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R14-099 RESOLUTION R14 -099 2 3 A RESOLUTION OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, APPROVING THE RIGHT OF 5 ENTRY PERMIT, LICENSE AND DEVELOPMENT 6 AGREEMENT FOR FITNESS ZONE EQUIPMENT 7 INSTALLATION WITH THE TRUST FOR PUBLIC 8 ' LAND FOR THE FITNESS ZONE AT CONGRESS 9 AVENUE BARRIER FREE PARK; AUTHORIZING 10 THE CITY MANAGER TO SIGN THE AGREEMENT 11 ' ; AND ALL NECESSARY DOCUMENTS ASSOCIATED 12 ' ; HEREWITH; PROVIDING AN EFFECTIVE DATE. 13 14d 15 WHEREAS, the Trust for Public Land (TPL) has been awarded a grant from the 16 I Quantum Foundation, Inc., in the amount of $135,000 to help fund the construction of 17 Fitness Zone at Palm beach County's John Prince Park, located in Lake Worth and the City 18 of Boynton Beach Barrier Free Park; and 19'' WHEREAS, the City of Boynton Beach has been notified that $67,500 is being 20 allocated to the construction and administrative costs for the installation of the Fitness 21; Zone; and a i 22 11 WHEREAS, the City is partnering with TPL to develop the Fitness Zone and will 23' be responsible for the project costs not covered by the Quantum Foundation, Inc., in the 24i amount of $98,331; and 25' WHEREAS, upon the recommendation of staff, the City Commission deems it to 261 be in the best interests of the citizens and residents of the City of Boynton Beach to approve 27 the Right of Entry Permit, License, and Development Agreement for Fitness Zone 28 Equipment Installation with The Trust for Public Land for the Fitness Zone at Congress 29 : I Avenue Barrier Free Park and to authorize the City Manager to sign the Agreement and all 301 documentation. \ \apps3city ebb \ auto \Data\222 \ Items \213 \3145 \4131 \Reno _Frtness_Zone Right of Entry License and_DevAgmtdoc 1r 1 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF 2 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: 3 Section 1. The foregoing "Whereas" clauses are true and correct and are hereby 4 ratified and confirmed by the City Commission. 5 Section 2. The Right of Entry Permit, License and Development Agreement for 6 Fitness Zone Equipment Installation with The Trust for Public Land for the Fitness Zone at 7 Congress Avenue Barrier Free Park and to authorize the City Manager to sign the 8 1 Agreement and all necessary documentation, a copy of which is attached hereto as Exhibit 9 "A ". 10 Section 3. This Resolution shall become effective immediately upon passage. 11 PASSED AND ADOPTED this 7 day of October, 2014. 12;' 13 1 CITY OF BOYNTON BEACH, FLORIDA 14 / ' 16 ( � 4 ayor — 1 !dl/ Ta ° r/ 17 I 1v ‘ 181 ►\ ! uR 191 V- u.•.r- JoeCasello 201 2lr 1 22 : Comm' • sio : • k ker 23s° " -mi 1 25 i ommis o� Mack 10 ,11°F 26 ATTEST: 4 47 27 28 Commissioner — Michael M. Fit. •atrick 30 � Pkaux } 3 lir et M. Prainito, MMC 33 k 34 35 o . i:te Seal 0 1- .A• 22 \ Items \213 \3145 \4I 31 \Reso _- Fitness_Zone_Right_ot_ Entry_Permit_License_and_Dev_Agmt doc R I'E —09 ci RIGHT OF ENTRY PERMIT, LICENSE, AND DEVELOPMENT AGREEMENT FOR FITNESS ZONE EQUIPMENT INSTALLATION (TRUST FOR PUBLIC LAND — FITNESS ZONES ®) Licensee: The Trust for Public Land Tel: 305 - 667 -0409 Licensor: City of Boynton Beach 561- 742 -6000 RECITALS This Right of Entry Permit, License, and Development Agreement ( "Agreement ") for Fitness Zone equipment installation is made and entered into between The Trust for Public Land, a California nonprofit corporation ( "TPL" or "Licensee ") and City of Boynton Beach, a Florida political subdivision of the State of Florida, by and through its City Commission, ( "City or Licensor ") as of the date of the last party to execute this Agreement, with respect to the following facts: Whereas, the City owns, operates and maintains Congress Avenue Barrier Free Park, located at 3111 South Congress Avenue, Boynton Beach, FL 33426 (Property);and Whereas, TPL is a national non - profit land conservation organization that has as one its purposes the "Parks for People" program, which assists local communities to build new parks in their neighborhoods; one aspect of the Parks for People program is installation of exercise equipment to provide "Fitness Zones" in local parks for the use of area residents; and Whereas, in furtherance of TPL's Parks for People Program, TPL is receiving a Grant from the Quantum Foundation, attached hereto and incorporated herein by reference in Exhibit "F" for the purpose of: (i) purchasing from Greenfields Outdoor Fitness, Inc. ( "Supplier ") exercise equipment ( "Equipment ") for Barrier Free Park ( "Property ") (ii) contract with D. W. Recreation Service's, Inc. ( "Installer ") for the installation of the Equipment on the Property in accordance with the terms of the Final Acceptance and Assignment of Warranty Agreement, the Grant Agreement and this Agreement; and Whereas, this Agreement constitutes a Right of Entry Permit, License, and Development Agreement for Fitness Zone Equipment and Installation for TPL, Installer and their agents and employees to enter the Property and install the Equipment, and also contains the terms governing TPL's installation of the Equipment and assignment of the warranties thereto to City, and City's acceptance of the Equipment and its warranties and assumption of responsibility following acceptance; and Whereas, the Equipment that TPL shall install is identified in Exhibit "A ", attached hereto and incorporated herein by reference, and its specifications are contained in Exhibit "B ", attached hereto and incorporated herein by reference and the Equipment installation location shall be in accordance with the Site Plan identified in Exhibit "C" attached hereto and incorporated herein by reference; and Whereas, entering into this Agreement serves a public purpose. NOW, THEREFORE, in consideration of the foregoing premises, the parties mutually agree as follows: 1. CONTROLLING AGREEMENT: In the event of any conflict or inconsistency between the terms of this Agreement and the terms of the Final Acceptance and Assignment of Warranty Agreement identified in Exhibit "E" attached hereto and incorporated herein by reference ( "Acceptance Agreement ") the terms of the Acceptance Agreement shall control. 2. GRANT OF LICENSE: TPL, its employees, contractors and agents, after execution of this Agreement by the City, are hereby granted a license to access the Property to install the Equipment in accordance with the terms of this Agreement. 3. TERM: This Agreement shall become effective upon full execution and delivery hereof by the parties. This Agreement shall expire on the date upon which City provides a fully executed Acceptance Agreement to TPL, accepting the Equipment and Installation on a site - specific basis, as described in Section 11 below, except as may be otherwise provided in this Agreement. In no event, however, shall the term of this Agreement exceed twelve (12) months, unless mutually agreed upon, in writing, by the parties. Notwithstanding any other provision herein, and regardless of the manner or duration of use of said Property by TPL, either party shall have the right to terminate this Agreement, if after giving ten (10) business days' notice of the grounds thereof, the other party has failed to cure such grounds or, in the event the nature of the grounds for termination are such that more than ten (10) business days are required to effect a cure, if within such ten (10) business days the other party has failed to commence such cure and fails to diligently pursue it thereafter. Any notice hereunder to the other party may be given by delivering the same to the other party personally or by mailing the same addressed to the other party at the address herein given for notices. Upon any termination of this Agreement by revocation or otherwise, TPL shall promptly restore the Property to a condition equal to the surrounding area, to the satisfaction of City. In the event of TPL's failure to do so after a reasonable period of time, the City may restore said Page 2 Property entirely at the risk and expense of TPL. 4. PAYMENTS. TPL will be fully responsible for all payments to the Suppliers for the cost of acquisition and delivery of the Equipment, including payments to the Installer for installation in accordance with the terms of this Agreement. The City shall reimburse TPL one half of the cost of Fitness Zone equipment and installation and associated administrative costs, and 100% of the cost of the surfacing, including surface materials, delivery and installation. The City shall provide TPL a $25,000 construction draw once the Equipment has been delivered to the Property and inspected by the Installer and deemed free of defect by the Installer. Installer to provide City with written verification the Equipment is free of defect within 5 days of delivery. City will process construction draw payment within 45 days of receipt of notification of satisfactory condition of equipment by Installer City will attempt to process construction draw within 10 days of Installer's notification Consequently, within thirty (30) days following execution of the Acceptance Agreement, City shall pay to TPL the sum not to exceed $73,331 as its' share of the cost of the Equipment, Installation, administrative costs and surfacing to TPL pursuant to this Agreement. TPL shall be required to provide City paid in full invoices from the suppliers and installer supported by an affidavit from TPL Counsel stating that such invoices have been paid in full and satisfied, prior to final reimbursement. 