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09-162 Kaboom!, Funding Partner Playground Contract, Blackberry Farm i 1 1101411" ; i • IP CRS Dear Funding Partner, Attached is your signed copy of the Letter of Agreement and invoice for your playspace being built with KaBOOM! Please note that your LOA contract states that you shall provide proof of land ownership. The payment for your invoice and the documents above need to be sent to KaBOOM! at: KaBOOM! 4455 Connecticut Ave N.W., Suite B100 Washington, DC 20008 Thank you, Helen Zimmerman Mgr. Contracts and Risk Management 202 464 -6075 202 659 -0210 fax -2 FUNDING PARTNER PLAYGROUND CONTRACT • • • of March 25, 2009 Cpi KaBOOM!, Inc. ( "KaBOOM! ") is pleased that City of Cupertino ( "Funding Partner") has agreed to collaborate with KaBOOM! and a Community Partner (the "Community Partner") on the creation of a new playground in Cupertino, California (the "Project "). This Funding Partner Playground Contract ( "Agreement "), which sets forth the Funding Partner's 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. 1. Obligations of KaBOOM!. (a) Project Management. KaBOOM! shall manage the overall execution of the Project on behalf of the Funding Partner. KaBOOM! shall assign a project manager who shall supervise the planning and installation of the playground, including overseeing a "Design Day" event, presenting playground designs, convening committee conference calls, assuring that the necessary materials, tools and equipment are on hand and managing the one -day playground installation event, which is referred to as the "Build Day" and which is scheduled to occur on June 6th, 2009 (b) Vendors. KaBOOM! shall select and manage vendors that will provide necessary equipment for the playground (e.g., surfacing, playground equipment, peripheral projects, landscaping, etc.). KaBOOM! shall use commercially reasonable efforts to guard against any Toss to the Funding Partner through the failure of suppliers to properly honor their commitments, but KaBOOM! shall not be held responsible for any such failure on their part. (c) Inspection. KaBOOM!, in collaboration with the Funding Partner, 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 Project is not completed on the Build Day due to failure of the Funding Partner, in which case the Funding Partner shall secure the Certified Playground Safety Inspector. (d) Warranty. KaBOOM! will obtain a warranty from the playground equipment manufacturers that all equipment meets or exceeds current government- approved safety standards. Obtaining such warranty shall be the total extent of the liability of KaBOOM! to the Funding Partner with respect to the playground equipment, and the Funding Partner agrees that KaBOOM! has not made nor is it in any manner responsible or liable for any warranty, representation, or guarantee, express or implied, in fact or in law, relative to any playground equipment, including without limitation the quality, mechanical condition or fitness for a particular purpose of the playground equipment. Any and all warranties and /or guarantees on playground equipment are subject to the respective manufacturers' terms and therefore, the Funding Partner agrees to look solely to such manufacturers for any such warranty and /or guarantee. (e) Insurance. KaBOOM! represents and warrants it has, and, upon request, shall provide evidence of, the following insurance coverage: Commercial General Liability with a limit of $1,000,000 per occurrence with a general aggregate limit of $2,000,000 and umbrella coverage of at least $1,000,000 per occurrence; Workers' Compensation with statutory limits for the state in which the work is performed and employers liability insurance with a minimum of $500,000 per accident; and Automobile Liability for owned, hired and non -owned autos with a combined single limit of $1,000,000. KaBOOM! shall require that any subcontractor hold and maintain insurance coverage that includes Commercial General Liability and Worker's Compensation coverage of at least the levels held by KaBOOM!. (f) Build Guild. KaBOOM! will place the playground on the roster of KaBOOM! Build Guild and KaBOOM! will send information to the Funding Partner on playground maintenance programming and enhancements. 2. Obligations of the Funding Partner. (a) Project Site. (i) Ownership. At the time of execution of this agreement, the Funding Partner shall provide KaBOOM! with proof of land ownership evidenced by either a deed granting title to the property to the Funding Partner or a letter from the property owner showing approval for the Project. Funding Partner will allow the playground to be constructed on its property, will participate in the organization and planning process and will be the owner of the playground in its entirety, including the equipment and safety surfacing, and subsequent maintenance. The Funding Partner is the owner of the playground in its entirety, for the lifetime of the playground, including the equipment and /or safety surfacing purchased by KaBOOM! and /or its funding partners. (ii) Permits. The Funding Partner shall obtain all necessary permits and licenses regarding the installation, possession and use of the playground prior to Build Day in compliance with local and state laws, regulations and guidelines. (iii) Preparation. The Funding Partner shall ensure that the playground site is safe for volunteers and children, which responsibility includes, without limitation: (1) preparing the site for the installation of the new playground at least two weeks before Build Day, which includes but is not limited to removing existing playground equipment, footers and safety surfacing, grading the land, removing fencing and performing soil tests; (2) conducting up to two utility checks as reasonably requested by KaBOOM! 