Loading...
HomeMy WebLinkAbout23-Parks and Recreation ORIGINAL CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION From:Kevin Hawkins, Director Subject: Resolution authorizing the City Manager to execute a Letter of Dept: Parks, Recreation & Community Agreement with KaBOOM! for a Services Dept. community-build playground to be constructed at Lytle Creek Park. Date: January 14, 2008 M/CC Meeting Date: Jan. 22, 2008 Synopsis of Previous Council Action: 1/22/07 Resolution No. 2007-29 - Council authorized execution of a Contractual Agreement with KaBOOM! for construction of a community-build playground at Tom Minor Park. 12/11/07 The Grants Ad-Hoc Committee considered KaBOOM! item; on a 2-1 vote the Committee did not recommend approval. 12/17/07 Council approved Template Letter of Agreement with KaBOOM! in concept, and authorized the City Manager to execute a KaBOOM! Outreach Statement. Recommended motion: Adopt Resolution. Signature Contact person: Kevin Hawkins Phone: 384-5233 Supporting data attached: Yes Ward: 3 FUNDING REQUIREMENTS: Amount: $10,000 from fundraising activities ; $4,600 from account no. 629-453-5161 Value of Equipment donated by funding partner - $40,000 Source: (Acct. No.) (Acct. Description Finance: Council Notes: Agenda Item No. ;Q) CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute a Letter of Agreement with KaBOOM! for a community-build playground to be constructed at Lytle Creek Park. Background: At their meeting on December 17, 2007, Council approved the template Letter of Agreement with KaBOOM! in concept, and the City Manager was authorized to execute a KaBOOM! Outreach Statement. Council was apprised at that time that in the event that this project was awarded, the item would go back to Council for authorization to execute the KaBOOM! Letter of Agreement. On Thursday, January 10, 2008, the Parks, Recreation and Community Services Department was notified that the community-build playground project at Lytle Creek Park has been selected for construction. Design Day will take place on Wednesday, January 23, 2008, and Build Day is slated for Saturday, March 29, 2008, to commemorate Cesar Chavez Day. The Funding Partner for the project is CaliforniaVolunteers, Office of the Governor. The mission of CaliforniaVolunteers is to increase the number and impact of Californians engaged in service and volunteerism. Financial Impact: The KaBOOM! Funding Partner, CaliforniaVolunteers, will provide funding for all but the $10,000 to be fundraised by the City, the Community Partner. Project cost is estimated at $50,000 for the playspace equipment to be installed by volunteers on Build Day. The $4,600 special events policy, which will provide approximately $1 million in liability coverage for Build Day, will be funded from account no. 629-453-5161. Recommendation: Adopt Resolution. C (OPY 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO 2 EXECUTE A LETTER OF AGREEMENT WITH KABOOM! FOR A COMMUNITY-BUILD PLAYGROUND TO BE CONSTRUCTED AT LYTLE 3 CREEK PARK. 4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 5 CITY OF SAN BERNARDINO AS FOLLOWS: 6 7 SECTION 1. That the City Manager is authorized to execute a Letter of Agreement with KaBOOM! for a community-build playground to be constructed at Lytle 8 Creek Park, a copy of which is attached hereto, marked Exhibit "A" and incorporated 9 herein as fully as though set forth at length; and 10 SECTION 2. That the authorization to execute said Letter of Agreement is void 11 and of no effect if it is not executed within ninety days of the date that this Resolution is 12 adopted. 13 14 15 16 17 18 19 /// 20 /// 21 /// 22 23 24 25 26 27 28 -, 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 2 LETTER OF AGREEMENT WITH KABOOM! FOR A COMMUNITY-BUILD PLAYGROUND TO BE CONSTRUCTED AT LYTLE CREEK PARK. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof, held on the 6 day of , 2008, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 ESTRADA 9 BAXTER 10 11 BRINKER 12 DERRY 13 KELLEY 14 JOHNSON 15 McCAMMACK 16 17 18 Rachel Clark, City Clerk 19 The foregoing resolution is hereby approved this day of , 2008. 20 21 Patrick J. Morris, Mayor 22 City of San Bernardino 23 Approved as to Form: 24 25 Jam . Penman, City A rney 26 or 27 28 _ - A, San Mateo, � Chicago, IL Atlanta, � Washington, DC fax 202.659.0210 Suite B 100 • washington, DC 20008 • tell 202.659.0215 / 4455 Connecticut Ave. NW, �/i( 7— THIS KaB00M! COMMUNITY PARTNER AGREEMENT is made this 22nd day of January, 2008 by and between KaB00M! and The City of San Bernardino. RECITALS WHEREAS KaB00M! is a non-profit organization chartered in the District of Columbia and organized as a 501(c) 3 by determination of the Internal Revenue Service; WHEREAS KaB00M! is an organization that develops, manages and coordinates a community- building playground for its Community and Funding Partners, culminating in a one-day installation event known as a"Build Day'; WHEREAS The City of San Bernardino is entering into a written agreement with KaB00M!for services to plan,design and construct a community-build playground ("Program"); WHEREAS KaB00M! has received charitable support from CALIFORNIAVOLUNTEERS ("Funding Partner")for this Program and has entered into a separate agreement with the Funding Partner, the result of which are financial and human resources for this Program. NOW THEREFORE, in consideration of the mutual covenants and conditions hereinafter expressed,and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties hereto covenant and agree as follows: AGREEMENTS 1. OBLIGATIONS OF THE CITY OF SAN BERNARDINO 1.1. The City of San Bernardino agrees to be the Community Partner organization ("Community Partner")for the CalifomiaVolunteers playground project at Lytle Creek Park, 380 South K Street, San Bernardino, CA 92410. 1.2. The City of San Bernardino agrees to be responsive to the discreet timeline developed for the Program, inclusive of providing approval of, action toward or direction to, specific responsibilities and initiatives of KaB00M!on behalf of this Program. 1.3. As a Community Partner for a KaBOOM!community-build playground project, The City of San Bernardino will work with KaB00M!, CalifomiaVolunteers, and community residents to design, plan and build a community plavground. All parties will work closely together to ensure a successful, productive,and fun event. 1.3.1. The Community Partner agrees to host a KaB00M!-facilitated Design Day with at least 10 adults and 20 children. The adults will remain engaged in planning activities throughout the Design Day to Build Day planning process. 1.3.2. The Community Partner agrees to recruit and secure at least 10-15 adult volunteers for preparation activities two to three days prior to Build Day playground installation. 1.3.3. The Community Partner agrees to recruit and secure at least 200-250 adult volunteers for the Build Day playground installation. 1.3.4. The Community Partner agrees to be responsible for preparing the site for the installation of the new playground, at least two weeks before Build Day,which includes but is not limited to removing existing playground equipment,footers and safety surfacing, grading the land, removing fencing and performing soil tests. The City of San Bernardino Letter of Agreement January 22, 2008 2 1.3.5. The Community Partner agrees to provide certain provisions for use by volunteers working on the construction project,including but not limited to food (breakfast snacks, lunch and mid-day snacks),water and restroom facilities. 1.4. In support of this project, The City of San Bernardino is responsible for contributing $10,000 to the playground project. 1.4.1. All funds will be applied directly toward purchasing playground equipment. 1.4.2. Upon receipt of this signed agreement, KaBOOM! will invoice The City of San Bernardino for the full amount of this contribution, and it will be due at least 30 days before the Build Day on March 29, 2008. 1.4.3. If The City of San Bernardino does not make payment as outlined in Section 1.4.2, KaBOOM! reserves the right,without waiving any other rights and remedies,to cancel the build. 1.4.3.1. In the event of the Build Day's cancellation due to non-payment by the Community Partner as outlined in Section 1.4.2, at KaBOOM!'s written request,without waiving any other rights and remedies, The City of San Bernardino shall be deemed liable for damages to KaBOOM! and Funding Partner for any un-cancelable contractual commitments entered into prior to cancellation, any equipment costs, labor and materials, and any additional expenses related to the Program, such as airfare and general supplies. 1.4.4. The Community Partner has the right to back-up documentation detailing the use of its contribution to the project. Upon request, KaBOOM! will provide back-up documentation for The City of San Bernardino within 120 days after the Build Day. 1.5. The Build Day must occur in calendar year 2008 on Saturday March 29th, 2008. 1.5.1. The Build Day shall not be postponed (defined as delayed, held over or rescheduled) under any circumstances other than for conditions that jeopardize the safety of the volunteers, or for unsafe weather conditions that threaten the structural integrity of the playground. 1.5.1.1. The decision to postpone a Build Day shall be reached through discussion, collaboration and majority agreement by KaBOOM!,the Community Partner and the Funding Partner, each represented by a person authorized by each party. 1.5.1.2. The sole exception to mutual decision-making and majority agreement shall be when the decision must be made immediately and solely by KaBOOM!on the construction site in absence of authorized representatives of the Community Partner and the Funding Partner being available. 1.5.1.3. The authorized representatives are defined as those individuals who have signed this Agreement, and the Agreement between KaBOOM! and the Funding Partner, or their designates. 