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HomeMy WebLinkAbout2006/10/17 Item 8 COUNCIL AGENDA STATEMENT Item 'If Meeting Date: 10/17/06 REVIEWED BY: RESOLUTION ACCEPTING A GRANT OF UNIVERSALLY ACCESSIBLE PLAYGROUND EQUIPMENT FROM KABOOM! FOR EUCALYPTUS PARK; AUTHORIZING THE COMMITMENT OF MATCHING FUNDS THEREFOR; AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT BETWEEN KABOOM! AND THE CITY OF CHULA VISTA /; / Director of pUb~orks Operations y City Manager(j I (4/5ths Vote: Yes _ Noll As part of a planned City project to make improvements to Eucalyptus Park during the current fiscal year, the City applied for a grant of universally accessible playground equipment for the park. The grant was awarded on October 6, 2006. If accepted, the KaBOOM! organization will provide state-of-the-art playground equipment for 2-12 year olds to be installed by community and other volunteers in partnership with Healthy Eating, Active Communities (HEAC) and the Center for Healthier Communities for Children (CHCC) at Children's Hospital. ITEM TITLE: SUBMITTED BY: RECOMMENDATION: That Council adopt the resolution: . Accepting a KaBOOM! grant of universally accessible playground equipment for Eucalyptus Park; and . Authorizing the commitment of$15,000 in matching funds from the available balance of the Residential Construction Tax Fund; and . Authorizing the Mayor to execute the Agreement between KaBOOM! and the City of Chula Vista. BOARDS/COMMISSIONS: N/A DISCUSSION: KaBOOM! is a national nonprofit organization that works with funding partners to build playgrounds throughout North America. This year the funding partner for this project, the American Academy of Orthopaedic Surgeons, will be holding its annual convention in the San Diego area. Their custom has been to thank the host community by funding and providing large numbers of volunteers to help build a new playground for the community. Chula Vista was invited to partner with HEAC and CHCC in applying for the competitive grant for Eucalyptus Park. Safe access to nearby public playground facilities is critically important for the children of northwest Chula Vista. Eucalyptus Park now contains treed green space, picnic facilities, ballfields, tennis courts, and a large existing sandlot with playground equipment age appropriate for 5-12 year olds built in 1994. There is currently no equipment for 2-5 year olds even though 6,200 children under the age of 5 live in the northwest area. 8-1 Page 2, Item L Meeting Date: 10/17/06 The proposed project would provide universally accessible playground equipment by Playworld Systems for both 2-5 year olds and 5-12 year olds at Eucalyptus Park. The grant would also include installation of at least 6,500 square feet of poured-in-place rubberized safety surfacing. The City would be responsible for providing a $15,000 cash match, and preparing the site with a concrete sub-surface. Once installed, the City would own th~ equipment and agree to install the matching KaBOOM! playground 12" X 30"sign. The final valu~ of the new playground will be in excess of $1 00,000. If Council accepts the award, KaBOOM! will expedite purchase of the equipment and installation of the safety surfacing, and provide general project oversight. A unique grant requirement is that parents, teens, and other community volunteers design the playground on "Design Day", facilitated by City Parks & Open Space staff. Adult community volunteers would then join with funding partner volunteers to install the playground equipment during a "Build Day" event, with direct supervision provided by City Certified Playground Safety Inspectors. Build Day would culminate in a ribbon-cutting ceremony. HEAC's involvement will be critical to the early and ongoing stages of the project, providing community outreach and working with the City to organize student, parent and other volunteers for the project. HEAC has already provided the project with guidance and support during a recent site visit by the funding partner. Proiect Timeline: Design Day would occur on November 16, 2006. Build Day is scheduled for February 13, 2007. Al!:reement: The attached two-party agreement between the City and KaBOOM! sets forth these and other project details. The agreement has been reviewed and approved by the City Attorney. Staff requests that the Mayor execute the agreement this evening. Decision Maker Conflicts: No Property within 500 feet. Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property which is the subject of this action. FISCAL IMPACT: There is no net impact to the General Fund from this action. Site preparation costs will be absorbed in the Department's existing budget. This is not a cash grant. The funding partner will purchase the playground equipment externally, and community volunteers will accomplish the installation. The City will provide a $15,000 matching contribution from the available balance of the Residential Construction Tax (RCT) fund. If Council accepts the grant award, staff will return to Council with a resolution to create a new Capital Improvement Program (CIP) project, and appropriate the $15,000 cash match. Attachment: Two-party Agreement Between City of Chula Vista and KaBOOM! 