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 KaBOOM! Project Manager upon completion; and (3) conducting up to two soil site tests as reasonably requested by KaBOOM!, with the first test being completed within two weeks of Design Day and with all soil check documentation provided to the KaBOOM! Project Manager upon completion. The Funding Partner is responsible for undertaking any necessary risk mitigation should the soil be deemed unsafe for children and volunteers. (iv) Safety and Security. The Funding Partner together with the Community Partner is responsible for ensuring the security of equipment, tools, supplies and well being of the adults arid children from the beginning of the preparation activities until the conclusion of Build Day, including any postponement. (v) Maintenance. The Funding Partner 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 and after the build to ensure a safe and attractive play space. In addition, the Funding Partner shall accept and maintain engineered wood fiber as playground safety surfacing, meeting standards establisf•ed by Consumer Product Safety Commission guidelines, for the lifetime of the playground. Maintenance of the playground facility and supervision of its use is the sole responsibility of the Funding Partner. Upon request, the playground equipment and safety surfacing manufacturers, including Playworld Systems, Inc, will provide guidance and materials for the purpose of developing a maintenance plan for the playground. (b) Build Day. The Funding Partner i P..actraershall recruit adult volunteers from the community to participate in a one -day installation event for the Project, which is scheduled to occur on June 6th, 2009 and which is referred to herein as the Build Day. On the Build Day, The Funding Partner shall provide food, water, tools, power, and restroom facilities for all volunteers. Furthermore, if the number of Community Partner volunteers for hands -on assembly operations exceeds 150 on the Build Day, then the Funding Partner shall compensate KaBOOM! up to $5,000 to cover the time, travel and lodging of an additional Project Manager and other incremental expenses, of which KaBOOM! shall notify the Funding Partner prior to incurrence. (c) Playground Costs. The Funding Partner is solely responsible for and shall hold KaBOOM! and its Community 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 KaBOOM!. (d) 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 warranty may be obtained, upon request, from such manufacturers. The Funding Partner acknowledges that any warranties and /or guarantees on any equipment or material are subject to the respective manufacturer's terms thereof, and the Funding Partner agrees to look solely to such manufacturers for any such warranty and /or guarantee. Neither KaBOOM! nor its funding partners 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. (e) Insurance. The Funding 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), in each case in amounts not less than one million dollars ($1,000,000). At the time of execution of this agreement, the Funding Partner shall provide to KaBOOM! a copy of a certificate from its insurer ind eating the nature, scope, duration and amount of insurance coverage, and naming KaBOOM! and its funding partners as additional insureds under such policy, which insurance shall be primary over any other insurance covering KaBOOM! and its funding partners and which policy shall provide that KaBOOM! and its funding partners be given at least thirty (30) days' prior written notice of any change or cancellation of coverage. (f) Indemnification. The Funding Partner shall indemnify and holcl harmless KaBOOM!, its community partners 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, including those for personal injury, death, or property damage, except to the extent resulting from the willful misconduct of such indemnified persol. This provision shall survive any termination or expiration of this agreement. (g) Compensations In consideration for KaBOOM! management of the Project, the Funding Partner agrees to compensate KaBOOM! the amount of $63,400 according to the following schedule: (i) Twenty -five percent (25 %) or the total ($15,850) shall be cue within 30 days of signing of this Agreement. (ii) Seventy percent (70 %) of the total ($44,380) shall be due 45 days prior to the Build Day date. (iii) Five (5 %) of the total ($3,170) shall be due within 15 days of the completion of the playground installation. (iv) The total of any additional fees and expenses incurred pursuant hereto will be due within 30 days of invoicing. (v) Past -due accounts shall be assessed a monthly finance charge of 1% % or the maximum rate allowed by law, whichever is greater. (h) Timeline. The Funding Partner will respond to KaBOOM! on the dates and times reasonably set forth for the Project. (1) The Funding Partner will identify its Project market to KaBOOM! at least six months in advance of the Build Day. (ii) Following the confirmation of the Community Partner by the Funding Partner, the Funding Partner and KaBOOM! will identify a Build Day date which shall occur on a mutually agreeable date no later than December 31, 2009. (1) Additional Materials. If the Funding Partner decides to purchase additional equipment to supplement materials secured by KaBOOM! through the Project budget, then the Funding Partner is responsible for paying for the materials directly. Funding Partner will hold KaBOOM! harmless of any payments or liability with respect to the additional items ordered. 