HomeMy WebLinkAbout19-Parks and Rec ORIGINAL,
CITY OF SAN BERNARDINO —REQUEST FOR COUNCIL ACTION
From:Kevin Hawkins, Director Subject: Resolution authorizing the City
Manager to execute a Letter of
Dept: Parks, Recreation & Community Agreement with KaBOOM! and the
Services Dept. Boys and Girls Club of San
Bernardino for a community-build
Date: May 30, 2008 playground to be constructed at
Delmann Heights Park.
M/CC Meeting Date: June 16, 2008
Synopsis of Previous Council Action:
April 29, 2008 Grants Ad-Hoc Committee considered KaBOOM! grant opportunity.
May 19, 2008 Council approved Template Letter of Agreement with KaBOOM! in
concept, and authorized the City Manager to execute a KaBOOM! Outreach
Statement for a proposed playground build at Delmann Heights Park.
Recommended motion:
Adopt Resolution. )
Signature
Contact person:Jan Wages Phone: 384-5233
Supporting data attached: Yes Ward: ,2r (o
FUNDING REQUIREMENTS:
Amount: $7,500 from fundraising
activities : $4,600 from account no.
629-453-5161
Value of Equipment donated by funding partner - $40,000
Source: (Acct. No.)
(Acct. Description
Finance:
Council Notes:
W6._50 2 o v8-- z yq
Agenda Item No.
W IW W
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect•
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing
the City Manager to execute a Letter of Agreement with KaBOOM! and the Boys and Girls
Club of San Bernardino for a community-build playground to be constructed at Delmann
Heights Park.
Background:
At their meeting on May 19, 2008, Council approved the template Letter of Agreement
with KaBOOM! in concept, and the City Manager was authorized to execute a KaBOOM!
Outreach Statement. Council was apprised at that time that in the event that this project
was selected, the item would go back to Council for authorization to execute the
KaBOOM! Letter of Agreement.
On Wednesday, May 28, 2008, the Parks, Recreation and Community Services Department
and the Boys and Girls Club of San Bernardino were notified that the community-build
playground project at Delmann Heights Park has been selected for construction. Design
Day will take place on Tuesday, June 10, 2008, and Build Day is slated for Wednesday,
July 30, 2008. The playground will have a Sports theme, in commemoration of the 2008
Summer Olympics. The Funding Partner for the project is Albertson's/SUPERVALU, Inc.
The attached Letter of Agreement is between KaBOOM!, the City of San Bernardino, and
the Boys and Girls Club of San Bernardino. The Agreement has been signed by the
President of the Boys and Girls Club Board.
Financial Impact:
The KaBOOM! Funding Partner, SUPERVALU, will provide funding for all but the $7,500
to be fundraised by the City and the Boys and Girls Club of San Bernardino, the
Community Partners. Project cost is estimated at $40,000 for the playspace equipment to
be installed by volunteers on Build Day. The $4,600 special events policy, which will
provide approximately $1 million in liability coverage for Build Day, will be funded from
account no. 629-453-5161.
Recommendation:
Adopt Resolution.
COPY
1 RESOLUTION NO.
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
3 CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO
4 EXECUTE A LETTER OF AGREEMENT WITH KABOOM! AND THE BOYS
AND GIRLS CLUB OF SAN BERNARDINO FOR A COMMUNITY-BUILD
5 PLAYGROUND TO BE CONSTRUCTED AT DELMANN HEIGHTS PARK.
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
7 CITY OF SAN BERNARDINO AS FOLLOWS:
8
SECTION 1. That the City Manager is authorized to execute a Letter of
9 Agreement with KaBOOM! and the Boys and Girls Club of San Bernardino for a
10 community-build playground to be constructed at Delmann Heights Park, a copy of which
11 is attached hereto, marked Exhibit "A" and incorporated herein as fully as though set forth
12 at length; and
13 SECTION 2. That the authorization to execute said Letter of Agreement is void
14 and of no effect if it is not executed within ninety days of the date that this Resolution is
15 adopted.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO
2 EXECUTE A LETTER OF AGREEMENT WITH KABOOM! AND THE BOYS
AND GIRLS CLUB OF SAN BERNARDINO FOR A COMMUNITY-BUILD
3 PLAYGROUND TO BE CONSTRUCTED AT DELMANN HEIGHTS PARK.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
5
Mayor and Common Council of the City of San Bernardino at a meeting thereof,
6
7 held on the day of , 2008, by the following vote, to wit:
8 Council Members: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 BAXTER
11 BRINKER
12
DERRY
13
KELLEY
14
15 JOHNSON
16 McCAMMACK
17
18 Rachel Clark, City Clerk
19
The foregoing resolution is hereby approved this day of ,
20 2008.
21
22
Patrick J. Morris, Mayor
23 City of San Bernardino
24 Approved as to Form:
25
26 James F. Penman, City Attorney
27
28 ` .1' aee LS
61 /-,� J� .
C-59 0215 :ax 202.659 0210
4455 Go�i�,ect:c�t Ave. JPh', Su`.=e rs 00 VJ.LS.iir:gtor.. L;C 200
03 tel 202.,
THIS KaB00MI COMMUNITY PARTNER AGREEMENT is made this 29th day of May,2008 by
and between KaB00M!and The City of San Bernardino and the Boys and Girls Club of San Bernardino.
RECITALS
WHEREAS KaB00M!is a non-profit organization chartered in the District of Columbia and
organized as a 501(c)3 by determination of the Internal Revenue Service;
WHEREAS KaB00M!is an organization that develops,manages and coordinates a community-
building playground for its Community and Funding Partners,culminating in a one-day installation event
known as a"Build Day";
WHEREAS The City of San Bernardino and the Boys and Girls Club of San Bernardino is entering
into a written agreement with KaB00M!for services to plan, design and construct a community-build
playground ("Program");
WHEREAS KaB00M!has received charitable support from SUPERVALU Inc. ("Funding Partner")
for this Program and has entered into a separate agreement with the Funding Partner,the result of which
are financial and human resources for this Program.
NOW THEREFORE, in consideration of the mutual covenants and conditions hereinafter
expressed,and other good and valuable consideration,the receipt and sufficiency of which are hereby
acknowledged,the parties hereto covenant and agree as follows:
AGREEMENTS
1. OBLIGATIONS OF The City of San Bernardino and the Boys and Girls Club of San Bernardino
1.1. The City of San Bernardino and the Boys and Girls Club of San Bernardino agrees to be the
Community Partner organization("Community Partner")for the SUPERVALU Inc. playground
project at The Boys and Girls Club of San Bernardino,2969 N. Flores Street, San Bernardino, CA
92407.
1.2. The City of San Bernardino and the Boys and Girls Club of San Bernardino agrees to be
responsive to the discreet timeline developed for the Program, inclusive of providing approval of,
action toward or direction to,specific responsibilities and initiatives of KaB00M!on behalf of this
Program.