8-2 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A GRANT OF UNIVERSALLY ACCESSIBLE PLAYGROUND EQUIPMENT FROM KABOOMI FOR EUCALYPTUS PARK; AUTHORIZING THE COMMITMENT OF MATCHING FUNDS THEREFOR; AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT BETWEEN KABOOM! AND THE CITY OF CHULA VISTA WHEREAS, the City of Chula Vista believes that safe access to nearby public playground facilities is critically important for the children of northwest Chula Vista; and WHEREAS, the City plans to make significant improvements to Eucalyptus Park during fiscal year 2006-07; and WHEREAS, the City wishes to provide age-appropriate playground equipment for 2-12 year old children at the park, including children with physical disabilities; and WHEREAS, the City was invited to partner with Healthy Eating, Active Communities (HEAC) and the Center for Healthier Communities for Children (CHCC) at Children's Hospital of San Diego in applying to the KaBOOM! organization for a competitive grant of universally accessible playground equipment for Eucalyptus Park; and WHEREAS, the grant was awarded on October 6, 2006; and WHEREAS, the playground would be designed by parents, teens, and other community volunteers on "Design Day" and built by adult volunteers who are largely recruited and organized by HEAC on "Build Day"; and WHEREAS, in accepting the grant, the City agrees to prepare the playground site and install a KaBOOM! sign at the park; and WHEREAS, the grant provides the playground equipment and installs poured-in-place rubberized safety surfacing; and WHEREAS, the City is required to contribute a $15,000 cash match to the project; and WHEREAS, the final value of the new playground will be in excess of $100,000; and 8-3 WHEREAS, the City will enter into a two-party agreement with KaBOOM! which sets forth these and other project details; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby; 1. Accept a KaBOOM! grant of universally accessible playground equipment for Eucalyptus Park; and 2. Authorize the commitment of $15,000 in matching funds from the available balance of the Residential Construction Tax Fund; and 3. Authorize the Mayor to execute the Agreement between KaBOOM! and the City of Chula Vista. Presented by Approved as to form by Dave Byers Director of Public Works Operations ~'J'''~''\~f~~~ Ann Moore City Attorney 8-4 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~"q~~~\\ Ann Moore City Attorney Dated: \::')~\.~W- \\ )LU(j~ Community Partner Agreement Between KaBOOM! and the City of Chula Vista for services to plan, design and construct a community-build playground 8-5 WASHINGTON, DC CHICAGO,IL ATLANTA, GA REDWOOD CITY, CA 4455 Connecticut Avenue. NW . Suite 8100 . Washinqton. DC 20008 . tel 202.659.0215 . fax 202.659.0210 THIS KaBOOM! COMMUNITY PARTNER AGREEMENT is made this 10lh day of October 2006 by and between KaBOOM! and The City of Chula Vista. 1. RECITALS WHEREAS, KaBOOM! is a non-profit organizaUon chartered in the District of Columbia and organized as a 501(c) 3 by determination of the Internal Revenue Service; . WHEREAS KaBOOM! is an organization that develops, manages and coordinates a community-building playground for its Community and Funding Partners, culminating in a one-day installaUon event known as a "Build Day"; WHEREAS The City of Chula Vista is entering into a written agreement with KaBOOM! for services to plan, design and construct a community-build playground ("Program"); WHEREAS KaBOOM! has received charitable support from The American Academy of Orthopaedic Surgeons ("Funding Partner") for this Program and has entered into a separate agreement with the Funding Partner, the result of which are financial and human resources for this Program; NOW THEREFORE, in consideration of the mutual covenants and conditions hereinafter expressed, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: 2. AGREEMENTS 1. OBLIGATIONS OF THE CITY OF CHULA VISTA 1.1. The City of Chula Vista agrees to be the Community Partner organization ("Community Partner') for THE AMERICAN ACADEMY OF ORTHOPAED!C SURGEONS playground project at Eucalyptus Park, 4~ Avenue at C Street, Chula Vista, CA 91910. 1.2. The City of Chula Vista agrees to be responsive to the discrete timeline developed for the Program, inclusive of providing approval of, action toward or direction to, specific responsibilities and initiatives of KaBOOM! on behalf of this Program. 1.3. As a Community Partner for a KaBOOM! community-build playground project, The City of Chula Vista will work with KaBOOMI, THE AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, and community residents to design, plan and build a community playground. All parties will work closely together to ensure a successful, productive, and fun event. 