3. Grant of Promotional Rights. KaBOOM! will provide an opportunity for the Funding Partner and Community Partner names and logos to appear on the permanent playground site sign and on certain materials developed jointly by KaBOOM! and the Community Partner pertaining to the Project Funding Partner and Community Partner may create and promote Design Day and Build Day events including posting banner(s) with Funding and Community Partners name and logo at the Project site.. 4. Intellectual Property. (a) The Funding Partner acknowledges and agrees that KaBOOM! is the sole owner of all right, title and interest in and to the name and mark KaBOOM! (the "Mark ") and the tagline "It Starts with a Playground." (the "Tagline "), each in any form or embodiment, as well as the designs and logos as specified on the KaBOOM! website at www.kaboom.orq /style (the "Logos ", and together with the Mark and the Tagline (and any successor marks, taglines, or logos), the " KaBOOM! Marks "), as well as all goodwill attached or which shall become attached to any of the foregoing. The Logo is cornprised of the Mark and Tagline in a starburst design. On occasion, the Logo may be used without the Tagline; however, prior written approval of KaBOOM! is required for such use. Guidelines for the usage of the Logo are available from KaBOOM! or via the Internet at www.kaboom.orq /style. The Funding Partner further acknowledges and agrees that, as between the parties, KaBOOM! is the sole owner of all label designs, product identifications, artwork, symbols, devices, manuals, guides, inventions, and publications produced as part of KaBOOM! operations, services, and programs. The parties acknowledge that KaBOOM! may take .311 steps to protect the KaBOOM! Marks and its other property as KaBOOM! deems appropriate. (b) During the term of this contract, KaBOOM! hereby grants to the Funding Partner a limited, non - exclusive, non - transferable, non - sublicensable, worldwide, royalty -free license to use the KaBOOM! Marks, and the Funding Partner hereby grants to KaBOOM! a limited, non - exclusive, non - transferable, non - sublicensable, worldwide, royalty -free license to use the Funding Partner's name, trademarks, service marks, and logos, solely to promote the Project, including, without limitation, in broadcast, print, and Internet media and advertising, press releases, and other media materials, internal communications materials, and promotional materials, but only as provided below. Other than in connection with the materials jointly developed as provided in Section 3, each party will obtain the prior written approval of the other before using the other party's name, marks, or logos in connection with any publicly distributed materials, provided that the party whose approval is being sought will not unreasonably withhold or delay its approval. KaBOOM! shall have the right to review and approve the type, manner, location, and duration of any advertisements or promotions in which the Funding Partner references the KaBOOM! Marks, the Project, or its participation in the Project. All such advertisements and promotions, inclusive of merchandising, sampling and special events, shall be at the expense and liability of the Funding Partner. (c) The Funding Partner shall not manufacture, sell, or distribute, or license or otherwise permit the manufacture, sale or distribution of, any merchandise that incorporates or includes the KaBOOM! Marks, without prior written consent of KaBOOM!. (d) Any use of the KaBOOM! Marks by the Funding Partner will inure to the sole benefit of KaBOOM!. The Funding Partner shall not . use the KaBOOM! Marks in any manner that would harm the reputation of KaBOOM! or disparage or negatively reflect upon the KaBOOM! Marks. Upon expiration of or termination of this contract for any reason, the Funding Partner shall cease all use of the • KaBOOM! Marks. 5. Build Day Postponement. A 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 a Build Day will be made by majority agreement of the representatives of KaBOOM!, the Funding Partner and the Community Partner, except where such decision must be made by KaBOOM! on the construction site and representatives of the Funding Partner and the Community Partner are not available for consultation. In the event that a Build Day is postponed, KaBOOM, the Funding Partner and the Community 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 a Build Day is cancelled or changed solely by the Community Partner, the Community Partner shall be liable to KaBOOM! and the Funding Partner for any equipment costs, labor, and materials and any additional expenses related to the Project, such as travel expenses and general supplies. 6. Termination. In the event that the Funding Partner fails to make the payments required under this Agreement, KaBOOM! may terminate the Agreement upon written notice to the Funding 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 hereunder for a period longer than ten calendar days due to such force majeure event, in which case KaBOOM! shall refund to the Funding 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 Funding Partner exceeds the sum paid to KaBOOM! hereunder, Funding Partner shall pay KaBOOM! 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. 