1.3. As a Community Partner for a KaB00M!community-build playground project,The City of San
Bernardino and the Boys and Girls Club of San Bernardino will work with KaB00M!,SUPERVALU
Inc.,and community residents to design, plan and build a community playground. All parties will
work closely together to ensure a successful, productive,and fun event.
1.3.1. The Community Partner agrees to host a KaB00M!-facilitated Design Day with at least 20-
30 adults and 20-30 children. The adults will remain engaged in planning activities
throughout the Design Day to Build Day planning process.
1.3.2. The Community Partner agrees to recruit and secure at least 12-15 adult volunteers for
preparation activities two to three days prior to Build Day playground installation.
1.3.3. The Community Partner agrees to recruit and secure at least 75 adult volunteers for the
, \ Build Day playground installation.
kaboom.org
The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 2
May 29, 2008
1.3.4. The Community Partner agrees to be responsible for preparing the site for the installation of
the new playground, at least two weeks before Build Day,which includes but is not limited to
removing existing playground equipment,footers and safety surfacing,grading the land,
1 removing fencing and performing soil tests.
1.3.5. The Community Partner agrees to provide certain provisions for use by volunteers working
on the construction project,including but not limited to food(breakfast snacks, lunch and
mid-day snacks),water and restroom facilities.
1.4. In support of this project,The City of San Bernardino and the Boys and Girls Club of San j
Bernardino is responsible for contributing$7,500 to the playground project.
1.4.1. All funds will be applied directly toward purchasing playground equipment.
1.4.2. Upon receipt of this signed agreement,KaB00M!will invoice The City of San Bernardino
and the Boys and Girls Club of San Bernardino for the full amount of this contribution,and it
will be due at least 30 days before the Build Day on July 301,11,2008.
1.4.3. If The City of San Bernardino and the Boys and Girls Club of San Bernardino does not
make payment as outlined in Section 1.4.2, KaB00M!reserves the right,without waiving i
any other rights and remedies,to cancel the build.
1.4.3.1. In the event of the Build Day's cancellation due to non-payment by the Community
Partner as outlined in Section 1.4.2, at KaB00M!'s written request,without waiving
any other rights and remedies,The City of San Bernardino and the Boys and Girls ,
Club of San Bernardino shall be deemed liable for damages to KaB00M!and
Funding Partner for any un-cancelable contractual commitments entered into prior
to cancellation,any equipment costs,labor and materials, and any additional
expenses related to the Program,such as airfare and general supplies.
1.4.4. The Community Partner has the right to back-up documentation detailing the use of its
contribution to the project. Upon request,KaB00M!will provide back-up documentation for
The City of San Bernardino and the Boys and Girls Club of San Bernardino within 120 days
after the Build Day.
1.5. The Build Day must occur in calendar year 2008 on Wednesday,July 3001.
1.5.1. The Build Day shall not be postponed(defined as delayed,held over or rescheduled)under
any circumstances other than for conditions that jeopardize the safety of the volunteers,or i
for unsafe weather conditions that threaten the structural integrity of the playground. I
1.5.1.1. The decision to postpone a Build Day shall be reached through discussion,
collaboration and majority agreement by KaB00M!,the Community Partner and the
Funding Partner,each represented by a person authorized by each party.
1.5.1.2. The sole exception to mutual decision-making and majority agreement shall be
when the decision must be made immediately and solely by KaB00M!on the
construction site in absence of authorized representatives of the Community
Partner and the Funding Partner being available.
1.5.1.3. The authorized representatives are defined as those individuals who have signed
this Agreement, and the Agreement between KaB00M!and the Funding Partner,
or their designates.
1.5.2. In the event that the Build Date is cancelled or changed solely by The City of San
Bernardino and the Boys and Girls Club of San Bernardino,The City of San Bernardino and
the Boys and Girls Club of San Bernardino shall be deemed liable for damages to
KaB00M!and Funding Partner for any equipment costs,labor and materials and any f.
additional expenses related to the Program,such as airfare and general supplies.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 3
May 29, 2008
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1.5.3. In the event of a Build Day postponement,KaBOOM!shall collaborate with the Community
Partner and the Funding Partner to issue a Memo of Understanding(MOU)that outlines a j
plan for rescheduling the Build Day.
1.5.3.1. The MOU shall outline any additional expenses related to the rescheduled Build
Day,and the party or parties responsible for covering the additional expenses.
These expenses may include, but are not limited to,equipment storage,security,
equipment shipment,and KaBOOM!travel and hotel expenses.
1.5.3.2. The MOU shall identify the next-earliest possible date for the Build Day, based on
the availability of open dates on the KaBOOM!program calendar,the availability of
the Community Partner to participate in the project,and the availability of the
Funding Partner to participate in the project.
1.6. The City of San Bernardino and the Boys and Girls Club of San Bernardino shall attach
documentation to this Agreement showing proof of land ownership evidenced by a deed granting
title of the property to The City of San Bernardino and the Boys and Girls Club of San Bernardino i
to the property,or a letter from the property owner showing approval for the installation of the
playground.Working with the support of the property owner(if owner is a separate party),The City
of San Bernardino and the Boys and Girls Club of San Bernardino will maintain the property
before and after the build to ensure a safe and attractive play area.
1.7. The City of San Bernardino and the Boys and Girls Club of San Bernardino shall collaborate with
KaBOOM!during the planning of this Project to develop a maintenance program for the i
playground that will be implemented by The City of San Bernardino and the Boys and Girls Club of
San Bernardino upon completion of the playground installation.
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1.8. The City of San Bernardino and the Boys and Girls Club of San Bernardino will obtain and I
maintain Commercial General Liability insurance(providing coverage against liability for bodily
injury,death and property damage which may rise out of or be based upon the use of the
playground)and Worker's Compensation insurance policies,in amounts not less than one million
dollars($1,000,000.00)from the date of this agreement and for a minimum of one(1)year
thereafter. KaBOOM!and Funding Partner shall be named as additional insureds for the Build
Day and a year thereafter upon such policy. The insurance shall be primary over any other
insurance covering KaBOOM!and Funding Partner. Such policy must provide that KaBOOM!and I
Funding Partner be given at least thirty(30)days prior written notice of any change or cancellation
of coverage. Community Partner will promptly provide a copy of the certificate from its insurer
indicating the amount of insurance coverage,the nature of such coverage and the expiration date
of each applicable policy.
1.9. The City of San Bernardino and the Boys and Girls Club of San Bernardino will obtain all
necessary and appropriate permits and licenses regarding the installation and possession and use
of a playground prior to Build Day in compliance with local and state laws,regulations and
guidelines.
