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HomeMy WebLinkAboutPK11-223 - Original - KaBOOM - Tudor Square Neighborhood Council - 9/7/11 • COMMUNITY PARTNER PLAYGROUND CONTRACT August 11, 2011 KaB00MI, Inc (referred to herein as KaB00MI) is pleased that Kent Parks, Recreation & Community Services, Kent Parks Foundation and the Tudor Square Neighborhood Council (referred to herein as the Community Partner) has agreed to collaborate with KaB00MI and Humana (referred to herein as the Funding Partner) in the construction of a new playground at Tudor Square Park, 112th Avenue SE &SE 268th Street, Kent, WA 98030 (the"Project") This Community Partner Playground Contract, which sets forth the Community Partners obligations in connection with the Project and certain matters on which the parties have agreed, volt, when executed by the duly authorized representatives of each party, supersede any prior agreements and represent the complete legally binding agreement between the parties regarding the Project 1, Obligations of the Community Partner The Community Partner shall work with KaB00MI and the Funding Partner as well as community residents to design, plan and build the Project By executing this contract, the Community Partner is unconditionally agreeing to each of the following obligations, in each case meeting the requirements provided by KaB00MI (a) Fundraising In support of the Project,the Community Partner must contribute$8,500 00 to KaB00MI,which will apply the funds directly to the purchase of playground equipment KaB00MI will invoice the Community Partner for such amount promptly following the execution of this contract which amount must be paid in full at least thirty (30)days prior to the Project's Build Day(as defined below) (b) Project Site. (i) Ownership At the time of execution of this contract, the Community Partner shall provide KaB00MI with proof of land ownership evidenced by either a deed granting title to the property to the Community Partner or a letter from the property owner showing approval for the Project 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 KaB00MI and/or the Funding Partner (u) Permits Prior to Budd Day, the Community Partner shall obtain all necessary permits and licenses regarding the installation, possession and use of the playground in compliance with applicable laws and regulations (m) Preparation The Community Partner shall ensure that the Project site is safe for volunteers and children, which responsibility includes (1)recruiting fifteen (15)adult volunteers to participate in preparation activities two to three days prior to Build Day playground installation, (2) preparing the site for the installation of the Project at least two weeks before Build Day, which includes removing existing playground equipment, footers and safety surfacing, grading the land, removing fencing and performing soil tests, (3)conducting up to two utility checks as reasonably requested by KaB00MI with the appropriate utility companies, with the first test being completed within two weeks of Design Day and with all utility check documentation provided to the KaB00MI Project Manager upon completion, and (4) conducting up to two soil site tests as reasonably requested by KaB00MI, with the first test being completed within two weeks of Design Day and with all soil check documentation provided to the KaB00MI Project Manager upon completion The Community Partner is responsible for undertaking any necessary risk mitigation should the soil be deemed unsafe for children and volunteers (iv) Safety and Security The Community Partner shall ensure the security of equipment,tools, supplies and well being of the adults and children from the beginning of the preparation activities until the conclusion of Build Day,including any postponement (v) Maintenance Maintenance of the playground facility and supervision of its use is the sole responsibility of the Community Partner The Community Partner shall collaborate with KaB00MI during the Project planning process to develop a maintenance program for the playground and,with the support of the property t S owner (if owner is a separate parry), shall maintain the playground and the property before and after the build to ensure a safe and attractive playspace In furtherance of the foregoing, in the event any playground included in the Protect no longer is permitted for any reason to be located at its original site of construction or such site is no longer controlled by the Community Partner for any reason, then the Community Partner promptly shall notify KaBOOM1 following its becoming aware of such situation and shall, at the Community Partner's sole cost and expense, take such steps as may be necessary to promptly and safely relocate the playground equipment(including any permanent signage and other fixtures)to an alternate site that serves children or to ensure that the successor controlling person of such site shall continue to make such playground available to children in the same manner contemplated as of the Build Day and maintain (or permit the Community Partner to maintain) such playground in accordance with the maintenance program In addition, the Community Partner shall accept and maintain engineered wood fiber as playground safety