, tools
and storage, including profit and overhead, mobilization, demobilization and if there is no Event
of Default, reasonable lost opportunity costs. In the event the City and Contractor are unable to
agree upon the amount to be paid as a result of any such termination within 10 business days after
Page 12 of 19
DESIGN/BUII.D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
termination, The City and Contractor shall jointly obtain, at the City's own expense, a mutually
selected Professional Engineer to form and deliver to the City and Contractor a sealed opinion of
the amount due in consideration of all circumstances surrounding the termination and shall make
payment accordingly. Such an Engineer shall be independent and unbiased, representing both the
City and Contractor. In such event, in addition to any other remedies available to Contractor,
Contractor shall have all the remedies available for other payment claims under Paragraph 25
above. Should the City not send notice of termination within 10 business days, as provided herein,
Contractor shall have the option to terminate the contract, or to proceed with the contract and
purchase the specified construction materials at the increased price. If Contractor elects to proceed
on the contract, it may then purchase the specified construction material or materials at the
increased price, and the City shall be required to pay the increased cost incurred.
If termination is elected pursuant to this paragraph by Contractor, Contractor shall provide to the
City a written notice of termination, and the City shall be required to pay Contractor for the Work
performed hereunder as of the date of termination (including Contractor's fee hereunder earned as
of such date), together with Contractor's actual and provable costs and/or losses with respect to
materials, equipment, tools and storage, including profit and overhead, mobilization,
demobilization and if there is no Event of Default, reasonable lost opportunity costs. In the event
The City and Contractor are unable to agree upon the amount to be paid as a result of any such
termination within ten (10) days after termination, The City and Contractor shall jointly obtain, at
the City's own expense, a mutually selected Professional Engineer to form and deliver to The City
and Contractor a sealed opinion of the amount due in consideration of all circumstances
surrounding the termination and shall make payment accordingly. Such an Engineer shall be
independent and unbiased, representing both the City and Contractor. In such event, in addition to
any other remedies available to Contractor, Contractor shall have all the remedies available for
other payment claims under Paragraph 25 above.
28. Independent Contractor. It is understood and agreed that the relationship of
Contractor to the City shall be that of an independent contractor. At no time shall the City have
any control over or charge of Contractor's design, construction or installation of any part of the
Work or the Project, nor the means, methods, techniques, sequences or procedures utilized for said
design, construction or installation. Nothing contained herein shall be deemed or construed to (a)
make Contractor the agent, servant or employee of the City, or (b) create any partnership, joint
venture or other association between the City and Contractor. Contractor shall not have the right
to bind the City to any obligations whatsoever, and this Agreement shall not be construed to make
the City liable to any person or party for debts or claims of any character accruing to them against
Contractor.
29. Notices. Notices to be given by either party hereto shall be in writing and shall be
deemed to have been served, given and received (a) if hand delivered, when delivered in person to
the address set forth hereinafter for the party to whom notice is given, or (b) if mailed, when placed
in the United States mail, postage prepaid, by certified mail, return receipt requested, properly
addressed to the party to whom notice is given at the address hereinafter specified. Until changed
by written notice, the parties' addresses for notices are as set forth on the signature page(s) attached
hereto.
Page 13 of 19
DESIGN/BUII,D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
30. Assignment. Without the prior written consent of the City, Contractor shall not
assign any of its rights or delegate any of its duties hereunder. Any such attempted assignment or
delegation, without the prior written consent of the City as aforesaid, shall be null and void. The
City may assign its rights and obligations under this Agreement from time to time to any third
party provided such third party assignee expressly assumes the City's obligations hereunder,
provided that the City shall not be released by any such assignment from the performance of any
obligations hereunder.
31. Binding Effect. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, legal representatives, successors and
permitted assigns.
32. Time of Essence. Time is of the essence of this Agreement and any breach of same
shall go to the essence thereof, and Contractor, in agreeing to use its best efforts to complete the
Work within the time period prescribed herein, has taken into consideration and made allowances
for common and foreseeable hindrances incident to the Work to be performed hereunder.
