Loading...
Community Partners Playground Contract with kaBOOM! a0/Y-22872 r • ' COMUINKTY PARTNERS PLAYGROUND COMTRAC= January 5.,2015 KaBOOM!, Inc. (referred to herein as KaBOOM!) is pleased that Irie Foundation ("Irie Foundation") and the City of Miami Beach (the"City"), (collectively referred to herein as the"Community Partners")have agreed to collaborate with KaBOOM! and JetBlue(referred to herein as the"Funding Partner")in the construction of a new playground at Crespi Park,located at 7801 Crespi Blvd, Miami Beach, FL 33139 (the "Project"). This Community Partners Playground Contract (this "Agreement"), which sets forth the Community Partners' obligations in connection with 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. 1. Obligations of the Community Partners. The Community Partners shall work with KaBOOM!and the Funding Partner as well as community residents to design, plan and build the Project. By executing this Agreement, the Community Partners are unconditionally agreeing to each of the following obligations, in each case meeting the requirements provided by KaBOOM!: (a) Fundraising. In support of the Project, the City must contribute$8,500 to KaBOOM!, which will apply the funds directly to the purchase of playground equipment for the Project. KaBOOM!will invoice the City for such amount promptly following the execution of this Agreement, 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 Agreement, the City shall provide KaBOOM! with proof of land ownership evidenced by either a deed granting title to the property to the City or a letter from the property owner, which in this case is also the City, showing approval for the Project. The City 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 the Funding Partner. (ii) Permits. Prior to Build Day, the City shall obtain all necessary permits and licenses regarding the installation,possession and use of the playground in compliance with applicable laws and regulations. (iii) Preparation. The Community Partners shall ensure that the Project site is safe for volunteers and children. Irie Foundation shall recruit fifteen (15) adult volunteers to participate in preparation activities two to three days prior to Build Day.The City shall fulfill and satisfy the Community Parters' obligations pursuant to this Section(b)(iii)by:(1)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; (2) conducting up to two (2) utility checks as reasonably requested by KaBOOM! with the appropriate utility companies, with the first test being completed on or before Design Day (as defined below) and with all utility check documentation provided upon completion to the KaBOOM! project manager who shall supervise the planning and installation of the playground (the "Project Manager"); and (3) conducting up to two (2) soil site tests as reasonably requested by KaBOOM!, with the first test being completed on or before Design Day and with all soil check documentation provided to the Project Manager upon completion.The City is responsible for undertaking any necessary risk mitigation should the soil be deemed unsafe for children and volunteers. (iv) Safety and Security. The Community Partners 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 City. The City shall collaborate with KaBOOM!during the Project planning process to develop a maintenance program for the playground and shall maintain the playground and the property before 1 and after the Build Day to ensure a safe and attractive play space. In furtherance of the foregoing, in the event any playground equipment included in the Project is no longer permitted for any reason to be located at its original site of construction or such site is no longer controlled by the City for any reason, then the City promptly shall notify KaBOOM!following its becoming aware of such situation and shall, at the City'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 City to maintain) such playground in accordance with the maintenance program. In addition, the City 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. The City will finance, install, and maintain alternative surfacing in the form of rubber tile or pour in place rubber as playground safety surfacing meeting all safety guidelines as established by the American Society for Testing and Materials (ASTM F2223 and ASTM-1292) and the Consumer Product Safety Commission's Handbook for Playground Safety, for the lifetime of the playground. (1) The rubber surfacing must be installed within two (2) weeks following Build Day. (2) The City will identify the surfacing vendor who must meet current safety standards in partnership with the KaBOOM! Project Manager. (3)The City will coordinate delivery and installation of the safety surfacing. (4) The City , with the support of KaBOOM!,will provide site preparation and the required sub-surfacing of asphalt or concrete, for the alternative surfacing as deemed appropriate by the surfacing manufacturer using technical guidance from the KaBOOM! Project Manager. (5)The City will ensure that a representative of the surfacing vendor is coordinating with the KaBOOM! Project Manager pre-build and is present on the Build Day. This will help assure that the representative's specifications are being met before and during the pouring of cement if a new slab is needed. In which case, the representative will approve the plumbness of the decks and the height to which cement is being poured in the holes to avoid potential problems after the playgroundis installed. (6) The City will secure the playground, prohibiting children from playing on it until the surfacing is in place and is safe to play on. (VI) Volunteers/Independent Contractors. The Irie Foundation shall ensure that all volunteers and independent contractors who assist, work or perform any activity at the site in connection with this Project, execute a Release and Hold Harmless Agreement in the form attached hereto and incorporated herein by reference as Exhibit"A". (c) Design Day. The Irie Foundation 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 