Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2024 Agreement
PIGGYBACK AGREEMENT FOR SERVICES BETWEEN THE CITY OF SEBASTIAN AND PLAYCORE WISCONSIN. INC. DBA GAMETIME THIS AGREEMENT is made and entered into on Fe br u dry a I a o a L/ by the City of Sebastian, a municipal corporation of the State of Florida, (hereinafter referred to as "CITY") and playcore Wisconsin, Inc. DBA GameTime (hereinafter "VENDOR"). WHEREAS, the City of Charlotte, NC has previously entered into a contract with Vendor to provide playground and outdoor fitness equipment, site accessories, surfacing, and related products and services on July 1, 2017 (attached as Exhibit A hereto); and WHEREAS, the City of Sebastian wishes to enter into a like contract with Vendor under the same terms and applicable conditions as that prior agreement entered into by the City of Charlotte, NC to provide playground and outdoor fitness equipment, site accessories, surfacing, and related products and services and other related tasks as may be assigned by the City; and WHEREAS, Chapter 287, Florida Statutes and purchasing procedures of the City of Sebastian grant the authority to piggyback the purchase of goods and services as a form inter- governmental cooperative purchasing in which a public purchaser requests competitive sealed bids, enters into a contract, and arranges, as part of the contract, for other public purchasing units to purchase from the selected vendor under the same terms and conditions as itself in order to take advantage of the better pricing that large purchasers are able to obtain in order to reduce administrative time and costs involved in the procurement process (i.e., cost of preparing bid specifications, advertising, etc.); and WHEREAS, the City of Sebastian has determined that in this circumstance, piggybacking onto a contract entered into by the City of Charlotte is the most economically advantageous way to procure these goods and services. NOW THEREFORE, in consideration of the mutual covenants, terms, and provisions contained herein, the parties agree as follows: 1. TERM The initial term shall be for two (2) years for services subject to extension in one year increments by agreement of the parties in writing. 1 2. GENERAL PROVISIONS All other terms and conditions of the contract and any amendments thereto entered into between the City of Charlotte and Vendor above will be applicable to this agreement unless specified herein. 3. NOTICES All notices and demands shall be sent U.S. Certified Mail, return receipt to: VENDOR: Playcore Wkwonsin, Inc. dba Gametime 150 Playcore Drive SE Ft Payne. AL 35968 4. PUBLIC RECORDS CIS: Brian Benton, City Manager City of Sebastian 1225 Main Street Sebastian, FL 32958 IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAP s PR 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS: CITY CLERK: JEANETTE WILLIAMS 1225 MAIN ST SEBASTIAN, FL 32958 (772) 3MB215 JWILLIAMS(a cCITYOFSEBASTIAN.ORG Vendor agrees to comply with public records laws, specifically to: A. Keep and maintain public records required by the public agency to perform the service. B. Upon request from the public agency's custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. C. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the public agency. D. Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the contractor or keep and maintain public records required by the public agency to perform the service. If the contractor transfers all public records to the public agency upon completion of the contract, the contractor shall destroy 2 any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency's custodian of public records, in a format that is compatible with the information technology systems of the public agency. IN WITNESS WHEREOF, the parties hereto have through their duly authorized representatives, approved and executed this Agreement as of the date set forth below. Attest: q ty Clerk Approved as to�ty ity ttorney CITY OF SEBASTIAN Brian Benton, City Manager Date: a1401a4Ay 3 VENDOR Siunaturc Rob Dominica Printed Name - Title: Presidentldrp Date: 02/09/2024 STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me on this 12th day of February 2024, by Rob Dominica, President ofr+4P a Registered agent of Playcore Wisconsin, Inc. DBA GameTime. He is personally ]mown to me, or has produced his/her driver's license, or his/her as identification, and did/did not take an oat/h. Seal: Notary Public, State of Florida COURINEYLCRAWFORD My Commission expires: 07/26/2025 SSWx Cm miss 81,114 58051 Ex0mJuly25,21125 ''BpF KOQ- B01MBErMlalglrkltlratlYl[W 4 EXHIBIT A CITY OF CHARLOTTE CONTRACT 150 PlayCore Drive, SE Fort Payne, Alabama 35967 Direct telephone: 423.425.3162 Direct Facsimile: 423.425.3124 Email: clint.whiteside u.Lametime.com www.L'ametitne.com February 17, 2021 To Whom It May Concern, (GameTime RE: AUTHORIZED REPRESENTATIVE AND SOLE SOURCE A RL41 CORE Company We hereby certify Dominica Recreation Products, Inc. is the exclusive representative and sole source authorized to sell, distribute, and install GameTime products in the states of Florida and Georgia. Additionally, Dominica Recreation Products, Inc. is authorized to sell other PlayCore offerings branded as U1traPlay, U1traSite, UltraShade, UltraShelter, Dero, and Everlast. As GameTime's representative, Dominica Recreation Products, Inc., has the authority to bid and enter contracts for playground equipment and related products or services on GameTime's behalf. Please refer all inquiries for GameTime product information, pricing, safety surfacing, installation services and new orders to Dominica Recreation. Respectfully submitted, Clint Whiteside Manager of Sales Operations PlayCore Wisconsin, Inc., DBA GameTime Contract No. 2017001134 Vendor No. 121531 STATE OF NORTH CAROLINA COUNTY OF MECKLENBURG CONTRACT TO PROVIDE PLAYGROUND AND OUTDOOR FITNESS EQUIPMENT, SITE ACCESSORIES, SURFACING, AND RELATED PRODUCTS AND SERVICES This Contract (the "Contract") is entered into as of this 1 st day of July 2017 (the "Effective Date"), by and between Playcore Wisconsin, Inc. d/b/a GameTime, a corporation doing business in North Carolina (the "Company"), and the City of Charlotte, a North Carolina municipal corporation (the "City"). RECITALS WHEREAS, the City issued a Request For Proposals (RFP #269-2017-028) for Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services dated January 25, 2017. This Request for Proposals together with all attachments and addenda, is referred to herein as the "RFP"; and WHEREAS, the Company submitted a Proposal in response to RFP #269-2017-028 on March 16, 2017. This Proposal, together with all attachments and separately sealed confidential trade secrets, is referred to herein as the "Proposal" and is incorporated into this Contract by reference. WHEREAS, the City awarded this Contract on May 8, 2017 to Company to provide Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services to the City all in accordance with the terms and conditions set forth herein. WHEREAS, the City of Charlotte, on behalf of itself and all states, local governments, school districts, and higher education institutions in the United States of America, and other government agencies and nonprofit organizations (herein "Participating Public Agencies"), competitively solicited and awarded the Contract to the Company. The City has designated U.S. Communities as the administrative and marketing conduit for the distribution of the Contract to Participating Public Agencies. The City is acting as the "Contracting Agent" for the Participating Public Agencies, and shall not be liable or responsible for any costs, damages, liability or other obligations incurred by the Participating Public Agencies. The Company (including its subsidiaries) shall deal directly with each Participating Public Agency concerning the placement of orders, issuance of purchase orders, contractual disputes, invoicing, payment and all other matters relating or referring to such Participating Public Agency's access to the Contract. Each Participating Public Agency enters into a Master Intergovernmental Cooperative Purchasing Agreement (MICPA) outlining the terms and conditions that allow access to the Lead Public Agencies' Master Agreements. Under the terms of the MICPA, the procurement by the Participating Public Agency shall be construed to be in accordance with, and governed by, the laws of the state in which the Participating Public Agency resides. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in further consideration of the covenants and representations contained herein, the parties agree as follows: CONTRACT 1. EXHIBITS. Contract No. 2017001134 Vendor No. 121531 The Exhibits below are hereby incorporated into and made a part of this Contract. In interpreting this Contract and resolving any ambiguities, the main body of this Contract will take precedence over the Exhibits, and any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below. Each reference to GameTime in the Exhibits and Appendices shall be deemed to mean the Company. EXHIBIT A: Discount Schedule, Price Lists, and Incentives EXHIBIT B: Installation Fees EXHIBIT C: National Network of Distributors and Installers EXHIBIT D: Freight Rate Schedules EXHIBIT E: Product Warranties EXHIBIT F: Scope of Work EXHIBIT G: U.S. Communities Administrative Agreement 2. DEFINITIONS. As used in this Contract, the following terms shall have the meanings set forth below: Acceptance: Refers to receipt and approval by the City of a Deliverable or Service in accordance with the acceptance process and criteria in this Contract. Affiliates: Refers to all departments or units of the City and all other governmental units, boards, committees or municipalities for which the City processes data or performs Services. Biodegradable: Refers to the ability of an item to be decomposed by bacteria or other living organisms. Charlotte Business Refers to the Charlotte Business Inclusion office of the City Inclusion (CBI): of Charlotte. Charlotte Combined Refers to the Charlotte -Gastonia -Salisbury Combined Statistical Area (CSA): Statistical Area consisting of; (a) the North Carolina counties of Anson, Cabarrus, Cleveland, Gaston, Iredell, Lincoln, Mecklenburg, Rowan, Stanly, and Union; and (b) the South Carolina counties of Chester, Lancaster, and York; a criteria used by Charlotte Business INClusion to determine eligibility to participate in the program. City: Refers to the City of Charlotte, North Carolina. Company: Refers to a company that has been selected by the City to provide the Products and Services of this Contract. Company Project Refers to a specified Company employee representing the Manager: best interests of the Company for this Contract. Contract: Refers to a written agreement executed by the City and Company for all or part of the Services. 