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HomeMy WebLinkAbout030912 ORD - 08/09/2016 ORDINANCE AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE DOCUMENTS TO APPLY FOR AND ACCEPT PARK EQUIPMENT ESTIMATED VALUE OF $300,000 FROM KABOOM! FOR PARK IMPROVEMENTS AT DR. H. C. DILLWORTH PARK AND TO ACCEPT $8,500 IN DONATED FUNDS FROM BEAUTIFY CORPUS CHRISTI ASSOCIATION, AND TO APPROPRIATE SAID FUNDS IN THE NO. 4720 COMMUNITY ENRICHMENT FUND FOR THE PARK IMPROVEMENTS. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: Section 1. That the City Manager or designee is authorized to execute documents necessary to submit application for and execute documents to accept park equipment estimate value of $300,000 from KaBOOM! for improvements at Dr. H. C. Dilworth Park, including the Community Partner Playground Contract, a copy of which is attached as Exhibit A. Section 2. That the City Manager or designee is authorized to accept $8,500 funding from Beautify Corpus Christi Association for park improvements at Dr. H. C. Dillworth Park. Section 3. Upon receipt, the funds shall be appropriated in the No. 4720 Community Enrichment Fund for the park improvements at Dr. H. C. Dillworth Park. That the foregoing ordinance was read for the first time and passed to its second reading on this the Cray of , 2016, by the following vote: Nelda Martinez Ctu, Brian Rosas �L , ' Ad- Rudy Garza �_ Lucy Rubio S A! Michael Hunter1��. Mark Scott Chad Magill Carolyn Vaughn Colleen McIntyre S That th foregoing ordin- c'' was rea• for the second time and passed finally on this the `'1 -day of S �� ! , 2016,by the following vote: Nelda Martinez Brian Rosas Rudy Garza /_, �! Lucy Rubio Michael Hunter I � Mark Scott _ Chad Magill � �! . Carolyn Vaughn I_�.J Colleen McIntyre AM! PASSED AND APPRO ( D, this the 0 day of e VAA16. ATTEST: ` LA—La Rebecca Huerta Nelda Martinez City Secretary i Mayor 030912 INDEXED EXHIBIT A • ' COMMUNITY PARTNER PLAYGROUND CONTRACT July 25, 2016 KaBOOM!, Inc. (referred to herein as KaBOOM!) is pleased that«CP» (referred to herein as the Community Partner)has agreed to collaborate with KaBOOM!and «FP» (referred to herein as the Funding Partner) in the construction of a new playground at«Site_Name», «Site_Address», «City», «State» «Zip» (the"Project"). This Community Partner Playground Contract(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 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 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) Fundraising. In support of the Project,the Community Partner must contribute$«Contribution»to KaBOOM!, which will apply the funds directly to the purchase of playground equipment. 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 Day(as defined below). (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 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 Community Partner 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 Partner shall ensure that the Project site is safe for volunteers and children, which responsibility includes: (1) recruiting fifteen(15)adult volunteers to participate in preparation activities two to three days prior to Build Day; (2) 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; (3)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(4) 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 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 Day, including any postponement. (v) Maintenance. Maintenance of the playground 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 for the playground and,with the support of the property owner(if owner is a separate party),shall maintain the playground and the property before and after the Build Day to ensure a safe and attractive playspace. In furtherance of the foregoing, in the event any playground equipment included in the Project no longer is permitted for any reason to be located at its original site of construction or such site is no longer controlled by the Community Partner for any reason, then the Community Partner promptly shall notify KaBOOM!following its becoming aware of such situation and shall, at the Community Partner'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 Community Partner to maintain)such playground in accordance with the maintenance program. In addition,the Community Partner shall accept and maintain engineered wood fiber as playground safety surfacing, meeting standards established by Consumer Product Safety Commission guidelines,for the lifetime of the playground. Guidance and materials for the purpose of developing a maintenance plan for the playground are available, upon request,from the playground equipment and safety surfacing manufacturers, including Playworld Systems, Inc. (vi) Service Learning.The Community Partner shall recruit a group of at least 25-50 youth ages 5-12 years to participate in the Presidential Active Lifestyle Award Challenge (http://www.presidentschallenge.orq/challenge/active/index.shtml).The youths shall commit to being active 60 minutes a day for five days a week for six weeks between Design Day and Build Day. (c) Design Day. The Community Partner 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 Community Partner shall recruit«Volunteers» adult volunteers from the community to participate in a one-day installation event for the Project,which is scheduled to occur on «BD_» and which is referred to herein as the Build Day. The Community Partner shall ensure that all volunteers sign a waiver.' On the Build Day,the Community Partner shall provide food,water,tools,dumpsters, music and restroom facilities for all volunteers. (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 Partner 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 playground signage,which shall be substantially in the form provided to the Community Partner during the application process and shall be 12 1/4 inches wide by 301/4 inches tall and mounted on poles in a mutually agreed location. (g) Shade.The Community Partner has agreed to accept the installation of the shade over the playground that was built with KaBOOM!and has agreed to: 1)determine if a permit is needed for shade and if so, identify what is needed to secure the permit.2)If permit is required,the Community Partner is responsible for filing the paperwork and making payment for the expenses related to securing the permit. The KaBOOM!shade vendor will provide the necessary designs and documentation needed to secure the permit. 