HomeMy WebLinkAboutKABOOM 3AGREEMENT TERMINATION
Please complete this form when the attached agreement is no longer in effect.
Return form to the Sr. Deputy Clerk of the Council (M-30). Call 647-52 8 i n have alit' g
questions.
The agreement with p i f7U1� No.1 G,005-0/7
was completed on( and final payment has been made.
Department: �f
Signature: �� ( x} bkA&O
Date:�-
City of Santa Ana
Revised 8-7-03 Clerk of the Council
A-2005-017
THIS KaBOOM! COMMUNITY PARTNER AGREEMENT is made this 2nd day of February, 2005 by and between KaBOOM! and the
City of Santa Ana.
1. RECITALS
WHEREAS, KaBOOM! is a non-profit organization chartered in the District of Columbia and organized as a 501(c) 3 by
determination of the Internal Revenue Service;
WHEREAS KaBOOM! is an organization that develops, manages and coordinates a community -building playground for its
Community and Funding Partners, culminating in a one -day installation event known as a "Build Day";
WHEREAS City of Santa Ana is entering into a written agreement with KaBOOMI for services to develop, manage, coordinate
and carry out a community -build playground event ("Program");
WHEREAS KaBOOM! has received charitable support from THE HOME DEPOT ("Funding Partner") for this Program and has
entered into a separate agreement with the Funding Partner, the result of which are financial and human resources for this Program;
NOW THEREFORE, in consideration of the mutual covenants and conditions hereinafter expressed, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as
follows:
2. AGREEMENTS
1. OBLIGATIONS OF CITY OF SANTA ANA
1.1. City of Santa Ana agrees to be the Community Partner organization ("Community Partner") for the The Home Depot
playground project at Santa Anita Park, 300 S. Figueroa St., Santa Ana, CA 92703.
1.2. City of Santa Ana agrees to be responsive to the discreet timeline developed for the Program, inclusive of providing approval
of, action toward or direction to, specific responsibilities and initiatives of KaBOOMI on behalf of this Program.
1.3. As a Community Partner for a KaBOOM! community -build playground project, City of Santa Ana will work with KaBOOM!,
The Home Depot, and community residents to design, plan and build a community playground. All parties will work closely
together to ensure a successful, productive, and fun event.
1.3.1. The Community Partner agrees host a KaBOOM!-facilitated Design Day with at least 10 adults and 20 children. The
adults will remain engaged in planning activities throughout the Design Day to Build Day planning process.
1.3.2. The Community Partner agrees to recruit and secure at least 10-15 adult volunteers for preparation activities two to
three days prior to Build Day playground installation.
1.3.3. The Community Partner agrees to recruit and secure at least 50-100 adult volunteers for the Build Day playground
installation.
1.3.4. The Community Partner agrees to be responsible for preparing the site for the installation of the new playground, at
least two weeks before Build Day, which includes but is not limited to removing existing playground equipment, footers
and safety surfacing, grading the land, removing fencing and performing soil tests.
1.3.5. The Community Partner agrees to provide certain provisions for use by volunteers working on the construction project,
including but not limited to food (breakfast snacks, lunch and mid -day snacks), water and restroom facilities.
1.4. In support of this project, City of Santa Ana is responsible for contributing $10,000 to the playground project.
1.4.1. All funds will be applied directly toward purchasing playground equipment..
1.4.2. Upon receipt of this signed agreement, KaBOOM! will invoice City of Santa Ana for the full amount of this contribution,
and it will be due at least 30 days before the Build Day April T^, 2005.
1.4.3. If City of Santa Ana does not make payment as outlined in Section 1.4.2, KaBOOM! reserves the right, without waiving
any other rights and remedies, to cancel the build.
1.4.3.1. In the event of the Build Day's cancellation due to non-payment by the Community Partner as outlined in
Section 1.4.2, at KaBOOM!'s written request, without waiving any other rights and remedies, City of Santa Ana
shall be deemed liable for damages to KaBOOM! and Funding Partner for any un-cancelable contractual
commitments entered into prior to cancellation, any equipment costs, labor and materials, and any additional
expenses related to the Program, such as airfare and general supplies.
1.4.4. The Community Partner has the right to back-up documentation detailing the use of its contribution to the project.
Upon request, KaBOOM! will provide back-up documentation for City of Santa Ana within 120 days after the Build Day.