5. CONSTRUCTION MANAGEMENT. TPL will provide general management of construction activity, including but not limited to scheduling construction activity, insuring construction meets the terms of the Acceptance Agreement, and the Grant Agreement between TPL and Quantum Foundation, conducting progress meetings, providing meeting minutes and coordinating communications between all parties. City staff will participate in the scheduled progress meetings to keep abreast of construction activity and to insure that work complies with the terms of this Agreement. TPL shall A. Comply with and abide by all applicable rules, regulations and directions of City B. Comply with all applicable City ordinances, County, State and Federal laws, and in the course thereof obtain and keep in effect all permits and licenses required to conduct the permitted activities on the Property. C. Licensed activities shall occur during normal business hours, Monday through Friday, at City's sole discretion. Weekend work or work on City holidays is not permitted. TPL's Project Manager shall contact the Recreation & Parks Department Director, at the City at least two (2) days prior to TPL's initial access to the Property, in regard to all access and permitted activities, and in the event of emergencies Page 3 D. Maintain to City's satisfaction the Property and surrounding area in a safe and sound condition, free from danger, injury or threat of harm to the public, and as to prevent the existence of an attractive nuisance. E. Assume the risks and bear all costs of damage or destruction, and loss due to acts of God, theft, burglary or vandalism to any and all of TPL's equipment, materials, tools, and vehicles owned, hired, leased, or used by TPL for this Agreement, except to the extent that such damage or destruction and loss result from the negligence or willful misconduct of City. F. Field verify utility locations prior to conducting permitted activities and repair or replace any and all park property lost, damaged, or destroyed as a result of, and either directly or indirectly connected with work done pursuant to this Agreement with due diligence and speed. TPL shall promptly notify the City's Recreation & Parks Director in the event of damage caused by TPL's activities to Barrier Free Park Park, the Property's equipment, and /or improvements, including landscaped areas Should TPL fail to promptly make repairs after notice by City of damage, loss or destruction of the Property, City may have repairs made and TPL shall pay the costs directly associated with such repairs. G. Provide all safety and security signs, barricades, pedestrian and traffic cones, lights and other related safety fixtures or measures in addition to any requested by City which will forewarn the public of the existence of any hazards related to the licensed activities, and of any detours necessary to prevent vehicular and /or personal injury or property damage accidents due to TPL's activities. H. Bear the sole cost and expense of all work performed by TPL. 1. A representative from TPL will perform regularly scheduled inspections of the Property during the term of this Agreement J Pay for all costs, fees or charges for the application, installation, maintenance, or use of any utilities or services required in the exercise of the permission herein given. 6. REPAIR OF DAMAGE. In addition to TPL's other responsibilities under this Agreement, if TPL becomes aware that any portion of the Property is damaged or threatened by any of the activities of TPL or anyone acting by or through TPL hereunder, with the exception of any disturbance of the Property necessary to install the Equipment, TPL shall promptly notify City of such damage or threat by facsimile or hand delivery. TPL shall remedy any and all such damage or threat and restore the Property to its previous condition, subject to City's approval. 7. INDEMNIFICATION. TPL shall indemnify, defend and hold harmless the City, it's elected and appointed officers, employees and agents (the "City's Indemnified Parties ") from and against any and all liability, including but not limited to Page 4 demands, claims, actions, fees, costs and expenses (including attorneys and expert witness fees) arising from or connected with TPL's acts or omissions arising from or related to this Agreement, such indemnification to survive only until such time that City has executed the Acceptance Agreement as contemplated herein. 8. NO RESPONSIBILITY OR LIABILITY. Upon execution by the City and delivery to TPL of the Acceptance Agreement pursuant to this Agreement, TPL shall cease to be liable or responsible for any and all claims, demands, liens, liabilities, penalties, fines, fees, judgments, costs, expenses, losses and damages (collectively, "Claims "), whether or not a lawsuit is filed, including but not limited to Claims for damage to property or injury or death to persons, sustained by any persons or entities, which Claims are alleged or claimed to have arisen out of, or in connection with, in whole or in part, the use by the public of the Equipment, failure of the equipment, or the maintenance, repair or replacement of the Equipment by the City. Further, the City agrees that after it executes and delivers the Acceptance Agreement to TPL pursuant to this Agreement and provided that TPL has fully complied with the terms and conditions of this Agreement, the City shall not assert any action against TPL nor shall the City seek any contribution from TPL for any and all Claims, whether or not a lawsuit is filed, including but not limited to Claims for damage to property or injury or death to persons, sustained by any persons or entities, which Claims are alleged or claimed to have arisen out of, or in connection with, in whole or in part, the public's use of the Equipment on the Property, failure of the Equipment or the maintenance, repair or replacement of the Equipment by the City. 9. GENERAL INSURANCE REQUIREMENTS: Without limiting TPL's indemnification of the City Indemnified Parties, and during the term of this Agreement, TPL shall provide and maintain and shall require Installer to maintain the following programs of insurance specified in this Agreement. Such insurance shall be primary to and not contributing with any other insurance or self - insurance programs maintained by City, and, such coverage shall be provided and maintained at TPL's own expense A. Evidence of Insurance. Certificate(s) or other evidence of coverage satisfactory to City shall be delivered to the City's Recreation & Parks Department prior to commencing services under thisAgreement Such certificates or other evidence shall i. Specifically identify this Agreement. ii. Clearly evidence all insurance required in this Agreement. iii. Contain the express condition that the City is to be given written notice by Page 5 mail at least thirty (30) days in advance of cancellation for all policies evidenced on the certificate of insurance. iv. Include copies of the additional insured endorsement to the commercial general liability policy, adding the City Indemnified Parties as additional insured for all activities arising from this Agreement. B. Insurer Financial Ratings. Insurance is to be provided by an insurance company acceptable to the City, with an A.M. Best rating of not Tess than A: VII, unless otherwise approved by the City. C. Failure to Maintain Coverage Failure by TPL to maintain the required insurance, or to provide evidence of insurance coverage acceptable to City, shall constitute a material breach of this Agreement upon which the City may immediately terminate or suspend this Agreement. D. Notification of Incidents, Claims or Suits. TPL shall report to City: i Any accident or incident relating to services performed under this Agreement which involves injury or property damage which may result in the filing of a claim or lawsuit against TPL and /or City. Such report shall be made in writing within 24 hours of TPL receiving notice of such occurrence. ii. Any third party claim or lawsuit filed against TPL arising from or related to services performed by TPL under this Agreement iii. Any injury to a TPL or sub - contractor employee, which occurs on the Property. iv. Any loss, disappearance, destruction, misuse, or theft of any kind whatsoever of City property, monies or securities entrusted to TPL under the terms of this Agreement. E. Compensation for City Costs. In the event that TPL fails to comply with any of the indemnification or insurance requirements of this Agreement, and such failure to comply results in any costs to the City, TPL shall pay full compensation for all costs incurred by City resulting from such non - compliance. F Insurance Coverage Requirements for Contractors. TPL shall ensure any of its contractors performing services under this Agreement meet the insurance requirements of this Agreement by either: i. Providing