1.5.2. In the event that the Build Date is cancelled or changed solely by The City of San Bernardino,The City of San Bernardino shall be deemed liable for damages to KaBOOM! and Funding Partner for any equipment costs, labor and materials and any additional expenses related to the Program, such as airfare and general supplies. 1.5.3. In the event of a Build Day postponement, KaBOOM! shall collaborate with the Community Partner and the Funding Partner to issue a Memo of Understanding (MOU)that outlines a plan for rescheduling the Build Day. 1.5.3.1. The MOU shall outline any additional expenses related to the rescheduled Build Day, and the party or parties responsible for covering the additional expenses. These expenses may include, but are not limited to, equipment storage, security, equipment shipment, and KaBOOM!travel and hotel expenses. 1.5.3.2. The MOU shall identify the next-earliest possible date for the Build Day, based on the availability of open dates on the KaBOOM! program calendar,the availability of The City of San Bernardino Letter of Agreement January 22, 2008 3 the Community Partner to participate in the project,and the availability of the Funding Partner to participate in the project. 1.6. The City of San Bernardino shall attach documentation to this Agreement showing proof of land ownership evidenced by a deed granting title of the property to The City of San Bernardino to the property,or a letter from the property owner showing approval for the installation of the playground. Working with the support of the property owner(if owner is a separate party), The City of San Bernardino will maintain the property before and after the build to ensure a safe and attractive play area. 1.7. The City of San Bernardino shall collaborate with KaB00M!during the planning of this Project to develop a maintenance program for the playground that will be implemented by The City of San Bernardino upon completion of the playground installation. 1.8. The City of San Bernardino is self-insured and The City of San Bernardino is responsible for providing coverage for its own employees and for any accidents arising out of the equipment.. 1.9. The City of San Bernardino will obtain all necessary and appropriate permits and licenses regarding the installation and possession and use of a playground prior to Build Day in compliance with local and state laws, regulations and guidelines. 1.10. The City of San Bernardino will work with local authorities and/or private firms as appropriate to ensure the safety and security of human and equipment resources(playground equipment, playground volunteers)from the point of material delivery,during the period(s) when site preparation occurs on the playground site, and until the conclusion of the Build Day. 1.11. The City of San Bernardino is responsible for ensuring the playground site is safe for volunteers and children. 1.11.1. The City of San Bernardino is responsible for conducting up to two utility site checks as reasonably requested by KaB00M!with the appropriate utility companies within two weeks of Design Day. Documentation of the utility checks must be provided to the KaB00M! Project Manager upon completion. 1.11.2. The City of San Bernardino is responsible for conducting up to two soil site tests as reasonably requested by KaB00M!with the first test being completed within two weeks of Design Day. Documentation of the soil checks must be provided to the KaB00M! Project Manager upon completion. The City of San Bernardino is responsible for undertaking any necessary risk mitigation should the soil be deemed unsafe for children or volunteers. 1.12. The City of San Bernardino will agree to accept and maintain engineered wood fiber as playground safety surfacing, meeting standards established by CPSC guidelines,for the lifetime of the playground. 1.13. The City of San Bernardino is solely responsible for any additional costs beyond the proposed playground project budget. KaB00M! is not responsible for paying any vendors for any prior site preparation, upgrades or improvements not agreed upon with KaB00M!. If Community Partner decides to purchase additional equipment or materials to supplement materials secured by KaB00M!,then the Community Partner is solely responsible for paying for the materials and all other liabilities related to such materials. Neither KaB00M! nor its Funding Partner(s)shall be liable for payment. Community Partner will hold KaB00M! and the Funding Partner harmless of any payments or liability with respect to the additional items ordered. The City of San Remardino Letter of Agreement January 22, 2008 4 1.14. The City of San Bernardino will seek prior approval from KaBOOM! and/or CalifomiaVolunteers for any written and/or printed materials that reference the Program and/or contain the logos of KaBOOM!or CaliforiaVolunteers, including but not limited to press releases,fliers and promotional materials. The City of San Bernardino will work in collaboration with KaBOOM! and/or CaliforiaVolunteers to secure media coverage. KaBOOM! will provide mutual opportunity for the Community Partner to review and approve materials prepared by KaBOOM! related to this Project(such approval not to be unreasonably withheld). 1.15. The City of San Bernardino will allow the names and logos of CaliforiaVolunteers and KaBOOM!on permanent playground signage, such as that shown as a sample during The City of San Bernardino's application process.. Playground signage is 12'/4 inches wide by 301/4 inches tall and mounted on poles. The sign will be erected in a mutually agreed upon location and in accordance with the Community Partner's guidelines regarding corporate signage. If the Community Partner has specific guidelines regarding corporate signage on its property, please attach those guidelines to this Agreement. 1.16. The City of San Bernardino understands that the playground will be added to the roster of KaBOOM! Build Guild and, as such, will receive subsequent information from KaBOOM! on playground maintenance, programming and enhancements. 2. OBLIGATIONS OF KaBOOM! 2.1. KaBOOM! will provide the Community Partner with technical and organizational leadership and guidance for the playground project. 2.1.1. Facilitate playground design and work with vendors to procure equipment and materials in a timely fashion,the possible exception being the installation of safety surfacing other than engineered wood fiber. 2.1.2. Manage construction logistics for the project.coordinate playground site preparation activities with the Community Partner, inventory equipment and materials, and assure that the necessary tools and materials are available to construct the playground. 2.1.3. Facilitate regular planning meetings with the Community Partner and the playground planning committee. 2.1.4. Lead the Build Day activities, including the coordination of Build Day captains and volunteers. 2.1.5. Provide educational and promotional materials to support the playground project, including the KaBOOM!Tool Kit of publications(4-book set), KaBOOM!online Playground Planner, nametags and other general supplies. 2.1.6. Provide for and coordinate the participation of the Funding Partner, CalifomiaVolunteers, which has committed to provide KaBOOM!with financial,human and/or in-kind resources to bring to fruition the playground project with The City of San Bernardino . 2.2. KaBOOM! (in collaboration with The City of San Bernardino), will provide or secure a Certified Playground Safety Inspector(CPSI)to review the playground structure to ensure that it is safe and built to all appropriate standards and guidelines. The City of San Bernardino acknowledges that neither KaBOOM!or Funding Partner nor their respective officers, directors, employees,or agents have made or are in any way responsible or liable for action, inaction or negligence of the CPSI and The City of San Bernardino agrees to look solely to the CPSI for any such liability, costs or expenses which arise out of the CPSI's action, inaction or negligence. 2.2.1. The CPSI review will occur at the conclusion of the Build Day or, if KaBOOM! assumes responsibility for the playground construction going beyond one day, at the conclusion of the installation. IF I starts with • . !r oi_ •k ir_ 06a1- 4CP• The City of San Bernardino Letter of Agreement January 22, 2008 5 2.2.2. In accordance with Section 4, The City of San Bernardino shall be solely responsible for any injury, property damage, or death which occurs in connection with the playground after review of the playground is completed. 2.2.3. In accordance with Section 4, in the event that the Build Day is delayed or not completed on the scheduled day due to failure of The City of San Bernardino to meet the terms of this Agreement,then The City of San Bemardino will be responsible for securing a CPSI to review the playground. 3. FUNDING PARTNER RELATIONS 3.1. KaBOOM! has a separate agreement with a KaBOOM! Funding Partner, CALIFORNIAVOLUNTEERS("Funding Partner"),whose contributions to KaBOOM! are helping to make this Project possible. 3.2. The Community Partner shall not solicit sponsors or donors whose products or services directly compete with the products or services of the Funding Partner. 3.2.1. For the purposes of this Agreement, sponsors are defined as individuals,businesses or philanthropic organizations that contribute funding or in-kind gifts to this Project in exchange for certain rights to promote their affiliation with this Project to the general public, including but not limited to public name recognition via this playground project's signs,T-shirts, media materials and public-address systems. Conversely,donors are individuals or groups whose gifts to this Project require personal acknowledgement only, such as thank-you letters. 