surfacing, meeting standards established by Consumer Product Safety Commission guidelines, for the lifetime of the playground Guidance and materials for the purpose of developing a maintenance plan for the playground are available, upon request, from the playground equipment and safety surfacing manufacturers, including Playworld Systems, Inc (vi) Adult Fitness Equipment Stations The Community Partner has agreed to accept three(3)Adult Fitness Equipment Stations as part of this playspace project and has agreed to 1)work with their KaBOOMI Project Manager to coordinate the installation and pouring of three(3) 15'x 15'concrete pads to accommodate the stations at least two(2)weeks prior to Build Day at the cost of the Funding Partner, 2)identify which three (3)stations will be included within the scope of this project from Playworld Systems, Inc's line of LifeTrail@ or ENERGIO(as designated by KaBOOMI and the Funding Partner)equipment at Design Day,3)develop and implement a maintenance plan appropriate to the site and usage that will include regular(to be determined by Community Partner based on usage) and specified safety checks of the physical space and equipment (c) Design Day The Community Partner agrees to host a KaBOOM'-facilitated "Design Day" with at least twenty (20) adult volunteers and twenty (20) children Such adult volunteers shall remain engaged in the planning activities throughout the Project's planning process (d) Build Day The Community Partner shall recruit 125 adult volunteers from the community to participate in a one- day installation event for the Project, which is scheduled to occur on 10/19/2011 and which is referred to herein as the Build Day On the Build Day, the Community Partner shall provide food, water, tools, a dumpster, music and restroom facilities for all volunteers (a) Promotion The Community Partner will seek prior approval from KaBOOMI and/or the Funding Partner for any materials that reference the Project or contain the logos or other intellectual property of KaBOOMI and/or the Funding Partner, including press releases, fliers and promotional materials The Community Partner shall collaborate with KaBOOMI and the Funding Partner to secure media coverage (f) Signage The Community Partner shall allow the names and logos of KaBOOMI and the Funding Partner to be displayed on permanent playground signage, which shall be substantially in the form provided to the Community Partner during the application process and shall be 12%inches wide by 30%inches tall and mounted on poles in a mutually agreed location (g) Playground Costs The Community Partner is solely responsible for and shall hold KaBOOMI and the Funding Partner harmless from any costs beyond the proposed Project budget, including costs incurred by the Community Partner for any prior site preparation, upgrades or improvements or any equipment or materials purchased to supplement those secured by KaBOOMI (h) Warran The playground equipment and the safety-surfacing related to the Project may be covered under warranty by the applicable manufacturers, a copy of which warranty may be obtained, upon request, from such manufacturers The Community Partner acknowledges that any warranties and/or guarantees on any equipment or material are subject to the respective manufacturers terms thereof, and the Community Partner agrees to look solely to such manufacturers for any such warranty and/or guarantee Neither KaBOOMI nor the Funding Partner nor any of their respective affiliates, directors, officers, managers, partners, members, shareholders, employees, agents or representatives, have made nor are in any manner responsible or liable for any s representation,warranty or guarantee, express or implied, in fact or in law, relative to any equipment or material, including its quality,mechanical condition or fitness for a particular purpose (1) Insurance Kent Parks, Recreation & Community Services is self-insured and is responsible for providing coverage for its own employees and against liability for bodily injury, death and property damage that may arise out of or be based on the use of the playground at"Community Partner location", from 7 (seven) calendar days before the Build Day and for a minimum of one year afterward, in each case, in amounts not less than one million dollars ($1,000,000) This self-insurance shall be primary over any other insurance covering KaBOOMI and its funding partners Q) Indemnification The Community Partner shall indemnify and hold harmless KaBOOMI,the Funding Partner and their respective affiliates, directors, officers, managers, partners, members,shareholders,employees, agents and representatives from any and all losses, liabilities, claims, actions, fees and expenses (including interest and penalties due and payable with respect thereto and reasonable attorneys' and accountants'fees and any other reasonable out-of-pocket expenses incurred in investigating, preparing, defending or settling any action), including any of the foregoing ansing under, out of or in connection with any breach of this contract any actions associated with this Project or resulting from the use of any playground property and equipment, including those for personal injury, death, or property damage, except to the extent