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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Kevin Hawkins, Director
Subject: RESOLUTION AUTHORIZING
EXECUTION OF A LETTER OF
AGREEMENT WITH KABOOM! FOR A
COMMUNITY -BUILD PLA YGROUND TO
BE CONSTRUCTED AT THE RUDY C.
HERNANDEZ COMMUNITY CENTER
LOCATED IN MEADOWBROOK PARK.
Dept: Parks, Recreation & Community
Services Dept.
Date: February 23, 2009
MICC Meeting Date: March 2, 2009
Synopsis of Previous Council Action:
Feb. 2, 2009 Council authorized execution of an Outreach Statement, and approved the template Letter
of Agreement, in concept, for the proposed KaBOOM! playground build at Hernandez
Community Center.
Recommended motion:
Adopt Resolution.
\ I
Signature
Contact person: Kevin Hawkins
Phone: 384-5233
Supporting data attached: Yes
Ward:
I
Council Notes:
FUNDING REQUIREMENTS: Amount: No cost to the City - matchinq
funds in the amount of
$10,000 from the Andrus
Family Trust. in honor of
the AI Guhin Family.
Estimated value of equipment
donated by funding partner - $40,000
Source: (Acct. No.)
(Acct. Description)
Finance:
es~ 200C?-~O
Agenda Item No. /B
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF
REPORT
Subiect:
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 in
Meadowbrook Park.
Backl!:round:
On March 29, 2008, the City participated in a successful KaBOOM! playground build at Lytle
Creek Park. More than 500 volunteers (including children) participated during the build day
activities, which included not only construction of the playground, but a number of side projects
as well. Julio Salcedo, Lytle Creek Community Center Manager, has reported a number of
very positive unanticipated benefits at the Center, including the doubling of the number of
youth attending programs at the community center to over one hundred per day, and a
significant reduction in the number of incidents of graffiti activity at the park.
On July 30, 2008, the City partnered with the Boys and Girls Club of San Bernardino and
KaBOOM! for another successful community playground build at Delmann Heights Park.
On December I I, 2008, the City participated in another successful KaBOOM! community
playground build, this time at the Ruben Campos Community Center at Nunez Park.
In early January 2009, staff was contacted again by KaBOOM! apprising them of yet another
playground build opportunity in the Inland Empire. Staff was made aware of the very short turn
around time for submittal of an application. Following staffs analysis (as guided by the Park
Master Plan) of the City's most pressing need for another playground, it was determined that
the Rudy C. Hernandez Community Center at Meadowbrook Park presented an excellent
opportunity for a community playground build, as there currently is no playground equipment
available at that location. There is existing playground equipment at another location in
Meadowbrook Park; however, it is not visible from the Rudy C. Hernandez Community Center,
and children must cross Sierra Avenue, a four-lane street in order to play there. It was noted by
the increases in center attendance and the strong turn out at last year's Fire Open House, that
the location would also benefit from the mobilization of neighborhood groups to sustain the
investment in that area. On February 2, 2009, Council approved the template Letter of
Agreement, and authorized execution of an Outreach Statement.
Parks, Recreation and Community Services Department staff was notified on February 23,
2009, that the City has been confirmed for the build at the Hernandez Community Center.
California Volunteers is the funding partner for this playground build that commemorates the
accomplishments of Cesar Chavez. Monday, March 9, 2009, has been set for Design Day at the
The build will include a number of "side projects", including an edible garden, and a legacy
mural, similar to the one that was painted on the Community Center at Lytle Creek in March
2008.
Financial Impact:
California Volunteers, the project funding partner, will provide funding for all but $10,000 of
the project costs. The Andrus Family Trust has graciously committed funding in the amount of
$10,000 to the project in honor of the Al Guhin Family. The total project cost is estimated at
$40,000 for the playspace equipment to be installed by volunteers on Build Day, which is
scheduled to occur on Saturday, April 25, 2009.
Recommendation:
Adopt Resolution.
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RESOLUTION NO.
RESOLUTION OF THE MAYOR A~D 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 BERlIlARDINO 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
of the City Clerk within thirty (30) days following the effective date of the Resolution.
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i
RESOLlTTIO~ OF THE MAYOR A~D COMMO~ COU~CIL OF THE CITY I
OF SAN BER.1'IIARDINO AUTHORIZING THE INTERIM CITY MANAGER TO
EXECUTE A LETTER OF AGREEMENT WITH KABOOM! FOR A CO;\tMUNITY-
BllILD PLA YGROniD TO BE COl'\STRUCTED AT THE RUDY C. HER."IANDEZ
COMMUNITY CENTER LOCATED AT MEADOWBROOK PARK.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a
meeting thereof. held on the
7 day of
.2009. by the following vote. to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRA.DA
BAXTER
BRINKER
VACANT
KELLEY
JOHNSON
McCAMMACK
Rachel Clark. City Clerk
The foregoing resolution is hereby approved this day of
.2009.