3.3. In the event the Community Partner solicits other sponsors or donors, then those sponsors and donors shall not compete with the Funding Partner for signage and sponsorship recognition. The Funding Partner shall receive first placement on any recognition materials developed for the Project, including playground signage, banners,T-shirts, press releases,web-site and newsletter stories, and flyers. 3.4. In the event of a conflict between the Funding Partner and other sponsors and donors,the Funding Partner, Community Partner and KaBOOM!shall consider recognition on a case-by-case basis. 4. OWNERSHIP AND LIABILITY 4.1. The Community Partner is the owner of the playground in its entirety,for the lifetime of the playground, including the equipment and/or safety surfacing purchased by KaBOOM! and/or its Funding Partner(s). 4.2. It is agreed that The City of San Bernardino will indemnify and hold harmless KaBOOM!and/or the Funding Partner and their respective officers, directors,employees,or agents from any and all claims,costs, expenses(including attorney's fees and disbursements)or actions associated with this playground project from any claim or action, including but not limited to claims and actions for personal injury,death,or property damages resulting from the use of any playground property and equipment, except to the extent resulting from any willful misconduct of KaBOOM! and/or the KaBOOM! Funding Partner. 4.3. A Certified Playground Safety Inspector will review the playground structure upon completion at the end of the scheduled build Day. The manufacturer's representative/installer will certify that the playground was installed to manufacturer's specifications at the end of the Build Day. 4.3.1. Notwithstanding the foregoing, The City of San Bernardino shall be solely responsible for the playground and its equipment upon certification of the playground. 1�starts with The City of San Bernardino Letter of Agreement January 22, 2008 6 4.3.2. The City of San Bernardino shall be responsible for securing safety measures of the playground to prevent injury, death,or property damages in the unlikely event that the playground is not completely constructed, and all equipment fully installed, at the conclusion of the Build Day and once KaBOOM!and/or the CPSI leave the playground site. 4.3.3. In the unlikely event or planned circumstances that the playground is not completely constructed and all equipment fully installed at the conclusion of the Build Day,The City of San Bernardino shall be responsible for completing the installation of the playground in accordance with the specified guidelines with the assistance of the CPSI and/or the manufacturer's representatives,facilitated by KaBOOM!. The City of San Bernardino shall be solely responsible for any injuries,death,or property damage that arises out of The City of San Bernardino's completion of such installation. 4.4. Maintenance of the playground facility and supervision of its use is the sole responsibility of The City of San Bernardino. Upon request,the playground-equipment and safety-surfacing manufacturers will provide guidance and materials,toward a maintenance plan for the playground. 4.4.1. The Community Partner will receive from Playworld Systems Inc.,the provider of its playground equipment, or via its KaBOOM! project manager, a play equipment maintenance kit from Playworld Systems Inc. 5. WARRANTY 5.1. The playground equipment is covered under warranty by the selected playground equipment company in accordance with its warranty policy. Upon request,a copy of the warranty for the playground-equipment and the safety-surfacing will be provided by the manufacturer(s)to the Community Partner. While playground equipment and/or material manufacturers may provide a warranty with respect to their product,The City of San Bernardino acknowledges that neither KaBOOM!or Funding Partner nor their respective officers, directors,employees or agents, have made nor are in any manner responsible or liable for any warranty, representation, or guarantee, express or implied, in fact or in law, relative to any equipment or material, including but not limited to its quality, mechanical condition or fitness for a particular purpose. Any warranties and/or guarantees on any equipment or material are subject to the respective manufacturer's terms therefore, and The City of San Bernardino agrees to look solely to such manufacturers for any such warranty and/or guarantee. 6. GENERAL 6.1. Notices. Any notices required or permitted to be given hereunder shall be sent by certified or registered United States mail, postage properly prepaid,or by personal delivery addressed as follows: To: Helen Zimmerman, Manager Contracts&Risk Management KaBOOM! 4455 Connecticut Ave., NW, Suite 8100 Washington, DC 20008 USA 202-659-0215 Copy To: Shannon Wilk, Client Services Coordinator (use same KaBOOM! address above) To Corporation: Fred Wilson THE CITY OF SAN BERNARDINO 300 North D Street San Bernardino, CA 92418 • r The City of San Bernardino Letter of Agreement January 22, 2008 7 909-384-5122 6.2. Counterparts. This Agreement may be executed by the parties in one or more counterparts which shall, in the aggregate, be signed by all parties and each counterpart shall be deemed an original instrument as against any party who has signed it. 6.3. Governing Law. The laws of the State of Illinois,without reference to its choice of law provisions, shall govern the interpretation and/or legal effect hereunder and shall have jurisdiction over any dispute(including arbitration)arising out of or under the terms of this Agreement. 6.4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective affiliates,successor, and personal representatives of the parties to this Agreement,except to the extent of any contrary provision in this Agreement. 6.5. Severability. This Agreement shall be construed to be in accordance with federal and state statutes. If any provision of this Agreement,or any portion thereof, is found to be invalid, illegal,or unenforceable, under any applicable statute or rule of law,then such provision or portion thereof shall be deemed omitted, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 6.6. Complete Agreement. This Agreement, when executed by the duly authorized representatives of each party shall be the entire agreement between the parties as to the subject matter stated herein and supersedes and replaces any and all previous agreements and all amendments thereto. 6.7. Assignment. This Agreement may not be assigned,delegated or transferred by either party without the prior written consent of the other party hereto. 6.8. Force Majeure. If either of the parties hereto is delayed or prevented from fulfilling any of its obligations under this Agreement by Force Majeure,said party shall not be liable under this Agreement for said delay or failure. "Force Majeure"means any cause beyond the reasonable control of a party, including, but not limited to acts of God, acts of omission of civil or military authorities of a state or nation, fire, strike,flood, riot, act of terrorism,war,delay of transportation, or inability due to the aforementioned causes to obtain necessary labor, materials or facilities. Either party, however, may terminate this Agreement if the other is unable to perform any obligation under the Agreement for a period longer than ten(10)calendar days due to such a force majeure event. In the event of any such termination, KaB00M! shall refund to the Community Partner any monies paid to KaB00M!, less expenses already committed to and/or incurred prior to the date of termination. If, upon termination as provided herein, the sum due KaB00M! by Community Partner, exceeds the sum paid to KaB00M! hereunder, Community Partner agrees to pay KaB00M!for any such additional sum due upon presentation of appropriate documentation within 30 days of invoice. 6.9. Waiver. A waiver by either party of a breach or failure to perform shall not constitute a waiver of any subsequent breach or failure. • • •• The City of San Bernardino Letter of Agreement January 22, 2008 8 IN WITNESS WHEREOF,this Agreement has been executed by the parties as of the day and year first above written. By signing this Agreement, The City of San Bernardino fully acknowledges its consent and understanding of and commitment to the terms and guidelines set forth above. Please sign both original versions of this letter and return them to KaBOOM!. We will then sign the originals, and mail one original &and2ge copy back to you for your files. flavdrouna The City of San Bernardino Letter of Agreement January 22, 2008 9 KaBOOM!and CalifomiaVolunteers look forward to working with The City of San Bernardino to make this playground a reality. Date Terms agreed to: Date Terms agreed to: By: _ By: Fred Wilson Gerry Megas City Manager Chief Financial Officer Authorized Signature for The City of San Bernardino Phone number: (202)464-6067 Phone Number: (909) 384-5122 Fax number: (202)659-0210 Fax Number:(909)384-5160 Email address: hzimmerman(o�kaboom.org Email Address: Wilson fr(5)sbcity.org The City of San Bernardino KaBOOM! 300 North D Street 4455 Connecticut Ave, NW Suite B100 San Bernardino, CA 92418 Washington, DC 20008 Contact information for the person who should receive KaBOOM! invoices: Name: Telephone Number: Mailing Address: Fax Number: Email Address: Attachments: Welcome Packet Playworld Systems Inc. Playground Equipment Warranty(sample) Copy: KaBOOM! Project Archives Atlanta, GA San 1%atea, �,{ D(; Chicago, �h fax 202.859.0210 ..shin$ on5 • tel202.859.0215 4455 Connecticut Ave. DTW, Suits B10o • Washington, DC 20008 THIS KaBOOM! COMMUNITY PARTNER AGREEMENT is made this 22°d day of January, 2008 by and between KaBOOM! and The City of San Bernardino. RECITALS WHEREAS KaBOOM! is a non-profit organization chartered in the District of Columbia and organized as a 501(c)3 by determination of the Internal Revenue Service-, WHEREAS KaBOOM! is an organization that develops, manages and coordinates a community- building playground for its Community and Funding Partners, culminating in a one-day installation event known as a"Build Day"; WHEREAS The City of San Bernardino is entering into a written agreement with KaBOOM!for services to plan, design and construct a community-build playground ("Program"); WHEREAS KaBOOM! has received charitable support from CALIFORNIAVOLUNTEERS ("Funding Partner')for this Program and has entered into a separate agreement with the Funding Partner, the result of which are financial and human resources for this Program. NOW THEREFORE, in consideration of the mutual covenants and conditions hereinafter expressed, and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties hereto covenant and agree as follows: AGREEMENTS 1. OBLIGATIONS OF THE CITY OF SAN BERNARDINO 1.1. The City of San Bernardino agrees to be the Community Partner organization ("Community Partner')for the CaliforniaVolunteers playground project at Lytle Creek Park, 380 South K Street, San Bernardino, CA 92410. 