HomeMy WebLinkAbout2008-244
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RESOLUTION NO. ?OOR-244
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.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That the City Manager is authorized 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 Delmano Heights Park, a copy of which
is attached hereto, marked Exhibit "A" and incorporated herein as fully as though set forth
at length; and
SECTION 2. That the authorization to execute said Letter of Agreement is void
and of no effect if it is not executed within ninety days of the date that this Resolution is
adopted.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO
EXECUTE A LE'ITER 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.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
joint
Mayor and Common Council of the City of San Bernardino at are gular meeting thereof,
held on the 16 tltlay of
June
, 2008, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
----X...
x
BAXTER
x
BRINKER
x
DERRY
x
KELLEY
x
JOHNSON
McCAMMACK
x
~ f.l~~
Rachel Clark, City Clerk
The foregoing resolution is hereby approved this t 7I1i day of June
2008.
~.
Pa . k J. MOrri~YOr
City of San Bernardino
Approved as to Form:
JL_~... t. lr-r~ ~---- -
James F. Penman, City Attorney
k'41.."JI4,/ "..;u ~ ~zX.
+ ~ . /.., 1":.'
~<Cta.. -q/ ~ 6~~ ,v- - -~I tL
~~ ~/-: ='
<l t4,~~;;;.
2008-244
WasJallt.ltO". DO
4455 CloDI1lJCl.!CUt Ave. NW, Bulte B 1 00 .
Oldeago,IL
DC 20005 . tel 202.559.0215
washington,
Atlallta, CA
San Mateo, 01
. fax 202.559.0210
THIS KaBOOMI COMMUNITY PARTNER AGREEMENT is made this 29'" day of May, 2008 by
and between KaBOOM! and The City of San Bernardino and the Boys and Gi~s Club of San Bernardino.
RECITAlS
WHEREAS KaBOOM! is a non-profit organization eha~ered in the District of Columbia and
organized as a SOl(e) 3 by determination of the Internal Revenue Service:
WHEREAS KaBOOM! is an organization that develops, manages and coordinates a community-
buUding 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 tI)e 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 Partner")
for this Program and has entered into a separate agreement with the Funding Partner, the resutt 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. OBUGATIONS 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 SUPERV ALU Inc. playground
project at The Boys and Gi~s Club of San Bemardino, 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 behaW of this
Program.
1.3. As a Community Partner for a KaBOOM! community-build playground project, The City olSan
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 2(}'
30 adults and 2(}'3O children. The adults will remain engaged in planning activnies
throughout the Design Day to Build Day planning process.
1.3.2. The Community Partner agrees to recrun and secure at least 12-15 adutt volunteers for
preparation activities two to three days prior to Build Day playground installation.
1.3.3. The Community Partner agrees to recrun and secure at least 75 adutt volunteers for the
Build Day playground instaHation.
EXHIBIT "A"
2008-244
The City of San Beman:Iino and the Boys and Gilts Club of San Beman1ino LeIter 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 IV<<l weeks before Build Day, which includes but is not limited to
removing existing playground equipment, footers and safely sulfacing, grading 1he land,
removing fencing and peIforming soi tests.
1.3.5. The Community Partner agrees to provide certain provisions for use by volunteers I'Klrking
on the construction project, including but not limited to food (breakfast snacks, lunch and
mkklay 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
Bernardino is responsible for contributing $7,500 to 1he playground project.
1.4.1. All funds will be appled directly toward purchasing playground equipment.
1.4.2. Upon receipt of this signed agreement, KaBOOM! will invoice The City of San Bernardino
and 1he Boys and Girls Club of San Bernardino for the full amount of this contribution, and n
will be due at least 30 days before the Build Day on July 30", 2008.
1.4.3. If The City of San Bernardino and 1heBoys and Girls Club of San Bernardino does not
make payment as outlined in Section 1.4.2, KaBOOM! reserves the right, without waiving
any other rights and remedies, to cancel1he build.