1.10. The City of San Bernardino and the Boys and Girls Club of San Bernardino will work with local
authorities and/or private firms as appropriate to ensure the safety and security of human and i
equipment resources(playground equipment,playground volunteers)from the point of material
delivery,during the period(s)when site preparation occurs on the playground site,and until the j
conclusion of the Build Day. j
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X1,11. The City of San Bernardino and the Boys and Girls Club of San Bernardino is responsible for
v Jensuring the playground site is safe for volunteers and children.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 4
May 29, 2008
1.11.1. The City of San Bernardino and the Boys and Girls Club of San Bernardino is responsible
for conducting up to two utility site checks as reasonably requested by KaBOOM!with the
appropriate utility companies with the first test being completed within two weeks of Design
Day.Documentation of the utility checks must be provided to the KaBOOM!Project j
Manager upon completion.
1.11.2. The City of San Bernardino and the Boys and Girls Club of San Bernardino is responsible
for conducting up to two soil site tests as reasonably requested by KaBOOM!with the first
test being completed within two weeks of Design Day.Documentation of the soil checks
must be provided to the KaBOOM!Project Manager upon completion. The City of San
Bernardino and the Boys and Girls Club of San Bernardino is responsible for undertaking
any necessary risk mitigation should the soil be deemed unsafe for children or volunteers.
1.12. The City of San Bernardino and the Boys and Girls Club of San Bernardino will agree to accept
and maintain engineered wood fiber as playground safety surfacing,meeting standards
established by CPSC guidelines,for the lifetime of the playground.
1.13. The City of San Bernardino and the Boys and Girls Club of San Bernardino is solely responsible
for any additional costs beyond the proposed playground project budget. KaBOOM!is not
responsible for paying any vendors for any prior site preparation,upgrades or improvements not
agreed upon with KaBOOM!. If Community Partner decides to purchase additional equipment or j
materials to supplement materials secured by KaBOOM!,then the Community Partner is solely
responsible for paying for the materials and all other liabilities related to such materials. Neither I
KaBOOM! nor its Funding Partner(s)shall be liable for payment. Community Partner will hold
KaBOOM!and the Funding Partner harmless of any payments or liability with respect to the
additional items ordered.
1.14. The City of San Bernardino and the Boys and Girls Club of San Bernardino will seek prior
approval from KaBOOM!and/or SUPERVALU Inc.for any written and/or printed materials that
reference the Program and/or contain the logos of KaBOOM!or SUPERVALU Inc.,including but I
not limited to press releases,fliers and promotional materials. The City of San Bernardino and
the Boys and Girls Club of San Bemardino will work in collaboration with KaBOOM!and/or
SUPERVALU Inc.to secure media coverage. KaBOOM!will provide mutual opportunity for the
Community Partner to review and approve materials prepared by KaBOOM!related to this Project
(such approval not to be unreasonably withheld).
1.15. The City of San Bernardino and the Boys and Girls Club of San Bernardino will allow the names
and logos of SUPERVALU Inc.and KaBOOM!on permanent playground signage.Playground
signage is 12 inches wide and 30 inches tall and mounted on poles. The sign will be erected in a j
mutually agreed upon location and in accordance with the Community Partners guidelines
regarding corporate signage. If the Community Partner has specific guidelines regarding
corporate signage on its property, please attach those guidelines to this Agreement.
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1.16. The City of San Bernardino and the Boys and Girls Club of San Bernardino understands that the
playground will be added to the roster of KaBOOM!Build Guild and, as such,will receive I
subsequent information from KaBOOM!on playground maintenance, programming and
enhancements. I_
2._ OBLIGATIONS OF KaBOOMI !
2.1. KaBOOM!will provide the Community Partner with technical and organizational leadership and
guidance for the playground project.
kaboom.org
The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 5
May 29, 2008
2.1.1. Facilitate playground design and work with vendors to procure equipment and materials in a
timely fashion,the possible exception being the installation of safety surfacing other than I
engineered wood fiber.
2.1.2. Manage construction logistics for the project,coordinate playground site preparation
activities with the Community Partner,inventory equipment and materials,and assure that
the necessary tools and materials are available to construct the playground.
2.1.3. Facilitate regular planning meetings with the Community Partner and the playground
planning committee.
2.1.4. Lead the Build Day activities, including the coordination of Build Day captains and
volunteers.
2.1.5. Provide educational and promotional materials to support the playground project, including
the KaB00M!Tool Kit of publications(4-book set), KaB00M!online Playground Planner, I
nametags and other general supplies.
2.1.6. Provide for and coordinate the participation of the Funding Partner, SUPERVALU Inc.,
which has committed to provide KaB00M!with financial,human and/or in-kind resources to
bring to fruition the playground project with The City of San Bernardino and the Boys and
Girls Club of San Bernardino.
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2.2. KaB00M!(in collaboration with The City of San Bernardino and the Boys and Girls Club of San
Bernardino),will provide or secure a Certified Playground Safety Inspector(CPSI)to review the
playground structure to ensure that it is safe and built to all appropriate standards and guidelines.
The City of San Bernardino and the Boys and Girls Club of San Bernardino acknowledges that
neither KaB00M!or Funding Partner nor their respective officers,directors,employees,or agents
have made or are in any way responsible or liable for action, inaction or negligence of the CPSI
and The City of San Bernardino and the Boys and Girls Club of San Bernardino agrees to look
solely to the CPSI for any such liability,costs or expenses which arise out of the CPSI's action,
inaction or negligence. j
2.2.1. The CPSI review will occur 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.
2.2.2. In accordance with Section 4,The City of San Bernardino and the Boys and Girls Club of i
San Bernardino shall be solely responsible for any injury,property damage,or death which
occurs in connection with the playground after review of the playground is completed.
2.2.3. In accordance with Section 4, in the event that the Build Day is delayed or not completed
on the scheduled day due to failure of The City of San Bernardino and the Boys and Girls
Club of San Bernardino to meet the terms of this Agreement,then The City of San
Bernardino and the Boys and Girls Club of San Bernardino will be responsible for securing
a CPSI to review the playground. i
3. FUNDING PARTNER RELATIONS
3.1. KaB00M!has a separate agreement with a KaB00M!Funding Partner, SUPERVALU Inc.,
whose contributions to KaB00M!are helping to make this Project possible. i
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3.2. The Community Partner shall not solicit sponsors or donors whose products or services directly
compete with the products or services of the Funding Partner,
3.2.1. For the purposes of this Agreement,sponsors are defined as individuals, businesses or
philanthropic organizations that contribute funding or in-kind gifts to this Project in exchange
for certain rights to promote their affiliation with this Project to the general public,including i
but not limited to public name recognition via this playground project's signs,T-shirts,media
N., materials and public-address systems. Conversely,donors are individuals or groups whose
Yr .f gifts to this Project require personal acknowledgement only,such as thank-you letters.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 6
May 29, 2008
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3.3. In the event the Community Partner solicits other sponsors or donors,then those sponsors and
donors shall not compete with the Funding Partner for signage and sponsorship recognition.The
Funding Partner shall receive first placement on any recognition materials developed for the
Project,including playground signage, banners,T-shirts,press releases, web-site and newsletter
stories,and flyers.