33. Attorneys' Fees. Should any party bring suit against the other party concerning
matters arising out of this Agreement, the prevailing party shall be entitled to recover from the
other party court costs, reasonable attorneys' fees and related legal expenses incurred in connection
with such suit.
34. Applicable Law. This Agreement is to be governed and construed under the laws
of the State of Texas, Collin County and the laws of the United States applicable to transactions in
Texas. All of the obligations contained in this Agreement are and shall be performable in the
county where the Property is located and exclusive venue of any claims or any litigation or other
legal proceedings shall be in the state district courts of Collin County, Texas.
35. Entire Agreement. This Agreement constitutes the entire agreement and
understanding, and supersedes all prior agreements and understandings, if any, whether written or
oral, between the City and Contractor concerning the subject matter hereof, and there are no other
covenants, agreements, promises, terms, provisions, conditions, undertakings or understandings,
either oral or written, between them concerning the subject matter of this Agreement other than
those expressly set forth herein. No subsequent alteration, amendment, change, deletion or
addition to this Agreement shall be binding upon the City or Contractor unless in writing and
signed by both parties to this Agreement.
36. Headings. The headings, captions, numbering system, etc., are inserted only as a
matter of convenience and under no circumstances will they be considered in interpreting the
provisions of this Agreement.
37. Singular and Plural; Gender. Where required for proper interpretation, words in
the singular shall mean the plural, and vice versa; the masculine gender shall include the neuter
and the feminine, and vice versa.
Page 14 of 19
DESIGN/BUILD AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
low Unenforceable or Inapplicable Provisions. If any provision hereof is for any reason
unenforceable or inapplicable, the other provisions hereof will remain in full force and effect in
the same manner as if such unenforceable or inapplicable provision had never been contained
herein.
39. Counterparts. This Agreement may be executed in any number of counterparts,
each of which will for all purposes be deemed to be an original, and all of which are identical.
40. Construction. The parties hereto each acknowledge and agree that this Agreement
shall be construed without presumption of any rule requiring construction to be made against the
party causing same to be drafted.
41. Authori Each person executing this Agreement, by their execution hereof,
represents and warrants that they are fully authorized to do so, and that no further action or consent
on the part of the party for whom they are acting is required to the effectiveness and enforceability
A this Agreement against such party following such execution.
42. Anti -Boycott Verification. To the extent this Agreement constitutes a contract for
goods or services for which a written verification is required under Section 2271.002, Texas
Government Code, the Contractor hereby verifies that it and its parent company, wholly- or
majority -owned subsidiaries, and other affiliates, if any, do not boycott Israel and will not boycott
Israel during the term of this Agreement. The foregoing verification is made solely to enable the
Issuer to comply with such Section and to the extent such Section does not contravene applicable
federal law. As used in the foregoing verification, " boycott Israel" means refusing to deal with,
terminating business activities with, or otherwise taking any action that is intended to penalize,
inflict economic harm on, or limit commercial relations specifically with Israel, or with a person
or entity doing business in Israel or in an Israeli -controlled territory, but does not include an action
made for ordinary business purposes.
43. Iran, Sudan and Foreign Terrorist Organizations. The Contractor represents that
neither it nor any %J its parent company, wholly- or majority -owned subsidiaries, and other
affiliates is a company identified on a list prepared and maintained by the Texas Comptroller of
Public Accounts under Section 2252.153 or Section 2270.0201, Texas Government Code, and
posted on any of the following pages of such officer' s internet website:
hops://comptroller.texas.gov/purchasing/dots/sudan-list.pdf,
hops://comptroller.texas.gov/purchasing/docs/iran-list.pdf, or
ittps:Hcomptroller.texas.gov/purchasing/docs/fto-list.pdf.