2 Contract No. 2017001134 Vendor No. 121531 Deliverables: Refers to all tasks, reports, information, designs, plans, and other items that the Company is required to deliver to the City in connection with the Contract. Documentation: Refers to all written, electronic, or recorded works that describe the use, functions, features, or purpose of the Deliverables or Services or any component thereof, and which are provided to the City by the Company or its subcontractors, including without limitation all end user manuals, training manuals, guides, program listings, data models, flow charts, and logic diagrams. Environmentally Refers to Products that have a lesser or reduced effect on Preferable Products: human health and the environment when compared with competing Products that serves the same purpose. This comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product. Lead Public Agency: Refers to the City of Charlotte, North Carolina. Master Agreement: Refers to the Agreement that is made available by the Lead Public Agency after the successful completion of the competitive solicitation and selection process, wherein Participating Public Agencies may utilize the agreement to purchase Products and Services. Minority Business Enterprise/MBE: Refers to a business enterprise that: (a) is certified by the State of North Carolina as a Historically Underutilized Business (HUB) within the meaning of N.C. Gen. Stat. § 143-128.4; (b) is at least fifty-one percent (51 %) owned by one or more persons who are members of one of the following groups: African American or Black, Hispanic, Asian, Native American or American Indian; and (c) is headquartered in the Charlotte Combined Statistical Area. MWSBE: Refers to SBEs, MBEs and WBEs, collectively. Participating Public Agency: Refers to all states, local governments, school districts, and higher education institutions in the United States of American, and other governmental agencies and nonprofit organizations that elect to purchase Products and Services under the Master Agreement. Products: Refers to all Products that the Company agrees to provide to the City as part this Contract. Services: Refers to the Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services as requested in this RFP. 3 Contract No. 2017001134 Vendor No. 121531 Specifications and Refers to all definitions, descriptions, requirements, criteria, Requirements: warranties, and performance standards relating to the Deliverables and Services that are set forth or referenced in: (i) this RFP, including any addenda; (ii) the Documentation; and (iii) any functional and/or technical specifications that are published or provided by the Company or its licensors or suppliers from time to time with respect to all or any part of the Deliverables or Services. 3. TERM. The initial term of this Contract will be for five (5) years from the Effective Date with an option to renew for two (2) additional two-year terms. This Contract may be extended only by a written amendment to the contract signed by both parties. 4. AGREEMENT TO PROVIDE PRODUCTS AND SERVICES. 4.1 The Company shall provide the Products and Services in accordance with the terms and conditions set forth in this Contract and the attached Exhibits when ordered from time to time by the City. Except as set forth Exhibit A, the prices set forth in Exhibit A constitute all charges payable by the City for the Products and Services, and all labor, materials, equipment, transportation, facilities, storage, information technology, permits, and licenses necessary for the Company to provide the Products and Services. The Company shall perform any Services for the City on site at the City's facilities in Charlotte, North Carolina, except as otherwise stated in this Contract or agreed in writing by the City. 4.2 Placement of Orders: All orders will be placed by personnel designated by the City on an as needed basis for the quantity required at the time during the term of the Contract. 5. OPTIONAL PRODUCTS AND SERVICES: The City may in its discretion purchase from the Company optional Products and Services beyond what is called for in the Specifications, provided that such purchase does not create unfairness so as to defeat the purpose of the bid statutes, and provided the City is authorized by law to make such purchases without a formal bid process. 6. DOCUMENTATION: the Company will provide for all products purchased under this contract written or electronic documentation that is complete and accurate, and sufficient to enable City employees with ordinary skills and experience to utilize such products for the purpose for which the City is acquiring them. 7. COMPENSATION. The City shall pay the company for the products and services delivered in compliance with the specifications at the prices set forth in Exhibit A. This amount constitutes the maximum fees and charges payable to the company in the aggregate under this contract and will not be increased except by a written amendment duly executed by both parties in compliance with the price adjustment provisions set forth in Exhibit c. The company shall not be entitled to charge the City any prices, fees or other amounts that are not listed in Exhibit A. 8. PRICE ADJUSTMENT. 4 Contract No. 2017001134 Vendor No. 121531 8.1 The price(s) stated in this Contract shall remain firm through December 31, 2017. Company may request price increases in writing, in accordance with the following terms: 8.1.1 Price increases shall only be allowed when justified in the City's sole discretion based on legitimate, bona fide increases in the cost of materials. No adjustment shall be made to compensate the Company for inefficiency in operation, increase in labor costs, or for additional profit. 8.1.2 To obtain approval for a price increase, the Company shall submit a written request at least sixty (60) days prior to each calendar year during the term of the contract. All requests must be submitted to the Procurement Management Division representative, at the address listed below, together with written documentation sufficient to demonstrate that the increase is necessary based on a legitimate increase in the cost of materials. The request must state and fully justify the proposed price increase per unit over the price originally proposed. City of Charlotte M&FS Finance Office / Procurement Management 600 East Fourth Street Charlotte, NC 28202 8.1.3 No proposed price increase shall be valid unless accepted by the City in writing. The City may approve such price increase for the remaining term of the Contract or for a shorter specified period, in the City's sole discretion. If the City rejects such price increase, the Company shall continue performance of the Contract. 8.1.4 If the City approves a price increase pursuant to this Section and the market factors justifying the increase shift so that the increase is no longer justified, the City shall have the right to terminate the price increase and revert back to the prices that were in effect immediately prior to the increase. The Company shall notify the City in writing if the market factors on which the City granted the increase change such that the City's reasons for granting the increase longer apply. 8.2 If the Company's unit prices for any Products and/or Services should decrease, the Company shall provide the affected Products and/or Services at the lower discounted price. The Company will provide the City with prompt written notice of all decreases in unit prices. 8.3 If a Product becomes unavailable, or if a new Product becomes available, the Company promptly will send the City a proposed revised version of Exhibit A. The City reserves the right to add or delete items to this Contract if particular items should become discontinued or an upgraded item becomes available to the industry market. Any new or replacement items added may be subject to bid statute requirements. The City may also delete radio and communication equipment items included in this Contract if items are no longer needed or no longer issued as part of radios and communication equipment. At no additional cost to the City, the Company may substitute any Product or Service to be provided by the Company, if the substitute meets or exceeds the Specifications, is compatible with the City's operating environment and is of equivalent or better quality to the City. Any substitution will be reflected in a written signed change order. Wi Contract No. 2017001134 Vendor No. 121531 9. BILLING. Each invoice sent by the Company shall include all reports, information and data required by this Contract (including the Exhibits) necessary to entitle the Company to the requested payment. The Company shall send one (1) copy only of each invoice using one of the following options: Option I — E-mail one copy of each invoice to cocavacharlottenc.eov. . Company shall not mail invoices that have been sent via e-mail. Option 2 — Mail one copy of each invoice to City of Charlotte Accounts Payable PO Box 37979 Charlotte, NC 28237-7979 Attn: (Insert Department) The City is not tax exempt from sales tax. The Company shall include all applicable State and County sales taxes on the invoice and not combined with the cost of the goods. Payment of invoices shall be due within thirty (30) days after the City has received all of the following: (a) an accurate, properly submitted invoice, (b) all reports due for the month covered by the invoice; and (c) any other information reasonably requested by the City to verify the charges contained in the invoice. Invoices must include state and local sales tax. 10. CONTRACT MONITORING: The City shall have the right to audit the Company's compliance with the terms and conditions of the Contract at such times as the City deems appropriate. Unless the City elects to terminate the Contract, the Company shall develop a written action plan to correct any Contract deficiency identified during these compliance audits, and shall submit such plan to the City within thirty (30) days of notification of non- compliance. 11. REPORTING: The Company shall provide such written reports of purchasing and expenditures as may be requested by the City from time to time, including without limitation any reports described in the Specifications. 12. AUDIT: During the term of the Contract and for a period of three (3) years after termination or expiration of this Contract for any reason, the City shall have the right to audit, either itself or through a third party, all books and records (including but not limited to the technical records) and facilities of the Company necessary to evaluate Company's compliance with the terms and conditions of the Contract or the City's payment obligations. The City shall pay its own expenses, relating to such audits, but shall not have to pay any expenses or additional costs of the Company. However, if non-compliance is found that would have cost the City in excess of $5,000 but for the audit, then the Company shall be required to reimburse the City for the cost of the audit. 13. GENERAL WARRANTIES. Company represents and warrants that: 13.1 It is a corporation duly incorporated, validly existing and in good standing under the laws of the state of Alabama, and is qualified to do business in North Carolina; 13.2 It has all the requisite corporate power and authority to execute, deliver and perform its obligations under this Contract; 13.3 The execution, delivery, and performance of this Contract have been duly authorized by Company; Contract No. 2017001134 Vendor No. 121531 13.4 No approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Contract; 13.5 In connection with its obligations under this Contract, it shall comply with all applicable federal, state and local laws and regulations and shall obtain all applicable permits and licenses; and 13.6 The Company shall not violate any agreement with any third party by entering into or performing this Contract. 14. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Company represents warrants and covenants that: 14.1 The Products and Services shall comply with all requirements set forth in this Contract, including but not limited to the attached Exhibits; 14.2 All work performed by the Company and/or its subcontractors pursuant to this Contract shall meet industry accepted standards, and shall be performed in a professional and workmanlike manner by staff with the necessary skills, experience and knowledge; 14.3 Neither the Services, nor any Products provided by the Company under this Contract will infringe or misappropriate any patent, copyright, trademark or trade secret rights of any third party; and 14.4 The Company and each of its subcontractors have complied and shall comply in all material respects with all applicable federal, state and local laws, regulations and guidelines relating to the performance of this Contract or to the products and services delivered hereunder, including but not limited to E-Verify, and shall obtain all applicable verifications, permits, and licenses. 15. COMPLIANCE WITH LAWS: All Products and Services delivered under this Contract shall be in compliance with all applicable federal, state and local laws, regulations and ordinances. In performing the Contract, the Company shall obtain and maintain all licenses and permits, and comply with all federal, state and local laws, regulations and ordinances. 16. DELIVERY TIME: When delivery time is requested in the RFP, (whether in the form of a specific delivery date or maximum number of days for delivery) time is of the essence. The Company's Bid shall be deemed a binding commitment of the Company to meet the delivery time stated herein unless the Bid specifically takes exception. If such delivery time is not met, the City shall be entitled to terminate the Contract immediately for default and/or exercise any other remedies available at law or in equity. 17. QUALITY. Unless this Contract specifically states otherwise for a particular item, all components used to manufacture or construct any supplies, materials or equipment or Products provided under this Contract shall be: (a) new; (b) the latest model; (c) of the best quality and highest grade workmanship; and (d) in compliance with all applicable federal, state and local laws, regulations and requirements. By "new", the City means that the item has been recently produced and has not been previously sold or used. Whenever this Contract states that a Product or Service shall be in accordance with laws, ordinances, building codes, underwriter's codes, applicable A.S.T.M. regulations or similar expressions, the requirements of such laws, ordinances, etc., shall be construed to be minimum requirements that are in addition to any other requirements that may be stated in this Contract. 7 Contract No. 2017001134 Vendor No. 121531 18. DESIGN AND/OR MANUFACTURER REQUIREMENT: All Products and Services shall meet the Specifications set forth in Section 4 of the RFP. 19. INSPECTION AT COMPANY'S SITE: The City reserves the right to inspect the equipment, plant, store or other facilities of the Company during the Contract term from time to time as the City deems necessary to confirm that such equipment, plant, store or other facilities conform with the Specifications and are adequate and suitable for proper and effective performance of the Contract. Such inspections shall be conducted during normal business hours and upon at least three (3) days' notice to the Company (except that a store may be inspected at any time during regular store hours without notice). 20. PREPARATION FOR DELIVERY: 20.1 Condition and Packaging. All containers/packaging shall be suitable for handling, storage or shipment, without damage to the contents. The Company shall make shipments using the minimum number of containers consistent with the requirements of safe transit, available mode of transportation routing. The Company will be responsible for confirming that packing is sufficient to assure that all the materials arrive at the correct destination in an undamaged condition ready for their intended use. 20.2 Marking. All cartons shall be clearly identified with the City purchase order number and the name of the department making the purchase. Packing lists must be affixed to each carton identifying all contents included in the carton. If more than one carton is shipped, each carton must be numbered and must state the number of that carton in relation to the total number of cartons shipped (i.e. 1 of 4, 2 of 4, etc). 20.3 Shipping. The Company shall follow all shipping instructions included in the ITB, the City's purchase order or in the Contract. 21. ACCEPTANCE OF PRODUCTS/SERVICES: The Products delivered under this Contract shall remain the property of the Company until the City physically inspects, actually uses and accepts the Products. In the event Products provided to the City do not comply with the Contract, the City shall be entitled to terminate the Contract upon written notice to the Company and return such Products (and any related goods) to the Company at the Company's expense. In the event the Services provided under this Contract do not comply with the Contract, the City reserves the right to cancel the Service and rescind any related purchase of products upon written notice to the Company. The remedies stated in this Section are in addition to and without limitation of any other remedies that the City may have under the Contract, at law or in equity. 22. GUARANTEE: Unless otherwise specified by the City, the Company unconditionally guarantees the materials and workmanship on all Products and Services. If, within the guarantee period any defects occur due to a faulty Product or Services (including without limitation a failure to comply with the Specifications), the Company at its expense, shall repair or adjust the condition, or replace the Product and/or Services to the complete satisfaction of the City. These repairs, replacements or adjustments shall be made only at such time as will be designated by the City to ensure the least impact to the operation of City business. 23. NO LIENS: All Products shall be delivered and shall remain free and clear of all liens and encumbrances. 24. MANUFACTURER OR DEALER ADVERTISEMENT: No manufacturer or dealer shall advertise on Products delivered to the City without prior approval by the City. Contract No. 2017001134 Vendor No. 121531 25. RIGHT TO COVER: If the Company fails to comply with any term or condition of the Contract or the Company's response to the ITB, the City may take any of the following actions with or without terminating the Contract, and in addition to and without limiting any other remedies it may have: (A) Employ such means as it may deem advisable and appropriate to obtain the applicable Products and/or Services (or reasonable substitutes) from a third party; and (B) Recover from the Company the difference between what the City paid for such Products and/or Services on the open market and the price of such Products and/or Services under the Contract or the Company's response to the ITB. 26. RIGHT TO WITHHOLD PAYMENT: If Company breaches any provision of the Contract the City shall have the right to withhold all payments due to the Company until such breach has been fully cured. 27. OTHER REMEDIES: Upon breach of the Contract, each party may seek all legal and equitable remedies to which it is entitled. The remedies set forth herein shall be deemed cumulative and not exclusive and may be exercised successively or concurrently, in addition to any other available remedy. 28. TERMINATION. 29.1 TERMINATION WITHOUT CAUSE. The City may terminate this Contract at any time without cause by giving sixty (60) days written notice to the Company. The Company may terminate this Contract at any time without cause by giving one hundred and eighty (180) days written notice to the City. 29.2 TERMINATION FOR DEFAULT BY EITHER PARTY. By giving written notice to the other party, either party may terminate this Contract upon the occurrence of one or more of the following events: 29.2.1 The other party violates or fails to perform any covenant, provision, obligation, term or condition contained in this Contract, provided that, unless otherwise stated in this Contract, such failure or violation shall not be cause for termination if both of the following conditions are satisfied: (i) such default is reasonably susceptible to cure; and (ii) the other party cures such default within thirty (30) days of receipt of written notice of default from the non -defaulting party; or 29.2.2 The other party attempts to assign, terminate or cancel this Contract contrary to the terms hereof; or 29.2.3 The other party ceases to do business as a going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, files a petition in bankruptcy or has an involuntary bankruptcy petition filed against it (except in connection with a reorganization under which the business of such party is continued and performance of all its obligations under this Contract shall continue), or if a receiver, trustee or liquidator is appointed for it or any substantial part of other party's assets or properties. Any notice of default pursuant to this Section shall identify and state the party's intent to terminate this Contract if the default is not cured within the specified period. 0 Contract No. 2017001134 Vendor No. 121531 29.3 ADDITIONAL GROUNDS FOR DEFAULT TERMINATION BY THE CITY. By giving written notice to the Company, the City may also terminate this Contract upon the occurrence of one or more of the following events (which shall each constitute grounds for termination without a cure period and without the occurrence of any of the other events of default previously listed): 29.3.1 The Company makes or allows to be made any material written misrepresentation or provides any materially misleading written information in connection with this Contract, Company's Bid, or any covenant, agreement, obligation, term or condition contained in this Contract; or 29.3.2 The Company takes or fails to take any action which constitutes grounds for immediate termination under the terms of this Contract, including but not limited to failure to obtain or maintain the insurance policies and endorsements as required by this Contract, or failure to provide the proof of insurance as required by this Contract. 29.4 NO EFFECT ON TAXES, FEES, CHARGES, OR REPORTS. Any termination of the Contract shall not relieve the Company of the obligation to pay any fees, taxes or other charges then due to the City, nor relieve the Company of the obligation to file any daily, monthly, quarterly or annual reports covering the period to termination nor relieve the Company from any claim for damages previously accrued or then accruing against the Company. 