HomeMy WebLinkAbout2014-301 RESOLUTION NO. 2014-301
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2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
3 LETTER OF INTENT AND CONTRACT AGREEMENT BETWEEN THE CITY OF
4 SAN BERNARDINO AND KABOOM TO BUILD A PLAYGROUND AT NINTH
STREET PARK.
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NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND
6 COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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8 SECTION 1. That the City Manager is hereby authorized to execute a letter of intent
with Kaboom for building a playground at Ninth Street Park, a copy of which is attached
9 hereto as Exnibit "A" and incorporated herein.
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SECTION 2. That upon award of the grant from Kaboom, the City Manager is hereby
12 authorized to execute a Community Partner Playground Contract with Kaboom, a copy of
13 which is attached hereto as Exhibit "B" and incorporated herein.
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2014-301
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
2 LETTER OF INTENT AND CONTRACT AGREEMENT BETWEEN THE CITY OF
SAN BERNARDINO AND KABOOM TO BUILD A PLAYGROUND AT NINTH
3 STREET PARK.
4
5 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 joint regular meeting
7
thereof, held on the 4th day of August , 2014, by the following vote,to wit:
8
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 MARQUEZ x
11 BARRIOS X
12 X
VALDIVIA
13
14 SHORETT x
15 NICKEL X
16 JOHNSON X
17 MULVIHILL X
18
19 °Ltai..
George./ Hanna,-C ir Clerk
20
21 The foregoing resolution is hereby approved this 17 day of August 2014.
22 0
23 R. Carey Davis, ■ ayor
24 City of San Ber ardino
25 Approved as to form:
Gary D. Saenz, City Attorney
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i .' '' COMMUNITY PARTNER PLAYGROUND CONTRACT
July 29, 2014
KaBOOM!, Inc.(referred to herein as KaBOOM!)is pleased that«the City of San Bernardino»(referred to herein as the
Community Partner)has agreed to collaborate with KaBOOM!and«FP»(referred to herein as the.Funding Partner)in the
construction of a new playground at«9m Street Park», «2931 Garner», «San Bernardino»,«CA» «92411» (the"Project").
This Community Partner Playground Contract(this"Agreement"),which sets forth the Community Partner's obligations in
connection with the Project and certain matters on which the parties have agreed,will,when executed by the duly
authorized representatives of each party,supersede any prior agreements and represent the complete legally binding
agreement between the parties regarding the Project.
1. Obligations of the Community Partner. The Community Partner shall work with KaBOOM!and the Funding Partner as
well as community residents to design, plan and build the Project. By executing this Agreement,the Community
Partner is unconditionally agreeing to each of the following obligations,in each case meeting the requirements
provided by KaBOOM!:
(a) Fundraising. In support of the Project,the Community Partner must contribute$8500 to KaBOOM!,which will
apply the funds directly to the purchase of playground equipment. KaBOOM!will invoice the Community Partner
for such amount promptly following the execution of this Agreement,which amount must be paid in full at least
thirty(30)days prior to the Project's Build Day(as defined below).
(b) Project Site.
(i) Ownership. At the time of execution of this Agreement,the Community Partner shall provide KaBOOM!with
proof of land ownership evidenced by either a deed granting title to the property to the Community Partner or
a letter from the property owner showing approval for the Project. 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 the Funding Partner.
(ii) Permits. Prior to Build Day,the Community Partner shall obtain all necessary permits and licenses
regarding the installation, possession and use of the playground in compliance with applicable laws and
regulations.
(iii) Preparation. The Community Partner shall ensure that the Project site is safe for volunteers and children,
which responsibility includes: (1)recruiting fifteen(15)adult volunteers to participate in preparation activities
two to three days prior to Build Day;
(2)preparing the site for the installation of the Project at least two weeks before Build Day,which includes
removing existing playground equipment,footers and safety surfacing,grading the land,removing fencing
and performing soil tests; (3)conducting up to two(2)utility checks as reasonably requested by KaBOOM!
with the appropriate utility companies,with the first test being completed on or before Design Day(as
defined below)and with all utility check documentation provided upon completion to the KaBOOM!project
manager who shall supervise the planning and installation of the playground(the"Project Manager");and(4)
conducting up to two(2)soil site tests as reasonably requested by KaBOOM!,with the first test being
completed on or before Design Day and with all soil check documentation provided to the Project Manager
upon completion.The Community Partner is responsible for undertaking any necessary risk mitigation
should the soil be deemed unsafe for children and volunteers.