1.3.1. The Community Partner agrees to host a KaBOOM!-facilitated Design Day with at least 10 adults and 20 children. The adults will remain engaged in planning activities throughout the Design Day to Build Day planning process. 1.3.2. The Community Partner agrees to recruit and secure at least 10-15 adult volunteers for preparation activities two to three days prior to Build Day playground installation. Preparation activities include, but are not limited to, cutting wood for side projects, sorting hardware, digging and transiting holes, laying the site, making posters, unloading equipment, and being present for the surface delivery. K a BOO M ~ 8~~_n"" '"' -""-.,, The City of Chula Vista Leffer of Agreement 10/10/2006 1.3.3. The Community Partner agrees to recruit and secure at least 50-100 adult volunteers for the Build Day playground installation. 1.3.4. The Community Partner agrees to be responsible for 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, creating a flat (less than 1 % grade) asphalt or concrete pad and performing soil tests. 1.3.5. The Community Partner agrees to provide certain provisions for use by volunteers working on the construction project, including but not limited to food (breakfast snacks, lunch and mid-day snacks), water, tools, music for the build day, a trash dumpster, and restroom facilities. 1.4. In support of this project, The City of Chula Vista is responsible for contributing $15,000 to the playground project. 1.4.1. All funds will be applied directly toward purchasing playground equipment. 1.4.2. Upon receipt of this signed agreement, KaBOOM! will invoice The City of Chula Vista for the full amount of this contribution, and it will be due at least 30 days before the Build Day on Tuesday, February 13, 2007. 1.4.3. If The City of Chula Vista does not make payment as outlined in Section 1.4.2, KaBOOM! reserves the right, without waiving any other rights and remedies, to cancel the build. 1.4.3.1. In the event of the Build Day's cancellation due to non-payment by the Community Partner as outlined in Section 1.4.2, at KaBOOM!'s written request, without waiving any other rights and remedies, The City of Chula Vista shall be deemed liable for damages to KaBOOM! and Funding Partner for any un-cancelable contractual commitments entered into prior to cancellation, any equipment costs, labor and materials, and any additional expenses related to the Program, such as airfare and general supplies. 1.4.4. The Community Partner has the right to back-up documentation detailing the use of its contribution to the project. Upon request, KaBOOM! will provide back-up documentation for The City of Chula Vista within 120 days after the Build Day. 1.5. The Build Day must occur in calendar year 2007 on Tuesday, February 13th. 1.5.1. The Build Day shall not be postponed (defined as delayed, held over or rescheduled) under any circumstances other than for conditions that jeopardize the safety of the volunteers, or for unsafe weather conditions that threaten the structural integrity of the playground. 1.5.1.1. The decision to postpone a Build Day shall be reached through discussion, collaboration and majority agreement by KaBOOM!, the Community Partner and the Funding Partner, each represented by a person authorized by each party. 1.5.1.2. The sole exception to mutual decision-making and majority agreement with regard to the postponement of Build Day shall be when the decision must be made immediately and solely by KaBOOM! on the construction site in absence of authorized representatives of the Community Partner and the Funding Partner being available. 1.5.1.3. The authorized representatives are defined as those individuals who have signed this Agreement, and the Agreement between KaBOOM! and the Funding Partner, or their designees. 1.5.2. In the event that the Build Date is cancelled or changed solely by The City of Chula Vista, The City of Chula Vista shall be deemed liable for damages to KaBOOM! and Funding Partner for any equipment costs, labor and materials and any additional expenses related to the Program, such as airfare and general supplies, not to exceed $125,000. 1.5.3. In the event of a Build Day postponement, KaBOOM! shall collaborate with the Community Partner and the Funding Partner to issue a Memo of Understanding (MOU) that outlines a plan for rescheduling the Build Day. 1.5.3.1. The MOU shall outline any additional expenses related to the rescheduled Build Day, and the party or parties responsible for covering the additional expenses. These expenses may include, but are not limited to, equipment storage, security, equipment shipment, and KaBOOM! travel and hotel expenses. 