COMMUNITY PARTNER AGREEMENT
April 26, 2022
KABOOM!, Inc. (referred to herein as KABOOM!) is pleased that the City of Anaheim (referred to herein as the Community Partner) has agreed to collaborate with KABOOM! and the Anaheim Ducks (referred to herein as the Funding Partner) in the construction of a new playspace at Center Greens, 305 E. Broadway, Anaheim, CA 92805 (the “Project”). This Community Partner Agreement (this “Agreement”), which sets forth the Community Partner's obligations in connection with the Project and certain matters on which the parties have agreed, will, when executed by the duly authorized repr esentatives of each party, supersede any prior agreements and represent the complete legally binding agreement between the parties regarding the Project. The Community Partner acknowledges and agrees that a major source of funding for the Project is a contribution from the Funding Partner. In the event that such a contribution is not funded, then this agreement shall immediately terminate upon written notice thereof from KABOOM!.
1. Obligations 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 Agreement, the Community Partner is unconditionally agreeing to each of the following obligations, in each case meeting the requirements provided by KABOOM!:
(a) Contribution. In support of the Project, the Community Partner has agreed to contribute $180,000 to KABOOM!, which will apply the funds to the purchase of playground equipment and other direct project costs (“Contribution Amount”). The Director or designee is authorized to approve additional funding, which in no event shall exceed up to an amo unt equal to twenty percent ( 20%) of the Contribution Amount. KABOOM! will invoice the Community Partner 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 Week (as defined below). If, for any reason related to construction or Community Partner responsibilities, the project is delayed until 2023, the Community Partner agrees to pay any increased equipment and surfacing costs.
(b) Project Site.
(i) Ownership. At the time of execution of this Agreement, the Community Partner shall provide KABOOM! 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 playspace in its entirety, for the lifetime of the product, including the equipment and/or safety surfacing at the time purchased by KABOOM! and/or the Funding Partner. (ii) Permits. Prior to Build Week, the Community Partner shall obtain or cause to be obtained all necessary permits and licenses regarding the installation, possession, and use of the playspace in compliance with applicable laws and regulations.
(iii) Preparation. The Community Partner shall ensure that the Project site is safe for volunteers and children, which responsibility includes: (1) preparing the site for the installation of the Project at least two weeks before Build Week, which may include removing existing equipment, footers, and safety surfacing, grading the land, repairing existing surfacing and removing fencing (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 equipment (the “Project Manager”); and (3) conducting up to t wo (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 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 Week, including any postponement. This includes designating a Community Partner staff member or volunteer to serve as the safety leader onsite. This safety leader will register volunteers, ensure they have signed waivers, ensure they wear required cloth face coverings, ask that they leave the project site if exhibiting symptoms of illness , and post signage for the project from the CDC (a copy of which has been provided).
(v) Maintenance. Maintenance of the facility and supervision of its use is the sole responsibility of the Community Partner. The Community Partner shall collaborate with KABOOM! during the Project planning process to develop a maintenance program (a copy of which has been provided) for the play equipment and, with the support of the property owner (if owner is a separate par ty), shall maintain the equipment and the property before and after the Build Week to ensure a safe and attractive playspace. In furtherance of the foregoing, in the event any equipment included in the Project no longer is permitted for any reason to be l ocated 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 KABOOM! following its becoming aware of such situation and shall, at the Community Pa rtner's sole cost and expense, use its best efforts to take such steps as may be necessary to promptly and safely relocate the equipment (including any permanent signage and other fixtures) to an alternate site that serves children or shall use its best efforts to ensure that the successor controlling person of such site shall continue to make such equipment available to children in the same manner contemplated as of the Build Week and maintain (or permit the Community Partner to maintain) such play equipme nt in accordance with the maintenance program. Guidance and materials for the purpose of developing a maintenance plan for the playground are available, upon request, from the play equipment and safety surfacing manufacturers.