1.2. The City of San Bernardino agrees to be responsive to the discreet timeline developed for the Program, inclusive of providing approval of,action toward or direction to, specific responsibilities and initiatives of KaBOOM!on behalf of this Program. 1.3. As a Community Partner for a KaBOOM!community-build playground project, The City of San Bernardino will work with KaBOOM!, CalifomiaVolunteers, and community residents to design, plan and build a community playground. All parties will work closely together to ensure a successful, productive,and fun event. 1.3.1. The Community Partner agrees to host a KaBOOM!-facilitated Design Day with at least 10 adults and 20 children. The adults will remain engaged in planning activities throughout the Design Day to Build Day planning process. 1.3.2. The Community Partner agrees to recruit and secure at least 10-15 adult volunteers for preparation activities two to three days prior to Build Day playground installation. 1.3.3. The Community Partner agrees to recruit and secure at least 200-250 adult volunteers for the Build Day playground installation. 1.3.4. The Community Partner agrees to be responsible for preparing the site for the installation of the new playground, at least two weeks before Build Day, which includes but is not limited to removing existing playground equipment,footers and safety surfacing, grading the land, removing fencing and performing soil tests. i starts with The City of San Bernardino Letter of Agreement January 22, 2008 2 1.3.5. The Community Partner agrees to provide certain provisions for use by volunteers working on the construction project,including but not limited to food (breakfast snacks, lunch and mid-day snacks), water and restroom facilities. 1.4. In support of this project, The City of San Bernardino is responsible for contributing $10,000 to the playground project. 1.4.1. All funds will be applied directly toward purchasing playground equipment. 1.4.2. Upon receipt of this signed agreement, KaBOOM!will invoice The City of San Bernardino for the full amount of this contribution, and it will be due at least 30 days before the Build Day on March 29, 2008. 1.4.3. If The City of San Bernardino does not make payment as outlined in Section 1.4.2, KaBOOM! reserves the right,without waiving any other rights and remedies,to cancel the build. 1.4.3.1. In the event of the Build Day's cancellation due to non-payment by the Community Partner as outlined in Section 1.4.2, at KaBOOM!'s written request,without waiving any other rights and remedies,The City of San Bernardino shall be deemed liable for damages to KaBOOM! and Funding Partner for any un-cancelable contractual commitments entered into prior to cancellation, any equipment costs, labor and materials, and any additional expenses related to the Program,such as airfare and general supplies. 1.4.4. The Community Partner has the right to back-up documentation detailing the use of its contribution to the project. Upon request, KaBOOM!will provide back-up documentation for The City of San Bernardino within 120 days after the Build Day. 1.5. The Build Day must occur in calendar year 2008 on Saturday March 29th, 2008. 1.5.1. The Build Day shall not be postponed (defined as delayed, held over or rescheduled) under any circumstances other than for conditions that jeopardize the safety of the volunteers, or for unsafe weather conditions that threaten the structural integrity of the playground. 1.5.1.1. The decision to postpone a Build Day shall be reached through discussion, collaboration and majority agreement by KaBOOM!, the Community Partner and the Funding Partner, each represented by a person authorized by each party. 1.5.1.2. The sole exception to mutual decision-making and majority agreement shall be when the decision must be made immediately and solely by KaBOOM!on the construction site in absence of authorized representatives of the Community Partner and the Funding Partner being available. 1.5.1.3. The authorized representatives are defined as those individuals who have signed this Agreement, and the Agreement between KaBOOM! and the Funding Partner, or their designates. 1.5.2. In the event that the Build Date is cancelled or changed solely by The City of San Bernardino,The City of San Bernardino shall be deemed liable for damages to KaBOOM! and Funding Partner for any equipment costs, labor and materials and any additional expenses related to the Program,such as airfare and general supplies. 1.5.3. In the event of a Build Day postponement, KaBOOM!shall collaborate with the Community Partner and the Funding Partner to issue a Memo of Understanding (MOU)that outlines a plan for rescheduling the Build Day. 1.5.3.1. The MOU shall outline any additional expenses related to the rescheduled Build Day, and the party or parties responsible for covering the additional expenses. These expenses may include, but are not limited to,equipment storage, security, equipment shipment, and KaBOOM!travel and hotel expenses. 1.5.3.2. The MOU shall identify the next-earliest possible date for the Build Day, based on the availability of open dates on the KaBOOM! program calendar,the availability of The City of San Bernardino Letter of Agreement January 22, 2008 3 the Community Partner to participate in the project, and the availability of the Funding Partner to participate in the project. 1.6. The City of San Bernardino shall attach documentation to this Agreement showing proof of land ownership evidenced by a deed granting title of the property to The City of San Bernardino to the property,or a letter from the property owner showing approval for the installation of the playground. Working with the support of the property owner(if owner is a separate party), The City of San Bernardino will maintain the property before and after the build to ensure a safe and attractive play area. 1.7. The City of San Bernardino shall collaborate with KaB00M! during the planning of this Project to develop a maintenance program for the playground that will be implemented by The City of San Bernardino upon completion of the playground installation. 1.8. The City of San Bernardino is self-insured and The City of San Bernardino is responsible for providing coverage for its own employees and for any accidents arising out of the equipment.. 1.9. The City of San Bernardino will obtain all necessary and appropriate permits and licenses regarding the installation and possession and use of a playground prior to Build Day in compliance with local and state laws, regulations and guidelines. 1.10. The City of San Bernardino will work with local authorities and/or private firms as appropriate to ensure the safety and security of human and equipment resources(playground equipment, playground volunteers)from the point of material delivery, during the period(s)when site preparation occurs on the playground site,and until the conclusion of the Build Day. 1.11. The City of San Bernardino is responsible for ensuring the playground site is safe for volunteers and children. 1.11.1. T he City of San Bernardino is responsible for conducting up to two utility site checks as reasonably requested by KaB00M!with the appropriate utility companies within two weeks of Design Day. Documentation of the utility checks must be provided to the KaB00M! Project Manager upon completion. 1.11.2. The City of San Bernardino is responsible for conducting up to two soil site tests as reasonably requested by KaB00M!with the first test being completed within two weeks of Design Day. Documentation of the soil checks must be provided to the KaB00M! Project Manager upon completion. The City of San Bernardino is responsible for undertaking any necessary risk mitigation should the soil be deemed unsafe for children or volunteers. 1.12. The City of San Bernardino will agree to accept and maintain engineered wood fiber as playground safety surfacing, meeting standards established by CPSC guidelines, for the lifetime of the playground. 1.13. The City of San Bernardino is solely responsible for any additional costs beyond the proposed playground project budget. KaB00M! is not responsible for paying any vendors for any prior site preparation, upgrades or improvements not agreed upon with KaB00M!. If Community Partner decides to purchase additional equipment or materials to supplement materials secured by KaB00M!,then the Community Partner is solely responsible for paying for the materials and all other liabilities related to such materials. Neither KaB00M! nor its Funding Partner(s)shall be liable for payment. Community Partner will hold KaB00M!and the Funding Partner harmless of any payments or liability with respect to the additional items ordered. + • - - -- - - The City of San Bernardino Letter of Agreement January 22, 2008 4 1.14. The City of San Bernardino will seek prior approval from KaBOOM! and/or CaliforniaVolunteers for any written and/or printed materials that reference the Program and/or contain the logos of KaBOOM! or CaliforniaVolunteers, including but not limited to press releases,fliers and promotional materials. The City of San Bernardino will work in collaboration with KaBOOM! and/or CaliforniaVolunteers to secure media coverage. KaBOOM! will provide mutual opportunity for the Community Partner to review and approve materials prepared by KaBOOM! related to this Project(such approval not to be unreasonably withheld). 