Irie Foundation shall recruit 100 adult volunteers from the community to participate in a one-day installation event for the Project,which is scheduled to occur on Thursday, March 19,2015 and which is referred to herein as the Build Day. On the Build Day, the Irie Foundation shall provide food, water, and music. On the Build Day,the City shall provide tools,dumpsters,and restroom facilities for all volunteers. (e) Promotion; Intellectual Property. The Community Partners shall seek prior approval from KaBOOM! and/or the Funding Partner for any materials that reference the Project or contain the name, trademarks, service marks, logos and other intellectual property (collectively, and together with all goodwill attached or which shall become attached to any of the them, the "Marks") of KaBOOM! and/or the Funding Partner, including press releases, fliers and promotional materials. The Community Partners acknowledge and agree that each of KaBOOM! and the Funding Partner is the sole owner of all right, title and interest in and to its respective Marks. The parties acknowledge that KaBOOM! and the Funding Partner may take all steps to protect their Marks as they deem appropriate. Any use of the Marks will inure to the sole benefit of KaBOOM! or the Funding Partner (as applicable). The Community Partners shall not use the Marks in any manner that would harm the reputation of 2 KaBOOM! or the Funding Partner or disparage or negatively reflect upon the Marks. Upon expiration of or termination of this Agreement for any reason, the Community Partners shall cease all use of the Marks. The Community Partners shall collaborate with KaBOOM! and the Funding Partner to secure media coverage for the Project. (f) Signage. The City shall allow the names and logos of KaBOOM!, the Irie Foundation, and the Funding Partner as well as its name to be displayed on permanent playground signage, which shall be substantially in the form provided to the Community Partners during the application process and shall be 12 1A inches wide by 30 % inches tall and mounted on poles in a mutually agreed location. (g) Playground Costs. The Community Partners are solely responsible for and shall hold KaBOOM! and the Funding Partner harmless from any costs, as to each of their respective responsibilities under this Agreement, including costs incurred by the City for any prior site preparation, upgrades or improvements or any equipment or materials purchased to supplement those secured by KaBOOM!. (h) Warranty. The playground equipment and the safety-surfacing related to the Project may be covered under warranty by the applicable manufacturers, a copy of which may be obtained, upon request, from such manufacturers. The Community Partners acknowledge that any warranties and/or guarantees on any equipment or material are subject to the respective manufacturer's terms thereof,and the Community Partners agree to look solely to such manufacturers for any such warranty and/or guarantee. Neither KaBOOM! 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 its quality, mechanical condition or fitness for a particular purpose. (i) Insurance. KaBOOM! acknowledges that the City 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 the City-owned original site of construction,from 7(seven) calendar days before the Build Day and for a minimum of one year afterward. This self-insurance shall be primary over any other insurance covering KaBOOM!and its funding partners. The Irie Foundation shall maintain and carry no less than seven (7) days prior to the Build Day and through the first anniversary of the Build Day,in full force in connection with this Agreement,the following insurance: (i) General Liability, in the amount of$1,000,000;and (ii) Workers Compensation&Employers Liability, as required pursuant to Florida Statutes. The insurance must be furnished by insurance companies authorized to do business in the State of Florida. All insurance policies must be issued by companies rated no less than "B+" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. The City, KaBOOM!, and the Funding Partner shall be named as an additional insured under the General Liability policy. The original certificates of insurance must be submitted to the City's Risk Manager for approval (prior to any work and/or services commencing)and will be kept on file in the Office of the Risk Manager. Compliance with the foregoing requirements shall not relieve the Irie Foundation of the liabilities and obligations under this Section or under any other portion of this Agreement. (i)Indemnification. To the extent allowable under Florida Law, and subject to the limitation on the City's liability, as set forth in Section 768.28, Florida Statutes, the City shall indemnify and hold harmless KaBOOM!, 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 arising under, out of or in connection with any breach of this Agreement, any actions associated with this Project or resulting from the use of any playground 3 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 Agreement.The City does not waive any limitations on liability as authorized by Florida Statute 768.28. This paragraph is not intended and does not to convey any rights to third parties. Irie Foundation hereby agree to indemnify and hold harmless the City, KaBOOM!, and the Funding Partner and their respective elected officials, officers, agents and employees, agents and representatives from and against 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 arising under, out of or in connection with any breach of this Agreement or any actions associated with this Project, 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,but shall not apply to events which occur after completion of the Project. 2. Obligations of KaBOOM!. (a) Playground Build. KaBOOM! 