Columbus, Georgia

Columbus, GA Letter Agreement - 08/01/03

Page 7 of 7

THIS KaBOOM! COMMUNITY PARTNER AGREEMENT is made this 5th day of August 2003 by

and between KaBOOM! and City of Columbus.

1. RECITALS



WHEREAS, KaBOOM! is a non-profit organization 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 installation event known as a ?Build Day?;



WHEREAS City of Columbus is entering into a written agreement with KaBOOM! for

services to plan, design and construct a community-built playground (?Program?);



WHEREAS KaBOOM! has received charitable support from W. C. Bradley Co. and Home

Depot (?Funding Partner?) for this Program and has entered into a separate

agreement with the Funding Partner, the result of which are financial, in-kind

and/or 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 CITY OF COLUMBUS

1.1. City of Columbus agrees to be the Community Partner organization

(?Community Partner?) for the W. C. Bradley Co. and Home Depot playground

project at Benning Hills Park.



1.2. City of Columbus agrees to be responsive to the discreet 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,

City of Columbus will work with KaBOOM!, W. C. Bradley Co. and Home Depot, 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 recruit and secure at least 5-10

volunteers for activities two to three days prior to Build Day, and at least

50-100 volunteers for the Build Day playground installation.

1.3.2. The Community Partner agrees to be responsible for preparing the site

for the installation of the new playground, which includes but is not limited

to removing existing playground equipment and safety surfacing, grading the

land and performing soil tests.

1.3.3. The Community Partner agrees to provide certain provisions for the

volunteers working on the construction project, including but not limited to

food (breakfast snacks, lunch and mid-day snacks), water and restroom

facilities.



1.4. In support of this project, City of Columbus is responsible for

contributing $7,000 to the playground project.

1.4.1. All funds will go directly to purchasing playground equipment.

1.4.2. Upon receipt of this signed agreement, KaBOOM! will invoice City of

Columbus for the full amount of this contribution, and it will be due at least

30 days before the Build Day September 25, 2003.

1.4.3. If City of Columbus does not remit its invoice by the due date, KaBOOM!

reserves the right 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, City of Columbus may be subject to reimburse KaBOOM! for

expenses incurred to prepare for the Build Day, including but not limited to

the purchase of playground equipment and safety surfacing, tools and materials,

and airline tickets.

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 City of Columbus within 120 days after the Build Day.



1.5. The Build Day must occur in calendar year 2003 on September 25.

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

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 designates.

1.5.2. In the event that the Build Date is cancelled or changed solely by City

of Columbus, City of Columbus 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.

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 KaBOOM! 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.



1.6. City of Columbus shall attach documentation showing proof of land

ownership evidenced by a deed granting title of the property to City of

Columbus 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), City of Columbus will maintain

the property before and after the build to ensure a safe and attractive play

area.



1.7. City of Columbus shall collaborate with KaBOOM! during the planning of

this Project to develop a maintenance program for the playground that will be

implemented upon completion of the playground installation.



1.8. City of Columbus will obtain and maintain Commercial General Liability and

Worker?s Compensation insurance policies from the date of this agreement and

for a minimum of one (1) year thereafter.



1.9. City of Columbus will obtain all necessary and appropriate permits and

licenses regarding the installation and possession of a playground prior to

Build Day in compliance with local and state laws, regulations and guidelines.



1.10. City of Columbus is responsible for conducting a utility check with the

appropriate utility companies regarding the designated playground site at last

two weeks prior to the Build Day. Documentation of the utility check must be

provided to the KaBOOM! Project Manager not less than eight (8) weeks prior to

the Build Day.



1.11. City of Columbus 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 material

delivery, during the period(s) when site preparation occurs on the playground

site, and until the conclusion of the Build Day.



1.12. City of Columbus 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. Neither

KaBOOM! nor its Funding Partner(s) shall be liable for payment. Community

Partner will hold KaBOOM! harmless of any payments or liability with respect to

the additional items ordered.



1.13. City of Columbus will seek prior approval from KaBOOM! and/or W. C.

Bradley Co. and Home Depot for any written and/or printed materials that

reference the Program and/or contain the logos of KaBOOM! or W. C. Bradley Co.

and Home Depot, including but not limited to press releases, fliers and

promotional materials. City of Columbus will work in collaboration with

KaBOOM! and/or W. C. Bradley Co. and Home Depot to secure media coverage.

KaBOOM! will provide mutual opportunities for the Community Partner to review

and approve materials prepared by KaBOOM! related to this Project.



1.14. City of Columbus will allow the name and/or logo of W. C. Bradley Co. and

Home Depot and KaBOOM! on playground signage, in a mutually 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.



1.15. City of Columbus understands that the playground will be added to the

roster of KaBOOM! Network of Playgrounds 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 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 of the

playground site preparation activities with the Community Partner, inventory

equipment and materials, and assure that the necessary tools and materials are

available to construct the 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; and,



2.1.6. Provide for and coordinate the participation of the Funding Partner, W.

C. Bradley Co. and Home Depot, which has committed to provide KaBOOM! with

financial, human and/or in-kind resources to bring to fruition the playground

project with City of Columbus.



