Loading...
HomeMy WebLinkAboutPK13-040 - Original - KaBoom! - Turnkey Park Playground Expansion - 02/05/2013 Records Mam!A`-- -`-g-'em &d1b KENT Document WASHINGTON CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to City Clerks Office. All portions are to be completed. If you have questions, please contact City Clerk's Office. Vendor Name: KaBooml Vendor Number: 387348 JD Edwards Number Contract Number: 0�/, �3-oyo This is assigned by City Clerk's Office Project Name: Turnkey Park Playground Expansion Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract ❑ Other: Contract Effective Date: 02/05/13 Termination Date: 12/31/13 Contract Renewal Notice (Days): Number of days required notice for termination or renewal or amendment Contract Manager: Brian Levenhagen /-i—_ Department: Parks Planning & Dev. Detail: (i.e. address, location, parcel number, tax id, etc.): Construction of a new playground and community garden at Turnkey Park, 23312 100th Ave. SE, Kent, WA 98031 5 5 Pub lic\Records Management\Forms\ContraCtCOver\adcc7832 1 11/08 4 r A:,t COMMUNITY PARTNER PLAYGROUND CONTRACT os February 5,2013 KaB00M!,Inc.(referred to herein as KaB00Ml)is pleased that Kent Parks,Recreation and Services and the Kent Parks Foundation(referred to herein as the Community Partner)has agreed to collaborate with KaBOOMI and The Walt Disney Company(referred to herein as the Funding Partner)in the construction of a new playground and community garden at Turnkey Park 23312100th Ave.SE,Kent,WA 98031(the"Project"). This Community Partner Playground Contract(referred to at times as"this agreement"),which sets forth the Community Partner's obligations in connection wth the Project and certain matters on which the parties have agreed,will,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. j 1. Obiioabons of the Community Partner. The Community Partner shall work with KaBOOM!and the Funding Partner as well as community residents to design,plan and build the Project By executing this contract,the to each of the following obligations,in each case meeting the Community Partner is unconditionally agreeing g g 9 requirements provided by KaB00M!: (a) Fundraising. In support of the Project,the Community Partner must contribute$MQQ to KaB00M!, which will apply the funds directly to the purchase of playground equipment and other materials related j to the Project. 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 30 days prior to the Projects'Build Day(as defined below). • (b) Project Site. (i) Ownership. At the time of execution of this agreement,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 KaB00M!and/or the Funding Partner. (11) Permits. The Community Partner shall obtain all necessary permits and licenses regarding the installation,possession and use of the Project prior to Budd Day in compliance with local and state laws,regulations and guidelines (Ili) Preparation. The Community Partner shall ensure that the playground site is safe for volunteers and children,which responsibility includes,without limitation: (1)recruiting 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 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 sod 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 KaB00Ml,with the first test being completed within two weeks of Design Day and with all soil check documentation provided to the KaBOOMr 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 is responsible for ensuring 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 i • (v) Maintenance Maintenance of the playground and garden facility and supervision of its use is the sole responsibility of the Community Partner. The Community Partner shall collaborate with KaBOOMI during the Project planning process to develop a maintenance program for the Project and,with the support of the property owner(if owner is a separate party),shall maintain the Project 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 Project 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 KaBOOMI following its becoming aware of such situation and shall,at the Community Partners sole cost and expense,take such steps as may be necessary to promptly and safely relocate the playground equipment(including any pennanent 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 Budd 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 I Playwodd Systems,Inc. (c) Design Day. The Community Partner agrees to host a KaBOOM!-facilitated'Design Day"with at least 20 adult volunteers and 20 children. Such adult volunteers shall remain engaged in the planning activities throughout the Program'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 Friday.May 31,2013 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. (e) Promotion. The Community Partner will seek prior approval from KaBOOM!and/or the Funding Partner for any materials that reference the Project or contain the logos or other intellectual property of KaBOOMc and/or the Funding Partner,including,without limitation,press releases,fliers and promotional materials. The Community Partner shall collaborate with KaBOOM!and the Funding Partner to secure media coverage. (f) Sionage. The Community Partner shall allow the names and logos of KaBOOM!and the Funding Partner to be displayed on permanent Project scgnage,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 in a mutually agreed location on poles. (g) Playground Costs The Community Partner is solely responsible for and shall hold KaBOOM!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 KaBOOMr 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 representation,warranty or guarantee, express or implied,in fact or in law,relative to any equipment or material,including,without limitation, its quality,mechanical condition or fitness for a particular purpose • • (I) Certain Community Partner Actions. KaBOOMI(in collaboration with the Community Partner)shall secure a Certified Playground Safety Inspector('CPSIJ to inspect the playground project(including the playground and its property,equipment and safety surfacing)to determine whether the playground project is safe and built to all applicable standards and guidelines. The Community Partner(i)shall acknowledge that neither KaBOOMI nor the Funding Partner,nor their respective officers,directors, employees,or agents,have made or are in any way responsible or liable for any action,inaction or negligence of the CPSI,(u)shall,following the CPSI's determination,thereafter take complete responsibility for the playground project,including but not limited to securing its overall safety and soundness,(iii)shall determine whether any applicable laws or regulations apply to the community garden portion of the Protect arid,if so,shall(in collaboration with KaBOOMI and Funding Partner) identify the method of compliance therewith no later than the Design Day,and,from and after the Build Day,shall take complete