1.5. The Build Day must occur in calendar year 2005 on Thursday, April Th.
1.5.1. The Build Day shall not be postponed (defined as delayed, held over or rescheduled) under any circumstances other
than for conditions that jeopardize the safety of the volunteers, or for unsafe weather conditions that threaten the
structural integrity of the playground.
1.5.1.1. The decision to postpone a Build Day shall be reached through discussion, collaboration and majority
agreement by KaBOOM!, the Community Partner and the Funding Partner, each represented by a person
authorized by each party.
1.5.1.2. The sole exception to mutual decision -making and majority agreement shall be when the decision must be
made immediately and solely by KaBOOM! on the construction site in absence of authorized representatives of
the Community Partner and the Funding Partner being available.
1.5.1.3. The authorized representatives are defined as those individuals who have signed this Agreement, and the
Agreement between KaBOOM! and the Funding Partner, or their designates.
1.5.2. In the event that the Build Date is cancelled or changed solely by City of Santa Ana, City of Santa Ana shall be
deemed liable for damages to KaBOOM! and Funding Partner for any equipment costs, labor and materials and any
additional expenses related to the Program, such as airfare and general supplies.
1.5.3. In the event of a Build Day postponement, KaBOOM! shall collaborate with the Community Partner and the Funding
Partner to issue a Memo of Understanding (MOU) that outlines a plan for rescheduling the Build Day.
1.5.3.1. The MOU shall outline any additional expenses related to the rescheduled Build Day, and the party or parties
responsible for covering the additional expenses. These expenses may include, but are not limited to,
equipment storage, security, equipment shipment, and KaBOOM! travel and hotel expenses.
1.5.3.2. The MOU shall identify the next -earliest possible date for the Build Day, based on the availability of open
dates on the KaBOOM! program calendar, the availability of the Community Partner to participate in the
project, and the availability of the Funding Partner to participate in the project.
1.6. City of Santa Ana shall attach documentation to this Agreement showing proof of land ownership evidenced by a deed
granting title of the property to City of Santa Ana to the property, or a letter from the property owner showing approval for the
installation of the playground. Working with the support of the property owner (if owner is a separate party), City of Santa Ana
will maintain the property before and after the build to ensure a safe and attractive play area.
1.7. City of Santa Ana shall collaborate with KaBOOM! during the planning of this Project to develop a maintenance program for
the playground that will be implemented by City of Santa Ana upon completion of the playground installation.
1.8. City of Santa Ana will obtain and maintain Commercial General Liability insurance (providing coverage against liability for
bodily injury, death and property damage which may rise out of or be based upon the use of the playground) and Worker's
Compensation insurance policies, in amounts not less than one million dollars ($1,000,000.00)from the date of this
agreement and for a minimum of one (1) year thereafter. KaBOOM! and Funding Partner shall be named as additional
insureds for the Build Day upon such policy. The insurance shall be primary over any other insurance covering KaBOOM!
and Funding Partner. Such policy must provide that KaBOOM! and Funding Partner be given at least thirty (30) days prior
written notice of any change or cancellation of coverage. Community Partner will promptly provide as copy of the certificate
Page 2 of 8
from its insurer indicating the amount of insurance coverage, the nature of such coverage and the expiration date of each
applicable policy.
1.9. City of Santa Ana will obtain all necessary and appropriate permits and licenses regarding the installation and possession
and use of a playground prior to Build Day in compliance with local and state laws, regulations and guidelines.
1.10. City of Santa Ana is responsible for ensuring the playground site is safe for volunteers and children.
1.10.1. City of Santa Ana is responsible for conducting up to two utility site checks as reasonably requested by KaBOOM!
with the appropriate utility companies between two and eight weeks prior to the Build Day. Documentation of the utility
checks must be provided to the KaBOOM! Project Manager upon completion.
1.10.2. City of Santa Ana is responsible for conducting up to two soil site tests as reasonably requested by KaBOOM!
between two and ten weeks prior to the Build Day. Documentation of the soil checks must be provided to the
KaBOOM! Project Manager upon completion. City of Santa Ana is responsible for undertaking any necessary risk
mitigation should the soil be deemed unsafe for children or volunteers..
1.11. City of Santa Ana will work with local authorities and/or private firms as appropriate to ensure the safety and security of
human and equipment resources (playground equipment, playground volunteers) from the point of material delivery, during
the period(s) when site preparation occurs on the playground site, and until the conclusion of the Build Day.
1.12. City of Santa Ana will agree to accept and maintain engineered wood fiber as playground safety surfacing, meeting
standards established by CPSC guidelines, for the lifetime of the playground.