29.5 OBLIGATIONS UPON EXPIRATION OR TERMINATION. Upon expiration or termination of this Contract, the Company shall promptly (a) return to the City all computer programs, files, documentation, data, media, related material and any other recording devices, information, or compact discs that are owned by the City; (b) provide the City with sufficient data necessary to migrate to a new vendor, or allow the City or a new vendor access to the systems, software, infrastructure, or processes of the Company that are necessary to migrate to a new vendor; and (c) refund to the City all pre -paid sums for Products or Services that have been cancelled and will not be delivered. 29.6 NO SUSPENSION. In the event that the City disputes in good faith an allegation of default by the Company, notwithstanding anything to the contrary in this Contract, the Company agrees that it will not terminate this Contract or suspend or limit the delivery of Products or Services or any warranties or repossess, disable or render unusable any Software supplied by the Company, unless (i) the parties agree in writing, or (ii) an order of a court of competent jurisdiction determines otherwise. 29.7 AUTHORITY TO TERMINATE. The City Manager or their designee is authorized to terminate this Contract on behalf of the City. 29.8 TRANSITION SERVICES UPON TERMINATION. Upon termination or expiration of this Contract, the Company shall cooperate with the City to assist with the orderly transfer of the Products, Services, functions and operations provided by the Company hereunder to another provider or to the City as determined by the City in its sole discretion. The transition services that the Company shall perform if requested by the City include but are not limited to: 29.8.1 Working with the City to jointly develop a mutually agreed upon transition services plan to facilitate the termination of the Services; and 10 Contract No. 2017001134 Vendor No. 121531 29.8.2 Notifying all affected vendors and subcontractors of the Company of transition activities; 29.8.3 Performing the transition service plan activities; 29.8.4 Answering questions regarding the products and services on an as -needed basis; and 29.8.5 Providing such other reasonable services needed to effectuate an orderly transition to a new system. 29. NO DELAY DAMAGES: Under no circumstances shall the City be liable to the Company for any damages arising from delay, whether caused by the City or not. 30. MULTIPLE CONTRACT AWARDS. This Contract is not exclusive. The City reserves the right to award multiple contracts for the Products and Services required by this Contract if the City deems multiple Contracts to be in the City's best interest. 31. RELATIONSHIP OF THE PARTIES. The relationship of the parties established by this Contract is solely that of independent contractors, and nothing contained in this Contract shall be construed to (i) give any party the power to direct or control the day-to-day activities of the other; (ii) constitute such parties as partners, joint ventures, co -owners or otherwise as participants in a joint or common undertaking; (iii) make either party an agent of the other for any purpose whatsoever, or (iv) give either party the authority to act for, bind, or otherwise create or assume any obligation on behalf of the other. Nothing herein shall be deemed to eliminate any fiduciary duty on the part of the Company to the City that may arise under law or under the terms of this Contract. 32. INDEMNIFICATION: To the fullest extent permitted by law, the Company shall indemnify, defend and hold harmless each of the "Indemnitees" (as defined below) from and against any and all "Charges" (as defined below) paid or incurred any of them as a result of any claims, demands, lawsuits, actions, or proceedings: (i) alleging violation, misappropriation or infringement of any copyright, trademark, patent, trade secret or other proprietary rights with respect to the Work or any Products or deliverables provided to the City pursuant to this Contract ("Infringement Claims"); (ii) seeking payment for labor or materials purchased or supplied by the Company or its subcontractors in connection with this Contract; or (iii) arising from the Company's failure to perform its obligations under this Contract, or from any act of negligence or willful misconduct by the Company or any of its agents, employees or subcontractors relating to this Contract, including but not limited to any liability caused by an accident or other occurrence resulting in bodily injury, death, sickness or disease to any person(s) or damage or destruction to any property, real or personal, tangible or intangible; or (iv) arising from a violation of any federal, state or local law, regulation or ordinance by the Company or any its subcontractors (including without limitation E-Verify or other immigration laws); or (v) arising from any claim that the Company or an employee or subcontractor of the Company is an employee of the City, including but not limited to claims relating to worker's compensation, failure to withhold taxes and the like. For purposes of this Section: (a) the term "Indemnitees" means the City and each of the City's officers, officials, employees, agents and independent contractors (excluding the Company); and (b) the term "Charges" means any and all losses, damages, costs, expenses (including reasonable attorneys' fees), obligations, duties, fines, penalties, royalties, interest charges and other liabilities (including settlement amounts) or any other legal theory or principle, in connection with an Infringement Claim. This indemnification requirement is not intended to cover, and the Company is not responsible for, any damages that result from lack of maintenance; inadequate supervision; 11 Contract No. 2017001134 Vendor No. 121531 negligence; intentional misconduct of anyone other than the Company, it's subcontractors, or their affiliates; inadequate surfacing that was not provided by or recommended by the Company, its subcontractors, or their affiliates; or vandalism. It is the intent of any insurance provided by Company to protect the Company and any subcontractor performing work under the Contract for (1) Product liability Claims arising solely from the negligent design or manufacture of the Playground Equipment when such goods and services are provided by the Company, Company's subcontractors, or their affiliates pursuant to this Contract; (2) Claims arising from any act of negligence or wilful misconduct by the Company or any of its agents, employees or subcontractors relating to this Contract, including but not limited to any liability caused by an accident or other occurrence resulting in bodily injury, death, sickness or disease to any person(s) or damage or destruction to any property, real or personal, tangible or intangible; and (3) Claims relating to worker's compensation for any employee or subcontractor of the Company; This clarifies and supersedes any other section of the Contract concerning indemnification that could be interpreted otherwise. 33. INSURANCE. Throughout the term of the Contract, the Company shall comply with the insurance requirements described in this Section. In the event the Company fails to procure and maintain each type of insurance required by this Section, or in the event the Company fails to provide the City with the required certificates of insurance, the City shall be entitled to terminate the Contract immediately upon written notice to the Company. The Company agrees to purchase and maintain the following insurance coverage during the life of the Contract with an insurance company acceptable to the City of Charlotte, authorized to do business in the State of North Carolina: (A) Automobile Liability: Bodily injury and property damage liability covering all owned, non -owned, and hired automobiles for limits of not less than $1,000,000 bodily injury each person, each accident; and, $1,000,000 property damage, or $1,000,000 combined single limit each occurrence/aggregate. (B) Commercial General Liability: Bodily injury and property damage liability as shall protect the Company and any subcontractor performing work under the Contract from claims of bodily injury or property damage which arise from performance of the Contract, whether such work is performed by the Company, any subcontractor or anyone directly or indirectly employed by either. The amounts of such insurance shall not be less than $1,000,000 bodily injury each occurrence/aggregate and $1,000,000 property damage each occurrence/aggregate or $1,000,000 bodily injury and property damage combined single limits each occurrence/aggregate. This insurance shall include coverage for products, services, completed operations, personal injury liability and contractual liability assumed under the indemnity provision of the Contract. (C) Workers' Compensation: Meeting the statutory requirements of the State of North Carolina and Employers Liability - $100,000 per accident limit, $500,000 disease per policy limit, $100,000 disease each employee limit, providing coverage for employees and owners. The City shall be named as additional insured during and until completion of the work under the commercial general liability insurance for operations or services rendered under 12 Contract No. 2017001134 Vendor No. 121531 this Contract. The Company's insurance shall be primary of any self -funding and/or insurance otherwise carried by the City for all loss or damages arising from the Consultant's operations under this agreement. The Company and each of its subcontractors shall and does waive all rights of subrogation against the City and each of the Indemnitees, as defined in Section 5.1. The Company shall not commence any work in connection with the Contract until it has obtained all of the types of insurance set forth in this Form, and such insurance has been approved by the City. The Company shall not allow any subcontractor to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained and approved. All insurance policies shall be with insurers qualified and doing business in North Carolina recognized by the Secretary of State and the Insurance Commissioner's Office. The Company shall furnish the City with proof of insurance coverage by certificates of insurance accompanying the Contract. All insurance certificates must include the City of Charlotte's contract number in the description field. The City shall be exempt from, and in no way liable for any sums of money that may represent a deductible in any insurance policy. The payment of such deductible shall be the sole responsibility of the Company and/or subcontractor providing such insurance. Since the playground and the play equipment will be in the care, custody, and control of the end user following installation, it is understood the Company cannot additionally insure the eventual owners of the equipment for any damages that result from: 1) lack of maintenance for which the Company or its subcontractors are not contractually obligated to perform, where such lack of maintenance is not as a result of instructions or manuals provided by the Company or its subcontractors ; 2) inadequate supervision; 3) Negligence (other than negligence of the Company or its subcontractors); 4) intentional acts of anyone other than the Company, its subcontractors or their affiliates; 5) inadequate surfacing that was not provided by or recommended by the Company, its subcontractors, or their affiliates; or 6) vandalism. 