1.15. The City of San Bernardino will allow the names and logos of CaliforniaVolunteers and KaBOOM!on permanent playground signage, such as that shown as a sample during The City of San Bernardino's application process. Playground signage is 12'/4 inches wide by 30'/4 inches tall and mounted on poles. The sign will be erected in a mutually agreed upon location and in accordance with the Community Partner's guidelines regarding corporate signage. If the Community Partner has specific guidelines regarding corporate signage on its property, please attach those guidelines to this Agreement. 1.16. The City of San Bernardino understands that the playground will be added to the roster of KaBOOM! Build Guild and, as such,will receive subsequent information from KaBOOM! on playground maintenance, programming and enhancements. 2. OBLIGATIONS OF KaBOOM! 2.1. KaBOOM! will provide the Community Partner with technical and organizational leadership and guidance for the playground project. 2.1.1. Facilitate playground design and work with vendors to procure equipment and materials in a timely fashion,the possible exception being the installation of safety surfacing other than engineered wood fiber. 2.1.2. Manage construction logistics for the project, coordinate playground site preparation activities with the Community Partner, inventory equipment and materials, and assure that the necessary tools and materials are available to construct the playground. 2.1.3. Facilitate regular planning meetings with the Community Partner and the playground planning committee. 2.1.4. Lead the Build Day activities, including the coordination of Build Day captains and volunteers. 2.1.5. Provide educational and promotional materials to support the playground project, including the KaBOOM! Tool Kit of publications(4-book set), KaBOOM!online Playground Planner, nametags and other general supplies. 2.1.6. Provide for and coordinate the participation of the Funding Partner, CalifomiaVolunteers, which has committed to provide KaBOOM!with financial, human and/or in-kind resources to bring to fruition the playground project with The City of San Bernardino . 2.2. KaBOOM! (in collaboration with The City of San Bernardino), will provide or secure a Certified Playground Safety Inspector(CPSI)to review the playground structure to ensure that it is safe and built to all appropriate standards and guidelines. The City of San Bernardino acknowledges that neither KaBOOM!or Funding Partner nor their respective officers,directors, employees, or agents have made or are in any way responsible or liable for action, inaction or negligence of the CPSI and The City of San Bernardino agrees to look solely to the CPSI for any such liability, costs or expenses which arise out of the CPSI's action, inaction or negligence. 2.2.1. The CPSI review will occur at the conclusion of the Build Day or, if KaBOOM! assumes responsibility for the playground construction going beyond one day, at the conclusion of the installation. The City of San Bernardino Letter of Agreement January 22, 2008 5 2.2.2. In accordance with Section 4, The City of San Bernardino shall be solely responsible for any injury, property damage, or death which occurs in connection with the playground after review of the playground is completed. 2.2.3. In accordance with Section 4, in the event that the Build Day is delayed or not completed on the scheduled day due to failure of The City of San Bernardino to meet the terms of this Agreement,then The City of San Bernardino will be responsible for securing a CPSI to review the playground. 3. FUNDING PARTNER RELATIONS 3.1. KaBOOM! has a separate agreement with a KaBOOM! Funding Partner, CALIFORNIAVOLUNTEERS ("Funding Partner"), whose contributions to KaBOOM! are helping to make this Project possible. 3.2. The Community Partner shall not solicit sponsors or donors whose products or services directly compete with the products or services of the Funding Partner. 3.2.1. For the purposes of this Agreement, sponsors are defined as individuals, businesses or philanthropic organizations that contribute funding or in-kind gifts to this Project in exchange for certain rights to promote their affiliation with this Project to the general public, including but not limited to public name recognition via this playground project's signs, T-shirts, media materials and public-address systems. Conversely, donors are individuals or groups whose gifts to this Project require personal acknowledgement only, such as thank-you letters. 3.3. In the event the Community Partner solicits other sponsors or donors,then those sponsors and donors shall not compete with the Funding Partner for signage and sponsorship recognition. The Funding Partner shall receive first placement on any recognition materials developed for the Project, including playground signage, banners, T-shirts, press releases, web-site and newsletter stories, and flyers. 3.4. In the event of a conflict between the Funding Partner and other sponsors and donors, the Funding Partner, Community Partner and KaBOOM! shall consider recognition on a case-by-case basis. 4. OWNERSHIP AND LIABILITY 4.1. The Community Partner is the owner of the playground in its entirety,for the lifetime of the playground, including the equipment and/or safety surfacing purchased by KaBOOM! and/or its Funding Partner(s). 4.2. It is agreed that The City of San Bernardino will indemnify and hold harmless KaBOOM! and/or the Funding Partner and their respective officers, directors,employees, or agents from any and all claims,costs, expenses(including attorney's fees and disbursements)or actions associated with this playground project from any claim or action, including but not limited to claims and actions for personal injury, death,or property damages resulting from the use of any playground property and equipment, except to the extent resulting from any willful misconduct of KaBOOM! and/or the KaBOOM! Funding Partner. 4.3. A Certified Playground Safety Inspector will review the playground structure upon completion at the end of the scheduled build Day. The manufacturer's representative/installer will certify that the playground was installed to manufacturer's specifications at the end of the Build Day. 4.3.1. Notwithstanding the foregoing, The City of San Bernardino shall be solely responsible for the playground and its equipment upon certification of the playground. The City of San Bernardino Letter of Agreement January 22, 2008 6 4.3.2. The City of San Bernardino shall be responsible for securing safety measures of the playground to prevent injury, death, or property damages in the unlikely event that the playground is not completely constructed, and all equipment fully installed, at the conclusion of the Build Day and once KaBOOM! and/or the CPSI leave the playground site. 4.3.3. in the unlikely event or planned circumstances that the playground is not completely constructed and all equipment fully installed at the conclusion of the Build Day, The City of San Bernardino shall be responsible for completing the installation of the playground in accordance with the specified guidelines with the assistance of the CPSI and/or the manufacturer's representatives,facilitated by KaBOOM!. The City of San Bernardino shall be solely responsible for any injuries, death,or property damage that arises out of The City of San Bernardino's completion of such installation. 4.4. Maintenance of the playground facility and supervision of its use is the sole responsibility of The City of San Bernardino. Upon request,the playground-equipment and safety-surfacing manufacturers will provide guidance and materials,toward a maintenance plan for the playground. 4.4.1. The Community Partner will receive from Playworld Systems Inc.,the provider of its playground equipment, or via its KaBOOM! project manager, a play equipment maintenance kit from Playworld Systems Inc. 5. WARRANTY 5.1. The playground equipment is covered under warranty by the selected playground equipment company in accordance with its warranty policy. Upon request, a copy of the warranty for the playground-equipment and the safety-surfacing will be provided by the manufacturer(s)to the Community Partner. While playground equipment and/or material manufacturers may provide a warranty with respect to their product, The City of San Bernardino acknowledges that neither KaBOOM!or Funding Partner nor their respective officers,directors, employees or agents, have made nor are in any manner responsible or liable for any warranty, representation, or guarantee, express or implied, in fact or in law, relative to any equipment or material, including but not limited to its quality, mechanical condition or fitness for a particular purpose. Any warranties and/or guarantees on any equipment or material are subject to the respective manufacturer's terms therefore, and The City of San Bernardino agrees to look solely to such manufacturers for any such warranty and/or guarantee. 6. GENERAL 6.1. Notices. Any notices required or permitted to be given hereunder shall be sent by certified or registered United States mail, postage properly prepaid,or by personal delivery addressed as follows: To: Helen Zimmerman, Manager Contracts& Risk Management KaBOOM! 