1.13. City of Santa Ana is solely responsible for any additional costs beyond the proposed playground project budget. KaBOOM!
is not responsible for paying any vendors for any prior site preparation, upgrades or improvements not agreed upon with
KaBOOM!. If Community Partner decides to purchase additional equipment or materials to supplement materials secured by
KaBOOM!, then the Community Partner is solely responsible for paying for the materials and all other liabilities related to
such materials. Neither KaBOOM! nor its Funding Partner(s) shall be liable for payment. Community Partner will hold
KaBOOM! and the Funding Partner harmless of any payments or liability with respect to the additional items ordered.
14. City of Santa Ana will seek prior approval from KaBOOM! and/or The Home Depot for any written and/or printed materials
that reference the Program and/or contain the logos of KaBOOM! or The Home Depot, including but not limited to press
releases, fliers and promotional materials. City of Santa Ana will work in collaboration with KaBOOM! and/or The Home
Depot to secure media coverage. KaBOOM! will provide mutual opportunity for the Community Partner to review and
approve materials prepared by KaBOOM! related to this Project (such approval not to be unreasonably withheld).
15. City of Santa Ana will allow the names and logos of The Home Depot and KaBOOM! on permanent playground signage,
such as that shown as a sample during City of Santa Ana's application process. Playground signage is 12%inches wide by
30 Y> inches tall and mounted on poles designed to match the playground components in color and design. The sign will be
errected in a mutually agreed upon location and in accordance with the Community Partner's guidelines regarding corporate
signage. If the Community Partner has specific guidelines regarding corporate signage on its property, please attach those
guidelines to this Agreement.
16. City of Santa Ana understands that the playground will be added to the roster of KaBOOM! Build Guild and, as such, will
receive subsequent information from KaBOOM! on playground maintenance, programming and enhancements.
2. OBLIGATIONS OF KaBOOM!
2.1. KaBOOM! will provide the Community Partner with technical and organizational leadership and guidance for the playground
project.
Page 3 of 8
2.1.1. Facilitate playground design and work with vendors to procure equipment and materials in a timely fashion, the
possible exception being the installation of safety surfacing other than engineered wood fiber
2.1.2. Manage construction logistics for the project, coordinate playground site preparation activities with the Community
Partner, inventory equipment and materials, and assure that the necessary tools and materials are available to
construct the playground
2.1.3. Facilitate regular planning meetings with the Community Partner and the playground planning committee
2.1.4. Lead the Build Day activities, including the coordination of Build Day captains and volunteers
2.1.5. Provide educational and promotional materials to support the playground project, including the KaBOOM! Tool Kit of
publications (4-book set), KaBOOM! online Playground Planner, nametags and other general supplies
2.1.6. Provide for and coordinate the participation of the Funding Partner, The Home Depot, which has committed to provide
KaBOOM! with financial, human and/or in -kind resources to bring to fruition the playground project with City of Santa
Ana.
2.2. KaBOOM! (in collaboration with City of Santa Ana), will provide or secure a Certified Playground Safety Inspector (CPSI) to
review the playground structure to ensure that it is safe and built to all appropriate standards and guidelines. City of Santa
Ana acknowledges that neither KaBOOM! or Funding Partner nor their respective officers, directors, employees, or agents
have made or are in any way responsible or liable for action, inaction or negligence of the CPSI and City of Santa Ana
agrees to look solely to the CPSI for any such liability, costs or expenses which arise out of the CPSI's action, inaction or
negligence.
2.2.1. The CPSI review will occur at the conclusion of the Build Day or, if KaBOOM! assumes responsibility for the
playground construction going beyond one day, at the conclusion of the installation.
2.2.2. In accordance with Section 4, City of Santa Ana shall be solely responsible for any injury, property damage, or death
which occurs in connection with the playground after review of the playground is completed.
2.2.3. In accordance with Section 4, in the event that the Build Day is delayed or not completed on the scheduled day due to
failure of City of Santa Ana to meet the terms of this Agreement, then City of Santa Ana will be responsible for
securing a CPSI to review the playground.
3. FUNDING PARTNER RELATIONS
3.1. KaBOOM! has a separate agreement with a KaBOOM! Funding Partner, THE HOME DEPOT ("Funding Partner"), whose
contributions to KaBOOM! are helping to make this Project possible.
3.2. The Community Partner shall not solicit sponsors or donors whose products or services directly compete with the products or
services of the Funding Partner.