evidence of insurance covering the activities of contractors, or ii. Providing insurance certificates and additional insured notices submitted by Page 6 contractors evidencing that contractors maintain the required insurance coverage. City retains the right to obtain copies of evidence of contractor's insurance coverage at any time. 10. INSURANCE COVERAGE REQUIREMENTS: Commercial General Liability TPL agrees to maintain Commercial General Liability at a limit of liability not less than $1,000,000 Each Occurrence. Coverage shall not contain any endorsement(s) excluding nor limiting Premises /Operations, Personal Injury, Product/Completed Operations, Contractual Liability, Severability of Interests or Cross Liability. Coverage shall be provided on a primary basis Business Automobile Liability TPL agrees to maintain Business Automobile Liability at a limit of liability not less than $1,000,000 Each Occurrence with a $2,000,000 aggregate. Coverage shall include liability for Owned, Non -Owned & Hired automobiles. In the event TPL does not own automobiles, TPL agrees to maintain coverage for Hired & Non -Owned Auto Liability, which may be satisfied by way of endorsement to the Commercial General Liability policy or separate Business Auto Liability policy. Coverage shall be provided on a primary basis Worker's Compensation Insurance & Employers Liability TPL agrees to maintain Worker's Compensation Insurance & Employers Liability in accordance with Florida Statute Chapter 440. Coverage shall be provided on a primary basis Additional Insured TPL agrees to endorse City as an Additional Insured with a CG2026 Additional Insured or its equivalent — Designated Person or Organization endorsement to the Commercial General Liability. The additional insured shall read "City of Boynton Beach ", a Political Subdivision of the State of Florida, its Officers, Employees and Agents Coverage shall be provided on a primary basis. Waiver of Subrogation TPL hereby waives any and all rights of Subrogation against the City, its officers, employees and agents for each required policy. When required by the insurer, or should a policy condition not permit an insured to enter into a pre -loss agreement to waive subrogation without an endorsement, then TPL shall notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation requirement shall not apply to any policy which includes a condition to the policy specifically prohibiting such an endorsement or voids coverage should TPL enter into such an agreement on a pre -loss basis. 11. FINAL ACCEPTANCE AND ASSIGNMENT OF WARRANTY: Page 7 A. TPL, as it completes installation of the Equipment at the Property, shall notify City that it is ready to have the installation inspected by City. Within ten (10) business days of receipt of said notice, City shall inspect the installation and reasonably determine whether the installation has been installed in accordance with this Agreement and to a level of quality and workmanship for City to execute the Acceptance Agreement. If the installation is unacceptable, within ten (10) business days after inspection, City shall provide TPL with a list of items that need to be corrected in order for City to execute its Acceptance Agreement issuance of Acceptance Agreement will be delayed until the items on the list are corrected. B. Prior to the execution of the Acceptance Agreement, TPL shall obtain the consent of the manufacturer of the Equipment for assignment to City and assign any and all warranties it received from the manufacturer of the Equipment, in the form attached hereto as Exhibit D. TPL shall provide a copy of the invoices for the Equipment in order to make claims under the terms of said warranty. C. The City acknowledges that Quantum Foundation, Inc. ( "Quantum ") is contributing 50% of the costs of the exercise Equipment, shipping, and installation (the "Hard Costs ") pursuant to the grant contract ID: 10206819. If during the first 10 years after the date of this Agreement (the "Initial Period "), the City ceases to maintain the exercise Equipment in working order and open to the public, the City shall repay Quantum an amount equal to the result of the following equation: T — ((T x 10) x Y) where T is Quantum's total contribution to Hard Costs and Y is the year or portion thereof) during the Initial Period in which the County fails to keep the exercise Equipment in working order and open to the public . By way of example only: Total Quantum Hard Cost Contribution Year of Initial Period $100,000 3 100,000 — ((100,000 x.10) x 3) = 70,000 Upon Quantum's request, the City shall provide it with an accounting of the Quantum funds applied to the Hard Costs. The surfacing s not subject to this provision. Quantum shall be an intended third party beneficiary of this Section 11(c) and is entitled to enforce its rights under such section as if it were a party to this agreement D. Execution of the Acceptance Agreement shall confirm that the City assumes and accepts responsibility for the maintenance, removal or replacement of the Equipment in accordance with the provisions of this Agreement, with respect to the subject Property. E. The Installer shall be solely responsible to secure the site and maintain Page 8 the construction fence until TLP receives the City's Acceptance Agreement. Provided, however, if the City removes, or authorizes removal of the construction fence and makes the Equipment available for public use prior to the City executing the Acceptance Agreement , the City will be deemed to have accepted the equipment. 12. NOTICES: Notices desired or required by this Agreement or by any law now or hereinafter in effect are deemed given when sent by U.S. Postal Service Certified Mail or by a reliable over -night courier with postage or charges prepaid to TPL as follows: Notices, Certificates of Insurance and /or Self- Insurance and envelopes containing the same to City shall be addressed to: As to TPL Brenda McClymonds, Project Manager The Trust for Public Land 7900 Red Road, Suite 26 Miami, Florida 33143 Tel 305 - 667 -0409 and Peter Fodor, Division Legal Director The Trust for Public Land 306 North Monroe Street Tallahassee, Florida 32301 Tel: 850 -222 -7911, ext. 29 E -mail: pete.fodor @earthlink.net City of Boynton Beach City Manager 100 E. Boynton Beach Blvd. Boynton Beach, FL 33435 Tel: 561 -742 -6010 or such other place in Florida as may hereinafter be designated in writing by TPL. 13. ANNUAL BUDGETARY FUNDING /CANCELLATION: This Agreement and all obligations of the City hereunder are subject to and contingent upon annual budgetary funding by the City Commission of the City of Boynton Beach. Notwithstanding anything in the Agreement to the contrary, the City shall have the right to cancel this Agreement for any reason upon ninety (90) days prior written notice to TPL, whereupon the parties shall be relieved of all further obligation hereunder. 14. INDEPENDENT STATUS: This Agreement is by and between City and TPL. It is not intended and shall not be construed to create the relationship of agent, Page 9 servant, employee, partnership, joint venture or association as between City and TPL. TPL understands and agrees to bear the sole responsibility and liability for furnishing Workers' Compensation benefits to any person for injuries arising from or connected with services performed on behalf of TPL pursuant to this Agreement. 15. EMPLOYEES: All references to "TPL" herein are deemed to include the employees, agents, Installer and subcontractors of any tier, and anyone else required under written contract with the TPL to access the Property. 16. LIMITATIONS: It is expressly understood that in permitting the right to use the Property, no estate or interest in real property is being conveyed to TPL, and that the right to use is only a nonexclusive, revocable and unassignable permission to use the Property in accordance with the terms and conditions of this Agreement. 17. AMENDMENTS: The Property, permitted use and term, may be amended during the term of this Agreement, upon TPL's prior written request to City, subject to the City Manager's discretion. 18. ASSIGNMENT: This Agreement is personal to TPL, and in the event TPL shall attempt to assign or transfer the same in whole or part all rights hereunder shall immediately terminate. 19. AUTHORITY TO STOP: In the event that an authorized representative of the City finds that the activities being held on the Property unnecessarily endanger the health or safety of persons on or near said Property, the representative may require that this Agreement immediately be suspended until said endangering activities cease, or until such action is taken to eliminate or prevent the endangerment. 