(iv) Safety and Security.The Community Partner shall ensure the security of equipment,tools,supplies and well
being of the adults and children from the beginning of the preparation activities until the conclusion of Build
Day, including any postponement.
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(v) Maintenance.Maintenance of the playground facility and supervision of its use is the sole responsibility of
the Community Partner. The Community Partner shall collaborate with KaBOOM!during the Project
planning process to develop a maintenance program for the playground and,with the support of the property
owner(if owner is a separate party),shall maintain the playground and the property before and after the
Build Day to ensure a safe and attractive playspace. In furtherance of the foregoing,in the event any
playground equipment included in the Project no longer is permitted for any reason to be located at its
original site of construction or such site is no longer controlled by the Community Partner for any reason,
then the Community Partner promptly shall notify KaBOOM!following its becoming aware of such situation
and shall,at the Community Partner's sole cost and expense,take such steps as may be necessary
to promptly and safely relocate the playground equipment(including any permanent signage and other
fixtures)to an alternate site that serves children or to ensure that the successor controlling person of such
site shall continue to make such playground available to children in the same manner contemplated as of the
Build Day and maintain(or permit the Community Partner to maintain)such playground in accordance with
the maintenance program. In addition,the Community Partner shall accept and maintain engineered wood
fiber as playground safety surfacing,meeting standards established by Consumer Product Safety
Commission guidelines,for the lifetime of the playground. Guidance and materials for the purpose of
developing a maintenance plan for the playground are available, upon request,from the playground
equipment and safety surfacing manufacturers, including Playworld Systems, Inc.
(c) Design Day. The Community Partner agrees to host a KaBOOM!-facilitated"Design Day"with at least twenty
(20)adult volunteers and twenty(20)children. Such adult volunteers shall remain engaged in the planning
activities throughout the Project's planning process.
(d) Build Day. The Community Partner shall recruit 100 adult volunteers from the community to participate in a one-
day installation event for the Project,which is scheduled to occur on«BD_»and which is referred to herein as the
Build Day. The Community Partner shall ensure that all volunteers sign a waiver. On the Build Day,the
Community Partner shall provide food,water,tools,dumpsters,music and restroom facilities for all volunteers.
(e) Promotion; Intellectual Property. The Community Partner shall seek prior approval from KaBOOM!and/or the
Funding Partner for any materials that reference the Project or contain the name,trademarks,service marks,
logos and other intellectual property(collectively, and together with all goodwill attached or which shall become
attached to any of the them,the"Marks")of KaBOOM!and/or the Funding Partner, including press releases,
fliers and promotional materials. The Community Partner acknowledges and agrees that each of KaBOOM!and
-the Funding Partner is the sole owner of all right,title-and interest in and to its respective Marks. The parties
acknowledge that KaBOOM!and the Funding Partner may take all steps to protect their Marks as they deem
appropriate. Any use of the Marks will inure to the sole benefit of KaBOOM!or the Funding Partner(as
applicable). The Community Partner shall not use the Marks in any manner that would harm the reputation of
KaBOOM!or the Funding Partner or disparage or negatively reflect upon the Marks. Upon expiration of or
termination of this Agreement for any reason,the Community Partner shall cease all use of the Marks. The
Community Partner shall collaborate with KaBOOM!and the Funding Partner to secure media coverage for the
Project.
(f) Sianage. The Community Partner shall allow the names and logos of KaBOOM!and the Funding Partner to be
displayed on permanent playground signage,which shall be substantially in the form provided to the Community
Partner during the application process and shall be 12 1/4 inches wide by 30%inches tall and mounted on poles
in a mutually agreed location.
(g) Playground Costs. The Community Partner is solely responsible for and shall hold KaBOOM! and the Funding
Partner harmless from any costs beyond the proposed Project budget, including costs incurred by the Community
Partner for any prior site preparation, upgrades or improvements or any equipment or materials purchased to
supplement those secured by KaBOOM!.
(h) Warranty. The playground equipment and the safety-surfacing related to the Project may be covered under
warranty by the applicable manufacturers,a copy of which may be obtained, upon request,from such
manufacturers. The Community Partner acknowledges that any warranties and/or guarantees on any equipment
or material are subject to the respective manufacturer's terms thereof,and the Community Partner agrees to look
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solely to such manufacturers for any such warranty and/or guarantee. Neither KaBOOM!nor the Funding
Partner nor any of their respective affiliates, directors,officers,managers, partners, members,shareholders,
employees, agents or representatives,have made nor are in any manner responsible or liable for any
representation,warranty or guarantee,express or implied,in fact or in law, relative to any equipment or material,
including its quality,mechanical condition or fitness for a particular purpose.
