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HomeMy WebLinkAbout2011-270 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 NO. 2011-270 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF ARTS AND CULTURE. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino IS hereby authorized and directed to execute on behalf of said City to enter into an Agreement with San Bernardino Symphony Orchestra, a copy of which is attached hereto and 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 The authorization to execute the above referenced Agreement is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passage of this resolution.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 III III III III 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 2011-270 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF 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 joint Mayor and Common Council of the City of San Bernardino at a regular meeting thereof, held on the 19thdayof September, 2011, by the following vote, to wit: Council Members: A YES NAYS ABSTAIN ABSENT MARQUEZ x - JENKINS x BRINKER X SHORETT X KELLEY X JOHNSON X MCCAMMACK X ~uJ I~. C.Lc1-'~ City Clerk The foregoing resolution IS hereby approved this September ,2011. cR/.s1- day of Fmi Shorett, May r Pro Tern City of San Bernardino Approved as to fO~: ~! B~ib,\, ~n-,h'vd JAMES F. PENMAN, City Attorney 2011-270 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 as "Organization" The parties agree as follows: 1. Reci tal s . A. Organization has requested financial assistance from City for fiscal year 2011-12, in order to assist in defraying the expense of certain concerts, shows, festivals, events, or activities sponsored by Organization as set forth in Organization's grant proposal (hereinafter "the proposal". 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 City beyond the term of this Agreement. B. The expenditure of funds under this Agreement is for a valid municipal public purpose, to wit: the promotion of art appreciation in the City of San Bernardino, as more fully set forth in the proposal submitted by Organization. 2. Payment. Upon presentation of a claim by Organization to the City Manager's Office, City shall pay to Organization from the City's budget for the 2011-12 fiscal year, the total sum of $70,000.00 dollars. 3. Use of Funds. The funds paid by City to Organization under this Agreement shall be used solely for the purposes set forth in Section 1 of this Agreement and in strict compliance with the provisions of this Agreement. No deviation from the terms of this Agreement shall be made without the express written approval of City. Organization shall return to City any funds provided by City to Organization under this Agreement that Organization has not expended by June 30, 2012. -1- Exhibit "A'l 2011-270 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. 4. Accounting. Within 20 days after the completion of an event for which Organization expends funds provided by City under this Agreement, Organization shall submit to the City Manager's Office, with a copy to City's Director of Finance, an accounting showing the items for which funds were expended and the amount expended for each item in connection with the event. Organization shall maintain financial records in accordance with generally accepted accounting principles in such a manner as to permit City to easily trace the expenditures of the funds. Organization shall keep all of its books and records open for inspection at any time during the business day by City or its officers or agents. If Organization fails to submit the financial records it is required to submit under this section, Organization shall reimburse to City any funds for which the required records are not submitted. 5. Hold Harmless. Organization agrees to defend, indemnify, and hold harmless City, its 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 out of the use or receipt of the funds paid under this Agreement. Payments from the City to Organization under this Agreement are made with the understanding that 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 City in performing said services. Organization warrants that it has secured all licenses or other permissions required to perform or use any works of intellectual property, names, marks, or trade names that Organization performs or uses in the performance of this Agreement. This warranty covers, but is not limited to, works of intellectual property that are protected by state and federal -2 - Exhibit "A" 2011-270 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. statutory and common law copyright, right of publicity, trademark/unfair competition laws, or any other proprietary rights. Organization agrees to indemnify, hold harmless, and defend City, including its employees, contractors, and agents, from and against any claims or lawsuits, including costs, expenses, and attorney fees, that arise or result from any allegation of intellectual property infringement by Organization. The costs, salaries, and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of City shall be considered "attorney feesff for purposes of this section. 