20. ALTERATIONS AND IMPROVEMENTS: TPL has examined the Property and knows the condition thereof. TPL accepts the Property in the present state and condition and waives any and all demand upon the City for alteration, repair, or improvement thereof. All improvements to the Property installed by TPL shall remain upon termination of this Agreement and become the property of City. 21. INSPECTOR GENERAL: Palm Beach County has established the Office of the Inspector General in Palm Beach County Code, Section 2-421 — 2-440, as may be amended. The Inspector General's authority includes but is not limited to the power to review past, present and proposed City contracts, transactions, accounts and records, to require the production of records, and to audit, investigate, monitor, and inspect the activities of TPL, its officers, agents, employees and lobbyists in order to ensure compliance with contract requirements and detect corruption and fraud. Failure to cooperate with the Inspector General or interfering with or impeding any investigation shall be in violation of Palm Beach County Code, Section 2 -421- 2 -440, and punished Page 10 pursuant to Section 125.69, Florida Statutes, in the same manner as a second degree misdemeanor. 21. NON - DISCRIMINATION: The parties agree that no person shall, on the grounds of race, color, sex, age, national origin, disability, religion, ancestry, marital status, familial status, sexual orientation, gender identity or expression, or genetic information, be excluded from the benefits of, or be subjected to any form of discrimination under any activity conducted pursuant to this Agreement. 23. NO THIRD PARTY BENEFICIANY: No provision of this Agreement is intended to, or shall be construed to, create any third party beneficiary or to provide any rights to any person or entity not a party to this Agreement, including but not limited to any employees of TPL or employees of the City. 24. VENUE: This Agreement shall be governed by the laws of the State of Florida. Any legal action necessary to enforce this Agreement will be held in Palm Beach County. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity, by statute or otherwise. No single or partial exercise by any party of any right power, or remedy hereunder shall preclude any other or further exercise thereof. 25. TRANSFER OF OPERATING RESPONSIBILITY /CLOSURE: In the event the City transfers operating responsibility of the Property and licenses the Property to a newly formed or existing governmental agency, this Agreement shall terminate on the date of said transfer to such agency, unless that agency agrees to assume this Agreement. City agrees to use its best efforts to obtain said assignment in the event the City transfers its operating responsibility for the Property to a newly- formed or existing governmental agency. In the event the City closes the Property, this Agreement shall terminate upon the effective date of such closure. City shall provide written notice to TPL immediately upon any consideration by the City of the possibility of transferring or closing the Property. City shall provide TPL with as much prior written notice of any such transfer or closure of the Property as is reasonably possible, but in no case less than ten (10) City business days, before the effective date of any such transfer or closure. TPL shall be permitted to continue operations on the licensed Property for the remaining portion of the year in which it receives any such notice specifying the effective date of the transfer or closure of the Property. 26 THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER PERTAINING TO ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR TPL'S USE OF THE PREMISES. Page 11 Authorized Signatures. The parties will have the Agreement executed by representatives authorized to execute, amend, and enforce this Agreement. Page 12 Exhibit A Fitness Equipment List Page 15 Exhibit A Fitness Zone® Equipment List Single Butterfly Wheelchair Accessible Butterfly 2- Person Incline Sit -Up benches 4- Person Lower Body Combo 4- Person Pendulum Abs & Dips 2- Person Cross Country Ski 2 -Level Horizontal Bars 2- Person Wheelchair Accessible Vertical Press 2- Person Wheelchair Accessible Lat Pull-Down 2- Person Wheelchair Accessible Chest Press Single Reverse Butterfly Wheelchair Accessible Reverse Butterfly Single Rower 4- Person Leg Press Elliptical Cross Trainer Wheelchair Accessible Hand Cycle 3 Announcement Boards (signs) ' Green S BUTTERFLY Fitness. Promotin Wellness & Fighting Obesity One Community at a Time: Ill 1 i ' ' " -, IP Develops chest, front ' i' shoulders, upper and mid abs i s 2 " �. _ �.I ' Target muscles ' -- -.7.Z.Trig 7_ 39V � , . ...,- . .., ii . t - VIEW THE f " , `i �t-4' w ` VIDEO q f i lt t *:""' ! f, 1,, ro � ..' li it t ' . ,t ' , 4tit'f i I ' t ■ : greenfteldsfrtness com /butterity- press- ' video html In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the right to make changes and r " ' bons without notice. 6� 21113 = #'• Outdoor I't os' "` tiOreenh'elds A CESSIBLE SINGLE BUTTERF Outdoor Fitness. Promoting WWI 4 Fighting Obesity One Community at a rime 1 . —, , : ", .... 394' ikt 4 . , '' . , . ,t, ,., Develops chest, front ,„ - ,.. - , ! I ,,,,, .. , , shoulders, upper and , L i '-- **Ai; # 4 .. !..4. . ,. , . ,_ mid abs ,_-,,;,, ,...\-- ce, . ‘ , ,. Target muscies Nit ' 14:44011111104 ' . . Apr i I I t.. 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Promoting Wellness & Fighting Obesity One Community at a Time; ;, u � • Strengthens obliques _� w and upper, mid and lower ,. r r abdominals • Can be used by two people Target muscles simultaneously W = I 1 , VIEW THE • VIDEO ,..�t,. ». ..► ...,�; x f -- „ `fir - ❑ O } greenfieldsfitness com /two- person - sit -up- bench -video html t In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the right to make changes and revise the design specifications without notice. fit 2013 Greentds Outdoor Fitness ... ii_ I G reenfle l ds - SON LOWER BODY COMBO Outdoor Fitness. ' _ 1 i „,k .. . ” Promoting Wellness 8 Fighting obesity one Community at a Time Equipped with SafeStop • Strengthens legs, Ala Sp^ � glutes, obliques, triceps, - -- � ,� shoulders, chest and core _ r • Stretches lower back and inner thigh - 1 ' �' ' Target muscles • Great social activity � t A 4 0 . , , , , . 4 .1140, .., r F VW WNW I:3 rr. ❑ . r , VIEW THE . ~.� + ' . , F.1 VIDEO . , o � +? ,,,; - � xe I The Gr.enf/Nds Advantage - this unit greenfieldsfitness com/lower-body- incorporates ®technology for a combo -video html workout that's smooth and hazard -free l In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the right to make changes and revise the design apecificafiotis without neltoe_ t N , ± ' c _ ''' Greenffelds 4-P - ; • ENDULUM, ABS & DIPS STATION Outdoor Fitness Promoting Wellness a Fighting Obesity One Community at a Time: IP _ t Equipped with SafeStop lb ., : . • Strengthens upper body, - 52• �,,, 4 biceps, forearms, lower Li < aQO 1 � ' ` , !p MR back and abdominals �' ' , ' • Loosens hips and side k ' , • � . �k Can be used by four people simultaneously L — �r- Target muscles r ■ • Great social activity t ° u� ! " " rr Ell ` ' ,4,1 r. )6 i VIEW THE • �:� i A i i c VIDEO "� A. 70 a "..O ter " ' 4A, al t , ,,, ., Jr -: .,. 6 3 arm+ - -. i The Greenfields Advantage - this unit Incorporates Safe-Stop technology fora etidu m- ab ne s aa n di four-person- p workout that's smooth and hazard -free �n�u►um asnd - dips video t�tmt in order to honor our commitment to quality and safety, Greenfieids Outdoor Fitness reserves the right to make changes and revise the design specifications without notice © 2013 Greenfkide Outdoor Runs ' libk I r��� « ► C' 4 - =K e N CROSS COUNTRY SKI Ou tdoor Fitness• , 7,--- ,- ;( ,,, - , Promoting Wellness $ fighting Obesity One Community at a time: N. �„. Y E q u ipped with SafeStop • Strengthens leg muscles 1-1 E i �* Improves cardiovascular � ` � endurance �, =, �, �'° • Helps recover some lost € t 2 N N agility 4 1 .= soc • G social activity Target muscles y 4 <! t t ©,� 6 , . t � ± � VIEW THE I Amp li ' i ) \ 1 Iffv.- • VIDEO x ABM . 4. ... ' i . , , , w • ,.. r s i. , _ , qt L ,..,, 0, i , . , , _, - 0 iiik \ 1110 1111111.11 ` 1..- 4t, The Greenfields Advantage - this unit y ., }: incorporates Safe-Stop technology for a greenfieidsfitness com /two- person - cross- -w `' country- ski -video html s s' workout that's smooth and hazard-free �,__ __ _ , _ _ _ _ .. 6 In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the right to make changes and revise the design specifications without notice ® 2013 Greenfields Outdoor Fitness "el 0 1 __ 111 r enfieids T 0-LEVEL HORIZONTAL BARS Outdoor Fitness. .. . z.,.,,_ Promoting W IInRss b Fighting Obesity One Community at a Time ; '11 It: Strengthens chest, ii ,,,..--- shoulders, upper and mid abs, forearms and 1 2' "` triceps I Target muscles II i r Y �. � ,, „go VIEW THE ! '''..,-11116,, �. "e' VIDEO t e .1 ifF _ • -,-;:.:, . , .... r .. r __, _ 4 a .. , ...__ .... ._.. .: ...,„,____ .. , , . :, . _ _ „„„.... , , , .. , . _. ,. ......, ..,. . ..,, .. .- .. _. • ,... . 4E:: ._ , _ . u t ........ d -. .�.. F _, air , . f greenfteidsfitness comTonzontal- bars -video htmi - N it commitment to quality and safety, Greenfieids Outdoor Fitness reserves the right to make changes and revise the design specifications without notice © 2013 Greenfieids Outdoor Fitness G reenffelds TWO - PERSON ACCESSIBLE VERTICAL PRESS Outdoor Fitness. , , Promoting Wellness & fighting Obesity One Community at a TIme: . , , _ Alp ,... . „; .,,,,; ,,,,,,N.,, .,v 4....