(i) Insurance.To the extent of the law,the Community Partner is self-insured and is responsible for providing
coverage for its own employees and against liability for bodily injury,death and property damage that may arise
out of or be based on the use of the playground at"Ninth Street Park",from 7(seven)calendar days before the
Build Day and for a minimum of one year afterward, in each case, in amounts not less than one million dollars
($1,000,000).This self-insurance shall be primary over any other insurance covering KaBOOM!and its funding
partners.
(j) Indemnification. The Community Partner shall indemnify and hold harmless KaBOOM!,the Funding Partner and
their respective affiliates,directors, officers, managers,partners, members,shareholders,employees,agents and
representatives from any and all losses,liabilities,claims,actions,fees and expenses(including interest and
penalties due and payable with respect thereto and reasonable attorneys'and accountants'fees and any other
reasonable out-of-pocket expenses incurred in investigating, preparing,defending or settling any action),
including any of the foregoing arising under,out of or in connection with any breach of this Agreement,any
actions associated with this Project or resulting from the use of any playground property and equipment, including
those for personal injury,death,or property damage,except to the extent resulting from the willful misconduct of
such indemnified person. This provision shall survive any termination or expiration of this Agreement.
2. Obligations of KaBOOM!.
(a) Playground Build. KaBOOM!shall provide technical and organizational leadership and guidance for the Project
and shall:
(i) Coordinate Funding Partner participation,facilitate playground design, including regular planning meetings,
and work with vendors to procure equipment and materials in a timely manner,except to the extent that
safety surfacing other than engineered wood fiber is used,which shall be procured by the Community
Partner.
(ii) Manage construction logistics for the Project,coordinate playground site preparation activities with the
- _ _ Community Partner, inventory equipment and_material 3;and-assure that the necessary-tools:and materials -
are available on the Build Day.
(iii) Lead the Build Day activities, including the coordination of Build Day captains and volunteers.
(iv) Provide educational and promotional materials to support the Project,including the KaBOOM!Tool Kit(a 4-
book set), KaBOOM!online Playground Planner, nametags and other general supplies.
(b) Inspection. KaBOOM!, in collaboration with the Community Partner,will secure a Certified Playground Safety
Inspector to review the playground structure 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)to
ensure that the structure is safe and built to all appropriate standards and guidelines, unless the Build Day is not
completed on the Build Day due to failure of the Community Partner,in which case the Community Partner shall
secure the Certified Playground Safety Inspector.
(c) Promotion. KaBOOM!will provide proposed promotional materials relating to the Project for the Community
Partner's review and approval,which approval shall not be unreasonably withheld or delayed.
(d) Website Listing. KaBOOM!will place the playground on its list of KaBOOM!builds on the KaBOOM!website and
KaBOOM!will send information to the Community Partner on playground maintenance programming and
enhancements.
3. Build Day Postponement. The Build Day shall not be postponed except when weather or other conditions jeopardize
the safety of the volunteers or threaten the structural integrity of the playground. The decision to postpone the Build
Day will be made by majority agreement of the representatives of KaBOOM!,the Community Partner and the Funding
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Partner,except where such decision must be made by KaBOOM!on the construction site and representatives of the
Community Partner and the Funding Partner are not available for consultation. In the event that the Build Day is
postponed, KaBOOM!,the Community Partner and the Funding Partner shall develop a plan for rescheduling the
Build Day at the next earliest date possible for each party.The Funding Partner shall be responsible for all additional
expenses related to the rescheduled Build Day, including,without limitation,equipment,labor and materials, storage
and travel costs and expenses;provided,however,that the Funding Partner shall be notified of the estimated amount
of such additional expenses in connection with rescheduling of the Build Day. Notwithstanding the foregoing, in the
event that the date of the Build Day is cancelled or changed as a result of the Community Partner's failure to satisfy its
obligations in connection with the Project, then the Community Partner shall be liable to KaBOOM!and the Funding
Partner for all such additional expenses related to the rescheduled Build Day.
4. Funding Partner Relations. KaBOOM! has a separate contract with the Funding Partner pursuant to which the
Funding Partner has agreed to provide financial and human resources for the Project. In recognition of the Funding
Partner's contribution of such resources,the Funding Partner shall receive first placement on any recognition
materials developed for the Project, including playground signage,banners,T-shirts, press releases,website and
newsletter stories, and flyers, and the Community Partner shall not solicit sponsors or donors in relation to the Project
whose products or services directly compete with the products or services of the Funding Partner as identified to the
Community Partner by KaBOOM!and/or the Funding Partner. In the event the Community Partner solicits other
sponsors or donors,then the Community Partner shall not permit such sponsors or donors to compete with the
Funding Partner for signage and sponsorship recognition.
