Agreement

KABOOM!

COMMUNITY PARTNER AGREEMENT
August 29, 2022

KABOOM! Inc. (referred to herein as KABOOM) is pleased that City of Glendale (referred to herein as the Community
Partner) has agreed to collaborate with KABOOM! and Fiesta Bow! Charities (referred to herein as the Funding Partner)
in the construction of a new playspace at O'Neil Park 6448 W Missouri Ave, Glendale, AZ 85301 (the “Project’). This
Community Partner Agreement (this “Agreement"), which sets forth the Community Partner's obligations in connection
with the Project and certain matters on which the parties have agreed, will, when executed by the duly authorized
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 $65,316 to KABOOM!, which
will apply the funds directly to the purchase of the 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 Week (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 playspace in its entirety, for the lifetime of the product, including the equipment and/or

safety surfacing at the time purchased by KABOOM! and/or the Funding Partner.

(ii) Permits. Prior to Build Week, the Community Partner shall obtain or cause to be obtained all necessary
permits and licenses regarding the installation, possession, and use of the playspace in compliance with

applicable laws and regulations.

(iii) Preparation. The Community Partner shall ensure that the Project site is safe for volunteers and children,
which responsibility includes: (1) preparing the site for the installation of the Project at least two weeks

before Build Week, which may include removing existing equipment, footers, and safety surfacing,
grading the land, repairing existing surfacing and removing fencing (2) conducting up to two (2) utility
checks as reasonably requested by KABOOM! with the appropriate utility companies, with the first test
being completed on or before Design Day (as defined below) and with all utility check documentation
provided upon completion to the KABOOM! Project Manager who shall supervise the planning and
installation of the equipment (the “Project Manager’); and (3) conducting up to 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 Week, including any postponement. This includes designating a Community Partner staff
member or volunteer to serve as the safety leader onsite. This safety leader will register volunteers,
ensure they have signed waivers, ensure they wear required cloth face coverings, ask that they leave the
project site if exhibiting symptoms of illness, and post signage for the project from the CDC (a copy of

which has been provided).
Maintenance. Maintenance of the facility and supervision of its use is the sole responsibility of the

V

¥ Community Partner. The Community Partner shall collaborate with KABOOM! during the Project planning
process to develop a maintenance program (a copy of which has been provided) for the play equipment
and, with the support of the property owner (if owner is a separate party), shall maintain the equipment
and the property before and after the Build Week to ensure a safe and attractive playspace. It is also the
responsibility of the Community Partner to ensure that no one enters the playground within 72 hours of
the completion of the final Build Day. Anyone accessing and/or touching the playground within 72 hours
of its completion could prevent the concrete from curing properly or the surfacing (if rubber) from setting
properly, leading to long-term damage that would be the responsibility of the Community Partner to
repair. In furtherance of the foregoing, in the event any 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 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 equipment available to children in
the same manner contemplated as of the Build Week and maintain (or permit the Community Partner to
maintain) such play equipment in accordance with the maintenance program. In addition, if applicable,
the Community Partner shall accept and maintain engineered wood fiber as play equipment safety
Surfacing, meeting standards established by Consumer Product Safety Commission guidelines, for the
lifetime of the playspace. Guidance and materials for the purpose of developing a maintenance plan for
the playspace are available, upon request, from the play equipment and safety surfacing manufacturers.

(c) Design Day. In the event Public Health guidelines and public health conditions permit public gatherings, the

Community Partner agrees to host a KABOOM! facilitated Design Day event with at least twenty (20) adult
volunteers and twenty (20) youth. Such adult volunteers shall remain engaged in the planning activities

throughout the Project's planning process.
permit or preclude public gatherings,

In the event Public Health guidelines and public health conditions do not
Design events remotely and virtually.

the Community Partner agrees to participate in KABOOM! facilitated
adult volunteers and twenty (20) youth. Such adult

The Community Partner will recruit at least twenty (20)
volunteers shall remain engaged in the planning activities throughout the Project's planning process.

Build Week. The Community Partner shall recruit 40-60 community volunteers, approximately 10-25 per
day, to participate in a 3-4 day installation event for the Project, which is scheduled to occur from November
16-18, 2022 and which is referred to herein as the Build Week. The Community Partner shall ensure that all
volunteers sign a waiver (a copy of which has been provided). During the Build Week, the Community
Partner shall provide food, water, tools, dumpsters, music, hand washing and/or hand sanitizing facilities,

and restroom facilities for all volunteers on each day.
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

(k)

()

i is the sole owner of all right, title, and interest in and to its respective
KABOOM! and the Funding Partner is the sole g jared

take all steps to
Marks. The parties acknowledge that KABOOM! and the Funding Partner may
Marks as they deem appropriate. Any use of the Marks will inure to the sole benefit of KABOOM! or the
. The Community Partner shall not use the Marks in any manner that would
ge or negatively reflect upon the Marks.