1.5.3.2. The MOU shall identify the next-earliest possible date for the Build Day, based on the availability of open dates on the KaBOOMI program calendar, the availability of the Community Partner to participate in the project, and the availability of the Funding Partner to participate in the project. 8-7 The City of Chula Vista Leffer of Agreement 10/10/2006 1.6. The City of Chula Vista shall attach documentation to this Agreement showing proof of land ownership evidenced by a deed granting title of the property to The City of Chula Vista to the property, or a letter from the property owner showing approval for the installation of the playground. Working with the support of the property owner (if owner is a separate party), The City of Chula Vista will maintain the property before and after the build to ensure a safe and attractive piay area. 1.7. The City of Chula Vista shall collaborate with KaBOOM! during the planning of this Project to develop a maintenance program for the playground that will be implemented by The City of Chula Vist'a upon completion of the playground installation. 1.8. The City of Chula Vista will obtain and maintain Commercial General Liability insurance (providing coverage against liability for bodily injury, death and property damage which may rise out of or be based upon the use of the playground), and Worker's Compensation insurance policies for its employees and volunteers, in amounts not less than one million dollars ($1,000,000.00) from the date of this agreement and for a minimum of one (1) year thereafter. KaBOOM! and Funding Partner shall be named as additional insureds for the Build Day upon such policy. The insurance shall be primary over any other insurance covering KaBOOM! and Funding Partner. Such policy must provide that KaBOOM! and Funding Partner be given at least thirty (30) days prior written notice of any change or cancellation of coverage. Community Partner will promptly provide as copy of the certificate from its insurer indicating the amount of insurance coverage, the nature of such coverage and the expiration date of each applicable policy. 1.9. The City of Chula Vista will obtain all necessary and appropriate permits and licenses regarding the installation and possession and use of a playground prior to Build Day in compliance with local and state laws, regulations and guidelines. 1.10. The City of Chula Vista is responsible for ensuring the playground site is safe for volunteers and children. 1.10.1. The City of Chula Vista is responsible for conducting up to two utility site checks as reasonably requested by KaBOOM! with the appropriate utility companies between two and eight weeks prior to the Build Day. Documentation of the utility checks must be provided to the KaBOOM! Project Manager upon completion. 1.10.2. The City of Chula Vista is responsible for conducting up to two soil site tests as reasonably requested by KaBOOM! between two and ten weeks prior to the Build Day. Documentation of the soil checks must be provided to the KaBOOM! Project Manager upon completion. The City of Chula Vista is responsible for undertaking any necessary risk mitigation should the soil be deemed unsafe for children or volunteers.. 1.11. The City of Chula Vista will work with local authorities and/or private firms as appropriate to ensure the safety and security of human and equipment resources (playground equipment, playground volunteers) from the point of materia! delivery, during the period(s) when site preparation occurs on the playground site, and until the conclusion of the Build Day. 1.12. The City of Chula Vista will agree to accept and maintain poured-in-place rubber as playground safety surfacing, meeting standards established by Consumer Product Safety Commission's guidelines, for the lifetime of the playground. 1.13. The City of Chula Vista is solely responsible for any additional costs beyond the proposed playground project budget. KaBOOM! is not responsible for paying any vendors for any prior site preparation, upgrades or improvements not agreed upon with KaBOOM!. If Community Partner decides to purchase additional equipment or materials to supplement materials secured by KaBOOM!, then the Community Partner is solely responsible for paying for the materials and all other liabilities related to such materials. Neither KaBOOM! nor its Funding Partner(s) shall be liable for payment. Community Partner will hold KaBOOM! and the Funding Partner harmless of any payments or liability with respect to the additional items ordered. 1.14. The City of Chula Vista will work mutually with KaBOOM! and/or THE AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS for any written and/or printed materials that reference the Program and/or contain the logos of KaBOOM! or THE AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, including but not limited to press releases, fliers and pror, ,~:ional materials. The City of Chula Vista will work in collaboration with KaBOOM! and/or THE AMERICAN ACADEMY 8-8 The City of Chula Vista Leffer of Agreement 10/10/2006 OF ORTHOPAEDIC SURGEONS to secure media coverage. KaBOOM! will provide mutual opportunity for the Community Partner to review and approve materials prepared by KaBOOM! related to this Project (such approval not to be unreasonably withheld). 