6. Termination. City shall have the right to terminate this Agreement and retain any funds not yet distributed to Organization at any time and for any reason by mailing a ten-day written notice to Organization. This Agreement shall terminate ten days after the mailing of such notice. In the event this Agreement is terminated due to Organization's improper use of funds or use of funds for any purpose not authorized by this Agreement, any funds distributed by City to Organization but not yet expended by Organization shall be returned immediately by Organization to City. In addition, Organization shall reimburse City the full amount of any funds distributed by City to Organization and expended by Organization which were used for any purpose not authorized by 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 term of this Agreement policies of public liability and property damage insurance covering any and all claims, damages, or liabilities arising out of the performance of this Agreement by Organization or its agents. Each policy shall designate as named or additional insured City - 3 - Exhibit "A" 2011-270 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. and its elective and appointive boards, commissions, officers, attorneys, agents and employees, and shall cover claims for personal injury, including death, and property damage. The policy limits on each policy shall be at least the following amounts: (a) Public Liability Insurance - not less than $1,000,000 per occurrence for injury, including but not limited to death, to any person. (b) Property Damage Insurance - not less than $50,000 per occurrence. (c) Workers Compensation - in the minimum coverage amounts required by the California Labor Code, and including employer's liability insurance with minimum coverage of $1,000,000 per occurrence. Each Policy shall provide for a waiver by the insurer of subrogation against City and its directors, officers, agents, and employees. For each policy, Organization shall provide to City a Certificate of Insurance which shall require the insurer to provide City with at least 30 days' notice of any change in or termination of the policy. 9. Obligation. Organization hereby covenants that it has taken all actions necessary to make the adherence to the obligations imposed by this Agreement a binding obligation of 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 "On Street San Bernardino, CA. 92418 Mary Schnepp, President San Bernardino Symphony Orchestra 1811 N. 0 Street San Bernardino, CA. 92405 City Manager's Office City of San Bernardino -4- Exhibit "A" 2011-270 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. 11. Entire Agreement. This Agreement and any other documents or instruments attached hereto or referred to herein integrate all terms and conditions mentioned herein or incidental hereto, and supersede all negotiations and prior writings 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, or advertising or in any other manner on the basis of race, color, creed, religion, national origin, sex, marital status, disability, age, or any other protected classification under federal, state, or City laws. III III III III III III III III III III III III - 5 - Exhibit "A'l 2011-270 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: Charles McNeely, City Manager SAN BERNARDINO SYMPHONY ORCHESTRA Date: Mary Schnepp, President Approved as to Form: By: James F. Penman, City Attorney - 6- Exhibit "A" 2011-270 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 as "Organization" The parties agree as follows: 1. Recitals. A. Organization has requested financial assistance from City for fiscal year 2011-12, in order to assist in defraying the expense of certain concerts, shows, festivals, events, or activities sponsored by Organization as set forth in Organization's grant proposal (hereinafter "the proposal". 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 City beyond the term of this Agreement. B. The expenditure of funds under this Agreement is for a valid municipal public purpose, to wit: the promotion of art appreciation in the City of San Bernardino, as more fully set forth in the proposal submitted by Organization. 2. Payment. Upon presentation of a claim by Organization to the City Manager's Office, City shall pay to Organization from the City's budget for the 2011-12 fiscal year, the total sum of $70,000.00 dollars. 3. Use of Funds. The funds paid by City to Organization under this Agreement shall be used solely for the purposes set forth in Section 1 of this Agreement and in strict compliance with the provisions of this Agreement. No deviation from the terms of this Agreement shall be made without the express written approval of City. Organization shall return to City any funds provided by City to Organization under this Agreement that Organization has not expended by June 30, 2012. - 1 - 2011-270 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. 4. Accounting. Within 20 days after the completion of an event for which Organization expends funds provided by City under this Agreement, Organization shall submit to the City Manager's Office, with a copy to City's Director of Finance, an accounting showing the items for which funds were expended and the amount expended for each item in connection with the event. Organization shall maintain financial records in accordance with generally accepted accounting principles in such a manner as to permit City to easily trace the expenditures of the funds. Organization shall keep all of its books and records open for inspection at any time during the business day by City or its officers or agents. If Organization fails to submit the financial records it is required to submit under this section, Organization shall reimburse to City any funds for which the required records are not submitted. 