responsibility for the community garden portion of the Project,and(iv)shall indemnify,defend and hold harmless the Funding Partner,its Affiliates and the officers,directors, employees,agents,successors and assigns of each,from and against any and all Claims arising out of, based on or otherwise related to the playground project(including the playground and its property, i equipment and safety surfacing) �) Insurance The Community Partner shall obtain and maintain from the date of this agreement and for a minimum of one(1)year thereafter worker's compensation insurance policies and commercial general liability insurance(providing coverage against liability for bodily injury,death and property damage that may arise out of or be based upon the use of the playground or the garden),in each case in amounts not less than one million dollars($1,000,000). At the time of execution of this agreement,the Community Partner shall provide to KaBOOM!a copy of a certificate from its insurer indicating the nature,scope,duration and amount of insurance coverage,and naming KaBOOMI and the Funding Partner as additional insureds under such policy,which insurance shall be primary over any other insurance covering KaBOOM!and the Funding Partner and which policy shall provide that KaBOOMI • and the Funding Partner be given at least thirty(30)days'prior written notice of any change or cancellation of coverage. (k) 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),expenses(including attorney's fees and disbursements)in each case that are due and payable,including any of the foregoing arising under,out of or in connection with any actions associated with this Project or resulting from the use of any playground property and equipment and/or garden 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 agreement. 2. Obligations of KaBOOMI. (a) Playground Build. KaBOOMI shall provide technical and organizational leadership and guidance for the Project and shall: (I) Coordinate the Funding Pariner's 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. (11) 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 • i 3 • (N) Provide educational and promotional materials to support the Project,including the KaB00M!Tool Kit(a 4-book set),KaB00Mi online Playground Planner,nametags and other general supplies. (b) Ins_pection. KaB00MI,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 KaB00MI 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 KaB00MI 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 KaB00Ml will place the playground on the roster of KaB00Mr Build Guild and KaB00M! 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 KaB00M!,the Community Partner and the Funding Partner,except where such decision must be made by KaB00MI 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,KaB00Ml,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 Budd Day is cancelled or changed solely by the Community Partner,the • Community Partner shall be liable to KaB00Ml and the Funding Partner for any equipment costs,labor,and materials and any additional expenses related to the Program,such as travel expenses and general supplies. 4. Funding Partner Relations. KaB00MI has a separate agreement with the Funding Partner pursuant to which the Funding Partner has agreed to provide financial and human resources for the Project. 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 Project,including playground and garden 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 Project whose products or services directly compete with the products or services of the Funding Partner as identified to the Community Partner by KaB00M! 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)of this agreement,KaB00MI may terminate this agreement 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,without limitation,to Acts of God,acts or omissions of civil or military authorities of a state or nation(including,without limitation,legal enactments,government orders or regulations),fire,labor dispute,lockout,strike,breakdown of origination or transmission facilities,interruption or preemption due to an event of overriding public interest or importance,flood,not,act of terrorism(including,without,limitation safety or security measures relating thereto),national emergency,war(whether declared or undeclared),delay of transportation or any other cause beyond the reasonable control of the party affected thereby,or inability due to any of the aforementioned or similar causes to obtain necessary labor,materials or facilities,such party shall not be liable hereunder for such delay or failure and either party may terminate this agreement if the other is unable to perform any obligation hereunder for a period longer than ten calendar days due to such force majeure • 1 event,in which case KaBOOMI shall refund to the Community Partner any amounts paid to KaBOOM!,less expenses already committed and(or incurred prior to the date of such termination If,upon termination as provided herein,the sum due KABOOMr by Community Partner exceeds the sum paid to KaBOOM! hereunder,Community Partner shall pay KaBOOMr for any such additional sum due upon presentation of appropriate documentation within 30 days of invoice Except as set forth above,upon any termination,this agreement 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 agreement prior to such termination 6 General Provisions Each party has all requisite power and authority,including any necessary approval by its governing body,to execute and deliver this agreement,and to perform its obligations hereunder This agreement may not be assigned or transferred by either party without the prior written consent of the other party hereto.This agreement 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 agreement 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 letter agreement may be altered,modified or amended only by a written document signed by both parties. This agreement 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 onginally 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 party's signature below. • • • By executing this Community Partner Playground Contract where indicated below,each of KaBOOM!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 Kent Parks,Recreation and Services KaBOOMI,Inc. By; By: me: JeFi* Name. e e s C�lrzc�-dv Title: Chief Fi ial D er Address- Address. City of Kent 4301 Connecticut Ave.Suite ML-1 P.253-856-5113 Washington,DC 20008 T:(202)464-6075 P(202)659-0210 e-mail.hzimmerman(akaboom.orn Kent Parks Foundation By: Name.S ndra Pederson Title:Executive Director,Kent Parks Foundation Address: 200th 4th Street Ave.South,Kent,WA 98032 T:253-653-8298 sapederson11 @msn.com Contact information for the person who should receive KaBOOMI invoices: Name:Victoria Andrews Telephone number,253-856-5113 Mailing Address: Email. vandrews@kentwa.gov 29M 4th&te M%,-Seuth,Kent,WA 98032 • t I