HomeMy WebLinkAbout2016-153 1 RESOLUTION NO. 2016-153
2
3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LETTER OF
4 INTENT AND CONTRACT AGREEMENT BETWEEN THE CITY OF SAN
5 BERNARDINO AND KABOOM TO BUILD A PLAYGROUND AT SECCOMBE LAKE
PARK.
6
7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
8 OF SAN BERNARDINO AS FOLLOWS:
9 SECTION 1. That the City Manager is hereby authorized to execute a Letter of Intent
10
with KaBOOM for building a playground at Seccombe Lake Park, a copy of which is attached
11
12 hereto as Exhibit"A" and incorporated herein.
13 SECTION 2. That the City Manager is hereby authorized to execute a Landowner Letter
14 of Permission with KaBOOM for building a playground at Seccombe Lake Park, a copy of which
15 is attached hereto as Exhibit `B' and incorporated herein.
16
SECTION 3. That upon award of the grant from KaBOOM the City Manager is hereby
17
18 authorized to execute a Community Partner Playground Contract with KaBOOM, a copy of
19 which is attached hereto as Exhibit "C" and incorporated herein.
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1
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LETTER OF
2 INTENT AND CONTRACT AGREEMENT BETWEEN THE CITY OF SAN
3 BERNARDINO AND KABOOM TO BUILD A PLAYGROUND AT SECCOMBE LAKE
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 thereof, held on the
7 181" day of July, 2016, by the following vote, to wit:
8 Council Members: AYES NAYS ABSTAIN ABSENT
9
MARQUEZ X
10
11 BARRIOS X
12 VALDIVIA X
13 SHORETT X
14
NICKEL X
15
16 RICHARD X
17 MULVIHILL X
18
19 Georgea n Hanna, C , City Clerk
20 The foregoing Resolution is hereby approved this day of July, 2016.
21 `9
22
R. Carey Day. , Mayor
23 City of San Bernardino
Approved as to form:
24 Gary D. Saenz, City Attorney
25 �
By:
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play,tnat#ers fair a11.Wds,,
July 21, 2016
Dear applicant:
Congratulations on making it to the third round of the selection process for the Build it with KaBOOM!
playground grant! Before moving your application to the fourth and final step in the process, your
organization will need to submit the following:
• Signed Letter of Intent, which signifies full contract approval by your organization
At this stage in the selection process, KaBOOM! requires all applicants to review and approve the draft
Letter of Agreement(contract). Please have your organization's authorized signatory and any other
necessary parties review and approve the attached contract. Once this has been completed, the
signatory must sign the Letter of Intent indicating that the contract is fully reviewed and approved and
that your organization is prepared to sign an official contract within three business days of being
awarded the Build it with KaBOOM! playground grant.
KaBOOM! cannot recommend your application to the Funding Partner until the contract has been
approved. Please note that signing the Letter of Intent does not guarantee funding or approval.
Rather, we are now able to move you to the final step in the application process.
If you are applying in partnership with one or more organizations, please have each partner sign a
separate Letter of Intent. If you have questions about submitting a Letter of Intent for respective
partners, please contact your Community Outreach representative.
This is a standard form contract and changes cannot be made. However, if your signatory or any other
reviewers have any questions, please direct them to your Community Outreach representative.
We look forward to receiving your signed Letter of Intent.
Sincerely,
Kelly Habig, Community Outreach Specialist
(0) 202.464.6411 (F) 202.659.0210
kaboom.org
EXHIBIT "A"
4301 Connecticut Ave. NW,Suite ML-1,Washington,DC 20008 P 202.659.0215 1 202.659.0210 kaboomorg
KaBOOM! Letter of Intent
By signing this document, I understand that if my organization is selected for a KaBOOM! project, my
organization will (please initial each point):
Assume all responsibilities as outlined in the KaBOOM! Community Partner Project Summary
Fundraise$8,500 USD toward the cost of playground equipment
Own and maintain the playground for its lifetime
Provide land and secure all necessary permits for construction of playground
Remove all existing playground equipment currently on site
Perform site preparation resulting in a flat and dirt surface two weeks prior to Build Day of a site
measuring at least 2,500 square feet.