1.15. The City of Chula Vista will allow the names and logos ofTHE AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS and KaBOOM! on permanent playground signage, such as that shown as a sample during The City of Chula Vista's application process. Playground signage is 12 y., inches wide by 30 y., inches tall and mounted on poles designed to match the playground components in color and design. The sign will be erected in amutually agreed upon location and in accordance with the Community Partner's guidelines regarding corporate signage. If the Community Partner has specific guidelines regarding corporate signage on its property, please attach those guidelines to this Agreement. 1.16. The City of Chula Vista understands that the playground will be added to the roster of KaBOOM! Build Guild and, as such, will receive subsequent information from KaBOOM! on playground maintenance, programming and enhancements. 2. OBLIGATIONS OF KaBOOM! 2.1. KaBOOM! will provide the Community Partner with technical and organizational leadership and guidance for the playground project. 2.1.1. Facilitate playground design process and activities on Design Day, and work with vendors to procure equipment and materials in a timely fashion, the possible exception being the installation of safety surfacing other than engineered wood fiber. 2.1.2. 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 to constructthe playground. 2.1.3. Facilitate regular planning meetings with the Community Partner and the playground planning committee. 2.1.4. Lead the Build Day activities, including the coordination of Build Day captains and volunteers. 2.1.5. Provide educational and promotional materials to support the playground project, including the KaBOOM! Tool Kit of publications (4-book set), KaBOOM! online Playground Planner, nametags and other general supplies. 2.1.6. Provide for and coordinate the participation of the Funding Partner, THE AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, which has committed to provide KaBOOMI with financial, human and/or in-kind resources to bring to fruition the playground project with The City of Chula Vista. 2.2. KaBOOM! (in collaboration with The City of Chula Vista), will provide or secure a Certified Playground Safety Inspector (CPSI) approved or mutually agreed to by the City of Chula Vista and KaBOOM! to review the playground structure to ensure that it is safe and built to all appropriate standards and guidelines. The City of Chula Vista acknowledges that neither KaBOOM! or Funding Partner nor their respective officers, directors, employees, or agents have made or are in any way responsible or liable for action, inaction or negligence of the CPSI and The City of Chula Vista agrees to look solely to the CPSI for any such liability, costs or expenses which arise out of the CPSl's action, inaction or negligence. 2.2.1. The CPSI review will occur 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. 2.2.2. In accordance with Section 4, The City of Chula Vista shall be solely responsible for any injury, property damage, or death which occurs in connection with the playground after review of the playground is completed and the playground has been approved by the CPSI as meeting all applicable safety standards. 2.2.3. In accordance with Section 4, in the event that theBuild Day is delayed ornot completed on the scheduled day due to failure of The City of Chula Vista to meet the terms of this Agreement, then The City of Chula Vista will be responsible for securing a CPSI to review the playground. 8-9 The City of Chula Vista Leffer of Agreement 10/10/2006 3. FUNDING PARTNER RELATIONS 3.1. KaBOOM! has a separate agreement with a KaBOOM! Funding Partner, THE AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS ("Funding Partner"), whose contributions to KaBOOM! are helping to make this Project possible. 3.2. The Community Partner shall not solicit sponsors or donors whose products or services directly compete with the products or services of the Funding Partner. 3.2.1. For the purposes of this Agreement, sponsors are defined as individuals, businesses or philanthropic organizations that contribute funding or in-kind gifts to this Project in exchange for ceriain rights to promote their affiliation with this Project to the general public, including but not limited to publiC name recognition via this playground project's approved signs, T-shirts, media materials and public-address systems. Conversely, donors are individuals or groups whose gifts to this Project require personal acknowledgement only, such as thank-you letters. 