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HomeMy WebLinkAbout2009-040 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO, 2009-40 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE A LETTER OF AGREEMENT WITH KABOOM! FOR A COMMUNITY- BUILD PLAYGROUND TO BE CONSTRUCTED AT THE RUDY C. HERNANDEZ COMMUNITY CENTER LOCATED AT MEADOWBROOK PARK. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the Interim City Manager is hereby authorized to execute a Letter of Agreement with KaBOOM!, a copy of which is attached hereto, marked Exhibit "A", and incorporated herein by reference as fully as though set forth at length, for the community-build playground project proposed for construction at the Rudy C. Hernandez Community Center located at Meadowbrook Park; and SECTION 2. That the authorization granted hereunder shall expire and be void and of no further effect if the above referenced documents are not executed and returned to the Office ofthe City Clerk within thirty (30) days following the effective date of the Resolution. III III III III III III III III III III 2009-40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE A LETTER OF AGREEMENT WITH KABOOM! FOR A COMMUNITY- BUILD PLAYGROUND TO BE CONSTRUCTED AT THE RUDY C. HERNANDEZ COMMUNITY CENTER LOCATED AT MEADOWBROOK 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 2nd day of M"r~h , 2009, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x x BAXTER x BRINKER VACANT KELLEY x x JOHNSON x McCAMMACK ~h.~ Rachel Clark, City Clerk The foregoing resolution is hereby approved this..3ue day of March ,2009. it: ............ <T(, . ...J \. Patri~} Morris, M~ '-'~ f San Bernardino Approved as to Form: ~ -t ~,- k"g~! r4- t: ~--/ James F. Penman, City Attorney , ~ ~ ;u: q c,;~r~"" ~C ~./~, c0r'~ c0 ~.~ ~ ~~~' -y---A'. ))-/ . 2009'-40 WuJdDltOD, DO Ohlcago, IL DC 20008 ' tel 202.689.0216 BI00 ' Wash1ng\on, 4466 conneetlou~ Ave. NW, Suite Atlallta, GA SaIl.Mateo, 0" . fax 202.669.0210 THIS KaBOOMI COMMUNITY PARTNER AGREEMENT is made this 26th day of February, 2009 by and between KaBOOM! and 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 determination 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 eV6nt knoWn as a "Build Day"; WHEREAS City of San Bemardino 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 California Volunteers ("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 CITY OF SAN BERNARDINO 1.1. City of San Bemardino agrees to be the Community Partner organization ("Community Partner") for the California Volunteers playground project at Hemandez Community Center, 222 North Lugo Avenue, San Bernardino, CA 92408. 1.2. City of San Bemardino 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, City of San Bemardino will work with KaBOOM!, Califomia Volunteers, 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. Th6 Community Partner agrees to host a KaBOOM!-facilitated Design Day with at least 20- 30 adults and 20-30 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 12-15 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 150 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 sail tests. . 2009'-40 City of San Bernardino Letter of Agreement February 26, 2009 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, City of San Bemardino 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, Ka800M! will invoice City of San Bemardino for the full amount of this contribution, $5,000 of which will be due by Thursday, March 4~ and the remaining $5,000 will be due at least 30 days before the Build Day on April 25th, 2009. 1.4.3. If City of San Bernardino does not make payment as outlined in Section 1.4.2, Ka800M! 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 Ka800M!'s written request, without waiving any other rights and remedies, City of San Bemardino 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 th6 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, KaBOOMI will provide back-up documentation for City of San Bemardino within 120 days after the Build Day. 1.5. The Build Day must occur in calendar year 2009 on Saturday, April 25th. 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 mad6 immediately and solely by Ka800M! 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 a~ those individuals who have signed this Agreement, and the Agreement between Ka800M! and the Funding Partner, or their designates. 1.5.2. In the event that the Build Date is cancelled or changed solely by City of San Bemardino, City of San Bemardino shall be deemed liable for damages to KaBOOMI 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. . . 2009-40 City of San Bernardino Letter of Agreement February 26, 2009 3 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 Community Partner to participate in the project, and the availability of the Funding Partner to participate in the project. 