34. COMMERCIAL NON-DISCRIMINATION. As a condition of entering into this Contract, the Company represents and warrants that it will fully comply with the City's Commercial Non -Discrimination Policy, as described in Section 2, Article V of the Charlotte City Code, and consents to be bound by the award of any arbitration conducted thereunder. As part of such compliance, the Company shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, age or disability in the solicitation, selection, hiring, or treatment of subcontractors, vendors or suppliers in connection with a City contract or contract solicitation process, nor shall the Company retaliate against any person or entity for reporting instances of such discrimination. The Company shall provide equal opportunity for subcontractors, vendors and suppliers to participate in all of its subcontracting and supply opportunities on City contracts, provided that nothing contained in this clause shall prohibit or limit otherwise lawful efforts to remedy the effects of marketplace discrimination that has occurred or is occurring in the marketplace. The Company understands and agrees that a violation of this 13 Contract No. 2017001134 Vendor No. 121531 clause shall be considered a material breach of this Contract and may result in termination of this Contract, disqualification of the Company from participating in City contracts or other sanctions. As a condition of entering into this Contract, the Company agrees to: (a) promptly provide to the City in a format specified by the City all information and documentation that may be requested by the City from time to time regarding the solicitation, selection, treatment and payment of subcontractors in connection with this Contract; and (b) if requested, provide to the City within sixty days after the request a truthful and complete list of the names of all subcontractors, vendors, and suppliers that the Company has used on City contracts in the past five years, including the total dollar amount paid by the Company on each subcontract or supply contract. The Company further agrees to fully cooperate in any investigation conducted by the City pursuant to the City's Non -Discrimination Policy, to provide any documents relevant to such investigation that are requested by the City, and to be bound by the award of any arbitration conducted under such Policy. The Company agrees to provide to the City from time to time on the City's request, payment affidavits detailing the amounts paid by the Company to subcontractors and suppliers in connection with this Contract within a certain period of time. Such affidavits shall be in the format specified by the City from time to time The Company understands and agrees that violation of this Commercial Non - Discrimination provision shall be considered a material breach of this Contract and may result in contract termination, disqualification of the Company from participating in City contracts and other sanctions. 35. COMPANY WILL NOT SELL OR DISCLOSE DATA. The Company will treat as confidential information all data provided by the City in connection with this agreement. City data processed by the Company shall remain the exclusive property of the City. The Company will not reproduce, copy, duplicate, disclose, or in any way treat the data supplied by the City in any manner except that contemplated by this agreement. 36. WORK ON CITY'S PREMISES. The Company will ensure that its employees and agents shall, whenever on the City's premises, obey all instructions and directions issued by the City's project manager with respect to work on the City's premises. The Company agrees that its personnel and the personnel of its subcontractors will comply with all rules, regulations and security procedures of the City when on the City's premises. 37. BACKGROUND CHECKS: The Company agrees that it has conducted or will conduct background checks on all personnel who will be working at the Charlotte service facility or delivering Products or Services under the Contract. The Company will conduct such background checks prior to the personnel commencing work hereunder, whether as part of the Company's standard pre -employment screening practices or otherwise. The Company will complete a background check on an annual basis for each person working at the Charlotte facility. Background check will include at a minimum: a. Criminal records search, b. Identification verification; and C. Proof of authorization to work in the United States. The Company agrees if any personnel does not meet the background qualifications, he/she shall not be assigned to perform services under this Contract. The Company will notify the City immediately if a background check reveals any conviction(s). If there is any question 14 Contract No. 2017001134 Vendor No. 121531 as to whether any personnel meets the background qualifications, prior to assignment of any Services under this Contract, the Company shall contact the City immediately. 38. DRUG -FREE WORKPLACE. The City is a drug -free workplace employer. The Company hereby certifies that it has or it will within thirty (30) days after execution of this Contract: 38.1 Notify employees that the unlawful manufacture, distribution, dispensation, possession, or use of controlled substance is prohibited in the workplace and specifying actions that will be taken for violations of such prohibition; 38.2 Establish a drug -free awareness program to inform employees about (i) the dangers of drug abuse in the workplace, (ii) the Company's policy of maintaining a drug -free workplace, (iii) any available drug counseling, rehabilitation, and employee assistance programs, and (iv) the penalties that may be imposed upon employees for drug abuse violations; 38.3 Notify each employee that as a condition of employment, the employee will (i) abide by the terms of the prohibition outlines in (a) above, and (ii) notify the Company of any criminal drug statute conviction for a violation occurring in the workplace not later than five days after such conviction; 38.4 Impose a sanction on, or requiring the satisfactory participation in a drug counseling, rehabilitation or abuse program by an employee convicted of a drug crime; 38.5 Make a good faith effort to continue to maintain a drug -free workplace for employees; and 38.6 Require any party to which it subcontracts any portion of the work under the contract to comply with the provisions of this Section. A false certification or the failure to comply with the above drug -free workplace requirements during the performance of this Contract shall be ground for suspension, termination or debarment. 39. NOTICES. Any notice, consent or other communication required or contemplated by this Contract shall be in writing, and shall be delivered in person, by U.S. mail, by overnight courier, by electronic mail or by telefax to the intended recipient at the address set forth below. Notice shall be effective upon the date of receipt by the intended recipient; provided that any notice which is sent by telefax or electronic mail shall also be simultaneously sent by mail deposited with the U.S. Postal Service or by overnight courier. Each party may change its address for notification purposes by giving the other party written notice of the new address and the date upon which it shall become effective. Communications that relate to any breach, default, termination, delay in performance, prevention of performance, modification, extension, amendment, or waiver of any provision of this Contract shall be sent to: For The Company: For The City: Donald R. King Karen Ewing P1ayCore Wisconsin, Inc. d/b/a Gametime Procurement Management Division 150 Playcore Drive SE 600 East Fourth Street Fort Payne, Alabama 35967 Charlotte, NC 28202 Phone: 423.648.5891 Phone: 704.336.2992 Fax: 423.648.5903 Fax: 704.632.8254 E-mail: dking@playcore.com E-mail: kewing(acharlottenc.gov 15 Contract No. 2017001134 Vendor No.121531 Witt Copy To: With Copy To: Cindy White Senior Assistant City Attorney 600 East Fourth Street Charlotte, NC 28202 Phone:704-336-3012 Fax: 704-336-8854 E-mail: cwhite(a.ci.charlotte.nc.us All other notices shall be sent to the other party's Project Manager at the most recent address provided in writing by the other party. 40. SUBCONTRACTING: The Company shall not subcontract any of its obligations under this Contract without the City's prior written consent. In the event the City does consent in writing to a subcontracting arrangement, Company shall be the prime contractor and shall remain fully responsible for performance of all obligations which it is required to perform under this Contract. Any subcontract entered into by Company shall name the City as a third party beneficiary. 41. FORCE MAJEURE: Neither party shall be liable for any failure or delay in the performance of its obligations pursuant to the Contract, and such failure or delay shall not be deemed a default of the Contract or grounds for termination hereunder if all of the following conditions are satisfied: If such failure or delay: A. could not have been prevented by reasonable precaution; B. cannot reasonably be circumvented by the non -performing party through the use of alternate sources, work -around plans, or other means; and C. if, and to the extent, such failure or delay is caused, directly or indirectly, by fire, flood, earthquake, hurricane, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions or court order. An event that satisfies all of the conditions set forth above shall be referred to as a "Force Majeure Event." Upon the occurrence of a Force Majeure Event, the affected party shall be excused from any further performance of those of its obligations which are affected by the Force Majeure Event for as long as (a) such Force Majeure Event continues and (b) the affected party continues to use reasonable efforts to recommence performance whenever and to whatever extent possible without delay. Upon the occurrence of a Force Majeure Event, the affected party shall promptly notify the other by telephone (to be confirmed by written notice within five (5) days of the inception of the failure or delay) of the occurrence of a Force Majeure Event and shall describe in reasonable detail the nature of the Force Majeure Event. If any Force Majeure Event prevents the Company from performing its obligations for more than fifteen (15) days, the City shall have the right to terminate the Contract by written notice to the Company. Notwithstanding anything contained herein to the contrary, strikes, slow -downs, walkouts, lockouts, and industrial disputes of the Company or its subcontractors shall not constitute "Force Majeure Events" and are not excused under this provision. Nothing in the preceding Force Majeure provisions shall relieve the Company of any obligation it may have regarding disaster recovery, whether under the Contract or at law. 42 CONFIDENTIALITY. S Contract No. 2017001134 Vendor No. 121531 42.1 DEFINITIONS. As used in this Contract, The term "Confidential Information" shall mean any information, in any medium, whether written, oral or electronic, not generally known in the relevant trade or industry, that is obtained from the City or any of its suppliers, contractors or licensors which falls within any of the following general categories: 42.2 Trade secrets. For purposes of this Contract, trade secrets consist of information of the City or any of its suppliers, contractors or licensors: (a) that derives value from being secret; and (b) that the owner has taken reasonable steps to keep confidential. Examples of trade secrets include information relating to proprietary software, new technology, new products or services, flow charts or diagrams that show how things work, manuals that tell how things work and business processes and procedures. 