3.3. In the event the Community Partner solicits other sponsors or donors, then those sponsors and donors shall not compete with the Funding Partner for signage and sponsorship recognition. The Funding Partner shall receive first placement on any recognition materials developed for the Project, including playground signage, banners, T-shirts, press releases, web-site and newsletter stories, and flyers. 3.4. In the event of a conflict between the Funding Partner and other sponsors and donors, the Funding Partner, Community Partner and KaBOOM! shall consider recognition on a case-by-case basis. 4. OWNERSHIP AND LIABILITY 4.1. 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 KaBOOM! and/or its Funding Partner(s). 4.2. It is agreed that The City of Chula Vista will indemnify and hold harmless KaBOOM! and/or the Funding Partner and their respective officers, directors, employees, or agents from any and all claims, costs, expenses (including attorney's fees and disbursements) or actions associated with this playground project from any claim or action, including but not limited to claims and actions for personal injury, death, or property damages resulting from the use of any playground property and equipment, except to the extent resulting from any willful misconduct of KaBOOM! and/or the KaBOOM! Funding Partner. 4.3. A Certified Playground Safety Inspector will review the playground structure upon completion at the end of the scheduled build Day. The manufacturer's representativeflnstaller will certify that the playground was installed to manufacturer's specifications at the end of the Build Day. 4.3.1. Notwithstanding the foregoing, The City of Chula Vista shall be solely responsible for the playground and its equipment upon certification of the playground. 4.3.2. The City of Chula Vista shall be responsible for securing safety measures of the playground to prevent injury, death, or property damages in the unlikely event that the playground is not completely constructed, and all equipment fully installed, at the conclusion of the Build Day and once KaBOOM! and/or the CPSlleave the playground site. 4.3.3. In the unlikely event or planned circumstances that the playground is not completely constructed and all equipment fully installed at the conclusion of the Build Day, The City of Chula Vista shall be responsible for completing the installation of the playground in accordance with the specified guidelines with the assistance of the CPSI and/or the manufacturer's representatives, facilitated by KaBOOML The City of Chula Vista shall be solely responsible for any injuries, death, or property damage that arises out of The City of ChulaVista's completion of such installation. 4.4. Maintenance of the playground facility and supervision of its use is the sole responsibility of The City of Chula Vista. Upon request, the playground-equipment and safety-surfacing manufacturers will provide guidance and materials, toward a maintenance plan for the playground. 4.4.1. The Community Partner will receive from Playworld Systems Inc., the provider of its playground equipment, or via its KaBOOM! project manager, a play equipment maintenance kit from Playworld Systems Inc. 8-10 The City of Chula Vista Leher of Agreement 10/10/2006 5. WARRANTY 5.1. The playground equipment is covered under warranty by the selected playground equipment company in accordance with its warranty policy. Upon request, a copy of the warranty for the playground-equipment and the safety-surfacing will be provided by the manufacturer(s) to the Community Partner. While playground equipment and/or material manufacturers may provide a warranty with respect to their product, The City of Chula Vista acknowledges that neither KaBOOM! or Funding Partner nor their respective officers, directors, employees or agents, have made nor are in any manner responsible or liable for any warranty, representation, or guarantee, express or implied, in fact or in law, relative to any equipment or material, including but not limited to its quality, mechanical condition or fitness for a particular purpose. Any warranties and/or guarantees on any equipment or material are subject to the respective manufacturer's terms therefore, and The City of Chula Vista agrees to look solely to such manufacturers for any such warranty and/or guarantee. 6. GENERAL 6.1. Notices. Any notices required or permitted to be given hereunder shall be sent by certified or registered United States mail, postage properly prepaid, or by personal delivery addressed as follows: To: Helen Zimmerman, Manager of Contracts and Risk Management KaBOOM! 