„ , , „,.... ..,.: Strengthens shoulder and arm ._ s y ; t A muscles , lIi ( , , , ' ° . ar -1' Target muscles 1 i , i. �0 t : ,� • t Wheelchair - accessible side can also be ® 1 used by able - bodied Individuals, '.:' . : 7 .'''' greenfieldsfitness corn/accessible-vertical-press-video html -'ii•N.-- '` , \ Y's .�" VI `.,• , ,. � THE : VIDEO �� . 5 i i Akkr- In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the right to make changes and revise the design specifications without notice. 0 2013 Greenfields Outdoor Fitness (1; G reen fl e l ds TWO- PERSON ACCESSIBLE LAT PULL Outdoor Fitness` Promoting Wellness & fighting Obesity One Community at a Time: " a 6 ' k Strengthens upper back, 4 • . ,, f } e_ "„-s. A shoulders, biceps and "`" core .� .`, , , i ';_._, "EiC -----, , Target mUsele ..., - :•' :4 al- ' ' 7 as iplii. { • € r. t 4 ` • Wheelchalr- accessible side can also be ,,,, NEP p , a , used by able- bodied Individuals) = . , : 3 2 greenfieldsfitness cam/accessible-let-pull-video html'd di i t o" VIEW 1 ‘. THE - 4r: k VIDEO 1 In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the _ ''''. make f anges : revise - i . ign specifications without notice 0 2013 �'`'" ' kg Greent TWO-PERSON ACCESSIBLE CHEST PRESS Outdoor Fitness. , Promoting Wellness & Fighting Obesity One Community at a Time ' — . ` • a. , ,,, , i ., Strengthens chest, shoulders, ii % i . f .,.. II ki upper and mid abs, forearms , 1. ... . ... ..:-. , , I i and triceps 4 , — 26.--- - .. 4 Alksi- sr' Target muscles H H ' ' . _ ., - so - ,, .. ,,,... _ \ :,._ /) , ., 4 - ": illl . 31'4140 a,* . . Ow. • ■ . . '.....:. 0 lk . . . 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In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the right to make changes and revise the design Specifications without notice. ,.'.-4 ff) 2 .:1 r ,;,,.;.4.1..T.:.',,,, ,.„,„ . ,:s'. , .:,, - Greentl'elds REVERSE 11 Outdoor Fitness. adips BUTTERFLY Promoting Wellness 6 Fighting Obesity One Community at a rime OP , 41111 • ".., ,` , A's • e,.., r/ sot Strengthens arm muscles, ,„, ..,.„.. back muscles and shoulders -1 ,. , ( 1 I ■ Target muscles 11 ,,,.....: .tee .: ' . .... ..,....: .„ : VIDEO ,• .;.; . * COMING , I t SOON , I ........ 1 . .......„ ,..,,..._ , ----.....„,.... , 1 ,, ...i.......... 1 In order to honor our commitment to quality and safety :,-.,r,„„,,:,:-‘.:.:. ' ' 1''''; : l - 7; ,•■:_,... , ,p., : ' _....,- i., . , ...: , Greenfields Outdoor Fitness reserves the nght to make changes a . i . _.,.._ *4i:4Csitar's G reen fl elds At,,,. E S BLE REVERSE BUTTERFLY Outdoor Fitness - .ar Promoting Wellness B P/ghting Obesity One Community at a Time: 4 is Strengthens arm muscles t ' ,' back muscles and r 1 �� - , r shoulders ' { a , w.... x. rrt- : i. Target muscles 11 ,_,.. t _ ., k -- — f VIEW THE a., '° ��_ w ._ � � � VIDEO :::::: . '.1144.7:1!",.:t..!; ! • _ ...--41 211 ..( , ,,,, !* .. ,.::::_ I , • , • ...:,...'„, if n ; } . , w, k greenfieldsfitness com!accessible- reverse- ` 1 butterfly -video html I In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the nght to make changes and revue` a ri - • « ',' ,,, 2013 Greenfields Outdoor Fitness ,,,, 0 G r ee n ffelds ROWING MACHINE Outdoor Fitness. _ gig , Promoting Wellness & Fighting Obesity One Community at a Time; 1 r - 32' - - # • Strengthens back -T Oil muscles, shoulders, arm —� t muscles and abdominals • Improves cardiovascular <e endurance 1 Target muscles ---- ° 47;1111Flik. `- VIEW THE °�, VIDEO ft $ ..arm t o ' - f - greenfieldsfitness com/rowIng-machine- html .,...., In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the nght to make changes and revise the design spedticatfons without notice. - 2013 Greenll is Outddor f teas G reenffelds 0 ! ...„, ftJR-PERSON LEG PRESS Outdoor Fitness• !�"""' Promoting Wellness & Fighting Obesity One Community at a Time; �" ° • Strengthens abdominals r '' A r and leg muscles, d , particularly quads and _ _ '- . IN calves 1_. �� -J1,',- _,- I ,,'* � � " 4. • G reat social activity .. <; ` fi if MM Y , e . • Can be used by four , , , ; Target muscles -- ' • 5��, people simultaneously . , , { VIEW THE 4 �� VIDEO Ili4 i • .,,' ... , 4 greenfieldsfttness corn/four-person-leg- press-video html In order to honor our commdment to quality and safety. Greenflelds Outdoor Fitness reserves the nght to make changes and revise the design specifications without notice. ` - °''', - 2013 G - - • ?,r; s Outdoor Fitness 1 reen a SINGLE ELLIPTICAL Outdoor Fitness. op =�. . -� Promoting Wellness & Fighting Obesity One Community at a Time: 1 t i j 4 $ x , 8 . • Strengthens leg muscles -L I .. .fi: „ . • Improves cardiovascular a2 n endurance . `` Target muscles ... . __ ° -" y 22" $' -t r d: QQ n o .�� VIEW THE _ mirioniv VIDEO t O i� ,fr I t i ,.. `.:i.' \ l RR 'fgt. 7,4 =- , greenfieldsfttness com /elliptical- cross- trainer video html r In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the nght to make changes and revise the design spec lfic ttions without nobce. " , ~ 7 ::c: ," .a; G reenfields H W ELCR CCESSIBLE HAND CYCLE Outdoor Fitness. x 4 Promoting Wellness d Fighting Obesity One Community at a Time • x a f • Strengthens shoulder 1 muscles • Wheelchair accessible ' ' , ' ,, - wry . Target muscles „; PHOTO VIDEO COMING COMING SOON SOON i . _ ..j In order to honor our commitment to quality and safety, Greenfields Outdoor Fitness reserves the right to make changes and revise the design spectfi 7 . • ns without notice 0 2013 Greenfields Outdoor Fitness Exhibit B Equipment Specifications (To be provided as separate attachments) Page 16 Exhibit "B" Greenfield Equipment Specifications 111 k cerrw,rry.ra nom. Our products are built to last Our outdoor fitness equipment is protected from rust, corrosion and chipping It retains its strength for years without any need for Iubncation, winterizing or regular maintenance. Our equipment is manufactured according to the following specifications: 1 All equipment is constructed of SAE 1020 High Carbon Steel 2 The joints' welding is at least 2/5 -1/2 inch thick. 3 The bearings are made of cast steel with cast steel rollers, and do not require re- lubrication. 4. Ail seats and stepping platforms are made of two layers of hand - shaped fiberglass. 5 After fabrication and welding, all parts are cold galvanized for rust protection. 6. All metai parts receive two layers (120 -400 microns) of DuPont Powder Coat 7 An additional layer of polyurethane t, ►V3 (450 microns) is applied to all metal parts for ultraviolet protection. Installation Our equipment is made from heavy steel pipes and is subject to heavy forces and torques when in use. Extra care must be taken to ensure that the equipment is securely installed so that it can be safely enjoyed for years to come There are two methods of installation for our equipment: 1) Permanent installation in which the equipment post extensions are placed in concrete footings Exhibit "B" Greenfield Equipment Specifications 2) Surface mount installation with posts bolted to concrete We strongly recommend that the equipment be installed using concrete footings. We recommend hiring a licensed installation company to ensure that the equipment is installed correctly and according to our specifications. Full installation instructions and equipment specifications will be provided on request. Color Our equipment is available in two color combinations: green /tan or red /black/yellow. The green and tan color combination blends into the park environment best The red, black and yellow combination is very attractive and stands out from a distance. Warranty In Tight of the quality of our products and the manufacturing process, we are proud to offer a 10 year limited warranty—one of the best warranties in our industry. For detailed information on our warranty, please see our catalog Safety Safety is of the utmost importance to everyone. Our exclusive durable outdoor fitness equipment follows the highest safety standards, is built to last and requires virtually no maintenance Greenfields Outdoor Fitness equiprnent can be used by anyone aged 14 years and up with minimal concern of injury. The California Playground Regulations only apply to play equipment designed for children under the age of 12. Exercise equipment designed for use by people over the age of 12 is specifically excluded from these requirements We recommend that our exercise equipment be installed at a location which is separated from children's play areas. In addition, this location and the installed equipment should be identified with proper signage and labels as intended for use by people over the age of 14. Each installed unit comes with a safefy label and a user guide label. in addition, we also offer large signage to identify the entire location. Exhibit C Barrier Free Park Site Plan Page 17 ' . 