4455 Connecticut Ave., NW, Suite 8100 Washington, DC 20008 USA 202-659-0215 Copy To: Shannon Wilk, Client Services Coordinator (use same KaBOOM!address above) To Corporation: Fred Wilson THE CITY OF SAN BERNARDINO 300 North D Street San Bernardino, CA 92418 The City of San Bernardino Letter of Agreement January 22, 2008 7 909-384-5122 6.2. Counterparts, This Agreement may be executed by the parties in one or more counterparts which shall, in the aggregate, be signed by all parties and each counterpart shall be deemed an original instrument as against any party who has signed it. 6.3. Governing Law. The laws of the State of Illinois, without reference to its choice of law provisions, shall govern the interpretation and/or legal effect hereunder and shall have jurisdiction over any dispute(including arbitration) arising out of or under the terms of this Agreement. 6.4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective affiliates, successor, and personal representatives of the parties to this Agreement, except to the extent of any contrary provision in this Agreement. 6.5. Severability. This Agreement shall be construed to be in accordance with federal and state statutes. If any provision of this Agreement, or any portion thereof, is found to be invalid, illegal, or unenforceable, under any applicable statute or rule of law, then such provision or portion thereof shall be deemed omitted, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 6.6. Complete Agreement. This Agreement, when executed by the duly authorized representatives of each party shall be the entire agreement between the parties as to the subject matter stated herein and supersedes and replaces any and all previous agreements and all amendments thereto. 6.7. Assignment. This Agreement may not be assigned, delegated or transferred by either party without the prior written consent of the other party hereto. 6.8. Force Majeure. If either of the parties hereto is delayed or prevented from fulfilling any of its obligations under this Agreement by Force Majeure, said party shall not be liable under this Agreement for said delay or failure. "Force Majeure"means any cause beyond the reasonable control of a party, including, but not limited to acts of God, acts of omission of civil or military authorities of a state or nation,fire, strike,flood, riot, act of terrorism, war, delay of transportation, or inability due to the aforementioned causes to obtain necessary labor, materials or facilities. Either party, however, may terminate this Agreement if the other is unable to perform any obligation under the Agreement for a period longer than ten(10)calendar days due to such a force majeure event. In the event of any such termination, KaB00M! shall refund to the Community Partner any monies paid to KaB00M!, less expenses already committed to and/or incurred prior to the date of termination. If, upon termination as provided herein,the sum due KaB00M! by Community Partner, exceeds the sum paid to KaB00M! hereunder, Community Partner agrees to pay KaB00M!for any such additional sum due upon presentation of appropriate documentation within 30 days of invoice. 6.9. Waiver. A waiver by either party of a breach or failure to perform shall not constitute a waiver of any subsequent breach or failure. The City of San Bernardino Letter of Agreement January 22, 2008 8 N WITNESS WHEREOF,this Agreement has been executed by the parties as of the day and year first above written. By signing this Agreement,The City of San Bernardino fully acknowledges its consent and understanding of and commitment to the terms and guidelines set forth above. Please sign both original versions of this letter and return them to KaBOOM!. We will then sign the originals, and mail one original and a copy back to you for your files. The Co of San Bernardino Letter of Agreement January 22, 2008 9 KaBOOM! and CaliforniaVolunteers look forward to working with The City of San Bernardino to make this playground a reality. Date Terms agreed to: Date Terms agreed to: By: By: Fred Wilson Gerry Megas City Manager Chief Financial Officer Authorized Signature for The City of San Bernardino Phone number: (202)464-6067 Phone Number: (909) 384-5122 Fax number: (202) 659-0210 Fax Number:(909) 384-5160 Email address: hzimmerman(a.kaboom.org Email Address: Wilson fr(a.sbcity.org The City of San Bernardino KaBOOM! 300 North D Street 4455 Connecticut Ave, NW Suite B100 San Bernardino, CA 92418 Washington, DC 20008 Contact information for the person who should receive KaBOOM! invoices: Name: Telephone Number: Mailing Address: Fax Number: Email Address: Attachments: Welcome Packet Playworld Systems Inc. Playground Equipment Warranty(sample) Copy: KaBOOM! Project Archives i�a..shington, D ChiCage9 IL Atlanta, GA San Wlateo, Ave- NW, Suite B100 Washington,DC 20008 tel 202.899.0218 fax 202.669.0210 �� 4455 Connecticut THIS KaBOOM! COMMUNITY PARTNER AGREEMENT is made this 22nd day of January, 2008 by and between KaBOOM! and The City of San Bernardino. RECITALS I WHEREAS KaBOOM! is a non-profit organization chartered in the District of Columbia and organized as a 501(c) 3 by determination of the Internal Revenue Service; WHEREAS KaBOOM! is an organization that develops, manages and coordinates a community- building playground for its Community and Funding Partners, culminating in a one-day installation event known as a"Build Day"; WHEREAS The City of San Bernardino is entering into a written agreement with KaBOOM!for services to plan, design and construct a community-build playground ("Program"); WHEREAS KaBOOM! has received charitable support from CALIFORNIAVOLUNTEERS ("Funding Partner')for this Program and has entered into a separate agreement with the Funding Partner, the result of which are financial and human resources for this Program. NOW THEREFORE, in consideration of the mutual covenants and conditions hereinafter expressed,and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties hereto covenant and agree as follows: AGREEMENTS 1. OBLIGATIONS OF THE CITY OF SAN BERNARDINO 1.1. The City of San Bernardino agrees to be the Community Partner organization("Community Partner')for the CalifomiaVolunteers playground project at Lytle Creek Park, 380 South K Street, San Bernardino, CA 92410. 1.2. The City of San Bernardino agrees to be responsive to the discreet timeline developed for the Program, inclusive of providing approval of,action toward or direction to, specific responsibilities and initiatives of KaBOOM! on behalf of this Program. 1.3. As a Community Partner for a KaBOOM!community-build playground project, The City of San Bernardino will work with KaBOOM!, CalifomiaVolunteers, and community residents to design, plan and build a community playground. All parties will work closely together to ensure a successful, productive, and fun event. 1.3.1. The Community Partner agrees to host a KaBOOM!-facilitated Design Day with at least 10 adults and 20 children. The adults will remain engaged in planning activities throughout the Design Day to Build Day planning process. 1.3.2. The Community Partner agrees to recruit and secure at least 10-15 adult volunteers for preparation activities two to three days prior to Build Day playground installation. 1.3.3. The Community Partner agrees to recruit and secure at least 200-250 adult volunteers for the Build Day playground installation. 1.3.4. The Community Partner agrees to be responsible for preparing the site for the installation of �,.. the new playground, at least two weeks before Build Day,which includes but is not limited to removing existing playground equipment,footers and safety surfacing, grading the land, removing fencing and performing soil tests. The City of San Bemardino Letter of Agreement January 22, 2008 2 1.3.5. The Community Partner agrees to provide certain provisions for use by volunteers working on the construction project, including but not limited to food (breakfast snacks, lunch and mid-day snacks), water and restroom facilities. 1.4. In support of this project, The City of San Bernardino is responsible for contributing $10,000 to the playground project. 1.4.1. All funds will be applied directly toward purchasing playground equipment. 1.4.2. Upon receipt of this signed agreement, KaBOOM!will invoice The City of San Bernardino for the full amount of this contribution, and it will be due at least 30 days before the Build Day on March 29, 2008. 1.4.3. If The City of San Bernardino does not make payment as outlined in Section 1.4.2, KaBOOM! reserves the right, without waiving any other rights and remedies,to cancel the build. 1.4.3.1. In the event of the Build Day's cancellation due to non-payment by the Community Partner as outlined in Section 1.4.2, at KaBOOM!'s written request, without waiving any other rights and remedies, The City of San Bernardino shall be deemed liable for damages to KaBOOM! and Funding Partner for any un-cancelable contractual commitments entered into prior to cancellation, any equipment costs, labor and materials, and any additional expenses related to the Program, such as airfare and general supplies. 1.4.4. The Community Partner has the right to back-up documentation detailing the use of its contribution to the project. Upon request, KaBOOM! will provide back-up documentation for The City of San Bernardino within 120 days after the Build Day. 1.5. The Build Day must occur in calendar year 2008 on Saturday March 29th, 2008. 1.5.1. The Build Day shall not be postponed (defined as delayed, held over or rescheduled) under any circumstances other than for conditions that jeopardize the safety of the volunteers,or for unsafe weather conditions that threaten the structural integrity of the playground. 1.5.1.1. The decision to postpone a Build Day shall be reached through discussion, collaboration and majority agreement by KaBOOM!, the Community Partner and the Funding Partner,each represented by a person authorized by each party. 1.5.1.2. The sole exception to mutual decision-making and majority agreement shall be when the decision must be made immediately and solely by KaBOOM!on the construction site in absence of authorized representatives of the Community Partner and the Funding Partner being available. 