The foregoing representation is made solely to enable the Issuer to comply with Section
2252.152, Texas Government Code, and to the extent such Section does not contravene
applicable State or federal law and excludes the Contractor and its parent company, wholly- or
majority -owned subsidiaries, and other affiliates, if any, that the United States government has
affirmatively declared to be excluded from its federal sanctions regime relating to Sudan or Iran
or any federal sanctions regime relating to a foreign terrorist organization. The Contractor
Page 15 of 19
DESIGN/BUII,D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
understands " affiliate" to mean any entity that controls, is controlled by, or is under common
control with the Contractor and exists to make a profit.
44. No Discrimination Against Fossil -Fuel Companies. To the extent this Agreement
constitutes a contract for goods or services for which a written verification is required under
Section 2274.002 (as added by Senate Bill 13 in the 87th Texas Legislature, Regular Session),
Texas Government Code, as amended, the Contractor hereby verifies that it and its parent
company, wholly- or majority -owned subsidiaries, and other affiliates, if any, do not boycott
energy companies and will not boycott energy companies during the term of this Agreement. The
foregoing verification is made solely to enable the City to comply with such Section and to the
extent such Section does not contravene applicable federal or Texas law. As used in the foregoing
verification, " boycott energy companies," shall mean, without an ordinary business purpose,
refusing to deal with, terminating business activities with, or otherwise taking any action that is
intended to penalize, inflict economic harm on, or limit commercial relations with a company
because the company (A) engages in the exploration, production, utilization, transportation, sale,
or manufacturing of fossil fuel -based energy and does not commit or pledge to meet environmental
standards beyond applicable federal and State law; or (B) does business with a company described
by (A) above.
45. No Discrimination Against Firearm Entities and Firearm Trade Associations. To
the extent this Agreement constitutes a contract for goods or services for which a written
verification is required under Section 2274.002 (as added by Senate Bill 19 in the 87th Texas
Legislature, Regular Session), Texas Government Code, as amended, the Contractor hereby
verifies that it and its parent company, wholly- or majority -owned subsidiaries, and other affiliates,
if any, do not have a practice, policy, guidance, or directive that discriminates against a firearm
entity or firearm trade association and will not discriminate against a firearm entity or firearm trade
association during the term of this Agreement. The foregoing verification is made solely to enable
the City to comply with such Section and to the extent such Section does not contravene applicable
federal or State law.
As used in the foregoing verification,
(a) "discriminate against a firearm entity or firearm trade association" (A) means, with respect
to the firearm entity or firearm trade association, to (i) refuse to engage in the trade of any goods
or services with the firearm entity or firearm trade association based solely on its status as a firearm
entity or firearm trade association, (ii) refrain from continuing an existing business relationship
with the firearm entity or firearm trade association based solely on its status as a firearm entity or
firearm trade association, or (iii) terminate an existing business relationship with the firearm entity
or firearm trade association based solely on its status as a firearm entity or firearm trade association
and (B) does not include (i) the established policies of a merchant, retail seller, or platform that
restrict or prohibit the listing or selling of ammunition, firearms, or firearm accessories and (ii) a
company' s refusal to engage in the trade of any goods or services, decision to refrain from
continuing an existing business relationship, or decision to terminate an existing business
relationship (aa) to comply with federal, state, or local law, policy, or regulations or a directive by
a regulatory agency or (bb) for any traditional business reason that is specific to the customer or
Page 16 of 19
DESIGN/BUII,D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
potential customer and not based solely on an entity' s or association' s status as a firearm entity
or firearm trade association,
(b) "firearm entity" means a manufacturer, distributor, wholesaler, supplier, or retailer of firearms
(i.e., weapons that expel projectiles by the action of explosive or expanding gases), firearm
accessories (i.e., devices specifically designed or adapted to enable an individual to wear, carry,
store, or mount a firearm on the individual or on a conveyance and items used in conjunction with
or mounted on a firearm that are not essential to the basic function of the firearm, including
detachable firearm magazines), or ammunition (i.e., a loaded cartridge case, primer, bullet, or
propellant powder with or without a projectile) or a sport shooting range (as defined by Section
250.001, Texas Local Government Code), and
(c) "firearm trade association" means a person, corporation, unincorporated association,
federation, business league, or business organization that (i) is not organized or operated for profit
and none of the net earnings of which inures to the benefit of any private shareholder or
individual), (ii) has two or more firearm entities as members, and (iii) is exempt from federal
income taxation under Section 501(a), Internal Revenue Code of 1986, as an organization
described by Section 501(c) of that code.