1 ' 1 1 1 1, • APPROXIMATELY 55 x S' WIDE CONC WALKWAY— / 4 .1.1114 FITNESS ZONE • 5 1 A., SLAB •, 4') 4,Y 75. * . SITE PLAN SCAIX r =30 ,.., SITE PLAN , ■ . ■ Congres Avenue Ramer Park CITY oF eCIYI4Tel'I BEACH Fitness Zone VWILVO C. MAX 1n/E 0 NOMT5M` D ,,, so} 0.5 ii,.. ON ,E . AC ”partl ma - 1.4145 - iv --"-- t. tvx - Ow. ma , %MO 2 Or . . , Exhibit D Equipment Warranty Page 18 I„„Xri t i t i )(GRASS LIMITED WARRANTIES FOR XGRASS PRODUCTS Ten Year Limited Warranty on Wear XGrass warrants that for TEN (10) years from the date of synthetic turf installation, the turf, when installed and maintained as recommended by the yarn & turf manufacturer, will retain at least 50% of its pile fiber. If any area or portion of the turf substantially changes, as distinguished from a change in texture, or if pile heights decrease 50% or more within ten years after its initial installation, XGrass will have all such areas or portions replaced with new turf of equivalent quality, excluding installation costs. XGrass also warrants that at the time of the initial turf installation, the synthetic turf will be free of manufacturing defects. Slight color changes will occur over the lifetime of this turf / carpet and is not considered an issue or basis for claim. All labor cost involved with the removal of the affected turf / carpet and reinstallation of the replacement carpet will be the responsibility of the purchaser. Subject to the following limitations: General provisions of this limited warranty apply only to the wear of the turf with regard to ultraviolet degradation, and do not apply to damage incurred during installation, improper underlay, pile crushing, willful or negligent abuses, or damage by machinery or equipment, nor does it apply when the turf is not professionally installed by an approved installer. This limited warranty does not apply to installations on stairways or other uneven surfaces, nor does it apply to turf which has not been properly maintained. The expressed limited warranty excludes all implied warranties, and said manufacturer shall in no event be liable for a breech of limited warranty in any amount exceeding the mill invoice price of the turf. If dissatisfied, the original owner must submit notice of all claims under this limited warranty to XGrass within ten (10) years from the date of turf installation. Limitations on Coverage This limited warranty does not apply (1) if the product is used for any application other than sports fields, courts, greens, or landscaping & play areas, (2) to any damage caused during or on account of improper installation or repairs, (3) to the extent that any defect or damage is caused by: a. Bums, cuts, accidents, vandalism, abuse, negligence, or neglect b. Improper design or failure of the sub -base of the sports field, green, court, or landscape c. Wear or abrasion caused by inadequate sub -base d. Wear or abrasion under swing sets, slides, and other high friction play equipment e. Wear due to lack of infill{no infill f. Movement of product due to lack of infill g. Use of infill products of an incorrect grade , +�.'�^ � , _ , ? ., � s � "'"i '; .:?w^°;q -w +;�$.'.^>fig^ "fi""" Si+ m r .-, s tea•„ _ t'*,k 2 i- v,,'1 wr r is 4 c ... i,"7 4 )(GRASS h. Failure to maintain infill products at the correct level (per FIFA accredited test institutes) i. Use of inappropriate footwear or sports equipment j. The playing surface being used other than for the purpose for which it was designed and installed k. Use of chemicals, herbicides, pesticides I. Use of improper cleaning methods m. Any harmful chemical reaction to the product caused by infill materials n. Acts of God or other conditions beyond the reasonable control of XGrass o. Post fibrillation after or during installation for purposes other than to get infill materials in place p. Failure to properly maintain, protect or repair the products or turf q Packing, matting, or roll crush marks are inherent characteristics of turf / carpet manufactured using polypropylene /olefin and nylon fibers. r. Damage that occurs during the shipping/transportation process. All shipping claims must be filed against the truck line in question. s. Damage caused by reflection (melting) or other flammable materials All synthetic turf is subject to normal wear and tear. Normal wear and tear is not a manufacturing defect and is not covered by this limited warranty. Eight Year Limited Warranty on Static Build -Up XGrass products manufactured with yarn featuring Static Block Technology will not cause or be the source of static build up for 8 years from the date of installation. However, a static charge may be present on the playground due to the static charges of the playground equipment or other factors. XGrass will not be responsible for damage due to static charge caused by sources other than its products that contain Static Block Technology. Remedy If a product fails to perform as warranted during the limited warranty period, XGrass will provide replacement product, F.O.B. Mill, for the product determined by XGrass or XGrass representative not to comply with the stated warranty, allowing the purchase price for the replacement product prorated for the number of months remaining in the unexpired limited warranty period. Purchaser shall be responsible for paying the portion of the purchase price for the replacement product not allowed by XGrass. XGrass shall not be responsible for removal of the defective turf or installation of the new. Limitations on Liability In no event shall XGrass be liable, whether on contract or in tort or under any other legal theory, for lost profits or revenues, loss of use or similar economic loss, or for indirect special, incidental, consequential, punitive or similar damages arising out of or in connection with the use, condition, possession, performance, maintenance, non - delivery or late delivery of the products, even if XGrass has been advised of the possibility of such damages. XGrass shall not be responsible for any costs or expenses incurred by Purchaser or others with respect to any tests, inspections, or consultations conducted by f",-; '� ri 1 tf;{'T ' r d K ,1 +" �Z i r .x Exhibit "E" Final Acceptance and Assignment of Warranty Date City of Boynton Beach Recreation & Parks Department 100 E. Boynton Beach Blvd. Boynton Beach, FL 33435 Attn: Director RE: FINAL ACCEPTANCE and ASSIGNMENT OF WARRANTY Dear Friends: This Assignment of Warranty ( "Acceptance Agreement ") is made with reference to that certain Warranty Certificates ( "Warranty ") (attached hereto as Exhibit D) issued by Greenfields Outdoor Fitness, Inc. and XGrass, Inc ( "Sellers ") for equipment purchased by The Trust for Public Land ( "TPL ") in connection with TPL's Fitness Zones project (the "Equipment "). In connection with the City of Boynton Beach Recreation & Parks Department's (the "City ") acceptance of the Equipment (the "Final Acceptance ") installed at 3111 S. Congress Avenue, Boynton Beach, Florida 33426, owned /managed by the City, TPL, as purchaser of the equipment is hereby assigning the Warranties to the City. The City hereby accepts this Assignment and agrees to assume responsibility for the maintenance and operation of the Equipment pursuant to the terms of the Right of Entry Permit, License, and Development Agreement for Fitness Zone Equipment Installation at Barrier Free Park in Boynton Beach, Florida. City has delivered to TPL a fully executed Right of Entry Permit, License, and Development Agreement for Fitness Zone Equipment Installation Such delivery, along with City's signature below, shall constitute City's Final Acceptance of the Equipment and City's agreement to abide by the terms of the Warranty. Page 19 ASSIGNOR. AGREED TO AND ACCEPTED BY: The Trust for Public Land, a City of Boynton Beach, Florida California nonprofit corporation Name: By: Lori LaVerriere Title: Counsel Title: City Manager ATTEST: By Reviewed and approved for execution By: City Attorney Page 20 EXHIBIT F Quantum Foundation Grant ID: 10206819 Page 21 Exh b ;+ F Q U A N T U M FO1_JN August 22, 2014 Brenda McClymonds The Trust for Public Land 7900 Red Road, Suite 26 Executive Committee William A. Meyer Miami, FL 33143 Choir Denis P. Coleman, Jr. Vice Choir Re: Grant Award Letter for Fitness Zones Palm Beach County Finance & investment Choir ID: 10206819 Jeannette M. Corbett President Emeritus ee D Ms. McCi monds: Groats Committee Chair y Stephen tePast a m very pleased Moore immediate Past I leased to notify you that the Quantum Foundation (the "Foundation") has mm Donna A. Mulholland approved a one -time grant of $135,000.00 to The Trust for Public Land ("Grantee") for Member At Large the Fitness Zones Palm Beach County (the "Project") 10206819. This grant is for the period of 05/01/2014 to 04/30/2016 (the "Grant Period"). The Grant Period may be Trustees extended in the sole discretion of the Foundation. Kerry A. Diaz, Esq. Jam P. KEntz Dixon, CPA /PFS James P. The purpose of this agreement is to create the basis for a strong working relationship Anthony J. McNicholas III, Esq. between you and the Foundation. It sets out our expectations and requires us to Gerald J. O'Connor, MD Rkhard M. Sussman communicate to make the Project and our relationship stronger. If you do not Ethel Isaacs Williams understand any portion of this Agreement, please ask for clarification. President Payment of Grant Funds will be made in accordance with Section 11 following Eric Kelly execution of this grant agreement (the "Agreement ".) The distribution of the remaining Grant Funds under this award depends on among other things the 2701 QUANTUM FOUNDATION ue t mutually achievement of muua agreed -upon Project goals, objectives and outcomes as 2701 N Australian Avenue y 1 g j Suite 200 described in the Project Proposal (as defined below), and the fulfillment of other West Phone: 61-832 7497 407 requirements such as Grantees compliance with this Agreement, as determined b Phone: 561 -832 -7497 q p g by Fax: 561-832-5794 the Foundation, in its sole discretion. www.quantumind.org Please review this Agreement carefully. If you agree with the terms and conditions of this Agreement, please sign it below where indicated and return one original copy to us at the address set forth on , (which exhibit may be updated or amended from time to time) no later than 10/11/2013. We look forward to working with you on your Project and hope to have a continuing and mutually beneficial relationship with you. 1. General Terms and Conditions of Grant. In connection with the grant, Grantee represents, warrants and covenants (promises) to the Foundation, as follows, which representations, warranties and covenants shall survive during the Grant Period or longer as specifically set forth herein. 