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HomeMy WebLinkAbout2004-3571 RESOLUTION NO. 2004-357 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE 3 MAYOR TO EXECUTE AN AGREEMENT WITH THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION 4 OF ARTS AND CULTURE. 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON 7 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. The Mayor of the City of San Bernardino is U hereby authorized and directed to execute on behalf of said City an 10 Agreement with San Bernardino Symphony Orchestra, a copy of which is 11 12 attached hereto marked Exhibit "A" and incorporated herein by 13 reference as fully as though set forth at length. 14 SECTION 2. The authorization to execute the above 15 referenced agreement is rescinded if the parties to the agreement fail to tol I execute it within sixty (60) days of the passage of this resolution. ib 18 19 20 21 22 =I —IA 24 /// 25 26 /// 27 01.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 20 21 22 23 RESOLUTION NO. 2004-357 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF ARTS AND CULTURE I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a it. reg. meeting thereof, held on the 15 thday of November 2004, by the following vote, to wit: Council Members: AYES ESTRADA x LONGVILLE x MCGINNIS x DERRY x KELLEY x JOHNSON x MCCAMMACK x NAYS ABSTAIN ABSENT City Clerk The foregoing resolution is hereby approved this h67n-r day of November, 2004. Approved as to Form and legal content: JAMES F. PENMAN, City Attorney By: h Valles, Mayor of San Bernardino 2004-357 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit "A" AGREEMENT THIS AGREEMENT is entered into between the CITY OF SAN BERNARDINO, a municipal corporation, referred to as "City" and the San 3ernardi.no Symphony Orchestra, a non- profit organization, referred to an "Organization" The parties agree as follow: 1. Recitals. A. Organization has requested financial Assistance from City for fiscal year 2004-05, in order to assist in defraying the expense of certain concerts, shows, festivals, or events of activities sponsored by Organization. The financial assistance provided for this agreement is made on a one-time only basis, and receipt of said funds shall not imply a continuing obligation of the City beyond the terms of this Agreement. B. The expenditure is for valid municipal public purpose, to wit: for the promotion of art appreciation in San Bernardino. 2. Payment. Upon presentation of a claim to the Mayor's Office, City shall pay to Organization from the budget for the 2004-05 fiscal year, the total sum of a70,000.00 dollars, to cover the costs associated with Paragraph 1. 3. Use of Funds. The funds paid to Organization shall be used solely for the purposes set forth in Paragraph 1 and in strict compliance with the prov-sions set forth in the agreement. No deviation from the agreement shall be made without the expressed approval of the Citv of San Bernardino. Said funds shall be expended by June 30, 2005, and any unexpended funds shall be returned to City by Organization. 4. Ac_counting. Within 20 days after the completion of the event, the Organization shall submit to the Mayor's Office, with copy to the Director of Finance, an accounting of the actual expenditures connected with said event as it relates to the fund which were provided -1- 2004-357 1' 2, 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit "A" CaFF:;9Er:P RE: THE CITY OF At] F?ERVA DINO PND 1`1 Sz�N BERN,i,RD1NO SYMPHON: JRC! ESTRA FC-R THE PROVOTT_ON OP '1'fiE z1R`P."i AND Cii_i`JRG. by the City. F nancial records shall be maintained in accordance with: generally ac---epted accounting principles by Organization in s::ch manner as to permit City to easily trace the expenditures of the funds. All books and records of Organization are to be kept open for inspection at any time during the business day by the �i.ty or its officers or agents. Failure to submit the financial records in accordance with this section will result in the Organization reimbursing the City. 5. oLd harmless. Organization covenants and agrees to 0dtend if requested by City, indemnify, and hold harmless the City, its departments, agencies boards, commissions, elected officials, officers, attorneys, employees and agents f-om all liabilities, charges and expenses (including counsel fees), suits or losses however occurring, or damages arising_ or growing out of the use or receipt of the funds paid hereunder and all operations undc--- this agreement. Payments hereunder are made with understanding that the City is not involved in the performance of services or other activities of Organization. Organization and its employees and agents are independent contractors and are not employees or agents of the City in performing said services. The costs, salary and expenses of the City Attorney and members of his office in enforcing this agreement on behalf of the City shall be considered as "counsel fees" For the pu-poses of this paraaraph. 