Funding Partner (as applicable) So een neue
harm the reputation of KABOOM! or the Funding Fartner or disp |
Upon neko 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.
Signage. The Community Partner shall allow the names and logos of KABOOM! and the Funding Partner Lo
be displayed on permanent signage (a copy of which has been provided), and shall be no greater than 19 %

inches wide by 30 % inches tall and mounted on poles in a mutually agreed location. lf applicable, the
Community Partner shall allow individual instructional signs to accompany the equipment.
Costs. The Community Partner is solely responsible for and shall hold KABOOM! and the Funding Partner

harmless from any costs incurred by the Community Partner for any prior site preparation, upgrades, or
improvements, or any equipment or materials purchased to supplement those secured by KABOOM!.

Warranty. The equipment and the safety surfacing related to the Project may be covered under warranty by
the applicable manufacturers (a copy of which has been provided). The Community Partner acknowledges

that any warranties and/or guarantees on any equipment or material are subject to the respective
manufacturer's terms thereof, and the Community Partner agrees to look solely to such manufacturers for any
such warranty and/or guarantee. Neither KABOOM! nor the Funding Partner nor any of their respective
affiliates, directors, officers, managers, partners, members, shareholders, employees, agents or
representatives, have made nor are in any manner responsible or liable for any representation, warranty, or

guarantee, express or implied, in fact or in law, relative to any equipment or material, including its quality,

mechanical condition or fitness for a particular purpose.

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 and non-contributing with any other insurance covering KABOOM! and its

funding partners.
Indemnification. The Community Partner shall indemnify and hold harmless KABOOMI, 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 attomeys' 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 play property and
equipment, including those for personal injury, death, or property damage, except to the extent resulting from
the gross negligence or willful misconduct of such indemnified person. This provision shall survive any

termination or expiration of this Agreement.

Data and Reporting Requirements. The Community Partner shall distribute and complete play-related surveys,
provided by KABOOM, to its stakeholders, including parents/caregivers, volunteers, and staff (i) promptly following

the execution of this agreement (ii) 2 weeks following the completion of the Project (iii) 12 months after the
completion of the Project.

Code of Conduct. The Community Partner agrees to comply with the build site rules (a copy of which has
been provided), The Community Partner shall allow the build site rules to be displayed on site and
communicate and enforce the build site rules for all participants in the Project's Design Day and Build Week

events.

(m) Post-Build Week. The Community Partner shall use its commercially reasonable efforts to provide, and otherwise

shall cooperate in good faith with KABOOM! regarding obtaining, such other information related to the Project as
KABOOM! from time to time may request.

2. Obligations of KABOOM!.

(a) Project. KABOOM! shall provide technical and organizational leadership and guidance for the Project and
shall:

(i) Coordinate Funding Partner participation, facilitate design, including regular planning meetings, and work
with vendors to procure 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.

(i) On the behalf of and in collaboration with the Community Partner, KABOOM! shall manage construction
logistics for the Project, coordinate site preparation activities with the Community Partner, inventory
equipment and materials, and assure that the necessary small hand tools and materials and other general
supplies are available on the Build Week; Lead the Build Week activities, including the coordination of
Build Week volunteers.

(iii) Make available certain educational and promotional materials related to the Project.

(b) Inspection. KABOOM!, in collaboration with the Community Partner, will secure an Installation Supervisor to
review the structure at the conclusion of the Build Week to ensure that the structure Is safe and built to all
appropriate standards and guidelines, unless the installation is not completed during the Build Week due to

failure of the Community Partner, in which case the Community Partner shall secure the Installation
Supervisor.

(c) Promotion. KABOOM! will provide proposed promotional materials relating to the Project for the Community
Partner's review and approval, which approval shall not be unreasonably withheld or delayed.

(d) Website Listing. KABOOM! will place the playspace on its list of KABOOM! builds on the KABOOM! website,

and KABOOM! will send information to the Community Partner on maintenance programming and
enhancements.

3. Build Week Postponement.

(a) COVID-19 Public Health Compliance. The Project Manager will monitor public health guidelines and local
conditions to ensure adherence to public health safety at specific timelines prior to Build Week. If the project
does not meet requirements, KABOOM!, the Funding Partner, and the Community Partner will agree on a
postponement date at least 1 month later than the original Build Week and if health indicators allow project
completion. If health indicators do not allow project completion within close to the Originally scheduled date,

project will be rescheduled on a mutually agreed upon date or converted to a professional installation with no
volunteers participating in building the playspace.