2. Use of Grant Funds. The grant, and all income earned thereon (collectively the "Grant Funds ") shall only be used for the Project, substantially in accordance Grantee's proposal for funding including, without limitation, the evaluation model, budget and budget narrative (the "® Using Grant Funds for any purpose other than the Protect is a breach of this Agreement. No substantial variances in the Project Proposal including, without limitation, the purpose or timing of expenditures under the Project Proposal, may be made without the Foundation's prior written approval. In other words, if there is a change in the project or how you want to spend the grant dollars, you must contact the foundation for approval first. 3. Third Party Beneficiary. Grantee hereby acknowledges, represents and warrants that Foundation is an intended third party beneficiary of Section 11(c) of the Right of Entry Permit, License and Development Agreement for Fitness Zone Equipment Installation Agreement between The Trust for Public Land, a California non - profit corporation and Palm Beach County, a political subdivision of the State of Florida dated (INSERT DATE] (the "Entry Agreement ") a copy of which is attached here to as MN and is entitled to enforce its rights under the Entry Agreement as if it were a party thereto. 4. Grantee's Obligations. In addition the other obligations set forth in this Agreement, Grantee shall: a. Directly administer and manage the Project in accordance with the Project Proposal; b. Provide the Foundation with periodic outcome measures ( "Progress Reports ") in accordance with the Evaluation Logic Model for Outcome Measures, as such may be updated or amended from time to time; c. Promote the grant in accordance with Section 12; d. Account for all Grant Funds separately from its other funds in its books and records; e. Maintain its books and records in accordance with generally accepted accounting practices, and maintain all documents supporting the disbursement and expenditures of Grant Funds, such as bills, invoices, receipts and canceled checks; f. Invest the Grant Funds in highly liquid investments (such as interest - bearing bank accounts) with the primary objective of preservation of principal so that the Grant funds and any income earned thereon are available for the Project; g. Not commit to or insure expenses subsequent to the termination or expiration of the Grant Period or this Agreement. h. Notify the Foundation immediately of: i. any Event of Default (as defined below); ii. any change in the Grantee's legal or tax - exempt status; iii. any change In the Project, (i.e., grant purpose, staff, funding from other sources, and so on); or iv. Grantee's inability to achieve the Project goals, objectives and outcomes as described in the Project Proposal, or to expend the Grant Funds for the Project during the Grant Period. 5. Restrictions on Use of Grant Funds. Grantee shall not use the Grant Funds to: a. Attempt to influence legislation or the outcome of any specific public election; b. Carry on, directly or indirectly any voter registration drive; c. Make grants to individuals or to other organizations except as described in the Project Proposal; d. Undertake any activities for a non - charitable purpose; e. Undertake any activities for a purpose other than for the Project; or f. Reimburse any expenses incurred prior to the start date of the Grant Period. 6. Other Restrictions. The USA Patriot Act of 2001 and other federal laws and regulations and executive orders administered by the U.S. Treasury Department's Office of Foreign Assets Control ( "OFAC ") prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals. Grantee represents and warrants that, at the time of execution of this Agreement and during the Grant Period, none of the following is a country, territory, individual or entity named on the OFAC lists of Sanctioned Countries or Specially Designated Nationals: Grantee; any person or entity controlling or controlled by Grantee; any person or entity having a beneficial interest in Grantee; or any person or entity for whom Grantee is acting as agent or nominee In connection with the Project. Grantee understands and agrees that any violation of this Section 6 will be grounds for immediate termination of the grant and this Agreement. 7. Grantee Organization Legal and Tax Status. Grantee represents and warrants to the Foundation that: a. Grantee is a not for profit corporation, validly existing and in good standing under the laws of the State of Florida, with full power and authority to execute, deliver and perform its obligations under this Agreement; b. This Agreement has been duly authorized, executed and delivered by Grantee and constitutes a legal, valid and binding obligation of Grantee, enforceable against it in accordance with its terms. No authorization, approval or order of any court or public board or body is required to be obtained by Grantee in connection with the execution and delivery of this Agreement; c. The execution and delivery by the Grantee of this Agreement and the performance by the Grantee of its obligations hereunder do not conflict with or violate: (1) any provision of the Grantee's Articles of Incorporation or By -laws; (11) any agreement or instrument , to which the Grantee is a party or by which any of its properties are bound; (iii) any judgment, order, writ, injunction or decree binding on the Grantee; or (iv) any law, rule, regulation or ordinance applicable to the Grantee; d. The facts supporting Grantee's tax - exempt and public charity status under Sections 501(c)(3) and 509(a) of the Internal Revenue Code have not changed since the issuance of the IRS determination letter which was provided to the Foundation, and the Grantee is not aware of any proposed changes in its tax - exempt status under Code Sections 501(c)(3) or 509(a) or relevant state law. The Grantee is not aware of any actual or potential imposition of excise taxes under Chapter 42 of the Code (including, but not limited to Code Section 4958, dealing with "intermediate sanctions "). 8. Books and Records. As set forth in Section 4.e, Grantee shall keep and maintain its books and records. These books and records shall be retained in Grantee's files for at least four (4) years after expiration of the Grant Period, the termination or expiration of this Agreement, or as long as necessary to complete an audit commenced before the expiration of the four year period set forth above. During normal business hours and upon reasonable notice, Grantee shall make its books and records available to the Foundation and /or its designees for inspection and audit. The Foundation reserves the right to request Grantee's most recent Financial and Compliance Audit, complete with Management Letter and /or a Form 990 (if applicable), within one hundred twenty (120) days after Grantee's fiscal year -end and for each of the Grantee's fiscal years occurring during the Grant Period. 9. Term and Termination. This Agreement shall remain in effect for the Grant Period unless otherwise terminated in accordance with this Section 9. This Agreement may be terminated, or the distribution of Grant Funds may be suspended or withdrawn, by the Foundation, in the Foundation's sole discretion upon any of the following (each an "Event of Default "): a. Grantee breaches this Agreement or any of its terms or conditions; b. Grantee cannot conduct its activities generally including, without limitation, Grantee becoming insolvent, ceasing or being unable to pay its debts as they come due, or filing a voluntary petition for bankruptcy; c. Grantee fails to achieve periodic outcome measures as set forth in Section 4.b above; d. The Foundation is not reasonably satisfied with the Project's progress; or e. Grantee experiences a leadership or other change that may threaten the Project. 10. Effects of Termination. Upon the termination or expiration (the "Termination ") of this Agreement Grantee shall: a. Immediately cease using Grant Funds for any purpose, and make no further expenditures or commitments of Grant Funds; b. Return all uncommitted, unused and /or unexpended Grant Funds to the Foundation within 30 days after the Termination date; and c. Provide the Foundation with a written report detailing the use of all Grant Funds. 