The Community Partner shall accept and maintain alternative surfacing in the form of rubber tile or pour in place rubber as playground safety surfacing, meeting standards established by the American Society for Testing and Materials (ASTM F2223 and ASTM -1292) and the Consumer Produc t Safety Commission’s Handbook for Playground Safety, for the lifetime of the playground. (1) The resilient surfacing must be installed within two (2) weeks following Build Week. (2) KABOOM! will identify the playground and safety surfacing vendor who must meet current safety standards in partnership with the Community Partner. (3) KABOOM! will coordinate the order, delivery, and installation of the playground and safety surfacing in partnership with the Community Partner. (4) The Community Partner, with support of KABOOM!, will provide site preparation and the required sub-surfacing of asphalt or concrete, for the alternate surfacing as deemed appropriate by the surfacing manufacturer using technical guidance from the KaBOOM! Build Manager. (5) KABOOM! will ensure that a representative of the surfacing vendor is coordinating with the KABOOM! Build Manager pre-build and is present during the Build Week. This will help assure that the representative’s specifications are being met before and during the pouring of cement. 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 playground is installed. (6) The Community Partner will secure the playground, prohibiti ng children from playing on it until the surfacing is in place and is safe to play on.
(c) Design Day. In the event Public Health guidelines and public health conditions permit public gatherings, the Community Partner agrees to host a KABOOM! facilitated Design Day event with at least twenty (20) adult volunteers and twenty (20) youth. Such adult volunteers shall remain engaged in the planning activities throughout the Project’s planning process.
In the event Public Health guidelines and public health conditions do not permit or preclude public gatherings, the Community Partner agrees to participate in KABOOM! facilitated Design events remotely and virtually.
The Community Partner will recruit at least twenty (20) adult volunteers and twenty (20) youth. Such adult volunteers shall remain engaged in the planning activities throughout the Project’s planning process. (d) Build Week. The Community Partner shall recruit 40-60 community volunteers, approximately 10-25 per day, to participate in a 3-4 day installation event for the Project , which is scheduled to occur in September 2022 and which is referred to herein as the Build Week . The Community Partner shall ensure that all volunteers sign a waiver (a copy of which has been provided). During the Build Week, the Community Partner shall provide food, water, tools, dumpsters, music , hand washing and/or hand sanitizing facilities , and restroom facilities for all volunteers on each day. If, for any reason, the project is delayed until 2023, it must occur by March 31, 2023.
(e) Promotion; Intellectual Property. The Community Partner 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 Partne r acknowledges and agrees 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 Partner shall not use the Marks in any manner that would harm the reputation of 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 Partner shall cease all use of the Marks. The Community Partner shall collaborate with KABOOM! and the Funding Partner to secure media coverage for the Project.
(f) Signage. The Community Partner shall allow the names and logos of KABOOM! and the Funding Partner to be displayed on permanent signage (a copy of which has been provided), and shall be no greater than 19 ½ inches wide by 30 ¼ inches tall and mounted on poles in a mutually agreed location. If applicable, t he Community Partner shall allow individual instructional signs to accompany the equipment. (g) Costs. The Community Partner is solely responsible for and shall hold KABOOM! and the Funding Partner harmless from any 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 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 will be provided by KaBOOM!). The Community Partner acknowledges that any warranties and/or guarantees on any equipment or material are subject to the respective manufacturer’s terms thereof, and the Community Partner agrees 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. The Community Partner 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 f or 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 and non-contributing with any o ther insurance covering KABOOM! and its funding partners.
(j) Indemnification. The Community Partner 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), i ncluding 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 play property and equipment, including those for personal injury, death, or property damage, except to the extent resulting from the gross negligence or willful misconduct of such indemnified person. This provision shall survive any termination or expiration of this Agreement.
(k) Data and Reporting Requirements. The Community Partner shall distribute and complete play-related surveys, provided by KABOOM!, to its stakeholders, including parents/caregivers, volunteers, staff and board members (i) promptly following the execution of this agreement (ii) 2 weeks following the completion of the Project (iii) 12 months after the completion of the Project.
(l) Code of Conduct. The Community Partner agrees to comply with the build site rules (a copy of which has been provided). The Community Partner shall allow the build site rules to be displaye d on site and communicate and enforce the build site rules for all participants in the Project's Design Day and Build Week events.
(m) Post-Build Week. The Community Partner shall use its commercially reasonable efforts to provide, and otherwise shall cooperate in good faith with KABOOM! regarding obtaining, such other information related to the Project as KABOOM! from time to time may request.
2. Obligations of KABOOM!.
(a) Project. KABOOM! shall provide technical and organizational leadership and guidance for the Project and shall:
(i) Coordinate Funding Partner participation, facilitate design, including regular planning meetings, and work with vendors to procure playground and safety surfacing equipment and materials in a timely manner,. (ii) On the behalf of and in collaboration with the Community Partner, KABOOM! shall manage construction logistics for the Project, coordinate site preparation activities with the Community Partner, inventory equipment and materials, and assure that the necessary small hand tools and materials and other general supplies are available on the Build Week; Lead the Build Week activities, including the coordination of Build Week volunteers.