1.4.3.1. In the event of 1he Build Day's cancellation due to non-payrnent by 1he Comrrunity
Partner as outlined in Section 1.4.2, at KaBOOMl's written request, without waiving
any other rights and remedies, The City of San Bernardino and 1he Boys and Girls
Club of San Bernardino shall be deemed liable for damages to KaBOOM! and
Funding Partner for any un-cancelable contractual commitments entered into prior .
to cancellation, any equipment costs, labor and materials, and any additional
expenses related to 1he Progt'iIIIl, such as ailfare and general supplies.
1.4.4. The Community Partner has the right to back-up documentation detaUing 1he use of its
contribution to the project. Upon request, KaBOOMI 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 30".
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 safely of the volunteers, or
for unsafe weather conditions that threaten the sbuctural integrity of 1he playground.
1.5.1.1. The decision to postpone a Build Day shal be reached through discussion,
collaboration and majority agreement by KaBOOMl, the Community Partner and the
Funding Partner, each represented by a person authorized by each party.
1.5.1.2. The sole exception to rnutuaI decision-making and majority agreement shall be
when the decision must be made irrvnediately and solely by KaBOOM! on 1he
construction site in absence of authorized representatives of the Comrrunity
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 1he Agreement between KaBOOM! and 1he Funding Partnet,
or their designates,
1.5.2. In the event that 1he 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
KaBOOM! and Funding Partner for any equipment costs, labor and rnateriaIs and any
additional expenses related to 1he Program, such as airfare and general supplies.
2008-244
The Cly of San Beman1ino and the Boys and Girls Club of San Bernardino LBlter of Agteement 3
May 29, 2008
1.5.3. In the event 01 a Build Day postponement, KaBOOM! shall collaborate with the Community
Partner and the Funding Partner to issue a Memo 01 Understanding (MOU) that outlines a
plan fot rescheduNng 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 limRed to, equipment storage, security,
equipment shipment, and KaBOOM! lIaveJ and hotel expenses.
1.5.3.2. The MOO shall identify the next-earliest possible date for the Build Day, based on
the availability 01 open dates on the KaBOOM! program calendar, the availability 01
the Community Partner to participate in the project, and the availability 01 the
Funding Partner to participate in the project.
1.6. The City 01 San Bernardino and the Boys and Gir1s Club 01 San Bernardino shaH attach
documentation to this Agreement showing proof 01 land ownership evidenced by a deed granting
title 01 the property to The City 01 San Bernardino and the Boys and Girls Club 01 San Bernardino
to the property, or a IetIer from the property owner showing approval for the installation 01 the
playground. Working with the support 01 the property owner (if owner is a separate party), The City
of San Bernardino and the Boys and Girls Club 01 San Bernardino will maintain the property
before and after the build to ensure a safe and attractive play area.
1.7. The City 01 San Bernardino and the Boys and Girls Club 01 San Bernardino shall collaborate with
KaBOOM! during the planning 01 this Project to develop a maintenance program for the
playground that will be implemented by The City 01 San Bernardino and the Boys and Girls Club 01
San Bernardino upon completion of the playground installation.
1.8. The City 01 San Bernardino and the Boys and Girls Club 01 San Bernardino wiD obtain and
maintain Commercial General Liability insurance (providing coverage against liability for bodily
injury, death and property damage which may rise out 01 or be based upon the use 01 the
playground) and Worker's Compensation insurance policies, in amounts not less than one million
dollars ($l,OOO,OOO.OO)from the date 01 this agreement and for a minimum 01 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 01 any change or canceHation
of coverage. Community Partner will promptly provide a copy 01 the certificate from its insurer
indicating the amount 01 insurance coverage, the nature 01 such coverage and the expiration date
of each applicable policy.
1.9. The City 01 San Bernardino and the Boys and Girls Club 01 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 Gir1s Club 01 San Bernardino will work with local
authorities and/or private finns as appropriate to ensure the safety and security 01 human and
equipment resources (playground equipment, playground volunteers) from the point 01 material
delivery, during the period(s) when site preparation occurs on the playground site, and until the
conclusion 01 the Build Day.
1. The City 01 San Bernardino and the Boys and Girls Club 01 San Bernardino is responsible for
suring the playground site is safe for volunteers and children.
