HomeMy WebLinkAbout2012-048
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RESOLUTION NO. 2012-48
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A MEMORANDUM OF
UNDERSTANDING WITH THE CENTER FOR COMMUNITY ACTION AND
ENVIRONMENTAL JUSTICE FOR THE INSTALLATION AND MAINTENANCE OF AN
5 I AIR FILTRATIONS SYSTEM AT RUBEN CAMPOS COMMUNITY CENTER.
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6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AS FOLLOWS:
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8 SECTION 1. The City Manager is hereby authorized and directed to execute a Memorandum
9 of Understanding ("MOU") with the Center for Community Action and Environmental Justice for the
1 0 installation and maintenance of an air filtration system at Ruben Campos Community Center, a copy
11 of which is attached hereto marked Exhibit "A", and incorporated herein in full.
12 SECTION 2. The authorization to execute the above referenced MOU is rescinded if the
13 parties thereto fail to execute it within sixty (60) days ofthe passage of this Resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A MEMORANDUM OF
UNDERSTANDING WITH THE CENTER FOR COMMUNITY ACTION AND
ENVIRONMENTAL JUSTICE FOR THE INSTALLATION AND MAINTENANCE OF AN
AIR FILTRATIONS SYSTEM AT RUBEN CAMPOS COMMUNITY CENTER.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a ioint regular meeting thereof, held on the
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,2012, by the following vote, to wit:
19th day of M~"rh
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COUNCIL MEMBERS:
AYES
NAYS
ABSTAIN ABSENT
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MARQUEZ
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JENKINS
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V ALDNIA
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SHORETT
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KELLEY
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JOHNSON
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MCCAMMACK
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George Hanna, 1 y lerk
City of San Bernardino
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The foregoing Resolution is hereby approved this ~lrday of March
,2012.
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atri J. Morris, ~ u,'
City of San Bernardino
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Approved as to form:
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JAMES F. PENMAN, City Attorney
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BY!- ?- .~
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2012-48
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MEMORANDUM OF UNDERSTANDING BETWEEN
CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE
AND CITY OF SAN BERNARDINO
REGARDING THE INSTALLATION AND MAINTENANCE
OF AIR FILTRATION SYSTEMS
This Memorandum of Understanding ("MOU") is made as of this -!L day of 11ft 1/ ' by and
among Center for Community Action and Environmental Justice ("CCAEJ"), and the City of San
Bernardino ("City"), who from time to time herein, shall be referred to individually as "Party" or
collectively as "Parties."
RECITALS
WHEREAS, a judgment has been issued in In re Reformulated Gasoline (RFG) Antitrust and
Patent Litigation, MDL Case No. 05-1761 CAS (VBKx) (U.S. District Court Central District of
California);
WHEREAS, the judgment established a Reformulated Gasoline Settlement Fund and an Open
Grants Program for grants to achieve clean air and fuel efficiency benefits for California consumers;
WHEREAS, Harry M. Snyder and Carl K. Oshiro have been appointed by the U.S. District
Court, by order dated November 24, 2008, to serve as Cy Pres Grants Administrators
("Administrators") of the Open Grants Program;
WHEREAS, on November 29, 2010, the U.S. District Court approved a grant (the "Grant")
under the Open Grants Program to CCAEJ in an amount not to exceed $1,000,000 to install and
maintain high-performance air filtration systems in four schools and one community center in areas
heavily impacted by diesel emissions from rail yards and trucks in San Bernardino and Riverside
counties and conduct an outreach and education awareness program on diesel emissions and health
impacts (the "Project");
WHEREAS, the Administrators and CCAEJ have entered into a Grant Agreement (the "Grant
Agreement"), a copy of which is attached and incorporated hereto as Exhibit E, specifying the terms
and conditions of the Grant;
WHEREAS, CITY has requested that a community center owned and operated by CITY listed
in Exhibit A (hereafter referred to as "Selected Center") be included in the Project and CCAEJ desires
to include the Selected Center in the Project;
WHEREAS, South Coast Air Quality Management District ("SCAQMD") is currently
implementing similar filtration systems programs in schools, which involved conducting a competitive
public process to retain an air filtration systems contractor, testing program of air filtration
technologies, oversight of the actual installation and maintenance of such filtration systems, and
generating studies regarding the efficacy of such filtration systems;
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WHEREAS, at the request of CCAEJ and Administrators, SCAQMD has consented to provide
technical assistance, to CCAEJ and Administrators, on the filtration systems program required by the
Grant Agreement; and
WHEREAS, CITY has the authority to enter into legally binding contracts on behalf of the
Selected Center;
NOW, THEREFORE, in consideration of the mutual interests and benefits to be derived
therefrom, the Parties agree as follows:
1. Recitals. The Recitals to this MOD, above, are hereby incorporated herein and made a part
hereof.