3) In coordination with the Project Manager and the shade vendor,the plan for drilling the holes for the shade post footers, installation of the rebar and pouring the concrete will be identified. This will include the timeline for the footer work and site access for the contractor. 4)the Community Partner is responsible for ensuring the shade vendor has access to the site. Damage to sidewalks or fences is the responsibility of the Community Partner 5)Once the shade post footers are completed,the Community Partner must secure the site so that no kids play on the footers. 6)Within 2-3 days of the footers being completed, provide access for the shade vendor to install the shade.6)A maintenance plan for the shade is created and provided to KaBOOM! Once the shade is installed, it needs to be properly maintained. This includes checking the tension on the shade and tightening it as needed. In the event of a high wind event(ie. Hurricane),the shade needs to be taken down. Once the high wind event is over,the shade needs to be re installed.7) Payment for the shade will be paid directly to the shade vendor. (h) Playground Costs. The Community Partner is solely responsible for and shall hold KaBOOM!and the Funding Partner harmless from any costs beyond the proposed Project budget, including costs incurred by the Community Partner for any prior site preparation, upgrades or improvements or any equipment or materials purchased to supplement those secured by KaBOOM!. (i) 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 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 manlier 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. (j) 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 for 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 over any other insurance covering KaBOOM!and its funding partners.. (k) 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), 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 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. 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 Partner. (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 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 Build Day is not completed on the Build Day due to failure of the Community Partner, in which case the Community Partner shall secure the Certified Playground Safety Inspector. (c) Promotion. 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 playground on its list of KaBOOM! builds on the KaBOOM!website and KaBOOM!will send information to the Community Partner on playground maintenance programming and enhancements. 3. Build Day Postponement. The Build Day shall not be postponed except when weather or other conditions jeopardize the safety of the volunteers or threaten the structural integrity of the playground. The decision to postpone the Build Day will be made by majority agreement of the representatives of 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 Day is postponed, KaBOOM!,the Community Partner and the Funding Partner shall develop a plan for rescheduling the Build Day at the next earliest date possible for each party.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. Notwithstanding the foregoing, in the event that the date of the Build Day 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 Day. 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 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 hereunder 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!the by 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 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 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. 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 Playground Contract where indicated below, each of KaBOOM! and the Community Partner agrees, as of the date identified above, to be legally bound by all of the terms and provisions set forth above. «CP» KaBOOM!, Inc. By: Name: «Signatory_1» By. Title: «Sig_1_Title» Name: Gerry Megas Title: Chief Financial Officer Address: Address: 4301 Connecticut Ave. Suite ML-1 «S1_Address» Washington, DC 20008 T: «S1_Phone» T: (202)464-6180 F: (202)659-0210 «S1_Fax» e-mail:gmegasankaboom.orq e-mail: «S1 Email» «CP_2» «Signatory_2» «Sig_2_Title» «S2_Address» «S2_Phone» «S2_Fax» «S2 Email» Contact information for the person who should receive KaBOOM! invoices: Name:«Invoice_Name» Telephone number: «Invoice_Phone» Mailing Address: «Invoice Address» CITY OF CORPUS CHRISTI CERTIFICATION OF FUNDS (City Charter Article IV, Sections 7&8) I, the Director of Financial Services of the City of Corpus Christi, Texas (or his/her duly authorized representative), hereby certify to the City Council and other appropriate officers that the money required for the current fiscal year's portion of the contract, agreement, obligation or expenditure described below is in the Treasury to the credit of the Fund specified below, from which it is to be drawn, and has not been appropriated for any other purpose. Future payments are subject to annual appropriation by the City Council. City Council Action Date: Legistar Number: 16-0842 August 9, 2016 Agenda Item: Authorizing the City Manager or designee to execute documents to apply for and accept park equipment estimated value of $300,000 from KaBOOM! for park improvements at Dr. H. C. Dillworth Park and to accept $8,500 in donated funds from Beautify Corpus Christi Association, and to appropriate said funds in the no. 4720 Community Enrichment Fund for the park improvements. Amount Required: $8.500 Fund Name Accounting Unit Account No. Activity No. Amount Community Enrichment 4720 21460 $8,500 Total $8,500 ❑ Certification Not Required Director of Financial Services Date: JUL 2 6 2016