6. Termination. City shall Lave the right to terminate this Agreemert and any funding remaining unpaid hereunder for any reason by mailing a ten-day written notice to Organization and tlis agreement shall terminate ten days after the :nailing of such notice. In event this Agreement terminated for reasons of improper use of funds or use of funds for any purpose other_ than those authorized, any unexpended portion of funds provided by City shall. be returned to City. In addition, Organization shall reimburse Co City any funds expended which were used for any purpose other than those authorized under this Agreement. -L- i 2004-357 I 2 3 4 5 6 7 8 9 10 11 12. 13 14 15 16 17'I 18 19 21, 27 28 Exhibit "A" RGREEMENT RE: mHF CITY OF SIGN BERNARDI":0 AND THE SAN BLP1N1cPDIN0 SI,MtSi0I2T ORCHESTRA FOR THE PROMOTION OF THE ARTS AND COfTJEE. 7. Assignm-nr_. Organization its 'interest in this Agreement without aporoVal rf City. shall not assign the prior written 0. Insurance. Organization shall take out and maintain during t_.e ljfe of this Agreement such public IiaJlI1'1-y and GrGperty damage insurance, naming the City, its deoartments, agencies, boards, commissions, elected cfficials, of_icers, attorneys, employees and agents as additional insured by Organization and its agents perfornd ng acts covered by this Agreement from claims for property damage for personal injury, including death, as wet as from claims for property damage which may arise from Organization's or its agents' operation hereunder, whether such operations be by Organization or its agent or by anyone directly or indirectly employed by either OroaniZatlOn or its agents, and the amoun�is of such nszrance shall be as follows: (a) Public S�.ab__ity Insurance. In an amount no less that $1,000,000 for injuries, including, but not iim:ted to, death, to any person, and subject to the same -in.it for each p^_rson, in an amount not less than 5100,u00 on account of any one occurrence. (b) operty Damage Insurance. In an amount not less *_nan 5D,000 for damage to the property of each person on account of an occurrence. (c) Workers Compensation. Organization shall provide worker compensation insurance in the amount required by state law if the funds provided hereunder are to be paid as a salary to any employee of organization. Organ- za--ior, sha'._1 provide worker compensation insurance in the amount required by state law if the funds provided hereunder are to paid as salary to any employee of Organization. Organization shall require that all. rights of subrogation ceder such policy of workers compensation insurance shall to waived as to City. City shall be set forth as a additional narr,ed insured in each policy of insurance provide hereunder. -3- 2004-357 III Exhibit "A" Al R F.QT TL1 i.,-" OF ;APB -BFR.NA.kDIt70 AND THE SAN aERNAR INO SYMPHONY CR"H2S_RA FOR THE DROMOTIOU OF THE 3 APRTS r.ND CTn,TjR . 4 (d) The Certificate of Insurance furnished to the City shall require the insurer to notify the City by ten 5 (1.0) days advance written notice of any change or termination in the policy. 7 9. Obligation. Organization hereby convenants that IF has taken all actions necessary to make the 8 adherence to the obligations imposed by this agreement a hiriding obligation of the organization. 9 10. Notices. All notices herein required shall be 10 in writing and delivered in person or sent by certified 11 mail, postage prepaid addressed as follows: 12 As to City: As to Organization: 13 Mayor's Office Ann Harris, President City of San Bernardino San Bernardino Symphony 14 Orchestra 15 300 North "D" Street 1811 N. "D" Street San Bernardino, CA. 92918 San Bernardino, CA. 92405 16 11. Fntire Agreement. This Agreement and any 17 ct'ner documents cf I struments attached hereto or r.e[crred to herein integrate all terms and conditions 18 mentioned ';,erein or incidental hereto, and supersede all 19 negotiations and prior writing in respect to the subject utter her_eot. In the event of conflict between the terms 20 conditi.ons or provisions of this Aareement, and any such document or instrument, the terms and conditions of this 21 F-greement shall prevail. 