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 within two weeks of Design Day and perform remediation if
necessary
Use Playworld Systems, Inc equipment and accept engineered wood fiber safety surfacing
Allow names and logos of KaBOOM! and the Funding Partner to be displayed on permanent playground
signage, measuring 12 % inches wide by 30 %inches tall
Recruit at least 15 community members, residents, and/or parents to participate in the Design Day and
planning process
Recruit 30 volunteers from the community to participate in two preparation days and recruit 75 volunteers
from the community to participate on Build Day
Provide food, water, tools, a dumpster, and music for volunteers on Build Day
Build the playground through supervised volunteer installation
Accept liability for and maintain the playground upon build completion
Obtain and maintain insurance for the playground and Build Day, and add KaBOOM! and the Funding
Partner as additional insureds for the term described in the contract
Indemnify and hold harmless KaBOOM! and the Funding Partner
Follow KaBOOM! protocol on all media and promotions as outlined in the Corporate Sponsorship Policy
Signing this Letter of Intent signifies that all contract signatories have reviewed the draft contract and
are prepared to sign a final contract within three business days of being awarded a KaBOOM!
playground project. Please ensure that the person authorized to sign contracts signs below.
Legal Name of Organization: City of San Bernardino
Name of Organization to Use in Media:—City of San Bernardino Parks, Recreation and Community Services
Department
Name and Title of Signatory (please print): Mark Scott, City Manager_
Authorized Signature: Date: _July 18, 2016
Signatory Mailing Address: _300 North D Street, 6th Floor, San Bernardino, Ca 92410
Contact information for person who should receive KaBOOM! Invoice:
Name: Christina Chartier
Telephone number: (909) 384-5233 ext 2010
Mailing Address: 201 North E Street, Suite 301, San Bernardino, Ca
92410
Email: chartier_ch @sbcity.org
4301 Conr Fax: (909) 384-5160x1
4301 Connecticut Ave. NW,Suite ML-1,Washington,DC 20008 il 202,659.0215 F 202.659.0210 kaboom.org
Letter of Permission
Please include the necessary contact information for the authorized signatory and fax this
completed - - • 202-659-0210
July 18, 2016
Dear KaBOOM!,
For good and valuable consideration, receipt of which is hereby acknowledged, I am writing to KaBOOM!, Inc. on behalf
of the City of San Bernardino to give permission to City of San Bernardino Parks, Recreation and Community Services
Department to build a playground at Seccombe Lake Park located at 160 E. 5th Street, San Bernardino, Ca 92410 using
the following: a supervised volunteer installation, engineered wood fiber safety surfacing (understanding using such
surfacing requires the removal of any asphalt or concrete to create a flat dirt surface base), Playworld Systems Inc.
equipment.
The City of San Bernardino also agrees to maintain the playground at completion of the Build Day.
The City of San Bernardino will allow the names and logos of the Funding Partner and KaBOOM! on permanent
playground signage(a sample can be provided). Playground signage is 12%inches wide by 30%4 inches tall and
mounted on poles. The sign will be erected in a mutually agreed upon location and in accordance with the City of San
Bernardino's guidelines regarding corporate signage. If the City of San Bernardino has specific guidelines regarding
corporate signage on its property, please attach those guidelines to this Agreement.
The City of San Bernardino warrants and represents to KaBOOM!, Inc. that it is the sole owner of the land and that
KaBOOM!, Inc. does not need to secure permission from any third party in order to build the playground on the land as
outlined herein.
The City of San Bernardino acknowledges that The City of San Bernardino is the owner of the playground in its
entirety, for the lifetime of the playground, including the equipment and/or safety surfacing purchased by
KaBOOM! and/or its funding partners.
If The City of San Bernardino Parks Recreation and Community Services Department is selected, the City of San
Bernardino's City Manager has permission to sign the Letter of Agreement that outlines the obligations of the
playground project.