3.4. In the event of a conflict between the Funding Partner and other sponsors and donors,the
Funding Partner, Community Partner and KaBOOM!shall consider recognition on a case-by-case
basis.
4. OWNERSHIP AND LIABILITY
4.1. The Community Partner is the owner of the playground in its entirety,for the lifetime of the It
playground, including the equipment and/or safety surfacing purchased by KaBOOM!and/or its !
Funding Partner(s).
4.2. It is agreed that The City of San Bernardino and the Boys and Girls Club of San Bernardino will
indemnify and hold harmless KaBOOM!and/or the Funding Partner and their respective officers,
directors,employees,or agents from any and all claims,costs,expenses(including attorney's
fees and disbursements)or actions associated with this playground project from any claim or
action,including but not limited to claims and actions for personal injury,death,or property
damages resulting from the use of any playground property and equipment,except to the extent
resulting from any willful misconduct of KaBOOM!and/or the KaBOOM!Funding Partner.
4.3. A Certified Playground Safety Inspector will review the playground structure upon completion at
the end of the scheduled Build Day. The manufacturer's representativerinstaller will certify that I
the playground was installed to manufacturer's specifications at the end of the Build Day. j
4.3.1. Notwithstanding the foregoing,The City of San Bernardino and the Boys and Girls Club of i
San Bernardino shall be solely responsible for the playground and its equipment upon
certification of the playground.
4.3.2. The City of San Bernardino and the Boys and Girls Club of San Bernardino shall be
responsible for securing safety measures of the playground to prevent injury,death,or I
property damages in the unlikely event that the playground is not completely constructed,
and all equipment fully installed,at the conclusion of the Build Day and once KaBOOM!
and/or the CPS[leave the playground site.
4.3.3. In the unlikely event or planned circumstances that the playground is not completely
constructed and all equipment fully installed at the conclusion of the Build Day,The City of
San Bernardino and the Boys and Girls Club of San Bernardino shall be responsible for
completing the installation of the playground in accordance with the specified guidelines
with the assistance of the CPSI and/or the manufacturer's representatives,facilitated by j
KaBOOM!. The City of San Bernardino and the Boys and Girls Club of San Bernardino
shall be solely responsible for any injuries,death,or property damage that arises out of The j
City of San Bernardino and the Boys and Girls Club of San Bernardino's completion of such
installation.
4.4. Maintenance of the playground facility and supervision of its use is the sole responsibility of The
City of San Bernardino and the Boys and Girls Club of San Bernardino. Upon request,the
playground-equipment and safety-surfacing manufacturers will provide guidance and materials,
toward a maintenance plan for the playground.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 7
June 5, 2008
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4.4.1. The Community Partner will receive from Playworld Systems Inc.,the provider of its
playground equipment,or via its KaB00M!project manager,a play equipment
maintenance kit from Playworld Systems Inc.
5. WARRANTY
5.1. The playground equipment is covered under warranty by the selected playground equipment
company in accordance with its warranty policy. Upon request,a copy of the warranty for the
playground-equipment and the safety-surfacing will be provided by the manufacturer(s)to the
Community Partner. While playground equipment and/or material manufacturers may provide a
warranty with respect to their product,The City of San Bernardino and the Boys and Girls Club of
San Bernardino acknowledges that neither KaB00M!or Funding Partner nor their respective
officers,directors,employees or agents, have made nor are in any manner responsible or liable
for any warranty,representation,or guarantee,express or implied,in fact or in law, relative to any
equipment or material, including but not limited to its quality, mechanical condition or fitness for a
particular purpose. Any warranties and/or guarantees on any equipment or material are subject to
the respective manufacturer's terms therefore,and The City of San Bernardino and the Boys and
Girls Club of San Bernardino agrees to look solely to such manufacturers for any such warranty
and/or guarantee.
6. GENERAL
6.1. Notices. Any notices required or permitted to be given hereunder shall be sent by certified or
registered United States mail, postage properly prepaid,or by personal delivery addressed as
follows:
To: Helen Zimmerman, Manager Contracts&Risk Management
KaB00M!
4455 Connecticut Ave,, NW, Suite 8100
Washington,DC 20008 USA
202-464-6075
Copy To: Shannon Wilk,Client Services Coordinator
(use same KaB00M!address above)
202-464-6168
To Corporation: Fred Wilson, City Manager
City of San Bernardino
300 No.D Street
San Bernardino,CA 92418
909-384-5122
Roberto Martinez
The Boys and Girls Club of San Bernardino
2969 N. Flores Street
San Bernardino, CA 92407
909-384-5417
6.2. Counterparts. This Agreement may be executed by the parties in one or more counterparts which
shall,in the aggregate,be signed by all parties and each counterpart shall be deemed an original
instrument as against any party who has signed it.
aygroufi♦ kaboom-org
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 8
June 5, 2008
6.3. Governing Law. The laws of the State of Illinois,without reference to its choice of law provisions,
shall govern the interpretation and/or legal effect hereunder and shall have jurisdiction over any
dispute(including arbitration)arising out of or under the terms of this Agreement.
6.4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective
affiliates,successor, and personal representatives of the parties to this Agreement,except to the
extent of any contrary provision in this Agreement.
6.5. Severability, This Agreement shall be construed to be in accordance with federal and state
statutes. If any provision of this Agreement,or any portion thereof,is found to be invalid, illegal,or
unenforceable, under any applicable statute or rule of law,then such provision or portion thereof
shall be deemed omitted, and the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
6.6. Complete Agreement. This Agreement,when executed by the duly authorized representatives of
each party shall be the entire agreement between the parties as to the subject matter stated
herein and supersedes and replaces any and all previous agreements and all amendments
thereto.
6.7. Assignment. This Agreement may not be assigned,delegated or transferred by either party
without the prior written consent of the other party hereto.
6.8. Force Majeure. If either of the parties hereto is delayed or prevented from fulfilling any of its
obligations under this Agreement by Force Majeure,said party shall not be liable under this
i Agreement for said delay or failure. "Force Majeure"means any cause beyond the reasonable
control of a party, including, but not limited to acts of God,acts of omission of civil or military
authorities of a state or nation,fire,strike,flood, riot,act of terrorism,war,delay of transportation,
or inability due to the aforementioned causes to obtain necessary labor, materials or facilities.
Either party, however,may terminate this Agreement if the other is unable to perform any
obligation under the Agreement for a period longer than ten(10)calendar days due to such a
force majeure event. In the event of any such termination, KaB00M!shall refund to the
Community Partner any monies paid to KaB00M!, less expenses already committed to and/or
incurred prior to the date of termination. If, upon termination as provided herein,the sum due
KaB00M! by Community Partner,exceeds the sum paid to KaB00M!hereunder,Community
Partner agrees to pay KaB00M!for any such additional sum due upon presentation of
appropriate documentation within 30 days of invoice.