3.2.1. For the purposes of this Agreement, sponsors are defined as individuals, businesses or philanthropic organizations
that contribute funding or in -kind gifts to this Project in exchange for certain rights to promote their affiliation with this
Project to the general public, including but not limited to public name recognition via this playground project's signs, T-
shirts, media materials and public-address systems. Conversely, donors are individuals or groups whose gifts to this
Project require personal acknowledgement only, such as thank -you letters.
3.3. In the event the Community Partner solicits other sponsors or donors, then those sponsors and donors shall not compete
with the Funding Partner for signage and sponsorship recognition. The Funding Partner shall receive first placement on any
recognition materials developed for the Project, including playground signage, banners, T-shirts, press releases, web -site
and newsletter stories, and flyers.
Page 4 of 8
3.4. In the event of a conflict between the Funding Partner and other sponsors and donors, the Funding Partner, Community
Partner and KaBOOM! shall consider recognition on a case -by -case basis.
4. OWNERSHIP AND LIABILITY
4.1. The Community Partner is the owner of the playground in its entirety, for the lifetime of the playground, including the
equipment and/or safety surfacing purchased by KaBOOM! and/or its Funding Partner(s).
4.2. It is agreed that City of Santa Ana will indemnify and hold harmless KaBOOM! and/or the Funding Partner and their
respective officers, directors, employees, or agents from any and all claims, costs, expenses (including attorney's fees and
disbursements) or actions associated with this playground project from any claim or action, including but not limited to claims
and actions for personal injury, death, or property damages resulting from the use of any playground property and equipment,
except to the extent resulting from any willful misconduct of KaBOOM! and/or the KaBOOM! Funding Partner.
4.3. A Certified Playground Safety Inspector will review the playground structure upon completion at the end of the scheduled
build Day. The manufacturer's representative/installer will certify that the playground was installed to manufacturer's
specifications at the end of the Build Day.
4.3.1. Notwithstanding the foregoing, City of Santa Ana shall be solely responsible for the playground and its equipment
upon certification of the playground.
4.3.2. City of Santa Ana shall be responsible for securing safety measures of the playground to prevent injury, death, or
property damages in the unlikely event that the playground is not completely constructed, and all equipment fully
installed, at the conclusion of the Build Day and once KaBOOM! and/or the CPSI leave the playground site.
4.3.3. In the unlikely event or planned circumstances that the playground is not completely constructed and all equipment
fully installed at the conclusion of the Build Day, City of Santa Ana shall be responsible for completing the installation
of the playground in accordance with the specified guidelines with the assistance of the CPSI and/or the
manufacturer's representatives, facilitated by KaBOOM!. City of Santa Ana shall be solely responsible for any injuries,
death, or property damage that arises out of City of Santa Ana's completion of such installation.
4.4. Maintenance of the playground facility and supervision of its use is the sole responsibility of City of Santa Ana. Upon
request, the playground -equipment and safety -surfacing manufacturers will provide guidance and materials, toward a
maintenance plan for the playground.
4.4.1. The Community Partner will receive from Playworld Systems Inc., the provider of its playground equipment, or via its
KaBOOM! project manager, a play equipment maintenance kit from Playworld Systems Inc.,..
5. WARRANTY
5.1. The playground equipment is covered under warranty by the selected playground equipment company in accordance with its
warranty policy. Upon request, a copy of the warranty for the playground -equipment and the safety -surfacing will be provided
by the manufacturer(s) to the Community Partner. While playground equipment and/or material manufacturers may provide a
warranty with respect to their product, City of Santa Ana acknowledges that neither KaBOOM! or Funding Partner nor their
respective officers, directors, employees or agents, have made nor are in any manner responsible or liable for any warranty,
representation, or guarantee, express or implied, in fact or in law, relative to any equipment or material, including but not
limited to its quality, mechanical condition or fitness for a particular purpose. Any warranties and/or guarantees on any
equipment or material are subject to the respective manufacturer's terms therefore, and City of Santa Ana agrees to look
solely to such manufacturers for any such warranty and/or guarantee.
6. GENERAL
6.1. Notices. Any notices required or permitted to be given hereunder shall be sent by certified or registered United States mail,
postage properly prepaid, or by personal delivery addressed as follows:
To: Darell Hammond, Chief Executive Officer
KaBOOM!