(i) If a project does not meet requirements at 6 weeks out, the design process will be completed and

KABOOM! will work with relevant parties (playground manufacturer, playground safety surfacing and
construction materials) to reschedule deliveries.

(il) Ifa project does not meet requirements at 4 weeks out, the equipment may already be in

manufacturing, KABOOM! will work with the manufacturer to halt manufacturing if possible and find a
Storage solution if not possible.

(iii) Ifa project does not meet requirements at 2 weeks out, KABOOM! will reschedule deliveries of

construction materials and arrange storage for any materials that cannot be rescheduled together with
the Community Partner.

t or less, KABOOM! will reschedule deliveries of
scheduled together with

(iv) If a project does not meet requirements at 1 week ou
construction materials and arrange storage for any materials that cannot be re

the Community Partner.
(v) If health indicators do not allow project completion on the reschedule date, the project will need to be
postponed and rescheduled when health indicators allow project completion.

(b) Weather or other conditions unrelated to COVID-19. The Build Week shall not be postponed except when

weather or other conditions jeopardize the safety of the volunteers or threaten the structural integrity of the
The decision to postpone the Build Week will be made by majority agreement of the

playspace. A
representatives of KABOOM!, the Community Partner, and the Funding Partner, except where such decision

must be made by KABOOM! on the construction site and representatives of the Community Partner and the
Funding Partner are not available for consultation. In the event that the Build Week is postponed, KABOOM!,

the Community Partner, and the Funding Partner shall develop a plan for rescheduling the Build Week at the
next earliest date possible for each party. The Funding Partner shall be responsible for all additional expenses

related to the rescheduled Build Week, including, without limitation, equipment, labor and materials, storage
and travel costs and expenses; provided, however, that the Funding Partner shall be notified of the estimated
amount of such additional expenses in connection with rescheduling of the Build Week. Notwithstanding the
foregoing, in the event that the date of the Build Week is cancelled or changed as a result of the Community
Partner's failure to satisfy its obligations in connection with the Project, then the Community Partner shall be

liable to KABOOM! and the Funding Partner for all such additional expenses related to the rescheduled Build

Week.

4. Funding Partner Relations. KABOOM! has a separate contract with the Funding Partner pursuant to which the
Funding Partner has agreed to provide financial and human resources for the Project. In recognition of the Funding
Partner's contribution of such resources, the Funding Partner shall receive first placement on any recognition
materials developed for the Project, including signage, banners, T-shirts, press releases, website and newsletter
Stories, and flyers, and the Community Partner shall not solicit sponsors or donors in relation to the Project whose
products or services directly compete with the products or services of the Funding Partner as identified to the
Community Partner by KABOOM! and/or the Funding Partner. In the event the Community Partner solicits other
sponsors or donors, then the Community Partner shall not permit such sponsors or donors to compete with the

Funding Partner for signage and sponsorship recognition.

Termination. !n 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 KABOOMI, less expenses already committed and/or
incurred prior to the date of such termination. If, upon termination as provided herein, the sum due KABOOM! by
the Community Partner exceeds the sum paid to KABOOM! hereunder, the Community Partner shall pay
KABOOM! for any such additional sum due upon presentation of appropriate documentation within thirty (30) days
of invoice. Except as set forth above, upon any termination, this Agreement shall become void and have no effect,

and no party shall have any liability to the other party, except that nothing herein will relieve any party from liability
for any intentional breach of this Agreement prior to such termination.

represents to KABOOM! that all information provided by it to
, correct and complete in all respects and does not omit any
has all requisite power and authority, including any necessary

General Provisions. The Community Partner

KABOOM, including in the application, is true
information relevant to the Project. Each party

approval by its governing body, to execute and deliver this
This Agreement may not be assigned or transferred by eith
party hereto. This Agreement shall inure to the benefit of and be binding
successors and permitted
Agreement shall be governed by and construed under the laws of the St
of laws principles to the extent that the application of the laws of anoth

Agreement, and to perform its obligations hereunder.
er party without the prior written consent of the other

y facsimile or electronic mail transmission (the

é 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

its rights under such sections as if it were a party to this Agreement.

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Kaboom! Community Partner Agreement

CITY OF GLENDALE SIGNATURE PAGE

CITY OF GLENDALE, an Arizona
municipal corporation

Kevin R. Phelps

City Manager
ATTEST:
Julie K. Bower, (SEAL)
City Clerk
APPROVED AS TO FORM:

Michael D. Bailey,
City Attorney