42.3 Information of the City or its suppliers, contractors or licensors marked "Confidential" or "Proprietary." 42.4 Information relating to criminal investigations conducted by the City, and records of criminal intelligence information compiled by the City. 42.5 Information contained in the City's personnel files, as defined by N.C. Gen. Stat. 160A-168. This consists of all information gathered by the City about employees, except for that information which is a matter of public record under North Carolina law. 42.6 Citizen or employee social security numbers collected by the City. 42.7 Computer security information of the City, including all security features of electronic data processing, or information technology systems, telecommunications networks and electronic security systems. This encompasses but is not limited to passwords and security standards, procedures, processes, configurations, software and codes. 42.8 Local tax records of the City that contains information about a taxpayer's income or receipts. 42.9 Any attorney / client privileged information disclosed by either party. 42.10 Any data collected from a person applying for financial or other types of assistance, including but not limited to their income, bank accounts, savings accounts, etc. 42.11 The name or address of individual home owners who, based on their income, have received a rehabilitation grant to repair their home. 42.12 Building plans of City -owned buildings or structures, as well as any detailed security plans. 42.13 Billing information of customers compiled and maintained in connection with the City providing utility services 42.14 Other information that is exempt from disclosure under the North Carolina public records laws. Categories 42.1 through 42.13 above constitute "Highly Restricted Information," as well as Confidential Information. The Company acknowledges that certain Highly Restricted Information is subject to legal restrictions beyond those imposed by this Contract, and agrees that: (a) all provisions in this Contract 17 Contract No. 2017001134 Vendor No. 121531 applicable to Confidential Information shall apply to Highly Restricted Information; and (b) the Company will also comply with any more restrictive instructions or written policies that may be provided by the City from time to time to protect the confidentiality of Highly Restricted Information. The parties acknowledge that in addition to information disclosed or revealed after the date of this Contract, the Confidential Information shall include information disclosed or revealed within one year prior to the date of this Contract. 43. RESTRICTIONS. Company shall keep the Confidential Information in the strictest confidence, in the manner set forth below: 43.1 Company shall not copy, modify, enhance, compile or assemble (or reverse compile or disassemble), or reverse engineer Confidential Information, except as authorized by the City in writing. 43.2 Company shall not, directly or indirectly, disclose, divulge, reveal, report or transfer Confidential Information to any third party, other than an agent, subcontractor or vendor of the City or Company having a need to know such Confidential Information for purpose of performing work contemplated by written agreements between the City and the Company, and who has executed a confidentiality agreement incorporating substantially the form of this the Contract. Company shall not directly or indirectly, disclose, divulge, reveal, report or transfer Highly Restricted to any third party without the City's prior written consent. 43.3 Company shall not use any Confidential Information for its own benefit or for the benefit of a third party, except to the extent such use is authorized by this Contract or other written agreements between the parties hereto, or is for the purpose for which such Confidential Information is being disclosed. 43.4 Company shall not remove any proprietary legends or notices, including copyright notices, appearing on or in the Confidential Information. 43.5 Company shall use reasonable efforts (including but not limited to seeking injunctive relief where reasonably necessary) to prohibit its employees, vendors, agents and subcontractors from using or disclosing the Confidential Information in a manner not permitted by this Contract. 43.6 In the event that any demand is made in litigation, arbitration or any other proceeding for disclosure of Confidential Information, Company shall assert this Contract as a ground for refusing the demand and, if necessary, shall seek a protective order or other appropriate relief to prevent or restrict and protect any disclosure of Confidential Information. 43.7 All materials which constitute, reveal or derive from Confidential Information shall be kept confidential to the extent disclosure of such materials would reveal Confidential Information, and unless otherwise agreed, all such materials shall be returned to the City or destroyed upon satisfaction of the purpose of the disclosure of such information. 43.8 Company shall restrict employee access to the Confidential Information to those employees having a need to know for purposes of their jobs. 18 Contract No. 2017001134 Vendor No. 121531 43.9 Company shall take reasonable measures to prevent the use or disclosure of Confidential Information by its employees in a manner not permitted by this Contract. The Company shall have each of its employees who will have access to the Confidential Information sign a confidentiality agreement which provides the City and its vendors, licensors, subcontractors, employees and taxpayers the same level of protection as provided by this Contract. 44. EXCEPTIONS. The City agrees that Company shall have no obligation with respect to any Confidential Information that the Company can establish: 44.1 Was already known to Company prior to being disclosed by the City; 44.2 Was or becomes publicly known through no wrongful act of Company; 44.3 Was rightfully obtained by Company from a third party without similar restriction and without breach hereof; 44.4 Was used or disclosed by Company with the prior written authorization of the City; 44.5 Was disclosed pursuant to the requirement or request of a governmental agency, which disclosure cannot be made in confidence, provided that, in such instance, Company shall first give to the City notice of such requirement or request; 44.6 Was disclosed pursuant to the order of a court of competent jurisdiction or a lawfully issued subpoena, provided that the Company shall take reasonable steps to obtain an agreement or protective order providing that this Contract will be applicable to all disclosures under the court order or subpoena. 45. MISCELLANEOUS 45.1 ENTIRE AGREEMENT. This Contract, including all Exhibits and Attachments constitute the entire agreement between the parties with respect to the subject matter herein. There are no other representations, understandings, or agreements between the parties with respect to such subject matter. This Contract supersedes all prior agreements, negotiations, representations and proposals, written or oral. Notwithstanding the forgoing, the parties agree that the ITB and the Bid are relevant in resolving any ambiguities that may exist with respect to the language of this Contract 45.2 AMENDMENT. No amendment or change to this Contract shall be valid unless in writing and signed by the party against whom enforcement is sought. Amendments that involve or increase in the amounts payable by the City may require execution by a Department Director, the City Manager, or an Assistant City Manager; depending on the amount. Some increases may also require approval by City Council. 45.3 GOVERNING LAW AND JURISDICTION. North Carolina law shall govern the interpretation and enforcement of this Contract, and any other matters relating to this Contract (all without regard to North Carolina conflicts of law principles). All legal actions or other proceedings relating to this Contract shall be brought in a state or federal court sitting in Mecklenburg County, North Carolina. By execution of this Contract, the parties submit to the jurisdiction of such courts and hereby irrevocably waive any and all objections which they may have with respect to venue in any court sitting in Mecklenburg County, North Carolina. 19 Contract No. 2017001134 Vendor No. 121531 45.4 BINDING NATURE AND ASSIGNMENT. This Contract shall bind the parties and their successors and permitted assigns. Neither party may assign this Contract without the prior written consent of the other. Any assignment attempted without the written consent of the other party shall be void. For purposes of this Section, a Change in Control, as defined in Section 42.8 constitutes an assignment. 45.5 SEVERABILITY. The invalidity of one or more of the phrases, sentences, clauses or sections contained in this Contract or the Exhibits shall not affect the validity of the remaining portion of this Contract or Exhibits so long as the material purposes of this Contract can be determined and effectuated. If any provision of this Contract or Exhibit is held to be unenforceable, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is unenforceable, and this Contract shall be deemed amended by modifying such provision to the extent necessary to make it enforceable while preserving its intent. 45.6 NO PUBLICITY. No advertising, sales promotion or other materials of the Company or its agents or representations may identify or reference this Contract or the City in any manner without the prior written consent of the City. Notwithstanding the forgoing, the parties agree that the Company may list the City as a reference in responses to requests for proposals, and may identify the City as a customer in presentations to potential customers. 45.7 WAIVER. No delay or omission by either party to exercise any right or power it has under this Contract shall impair or be construed as a waiver of such right or power. A waiver by either party of any covenant or breach of this Contract shall not constitute or operate as a waiver of any succeeding breach of that covenant or of any other covenant. No waiver of any provision of this Contract shall be effective unless in writing and signed by the party waiving the rights. 