Sincerely,
City of San Bernardino
Mark Scott, City Manager
Phone number: 909-384-5122
Email address: Scott_Ma @sbcity.org
EXHIBIT "B"
COMMUNITY PARTNER PLAYGROUND AGREEMENT
July 21. 2016
KoBOOM!. Inc, (referred h3 herein 8S K3BOOM0 is pleased that xCPo (referred 0J herein aS the Community Partner) has
agreed to collaborate with KaBOOM!and ((FP)) (referred to herein as the Funding Partner) in the construction Ofanew
playground 8to8it8_N8mox.x8ite_Add[SSSo. ((City)), oGtateo oZipo (the"Project"). This Community Partner Playground
Agreement(this"Agreement"),which sets forth the Community Partner's obligations in connection with the Project 8nd
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 K8BOOKX!and the Funding Partner 8S
well 8S community residents to design, plan and build the Project. ByoxeoutingthioAgm8mont.thoCommunity
Partner is UOCUndidUn8||y 8g[88iDg to each Of the following Ob|ig@d0OS. in each o8S9 no88dng the[8qU|nSm8O1S
provided byK88OOM!:
(a) Fundraising. |n support nf the Project,th8Com0uOityPartnor0UStSOn\ributS$oCOnh|butiUno0}KaBOOM!.
which will apply the funds directly tn 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 adleast thirty/30 days prior 0u the Project's 8Ui|dDay(8SdGfinodbo|«w).
( ) .0 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 m
o letter from the property owner showing approval for the Project. The Community Partner io the owner of
the playground in its entirety,for the lifetime of the playground, including the equipment and/or safety
surfacing purchased byK8BOOM!and/or the Funding Partner.
(ii) Permits, Prior to Build Day,the Community Partner shall obtain or cause to be obtained all necessary
p8nndS and |inenonn regarding the installation, p0000SSiOn and use of the playground in compliance with
applicable laws and regulations.
(iii) Preparation. The Community Partner shall ensure that the Project SiVSiS3GfefO[vO|Untn8[S8ndChi|do3O.
which responsibility includes: (1)recruiting fifteen(15)adult volunteers to participate in preparation activities
two to three days prior to Build Dov;CD 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
oomp|o\iOD to the KaBOOM!project manager who okoU supervise the planning and installation of the
playground(the"Project Manager");and (4)conducting upk>two(3)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 Managoruponoomp|ation.ThoCnmmundvPartnoriomnponoib|ofor
undertaking any non9oS8ry risk mitigation ShOU|d the soil be deemed unsafe for children and volunteers.
(iv) Safety and Security.ThoCommundvPartnorSh8||onoVm1h8S8oVhtvnf8qUipmont.h3U|S.oupp|i8SandwmU
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 K88OOM!during the Project
EXHIBIT ''C"
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«Volunteers» 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) Promotions Intellectual Propert y. 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%inches wide by 30 1/4 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 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
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.The Community Partner(or such other appropriate entity to which KaBOOM!consents in writing)shall
obtain and maintain from no less than seven(7)days prior to the Build Day and through the first anniversary of
the Build Day,commercial general liability insurance(providing coverage against liability for bodily injury,death
and property damage that may arise out of or be based upon the use of the playground)with a limit of not less
than one million dollars($1,000,000)per occurrence. The Community Partner shall also obtain and maintain
worker's compensation insurance policies with statutory limits for the state in which the work is performed for
their volunteer employees. Within seven (7)days from execution of this Agreement,the Community Partner
shall provide to KaBOOM!a copy of a certificate from its insurer indicating the nature,scope,duration and
amount of insurance coverage,and naming KaBOOM!and the Funding Partner as additional insureds under
such policy,which insurance shall be primary over any other insurance covering KaBOOM!and the Funding
Partner and which policy shall provide that KaBOOM!and the Funding Partner be given at least thirty(30)days
prior written notice of any change or cancellation of coverage.
(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 gross negligence or
willful misconduct of such indemnified person. This provision shall survive any termination or expiration of this
Agreement.
(k) Data and Reporting Requirements. The Community Partner shall(i) promptly following the confirmation of the
Project,distribute one or more play-related surveys provided by KaBOOM!to its stakeholders, including
parents/caregivers,volunteers,staff and board members, (ii)cause members of its planning committee to
complete a post-build survey provided by KaBOOM!within 2 weeks from the Build Day and a 6-month survey
provided by KaBOOM!within 7 months from the Build Day.
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 materials, and assure that the necessary tools and materials
and other general supplies are available on the Build Day.
(iii) Lead the Build Day activities, including the coordination of Build Day captains and volunteers.
(iv) Make available certain educational and promotional materials related to the Project.
(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.