5. Termination. In the event that the Community Partner fails to make the payments required under Section 1(a)or
otherwise breaches this Agreement, KaBOOM!may terminate this Agreement upon written notice to the Community
Partner of such termination. Furthermore, if either party is delayed or prevented from fulfilling any of its obligations
hereunder by any cause beyond its reasonable control, including acts of God,acts or omissions of civil or military
authorities,fire,strike,flood, riot,act of terrorism,war,transportation delay, or inability due to such causes to obtain
required labor,materials or facilities, such party shall not be liable hereunder for such delay or failure and either party
may terminate this Agreement if the other is unable to perform any obligation hereunder for a period longer than ten
(10)calendar days due to such force majeure event, in which case KaBOOM!shall refund to the Community Partner
any amounts paid to KaBOOM!, less expenses already committed and/or incurred prior to the date of such
termination. If, upon termination as provided herein,the sum due KaBOOM!the by Community Partner exceeds the
sum paid to KaBOOM!hereunder,the Community Partner shall pay KaBOOM!for any such additional sum due upon
presentation of appropriate documentation within thirty(30)days-of invoice. Except as forii above,upon any
termination,this Agreement shall become void and have no effect,and no party shall have any liability to the other
party,except that nothing herein will relieve any party from liability for any intentional breach of this Agreement prior to
such termination.
6. General Provisions. The Community Partner represents to KaBOOM!that all information provided by it to KaBOOM!,
ncluding in the Playground Profile Application, is true,correct and complete in all respects and does not omit any
nformation relevant to the Project. Each party has all requisite power and authority, including any necessary approval
by its governing body,to execute and deliver this Agreement,and to perform its obligations hereunder.This
Agreement may not be assigned or transferred by either party without the prior written consent of the other party
hereto.This Agreement shall inure to the benefit of and be binding upon the parties hereto,their respective
successors and permitted assigns, and where expressly stated,their affiliates and representatives.This Agreement
shall be governed by and construed under the laws of the State of California,without regard to conflicts of laws
principles to the extent that the application of the laws of another jurisdiction would be required thereby. This
Agreement may be altered,modified or amended only by a written document signed by both parties. This Agreement
may be executed in two or more counterparts,each of which shall be an original and all of which,when taken
together,shall constitute the same agreement and may be delivered by facsimile or electronic mail transmission with
the same force and effect as if originally executed copies hereof were delivered. Any notices required or permitted to
be given hereunder shall be sent by certified or registered United States mail, postage prepaid,by personal delivery
ddressed to the applicable party or by facsimile or electronic mail transmission(the receipt of which is confirmed)at
tree address set forth under such party's signature below. The Funding Partner shall be an intended third party
2014-301
beneficiary of Sections 1(b),(e),(f),(g),(h),(i)and(j)and Sections 2(b), 3,4 and 6 of this Agreement and is entitled
to enforce its rights under such sections as if it were a party to this Agreement.
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By executing this Community Partner Playground Contract where indicated below,each of KaBOOM!and the Community
Partner agrees,as of the date identified above,to be legally bound by all of the terms and provisions set forth above.
«CP» KaBOOM!,Inc.
By:
Name:«Signatory_1»04th-3:N-ter By:
Title:«Sig_1_Title»Ci}y MAgYieer Name: Gerry Megas
Title: Chief Financial Officer
Address: Address:
«S1_Address»300 No(-FhU 5E.,Sant2t ntirthror 4301 Connecticut Ave.NW, Suite ML-1
T: «S1_Phone» G ketza- a; (qoq) L1 Washington, DC 20008
«S1_Fax» c'oq)3, 4 s 13$ T:(202)464-6180
e-mail: «S1_Email»varKKer_oil € sbGrtlorq. F:(202)659-0210
UU
e-mail:gmegase.kaboom.orq
«CP_2»
«Signatory_2»
«Sig_2 Title»
«S2 Address»
«S2 Phone»
«S2 Fax»
«S2 Emaii»
Contact information for the person who should receive KaBOOMI invoices:
Name: «Invoice_Name» Telephone number: «Invoice_Phone»
Mailino Address: Email: «Invoice_Email»
«Invoic a Address»
«Invoice Fax»
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scorico2m4r
KaBOOM! Letter of Intent
My signature below confirms that the appropriate representatives from my organization have
spoken with KaBOOM!Community Outreach representatives and understand that if m or•anization
is selected for a KaBOOM! project,we will be responsible for the following
Fundraise$8,500 USD toward the cost of equipment
Participate in a KaBOOM!online training focused on fundraising within 2 weeks of Design Day
Recruit 75 volunteers from the community to participate on Build Day
Recruit between 12-15 community members, residents and/or parents to participate in the
planning process
Provide land and site preparation resulting in a flat and dirt surface two weeks prior to Build Day of a
site measuring at least 2,700 square feet.