1.6. City of San Bemardino shall attach documentation to this Agreement showing proof of land ownership evidenced by a deed granting tiije of the property to City of San Bemardino 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), City of San Bemardino will maintain the property before and after the build to ensure a safe and attractive play area. f 7. City of San Bemardino shall collaborate with KaBOOM! during the planning of this Project to develop a maintenance program for the playground that will be implemented by City of San Bemardino upon completion of the playground installation. 1.8. City of San Bemardino will obtain and maintain Commercial General Uability insurance (providing coverage against liability for bodily injUlY, death and property damage which may rise out of or be based upon the use of the playground) and Worker's Compensation insurance policies, in amounts not less than one million dollars ($1 ,OOO,OOO.OO)from the date of this agreement and for a minimum of one (1) year thereafter. KaBOOMI and Funding Partner shall be named as additional insureds for the Build Day and a year thereafter upon such policy. The insurance shall be primary over any other insurance covering KaBOOM! and Funding Partner. Such policy must provide that KaBOOM! and Funding Partner be given at least thirty (30) days prior written notice of any change or cancellation of coverage. City of San Bemardino will promptly provide a copy of the certificate from its insurer indicating the amount of insurance coverage, the nature of such coverage and the expiration date of each applicable policy. 1.9. City of San Bemardino 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. City of San Bemardino 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. City of San Bemardino is responsible for ensuring the playground site is safe for volunteers and children. 1.11.1. City of San Bemardino is responsible for conducting up to two utility site checks as reasonably requested by KaBOOM! with the appropriate utility companies with the first test being completed within two weeks of Design Day. Documentation of the utility checks must be provided to the KaBOOM! Project Manager upon completion. 1.11.2. City of San Bemardino 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. City of San Bemardino is responsible for undertaking any necessary risk mitigation should the soil be deemed unsafe for children or volunteers. , . 2009-40 City of San Bernardino Letter of Agreement February 26, 2009 4 1.12. City of San Bemardino will agree to accept and maintain engineered wood fiber as playground safety surfacing, meeting standards established by CPSC guidelines, for the Inetime of the playground. 1.13. City of San Bemardino is solely responsible for any additional costs beyond the proposed playground project budget. KaBOOMI is not responsible for paying any vendors for any prior site preparation, upgrades or improvements not agreed upon with KaBOOM!. If City of San Bemardino 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. City of San Bemardino will hold KaBOOMI and the Funding Partner harmless of any payments or liability with respect to the add~ional items ordered. 1.14. City of San Bemardino will seek prior approval from KaBOOM! and/or Califomia Volunteers for any written and/or printed materials that reference the Program and/or contain the logos of KaBOOM! or Calnomia Volunteers, including but not Iim~ed to press releases, fliers and promotional materials. City of San Bemardino will work in collaboration with KaBOOM! and/or California Volunteers 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. City of San Bemardino will allow the names and logos of Califomia Volunteers and KaBOOM! on permanent playground signage. Playground signage is 12 inches wide and 30 inches tall and mounted on poles. The sign will be erected in a mutually agreed upon location and in accordance with the Community Partne(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. 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 KaBOOMI 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, invento'Y equipment and materials, and assure that the necessa'Y 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, Califomia Volunteers, which has committed to provide KaBOOMI with financial, human and/or in-kind resources to bring to fruition the playground project with City of San Bernardino. .2009-40 City of San Bernardino Letter of Agreement February 26, 2009 5 2.2. KaBOOMI (in collaboration with City of San Bemardino), will provide or secure a Certified Playground Safety Inspector (CPSI) to review the playground structure to ensure that it is saf6 and built to all appropriate standards and guidelines. City of San Bemardino 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 City of San Bemardino 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. 