11. Payments and Reports. a. Grantee shall receive an initial Grant Fund distribution at the beginning, of the Grant Period. All subsequent distributions shall be made if, in the Foundations sole discretion, Grantee has reached the applicable milestones set forth in the Project Proposal, and there has been no Event of Default (see Section 9). b. A schedule of Progress Reports and estimated distributions has been established for the grant. To view this schedule or to access the grant account at any time during the Grant Period, go to the Account Access page at www.quantumfnd.org. c. Grantee shall submit all Progress Reports on line at www.quantumfnd.org. Each Progress Report must contain: d. A narrative detailing Grantee's progress toward achieving the grant purpose In accordance with the Project Proposal, and problems or obstacles encountered in achieving the grant purpose(s); and e. A financial report detailing all expenditures as of the date of the report compared to the approved budget line item. f. Email notifications regarding the Progress Report schedule, including due date reminders, shall be sent to Grantee's primary contact as set forth in the Project Proposal. Grantee is responsible for submitting the reports on time, even If no notification is received. 12. Publicity. When promoting the grant, Grantee shall submit materials to Quantum Foundation Vice President of Communications for approval and: a. State that Project funding was made available from the Quantum Foundation; b. Promote the Project with news releases to the local media. If local media is being invited to cover the Project or event, please invite Foundation staff by sending all pertinent information to the Foundation. Foundation contact information Is set forth on Exhibit A. All media releases should include the Quantum Foundation logo available at http: / /www.quantumfnd.org /logos and a description of the Foundation available on www.quantumfnd.org. c. Grantees are encouraged to tag the Foundation in all social media posts using social media tools such as Facebook, You rube and 7 "witter. The Foundation can also be found on these social media sites under the name "Quantum Foundation." The Quantum Foundation twitter account is @quantum, its Facebook is page is https:// www. facebook.com /QuantumFoundation. d. If Grantee has an active grant in good standing with the Foundation, the Foundation's logo can be used on all Project collateral materials including websites, email blasts, brochures and posters. The Foundation logo can be downloaded from the following link http : / /www.quantumfnd.org/iogos. e. Additional guidance on all press, media or promotional events is provided to Grantees through the Foundation's Vice President of Communications. Please see Exhibit A for contact information. 13. Copyright and Foundation Use of Data. If any publications, manuals, films or other copyrightable materials including, without limitation, any and all data collected in connection with the grant in any and all forms or media in which said data are fixed (the "Material ") are produced, the Grantee shall notify the Foundation. Any and all copyrights accruing under, or In connection with, the Project shall be owned by Grantee. Grantee hereby grants to the Foundation a non - exclusive, world -wide, perpetual, royalty fee license to reproduce, publish, copy, alter, perform or display or otherwise use and license others, the Material. The Grantee, in addition to its obligations under Section 15, shall indemnify and save harmless the Foundation, its directors, officers, employees, agents, and representatives from liability of any nature or kind, including costs and expenses, for or on account the Material. 14. insurance. a. It is important that the Grantee be properly insured for the conduct of the Project, as well as its other activities. Accordingly, the Grantee agrees to maintain in full force and effect during the Grant Period at its sole expense commercial general liability insurance (including broad form contractual liability, bodily injury, and property damage; written on an occurrence basis) with minimum coverage of $1,000,000 per occurrence and $2,000,000 in annual aggregate. The policy must be in the broadest form available on customary commercial terms and shall be written by insurers of recognized financial standing. The Foundation shall be named an additional insured on the policy, with the understanding that any obligations imposed upon the Grantee (Including, without limitation, the liability to pay premiums) shall be the sole obligations of the Grantee and not those of the Foundation. The insurance policies shall be primary insurance ahead of any insurance carried by the Foundation and shall provide for notification to the Foundation thirty (30) days prior to termination, material change or restrictive amendments. b. These coverages and limits are to be considered minimum requirements under this Agreement and in no way limit the liability of the Grantee. The Grantee shall provide a certificate of insurance to the Foundation evidencing this coverage prior to performance of the Agreement and annually thereafter, at policy renewal dates throughout the term of the Agreement. 15. Indemnification. Grantee understands and agrees that it alone is responsible for its and its employees, agents and representatives. Grantee shall indemnify and agrees to hold the Foundation, its directors, officers, employees, agents, and representatives harmless from and against any and all damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defenses, judgments, suits, actions, proceedings, costs, disbursements or expenses (including, without limitation, attorneys' and expert s' fees, expenses and disbursements) whether incurred in a third party action, in an action to enforce this Agreement or otherwise, for death of or injury to any person or loss of or damage to any property of any kind or nature and any other damage whatsoever arising out of or resulting directly or Indirectly from the actions of Grantee or the failure to act by Grantee in connection with the fulfillment of its obligations under this Agreement, except to the extent same is caused by the gross negligence or willful misconduct of the person seeking to be indemnified hereunder. In addition, Grantee will pay and discharge all awards, judgments and expenses that may result from a final judgment in an indemnified suit or action. 16. Miscellaneous. The grant is for the Grantee only and may not be given to another organization except as written in Grant Proposal. Grantee's rights and obligations under this Agreement are specific to the Grantee, which may not assign its rights or obligations hereunder, by operation of law, merger or sale of Grantee or all or substantially all of Grantees assets, to any person or entity without the prior written consent of the Foundation. No course of dealing between Grantee and the Foundation, or any delay or failure on the part of the Foundation in exercising any rights under this Agreement, shall operate as a waiver of any rights of the Foundation, except to the extent expressly waived in writing by the Foundation. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, without regard to its conflict of laws principles. Venue for any disputes arising hereunder shall be in the courts located in Palm Beach County. 17. Survival. Sections 8, 10, 13, 14, 15 and 17 shall survive the termination or expiration of this Agreement. 18. Entire Agreement, Severability and Amendment. This Agreement is the entire agreement between the Foundation and Grantee regarding the subject matter hereof, and supersedes any prior oral or written agreements or communications. The provisions of this Agreement are severable so that if any provision is found to be invalid, illegal, or unenforceable, such finding shall not affect the validity, construction, or enforceability of any remaining provision. Unless provided otherwise, this Agreement may be amended only by a mutual written agreement of the parties. Exhibit A, may be amended or modified upon notice to Grantee without written agreement of the parties. On behalf of the board of trustees of the Quantum Foundation I thank you for your commitment to serving our community. Si erel , /\-- IS ( Eric M. Kelly President Quantum Foundation By signing below, Grantee accepts and agrees to comply with all terms and conditions stated in this Agreement, and the accompanying attachments exhibits and or schedules. Organization: Chief Executive of Organization (required signature) B c\`, Print Name: x.. "Ps „ ^K R .4 r S\Im,4‘ its: Chief Executive Officer Date: 1 14 )' Exhibit A Foundation Contact Information Purpose Contact Information Return signed Agreement to: Quantum Foundation 2701 N. Australian Ave. West Palm Beach, FL 33407 ATTN: Nate Cousineau Questions regarding this Agreement: Randy Scheid Senior Programs Officer Telephone: 561- 832 -7497 Email: Randy @quantumfnd.org News and Press Events: Kerry Jamieson Director of Communication Telephone: (561)832 -7497 ext. 1118 or kerrvlamieson @auantumfnd.org