2. Performance Criteria. Installation and maintenance of air filtration systems shall meet certain
performance specifications based on known achievable performance from the Pilot Study of
High Efficiency Particle Filtration for Classrooms ("AQMD Pilot Study"). These performance
specifications are based on in-use testing of high-performance panel filters, register-based air
purifiers, and multiple stand-alone systems in classrooms for removal efficiency of ultrafine
particulate matter (PM), fine PM, and black carbon, and air flow monitoring data from the
AQMD Pilot Study.
3. Access and Cooperation. CITY agrees to cooperate with CCAEJ, its technical advisor,
SCAQMD and its contractors in the implementation of the Filtration Systems Program,
including, but not limited to, providing reasonable access to the Selected Center to conduct
scheduled feasibility assessments to determine if a Center should receive the air filtration
system based on technical feasibility and cost-effectiveness, and providing reasonable access at
the Selected Center for the installation, monitoring and maintenance of the air filtration
systems. Center areas that CCAEJ and its contractors would need to access to implement the
Program include common areas, hallways, and rooftops. CCAEJ and its contractors shall use
reasonable efforts to minimize the disruption to the Center's functions and activities in the
performance of this MOD in accordance with the terms of this MOD. CITY further agrees that
the Administrators or their designee may conduct inspections of the Selected Center and
examine such records and documents as the Administrators deem necessary to validate
payment requests or compliance with the Grant Agreement.
4. Scope of Work. The general scope of work that the Parties anticipate will apply to the Selected
Center is set forth in Exhibit B. If the specific circumstances and conditions associated with the
Selected Center require additional or different work than specified in Exhibit B, CCAEJ shall
submit to CITY for its written approval a separate scope of work for that Selected Center.
(A) Scope of Feasibility Assessments. CCAEJ with the technical assistance of SCAQMD
shall conduct feasibility assessments in accordance with Section 2 of this MOD and Exhibit B.
(B) Installation, Monitoring and Maintenance.
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1. Installation. CCAEJ, through its contractor, shall install the air filtration systems
in accordance with Section 2 of this MOU and Exhibit B. The work shall be
carried out entirely during non-Center hours unless mutually agreed upon by the
parties. The parties agree that CCAEJ's right of entry under this MOU shall be
exercised in a manner consistent with the description of work in Exhibit B.
During the term of this MOU, CCAEJ shall, at its sole cost and expense, (a)
remove all equipment placed on the Selected Center except as otherwise agreed
upon in this MOU by the CITY in writing, (b) remove all debris resulting from
CCAEJ's activities on the Selected Center, and (c) use best efforts to restore any
hardscape or landscaping on the Selected Center disturbed by CCAEJ's
activities to its original condition in accordance with codes and regulations
current at the time restoration takes place, so long as the restoration will not
decrease the efficacy of the installed air filtration systems.
11. Monitoring and Maintenance. CCAEJ, through its contractors, shall monitor the
installed air filtration systems and provide maintenance training to CITY
maintenance staff in accordance with Exhibit B. CITY, on behalf of the
Selected Center, agrees to comply with the upkeep, replacement and
maintenance requirements set forth in Exhibit C hereto.
(C) Retention of Systems on Expiration and Return of Systems on Termination.
1. Upon expiration of this MOU, CITY may keep the installed air filtration
systems, including the replacement filters.
11. Upon early termination of this MOU, CITY shall return all air filtration systems
equipment to CCAEJ, including the replacement filters. CITY shall cooperate
with CCAEJ and CCAEJ's contractors in the removal of the installed air
filtration systems. CCAEJ shall be responsible for complying with all codes and
regulations current at the time CCAEJ returns the Selected Center to its original
condition.