resulting from the willful misconduct of such indemnified person This provision shall survive any termination or expiration of this contract 2. Obligations of KaBOOMI (a) Playground Build KaBOOMI shall provide technical and organizational leadership and guidance for the Project and shall (i) Coordinate Funding Partner participation, facilitate playground design, including regular planning meetings, and work with vendors to procure equipment and materials in a timely manner, except to the extent that safety surfacing other than engineered wood fiber is used, which shall be procured by the Community Partner (u) 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 on the Build Day (iii) Lead the Build Day activities, including the coordination of Build Day captains and volunteers (iv) Provide educational and promotional materials to support the Project, including the KaBOOMI Tool Kit(a 4- book set), KaBOOMI online Playground Planner,nametags and other general supplies (b) Inspection, KaBOOMI, in collaboration with the Community Partner, will secure a Certified Playground Safety Inspector to review the playground structure at the conclusion of the Build Day (or, if KaBOOMI assumes responsibility for the playground construction going beyond one day, at the conclusion of the installation) to ensure that the structure is safe and built to all appropriate standards and guidelines, unless the Build Day is not completed on the Build Day due to failure of the Community Partner, in which case the Community Partner shall secure the Certified Playground Safety Inspector (c) Promotion KaBOOMI will provide proposed promotional materials relating to the Project for the Community Partner's review and approval,which approval shall not be unreasonably withheld or delayed (d) Build Guild KaBOOM1 will place the playground on the roster of KaBOOMI Build Guild and KaBOOMI will send information to the Community Partner on playground maintenance programming and enhancements 3. Build Day Postponement The Build Day shall not be postponed except when weather or other conditions jeopardize the safety of the volunteers or threaten the structural integrity of the playground The decision to postpone the Build Day will be made by majority agreement of the representatives of KaBOOMI,the Community Partner and the Funding Partner, except where such decision must be made by KaBOOMI on the construction site and representatives of the Community Partner and the Funding Partner are not available for consultation In the event that the Build Day is postponed, KaBOOMI, the Community Partner and the Funding Partner shall develop a plan for rescheduling the Build Day at the next earliest date possible for each party and for allocating additional expenses related to the rescheduled Build Day In the event that the date of the Build Day is cancelled or changed solely by the Community Partner, the Community Partner shall be liable to KaBOOMI and the Funding Partner for any equipment costs, labor, and materials and any additional expenses related to the Protect,such as travel expenses and general supplies 4 Funding Partner Relations KaBOOMI has a separate contract with the Funding Partner pursuant to which the Funding Partner has agreed to provide financial and human resources for the Protect In recognition of the Funding Partner's contribution of such resources, the Funding Partner shall receive first placement on any recognition materials developed for the Protect, including playground signage, banners, T-shirts, press releases, web site and newsletter stories and Flyers and the Community Partner shall not solicit sponsors or donors in relation to the Protect whose products or services directly compete with the products or services of the Funding Partner as identified to the Community Partner by KaBOOMi and/or the Funding Partner In the event the Community Partner solicits other sponsors or donors then the Community Partner shall not permit such sponsors or donors to compete with the Funding Partner for signage and sponsorship recognition 5. Termination. In the event that the Community Partner fails to make the payments required under Section 1(a) or otherwise breaches this contract, KaBOOMI may terminate this contract upon written notice to the Community Partner of such termination Furthermore, if either party is delayed or prevented from fulfilling any of its obligations hereunder by any cause beyond its reasonable control, including acts of God, acts or omissions of civil or military authorities, fire, strike, flood, riot, act of terrorism, war, transportation delay, or inability due to such causes to obtain required labor, materials or facilities, such party shall not be liable hereunder for such delay or failure and either party may terminate this contract if the other is unable to perform any obligation hereunder for a period longer than ten (10)calendar days due to such force majeure event, in which case KaBOOM1 shall refund to the Community Partner any amounts paid to KaBOOM1, less expenses already committed and/or incurred prior to the date of such termination If, upon termination as provided herein, the sum due KABOOMI by Community Partner exceeds the sum paid to KaBOOMI hereunder, Community Partner shall pay KaBOOMI for any such additional