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 Partners. (ii) 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 KaBOOM!Tool Kit (a 4- book set),KaBOOM!online Playground Planner,nametags and other general supplies. (b) Inspection. KaBOOM!, in collaboration with the Community Partners, will secure a Certified Playground Safety Inspector to review the playground structure 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) 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 Partners, in which case the City shall secure the Certified Playground Safety Inspector. (c) Promotion. KaBOOM! will provide proposed promotional materials relating to the Project for the Community Partners'review and approval,which approval shall not be unreasonably withheld or delayed. (d) Website Listing. KaBOOM!will place the playground on its list of KaBOOM!builds on the KaBOOM!website and KaBOOM! will send information to the Community Partners 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 KaBOOM!, the Community Partners and the Funding Partner, except where such decision must be made by KaBOOM! 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, KaBOOM!, the Community Partners and the Funding Partner shall develop a plan for rescheduling the Build Day at the next earliest date possible for each party.The Funding Partner shall be responsible for all additional expenses related to the rescheduled Build Day, including, without limitation, equipment, labor and materials,storage and travel costs and expenses;provided, however,that the Funding Partner shall be notified of the estimated amount of such additional expenses in connection with rescheduling of the Build Day. In the event that the Build Day is cancelled or changed, solely and directly related to the City or Irie Foundation's failure to satisfy its 4 respective obligations in connection with the Project,then the City or Irie Foundation,as applicable, shall be liable for all such additional expenses related to the rescheduled Build Day, subject to verification of said additional expenses and for a sum not to exceed$15,000.00. 4. Funding Partner Relations. KaBOOM! has a separate contract 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 signage, banners, T-shirts, press releases, website and newsletter stories, and flyers, and the Community Partners 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 Partners by KaBOOM! and/or the Funding Partner. In the event the Community Partner solicits other sponsors or donors,then the Community Partners 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 City fails to make the payments required under Section 1(a) or the Community Partners otherwise breach this Agreement, KaBOOM! may terminate this Agreement upon written notice to the Community Partners 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 Agreement 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 KaBOOM!shall refund to the City 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 KaBOOM! the by Community Partners exceeds the sum paid to KaBOOM! hereunder, the Community Partners shall pay KaBOOM! 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 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. The Community Partners represent to KaBOOM!that all information provided by it to KaBOOM!, including in the Playground Profile Application, is true, correct and complete in all respects and does not omit any information relevant to the Project. 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 Florida,without regard to conflicts of laws principles to the extent that the application of the laws of another jurisdiction would be required thereby. This 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 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 party's signature below. The Funding Partner shall be an intended third party beneficiary of Sections 1(b), (e), (f), (g), (h), (i)and (j) and Sections 2(b), 3, 4 and 6 of this Agreement and is entitled to enforce its rights under such sections as if it were a party to this Agreement. 5 By executing this Community Partners Playground Contract where indicated below,each of KaBOOM!and the Community Partners agree,as of the date identified above,to be legally bound by all of the terms and provisions set forth above. City of iami Beach KaBOOM!,Inc. _ By: _ By: Narnel. imrny L Morales Name: Gerry i egas Title: •ty Manas er Title: Chief Financ. Offr er Address: Address: 4301 Connecticut Ave.NW,Suite ML-1 City of Miami Beach lino O,n ten OZn4e(D. Washington, DC 20008 T: (202)464-6180 Miami Beach, FL 33139 F: (202)659-0210 e-mail:gmegas @kaboom.orq Phone: Fax: Email: Irie Foundation ATTEST: By: aat � t Name:Shobie Callaghan Rafa' E. ',City lark Title: Managing Director Address: 1410 Sunset Harbour Drive,Suite 210 Miami Beach, FL 33139 Phone:305-986-2325 APPROVED AS TO Fax:954-829-7602 FORM & LANGUAGE Email: shobie@djirie.com & F R EXECUTION City Attorney 'r Dote Contact information for the person who should receive KaBOOM!invoices: Name:Tatiana Escobar Telephone number: Fax number: Mailing Address: Email: TatianaEscobar @miamibeachfl.gov City of Miami Beach 1410 Sunset Harbour Drive,Suite 212 Miami Beach,FL 33139 6 2015 Playground Volunteer Build Day Waiver KaBOOM! PLAYGROUND PROJECT-- VOLUNTEER WAIVER AND RELEASE This form must be signed by or on behalf of each volunteer who will participate in or otherwise be involved with the construction of the Playground Build(the"Playground Build"or the"Project"),resulting from the collaboration of JetBlue,the City of Miami Beach and the Irie Foundation or will be on the construction site of the Playground Build,occurring on Thursday,March 19,2015 at 7801 Crespi Boulevard in Miami Beach,FL 33139. If you are unable to read this print,please speak with the person handling volunteer registration for assistance. The KaBOOM!project and activities will include the playground construction,side projects and play enhancement projects on and in the periphery of the playground construction site including,without limitation,building interiors at or near the site.The"playground construction site"is the physical space where the playground is being installed;the playground construction projects are any activities directly related to the installation and placement of the