Affiliate. As used in Sections 22 through 25, the Contractor understands "affiliate" to mean an
entity that controls, is controlled by, or is under common control with the Contractor within the
meaning of SEC Rule 405, 17 C.F.R. § 230.133(f), and exists to make a profit.
46. Form 1295. Submitted herewith is a completed Form 1295 in connection with the
Contractor's participation in the execution of this Agreement generated by the Texas Ethics
Commission's (the "TEC") electronic filing application in accordance with the provisions of
Section 2252.908 of the Texas Government Code and the rules promulgated by the TEC (the
"Form 1295"). The City hereby confirms receipt of the Form 1295 from the Contractor, and the
City agrees to acknowledge such form with the TEC through its electronic filing application not
later than the 30th day after the receipt of such form. The Contractor and the City understand and
agree that, with the exception of information identifying the City and the contract identification
number, neither the City nor its consultants are responsible for the information contained in the
Form 1295; that the information contained in the Form 1295 has been provided solely by the
Contractor; and, neither the City nor its consultants have verified such information.
Signature pages follow)
Page 17 of 19
DESIGNBUR,D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. DB/A SPA SKATEPARKS
IN WITNESS WHEREOF, Lite parties have executed this Agreement between City of
Anna, Texas and Transcend, Inc. d/b/a SPA Skateparks to be effective as of the day and year first
above written.
THE CITY:
CITY OF
By (sigr�:
Name (print)
Date: )
Title: �/ 2
Address: 120 W 7th St
Anna, TX 75409
TRANSCEND, INC. DB/A SPA SKATEPARKS
By:
Name: Yann Curtis
Date: 12/20/2022
Title: Vice President
Address: 1301 Orlando Rd
Austin, Texas 78733
Page 18 of 19
DESIGN/BUII,D AGREEMENT BETWEEN CITY OF ANNA
AND TRANSCEND, INC. D/B/A SPA SKATEPARKS
EXHIBIT A
Scope of Work
Thank you for the opportunity to work with your community on the continued development of
Anna's modern youth park. Consistent with our recent discussions, we respectfully submit the
following Scope of Work for the Project. This Scope of Work is intended to supplement and further
define the details of the Skatepark Agreement between City of Anna and Transcend, Inc. d/b/a
SPA Skateparks and shall be an exhibit thereto.
SPA Skateparks Scope of Work:
Construction of project named "City of Anna Slayter Creek Skatepark" per plans and
specifications by New Line Skateparks Inc. (Designer) dated TBD. Plans and specs by
the Designer will be incorporated into this agreement.
Earthworks: per provided geotechnical report. `
Turn -key skatepark terrain: All labor and materials required for the grading/drainage,
forming, placing and finishing of all proposed skate park concrete hard surface areas. All
labor and materials required for the fabrication and installation of all proposed steel work
including structural steel, steel coping/edging, grind rails and other miscellaneous steel.
Project management. Foreman or other approved capable representative on site during
construction.
® Any item agreed to in writing by both parties.
SPA Skateparks Scope of Work Does Not Include /Provided by Others:
• City to provide geotechnical report, materials testing services, topographic and civil
survey, third party inspections.
• Site environmental assessments and any contamination remediation, contractor
registration fees, City permits and building fees, if any, are not included.
• Landscaping and irrigation procedures, fencing, park signage, shade structures, lighting,
and site amenities unless otherwise agreed to in writing by both parties.