(e) Post-Build Day. The Community Partner shall(i)within one week following the Build Day,complete and submit a
Post Build Report, in the form to be made available by KaBOOM!,and(ii)shall use its commercially reasonable
efforts to provide,and otherwise shall cooperate in good faith with KaBOOM! regarding obtaining,such other
information related to the Project as KaBOOM!from time to time may request.
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
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 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 KaBOOM!that all information provided by it to KaBOOM!,
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 stated,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,
By executing this Community Partner Playground Agreement 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.
City of San Bernardino
KaBOOM!, Inc.
By:
Name: Mark Scott By'
Title: City Manager Name: Gerry Megas
Title: Chief Financial Officer
Address: Address:
300 North D Street,6th Floor 4301 Connecticut Ave. NW, Suite ML-1
San Bernardino,Ca 92401 Washington, DC 20008
T: (909)384-5122 T: (202)464-6180
F: (909)384-5138 F: (202)659-0210
e-mail: scott_ma @sbcity.org e-mail:gmegas .kaboom.org
Patrons of Roosevelt Bowl
Robert Rego
Title: Treasurer, Liaison to City Hall
P. 0. Box 21054
San Bernardino, Ca 92406
T: (909)496-1210
e-mail: Robert @rego.com
Contact information for the person who should receive KaBOOM! invoices:
Name: Christina Chartier Telephone number: (909)384-5233
Mailing Address: Email: chartier_ch @sbcity.org
201 North"E"Street, Suite 301
San Bernardino, Ca 92401
Fax number: (909)384-5160
M 2016-153
k
plfy INwtbl r f0 r aM1 Odds
July 25, 2016
Dear applicant:
Congratulations on making it to the third round of the selection process for the Build it with KaBOOM!
playground grant! Before moving your application to the fourth and final step in the process, your
organization will need to submit the following:
• Signed Letter of Intent, which signifies full contract approval by your organization
At this stage in the selection process, KaBOOM! requires all applicants to review and approve the draft
Letter of Agreement(contract). Please have your organization's authorized signatory and any other
necessary parties review and approve the attached contract. Once this has been completed, the
signatory must sign the Letter of Intent indicating that the contract is fully reviewed and approved and
that your organization is prepared to sign an official contract within three business days of being
awarded the Build it with KaBOOM! playground grant.
KaBOOM! cannot recommend your application to the Funding Partner until the contract has been
approved. Please note that signing the Letter of Intent does not guarantee funding or approval.
Rather, we are now able to move you to the final step in the application process.
If you are applying in partnership with one or more organizations, please have each partner sign a
separate Letter of Intent. If you have questions about submitting a Letter of Intent for respective
partners, please contact your Community Outreach representative.
This is a standard form contract and changes cannot be made. However, if your signatory or any other
reviewers have any questions, please direct them to your Community Outreach representative.
We look forward to receiving your signed Letter of Intent.
Sincerely,
Kelly Habig, Community Outreach Specialist
(0) 202.464.6411 (F) 202.659.0210
kaboom.org
EXHIBIT "A"
4301 Connecticut Ave.NW,Suite ML-1,Washington,DC 20008 P 202.659.0215 F 202.659.0210 kaboom.org
2016-153
KaBOOM! Letter of Intent
By signing this document, I understand that if my organization is selected for a KaBOOM! project, my
organization will (please initial each point):
Assume all responsibilities as outlined in the KaBOOM! Community Partner Project Summary
Fundraise$8,500 USD toward the cost of playground equipment
Own and maintain the playground for its lifetime
Provide land and secure all necessary permits for construction of playground
Remove all existing playground equipment currently on site
Perform site preparation resulting in a flat and dirt surface two weeks prior to Build Day of a site
measuring at least 2,500 square feet.
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 within two weeks of Design Day and perform remediation if
necessary
Use Playworld Systems, Inc equipment and accept engineered wood fiber safety surfacing
Allow names and logos of KaBOOM! and the Funding Partner to be displayed on permanent playground
signage, measuring 12 % inches wide by 30 %inches tall
Recruit at least 15 community members, residents, and/or parents to participate in the Design Day and
planning process
Recruit 30 volunteers from the community to participate in two preparation days and recruit 75 volunteers
from the community to participate on Build Day
Provide food, water, tools, a dumpster, and music for volunteers on Build Day
Build the playground through supervised volunteer installation
Accept liability for and maintain the playground upon build completion
Obtain and maintain insurance for the playground and Build Day, and add KaBOOM! and the Funding
Partner as additional insureds for the term described in the contract
Indemnify and hold harmless KaBOOM! and the Funding Partner
Follow KaBOOM! protocol on all media and promotions as outlined in the Corporate Sponsorship Policy
Signing this Letter of Intent signifies that all contract signatories have reviewed the draft contract and
are prepared to sign a final contract within three business days of being awarded a KaBOOM!
playground project. Please ensure that the person authorized to sign contracts signs below.
