HomeMy WebLinkAbout2008-027
2008-27
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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.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
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
Creek Park, a copy of which is attached hereto, marked Exhibit "A" and incorporated
herein as fully as though set forth at length; and
SECTION 2. That the authorization to execute said Letter of Agreement is void
and of no effect if it is not executed within ninety days of the date that this Resolution is
adopted.
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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.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
joint
Common Council of the City of San Bernardino at a regular meeting thereof, held on the 22nd
day of Januarv
, 2008, by the following vote. to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
x
BAXTER
x
BRINKER
x
DERRY
x
x
KELLEY
JOHNSON
--"-
x
McCAMMACK
~h.~
Rachel Clark, City Cle;k
The foregoing resolution is hereby approved thisolf",.t day of -Ianu,!EY
,2008.
Approved as to Form:
./fJ/t--
2008-27
Atlanta, GA
San Mateo, .
Nashington, DC
Chicago, IL
DC 20008 . te1202.859.0218 .
't BlOC . Wa.shington,
4455 Connecticut Ave. NW. Sm e
fax 202.559.0210
THIS KaBOOM! COMMUNITY PARTNER AGREEMENT is made this 220d day of January, 2008
by and between KaBOOM! and The City of San Bemardino.
RECITALS
WHEREAS KaBOOM! is a non-profit organization chartered in the District of Columbia and
organized as a 501 (c) 3 by detenmination of the Intemal 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 CALlFORNIAVOLUNTEERS
("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 Comrnunity 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!, CaliforniaVolunteers, 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 voiunteers 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.
2008-27
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 Bemardino 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
2008-27
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 Bemardino 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 KaBOOM! during the planning of this Project to
develop a maintenance program for the playground that will be implemented by The City of San
Bemardino 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 KaBOOM! with the appropriate utility companies within two weeks
of Design Day. Documentation of the utility checks must be provided to the KaBOOM!
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 KaBOOM! with the first test being completed within two weeks of
Design Day. Documentation of the soil checks must be provided to the KaBOOM! 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. KaBOOM! is not responsible for paying any vendors for any prior site
preparation, upgrades or improvements not agreed upon with KaBOOML If Community Partner
decides to purchase additional equipment or materials to supplement materials secured by
KaBOOM!, then the Community Partner is solely responsible for paying for the materials and all
other liabilities related to such materials. Neither KaBOOM! nor its Funding Partner(s) shall be
liable for payment. Community Partner will hold KaBOOM! and the Funding Partner harmless of
any payments or liability with respect to the additional items ordered.
2.008-27
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 Y. inches wide by 30 Y. 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 CPSl'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.
2,008-27
The City of San Bernardino Letter of Agreement
January 22, 2008
5
2.2.2. In accordance with Section 4, The City of San Bemardino 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,
CALlFORNIAVOLUNTEERS ("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 KaBOOMI 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.
2008-27
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 CPSlleave 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 KaBOOML 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 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 Bernardino, CA 92418
2008-27
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 govem 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, KaBOOM! shall refund to the
Community Partner any monies paid to KaBOOM!, less expenses already committed to and/or
incurred prior to the date of termination. If, upon termination as provided herein, the sum due
KaBOOMI by Community Partner, exceeds the sum paid to KaBOOM! hereunder, Community
Partner agrees to pay KaBOOM! 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.
2D08-27
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 KaBOOML We will then sign the originals, and mail one original
nd copy back to you for your files.
2D08-27
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: / '::.y{.H-
Date Terms agreed to:
B:
Fred Wils
City Manager
Authorized Signature for The City of San Bernardino
Phone Number: (909) 384-5122
Fax Number:(909) 384-5160
Email Address: Wilson fr@sbcitv.orq
The City of San Bernardino
300 North D Street
San Bernardino, CA 92418
,~~~
By:.. ~ "~~~~d--r P
Gerry'lifegaK c
Chief Financial Officer
Phone number: (202) 464-6067
Fax number: (202) 659-0210
Email address: hzimrnerman@kaboom.orq
KaBOOM!
4455 Connecticut Ave, NW Suite B100
Washington, DC 20008
Contact information for the person who should receive KaBOOM! invoices:
Name: Telephone Number:
Mailing Address:
Fax Number:
Ernail Address:
Attachments: Welcome Packet
Playworld Systems Inc. Playground Equipment Warranty (sample)
Copy: KaBOOM! Project Archives
... ~
Bill To:
City of San Bernardino
300 North D Street
San Bernadino, CA 92418
Fred Wilson
Description
KaBOOM!
4455 Connecticut Avenue, NW
Suite B 100
Washington, DC 20008
Invoice 51-02838
Customer ID,
Invoice Date:
Due Date:
Page: 1
CP-00956
01/23/08
02/29/08
COpy
Project Reference:
YSC:City of San Bernardino
PJ-01017
Playground project at 380 South K
Street
Please remit payment to
KaBOOM!
Attn: Accounting Department
4455 Connecticut Avenue, NW
Suite 8100
Washington, DC 20008
Any Billing Questions? Call 202-659-0215
KaBOOMI Federal 10 No. is 52-1970904
Total Amount Due:
Amount
10,000.00
10,000.00