2.2.2. In accordance with Section 4, 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 dey due to failure of City of San Bernardino to meet the terms of this Agreement, then City of San Bemardino will be responsible for securing a CPSI to review the playground. 3. FUNDING PARTNER RELATIONS 3.1. KaBOOMI has a separate agreement with a KaBOOMI Funding Partner, Califomia Volunteers, 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 limned to public name recognition via this playground projecfs 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 KaBOOMI 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 KaBOOMI and/or its Funding Partner(s). 4.2. It is agreed that City of San Bemardino 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 attomey's fees and disbursements) or actions associated with is playground project from any claim or action, including but not limited to claims and actions for .2009-40 City of San Bernardino Letter of Agreement February 26, 2009 6 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 KaBOOMI 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 manufacture~s representativelinstaller will certify that the playground was installed to manufacture~s specifications at the end of the Build Day. 4.3.1. Notwithstanding the foregoing, City of San Bemardino shall be solely responsible for the playground and its equipment upon certification of the playground. 4.3.2. City of San Bemardino 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 s~e. 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, City of San Bemardino 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 manufacture~s representatives, facilitated by KaBOOM!. City of San Bemardino shall be solely responsible for any injuries, death, or property damage that arises out of City of San Bemardino's completion of such installation. 4.4. Maintenance of the playground facility and supervision of its use is the sole responsibility of 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 Playworld Systems Inc., the provider of its playground equipment, or via ~s 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, City of San Bemardino 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 manufacture~s terms therefore, and City of San Bemardino 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 .2009-40 City of San Bernardino Letter of Agreement February 26, 2009 7 202-464-6075 Copy To: Stacey Steidler, Client Services Coordinator (use same KaBOOMI address above) 202-464-6412 To Corporation: Jan Wages City of San Bemardino 201 A North E Street, Suite 103 San Bemardino, CA 92401 909-364-5032 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 KaBOOM! by City of San Bernardino, exceeds the sum paid to KaBOOMI hereunder, City of San . 2009-40 City of San Bernardino Letter of Agreement February 26, 2009 8 Bernardino agrees to pay KaBOOM! for any such additional sum due upon presentation of approprtate documentation within 30 days of invoice. 6.9. Waiver. A waiver by e~her party of a breach or failure to perform shall not constitute a waiver of any subsequent breach or failure. 2009-40 City of San Bernardino Letter of Agreement February 26, 2009 9 IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the day and year first above written. By signing this Agreement, 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 retum them to KaBOOM!. We will then sign the originals, and mail one original and one copy back to you for your liles. KaBOOM! and Califomia Volunteers look forward to working with City of San Bernardino to make this playground a reality. Date Terms ag to: Date Terms agreed to: ~ C,eo ~~ . By: ~~ 0 Gerry Megas l Chief Financial Officer Phone number: 202. 464. 6075 Fax number: 202. 659. 0210 Email address: hzirnmerman@kaboom.org Mark W Interim i Manager Authorized Signature for City of San Bernardino Phone Number. 909.384.5122 Fax Number. 909-384.5138 Email Address: weinburg_ms@SBCity.org City of San Bemardino . 300 No. D Street San Bernardino, CA 92418 KaBOOM! 4455 Connecticut Ave, NW Suite B100 Washington, DC 20008 Contact information for the person who should receive KaBOOMI invoices: Name: Jan Wages Telephone Number: 909-384.5032 Mailing Address: City of San Bemardino Parks, Recreation and Community Services Department 201 A North "E" Street, Suite 1 03 San Bernardino, CA 92401 Fax Number: 909.384-5160 Email Address: wagesja@sbcity.org Attachments: Welcome Packet Playworld Systems Inc. Playground Equipment Warranty (sample) Copy: KaBOOM! Project Archives S~;~, ~1"I' ~'., ;",I~; I',.., .. .,. ,.., i','._