45.8 CHANGE IN CONTROL. In the event of a change in "Control" of the Company (as defined below), the City shall have the option of terminating this Contract by written notice to the Company. The Company shall notify the City within ten days of the occurrence of a change in control. As used in this Contract, the term "Control" shall mean the possession, direct or indirect, of either (i) the ownership of or ability to direct the voting of, as the case may be fifty-one percent (51 %) or more of the equity interests, value or voting power in the Company or (ii) the power to direct or cause the direction of the management and policies of the Company whether through the ownership of voting securities, by contract or otherwise. 45.9 NO BRIBERY. The Company certifies that neither it, any of its affiliates or subcontractors, nor any employees of any of the forgoing has bribed or attempted to bribe an officer or employee of the City in connection with this Contract. 45.10 FAMILIARITY AND COMPLIANCE WITH LAWS AND ORDINANCES. The Company agrees to make itself aware of and comply with all local, state and federal ordinances, statutes, laws, rules and regulations applicable to the Services. The Company further agrees that it will at all times during the term of this Contract be in compliance with all applicable federal, state and/or local laws regarding employment practices. Such laws will include, but shall not be limited to workers' compensation, the Fair Labor Standards Act (FLSA), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and all OSHA regulations applicable to the work. 20 Contract No. 2017001134 Vendor No. 121531 45.11 TAXES. The Company shall pay all applicable federal, state and local taxes which may be chargeable against the Products and/or Services. 45.12 SURVIVAL OF PROVISIONS: Those Sections of the Contract and the Exhibits, which by their nature would reasonably be expected to continue after the termination of the Contract shall survive the termination of the Contract, including but not limited to the following: Section 3 "Term" Section 4.3 "Employment Taxes and Employee Benefits" Section 13 "General Warranties" Section 14 "Additional Representations and Warranties" Section 22 "Guarantee" Section 28 "Other Remedies" Section 29 "Termination" Section 33 "Insurance" Section 34 "Indemnification" Section 39 "Notices" Section 42 "Confidentiality" Section 45 "Miscellaneous" 45.13 NON -APPROPRIATION OF FUNDS. If City Council does not appropriate the funding needed by the City to make payments under this Contract for a given fiscal year, the City will not be obligated to pay amounts due beyond the end of the last fiscal year for which funds were appropriated. In such event, the City will promptly notify the Company of the non -appropriation and this Contract will be terminated at the end of the last fiscal year for which funds were appropriated. No act or omission by the City, which is attributable to non -appropriation of funds shall constitute a breach of or default under this Contract. 45.14 E-VERIFY. Company shall comply with the requirements of Article 2 of Chapter 64 of the North Carolina General Statutes, and shall require each of its subcontractors to do so as well. 45.15 IRAN DIVESTMENT ACT. Company certifies that: (i) it is not identified on the Final Divestment List or any other list of prohibited investments created by the NC State Treasurer pursuant to N.C.G.S. 147-86.58; (ii) it will not take any action causing it to appear on any such list during the term of this Contract; and (iii) it will not utilize any subcontractor that is identified on any such list to provide goods or services hereunder. 45.16 PRE -AUDIT. No pre -audit certificate is required under N.C. Gen. Stat. 159-28(a) because this Contract is for an indefinite quantity with no minimum purchase requirement. Notwithstanding anything contained herein to the contrary, this Contract does not require the City to purchase a single product or service, and a decision by the City to not make any purchase hereunder will violate neither this Contract nor any implied duty of good faith and fair dealing. The City has no financial obligation under this Contract absent the City's execution of a valid and binding purchase order or contract addendum containing a pre -audit certificate." 21 Contract No. 2017001134 Vendor No. 121531 45.17 UNIFORM ADMINISTRATIVE REQUIREMENTS By entering into this Contract, the Company agrees to comply with all applicable provisions of Title 2, Subtitle A, Chapter A Part 200 — Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards contained in Title 2 C.F. R. § 200 et seq. 45.18 COUNTERPARTS. This Contract may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the parties. [Signature Page Follows] 22 contract No. 2017001134 Vendor No. 121531 IN WITNESS WHEREOF, and in acknowledgment that the parties hereto have read and understood each and every provision hereof, the parties have caused this Contract to be executed on the date first written above. PLAYCO SCONSIN, INC. D/B/A GAMETIME: B1. PRINT NAME: 9066P'T V. NR900 TITLE: S,614100— V P. �LOS DATE: 05' " 03 -4?0 (7 CITY OF CHARLOTTE CITY MANAGER'S f)FFir.F- BY: ► PRINT NAME: TITLE: DATE: / 15117 CITY OF CHARLOTTE RISK MANAGEMENT DIVISION: BY: X, PRINT NAME: i TITLE: DATE: 4 / 1 / 23 Contract No. 2017001134 Vendor No. 121531 EXHIBIT C NATIONAL NETWORK OF DISTRIBUTORS AND INSTALLERS The following National Network of Distributors and Installers is an Exhibit to and is incorporated into the Contract to provide Playground Equipment, Outdoor Fitness Equipment, Surfacing, Site Accessories and Related Products and Services (the "Contract") between the City of Charlotte and Playcore Wisconsin, Inc. d/b/a GameTime. 26 Contract#:2017001134 Amendment#: 14 Vendor#:121531 IN WITNESS WHEREOF, and in acknowledgment that the parties hereto have read and understood each and every provision hereof. the parties have caused this Fourteenth Amendment to be executed as of the date first written above. PLAYCORE WISCONSIN INC. DBA GAMETEVIE: BY: (Signature) PRINT NAME: Clint Whiteside TITLE: Director of Sales DATE: 6/27/2023 PLOCORE W&CONSA; /NC. DBA GAAMMVE AMUMAIW FOURTEEN CITY OF CHARLOTTE: CITY MANAGER'S OFFICE BY: See Attachment Below (Signature) PRINT NAME: TITLE: DATE: ii, "I CHARLOTTE Digital Contract Routing Form Non -Encumbered Date Submitted: July 10, 2023 Submitted by: Angelica Witherell Submitter email: angelica.wkherell@charlottenc.gov Contract q: 2017001134 Amendment q:14 Contract Name: Playground Equipment, Site Accessories, Surfacing, and Related Products and Services Vendor Legal Name: Playcore Wisconsin, Inc. dba GameTime Vendorft:121531 REQUIRED ATTAC HMENT(S): Use the Papercip icon to attach a full Contract Document Routing Packet for review by the authorized City individual with signature authority. The Routing Packet MUST include all required components per the direction provided at: The following signatures, once completed, shall be incorporated by reference into the contractual document identified above. City of Charlotte O�J�G AUQ,Id-OPt ACC> d DATE (MMMDYYYY) `� CERTIFICATE OF L B INSURANCE I 06l2812023 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Brenda YOU E MARSH USA, LLC. UAM4` Young -Epps -------------- PNE Two Alliance Center uC. o. Ext); __(404) 995 3074 FAX Not: 3560 Lenox Road, Suite 2400 E-MAIL brenda.youngapps@marsh.com-- Atlanta, GA 30326 g°pMNL_.-- Attn: AUanla.CeriRequost@marsh.com f Fax: 212-948.4321 (NSURERISI AFFORDING COVERAGE NAIL 0 CN102326389-CAS-GAUWX-22-23 INSURER A: Evanston Insurance COMDanV 35378 INSURED INSURER B : Indemnity Ins Co Of North Amerka 43575 Playoore Wisconsin, Inc. __-- _- dba GamoTime INSURER C : ACE Property And Casualty Ins Co ?0699 150 PlayCore Drive SE INSURER D : ACE American Insurance Company _ 22667 Fort Payne, AL 35967 INSURER E : National Union Fire Ins Co. of Pitt!#!gh PA i 19445 INSURER F : ACE Fire Underwriters Insurance COmoanV 20702 COVERAGES CERTIFICATE NUMBER: ATL-004719473-23 REVISION NUMBER: 7 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUOR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSO We POLICY NUMBER (MMIDDIYYYYI IMWDDIYYYYI LIMITS A X COMMERCIAL GENERAL LIABILITY X MKLV2PBC001627 0810112022 08101023 EACH OCCURRENCE S 2.000,000 l r-X UAMAUt r O rttN I El1------- UAMA t: I U :N I EUs►1G4� 100,000 i� CIAIMS.MAOE -1 OCCUR st X SIR S250,000 Per Occ. MED EXP (Any one parson) 10,000 S - - , PERSONAL A ADV INJURY _ -_ -_ S 2.000,000 GEN1 AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 _ POLICY ECT M LOC PRODUCTS - COMPIOP AGG S 4.000,000 OTHER: POLICY AGGREGATE S 10,000,000 9 AUTOMOBILE LIABILITY CAL 1110690110 08/01/2022 08/0112023 COMBINED SINGLE LIMIT (En accident) S 1,000,000 X ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Par accident) S HIRED NON -OWNED PROPERTY DAMAGE S- _ _ AUTOS ONLY _._ AUTOS ONLY _(!'t!t RgWgn0 CempJCop. Ded.: SIM S L X UMBRELLA LIAR X OCCUR XEUG71549501 W4 080112022 08/0112023 EACH OCCURRENCE $ 10,000,000 EXCESS LIAR CLAIMS -MADE RETENTION Umb Catastrophe $25,000 _ AGGREGATE _ S a 10,000,000 DED I X I RETENTIONS 0 '� S D WORKERS COMPENSATION WLR CM9828 0k01 022 00112023 X I PER OTH- D AND EMPLOYERS' LIABILITY Y ! N EGUTIVE ANYPROFFICEORIMIEMDE SCF C5066978fi 08AT1 r2.022 0810112023 STATUTE E_B__` E.L. EACI� ACCIDENT ..,_ .__ $ 1,000,000 F XCLUDE09D NIA (Mandatory In NH) SCF C50669713 08K)1IZ022 0810112023 E.L. DISEASE - EA EMPLOYEE S 1,000,000 If yyeoa. doscribe under DESCRIPTION OF OPERA71ONS below (See Additional Page.j E.L. DISEASE - POLICY LIMIT S 1,000,000 E Excess Umbrella 021908174 08,01/2022 08l011202.3 Each Occurrence 15,000400 Aggregate 15,000.000 DESCRIPTION OF OPERATIONS I LOCATIONS 1 V041CLES (ACORD 101, Additional Remarks Schodulo, may bo attached If more spaco to roquirod) RE: Contract 2017001134.14; Playground and Outdoor Fitness Equipment, Site Accossodes, Surfacing, and Related products and Services Cily of Charlotte, its officors, officials, agents, and employees are listed as additional Insured with respect to general liability as their interests may appear, during and unfit completion of the referenced project, on a primary and non-contributory basis via CG 2010 04113, when required by written contract. A Waiver of Subrogation applies In favor of the additional insured on the Workers Compensation policy where required by written contract CERTIFICATE HOLDER CANCELLATION City of Charlotte SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 600 East Fourth Street THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Charlotte, NC 28202 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA LLC ! v/ ©1988-2016 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: CN102326389 LOC #: Atlanta ACO ® ADDITIONAL REMARKS SCHEDULE Page 2 of 2 `.