2.2. KaBOOM! (in collaboration with City of Columbus), will provide or secure a

Certified Playground Safety Inspector (CPSI) to review the playground structure

to ensure that it is safe and built to all appropriate standards and guidelines.

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, KaBOOM! and its Funding Partner(s) assume

no liability from injury or death upon and after review of the playground is

completed.

2.2.3. In accordance with Section 4, in the event that the Build Day is delayed

or not completed on the scheduled day due to failure of City of Columbus to

meet the terms of this Agreement, then City of Columbus will be responsible for

securing a CPSI to review the playground.



3. FUNDING PARTNER RELATIONS

3.1. KaBOOM! has a separate agreement with a KaBOOM! Funding Partner, W. C.

Bradley Co. and Home Depot (?Funding Partner?), whose contributions to KaBOOM!

are helping to make this Project possible.



3.2. The Community Partner shall not solicit sponsors 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 certain rights to promote their

affiliation with this Project to the general public, including but not limited

to name recognition via this Program?s signs, T-shirts, media materials and

public-address systems. Conversely, donors are individuals or groups whose

gifts to this Project require personal acknowledgement and recognition 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.

3.3.1. The Community Partner may deem that all sponsors and donors shall

receive recognition, regardless of contributions.



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,

including the equipment and/or safety surfacing purchased by KaBOOM! and/or its

Funding Partner(s).



4.2. It is agreed that City of Columbus will indemnify and hold harmless

KaBOOM! and/or the KaBOOM! funding partner associated with this playground

project from any claim or action, including but not limited to claims and

actions for personal injury, including death, 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. The KaBOOM! project manager will be a certified playground safety

inspector and he/she will review the playground structure upon completion at

the end of the scheduled Build Day. The manufacturer?s representative/installer

will certify that the playground was installed to manufacturer?s specifications

at the end of the Build Day.

4.3.1. The City of Columbus agrees to assume full risk upon certification of

the playground.

4.3.2. City of Columbus shall be responsible for securing safety measures of

the playground to prevent injury or death 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 CPSI leave 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, City of Columbus 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 KaBOOM! . Neither KaBOOM! nor the Funding Partner assume any

responsibility and shall not be in any way liable for injuries or death that

may occur if the site is not completed in accordance with the specified

guidelines.



4.4. Maintenance of the playground facility and supervision of its use is the

sole responsibility of City of Columbus. 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. directly,

or via its KaBOOM! project manager, a play equipment maintenance kit from

Playworld Systems Inc., the provider of its playground equipment.



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.



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: Darell Hammond, Chief Executive Officer

KaBOOM!

2213 M Street NW, Suite 300

Washington, DC 20037 USA

202-659-0215



Copy to: Evelyn Furia, Community Outreach Coordinator

(Use the same KaBOOM! address as above)



To Corporation: Cammie Currie

City of Columbus

1400 Cusseta

Columbus, GA 31902

(706) 653 4190



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, successors, and personal representatives

of the parties to this Agreement, except to the extent of any contrary

provision in this Agreement.



6.5. Disagreements. In the event of a disagreement between KaBOOM! and City of

Columbus concerning these matters, the decision of KaBOOM! shall be final.



6.6. 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 enforceability of the

remaining provisions shall not in any way be affected or impaired thereby.



6.7. Complete Agreement. This Agreement, when executed by the duly 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.



6.8. Assignment. This Agreement may not be assigned, delegated or transferred

by either party without the prior written consent of the other party hereto.



6.9. 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, war,

delay of transportation, or inability due to the aforementioned causes to

obtain necessary labor, materials or facilities.



6.10. Waiver. A waiver by either party of a breach or failure to perform shall

not constitute a waiver of any subsequent breach or failure.





IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the

day and year first above written.



By signing this Agreement, City of Columbus 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 KaBOOM!.

We will then sign the originals, and mail one original and one copy back to you

for your files.



KaBOOM! and W. C. Bradley Co. and Home Depot look forward to working with City

of Columbus to make this playground a reality.





Date Terms agreed to:

Date Terms agreed to:



By:

By:

Carmen Cavezza

City Manager

Authorized Signature for City of Columbus

Phone Number:

Fax Number:

Email Address: Darell Hammond

Chief Executive Officer

Phone Number: 202-659-0215, ext. 229

Fax Number: 202-659-0210

Email Address: Evelyn@kaboom.org

City of Columbus

100 10th Street

Columbus, GA KaBOOM!

2213 M Street NW, Suite 300

Washington, D.C. 20037-1480



Contact information for the person who should receive KaBOOM! invoices:

Name:



Mailing Address: Telephone Number: ]



Fax Number:



Email Address:



Copy to: Copy to:

Joyce Elaine Joyce, National Director, Administrative Services

Kate Becker, National Director, Program Management





Attachments: Utility Inspection Form (for completion and return to KaBOOM!)

Certified Playground Installer Certificate (sample)

Playworld Systems Inc. Playground Equipment Warranty (sample)



Copy: Name of Funding Partner Contact Person

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