(D) Compliance with Environmental Laws. CCAEJ agrees that its performance under this
MOU shall be conducted and performed in a good and workmanlike manner and in
compliance with all applicable laws and regulations (including, without limitation, all
Environmental Laws and requirements of Governmental Authorities). "Environmental
Laws" shall mean any and all present and future federal, state and local laws (whether
under common law, statute, rule, regulation or otherwise), requirements under permits
issued with respect thereto, and other requirements of Governmental Authorities
relating to the environment, to any Hazardous Substance, waste, or material or to any
activities involving Hazardous Substance, waste or material. "Governmental Authority"
shall mean any local, state or federal governmental agency, court, board, bureau or
other authority having jurisdiction with respect to the Selected Center and/or the work
performed by CCAEJ and it Contractors under this MOD.
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(E) Scheduling. All work at the Selected Center associated with the feasibility assessment
and the installation, monitoring and maintenance of the air filtration systems by CCAEJ
must be scheduled in advance with CITY and CITY must provide written approval as
to the date and time that such work will begin and end prior to commencement of any
work by CCAEJ or its contractors. Furthermore, all such work must be completed by
CCAEJ or its contractors without interference with any CITY activities or programs.
(F) Test Data. All test data and reports related to the monitoring of the air filtration systems
and/or evaluation of the functionality or efficiency of the air filtration systems at the
Selected Centers must be provided to CITY.
(G) Fingerprinting Requirements. In the event that CCAEJ or CCAEJ's agents, contractors,
and/or employees enter the Selected Center at a place, time or under circumstances that
could result in contact with any minors, CCAEJ's or CCAEJ's agents, contractors,
and/or employees right to enter onto the Selected Center is conditioned on compliance
with requirements of state law regarding fingerprinting and background checks as set
forth in California Public Resources Code Section 5164 and Penal Code Section
11105.3. The certification form attached hereto and incorporated as Exhibit D shall be
completed by CCAEJ and its contractor and submitted to CITY prior to entry, or as
soon as possible thereafter, and shall be updated by CCAEJ and its contractor as
necessary during the term of this MOD.
5. Insurance.
(A) General Liability and Property Damage. CCAEJ agrees to maintain in full force and
effect throughout the duration of the MOD a suitable policy or policies of
comprehensive general liability and property damage insurance, insuring against all
bodily injury, property damage, personal injury, and other loss or liability caused by or
connected with CCAEJ performance, rights or obligations under this MOD. Such
insurance shall be in amounts not less than $1,000,000 per occurrence; $1,000,000 for
property damage and $3,000,000 for general aggregate. CCAEJ shall ensure that its
contractors maintain comparable insurance.
(B) Automobile Liability. CCAEJ also agrees to maintain in full force and effect with
regard to any vehicles which CCAEJ brings onto the Selected Center a suitable policy
or policies of automobile liability insurance with a combined single limit of $1 ,000,000
per accident. CCAEJ shall ensure that its contractors maintain comparable insurance.
(C) Workers' Compensation. CCAEJ shall ensure that its contractors maintain, in full force
and effect throughout the term of this MOD, Workers' Compensation insurance in
accordance with the laws of California, and employers' liability insurance with a limit
of not less than $1,000,000 per employee and $1,000,000 per occurrence.
(D) Notice; Additional Named Insureds. All insurance required under this MOD shall be
issued by a company or companies lawfully authorized to do business in California as
admitted carriers. CITY shall be designated as an additional insured. Prior to entry,
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CCAEJ shall provide CITY with Certificates of Insurance. Each policy of insurance
shall: 1) name CITY and its officers, agents and employees as additional insured; 2)
state that, with respect to the operations of CCAEJ/CCAEJ's contractors hereunder,
such policy is primary and any insurance carried by CITY is excess and non-
contributory with such primary insurance; 3) state that not less than thirty (30) days'
written notice shall be given to CITY prior to cancellation except for non-payment of
any premium which shall be ten (10) days notice; and 4) for CCAEJ's contractors'
insurance policies only, waive all rights of subrogation. CCAEJ shall notify CITY in
the event of material change in, or failure to renew, each policy.
6. Effective Date: This MOD shall be in full force and effect when signed by all Parties.
7. Term: The term of this MOD is three (3) years, and may be renewed by mutual agreement of
the Parties in writing.
8. Termination. Each Party reserves the right to terminate this MOD upon thirty (30) days'
written notice, with or without cause. If a Party's decision to terminate is based on a disputed
matter of the performance of one or more of the other Parties, then all Parties shall make good
faith efforts to resolve any such disputes prior to termination becoming effective.