playground equipment,the mixing of concrete,andlor moving safety surfacing onto the playground site. Volunteers under age 18(or under 19 in AL and NE) may not work on the"playground construction site",as defined above. Volunteers under 18 but who meet this state's minimum age for employment may work on the side projects,such as beautification and play enhancement projects,and other non-playground construction site projects and may help with preparation for the build day only if they have received and delivered KaBOOM!written approval from a parent or legal guardian for participation. Any children under state's minimum age for employment will not be supervised by KaBOOM!in any way or be allowed to participate in playground or non-playground construction projects managed by KaBOOM!;however KaBOOM!will work with the City of Miami Beach and the Irie Foundation to procure supplies for use by these children and to help them plan projects that are occurring on a site that is distinctly separated from the playground construction site. No children under this state's legal working age should be on the playground construction site. I understand that I will be spending the day(s)as a volunteer for the Project and will suits,losses,damages,costs,expenses,and fees,including,without limitation,court be participating at my own risk. I acknowledge that my participation is voluntary and costs and attorneys'fees,of any and every nature of character,including,without does not constitute a condition or requirement of employment. I further acknowledge limitation,for death,personal injury and/or loss of property,whether anticipated or that the Project will occur at a construction site and that the construction site will be a unanticipated,directly or indirectly,whether caused,in whole or in part,by the sole potentially dangerous place. I attest that I am physically fit and prepared for this or concurrent negligence or wrongdoings,strict liability or fault of the Released event and these activities. Parties or otherwise,arising out of or connected in any way with my participation in I will not create an unsafe situation for other individuals or myself nor will I use any the Project or any side projects in connection with the Project. tool or engage in any task with which I am not completely comfortable. I will abide I acknowledge that I have read the foregoing paragraph and know and understand by all applicable federal,state and local laws,as well as the rules and directions of the full contents and effects of it. IF BUILD IS IN CALIFORNIA ADD: I understand the sponsors and coordinators.If I see any situation that I feel is unsafe,I will the full nature,extent,and import of Section 1542 of the California Civil Code and of immediately call it to the attention of KaBOOM!or a safety coordinator. If I bring any the entire release stated in the foregoing paragraph. Accordingly,I waive and children or young adults with me to participate in the Project,I will be solely relinquish,any and all rights or benefits that I may have under the provisions of responsible for providing for their safety and will keep them under close supervision Section 1542 of the California Civil Code,which reads as follows:"A general release at all times.FOR EACH PARTICIPANT UNDER 18(19 in AL and NE),THE does not extend to claims which the creditor does not know or suspect to exist in its PARENT OR GUARDIAN MUST FILL OUT A SEPARATE WAIVER. I understand favor at the time of executing the release,which if known by him must have that a volunteer may be at the Project to provide medical treatment in the event of an materially affected his settlement with the debtor." injury,and if necessary to assist in arranging transportation to medical facilities,but I hereby grant KaBOOM!,JetBlue and City of Miami Beach,Irie Foundation full and acknowledge that neither KaBOOM!nor any other of the Released Parties(as complete permission to use my name and likeness,including any photographs, defined below)are in any way responsible for providing such medical volunteer or videography and interview footage and quotations from me obtained in connection treatment. with the Project(whether or not at the Project Build or otherwise)in legitimate On behalf of myself,as well as my heirs,executors,administrators and assigns,I promotions of the Project and to further the mission and vision of KaBOOM!.in any hereby forever release,discharge,waive and agree to indemnify and hold harmless and all media now known or hereinafter developed without restriction or KaBOOM!,JetBlue,City of Miami Beach,Irie Foundation,Playworld Systems Inc., compensation. and any additional sponsors of the Project,along with their respective officers, I understand that I have given up substantial rights by signing this Waiver and directors,agents,employees,contractors,successors and assigns,and any have signed it freely and voluntarily without any inducement,assurance or volunteers to whom I give my consent to provide medical treatment to me or to any guarantee being made to me and I INTEND MY SIGNATURE TO BE A children or young adults under my supervision("Released Parties"),from and COMPLETE AND UNCONDITIONAL RELEASE of all liability of Released Parties against any and all claims,demands,actions,causes of action,obligations,liabilities,to the greatest extent allowed by law. Adult Volunteer(Age 18+) Volunteer Under Age 18(Or under 19 in AL and NE) I am here to volunteer from: Please fill out a SEPARATE waiver for your child—use this section ONLY _City of Miami Beach(I am a:_staff member/_non-staff member) _Irie Foundation Local Community JetBlue Signature of Parent or Legal Guardian of Participant Signature of Participant Date Printed Name of Participant Printed Name of Parent or Legal Guardian Do you affirm that your child or dependent meets this state's minimum age Address requirements for employment? ❑Yes,my child may volunteer ❑No,my child cannot volunteer City State Zip Printed Name of Child Participant Date ❑ I would not like to receive information about KaBOOM!in the future.