� AGENCY NAMED INSURED MARSH USA, LLC. Playcom Wisconsin, Inc. dba Ga=Trmo POLICY NUMBER 150 PlayCom Drive BE Fort Payne,AL 35967 CARRIER I NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: Certificate of Liability Insurance Workers' Compemalion (Continued): Wirti C60669828 - AL,AZ,CA,CO,FL,GA,(L,IN,KY,MI,MN,MO,NV,NY,OK,OR,PA,SC,TN,TX,UT,VA SCF C50669786 - CA,CO,FL,GIUL,IN,MI,MN,MO,MT,NC,NM,NV,NY,OK,OR,PA,SC,TN,TX SCF C50669713- Wisconsin (WI) ACORD 101 (2008101) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD EFFECTIVE: AUGUST 1, 2022 EXPIRES: AUGUST 1, 2023 POLICY NUMBER: MKLV2PBC001627 COMMERCIAL GENERAL LIABILITY CG20100413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY ,ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location(s) Of Covered Operations As required by written contract executed by both parties All locations prior to loss Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section 11 -- Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional Insured(s) at the location(s) designated above. However: 1. The insurance afforded to such additional Insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This Insurance does not apply to "bodily injury" or "property damage" occurring after: I. All work, including materials, parts or equipment furnished In connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. C. With respect to the insurance afforded to these additional insureds, the following is added to Section III - Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of Insurance: 1. Required by the contract or agreement; or © Insurance Services Office, Inc., 2012 Page 1 of 2 CG20100413 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. © Insurance Services Office, Inc., 2012 Page 2 of 2 CG 20 10 0413 Conti act#: 2017001134 Amendment#: 14 Vendor#: 121531 STATE OF NORTH CAROLINA COUNTY OF MECKLENBURG FOURTEENTH AMENDMENT TO THE AGREEMENT TO PROVIDE PLAYGROUND AND OUTDOOR FITNESS EQUIPMENT, SITE ACCESSORIES, SURFACING, AND RELATED PRODUCTS AND SERVICES THIS FOURTEENTH AMENDMENT TO THE AGREEMENT TO PROVIDE PLAYGROUND AND OUTDOOR FITNESS EQUIPMENT, SITE ACCESSORIES, SURFACING, AND RELATED PRODUCTS AND SERVICES (this "Fourteenth Amendment") is made and entered into this 10 of lulu 2023, by and between Playcore Wisconsin, Inc., dba GameTime an Alabama corporation doing business in North Carolina (the "Company"), and the City of Charlotte, a North Carolina municipal corporation (the "City"). Statement of Background and Intent A. The City of Charlotte and the Company entered into an Agreement for Playground and Outdoor Fitness Equipment, Site Accessories, Surfacing, and Related Products and Services dated July 1, 2017 (the "Contract") pursuant to which the Company agreed to provide Playground and Outdoor Fitness Equipment, Site Accessories, Surfacing, and Related Products and Services for the City of Charlotte. B. The parties amended the Contract on January 1, 2018, to incorporate unit price adjustments and freight rate adjustments. C. The parties amended the Contract on July 1, 2018, to incorporate unit price adjustments due to tariffs on steel and aluminum. D. The parties amended the Contract on September 1, 2018, to incorporate federal contract terms and conditions. E. The parties amended the Contract on January 1, 2019, to incorporate unit price adjustments and freight rate adjustments. F. The parties amended the Contract on April 1, 2019, to incorporate new products and pricing. G. The parties amended the Contract on January 1, 2020, to incorporate unit price adjustments and freight rate adjustments. H. The parties amended the Contract on January 1, 2021, to incorporate new products, unit price adjustments, and freight rate adjustments. I. The parties amended the Contract on March 16, 2021, to incorporate am material surcharge. J. The parties amended the Contract on May 17, 2021, to incorporate am material surcharge. K. The parties amended the Contract on July 14, 2021, to incorporate a material surcharge. L. The parties amended the Contract on December 1, 2021, to add new Products and Services and to incorporate the 2022 Master Price List and Freight Rate Schedule. PLAYCORE WISCONSA, INC. DBA GAMETIME AMENDMENT FOURTEEN . Contract#: 2017001134 Amendment#: 14 Vendor#: 121531 M. The parties amended the Contract on July 1, 2022, to extend the Term of the Contract by the first of two (2) two-year renewal terms and to incorporate certain other changes. N. The parties amended the Contract on December 5, 2022, to add new Products and Services and to incorporate the 2023 Master Price List and Freight Rate Schedule, the 2022 Network of Distributors, and incorporate certain other changes. O. The parties now desire to extend the Tenn of the Contract by the second of two (2) two-year renewal terms and to incorporate certain other changes. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereby agree to the following: AGREEMENT 1. The terms of the Contract are restated by and incorporated into this Fourteenth Amendment by reference. 2. Defined terms used in this Fourteenth Amendment shall have the same meaning as are assigned to such terms in the Contract. 3. This fourteenth Amendment extends the terns of the Contract by the second of two (2) two-year renewal teens to June 30, 2026. 4. Except to the extent specifically provided above, this amendment shall not be interpreted or construed as waiving any rights, obligations, remedies, or claims the parties may otherwise have under the Contract. 5. In all other respects and except as modified herein, the teens of the Contract shall remain in force and effect. [Signature Page Follows] PLAYCORE WISCONSIN, INC. DBA GAMETIME AMENDMENT FOURTEEN Contract #: 2017001134 Amendment#:15 Vendor #:121531 STATE OF NORTH CAROLINA COUNTY OF MECKLENBURG FIFTEENTH AMENDMENT TO THE AGREEMENT TO PROVIDE PLAYGROUND AND OUTDOOR FITNESS EQUIPMENT, SITE ACCESSORIES, SURFACING, AND RELATED PRODUCTS AND SERVICES THIS FIFTEENTH AMENDMENT TO THE AGREEMENT TO PROVIDE PLAYGROUND AND OUTDOOR FITNESS EQUIPMENT, SITE ACCESSORIES, SURFACING, AND RELATED PRODUCTS AND SERVICES (this "Fifteenth Amendment") is made and entered into this 22 of December 20239 by and between Playcore Wisconsin, Inc., dba GameTime an Alabama corporation doing business in North Carolina (the "Company"), and the City of Charlotte, a North Carolina municipal corporation (the "City"). Statement of Background and Intent A. The City of Charlotte and the Company entered into an Agreement for Playground and Outdoor Fitness Equipment, Site Accessories, Surfacing, and Related Products and Services dated July 1, 2017 (the "Contract") pursuant to which the Company agreed to provide Playground and Outdoor Fitness Equipment, Site Accessories, Surfacing, and Related Products and Services for the City of Charlotte. B. The parties amended the Contract on January 1, 2018, to incorporate unit price adjustments and freight rate adjustments. C. The parties amended the Contract on July 1, 2018, to incorporate unit price adjustments due to tariffs on steel and aluminum. D. The parties amended the Contract on September 1, 2018, to incorporate federal contract terms and conditions. E. The parties amended the Contract on January 1, 2019, to incorporate unit price adjustments and freight rate adjustments. F. The parties amended the Contract on April 1, 2019, to incorporate new products and pricing. G. The parties amended the Contract on January 1, 2020, to incorporate unit price adjustments and freight rate adjustments. H. The parties amended the Contract on January 1, 2021, to incorporate new products, unit price adjustments, and freight rate adjustments. I. The parties amended the Contract on March 16, 2021. to incorporate a■% material surcharge. J. The parties amended the Contract on May 17, 2021. to incorporate a.% material surcharge. K. The parties amended the Contract on July 14, 2021, to incorporate a'% material surcharge. L. The parties amended the Contract on December 1, 2021, to add new Products and Services- and to incorporate the 2022 Master Price List and Freight Rate Schedule. PLAYCORE WISCONSIN, INC. DBA GAMETIME AMENDMENT FIFTEEN Contract #: 2017001134 Amendment#:1S Vendor #:121S31 M. The parties amended the Contract on July 1, 2022, to extend the Term of the Contract by the first of two (2) two-year renewal terms and to incorporate certain other changes. N. The parties amended the Contract on December 5, 2022, to add new Products and Services and to incorporate the 2023 Master Price List and Freight Rate Schedule, the 2022 Network of Distributors, and incorporate certain other changes. O. The parties amended the Contract to extend the Term of the Contract by the second of two (2) two- year renewal terns and to incorporate certain other changes. P. The parties now desire to amend the Contract to add new Products and Services and incorporate the 2024 Master Price List and Freight Rate Schedule and incorporate certain other changes. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereby agree to the following: AGREEMENT 1. The terms of the Contract are restated by and incorporated into this Fifteenth Amendment by reference. 2. Defined terms used in this Fifteenth Amendment shall have the same meaning as are assigned to such terms in the Contract. 3. The Pricing Sheets in Exhibit A of the Contract are hereby replaced in their entirety to the adjustments in the 2024 Master Price List which are attached hereto as Exhibit A.2. 4. The Freight Rate Schedules in Exhibit D of the Contract are hereby replaced in their entirety to the adjustments in the 2024 GameTime OMNIA Contract Freight Rates which are attached hereto as Exhibit D.2. 5. Except to the extent specifically provided above, this amendment shall not be interpreted or construed as waiving any rights, obligations, remedies, or claims the parties may otherwise have under the Contract. 6. In all other respects and except as modified herein, the terms of the Contract shall remain in force and effect. [S1gnalw-e Page FolloH;s] PLAYCORE WISCONSIN, INC. DBA GAMETIME AMENDMENT FIFTEEN Contract N:2017001130 AmandmantM: 15 Vander A:121331 IN WITNESS WHEREOF, and in acknowledgment that the parties hereto have read and understood each and every provision hereof, the parties have caused this Fifteenth Amendment to be executed as of the date first written above. PLAYCORE WISCONSIN INC. DBA GAMEE!TE�UE: BY: eyl—/.„&— (Signature) pRINT NAME: Clint Whiteside TITLE: Director of Sales DATE: 12/18/2023 CITY OF CHARLOTTE: CITY MANAGER'S OFFICE BY: See Attachment Below (Signature) PRINT NAME: TITLE: DATE: PLAYCORE WISCONSIN, INC. DBAGAMETIME AMENDMENT FIFTEEN RYh CHARLOTTE Digital Contract Routing Form Non -Encumbered Date Submitted: December 21, 2023 Submitted by: Angelica Witherell Submitter email:angelica.witherell@charlottenc.gov Contract it: 2017001134 Amendment #:14 Contract Name: Playground Equipment, Site Accessories, Surfacing, and Related Products and Services Vendor legal Name: Playcore Wisconsin, Inc. dba GameTime Vendorp:121531 REQUIRED ATTACHMENT(S): Use the Paperclip icon to attach a full Contract Document Routing Packet for review by the authorized City individual with signature authority. The Routing Packet MUST include all required components per the direction provided at: The following signatures, once completed, shall be incorporated by reference into the contractual document identified above. City of Charlotte OClz oe?lAdo",