9. Media/Press Opportunities/Acknowledgement of Support. The Parties shall work cooperatively
on any communications to the media, including press statements and press conferences related
to this MOD. The Parties agree that announcements, news releases, annual reports, and other
communication materials describing the installation and use of the air filtration systems in the
Selected Center shall acknowledge "The project was made possible by a grant from the
Reformulated Gasoline Settlement Fund. Created as a result of an antitrust class action, the
purpose of the Fund is to achieve clean air and fuel efficiency benefits for California
consumers. "
10. Notices. All notices pursuant to this MOD shall be given in writing to the attention ofthe
persons listed below, or to other such addresses or addressees as may hereafter be designated in
writing for notices by any Party to the other. Notice shall be given by certified, express or
registered mail, return receipt requested, and shall be effective as of the date of receipt
indicated on the return receipt card:
CCAEJ:
Center for Community Action and Environmental Justice
P.O. Box 33124
Riverside, CA 92519
Attn: Penny J. Newman
CITY:
City of San Bernardino
300 North D Street
San Bernardino, CA 92418
Attn: Kevin Hawkins
Any notice pursuant to Section 8 or Section 16 of this Contract shall also be emailed to the following:
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SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT
Patricia Kwon pkwon@aqmd.gov
ADMINISTRATORS
Harry M. Snyder hrnsnyder@sbcglobal.net
Carl K. Oshiro oshirockck@pacbell.net
Tanecia Echols taneciaechols@gmail.com
11. Force Maieure. No Party shall be liable or deemed to be in default for any delay or failure to
perform its obligations under this MOU if such delay or failure results from acts of God, riot,
war, civil unrest, flood, earthquake, or other cause beyond such Party's reasonable control,
including any mechanical, electronic, or communications failure, but excluding failure caused
by a Party's financial condition or negligence.
12. Severability. In the event that anyone or more of the provisions contained in this MOU shall
for any reason be held to be unenforceable in any respect by a court of competent jurisdiction,
such holding shall not affect any other provisions of this MOU, and the MOU shall then be
construed as if such unenforceable provisions are not a part hereof.
13. Indemnification.
(A) Mutual. Each Party shall indemnify and defend the other Party, its directors, officers, agents, or
employees against and will hold and save them and each of them harmless from any and all
actions, claims, liens, damages to persons or property, penalties, obligations, liabilities, costs or
expenses arising out of or in connection with the activities of the indemnifying Party, its
contractors, subcontractors, agents, officers, or employees pursuant to this MOU, but excluding
such actions, claims, damages to persons or property, penalties, obligations or liabilities arising
from the sole negligence or willful misconduct of the other Party.
(B) Subcontractors. CCAEJ shall require its contractors to indemnify, hold harmless and defend
CITY, its directors, officers, agents or employees against any and all actions, claims, liens,
damages to persons or property, penalties, obligations or liabilities that may be asserted or
claimed by any person, firm, association, entity, corporation, political subdivision or other
organization arising out of or in connection with the activities of the contractor, its
subcontractors, agents, officers or employees at the Selected Centers pursuant to this MOU, but
excluding such actions, claims, damages to persons or property, penalties, obligations or
liabilities arising from the sole negligence or willful misconduct of CITY.
(C) Administrators. CITY shall also indemnify and hold harmless the Reformulated Gasoline
Settlement Fund and Cy Pres Grants Administrators, their employees, agents, and
representatives, and successors-in-interest from and against any and all liability, loss, expense,
including reasonable attorneys' fees, or claims for injury or damages arising from the
performance of this MOD.
The provisions ofthis Section 13 shall survive the termination or expiration of this MOD.
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14. Counterparts. This MOD may be executed in one or more counterpart copies. Each counterpart
copy when so executed shall be deemed to be an original and all of the counterpart copies
together shall constitute one fully executed agreement.
15. Attorneys' Fees. If any legal action is necessary to enforce any of the terms or conditions of
this MOD, each party shall bear its own costs and attorneys' fees.
16. Entire MOD. This MOD and all other documents referenced herein shall represent the entire
agreement between the Parties with respect to the matters referred to herein, and there are no
understandings, representations, or warranties of any kind except as expressly set forth herein.