1.5.1.3. The authorized representatives are defined as those individuals who have signed this Agreement, and the Agreement between KaBOOM!and the Funding Partner, or their designates. 1.5.2. In the event that the Build Date is cancelled or changed solely by The City of San Bernardino, The City of San Bernardino shall be deemed liable for damages to KaBOOM! and Funding Partner for any equipment costs, labor and materials and any additional expenses related to the Program, such as airfare and general supplies. 1.5.3. In the event of a Build Day postponement, KaBOOM! shall collaborate with the Community Partner and the Funding Partner to issue a Memo of Understanding (MOU)that outlines a plan for rescheduling the Build Day. 1.5.3.1. The MOU shall outline any additional expenses related to the rescheduled Build Day, and the party or parties responsible for covering the additional expenses. These expenses may include, but are not limited to,equipment storage, security, equipment shipment, and KaBOOM!travel and hotel expenses. 1.5.3.2. The MOU shall identify the next-earliest possible date for the Build Day, based on 4F 77T the availability of open dates on the KaBOOM! program calendar, the availability of The City of San Bernardino Letter of Agreement January 22, 2008 3 the Community Partner to participate in the project, and the availability of the Funding Partner to participate in the project. 1.6. The City of San Bernardino shall attach documentation to this Agreement showing proof of land ownership evidenced by a deed granting title of the property to The City of San Bernardino to the property, or a letter from the property owner showing approval for the installation of the playground. Working with the support of the property owner(if owner is a separate party), The City of San Bernardino will maintain the property before and after the build to ensure a safe and attractive play area. 1.7. The City of San Bernardino shall collaborate with KaB00M! during the planning of this Project to develop a maintenance program for the playground that will be implemented by The City of San Bernardino upon completion of the playground installation. 1.8. The City of San Bernardino is self-insured and The City of San Bernardino is responsible for providing coverage for its own employees and for any accidents arising out of the equipment.. 1.9. The City of San Bernardino will obtain all necessary and appropriate permits and licenses regarding the installation and possession and use of a playground prior to Build Day in compliance with local and state laws, regulations and guidelines. 1.10. The City of San Bernardino will work with local authorities and/or private firms as appropriate to ensure the safety and security of human and equipment resources(playground equipment, playground volunteers)from the point of material delivery, during the period(s)when site preparation occurs on the playground site, and until the conclusion of the Build Day. 1.11. The City of San Bernardino is responsible for ensuring the playground site is safe for volunteers and children. 1.11.1. The City of San Bernardino is responsible for conducting up to two utility site checks as reasonably requested by KaB00M!with the appropriate utility companies within two weeks of Design Day. Documentation of the utility checks must be provided to the KaB00M! Project Manager upon completion. 1.11.2. The City of San Bernardino is responsible for conducting up to two soil site tests as reasonably requested by KaB00M! with the first test being completed within two weeks of Design Day. Documentation of the soil checks must be provided to the KaB00M! Project Manager upon completion. The City of San Bernardino is responsible for undertaking any necessary risk mitigation should the soil be deemed unsafe for children or volunteers. 1.12. The City of San Bernardino will agree to accept and maintain engineered wood fiber as playground safety surfacing, meeting standards established by CPSC guidelines,for the lifetime of the playground. 1.13. The City of San Bernardino is solely responsible for any additional costs beyond the proposed playground project budget. KaB00M! is not responsible for paying any vendors for any prior site preparation, upgrades or improvements not agreed upon with KaB00M!. If Community Partner decides to purchase additional equipment or materials to supplement materials secured by KaB00M!,then the Community Partner is solely responsible for paying for the materials and all other liabilities related to such materials. Neither KaB00M! nor its Funding Partner(s)shall be liable for payment. Community Partner will hold KaB00M! and the Funding Partner harmless of any payments or liability with respect to the additional items ordered. r • • r The City of San Bernardino Letter of Agreement January 22, 2008 4 1.14. The City of San Bernardino will seek prior approval from KaBOOM! and/or CaliforniaVolunteers for any written and/or printed materials that reference the Program and/or contain the logos of KaBOOM!or CaliforniaVolunteers, including but not limited to press releases, fliers and promotional materials. The City of San Bernardino will work in collaboration with KaBOOM! and/or CaliforniaVolunteers to secure media coverage. KaBOOM! will provide mutual opportunity for the Community Partner to review and approve materials prepared by KaBOOM! related to this Project(such approval not to be unreasonably withheld). 1.15. The City of San Bernardino will allow the names and logos of CaliforniaVolunteers and KaBOOM!on permanent playground signage, such as that shown as a sample during The City of San Bernardino's application process. Playground signage is 12'/4 inches wide by 30'/4 inches tall and mounted on poles. The sign will be erected in a mutually agreed upon location and in accordance with the Community Partner's guidelines regarding corporate signage. If the Community Partner has specific guidelines regarding corporate signage on its property, please attach those guidelines to this Agreement. 1.16. The City of San Bernardino understands that the playground will be added to the roster of KaBOOM! Build Guild and, as such,will receive subsequent information from KaBOOM! on playground maintenance, programming and enhancements. 2. OBLIGATIONS OF KaBOOM! 2.1. KaBOOM!will provide the Community Partner with technical and organizational leadership and guidance for the playground project. 2.1.1. Facilitate playground design and work with vendors to procure equipment and materials in a timely fashion,the possible exception being the installation of safety surfacing other than engineered wood fiber. 2.1.2. Manage construction logistics for the project,coordinate playground site preparation activities with the Community Partner, inventory equipment and materials, and assure that the necessary tools and materials are available to construct the playground. 2.1.3. Facilitate regular planning meetings with the Community Partner and the playground planning committee. 2.1.4. Lead the Build Day activities, including the coordination of Build Day captains and volunteers. 2.1.5. Provide educational and promotional materials to support the playground project, including the KaBOOM!Tool Kit of publications (4-book set), KaBOOM! online Playground Planner, nametags and other general supplies. 2.1.6. Provide for and coordinate the participation of the Funding Partner, CalifomiaVolunteers, which has committed to provide KaBOOM!with financial, human and/or in-kind resources to bring to fruition the playground project with The City of San Bernardino . 2.2. KaBOOM! (in collaboration with The City of San Bernardino),will provide or secure a Certified Playground Safety Inspector(CPSI)to review the playground structure to ensure that it is safe and built to all appropriate standards and guidelines. The City of San Bernardino acknowledges that neither KaBOOM!or Funding Partner nor their respective officers, directors, employees, or agents have made or are in any way responsible or liable for action, inaction or negligence of the CPSI and The City of San Bernardino agrees to look solely to the CPSI for any such liability, costs or expenses which arise out of the CPSI's action, inaction or negligence. 2.2.1. The CPSI review will occur at the conclusion of the Build Day or, if KaBOOM! assumes responsibility for the playground construction going beyond one day, at the conclusion of the installation. • •• i The City of San Bernardino Letter of Agreement January 22, 2008 5 2.2.2. In accordance with Section 4, The City of San Bernardino shall be solely responsible for any injury, property damage, or death which occurs in connection with the playground after review of the playground is completed. 2.2.3. In accordance with Section 4, in the event that the Build Day is delayed or not completed on the scheduled day due to failure of The City of San Bernardino to meet the terms of this Agreement,then The City of San Bernardino will be responsible for securing a CPSI to review the playground. 3. FUNDING PARTNER RELATIONS 3.1. KaB00M! has a separate agreement with a KaB00M! Funding Partner, CALIFORNIAVOLUNTEERS("Funding Partner"), whose contributions to KaB00M! are helping to make this Project possible. 3.2. The Community Partner shall not solicit sponsors or donors whose products or services directly compete with the products or services of the Funding Partner. 3.2.1. For the purposes of this Agreement,sponsors are defined as individuals, businesses or philanthropic organizations that contribute funding or in-kind gifts to this Project in exchange for certain rights to promote their affiliation with this Project to the general public, including but not limited to public name recognition via this playground project's signs,T-shirts, media materials and public-address systems. Conversely, donors are individuals or groups whose gifts to this Project require personal acknowledgement only, such as thank-you letters. 