Remove all existing equipment currently on site
Perform a utility check prior to Design Day and secure all necessary extensions to ensure
the utility check is current through Build Day
Perform a soil test for lead and arsenic that is completed within two weeks of Design Day
Provide food,water,tools,a dumpster,music and restroom facilities for volunteers on Build Day
Use a supervised volunteer installation
Accept liability for and maintain the playground upon build completion
Use Playworld Systems equipment(www.playworldsystems.com)
Use engineered wood fiber for safety surfacing
Assume all responsibilities as outlined in the KaBOOM!Community Partner Project Summary
Complete and submit a Post Build Report,as provided by KaBOOM!,within one week of the
Project Build Day
Signing this Letter of Intent signifies that all involved parties (including person
responsible for signing final Community Partner Agreement) have reviewed the
Draft Community Partner Agreement and are prepared to sign the final
Community Partner Agreement within three calendar days of being chosen for
a KaBOOM! playground project:
City of San Bernardino
Name of Organization
Allen J. Parker, City Manager
Name and Title of Person that would be signing the contract(please print)
Authorized Signature Date
Mickey Valdivia. Parks. Recreation &Community Services Department Director
Name and Title of Main Contact Person (if different from above)
Signature of Main Contact person Date
300 North D Street, San Bernardino, CA 92401 (909)384-5233
Address Phone number
Please sign and fax back to 202-659-0210
2014=301
ve COMMUNITY PARTNER PLAYGROUND CONTRACT
August 19, 2014
KaBOOMI,Inc.(referred to herein as KaBOOM!)is pleased that City of San Bernardino(referred to herein as the Community Partner)and Home
of Neighborly Service has agreed to collaborate with KaBOOMI and Dr Pepper Snapple Group(referred to herein as the Funding Partner)in the
construction of a new playground at 1299 W.Union St.,San Bernardino,CA 92411 (the"Pro)ect'). This Community Partner Playground Contract
(this"Agreement),which sets forth the Community Partner's obligations in connection with the Project and certain matters on which the parties
have agreed,will,when executed by the duly authorized representatives of each party,supersede any prior agreements and represent the
complete legally binding agreement between the parties regarding the Project.
1. Obligations of the Community Partner. The Community Partner shall work with KaBOOM!and the Funding Partner as well as community
residents to design,plan and build the Project. By executing this Agreement,the Community Partner is unconditionally agreeing to each of
the following obligations,in each case meeting the requirements provided by KaBOOM!:
(a) Fundr !s!n . In support of the Project,the Community Partner must contribute$8,500 to KaBOOMI,which will apply the funds directly
to the purchase of playground equipment. KaBOOM!will invoice the Community Partner for such amount promptly following the
execution of this Agreement,which amount must be paid in full at least thirty(30)days prior to the Projects Build Day(as defined
below).
(b) Pro!ec-IS ite.
(I) Ownership. At the time of execution of this Agreement,the Community Partner shall provide KaBOOM!with proof of land
ownership evidenced by either a deed granting title to the property to the Community Partner or a letter from the property owner
showing approval for the Project. The Community Partner is the owner of the playground in its entirely,for the lifetime of the
playground,including the equipment and/or safety surfacing purchased by KaBOOMI and/or the Funding Partner.
(ii) Permits. Prior to Build Day,the Community Partner shall obtain all necessary permits and licenses regarding the installation,
possession and use of the playground in compliance with applicable laws and regulations.
(iii) Preparation. The Community Partner shall ensure that the Project site is safe for volunteers and children,which responsibility
includes: (1)recruiting fifteen(15)adult volunteers to participate in preparation activities two to three days prior to Build Day;
(2)preparing the site for the installation of the Project at least two weeks before Build Day,which includes removing existing
playground equipment,footers and safety surfacing,grading the land,removing fencing and performing soil tests;(3)conducting up
to two(2)utility checks as reasonably requested by KaBOOM!with the appropriate utility companies,with the first test being
completed within two weeks of Design Day r3r defined belowkend with all utility check documentation provided upon coraplew n to
the KaBOOMI pro)ect manager who shall supervise the planning and installation of the playground(the"Project Manager');and(4)
conducting up to two(2)soil site tests as reasonably requested by KaBOOMI,with the first test being completed within two weeks
of Design Day and with all soil check documentation provided to the Project Manager upon completion.The Community Partner is
responsible for undertaking any necessary risk mitigation should the soil be deemed unsafe for children and volunteers.