No waiver, alteration, or modification of any of the provisions herein shall be binding on any
Party unless in writing and signed by all the Parties This MOD has been reviewed and
approved by SCAQMD and Administrators. The sole purpose of SCAQMD's review and
approval is to determine to SCAQMD's satisfaction that this MOD will accomplish the
purposes of the Grant. Prior to waiving, altering, modifying or amending this MOD, CCAEJ
and CITY shall give notice to and obtain the written approval of SCAQMD and
Administrators.
17. CITY warrants that it has full authority and control of the Selected Center to assure their
compliance with all of the undertakings CITY is making in this MOD.
This Memorandum ofDnderstanding has been entered into and executed by:
Cente 0 Community Action and Environmental Justice
Date:
Jj - q ~ ?IJIc?<
By:
City of San Bernardino
By:
Date,r3! ~? (1-2.
Approved as to form
James F. Penman, City Attorney
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EXHIBIT" A"
Selected Center
The following community center has had preliminary assessments performed by CCAEJ's contractor,
IQAir North America, and has been evaluated to be technically feasible. The center will have air
filtration installed based on available funds and approval/cooperation from CITY.
Ruben Campos Community Center
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EXHIBIT "B"
General Scope of Work
Dpon execution of this MOD, CCAEJ, with the technical assistance of SCAQMD, agrees to perform
the following tasks:
a. CCAEJ, in consultation with CITY, shall select the facilities to receive air filtration
systems based on technical feasibility and cost effectiveness.
b. CCAEJ will be responsible for daily program management of the contractor's work in
the installation and maintenance of air filtration systems.
c. SCAQMD will provide technical guidance and expertise as necessary.
d. CCAEJ, through its contractor, shall provide training to CITY maintenance staff on the
upkeep, replacement and maintenance of the air filtration systems.
e. CCAEJ, through its contractor, shall provide the Selected Center that receives the air
filtration systems a three-year supply of high-performance replacement filters.
f. CCAEJ, through its contractor, will conduct air flow testing after installation to verify
performance of the filters and stand-alone units and determine appropriate replacement
intervals. Air flow testing will be through the use of wireless remote sensors on selected
classrooms.
g. CCAEJ, through its contractor, will conduct PM monitoring and analysis as necessary
up to 6-12 months post-installation to verify satisfactory performance of air filtration
systems.
h. Troubleshooting assistance on the air filtration systems will be provided by CCAEJ,
through its contractor, for three years post-installation.
1. CCAEJ shall report on the status of the air filtration implementation program to CITY
periodically during the term of the MOD.
<
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EXHIBIT "C"
Maintenance Requirements
CITY, on behalf of the Selected Center, agrees to perform the following tasks regarding upkeep,
replacement, and maintenance requirements of air filtration systems installed at the Selected Center:
a. CITY maintenance staff shall make themselves reasonably available to receive training
from CCAEJ or its contractor on filter replacement and basic maintenance on the air
filtration systems. CITY maintenance staff will also receive a written maintenance
manual documenting procedures on maintaining the air filtration systems.
b. CITY maintenance staff shall replace the filters as recommended by CCAEJ or its
contractor in accordance with industry standards and based on periodic inspection of
the filters or air flow testing data for the term of this MOD or until the supply of filters
provided by CCAEJ has been exhausted.
c. CITY agrees to keep the air filtration systems in place for the term ofthe MOD, subject
to Section 8 ("Termination"), as long as the systems are performing in a satisfactory
condition in terms of air flow and PM removal efficiency.
d. CITY agrees to maintain/repair, in accordance with CITY's general maintenance
standards, any aspect of the rooms which are required for use by the air filtration
systems, including HV AC systems.
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Exhibit "D"
Certification
FINGERPRINT REQUIREMENT (ED CODE 45125.1)
(Contractor) certifies that pursuant to California Public Resources Code
Section 5164, it has conducted criminal background checks, through the California Department of
Justice, of all employees providing services to CITY, and that none have been convicted of serious or
violent felonies, as specified in Penal Code Sections 11105.3.
As further required by California Public Resources Code Section 5164, below is a list of the names of
the employees of the undersigned who may come in contact with children. Failure to comply with this
law may result in, at CITY's sole discretion, termination of any agreement entered into between CITY
and Contractor.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and
correct.
By
Title
Date
Below is a List of Emplovees Who Mav Come In Contact With Children