Legal Name of Organization: City of San Bernardino
Name of Organization to Use in Media:_City of San Bernardino Parks, Recreation and Community Services
Department
Name and Title of Signatory (please print): Mark Scott, City Manager_
Authorized Signature: Date: _July 18, 2016
Signatory Mailing Address: _300 North D Street, 6th Floor, San Bernardino, Ca 92410
Contact information for person who should receive KaBOOM! Invoice:
Name: Christina Chartier
Telephone number: (909) 384-5233 ext 2010
Mailing Address: 201 North E Street, Suite 301, San Bernardino, Ca
92410
Email: chartier_ch @sbcity.org
4301 Con org
Fax: (909) 384-5160
2016-153
Letter of Permission
Please include the necessary contact information for the authorized signatory and fax this
completed - - • 202-659-0210
July 18, 2016
Dear KaBOOM!,
For good and valuable consideration, receipt of which is hereby acknowledged, I am writing to KaBOOM!, Inc. on behalf
of the City of San Bernardino to give permission to City of San Bernardino Parks, Recreation and Community Services
Department to build a playground at Seccombe Lake Park located at 160 E. 5th Street, San Bernardino, Ca 92410 using
the following: a supervised volunteer installation, engineered wood fiber safety surfacing (understanding using such
surfacing requires the removal of any asphalt or concrete to create a flat dirt surface base), Playworld Systems Inc.
equipment.
The City of San Bernardino also agrees to maintain the playground at completion of the Build Day.
The City of San Bernardino will allow the names and logos of the Funding Partner and KaBOOM!on permanent
playground signage(a sample can be provided). Playground signage is 12 %inches wide by 30'/4 inches tall and
mounted on poles. The sign will be erected in a mutually agreed upon location and in accordance with the City of San
Bernardino's guidelines regarding corporate signage. If the City of San Bernardino has specific guidelines regarding
corporate signage on its property, please attach those guidelines to this Agreement.
The City of San Bernardino warrants and represents to KaBOOM!, Inc. that it is the sole owner of the land and that
KaBOOM!, Inc. does not need to secure permission from any third party in order to build the playground on the land as
outlined herein.
The City of San Bernardino acknowledges that The City of San Bernardino is the owner of the playground in its
entirety, for the lifetime of the playground, including the equipment and/or safety surfacing purchased by
KaBOOM! and/or its funding partners.
If The City of San Bernardino Parks Recreation and Community Services Department is selected, the City of San
Bernardino's City Manager has permission to sign the Letter of Agreement that outlines the obligations of the
playground project.
Sincerely,
/t 1(k
City of San Bernardino
Mark Scott, City Manager
Phone number: 909-384-5122
Email address: Scott_Ma @sbcity.org
EXHIBIT "B"
2016-153
W ; COMMUNITY PARTNER PLAYGROUND AGREEMENT
00 July 25, 2016
KaB00M!, Inc. (referred to herein as KaB00M!)is pleased that The City of San Bernardino Parks, Recreation&
Community Services Department(referred to herein as the Community Partner) has agreed to collaborate with KaB00M!
and ((FP)) (referred to herein as the Funding Partner)in the construction of a new playground at Seccombe Lake Park 160
East 5th Street,San Bernardino, Ca 92410. This Community Partner Playground Agreement(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 KaB00M!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 KaB00M!:
(a) Fundraising. In support of the Project,the Community Partner must contribute$8,500.00 to KaB00M!,which will
apply the funds directly to the purchase of playground equipment. KaB00M!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) Pro'ect Site.
(i) Ownership. At the time of execution of this Agreement,the Community Partner shall provide KaB00M!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 KaB00M!and/or the Funding Partner.