7. General Provisions. Each party has all requisite power and authori•:y, 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 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. By executing this Funding Partner Playground Contract where indicated below, each of KaBOOM! and the Funding Partner agrees, as of the date identified above, to be legally bound by all of the terms and provisions set forth above. Mark Linder KaBOOM!, Inc. 3/31/ 07 By:/ - Name: Mark Lin • er Name: B . _ • . n C612 e (}1pj5 Title: Director, Cupertino Parks and Recreation Title: Ch' 10300 Torre Avenue 4455 Connecticut Avenue, NW, Suite B100 Cupertino, California 95014 -3255 Washington, DC 20008 T: 408.777.3268 T: (202) 464 -6061 F: 408.777.3366 F: (202) 659 -0210 e -mail: mark) @cupertino.org e-mail: bbowman @kaboom.org 2009 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 Blackberry Farm Playground Build (the "Playground Build" or the "Project "), or will be on the construction of the Playground Build, occurring the week of June 6th in Cupertino, CA. 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 building interiors. 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 and 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, beautification and play enhancement projects, and other non - playground construction site projects and may help with preparation for the build day if they have received written approval from a parent or legal guardian for participation. Any chi dren under states 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 community partner 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 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 and fees, including, without limitation, court costs and attorneys' fees, of any and will be participating at my own risk. I acknowledge that my participation is every nature of character, including, without limitation, for death, personal injury voluntary and does not constitute a condition or requirement of employment. I and/or loss of property, whether anticipated or unanticipated, directly or indirectly, further acknowledge that the Project will occur at a construction site and that the whether caused, in whole or in part, by the sole or concurrent negligence or construction site will be a potentially dangerous place. I attest that I am physically wrongdoings, strict liability or fault of the Released Parties or otherwise, arising fit and prepared for this event. out of or connected in any way with my participation in the Project. I will not create an unsafe situation for other individuals or myself nor will I use any tool or engage in any task with which I am not completely comfortable. I will I acknowledge that I have read the foregoing paragraph and know and abide by all applicable federal, state and local laws, as well as the rules and understand the full contents and effects of it. I understand the full nature, extent, directions of the sponsors and coordinators. If I see any situation that I feel is and import of Section 1542 of the California Civil Code and of the entire release unsafe, I will immediately call it to the attention of KaBOOM! or a safety stated in the foregoing paragraph. Accordingly, I waive and relinquish, any and coordinator. If I bring any children or young adults with me to participate in the all rights or benefits that I may have under the provisions of Section 1542 of the Project, I will be solely responsible for providing for their safety and will keep them California Civil Code, which reads as follows: "A general release does not under close supervision at all times. FOR EACH PARTICIPANT UNDER 18, THE extend to claims which the creditor does not know or suspect to exist in its favor PARENT OR GUARDIAN MUST FILL OUT A SEPARATE WAIVER. I at the time of executing the release, which if known by him must have materially understand that a volunteer may be at the Project to provide medical treatment in affected his settlement with the debtor." the event of an injury, and if necessary to assist in arranging transportation to I hereby grant KaBOOM!, the City of Cupertino, and the Rotary Club of medical facilities. Cupertino full and complete permission to use project photographs, videography On behalf of myself, as well as my heirs, executors, administrators and assigns, I and interview footage and quotations from mein legitimate promotions of the hereby forever release, discharge, waive and agree to indemnify and hold Project and to further the mission and vision of KaBOOM!. in any and all media harmless KaBOOM!, the City of Cupertino, and the Rotary Club of Cupertino„ now known or hereinafter developed without restriction or compensation. Playworld Systems Inc., and any additional sponsors of the Project, along with their respective officers, directors, agents, employees, contractors, successors I understand that I have given up substantial rights by signing this Waiver and assigns, and any volunteers to whom I give my consent to provide medical and have signed it freely and voluntarily without any inducement, treatment to me or to any children or young adults under my supervision assurance or guarantee being made to me and I INTEND MY SIGNATURE ( "Released Parties "), from and against any and all claims, demands, actions, TO BE A COMPLETE AND UNCONDITIONAL RELEASE of all liability by causes of action, obli ations, liabilities, suits, losses, dams es, costs, ex nses, Released Parties to the reatest extent allowed by law. Adult Volunteer (Age 18 +) Volunteer Under Age 18 ( am here to volunteer from: Please fill out a SEPARATE waiver for your child —use this section ONLY Rotary Club of Cupertino (1 am a: _staff member / _non -staff member) _.Local Community _ City of Cupertino 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 dependant meets this state's minimum Address age requirements for employment? ❑ Yes, my child may volunteer !' No, my child cannot volunteer City State Zip Email Address: Providing email allows us to send you photos of today's build! Printed Name of Child Participant Date