6.9. Waiver. A waiver by either party of a breach or failure to perform shall not constitute a waiver of
any subsequent breach or failure.
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The City of San Bernardino and the Boys and Gins Club of San Bernardino Letter of Agreement 9
May 29, 2008
r IN WITNESS WHEREOF,this Agreement has been executed by the parties as of the day and year first
above written.
By signing this Agreement,The City of San Bernardino and the Boys and Girls Club of San
Bernardino fully acknowledges its consent and understanding of and commitment to the terms and
guidelines set forth above. Please sign both original versions of this letter and return them to KaBOOM!.
We will then sign the originals,and mail one original and one copy back to you for your files.
KaBOOM!and SUPERVALU Inc.look forward to working with The City of San Bemardino and the Boys and
Girls Club of San Bernardino to make this playground a reality.
Date Terms agreed to: Date Terms agreed to:
B 1)A4V.'0' By:
Dolore Armstead Y Gerry Megas
President of the Board Chief Financial Officer
Authorized Signature for The Boys and Girls Club of San Phone number:202-464-6075.
Bernardino Fax number:202-659-0210
Phone Number: 909-214-6274 Email address:hzimmerman @kaboom.org
Fax Number:909-3845160
Email Address:darmst8273 @aol.com
The Boys and Girls Club of San Bernardino KaBOOM!
2969 N.Flores Street 4455 Connecticut Ave, NW Suite B100
San Bernardino, CA 92407 Washington,DC 20008
Date Terms agreed to:
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By.
Fred Wilson
City Manager
Authorized Signature for The City of San Bernardino
Email Address:Wilson_fr @sbcity.org
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The City of San Bernardino I
300 No. D Street
San Bernardino, CA 92418
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Contact information for the person who should receive KaBOOM!invoices:
Name: Jan Wages Telephone Number:909-384-5233
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Mailing Address: Fax Number:909-384-5160
201A North E Street,Suite 103
San Bernardino, CA 92401 Email Address: wages,ja @ci.san-bemardino.ca.us
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kaboom.org
The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 10
May 29, 2008
Attachments: Welcome Packet
Playworld Systems Inc.Playground Equipment Warranty(sample)
Copy: KaB00M!Project Archives
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659 0215 202.659 0210
Suite b 00 V aTStuT:gt�r.. LiC 2u00B • tel 202...
.x$55 l U:lJiBCi: it-"e. t�h.
THIS KaBOOMI COMMUNITY PARTNER AGREEMENT is made this 29t,day of May,2008 by
and between KaBOOM!and The City of San Bernardino and the Boys and Girls Club of San Bernardino.
RECITALS
WHEREAS KaBOOM!is a non-profit organization chartered in the District of Columbia and
organized as a 501(c)3 by determination of the Internal Revenue Service;
WHEREAS KaBOOM!is an organization that develops,manages and coordinates a community-
building playground for its Community and Funding Partners,culminating in a one-day installation event
known as a"Build Day";
WHEREAS The City of San Bernardino and the Boys and Girls Club of San Bernardino is entering
into a written agreement with KaBOOM!for services to plan, design and construct a community-build
playground("Program");
WHEREAS KaBOOM!has received charitable support from SUPERVALU Inc. ("Funding Partners]
for this Program and has entered into a separate agreement with the Funding Partner,the result of which
are financial and human resources for this Program.
NOW THEREFORE, in consideration of the mutual covenants and conditions hereinafter
expressed,and other good and valuable consideration,the receipt and sufficiency of which are hereby
acknowledged,the parties hereto covenant and agree as follows:
AGREEMENTS
1. OBLIGATIONS OF The City of San Bernardino and the Boys and Girls Club of San Bernardino
1.1. The City of San Bernardino and the Boys and Girls Club of San Bernardino agrees to be the
Community Partner organization("Community Partner")for the SUPERVALU Inc.playground
project at The Boys and Girls Club of San Bernardino,2969 N. Flores Street,San Bernardino, CA
92407.
1.2. The City of San Bernardino and the Boys and Girls Club of San Bernardino agrees to be
responsive to the discreet timeline developed for the Program, inclusive of providing approval of,
action toward or direction to,specific responsibilities and initiatives of KaBOOM!on behalf of this
Program.
1.3. As a Community Partner for a KaBOOM!community-build playground project,The City of San
Bernardino and the Boys and Girls Club of San Bernardino will work with KaBOOM!,SUPERVALU
Inc.,and community residents to design, plan and build a community playground. All parties will
work closely together to ensure a successful, productive,and fun event.
1.3.1. The Community Partner agrees to host a KaBOOM!-facilitated Design Day with at least 20-
30 adults and 20-30 children. The adults will remain engaged in planning activities
throughout the Design Day to Build Day planning process.
1.3.2. The Community Partner agrees to recruit and secure at least 12-15 adult volunteers for
preparation activities two to three days prior to Build Day playground installation.
1.3.3. The Community Partner agrees to recruit and secure at least 75 adult volunteers for the
Build Day playground installation.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 2
May 29, 2008
1.3.4. The Community Partner agrees to be responsible for preparing the site for the installation of
the new playground, at least two weeks before Build Day,which includes but is not limited to
removing existing playground equipment,footers and safety surfacing,grading the land,
removing fencing and performing soil tests.
1.3.5. The Community Partner agrees to provide certain provisions for use by volunteers working
on the construction project,including but not limited to food(breakfast snacks, lunch and
midday snacks),water and restroom facilities.
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1.4. In support of this project,The City of San Bernardino and the Boys and Girls Club of San
Bernardino is responsible for contributing$7,500 to the playground project.
1.4.1. All funds will be applied directly toward purchasing playground equipment.
1.4.2. Upon receipt of this signed agreement,KaB00M!will invoice The City of San Bernardino
and the Boys and Girls Club of San Bernardino for the full amount of this contribution,and it
will be due at least 30 days before the Build Day on July 30111,2008.
1.4.3. If The City of San Bernardino and the Boys and Girls Club of San Bernardino does not
make payment as outlined in Section 1.4.2, KaB00M! reserves the right,without waiving
any other rights and remedies,to cancel the build.
1.4.3.1. In the event of the Build Day's cancellation due to non-payment by the Community
Partner as outlined in Section 1.4.2, at KaB00M!'s written request,without waiving
any other rights and remedies,The City of San Bernardino and the Boys and Girls
Club of San Bernardino shall be deemed liable for damages to KaB00M!and
Funding Partner for any un-cancelable contractual commitments entered into prior I
to cancellation,any equipment costs,labor and materials,and any additional
expenses related to the Program,such as airfare and general supplies.