4455 Connecticut Ave., NW, Suite B100 Washington, DC 20008 USA 202-464-6075 Copy to: Jerrilyn Black, Client Services Coordinator (Use the same KaBOOM! address as above) To Corporation: Dave Byers, Director of Public Works Operations THE CITY OF CHULA VISTA 1800 Maxwell Road Chula Vista, CA 91911 (619) 397-6055 6.2. Counterparts. This Agreement may be executed by the parties in one or more counterparts which shall, in the aggregate, be signed by all parties and each counterpart shall be deemed an original instrument as against any party who has signed it. 6.3. Governing Law. The laws of the State of Illinois, without reference to its choice of law provisions, shall govern the interpretation and/or legal effect hereunder and shall have jurisdiction over any dispute (including arbitration) arising out of or under the terms of this Agreement. 6.4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective affiliates, successor, and personal representatives of tile parties to this Agreement, except to the extent of any contrary provision in tIlis Agreement. 6.5. Severability. This Agreement shall be construed to be in accordance with federal and state statutes. If any provision of this Agreement, or any portion thereof, is found to be invalid, illegal, or unenforceable, under any applicable statute or rule of law, then such provision or portion thereof shall be deemed omitted, and the validity, legality and enforceabiiity of the remaining provisions shall not in any way be affected or impaired thereby. 6.6. Complete Agreement. This Agreement, when executed by the duiy authorized representatives of each party shall be the entire agreement between the parties as to the subject matter stated herein and supersedes and replaces any and all previous agreements and all amendments thereto. 8-11 The City of Chula Vista Leffer of Agreement 10/10/2006 6.7. Assignment. This Agreement may not be assigned, delegated or transferred by either party without the prior written consent of the other party hereto. 6.8. Force Majeure. If either of the parties hereto is delayed or prevented from fulfilling any of its obligations under this Agreement by Force Majeure, said party shall not be liable under this Agreement for said delay or failure. 'Force Majeure" means any cause beyond the reasonable control of a party, including, but not limited to acts of God, acts of omission of civil or military authorities of a state or nation, fire, strike, flood, riot, act of terrorism, war, delay of transportation, or inability due to the aforementioned causes to obtain necessary labor, materials or facilities. Either party, however, may terminate this Agreement if the other is unable to perform any obligation under the Agreement for a period longer than ten (10) calendar days due to such a force majeure event. In the event of any such termination, KaBOOM! shall refund to the Community Partner any monies paid to KaBOOM!, less expenses already committed to and/or incurred prior to the date of termination. If, upon termination as provided herein, the sum due KaBOOM! by Community Partner, exceeds the sum paid to KaBOOM! hereunder, Community Partner agrees to pay KaBOOM! for any such additional sum due upon presentation of appropriate documentation within 30 days of invoice. 6.9. Waiver. A waiver by either party of a breach or failure to perform shall not constitute a waiver of any subsequent breach or failure. 8-12 The City of Chuta Vista Leher of Agreement 10/1012006 IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the day and year first above written. By signing this Agreement, The City of Chula Vista fully acknowledges its consent and understanding of and commitment to the terms and guidelines set forth above. Please sign both original versions of this letter and return them to KaBOOML We will then sign the originals, and mail one original and one copy back to you for your files. KaBOOM! and THE AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS loo~ forward to working with The City of Chula Vista to make this playground a reality. ' Date Terms agreed to: By: Stephen C. Padilla Mayor Authorized Signature for The City of Chula Vista Phone Number: (619) 691-5044 Fax Number: (619) 476-5379 Email Address:constituent-services@ci.chula-vista.ca.us The City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Date Terms agreed to: By: Bruce Bowman Chief Operating Officer Phone number. 202-464-6168 Fax number: 202-659-0210 Email address: iblack@kaboom.orq KaBOOM! 4455 Connecticut Ave, NW Suite B100 Washington, DC 20008 Contact information for the person who should receive KaBOOM! invoices: Name: Telephone Number: 619-397-6055 Dave Byers, Director of Public Works Operations Mailing Address: 1800 Maxwell Road Chula Vista, CA 91911 Fax Number: Email Address:dbvers@ci.chula-vista.ca.us Utility Inspection Fonm (for completion and return to KaBOOM!) Soil Inspection Fonm (for completion and return to KaBOOM!) Certified Playground Installer Certificate (sample) Playworld Systems Inc. Playground Equipment Warranty (sample) Attachments: Copy: Brian Crowley, Interim Vice President, Administrative Services KaBOOM! Project Archives Sandra Gordon, Director, Department of Public Education and Media The American Academy of Orthopaedic Surgeons 8-13