sum due upon presentation of appropriate documentation within thirty(30)days of invoice Except as set forth above, upon any termination, this contract shall become void and have no effect, and no party shall have any liability to the other party, except that nothing herein will relieve any party from liability for any intentional breach of this contract prior to such termination 6. General Provisions The Community Partner represents to KaBOOMI that all information provided by it to KaBOOM1, including in the Playground Profile Application, is true, correct and complete in all respects and does not omit any information relevant to the Protect Each party has all requisite power and authority, including any necessary approval by its governing body,to execute and deliver this contract,and to perform its obligations hereunder This contract may not be assigned or transferred by either party without the prior written consent of the other party hereto This contract shall inure to the benefit of and be binding upon the parties hereto, their respective successors and permitted assigns, and where expressly stated, their affiliates and representatives This contract shall be governed by and construed under the laws of the State of New York, without regard to conflicts of laws principles to the extent that the application of the laws of another jurisdiction would be required thereby This contract may be altered, modified or amended only by a written document signed by both parties This contract may be executed in two or more counterparts, each of which shall be an original and all of which, when taken together, shall constitute the same agreement and may be delivered by facsimile or electronic mail transmission with the same force and effect as if originally executed copies hereof were delivered Any notices required or permitted to be given hereunder shall be sent by certified or registered United States mail, postage prepaid, by personal delivery addressed to the applicable party or by facsimile or electronic mail transmission (the receipt of which is confirmed) at the address set forth under such parry's signature below By executing this Community Partner Playground Contract where indicated below, each of KaBOOMI and the Community Partner agrees,as of the date identified above,to be legally bound by all of the terms and provisions set forth above City of Ke7 KaBOOM!, Inc. By Nam a ooke By: Ti yor Name Gerry Megas ess Title Chief Financial Officer 220 4th Avenue South Address: Kent,WA 98032 4455 Connecticut Avenue, NW,Suite B100 T. (253)856-5113 Washington, DC 20008 F. (253)856-6050 T (202)464-6075 F (202)659-0210 e-mail hzimmerman@kaboom org Kent Parks Foundation Tudor Square Neighborhood Council ByJ By and Sandr Pedersen seph empf Marilyn Nelson Executive Director Co Chairperson Co Chairperson Address- P 0 Box 26 Kent,WA 98035 T (253)653-8298 T: (253)854-4205 email sapederson11@msn com email ioe kempf@comcast net Contact information for the person who should receive KaBOOM! invoices: Name Victona Andrews Telephone number (253)856-5113 Mailing Address: 220 4th Avenue South Email vandrews@ci kent wa us Kent,WA 98032 (253)856-6050 i By executing this Community Partner Playground Contract where Indicated below,each of KaBOOMI and the Community Partner agrees,as of the date xlennhed above,to be legally bound by all of the terms and provisions set forth above. City of Kent WOW,Inc. By' By: Nam® Suz tie Cooke Name: Ge Tnle� Title Chief Fin cial tc dd a Address 220 40,Avenue South 4455 Connecticut Avenue,NW,Suite 8100 Kent,WA 98032 Washington,DC 20008 T,(253)856.6113 T-(202)464-6075 F:(253)856-6050 F:(202)659-0210 e-mail:hzlmmerman kaboom.oro Kent Parks Foundation Tudor Square Neighborhood Council I By: Aph d Sanda Pedersen mpf Marilyn NelsonExecutive Director erson Co-Chairperson I ddress: P.C.Box 26 Kent,WA 98036 T:(253)6M-8298 T:(253)854-42O5 email sapedersenllQmsncom emall.)oe,kempf@comcast,nel Contact Information for the person who should receive KaBOOMl invoices: Name;Victoria Andrews Telephone number.(253)856.5113 Malling Address; Email- vandrews@ctkent,wa.us 220 401 Avenue South Kent WA 98032 (253)856.606D Z0/ZO 3E)Vd 2beE 3610iS Sdn 3H1 CZSESI£ZL6 IP:LI II03/ZZ/80 \ REQUEST FOR MAYOR'S SIGNATURE v K� 0 T Please Fill in All Applicable Boxes W�SNIFGTOM Routing Information (ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT) Originator: Victoria Andrews Phone (Originator): X. 5113 Date Sent: August 24, 2011 Date Required: September 7, 2011 Return Signed Document to: Victoria CONTRACT TERMINATION DATE: Life cycle of _ playground VENDOR NAME: KaBOOM DATE OF COUNCIL APPROVAL: September 6, 2011 Brief Exi;lanation of Document: Attached are five (5) copies of the KaBOOMI playground grant contract. Each participating organization will receive a copy of the contract with original signatures: the city (2 copies), Kent Parks Foundation, Tudor Square Neighborhood Council and KaBOOM. \ The contract was reviewed by Kathy Hardy from the Law Department. All Contracts Must Be Routed Through The Law Department p (This area to be completed by the L Department) / Received: 9/7�/i / Approval of Law Dept.: ((JJ Law Dept. Comments: i�t Date Forwarded to Mayor: cl-Y Or ' Shaded Areas To Be Completed By Administration Staff