Page 5 of 8
4455 Connecticut Ave., NW, Suite B100
Washington, DC 20008 USA
202-659-0215
Copy to: John Chamberlain, Community Outreach Coordinator
(Use the same KaBOOMI address as above)
To Corporation: Ron Ono, Planning and Design Manager
CITY OF SANTA ANA
P.O. Box 1988 M-23
Santa Ana, CA, 92702
(714)571-4220
6.2. Counterparts. This Agreement may be executed by the parties in one or more counterparts which shall, in the aggregate, be
signed by all parties and each counterpart shall be deemed an original instrument as against any party who has signed it.
6.3. Governing Law. The laws of the State of California, without reference to its choice of law provisions, shall govern the
interpretation and/or legal effect hereunder and shall have jurisdiction over any dispute (including arbitration) arising out of or
under the terms of this Agreement.
6.4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective affiliates, successor, and
personal representatives of the parties to this Agreement, except to the extent of any contrary provision in this Agreement.
6.5. Severability. This Agreement shall be construed to be in accordance with federal and state statutes. If any provision of this
Agreement, or any portion thereof, is found to be invalid, illegal, or unenforceable, under any applicable statute or rule of law,
then such provision or portion thereof shall be deemed omitted, and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
6.6. Complete Agreement. This Agreement, when executed by the duly authorized representatives of each party shall be the
entire agreement between the parties as to the subject matter stated herein and supersedes and replaces any and all
previous agreements and all amendments thereto.
6.7. Assignment. This Agreement may not be assigned, delegated or transferred by either party without the prior written consent
of the other party hereto.
6.8, Force Majeure. If either of the parties hereto is delayed or prevented from fulfilling any of its obligations under this
Agreement by Force Majeure, said party shall not be liable under this Agreement for said delay or failure. "Force Majeure"
means any cause beyond the reasonable control of a party, including, but not limited to acts of God, acts of omission of civil
or military authorities of a state or nation, fire, strike, flood, riot, act of terrorism, war, delay of transportation, or inability due to
the aforementioned causes to obtain necessary labor, materials or facilities. Either party, however, may terminate this
Agreement if the other is unable to perform any obligation under the Agreement for a period longer than ten (10) calendar
days due to such a force majeure event. In the event of any such termination, KaBOOM! shall refund to the Community
Partner any monies paid to KaBOOM!, less expenses already committed to and/or incurred prior to the date of termination.
If, upon termination as provided herein, the sum due KaBOOM! by Community Partner, exceeds the sum paid to KaBOOM!
hereunder, Community Partner agrees to pay KaBOOM! for any such additional sum due upon presentation of appropriate
documentation within 30 days of invoice.
Page 6 of 8
6.9. Waiver. A waiver by either party of a breach or failure to perform shall not constitute a waiver of any subsequent breach or
failure.
Page 7 of 8
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the day and year first above written.
By signing this Agreement, City of Santa Ana fully acknowledges its consent and understanding of and commitment to the
terms and guidelines set forth above. Please sign both original versions of this letter and return them to KaB00M!. We will then sign
the originals, and mail one original and one copy back to you for your files.
KaBOGM! and The Home Depot look forward to working with City of Santa Ana to make this playground a reality.
Date Terms agreed to: City of Santa Ana
Attest:
Patricia E. Healy, Clerk of the Council U David N. Ream, City Manager
Approved As to Form,
Joseph W. Fletcher City Attorney Date Terms agreed to:
Michael Vigliotta, Deputy City Attorney
Recommended for Approval: 0%
and Community Services Agenby
City of Santa Ana
Phone Number: (714) 571-4220
Fax Number: (714) 571-4209
Email Address: ronopci.sahta-ana.ca.us
City of Santa Ana
P.O. Box 1988 M-23
Santa Ana, CA, 92702
By:
Chief Executive Officer
Phone number: 202-464-6074
Fax number: 202-659-0210
Email address: John(@,kaboom.oro
KaBOOM!
4455 Connecticut Ave, NW Suite B100
Washington, DC 20008
Contact information for the person who should receive KaB00M! invoices:
Name: Telephone Number:
Mailing Address: Fax Number:
Email Address:
Copy to: Copy to:
Brian Gaines, Vice President, Administrative Services
Attachments: Utility Inspection Form (for completion and return to KaB00M!)
Certified Playground Installer Certificate (sample)
Playworld Systems Inc. Playground Equipment Warranty (sample)
Copy: Stephanie Martin, The Home Depot
KaB00M! Project Archives
Page 8 of 8