(iv) Safety and Security.The Community Partner shall ensure the security of equipment,tools,supplies and well-being of the adults
and children from the beginning of the preparation activities until the conclusion of Build Day,including any postponement.
(v) Maintenance.Maintenance of the playground facility and supervision of its use is the sole responsibility of the Community
Partner. The Community Partner shall collaborate with KaBOOMI during the Project planning process to develop a maintenance
program for the playground and,with the support of the property owner(if owner is a separate party),shall maintain the playground
and the property before and after the Build Day to ensure a safe and attractive playspace. In furtherance of the foregoing,in the
event any playground equipment included in the Project no longer is permitted for any reason to be located at its original site of
construction or such site is no longer controlled by the Community Partner for any reason,then the Community Partner promptly
shall notify KaBOOMI following its becoming aware of such situation and shall,at the Community Partner's sole cost and expense,
take such steps as may be necessary to promptly and safely relocate the playground equipment(including any permanent signage
and other fixtures)to an alternate site that serves children or to ensure that the successor controlling person of such site shall
continue to make such playground available to children in the same manner contemplated as of the Build Day and maintain(or
permit the Community Partner to maintain)such playground in accordance with the maintenance program. In addition,the
Community Partner shall accept and maintain engineered wood fiber as playground safety surfacing,meeting standards
established by Consumer Product Safety Commission guidelines,for the lifetime of the playground. Guidance and materials for
the purpose of developing a maintenance plan for the playground are available,upon request,from the playground equipment and
safety surfacing manufacturers,including Playworld Systems,Inc.
(c) Design Day. The Community Partner agrees to host a KaBOOMI-facilitated"Design Day"with at least twenty(20)adult volunteers and
twenty(20)children. Such adult volunteers shall remain engaged in the planning activities throughout the Projects planning process.
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(d) Build Day. The Community Partner shall recruit 150 adult volunteers from the community to participate in a one-day installation event
for the Project,which is scheduled to occur on Wednesday,October 15,2014 and which is referred to herein as the Build Day. The
Community Partner shall ensure that all volunteers sign a waiver in the form attached hereto as Exhibit A. On the Build Day,the
Community Partner shall provide food,water,tools,dumpsters,music and restroom facilities for all volunteers.
(e) Promotion:Intellectual Property. The Community Partner shall seek prior approval from KaB00M!and/or the Funding Partner for any
materials that reference the Project or contain the name,trademarks,service marks,logos and other intellectual property(collectively,
and together with all goodwill attached or which shall become attached to any of the them,the"Marks")of KaB00M!and/or the Funding
Partner,including press releases,fliers and promotional materials. The Community Partner acknowledges and agrees that each of
KaB00M!and the Funding Partner is the sole owner of all right,title and interest in and to its respective Marks. The parties
acknowledge that KaB00MI and the Funding Partner may take all steps to protect their Marks as they deem appropriate. Any use of
the Marks will inure to the sole benefit of KaB00M!or the Funding Partner(as applicable). The Community Partner shall not use the
Marks in any manner that would harm the reputation of KaB00Ml or the Funding Partner or disparage or negatively reflect upon the
Marks. Upon expiration of or termination of this Agreement for any reason,the Community Partner shall cease all use of the Marks.
The Community Partner shall collaborate with KaB00Ml and the Funding Partner to secure media coverage for the Project.
(1) Siqnaqq. The Community Partner shall allow the names and logos of KaB00M!and the Funding Partner to be displayed on permanent
playground signage,which shall be substantially in the form provided to the Community Partner during the application process and shall
be 12%inches wide by 30'/.inches tall and mounted on poles in a mutually agreed location.
(g) Playground Costs, The Community Partner is solely responsible for and shall hold KaB00MI and the Funding Partner harmless from
any costs beyond the proposed Project budget,including costs incurred by the Community Partner for any prior site preparation,
upgrades or improvements or any equipment or materials purchased to supplement those secured by KaB00M!.