• All work physically outside the perimeter of the skatepark footprint
• All aspects of Work not included in SPA Skateparks Scope of Work above, unless
otherwise agreed to in writing by both parties
Page 19 of 19
DESIGN/BUII,D AGREEMENT BETWEEN CITY OF ANNA
AND'IRANSCEND, INC. D/B/A SPA SKATEPARKS
SPASKATEPARKS
Project: Anna Skatepark
Slay -ter Creek Park
425 W Rosamond Parkway
Anna TX 75409
To: City of Anna
120 W. 7th St.
Anna, TX 75409
Change Order:
CONTRACT CHANGE ORDER 01
Tree removal, decorative fence demo / stockpile horizontals
Pad Prep Earthworks for Entry Plaza
Project # 2022-2015
P.O. NO: 05013
Description:
Skatepark Construction
Total
The Original Contract Sum Was..................................................................
The Net Change By Previously Authorized Change Orders Was ...........
The Contract Sum Prior To This Change Order............I....................
The Constract Sum Will Be Increased By This Change Order ...............
The New Contract Sum Will Be .....................................................
The Amount Of Days Changed By This Change Order Is ................
Amount
$ 3,640.00
$ 12,825.00
$ 16,465.00
$1,800,000.00
$1,800,000.00
$ 16,465.00
$ 1,816,465.00
7
Execution of this Change Order shall be considered complete and final adjustment
to the Contract Sum and Contract Time and represents complete and final resolution to all
matters related to, or arising out of the Change Order. However, this Change Order specifically
excludes all escalation of prices of material, equipment or energy experienced by Contractor
from the date of this change order until the execution of the needed material, equipment
or energy associated with this particular increased scope of Work.
Authorized By: CITY
City of Anna
120 W. 7th St.
Anna, TX 75409
(Signature)
Accepted By: CONTRACTOR
SPA Skateparks
1301 Orlando Rd
Austin, TX 78733
(Signature)
By: Jamie Curtis
Date Y I Date 4/17/2023
/�} a 3
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i
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,
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VOLUME 2006, PAGE 326,
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EX SANRARY SEWER AWLiIO.E
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FlELD SLRVEY ANY ASbIALT PIANSON CO ATTIEGTY
OF PFUlCETON. BY no MEANS CA TIES CONTRACTOR
ASSUME 7HATALL WSTWGUTRIiIESARESHOAL
CONTRACTORTO VERIPYOR E%ACTHONZTKM, AND
VERTICALLOGTIONS PRIOR NGNSTRUC Y SE
2. CONTRACTORTO ADAIST,STINO SANITARY SEWER
MALtpLES, FIRE METERS, ETC.TO HYAE OTER
ATCHPRDPOSEDFlMKEDGMDES
IF NECESSARY.
3. CONTRACTORTOPROVIDE ACCESSR WTIA IACENi
PROPERTY OWTERSATAL TIMES OR NOPFY
RESIDENfs INADVANCE W TIMES YWEN 1A ACCESS
YALL BE PROVIDED.
A. CONTRACTOR IS RESPONSIBLE FOR THE COMPLETE
REMOVALOF TIE E]O BE R COnCR ON SURFACES FIX2
TIEAREA SIriAT1YBE RDEPTH. ON THIS SHEET
REGMGESS OF TYPE IT OR DEPTH.
S. COORGNATE PATH CITY AS NECESSARY FOR FRANCHSE
UTINtt RELOCATCN.
6. ALLITEMS NOTSPEFFl DVBSIINCLIN THEBID
FORMSFWLL BE PERFORMEDSDWiY TO OhER &D
ITEMS.
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OTHERWISE HbTED.
2 CONRtACTOR TOYEMFYADNGINEE LMNCEFORANY
OUESnONS CONTACTCIVIL WE HEEL nR4E TES, IN .
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0 EO ONINAGCESSISLE PARNWGARFAS. 2. %INANY Oft n
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MDRAWER
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SO%ES, WATER METERS, STORM IMMK%ES ETC, TO MATCH
PROPOSED LOW
GRADES,IFNECESSARY,
5. TFERE ARENO LONSPOTS DESIGNED. ANO
GINEER
RESPONSIBLE FOR UNGTNGTIEGTYPND ENGINEER Of ANY
LONSPDTS OR PMAMHG THATAPPEARS.
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