1.4.4. The Community Partner has the right to back-up documentation detailing the use of its
contribution to the project. Upon request, KaB00M!will provide back-up documentation for
The City of San Bernardino and the Boys and Girls Club of San Bernardino within 120 days
after the Build Day.
1.5. The Build Day must occur in calendar year 2008 on Wednesday,July 30t 1.
1.5.1. The Build Day shall not be postponed(defined as delayed, held over or rescheduled)under
any circumstances other than for conditions that jeopardize the safety of the volunteers,or
for unsafe weather conditions that threaten the structural integrity of the playground.
1.5.1.1. The decision to postpone a Build Day shall be reached through discussion, j
collaboration and majority agreement by KaB00M!,the Community Partner and the
Funding Partner,each represented by a person authorized by each party.
1.5.1.2. The sole exception to mutual decision-making and majority agreement shall be
when the decision must be made immediately and solely by KaB00M!on the
construction site in absence of authorized representatives of the Community
Partner and the Funding Partner being available.
1.5.1.3. The authorized representatives are defined as those individuals who have signed i
this Agreement,and the Agreement between KaB00M!and the Funding Partner,
or their designates.
1.5.2. In the event that the Build Date is cancelled or changed solely by The City of San
Bernardino and the Boys and Girls Club of San Bernardino,The City of San Bernardino and
the Boys and Girls Club of San Bernardino shall be deemed liable for damages to
KaB00M!and Funding Partner for any equipment costs,labor and materials and any f.
additional expenses related to the Program,such as airfare and general supplies.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 3
May 29, 2008
1.5.3. In the event of a Build Day postponement,KaBOOM!shall collaborate with the Community
Partner and the Funding Partner to issue a Memo of Understanding(MOU)that outlines a !
plan for rescheduling the Build Day.
1.5.3.1. The MOU shall outline any additional expenses related to the rescheduled Build I
Day,and the parry or parties responsible for covering the additional expenses.
These expenses may include, but are not limited to,equipment storage,security,
equipment shipment,and KaBOOM!travel and hotel expenses.
1.5.3.2. The MOU shall identify the next-earliest possible date for the Build Day,based on
the availability of open dates on the KaBOOM!program calendar,the availability of
the Community Partner to participate in the project,and the availability of the
Funding Partner to participate in the project.
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1.6. The City of San Bernardino and the Boys and Girls Club of San Bernardino shall attach
documentation to this Agreement showing proof of land ownership evidenced by a deed granting
title of the property to The City of San Bernardino and the Boys and Girls Club of San Bernardino
to the property,or a letter from the property owner showing approval for the installation of the
playground.Working with the support of the property owner(if owner is a separate party),The City
of San Bernardino and the Boys and Girls Club of San Bernardino will maintain the property
before and after the build to ensure a safe and attractive play area.
1.7. The City of San Bernardino and the Boys and Girls Club of San Bernardino shall collaborate with
KaBOOM!during the planning of this Project to develop a maintenance program for the I
playground that will be implemented by The City of San Bernardino and the Boys and Girls Club of
San Bernardino upon completion of the playground installation. I
1.8. The City of San Bernardino and the Boys and Girls Club of San Bernardino will obtain and
maintain Commercial General Liability insurance(providing coverage against liability for bodily
injury,death and property damage which may rise out of or be based upon the use of the
playground)and Workers Compensation insurance policies,in amounts not less than one million
dollars($1,000,000.00)from the date of this agreement and for a minimum of one(1)year
thereafter. KaBOOM!and Funding Partner shall be named as additional insureds for the Build
Day and a year thereafter upon such policy. The insurance shall be primary over any other
insurance covering KaBOOM!and Funding Partner. Such policy must provide that KaBOOM!and
Funding Partner be given at least thirty(30)days prior written notice of any change or cancellation
of coverage. Community Partner will promptly provide a copy of the certificate from its insurer I
indicating the amount of insurance coverage,the nature of such coverage and the expiration date j
of each applicable policy.
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1.9. The City of San Bernardino and the Boys and Girls Club of San Bernardino will obtain all I
necessary and appropriate permits and licenses regarding the installation and possession and use 1
of a playground prior to Build Day in compliance with local and state laws,regulations and
guidelines.
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1.10. The City of San Bernardino and the Boys and Girls Club of San Bernardino will work with local
authorities and/or private firms as appropriate to ensure the safety and security of human and
equipment resources(playground equipment,playground volunteers)from the point of material !
delivery,during the period(s)when site preparation occurs on the playground site,and until the j
conclusion of the Build Day, j
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1;11. The City of San Bernardino and the Boys and Girls Club of San Bernardino is responsible for
ensuring the playground site is safe for volunteers and children.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 4
May 29, 2008
1.11.1. The City of San Bernardino and the Boys and Girls Club of San Bernardino is responsible
for conducting up to two utility site checks as reasonably requested by KaBOOM!with the
appropriate utility companies with the first test being completed within two weeks of Design
Day. Documentation of the utility checks must be provided to the KaBOOM!Project I'
Manager upon completion. 1
1.11.2. The City of San Bernardino and the Boys and Girls Club of San Bernardino is responsible
for conducting up to two soil site tests as reasonably requested by KaBOOM!with the first
test being completed within two weeks of Design Day.Documentation of the soil checks
must be provided to the KaBOOM!Project Manager upon completion. The City of San
Bernardino and the Boys and Girls Club of San Bernardino is responsible for undertaking
any necessary risk mitigation should the soil be deemed unsafe for children or volunteers.
1.12. The City of San Bernardino and the Boys and Girls Club of San Bernardino will agree to accept
and maintain engineered wood fiber as playground safety surfacing, meeting standards
established by CPSC guidelines,for the lifetime of the playground.
1.13. The City of San Bernardino and the Boys and Girls Club of San Bernardino is solely responsible
for any additional costs beyond the proposed playground project budget. KaBOOM!is not
responsible for paying any vendors for any prior site preparation, upgrades or improvements not I
agreed upon with KaBOOM!. If Community Partner decides to purchase additional equipment or j
materials to supplement materials secured by KaBOOM!,then the Community Partner is solely
responsible for paying for the materials and all other liabilities related to such materials. Neither
KaBOOM! nor its Funding Partner(s)shall be liable for payment. Community Partner will hold
KaBOOM!and the Funding Partner harmless of any payments or liability with respect to the
additional items ordered.
1.14. The City of San Bernardino and the Boys and Girls Club of San Bernardino will seek prior
approval from KaBOOM!and/or SUPERVALU Inc.for any written and/or printed materials that
reference the Program and/or contain the logos of KaBOOM!or SUPERVALU Inc.,including but
not limited to press releases,fliers and promotional materials. The City of San Bernardino and
the Boys and Girls Club of San Bernardino will work in collaboration with KaBOOM!and/or
SUPERVALU Inc.to secure media coverage. KaBOOM!will provide mutual opportunity for the
Community Partner to review and approve materials prepared by KaBOOM!related to this Project
(such approval not to be unreasonably withheld).