(h) Warranty. The playground equipment and the safety-surfacing related to the Project may be covered under warranty by the applicable
manufacturers,a copy of which may be obtained,upon request,from such manufacturers. The Community Partner acknowledges that
any warranties and/or guarantees on any equipment or material are subject to the respective manufacturer's terms thereof,and the
Community Partner agrees to look solely to such manufacturers for any such warranty and/or guarantee. Neither KaB00Ml nor the
Funding Partner nor any of their respective affiliates,directors,officers,managers,partners,members,shareholders,employees,
agents or representatives,have made nor are in any manner responsible or liable for any representation,warranty or guarantee,
express or implied,in fact or in law,relative to any equipment or material,including its quality,mechanical condition or fitness for a
particular purpose.
(1) In us ranee.The City of San Bernardino is self-insured and is responsible for providing coverage for its own employees and against
liability for bodily injury,death and property damage that may arise out of or be based on the use of the playground at"Community
Partner location",from 7(seven)calendar days before the Build Day and for a minimum of one year afterward,in each case,in amounts
not less than one million dollars($1,000,000).This self-insurance shall be primary over any other insurance covering KaB00Ml and its
funding padner,. ,
Q) Indemnification. The Community Partner shall indemnify and hold harmless KaB00Ml,the Funding Partner and their respective
affiliates,directors,officers,managers,partners,members,shareholders,employees,agents and representatives from any and all
losses,liabilities,claims,actions,fees and expenses(including interest and penalties due and payable with respect thereto and
reasonable attorneys'and accountants'fees and any other reasonable out-of-pocket expenses incurred in investigating,preparing,
defending or settling any action),including any of the foregoing arising under,out of or in connection with any breach of this Agreement,
any actions associated with this Project or resulting from the use of any playground property and equipment,including those for
personal injury,death,or property damage,except to the extent resulting from the willful misconduct of such indemnified person. This
provision shall survive any termination or expiration of this Agreement.
2. Obligations of KaBOOMI.
(a) Plgyground Build. KaB00M!shall provide technical and organizational leadership and guidance for the Project and shall:
(I) Coordinate Funding Partner participation,facilitate playground design,including regular planning meetings,and work with vendors
to procure equipment and materials in a timely manner,except to the extent that safety surfacing other than engineered wood fiber
is used,which shall be procured by the Community Partner.
(ii) 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 on the Build Day.
(iii) Lead the Build Day activities,including the coordination of Build Day captains and volunteers.
(N) Provide educational and promotional materials to support the Project,including the online KaB00M!Tool Kit,KaB00M!online
Playground Planner,nametags and other general supplies.
(b) Inspection. KaB00Ml,in collaboration with the Community Partner,will secure a Certified Playground Safety Inspector to review the
playground structure at the conclusion of the Build Day(or,if KaB00M!assumes responsibility for the playground construction going
beyond one day,at the conclusion of the installation)to ensure that the structure is safe and built to all appropriate standards and
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guidelines,unless the Build Day is not completed on the Build Day due to failure of the Community Partner,in which case the
Community Partner shall secure the Certified Playground Safety inspector,
(c) Promotio n. KaBOOMI will provide proposed promotional materials relating to the Project forthe Community Partner's review and
approval,which approval shall not be unreasonably withheld or delayed.
(d) Wabsite Listing. KaBOOMI will place the playground on its list of KaBOOMI builds on the KaBOOMI website and KaBOOMI will send
information to the Community Partner on playground maintenance programming and enhancements.
3. Build Day Postoonement. The Build Day shall not be postponed except when weather or other conditions jeopardize the safety of the
volunteers or threaten the structural integrity of the playground. The decision to postpone the Build Day will be made by majority agreement
of the representatives of KaB00M!,the Community Partner and the Funding Partner,except where such decision must be made by
KaBOOMI on the construction site and representatives of the Community Partner and the Funding Partner are not available for consultation.
In the event that the Build Day is postponed,KaBOOMI,the Community Partner and the Funding Partner shall develop a plan for
rescheduling the Build Day at the next earliest date possible for each party.The Funding Partner shall be responsible for all additional
expenses related to the rescheduled Build Day,including,without limitation,equipment,labor and materials,storage and travel costs and
expenses;provided,however,that the Funding Partner shall be notified of the estimated amount of such additional expenses in connection
with rescheduling of the Build Day. Notwithstanding the foregoing,in the event that the date of the Build Day Is cancelled or changed as a
result of the Community Partner's failure to satisfy its obligations in connection with the Project,then the Community Partner shall be liable to
KaBOOMI and the Funding Partner for all such additional expenses related to the rescheduled Build Day.