22 _2. Non -Discrimination. Organization agrees that 23 or tl;e term of this Agreement it shall not discriminate it-, employment recruitment, hiring, admission practices, 24 advertising or in an other manner on the basis of race, color, creed, religion, national crigan, sex, physical 25 hand -cap, or marital status. 27 RE -4- 2004-357 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 241 26 27 28 Exhibit "A" :^,-%EEMEI` RE: 'IIIE CI-Y Or SAN BER NARDINO AND Ti 7; PAN . I5EHNAR'lI'.0 Y fiPH0 i D!! C:HE "'RA FOR. THE -,R0MCTION O: THE IARTS ND C� RE. IDATED: JATTFST: CITY OF SAN BERNARDINO Judith Valley, Mayor Rachel G. C-ark, City Clerk Approved as to form and lega: ronten�:: ;amen F. ?erman City Attorney By: -5- ORGANIZATION 2004-357 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20, 21 221 23 24 25 26 AGREEMENT THIS AGREEMENT is entered into between the CITY OF SAN BERNARDINO, a municipal corporation, referred to as "City" and the San Bernardino Symphony Orchestra, a non- profit organization, referred to an "Organization" The parties agree as follow: 1. Recitals. A. Organization has requested financial Assistance from City for fiscal year 2004-05, in order to assist in defraying the expense of certain concerts, shows, festivals, or events of activities sponsored by Organization. The financial assistance provided for this agreement is made on a one-time only basis, and receipt of said funds shall not imply a continuing obligation of the City beyond the terms of this Agreement. B. The expenditure is for valid municipal public purpose, to wit: for the promotion of art appreciation in San Bernardino. 2. Payment. Upon presentation of a claim to the Mayor's Office, City shall pay to Organization from the budget for the 2004-05 fiscal year, the total sum of $70,000.00 dollars, to cover the costs associated with Paragraph 1. 3. Use of Funds. The funds paid to Organization shall be used solely for the purposes set forth in Paragraph 1 and in strict compliance with the provisions set forth in the agreement. No deviation from the agreement shall be made without the expressed approval of the City of San Bernardino. Said funds shall be expended by June 30, 2005, and any unexpended funds shall be returned to City by Organization. 4. Accounting. Within 20 days after the completion of the event, the Organization shall submit to the Mayor's Office, with copy to the Director of Finance, an accounting of the actual expenditures connected with said event as it relates to the fund which were provided -1- 2004--357 1 2 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE 3 ARTS AND CULTURE. 4 by the City. Financial records shall be maintained in accordance with generally accepted accounting principles 5 by Organization in such manner as to permit City to 6 easily trace the expenditures of the funds. All books and records of Organization are to be kept open for 7 inspection at any time during the business day by the City or its officers or agents. Failure to submit the 8 financial records in accordance with this section will result in the Organization reimbursing the City. 9 10 5. Hold Harmless. Organization covenants and agrees to defend if requested by City, indemnify, and 11 hold harmless the City, its departments, agencies boards, commissions, elected officials, officers, attorneys, 12 employees and agents from all liabilities, charges and expenses (including counsel fees), suits or losses 13 however occurring, or damages arising or growing out of the use or receipt of the funds paid hereunder and all 14 operations under this agreement. Payments hereunder are 15 made with the understanding that the City is not involved in the performance of services or other activities of 16 Organization. Organization and its employees and agents are independent contractors and are not employees or 17 agents of the City in performing said services. The costs, salary and expenses of the City Attorney and 18 members of his office in enforcing this agreement on 19 behalf of the City shall be considered as "counsel fees" for the purposes of this paragraph. 