2008-244
The Cly of San Bematdino and the Boys and Girls Club of San Bernardino LeIter 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 cornpIeted within two weeks of Design
Day. Documentation of the utility checks must be pi'ovided to the KaBOOM! Project
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 tes1s 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
Bemardino and the Boys and Gi~s Club of San Bernardino is responsible for undertaking
any necessary risk mitigation should the soH 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 v.ood fiber as playground safety surfacing, meeting standards
established by CPSC guide6nes, for the lifetime of the playground.
1.13. The City of San Bemardino 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
materials to supplement materials secured by KaBOOM!, then the Convnunity 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 SUPERV AlU 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 Bemardino will work in collaboration with KaBOOM! and/or
SUPERV ALU 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 Bemardino will allow the names
and logos of SUPERV ALU Inc. and KaBOOM! on pennanent 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 Girts Club of San Bemardino understands that the
playground will be added to the roster of KaBOOM! Build Guild and, as such, will receive
subsequent infonnation from KaBOOM! on playground maintenance, programming and
enhancements.
2. OBUGATIONS OF KaBOOMI
2.1. KaBOOM! will provide the Community Partner with technical and organizational leadership and
guidance for the playground project.
-.
2008-244
The City of San Beman1ino 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 IWOd 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 KaBOOM! Tool KR of publications (4-book set), KaBOOM! online Playground Planner,
nametags and other general supplies.
2.1.6. Provide for and coordinate the participation of the Funding Partner, SUPERV ALU Inc.,
which has committed to provide KaBOOM! 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. KaBOOM! (in collaboration with The City of San Bernardino and the Boys and Girls Club of San
Bernardino), wiN provide or secure a Certified Playground Safety Inspector (CPSI) to review the
playground structure to ensure that R 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 KaBOOM! or Funding Partner nor their respective olIicers, 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 CPSl's action,
inaction or negligence.
2.2.1. The CPSI review will occur at the conclusion of the Build Day or, W KaBOOM! assumes
resJXlnsibility 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 aIIer 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 resJXlnsible for securing
a CPSI to review the playground.
3. FUNDING PARTNER RELATIONS
3.1. KaBOOMI has a separate agreement with a KaBOOM! Funding Partner, SUPERV ALU Inc.,
whose contributions to KaBOOM! are helping to make this project possible.
3.2. The Community Partner shall not soIicR sponsors or donors whose products or services directly
compete with the products or sefVices 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 afliHation with this Project to the general public, including
but notlimRed to public name recognition via this playground projecl's signs, T-shirts, media
materials and public-address systems. Conversely, donors are individuals or groups whose
gifts to this Project require personal acknowledgement only, such as thank-you letters.
2008-244
The City of San Beman:Iino and /he Boys and Girls Club of San Beman:Jino Letter of Agreement 6
May 29, 2008 '
3.3. In the event the Community Partner solicits other sponsors or donors, then those sponsors and
donors shaN 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 01 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-{;8Sll
basis.
4. OWNERSHIP AND UABIUTY
4.1. The Community Partner is the owner 01 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 Parlnel(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 oIIicers,
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 01 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 strucIure upon completion at
the end 01 the scheduled Build Day. The manufaclure~s representativelinstaller wiN ceIlify that
the playground was installed to manufacturer's specifications at the end of the Build Day.
4.3.1. Notwithstanding the foregoing, The City 01 San Bernardino and the Boys and Girls Club 01
San Bernardino shall be solely responsible for the playground and its equipment upon
certification 01 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 01 the playground to prevent injury, death, or
property damages in the unlikely event that the playground is not completely constructed,
and all equipment fuly installed, at the conclusion 01 the Build Day and once KaBOOM!
and/or the CPSlleave the playground site.
4.3.3. In the unlikely event or planned circumstances that the playground is not completely
constructed and all equipment fully installed at the conclusion of the Build Day, 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 01 the CPSI and/or the manufacturer's representatives, facilitated by
KaBOOM!. The City 01 San Bernardino and the Boys and Girls Club 01 San Bernardino
shall be solely responsible for any injuries, death, or property damage that arises out of The
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 01 San Bernardino and the Boys and Girls Club 01 San Bernardino. Upon request, the
playground-equipment and safety-surfacing manufacturers wiN provide guidance and materials,
toward a maintenance plan for the playground.
. .