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1.15. The City of San Bernardino and the Boys and Girls Club of San Bernardino will allow the names
and logos of SUPERVALU Inc.and KaBOOM!on permanent playground signage. Playground
signage is 12 inches wide and 30 inches tall and mounted on poles. The sign will be erected in a
mutually agreed upon location and in accordance with the Community Partner's guidelines
regarding corporate signage. If the Community Partner has specific guidelines regarding
corporate signage on its property, please attach those guidelines to this Agreement.
1.16. The City of San Bernardino and the Boys and Girls Club of San Bernardino understands that the
playground will be added to the roster of KaBOOM!Build Guild and, as such,will receive
subsequent information from KaBOOM!on playground maintenance, programming and
enhancements.
2._ OBLIGATIONS OF KaBOOM!
2.1. KaBOOM!will provide the Community Partner with technical and organizational leadership and
guidance for the playground project.
kaboom-org
The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 5
May 29, 2008
2.1.1. Facilitate playground design and work with vendors to procure equipment and materials in a
timely fashion,the possible exception being the installation of safety surfacing other than
engineered wood fiber. i
2.1.2. Manage construction logistics for the project,coordinate playground site preparation
activities with the Community Partner,inventory equipment and materials,and assure that
the necessary tools and materials are available to construct the playground.
2.1.3. Facilitate regular planning meetings with the Community Partner and the playground
planning committee. i
2.1.4. Lead the Build Day activities,including the coordination of Build Day captains and
volunteers.
2.1.5. Provide educational and promotional materials to support the playground project, including
the KaB00M!Tool Kit of publications(4-book set), KaB00M!online Playground Planner, !
nametags and other general supplies.
2.1.6. Provide for and coordinate the participation of the Funding Partner, SUPERVALU Inc.,
which has committed to provide KaB00M!with financial,human and/or in-kind resources to
bring to fruition the playground project with The City of San Bernardino and the Boys and
Girls Club of San Bernardino.
2.2. KaB00M!(in collaboration with The City of San Bernardino and the Boys and Girls Club of San
Bernardino),will provide or secure a Certified Playground Safety Inspector(CPSI)to review the
playground structure to ensure that it is safe and built to all appropriate standards and guidelines.
The City of San Bernardino and the Boys and Girls Club of San Bernardino acknowledges that
neither KaB00M!or Funding Partner nor their respective officers,directors,employees,or agents
have made or are in any way responsible or liable for action,inaction or negligence of the CPSI
and The City of San Bernardino and the Boys and Girls Club of San Bernardino agrees to look
solely to the CPSI for any such liability,costs or expenses which arise out of the CPSI's action,
inaction or negligence.
2.2.1. The CPSI review will occur at the conclusion of the Build Day or,if KaB00M!assumes I
responsibility for the playground construction going beyond one day,at the conclusion of
the installation.
2.2.2. In accordance with Section 4,The City of San Bernardino and the Boys and Girls Club of
San Bernardino shall be solely responsible for any injury,property damage,or death which
occurs in connection with the playground after review of the playground is completed.
2.2.3. In accordance with Section 4, in the event that the Build Day is delayed or not completed
on the scheduled day due to failure of The City of San Bernardino and the Boys and Girls
Club of San Bernardino to meet the terms of this Agreement,then The City of San i
Bernardino and the Boys and Girls Club of San Bernardino will be responsible for securing I
a CPSI to review the playground.
3. FUNDING PARTNER RELATIONS
3.1. KaB00M!has a separate agreement with a KaB00M!Funding Partner, SUPERVALU Inc.,
whose contributions to KaB00M!are helping to make this Project possible. i
3.2. The Community Partner shall not solicit sponsors or donors whose products or services directly �
compete with the products or services of the Funding Partner.
3.2.1. For the purposes of this Agreement,sponsors are defined as individuals, businesses or
philanthropic organizations that contribute funding or in-kind gifts to this Project in exchange
for certain rights to promote their affiliation with this Project to the general public, including
but not limited to public name recognition via this playground project's signs,T-shirts, media
N materials and public-address systems. Conversely,donors are individuals or groups whose
iV gifts to this Project require personal acknowledgement only,such as thank-you letters.
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The City of San Bernardino and the Boys and Girls Club of San Bemardino Letter of Agreement 6
May 29, 2008
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3.3. In the event the Community Partner solicits other sponsors or donors,then those sponsors and
donors shall not compete with the Funding Partner for signage and sponsorship recognition.The '
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Funding Partner shall receive first placement on any recognition materials developed for the
Project,including playground signage, banners,T-shirts,press releases, web-site and newsletter
stories,and flyers.
3.4. In the event of a conflict between the Funding Partner and other sponsors and donors,the
Funding Partner, Community Partner and KaB00M!shall consider recognition on a case-by-case
basis.
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4. OWNERSHIP AND LIABILITY ,
4.1. The Community Partner is the owner of the playground in its entirety,for the lifetime of the f
playground, including the equipment and/or safety surfacing purchased by KaB00M!and/or its
Funding Partner(s).
4.2. It is agreed that The City of San Bernardino and the Boys and Girls Club of San Bernardino will
indemnify and hold harmless KaB00M! and/or the Funding Partner and their respective officers,
directors,employees,or agents from any and all claims,costs,expenses(including attorney's
fees and disbursements)or actions associated with this playground project from any claim or
action, including but not limited to claims and actions for personal injury,death,or property
damages resulting from the use of any playground property and equipment,except to the extent j
resulting from any willful misconduct of KaB00M!and/or the KaB00M!Funding Partner. i
4.3. A Certified Playground Safety Inspector will review the playground structure upon completion at j
the end of the scheduled Build Day. The manufacturer's representativehnstaller will certify that '
the playground was installed to manufacturer's specifications at the end of the Build Day.
4.3.1. Notwithstanding the foregoing,The City of San Bernardino and the Boys and Girls Club of
San Bernardino shall be solely responsible for the playground and its equipment upon
certification of the playground.
4.3.2. The City of San Bernardino and the Boys and Girls Club of San Bernardino shall be
responsible for securing safety measures of the playground to prevent injury,death,or
property damages in the unlikely event that the playground is not completely constructed,
and all equipment fully installed,at the conclusion of the Build Day and once KaB00M!
and/or the CPSI leave the playground site. i
4.3.3. In the unlikely event or planned circumstances that the playground is not completely R
constructed and all equipment fully installed at the conclusion of the Build Day,The City of
San Bernardino and the Boys and Girls Club of San Bernardino shall be responsible for
completing the installation of the playground in accordance with the specified guidelines
with the assistance of the CPSI and/or the manufacturer's representatives,facilitated by j
KaB00M!. The City of San Bernardino and the Boys and Girls Club of San Bernardino
shall be solely responsible for any injuries,death,or property damage that arises out of The i
City of San Bernardino and the Boys and Girls Club of San Bernardino's completion of such
installation.