Patrick J. \lorris. \layor
City of San Bernardino
Approved as to Form:
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James F. Penman. Citv Arrorne\
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4456 Conoecticut Ave. NW. Suite B100
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waShington, DC
fax 202.559.0210
EXHIBIT A
THIS KaBOOM! COMMUNITY PARTNER AGREEMENT is made this 26th day at February, 2009
by and between KaBOOM' and City of San Bernardino.
RECITALS
WHEREAS KaBOOM'IS a non-protlt 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 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 Califomia 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 condilions hereinatter
expressed, and other good and valuable consideralion, 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 Bemardino. CA 92408.
1.2. City of San Bemardino agrees to be responsive to the discreet timeline develooed for the
Program, inclusive at 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
Bernardino will work with KaBOOMI, California 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. The Community Partner agrees to host a KaBOOM'-facllitated DeSign Day with at least 20-
30 adults and 20-30 children. The adulls 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 activifies two to three days prior to BUild Day playground Installalion.
1.3.3. The Community Partner agrees to recruit and secure at least 150 adult volunteers tor the
Build Day playground installalion.
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 surtaclng, grading the land,
removing fencing and pertorming soil tests.
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 constnuction 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 Bernardino is responsible for contributing 510,000 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, KaBOOMI will Invoice City of San Bernardino for the
full amount of this contribution, 55,000 of which will be due by Thursday, March 4m and the
remaining 55,000 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, KaBOOMI
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 wrillen request, without waiving
any other rights and remedies, 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 airtare 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 documentallon 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 tor 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 KaBOOMI, 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 KaBOOMI 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 City of San Bernardino,
City of San Bernardino shall be deemed liable for damages to KaBOOM' and Funding
Partner for any equipment costs, labor and matenals and any additional expenses related
to the Program, such as alrtare and general supplies.
1.5.3. In the event of a Build Day postponement, KaBOOMI shall collaborate With the Community
Partner and the Funding Partner to Issue a Memo of Understanding (MOUl 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.
City of San Bernardino Leller 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 prolect, and the availability of the
Funding Partner to participate in the project.
1.6. 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 City of San Bernardino to the
property, or a letter from the property owner shOWing approval for the installalion of the
playground. Working with the support of the property owner (if owner is a separate party), Cify of
San Bernardino will maintain the property before and after the build to ensure a safe and attractive
play area.
1.7. 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 City of San
Bernardino upon completion of the playground installalion.
1.8. City of San Bernardino will obtain and maintain Commercial General Liability insurance (providing
coverage against liability for bodily injury, 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 ,000,000.OO)from the date of this agreement and for
a minimum of one (1) year thereafter. KaBOOM! 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 nolice of
any change or cancellation of coverage. City of San Bernardino will promptly proVide a copy of the
certificate from Its insurer indicating the amount of insurance coverage, the nature at such
coverage and the eXpiration date of each applicable policy.
1.9. 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 Wlth local
and state laws, regulafions and guidelines.
1.10. City of San Bernardino will work with local authorities andlor private firms as appropnate to
ensure the safety and secunty of human and equipment resources (playground equipment,
playground volunteers) from the point of matenal 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 Bernardino is responsible for ensunng the playground site is safe for volunteers and
children.
1.11.1. City of San Bernardino is responsible for conducting up to two utility site checks as
reasonably requested by KaBOOMI 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 KaBOOMi Project Manager upon completion.
1.11.2. City ot 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 KaBOOMI Project
Manager upon completion. City of San Bernardino is responsible for undertaking any
necessary risk mitigation should the soil be deemed unsafe for children or volunteers.
City of San Bernardino Letter ot Agreement
February 26, 2009
4
1.12. City of San Bemardlno will agree to accept and maintain engineered wood fiber as playground
safety surtacing, meeting standards established by CPSC guidelines, for the lifetime of the
playground.
1.13. City of San Bemardino 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 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 Bernardino will hold KaBOOM! and the Funding
Partner hanmless of any payments or liability with respect to the additional items ordered.
1.14. City of San Bemardino will seek prior approval from KaBOOM' and/or Califomia Volunteers for
any written and/or printed matenals that reference the Program and/or contain the logos of
KaBOOM' or California Volunteers, including but not limited to press releases, fliers and
promotional matenals. City of San Bernardino will work In collaboration With KaBOOM' and/or
Califomia Volunteers to secure media coverage. KaBOOM' will prOVide mutual opportunity for the
Community Partner to review and approve materials prepared by KaBOOMI related to thiS Project
(such approval not to be unreasonably withheld).
1.15. City of San Bemardino will allow the names and logos of California 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 Partner's guidelines regarding corporate slgnage. II the Community Partner
has specific guidelines regarding corporate signage on its property, please attach those guideiines
to this Agreement.