20 6. Termination. City shall have the right to 21 terminate this Agreement and any funding remaining unpaid hereunder for any reason by mailing a ten-day written 22 notice to Organization and this agreement shall terminate 23 ten days after the mailing of such notice. In event this Agreement is terminated for reasons of improper use of 24 funds or use of funds for any purpose other than those authorized, any unexpended portion of funds provided by 25 City shall be returned to City. In addition, Organization shall reimburse to City any funds expended which were 26 used for any purpose other than those authorized under 27 this Agreement. 28 -z- 2004-357 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 211 25 26 27 28 GREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN ERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE RTS AND CULTURE. 7. Assignment. Organization shall not assign its interest in this Agreement without the prior written approval of City. 8. Insurance. Organization shall take out and maintain during the life of this Agreement such public liability and property damage insurance, naming the City, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees and agents as additional insured by Organization and its agents performing acts covered by this Agreement from claims for property damage for personal injury, including death, as well as from claims for property damage which may arise from Organization's or its agents' operation hereunder, whether such operations be by Organization or its agent or by anyone directly or indirectly employed by either Organization or its agents, and the amounts of such insurance shall be as follows: (a) Public Liability Insurance. In an amount not less that $1,000,000 for injuries, including, but not limited to, death, to any person, and subject to the same limit for each person, in an amount not less than $100,000 on account of any one occurrence. (b) Property Damage Insurance. In an amount not less than 50,000 for damage to the property of each person on account of an occurrence. (c) Workers Compensation. Organization shall provide worker compensation insurance in the amount required by state law if the funds provided hereunder are to be paid as a salary to any employee of organization. Organization shall provide worker compensation insurance in the amount required by state law if the funds provided hereunder are to paid as salary to any employee of Organization. Organization shall require that all rights of subrogation under such policy of workers compensation insurance shall be waived as to City. City shall be set forth as a additional named insured in each policy of insurance provide hereunder. -3- 2004-357 I 2 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE 3 ARTS AND CULTURE. 4 (d) The Certificate of Insurance furnished to the City shall require the insurer to notify the City by ten 5 (10) days advance written notice of any change or 6 termination in the policy. 7 9. Obligation. Organization hereby convenants that it has taken all actions necessary to make the 8 adherence to the obligations imposed by this agreement a binding obligation of the organization. 9 10 10. Notices. All notices herein required shall be in writing and delivered in person or sent by certified 11 mail, postage prepaid addressed as follows: 12 As to City: As to Organization: 13 Mayor's Office Ann Harris, President City of San Bernardino San Bernardino Symphony 14 Orchestra 15 300 North "D" Street 1811 N. "D" Street San Bernardino, CA. 92418 San Bernardino, CA. 92405 16 11. Entire Agreement. This Agreement and any 17 other documents of instruments attached hereto or referred to herein integrate all terms and conditions 18 mentioned herein or incidental hereto, and supersede all 19 negotiations and prior writing in respect to the subject matter hereof. In the event of conflict between the terms 20 conditions or provisions of this Agreement, and any such document or instrument, the terms and conditions of this 21 Agreement shall prevail. 2211 12. Non -Discrimination. Organization agrees that 23 for the term of this Agreement it shall not discriminate in employment recruitment, hiring, admission practices, 24 advertising or in an other manner on the basis of race, color, creed, religion, national origin, sex, physical 25 handicap, or marital status. 27 91 -4- 2004-357 1 2 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE 3 ARTS AND CULTURE. 4 DATED: WVLmr>tj(, I( 2CCKj 5 6 CITY OF SAN BERNARDINO 7 n M 10 11 ATTEST: Rachel G. Clark, City Clerk 12 V0G�/jce�i1'( Ga, l 13,T 14 15 16 Approved as to form 17 and legal content: 18 James F. Penman 19 City Attorney 21 B y : 22 24 25 26 27 28 -5-