(ii) Permits. Prior to Build Day,the Community Partner shall obtain or cause to be obtained 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 KaB00M!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 KaB00M!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 KaB00M!,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.
(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 KaB00M!during the Project
EXHIBIT '`C"
2016-153
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 75 adult volunteers from the community to participate in a one-
day installation event for the Project,which is scheduled to occur on «TBD_» 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) Sipnage. 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'/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 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
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
2016-153
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.The Community Partner(or such other appropriate entity to which KaBOOM!consents in writing)shall
obtain and maintain from no less than seven(7)days prior to the Build Day and through the first anniversary of
the Build Day,commercial general liability insurance(providing coverage against liability for bodily injury,death
and property damage that may arise out of or be based upon the use of the playground)with a limit of not less
than one million dollars($1,000,000)per occurrence. The Community Partner shall also obtain and maintain
worker's compensation insurance policies with statutory limits for the state in which the work is performed for
their volunteer employees. Within seven(7)days from execution of this Agreement,the Community Partner
shall provide to KaBOOM!a copy of a certificate from its insurer indicating the nature,scope,duration and
amount of insurance coverage,and naming KaBOOM!and the Funding Partner as additional insureds under
such policy,which insurance shall be primary over any other insurance covering KaBOOM!and the Funding
Partner and which policy shall provide that KaBOOM!and the Funding Partner be given at least thirty(30)days
prior written notice of any change or cancellation of coverage.
Q) 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 gross negligence or
willful misconduct of such indemnified person. This provision shall survive any termination or expiration of this
Agreement.
(k) Data and Reporting Requirements. The Community Partner shall(i)promptly following the confirmation of the
Project,distribute one or more play-related surveys provided by KaBOOM!to its stakeholders,including
pare ntslcaregivers,volunteers,staff and board members,(ii)cause members of its planning committee to
complete a post-build survey provided by KaBOOM!within 2 weeks from the Build Day and a 6-month survey
provided by KaBOOM!within 7 months from the Build Day.
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 materials,and assure that the necessary tools and materials
and other general supplies are available on the Build Day.
(iii) Lead the Build Day activities, including the coordination of Build Day captains and volunteers.
(iv) Make available certain educational and promotional materials related to the Project.
(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.
2016-153
(c) Promotion. KaB00M!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. KaB00M!will place the playground on its list of KaB00M!builds on the KaB00M!website and
KaB00M!will send information to the Community Partner on playground maintenance programming and
enhancements.
(e) Post-Build Day. The Community Partner shall(i)within one week following the Build Day,complete and submit a
Post Build Report, in the form to be made available by KaB00M!,and(ii)shall use its commercially reasonable
efforts to provide,and otherwise shall cooperate in good faith with KaB00M!regarding obtaining,such other
information related to the Project as KaB00M!from time to time may request.
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 KaB00M!,the Community Partner and the Funding
Partner,except where such decision must be made by KaB00M!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, KaB00M!,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 KaB00M!and the Funding
Partner for all such additional expenses related to the rescheduled Build Day.
4. Funding Partner Relations. KaB00M! 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 KaB00M!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, KaB00M! 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 KaB00M!shall refund to the Community Partner
any amounts paid to KaB00M!,less expenses already committed and/or incurred prior to the date of such
termination. If, upon termination as provided herein,the sum due KaB00M!the by Community Partner exceeds the
sum paid to KaB00M!hereunder,the Community Partner shall pay KaB00M!for any such additional 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 KaB00M!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
2016-153
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 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.
2016-153
By executing this Community Partner Playground Agreement 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.
City of San Bernardino KaBOOM!,Inc.