1.16. City of San Bemardlno understands that the playground will be added to the roster of KaBOOMI
Build Guild and, as such, will receive subsequent information from KaBOOM' on playground
maintenance, programming and enhancements.'
2.1.6.
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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 01 safety surtacing 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 matenals, 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 KaBOOMI Tool Kit of publications (4.book set). KaBOOMI online Playground Planner,
nametags and other general supplies.
Provide for and coordinate the participation of the Funding Partner, California Volunteers,
which has committed to provide KaBOOMI With financial, human and/or in.klnd resources to
bring to fruition the playground project with City of San Bernardino.
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City of San Bernardino Letter of Agreemenr
February 26, 2009
5
2,2, KaBOOM! (in collaboration with 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. City of San Bernardino acknowledges that
neither KaBOOMI 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 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 KaBOOMI 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 alter
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 tailure of City of San Bernardino to meet the terms of this
Agreement, then City of San Bernardino 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 KaBOOMI 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.kmd gilts 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
gilts 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 slgnage and sponsorship recognition. The
Funding Partner shall receive first placement on any recognition materials developed for the
ProJect, including playground signage, banners, T.shlrts, press releases, web'slte and newsletter
stones, 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 LIABIUTY
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 suriaclng purchased by KaBOOMI and/or its
Funding Partner(s).
4.2. It is agreed that City of San Bernardino will indemnify and hold harmless KaBOOMI 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
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 manufacturer's representativeflnstaller will certify that
the playground was installed to manufacturer'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 KaBOOMI 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, City of San
Bernardino shall be responsible for completing the installation ot the playground in
accordance with the specified guidelines with the assistance of the CPSI and/or the
manufacturer's representatives, facilitated by KaBOOM!. City of San Bernardino 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-surtaclng 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 proVlder of ItS
playground equipment, or via its KaBOOMI project manager, a play equipment
maintenance kit from Playwond 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-surtacing will be provided by the manufacturer(s) to the
Community Partner. While playground equipment and/or matenal manufacturers may provide a
warranty with respect to their product, City of San Bernardino acknowledges that neither
KaBOOMI 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 matenal, 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 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 propeny prepaid, or by personal delivery addressed as
follows:
To:
Helen Zimmerman, Manager Contracts & Risk Management
KaBOOMI
4455 Connecticut Ave., NW, Suite B1 00
Washington, DC 20008 USA
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City of San Bernardino Letter of Agreement
February 26, 2009
7
202-464-6075
Copy To: Stacey Steidler, Client SelVices Coordinator
(use same KaBOOM! address above)
202-464-6412
To Corporation: Jan Wages
City of San Bemardino
201 A North E Street, Suite 103
San Bernardino, CA 92401
909-384-5032
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 eHect hereunder and shall have jurisdicfion over any
dispute (including arbitration) ansing out of or under the terms of this Agreement.
6.4. Binding EHect. This Agreement shall be binding upon and Inure to the benefit of the respective
aHiliates, 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 remaimng provisions
shall not in any way be aHected 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, stnke, flood, riot, act of terrorism, war, delay of transportation,
or inability due to the aforementioned causes to obtam necessary labor, matenals or facilities.
Eijher party, however, may terminate this Agreement if the other is unable to pertorm any
obligation under the Agreement for a peMod longer tI1an 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 KaBOOMI, less expenses already committed to and/or
incurred prior to the date of termination. If, upon termination as provided herein, the sum due
_ r..~' KaBOOMI by City of San Bernardino. exceeds the sum paid to KaBOOM' hereunder, City of San
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City of San Bernardino Letter of Agreement
February 26, 2009
8
Bernardino agrees to pay KaBOOMI 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 pertorm shall not constitute a waiver of
any subsequent breach or failure,
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 KaBOOML We will then sign the originals, and mail one original
and one copy back to you for your files.
KaBOOM' and Califorma Volunteers look fonward to working with City of San Bernardino to make this
playground a reality.
Date Terms agreed to:
Date Terms agreed to:
By:
Mark Weinberg
Interim City Manager
Authorized Signature for City of San Bernardino
Phone Number: 909.384.5122
Fax Number. 909.384.5138
Email Address: weinburg_ms@SBCity.org
By:
Gerry Megas
Chief Financial Officer
Phone number: 202. 464. 6075
Fax number: 202. 659. 0210
Email address: hzimmerman@kaboom.org
City of San Bemardino
300 No. D Street
San Bernardino, CA 92418
KaBOOM'
4455 Connecllcut Ave, NW SUite B100
Washington, DC 20008
Contact information for the person who should receive KaBOOM! 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 Bemardino, CA 92401
Fax Number: 909.384.5160
Email Address: wages.Ja@sbclty.org
Attachments: Welcome Packet
Playworld Systems Inc. Playground Equipment Warranty (sample)
Copy: KaBOOM' ProJect Archives
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