4.4. Maintenance of the playground facility and supervision of its use is the sole responsibility of The I
City of San Bernardino and the Boys and Girls Club of San Bernardino. Upon request,the
playground-equipment and safety-surfacing manufacturers will provide guidance and materials,
toward a maintenance plan for the playground.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 7
June 5, 2008
4.4.1. The Community Partner will receive from Playworld Systems Inc., the provider of its
playground equipment, or via its KaB00M! project manager, a play equipment
maintenance kit from Playworld Systems Inc.
5. WARRANTY
5.1. The playground equipment is covered under warranty by the selected playground equipment
company in accordance with its warranty policy. Upon request,a copy of the warranty for the
playground-equipment and the safety-surfacing will be provided by the manufacturer(s)to the
Community Partner. While playground equipment and/or material manufacturers may provide a
warranty with respect to their product,The City of San Bernardino and the Boys and Girls Club of
San Bernardino acknowledges that neither KaB00M!or Funding Partner nor their respective
officers, directors, employees or agents, have made nor are in any manner responsible or liable
for any warranty, representation, or guarantee,express or implied, in fact or in law, relative to any
equipment or material, including but not limited to its quality, mechanical condition or fitness for a
particular purpose. Any warranties and/or guarantees on any equipment or material are subject to
the respective manufacturer's terms therefore, and The City of San Bernardino and the Boys and
Girls Club of San Bernardino agrees to look solely to such manufacturers for any such warranty
and/or guarantee.
6. GENERAL
6.1. Notices. Any notices required or permitted to be given hereunder shall be sent by certified or
registered United States mail, postage properly prepaid,or by personal delivery addressed as
follows:
To: Helen Zimmerman, Manager Contracts&Risk Management
KaB00M!
4455 Connecticut Ave., NW, Suite B100
Washington, DC 20008 USA
202-464-6075
Copy To: Shannon Wilk, Client Services Coordinator
(use same KaB00M!address above)
202-464-6168
To Corporation: Fred Wilson, City Manager
City of San Bernardino
300 No. D Street
San Bernardino,CA 92418
909-384-5122
Roberto Martinet
The Boys and Girls Club of San Bernardino
2969 N. Flores Street
San Bernardino, CA 92407
909-384-5417
6.2. Counterparts. This Agreement may be executed by the parties in one or more counterparts which
shall,in the aggregate, be signed by all parties and each counterpart shall be deemed an original
instrument as against any party who has signed it.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 8
June 5, 2008
6.3. Governing Law. The laws of the State of Illinois,without reference to its choice of law provisions,
shall govern the interpretation and/or legal effect hereunder and shall have jurisdiction over any
dispute(including arbitration)arising out of or under the terms of this Agreement.
6.4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective
affiliates,successor, and personal representatives of the parties to this Agreement,except to the
extent of any contrary provision in this Agreement.
6.5. Severability, This Agreement shall be construed to be in accordance with federal and state
statutes. If any provision of this Agreement,or any portion thereof,is found to be invalid, illegal,or
unenforceable, under any applicable statute or rule of law,then such provision or portion thereof
shall be deemed omitted,and the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
6.6. Complete Agreement. This Agreement,when executed by the duly authorized representatives of
each party shall be the entire agreement between the parties as to the subject matter stated
herein and supersedes and replaces any and all previous agreements and all amendments
thereto.
6.7. Assignment. This Agreement may not be assigned,delegated or transferred by either party
without the prior written consent of the other party hereto.
6.8. Force Majeure. If either of the parties hereto is delayed or prevented from fulfilling any of its
obligations under this Agreement by Force Majeure,said party shall not be liable under this
Agreement for said delay or failure. "Force Majeure"means any cause beyond the reasonable
control of a party, including, but not limited to acts of God,acts of omission of civil or military
authorities of a state or nation,fire, strike,flood, riot,act of terrorism,war,delay of transportation,
or inability due to the aforementioned causes to obtain necessary labor, materials or facilities.
Either party, however,may terminate this Agreement if the other is unable to perform any
obligation under the Agreement for a period longer than ten(10)calendar days due to such a
force majeure event. In the event of any such termination, KaB00M!shall refund to the
Community Partner any monies paid to KaB00M!, less expenses already committed to and/or
incurred prior to the date of termination. If, upon termination as provided herein,the sum due
KaB00M!by Community Partner,exceeds the sum paid to KaB00M!hereunder,Community
Partner agrees to pay KaB00M!for any such additional sum due upon presentation of
appropriate documentation within 30 days of invoice.
6.9. Waiver. A waiver by either party of a breach or failure to perform shall not constitute a waiver of
any subsequent breach or failure.
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 9
May 29, 2008
IN WITNESS WHEREOF,this Agreement has been executed by the parties as of the day and year first
above written.
By signing this Agreement,The City of San Bernardino and the Boys and Girls Club of San
Bernardino fully acknowledges its consent and understanding of and commitment to the terms and
guidelines set forth above. Please sign both original versions of this letter and return them to KaB00M!.
We will then sign the originals,and mail one original and one copy back to you for your files.
I KaB00M!and SUPERVALU Inc.look forward to working with The City of San Bernardino and the Boys and
Girls Club of San Bernardino to make this playground a reality.
Date Terms agreed to: Date Terms agreed to:
By: By:
Dolore Armstead Gerry Megas
President of the Board Chief Financial Officer
Authorized Signature for The Boys and Girls Club of San Phone number:202-464-6075
Bernardino Fax number:202-659-0210
Phone Number: 909-214-6274 Email address: hzimmerman @kaboom.org
Fax Number:909-3845160
Email Address: darmst8273 @aol.com
The Boys and Girls Club of San Bernardino KaB00M!
2969 N. Flores Street 4455 Connecticut Ave, NW Suite 6100
San Bernardino,CA 92407 Washington, DC 20008
Date Terms agreed to:
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By: !
Fred Wilson
City Manager j
Authorized Signature for The City of San Bernardino j
Email Address:Wilson_fr @sbcity.org I
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The City of San Bernardino
300 No. D Street
San Bernardino, CA 92418
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Contact information for the person who should receive KaB00M! invoices:
Name: Jan Wages Telephone Number:909-384-5233
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Mailing Address: Fax Number:909-384-5160
201A North E Street,Suite 103
San Bernardino, CA 92401 Email Address: wages—ja @ci.san-bemardino.ca.us
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The City of San Bernardino and the Boys and Girls Club of San Bernardino Letter of Agreement 10
May 29, 2008 j
Attachments: Welcome Packet
Playworld Systems Inc.Playground Equipment Warranty(sample)
Copy: KaB00M!Project Archives
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