By: u By:
Name: Mark Scott Name: Gerry Megas
Title: City Manager Title: Chief Financial Officer
Address: Address:
300 North D Street,6th Floor 4301 Connecticut Ave. NW,Suite ML-1
San Bernardino,Ca 92401 Washington, DC 20008
T: (909)384-5122 T: (202)464-6180
F: (909)384-5138 F: (202)659-0210
e-mail: scott_ma @sbcity.org e-mail:gmegasakaboom.org
Contact information for the person who should receive KaBOOM! invoices:
Name:Christina Chartier Telephone number: (909)384-5233
Mailing Address: Email: chartier—ch @sbcity.org
201 North"E"Street, Suite 301
San Bernardino,Ca 92401
Fax number:(909)384-5160
1°
•
' COMMUNITY PARTNER PLAYGROUND AGREEMENT
�} August 29, 2016
KaB00M!, Inc. (referred to herein as KaB00M!)is pleased that City of San Bernardino(referred to herein as the
Community Partner) has agreed to collaborate with KaB00M!and Target Enterprise, Inc. (referred to herein as the
Funding Partner) in the construction of a new playground at Seccombe Park, 160 E. 5th Street,San Bernardino, CA 92410
(the"Project"). This Community Partner Playground Agreement(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 KaB00M!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 KaB00M!:
(a) Fundraising. In support of the Project,the Community Partner must contribute$8,500 to KaB00M!,which will
apply the funds directly to the purchase of playground equipment. KaB00M!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 KaB00M!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 KaB00M!and/or the Funding Partner.
(ii) Permits. Prior to Build Day,the Community Partner shall obtain or cause to be obtained 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 KaB00M!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 KaB00M!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 KaB00M!,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.
(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 KaB00M!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 75 adult volunteers from the community to participate in a one-
day installation event for the Project,which is scheduled to occur on TBD 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) Si na e. 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%inches wide by 30'/4 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 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
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.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"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 KaBOOM!and its funding
partners.
(j) Indemnification. The Community Partner shall indemnify,defend 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, investigations, inquiries,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,
maintenance and repair;except to the extent resulting from the gross negligence or willful misconduct of such
indemnified person. This provision shall survive any termination or expiration of this Agreement.
(k) Data and Reporting Requirements. The Community Partner shall(i)promptly following the confirmation of the
Project,distribute one or more play-related surveys provided by KaBOOM!to its stakeholders, including
parents/caregivers,volunteers,staff and board members, (ii)cause members of its planning committee to
complete a post-build survey provided by KaBOOM!within 2 weeks from the Build Day and a 6-month survey
provided by KaBOOM!within 7 months from the Build Day.
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 materials, and assure that the necessary tools and materials
and other general supplies are available on the Build Day.
(iii) Lead the Build Day activities, including the coordination of Build Day captains and volunteers.
(iv) Make available certain educational and promotional materials related to the Project.
(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.
(e) Post-Build Da v. The Community Partner shall(i)within one week following the Build Day,complete and submit a
Post Build Report, in the form to be made available by KaBOOM1,and (ii)shall use its commercially reasonable
efforts to provide,and otherwise shall cooperate in good faith with KaBOOM! regarding obtaining,such other
information related to the Project as KaBOOM!from time to time may request.
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
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 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 KaBOOM!that all information provided by it to KaBOOM!,
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 stated,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.
By executing this Community Partner Playground Agreement 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.
City of San Bernardino KaBOOM!,Inc.
By: X&J07 By:
Name: Mark Scott Name: Gerry Megas
Title: City Manager Title: Chief Financial Officer
Address:
Address: 4301 Connecticut Ave. NW
300 North D Street Suite ML-1
San Bernadino, CA 92401 Washington, DC 20008
T: (909)384-5122 T: (202)464-6180
e-mail:scott_ma @sbcity.org F: (202)659-0210
e-mail:gmeaas0kaboom org
Contact information for the person who should receive KaBOOM! invoices:
Name: Christina Chartier Telephone number: (909)384-5233 ext. 2010
Mailing Address: Email: chartier_ch @sbcity.org
201 North E Street
Suite 301
San Bernardino,CA 92410
Fax: (909)384-5160
By executing this Community Partner Playground Agreement where indicated below,each of KaBOOMI 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 KaBOOMI,Inc.
By: /&-/ RV,
Name:Mark Scott Name rry
Title:City Manager Title: Chief Fin I r
Address: Address:
300 North 0 Street 4301 Connecticut Ave,NW
San Bernadino,CA 92401 Suite ML-1
T: (909)384-5122 Washington,DC 20008
9-8180
e-mail:scotLma@sbcity.org T:{202)46
F:(202)659-0210
e-mail:gmgga9 kaboom ore
Contact Information for the person who should receive KaBOOMI invoices:
Name:Christina Chartler Telephone number:(909)384.5233 ext.2010
Mailing Address: Email: char ier ch @sbcity,org
201 North E Street
Suite 301
San Bernardino,CA 92410
Fax. (909)384-5160