2008-244
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 Playwortd Systems Inc., the provider of its
playground equipment, or via its KaBOOM! project manager, a play equipment
maintenance kit from Playwortd 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 manufacture~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 Bemardino and the Boys and Girts Club of
San Bemardino acknowledges that neither KaBOOM! or Funding Partner nor their respective
officers, directors, employees or agents, have made nor are in any manner responsible or liable
for any warranty, representation, or guarantee, express or implied, in fact or in law, relative to any
equipment or material, including but not limtted to its quality, mechanical condttion or fitness for a
particular purpose. Any warranties and/or guarantees on any equipment or material are subject to
the respective manufacture(s terms therefore, and The City of San Bernardino and the Boys and
Girts Club of San Bemardino agrees to look solely to such manufacturers for any such warranty
and/or guarantee.
6. GENERAL
6.1. Notices. Any notices required or permitted to be given hereunder shall be sent by certified or
registered United States mail, postage property prepaid, or by personal delivery addressed as
follows:
To: Helen Zimmerman, Manager Contracts & Risk Management
KaBOOM!
4455 Connecticut Ave., NW, Sutte B100
Washington, DC 20008 USA
202-464-6075
Copy To: Shannon Wilk, Client Services Coordinator
(use same KaBOOM! address above)
202-464-6168
To Corporation: Fred Wilson, Ctty Manager
City of San Bernardino
300 No. 0 Street
San Bernardino, CA 92418
909-384-5122
Roberto Martinez
The Boys and Girts Club of San Bernardino
2969 N. Flores Street
San Bemardino, 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.
20G8-244'
The City of San Bemaniino and the Boys and Girls Club of San Bemaniino Letter of Agreement 8
June 5, 2008
6.3. Governing Law. The laws of the State of Illinois, without reference to ijs 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 eijher 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 slate 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.
Eijher party, however, may terminate this Agreement if the other is unable to perform any
obligation under the Agreement for a period longer than ten (10) calendar days due to such a
force majeure event. In the event of any such termination, KaBOOM! shall refund to the
Communijy Partner any monies paid to KaBOOM!, less expenses already committed to and/or
incurred prior to the date of termination. If, upon termination as provided herein, the sum due
KaBOOM! by Communijy Partner, exceeds the sum paid to KaBOOM! hereunder, Community
Partner agrees to pay KaBOOM! 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.
2008-244
The City of San Beman1ino 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 Girts Club of San
Bernardino fully acImowtedges its consent and understanding of and commitment to the terms and
guidelines set forth above. Please sign both original velSions 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.
KaBOOMI and SUPERVALU Inc. look forward to working with The City of San Bernardino and the Boys and
Girts Club of San Bernardino to make this playground a reality.
Date Terms agreed to:
Date Terms agreed to:
".' ~:.:~~
Gerry IIagas .,
Chief Financial Officer
Phone number. 202- 464- 6075
Fax nurmer. 202- 659- 0210
Email address: hzimmennan@kaboom.org
President of the Board
Authorized Signature for The Boys and Gi~s Club of San
Bernardino
Phone Number: 909-214-6274
Fax Number: 909-384-5160
Email Address:darmst8273@aol.com
The Boys and Girts Club of San Bernardino
2969 N. Flores Street
San Bernardino, CA 92407
Date Terms agreed to:
KaBOOM!
4455 Connecticut Ave, NW Suite B100
Washington, DC 20008
..1Jh-
Fred
City Manager
Authorized Signature for The City of San Bernardino
Email Address: WiIson_fr@sbcity.org
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The City of San Bernardino
300 No. D Street
San Bernardino, CA 92418
contact information for the person who should receive KaBOOMllnvoices:
Name: Jan Wages Telephone Number. 909-384-5233
Mailing Address:
201A North E Street, Suite 103
San Bernardi ,CA 92401
Fax Number. 909-384-5160
Email Address:wagesja@ci.san-bemardino.ca.us
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2008-244
I
TIle City of San Bematdino and /he Boys and Girls Club of San Bemardino Leiter of Agreement 10
May 29, 2008
Attachments: Welcome Packet
P\ayY<<lrld Systems Inc. Playground Equipment Warranty (sample)
Copy: KaBOOM! Project Archives