4. Funding Partner Relations. KaBOOMI has a separate contract with the Funding Partner pursuant to which the Funding Partner has agreed
to provide financial and human resources for the Project. In recognition of the Funding Partners contribution of such resources,the Funding
Partner shall receive first placement on any recognition materials developed for the Project,including playground signage,banners,T-shirts,
press releases,website and newsletter stories,and flyers,and the Community Partner shall not solicit sponsors or donors in relation to the
Project whose products or services directly compete with the products or services of the Funding Partner as identified to the Community
Partner by KaBOOMI and/or the Funding Partner.In the event the Community Partner solicits other sponsors or donors,then the Community
Partner shall not permit such sponsors or donors to compete with the Funding Partner for signage and sponsorship recognition.
5. Termination. In the event that the Community Partner fails to make the payments required under Section 1(a)or otherwise breaches this
Agreement,KaBOOMI may terminate this Agreement upon written notice to the Community Partner of such termination. Furthermore,if
either party is delayed or prevented from fulfilling any of its obligations hereunder by any cause beyond its reasonable control,including acts
of God,acts or omissions of civil or military authorities,fin:,strike,flood,riot,act of terrorism,war,transportation delay,or inability due to
such causes to obtain required labor,materials or facilities,such party shall not be liable hereunder for such delay or failure and either party
may terminate this Agreement if the other is unable to perform any obligation hereunder for a period longer than ten(10)calendar days due
to such force majeure event,in which case KaBOOMI shall refund to the Community Partner any amounts paid to KaBOOMI,less expenses
already committed and/or incurred prior to the date of suct tormination. If,upc:n termination as provided herein,the sum duP KaBOOMI the
by Community Partner exceeds the sum paid to KaBOOMI hereunder,the Community Partner shall pay KaB00M!for any such addition.,
sum due upon presentation of appropriate documentation within thirty(30)days of Invoice. Except as set forth above,upon any termination,
this Agreement shall become void and have no effect,and no party shall have any liability to the other party,except that nothing herein will
relieve any party from liability for any intentional breach of this Agreement prior to such termination.
6. General Provisions. The Community Partner represents to KaBOOMI that all information provided by it to KaB00M!,including in the
Playground Profile Application,is true,correct and complete in all respects and does not omit any information relevant to the Project. Each
party has all requisite power and authority,including any necessary approval by its governing body,to execute and deliver this Agreement,
and to perform its obligations hereunder.This Agreement may not be assigned or transferred by either party without the prior written consent
of the other party hereto.This Agreement shall inure to the benefit of and be binding upon the parties hereto,their respective successors and
permitted assigns,and where expressly skated,their affiliates and representatives.This Agreement shall be governed by and construed
under the laws of the State of New York,without regard to conflicts of laws principles to the extent that the application of the laws of another
jurisdiction would be required thereby. This Agreement may be altered,modified or amended only by a written document signed by both
parties. This Agreement may be executed in two or more counterparts,each of which shall be an original and all of which,when taken
together,shall constitute the same agreement and may be delivered by facsimile or electronic mail transmission with the same force and
effect as if originally executed copies hereof were delivered. Any notices required or permitted to be given hereunder shall be sent by
certified or registered United States mail,postage prepaid,by personal delivery addressed to the applicable party or by facsimile or
electronic mail transmission(the receipt of which is confirmed)at the address set forth under such party's signature below. The Funding
Partner shall be an intended third party beneficiary of Sections 1(b),(e),(f),(g),(h),(I)and(j)and Sections 2(b),3,4 and 6 of this Agreement
and is entitled to enforce its rights under such sections as if it were a party to this Agreement.
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By executing this Community Partner Playground Contract where indicated below,each of KaB00M!and the Community Partner agrees,as of
the date identified above,to be legally bound by all of the terms and provisions set forth above.
City of San Bernardino KaB00Ml,Inc.
B `~
Y *arkerAgC—Name: Name. rry eg ,
Title:City Manager Title: Chief Fine 0
Address: Address
300 North D Street 4301 Connecticut Avenue NW,Suite ML-1
San Bernardino,CA 92401 Washington,DC 20008
T:(909)3B4-5233 T:(202)4646180
F:(202)659-0210
e-mail:gmegas @kaboom.org
Home of Neighborly Service
ame:Jerry Martin
Title:Board President
Address:
839 N Mount Vernon Ave
San Bernardino,CA 92411 -2737
Contact information for the person who should receive KaB00M!invoices:
Name:Mickey Valdivia Telephone number:(909)384-5322
Mailing-AddraSs!
300 North D Street
San Bernardino,CA 92401