(iii) Make available certain educational and promotional materials related to the Project. (b) Inspection. KABOOM!, in collaboration with the Community Partner, will secure an Installation Supervisor to review the structure at the conclusion of the Build Week to ensure that the structur e is safe and built to all appropriate standards and guidelines, unless the installation is not completed during the Build Week due to failure of the Community Partner, in which case the Community Partner shall secure the Installation Supervisor.
(c) Promotion. KABOOM! 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) Website Listing. KABOOM! will place the playspace on its list of KABOOM! builds on the KABOOM! website, and KABOOM! will send information to the Community Partner on maintenance programming and enhancements.
3. Build Week Postponement.
(a) COVID-19 Public Health Compliance . The Project Manager will monitor public health guidelines and local conditions to ensure adherence to public health safety at specific timelines prior to Build Week. If the project does not meet requirements, KABOOM!, the Funding Partner, and the Community Partner will agree on a
postponement date at least 1 month later than the original Build Week and if health indicators allow project completion. If health indicators do not allow project completion within close to the originally scheduled date, project will be rescheduled on a mutually agreed upon date or converted to a professional installation with no volunteers participating in building the playspace.
(i) If a project does not meet requirements at 6 weeks out, the design process will be completed and KABOOM! will work with r elevant parties (playground manufacturer, playground safety surfacing and construction materials) to reschedule deliveries.
(ii) If a project does not meet requirements at 4 weeks out, the equipment may already be in manufacturing, KABOOM! will work with the manufacturer to halt manufacturing if possible and find a storage solution if not possible.
(iii) If a project does not meet requirements at 2 weeks out, KABOOM! will reschedule deliveries of construction materials and arrange storage for any materials that cann ot be rescheduled together with the Community Partner.
(iv) If a project does not meet requirements at 1 week out or less, KABOOM! will reschedule deliveries of construction materials and arrange storage for any materials that cannot be rescheduled together wit h the Community Partner.
(v) If health indicators do not allow project completion on the reschedule date, the project will need to be postponed and rescheduled when health indicators allow project completion. (b) Weather or other conditions unrelated to COVID-19. The Build Week shall not be postponed except when weather or other conditions jeopardize the safety of the volunteers or threaten the structural integrity of the playspace. The decision to postpone the Build Week will be made by majority agreeme nt of the representatives of KABOOM!, the Community Partner, 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 Week is postponed, KABOOM!, the Community Partner, and the Funding Partner shall develop a plan for rescheduling the Build Week at the next earliest date possible for each party. The Funding Partner shall be responsible for all additional expenses related to the rescheduled Build Week, 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 Week. Notwithstanding the foregoing, in the event that the date of the Build Week is cancelled or changed as a result of the Community Partner's failure to satisfy its obligations in connection with the Project, then the Community Partner shall be liable to KABOOM! and the Funding Partner for all such additional expenses related to the rescheduled Build Week.
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 signage, banners, T-shirts, press releases, website 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 KABOOM! 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 Agreement, KABOOM! 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 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 hereun der for a period longer than ten (10) calendar days due to such force majeure event, in which case KABOOM! 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 KABOOM! by the Community Partner exceeds the sum paid to KABOOM! hereunder, the Community Partner 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 Partner represents to KABOOM! that all information provided by it to KABOOM!, including in the 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 as signs, and where expressly stated, their affiliates and representatives. This Agreement shall be governed by and construed under the laws of the State of California, without regard to conflicts of laws principles to the extent that the application of the law s 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 addres s 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.
By executing this Community Partner Agreement 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.
City of Anaheim
By: ______________________
Name: Sjany Larson-Cash
Title: Director of Community Services
Address:
200 S. Anaheim Blvd., Suite 433
Anaheim, CA, 92805
T: (714) 765-5160
e-mail: [email protected]
KABOOM!, Inc.
By: ______________________
Name: Gerry Megas
Title: Chief Financial Officer
Address:
4301 Connecticut Ave. NW, Suite ML-1
Washington, DC 20008
T: (202) 464-6180
F: (202) 659-0210
e-mail: [email protected]
Contact information for the person who should receive KABOOM! invoices:
Name: Ana Straabe
Telephone number: (714) 765-4901
Email: [email protected]
Mailing Address:
200 S. Anaheim Blvd, Suite 433
Anaheim CA 92805