3.3. In the event the Community Partner solicits other sponsors or donors,then those sponsors and donors shall not compete with the Funding Partner for signage and sponsorship recognition.The Funding Partner shall receive first placement on any recognition materials developed for the Project, including playground signage, banners, T-shirts, press releases,web-site and newsletter stories,and flyers. 3.4. In the event of a conflict between the Funding Partner and other sponsors and donors, the Funding Partner, Community Partner and KaB00M! shall consider recognition on a case-by-case basis. 4. OWNERSHIP AND LIABILITY 4.1. The Community Partner is the owner of the playground in its entirety, for the lifetime of the playground, including the equipment and/or safety surfacing purchased by KaB00M! and/or its Funding Partner(s). 4.2. It is agreed that The City of San Bernardino will indemnify and hold harmless KaB00M!and/or the Funding Partner and their respective officers, directors,employees,or agents from any and all claims,costs, expenses(including attorney's fees and disbursements)or actions associated with this playground project from any claim or action, including but not limited to claims and actions for personal injury,death,or property damages resulting from the use of any playground property and equipment, except to the extent resulting from any willful misconduct of KaB00M!and/or the KaB00M! Funding Partner. 4.3. A Certified Playground Safety Inspector will review the playground structure upon completion at the end of the scheduled build Day. The manufacturer's representative/installer will certify that the playground was installed to manufacturer's specifications at the end of the Build Day. 4.3.1. Notwithstanding the foregoing, The City of San Bernardino shall be solely responsible for the playground and its equipment upon certification of the playground. i w f i f The City of Sar, Bernardino Letter of Agreement January 22, 2008 6 4.3.2. The City of San Bernardino shall be responsible for securing safety measures of the playground to prevent injury, death,or property damages in the unlikely event that the playground is not completely constructed, and all equipment fully installed, at the conclusion of the Build Day and once KaBOOM! and/or the CPSI leave the playground site. 4.3.3. In the unlikely event or planned circumstances that the playground is not completely constructed and all equipment fully installed at the conclusion of the Build Day, The City of San Bernardino shall be responsible for completing the installation of the playground in accordance with the specified guidelines with the assistance of the CPSI and/or the manufacturer's representatives,facilitated by KaBOOM!. The City of San Bernardino shall be solely responsible for any injuries, death,or property damage that arses out of The City of San Bernardino's completion of such installation. 4.4. Maintenance of the playground facility and supervision of its use is the sole responsibility of The City of San Bemardino. Upon request,the playground-equipment and safety-surfacing manufacturers will provide guidance and materials,toward a maintenance plan for the playground. 4.4.1. The Community Partner will receive from Playword Systems Inc.,the provider of its playground equipment, or via its KaBOOM! project manager, a play equipment maintenance kit from Playworld Systems Inc. 5. WARRANTY 5.1. The playground equipment is covered under warranty by the selected playground equipment company in accordance with its warranty policy. Upon request, a copy of the warranty for the playground-equipment and the safety-surfacing will be provided by the manufacturer(s)to the Community Partner. While playground equipment and/or material manufacturers may provide a warranty with respect to their product, The City of San Bernardino acknowledges that neither KaBOOM!or Funding Partner nor their respective officers, directors, employees or agents, have made nor are in any manner responsible or liable for any warranty, representation, or guarantee, express or implied, in fact or in law, relative to any equipment or material, including but not limited to its quality, mechanical condition or fitness for a particular purpose. Any warranties and/or guarantees on any equipment or material are subject to the respective manufacturer's terms therefore, and The City of San Bernardino agrees to look solely to such manufacturers for any such warranty and/or guarantee. 6. GENERAL 6.1. Notices. Any notices required or permitted to be given hereunder shall be sent by certified or registered United States mail, postage properly prepaid, or by personal delivery addressed as follows: To: Helen Zimmerman, Manager Contracts&Risk Management KaBOOM! 4455 Connecticut Ave., NW, Suite B100 Washington, DC 20008 USA 202-659-0215 Copy To: Shannon Wilk, Client Services Coordinator (use same KaBOOM!address above) To Corporation: Fred Wilson THE CITY OF SAN BERNARDINO 300 North D Street San Bemardino, CA 92418 The City of San Bernardino Letter of Agreer,lent January 22, 2008 7 909-384-5122 6.2, Counterparts. This Agreement may be executed by the parties in one or more counterparts which shall, in the aggregate, be signed by all parties and each counterpart shall be deemed an original instrument as against any party who has signed it. 6.3. Governing Law. The laws of the State of Illinois, without reference to its choice of law provisions, shall govern the interpretation and/or legal effect hereunder and shall have jurisdiction over any dispute(including arbitration)arising out of or under the terms of this Agreement. 6.4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective affiliates, successor, and personal representatives of the parties to this Agreement, except to the extent of any contrary provision in this Agreement. 6.5. Severability. This Agreement shall be construed to be in accordance with federal and state statutes. If any provision of this Agreement, or any portion thereof, is found to be invalid, illegal, or unenforceable, under any applicable statute or rule of law,then such provision or portion thereof shall be deemed omitted, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 6.6. Complete Agreement. This Agreement,when executed by the duly authorized representatives of each party shall be the entire agreement between the parties as to the subject matter stated herein and supersedes and replaces any and all previous agreements and all amendments thereto. 6.7. Assignment. This Agreement may not be assigned,delegated or transferred by either party without the prior written consent of the other party hereto. 6.8. Force Majeure. If either of the parties hereto is delayed or prevented from fulfilling any of its obligations under this Agreement by Force Majeure,said party shall not be liable under this Agreement for said delay or failure. "Force Majeure"means any cause beyond the reasonable control of a party, including, but not limited to acts of God, acts of omission of civil or military authorities of a state or nation,fire,strike,flood, riot, act of terrorism, war, delay of transportation, or inability due to the aforementioned causes to obtain necessary labor, materials or facilities. Either party, however, may terminate this Agreement if the other is unable to perform any obligation under the Agreement for a period longer than ten(10)calendar days due to such a force majeure event. In the event of any such termination, KaB00M!shall refund to the Community Partner any monies paid to KaB00M!, less expenses already committed to and/or incurred prior to the date of termination. if, upon termination as provided herein,the sum due KaB00M! by Community Partner, exceeds the sum paid to KaB00M! hereunder, Community Partner agrees to pay KaB00M!for any such additional sum due upon presentation of appropriate documentation within 30 days of invoice. 6.9. Waiver. A waiver by either party of a breach or failure to perform shall not constitute a waiver of any subsequent breach or failure. • •i .. The City of San Bernardino Letter of Agreement January 22, 2008 8 IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the day and year first above written. By signing this Agreement, The City of San Bernardino fully acknowledges its consent and understanding of and commitment to the terms and guidelines set forth above. Please sign both original versions of this letter and return them to KaBOOM!. We will then sign the originals, and mail one original and a copy back to you for your files. The City of San Bernardino Letter of Agreement January 22, 2008 9 KaBOOM!and CaliforniaVolunteers look forward to working with The City of San Bernardino to make this playground a reality. Date Terms agreed to: Date Terms agreed to: By: By: Fred Wilson Gerry Megas City Manager Chief Financial Officer Authorized Signature for The City of San Bernardino Phone number: (202)464-6067 Phone Number: (909) 384-5122 Fax number: (202)659-0210 Fax Number:(909) 384-5160 Email address: hzimmermanna.kaboom.org Email Address:Wilson fr@sbc0.org The City of San Bernardino KaBOOM! 300 North D Street 4455 Connecticut Ave, NW Suite 8100 San Bernardino, CA 92418 Washington, DC 20008 Contact information for the person who should receive KaBOOM! invoices: Name: Telephone Number: Mailing Address: Fax Number: Email Address: Attachments: Welcome Packet Playworld Systems Inc. Playground Equipment Warranty(sample) Copy: KaBOOM! Project Archives %,bib � • � N � m low 0 �-- �- Ms. Rachel Clark The City of San Bernardino 300 No. "D" Street San Bernardino, CA 92418 Dear Rachel Clark, Thank you so much for your support of KaBOOM! We are looking forward to the playground build with your organization. Enclosed are the signed, original contract and a copy of the invoice for your records. The original invoice with a copy of the signed contract was sent to Nick Gonzalez as requested in the contract. Please let me know if you have any questions. Thanks again and have a great day. Thank you, Helen Zimmerman