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HomeMy WebLinkAbout2006-280 1 2 3 4 5 6 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: , . 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2006-280 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. SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City an Agreement with San Bernardino Symphony Orchestra, a copy of which is attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length, SECTION 2. The authorization to execute the above referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. III III /II III III III III III III ,-- 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 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 meeting thereof, held on the 7th day of August , 2006, by the following vote, to wit: Council Members: AYES ABSTAIN ABSENT NAYS ESTRADA -1L BAXTER x VACANT DERRY -1L KELLEY x JOHNSON x MCCAMMACK x ~~.f h. CLuJ.__ Ci lerk 1:!t ~ The foregoing resolution is hereby approved this August ,2006. day of ~...~ 't,. Approved as to Form: JAMES F. PENMAN, City Attorney Bt~ tf~ 2006-280 OR'G'NAl~ ~\ f AGREEMENT Fine Arts Funding 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. Reci tal s . A. Organization has requested financial assistance from City for fiscal year 2006-07, in order to assist in defraying the expense of certain concerts, shows, festivals, or events of activities sponsored by Organization as set forth in Organization's grant proposal (hereinafter "the proposal") approved by the Fine Arts Commission of the City. A copy of said proposal is on file in the Mayor's Office of Cultural Affairs. The terms of the proposal are incorporated herein by reference and shall govern the uses of the funds provided herein. The financial assistance provided for in 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 fgr a valid municipal public purpose, to wit: for the promotion of art appreciation in San Bernardino, as more fully set forth in the proposal submitted by Organization. 2. Payment. Upon presentation of a claim to the Mayor's Office, City shall pay to Organization from the budget for the 2006-07 fiscal year, the total sum of $70,000.00 dollars, to cover the costs per Fine Arts grant application agreement. 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 -1- 2006-280 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. 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, 2007, 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 funds which were provided by the City and/or the Redevelopment Agency of the City of San Bernardino (RDA). Financial records shall be maintained in accordance with generally accepted accounting principles by Organization in such 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 City and/or the RDA or their officers or agents. Failure to submit the financial records in accordance with this section will result in the Organization reimbursing the funds to the City and/or the RDA. 5. Hold Harmless. Organization covenants and agrees to defend, indemnify, and hold harmless the City and the Redevelopment Agency of the City of San Bernardino (RDA) , their elective and appointive boards, commissions, officers, attorneys, agents and employees from all liabilities and charges, expenses (including attorney 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 under this agreement. Payments hereunder are made with the understanding that the City and/or the RDA 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 and/or the RDA in performing said services. Organization further warrants that it has -2 - 2006-280 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. secured all rights and permissions to perform any works of intellectual property publicly or use any names, marks, or trade names, including any licenses necessary, to use any intellectual property, including, but not limited to, any works protected by state and federal statutory and common law copyright, right of publicity, and trademark/unfair competition laws, or any other proprietary rights. Organization agrees to indemnify, hold harmless, and defend the City of San Bernardino and the Redevelopment Agency of the City of San Bernardino, including their employees, contractors, and agents, from and against any claims or lawsuits, including costs, expenses, and attorney's fees, that arise or result from any allegation of intellectual property infringement by organization. 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 "attorney fees" for the purposes of this paragraph. 6. Termination. City shall have the right to terminate this Agreement and any funding remaining unpaid hereunder for any reason by mailing a ten-day written notice to Organization and this agreement shall terminate ten days after the mailing of such notice. In event this Agreement is 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 to City any funds expended which were used for any purpose other than those authorized under this Agreement. 7. Assignment. assign its interest in prior written approval Organization shall not this Agreement without the of City. 8. Insurance. Organization shall take out and maintain during the life of this Agreement such .3. 2006-280 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. public liability and property damage insurance, naming the City and their elective and appointive boards, including the Redevelopment Agency, commissions, officers, attorneys, agents and employees as additional insured by Organization and its agents performing acts covered by this Agreement from the claims 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 anyone occurrence. (b) less than person on Property Damage Insurance. In an amount not $50,000 for damage to the property of each 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. (d) The Certificate of Insurance furnished to the City shall require the insurer to notify the City of any change or termination in the policy. -4 - .. 2006-280 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. 9. Obligation. Organization hereby convenants that it has taken all actions necessary to make the adherence to the obligations imposed by this agreement a binding obligation of the organization. 10. Notices. All notices herein required shall be in writing and delivered in person or sent by certified mail, postage prepaid addressed as follows: As to City: As to Organization: 300 North ~D" Street San Bernardino, CA. 92418 Mary Schnepp, President San Bernardino Symphony Orchestra 1811 N. ~D" Street San Bernardino, CA. 92405 Mayor's Office City of San Bernardino 11. Entire Agreement. This Agreement and any other documents of instruments attached hereto or referred to herein integrate all terms and conditions mentioned herein or incidental hereto, and supersede all negotiations and prior writing in respect to the subject matter hereof. In the event of conflict between the terms, conditions or provisions of this Agreement, and any such document or instrument, the terms and conditions of this Agreement shall prevail. 12. Non-Discrimination. Organization agrees that for the term of this Agreement it shall not discriminate in employment recruitment, hiring, admission practices, advertising or in an other manner on the basis of race, color, creed, religion, national origin, sex, physical handicap, or marital status. III III III III - 5- 2006-280 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. CITY OF SAN BERNARDINO Date: rrbJot. ~ Morris, Mayor ATTEST:~~.IJ.~ Rachel G. lark, City Clerk SAN BERNARDINO SYMPHONY ORCHESTRA BY:~~~~~ Mary Schnep , Presiden Approved as to form: James F. Penman City Attorney -6-