5. Hold Harmless. Organization agrees to defend, indemnify, and hold harmless City, its 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 out of the use or receipt of the funds paid under this Agreement. Payments from the City to Organization under this Agreement are made with the understanding that 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 City in performing said services. Organization warrants that it has secured all licenses or other permissions required to perform or use any works of intellectual property, names, marks, or trade names that Organization performs or uses in the performance of this Agreement. This warranty covers, but is not limited to, works of intellectual property that are protected by state and federal -2- 2011-270 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. statutory and common law copyright, right of publicity, trademark/unfair competition laws, or any other proprietary rights. Organization agrees to indemnify, hold harmless, and defend City, including its employees, contractors, and agents, from and against any claims or lawsuits, including costs, expenses, and attorney fees, that arise or result from any allegation of intellectual property infringement by Organization. The costs, salaries, and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of City shall be considered "attorney fees" for purposes of this section. 6. Termination. City shall have the right to terminate this Agreement and retain any funds not yet distributed to Organization at any time and for any reason by mailing a ten-day written notice to Organization. This Agreement shall terminate ten days after the mailing of such notice. In the event this Agreement is terminated due to Organization's improper use of funds or use of funds for any purpose not authorized by this Agreement, any funds distributed by City to Organization but not yet expended by Organization shall be returned immediately by Organization to City. In addition, Organization shall reimburse City the full amount of any funds distributed by City to Organization and expended by Organization which were used for any purpose not authorized by 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 term of this Agreement policies of public liability and property damage insurance covering any and all claims, damages, or liabilities arising out of the performance of this Agreement by Organization or its agents. Each policy shall designate as named or additional insured City - 3 - 2011-270 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. and its elective and appointive boards, commissions, officers, attorneys, agents and employees, and shall cover claims for personal injury, including death, and property damage. The policy limits on each policy shall be at least the following amounts: (a) Public Liability Insurance - not less than $1,000,000 per occurrence for injury, including but not limited to death, to any person. (b) ,Property Damage Insurance - not less than $50,000 per occurrence. (c) Workers Compensation - in the minimum coverage amounts required by the California Labor Code, and including employer's liability insurance with minimum coverage of $1,000,000 per occurrence. Each Policy shall provide for a waiver by the insurer of subrogation against City and its directors, officers, agents, and employees. For each policy, Organization shall provide to City a Certificate of Insurance which shall require the insurer to provide City with at least 30 days' notice of any change in or termination of the policy. 9. Obligation. Organization hereby covenants that it has taken all actions necessary to make the adherence to the obligations imposed by this Agreement a binding obligation of 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 "0" Street San Bernardino, CA. 92418 Mary Schnepp, President San Bernardino Symphony Orchestra 1811 N. 0 Street San Bernardino, CA. 92405 City Manager's Office City of San Bernardino -4- 2011-270 AGREEMENT RE: THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO SYMPHONY ORCHESTRA FOR THE PROMOTION OF THE ARTS AND CULTURE. 11. Entire Agreement. This Agreement and any other documents or instruments attached hereto or referred to herein integrate all terms and conditions mentioned herein or incidental hereto, and supersede all negotiations and prior writings 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, or advertising or in any other manner on the basis of race, color, creed, religion, national origin, sex, marital status, disability, age, or any other protected classification under federal, state, or City laws. III III III III III III III III III III III III - 5 - 2011-270 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: q 11-\ 1\\ (\vfIL JkulU _. 'lJi, fJ, (l tL Charles McNeely;' City Manager Date:/I- 9-1/ SAN BERNARDINO SYMPHONY ORCHESTRA ~~~ch--r/= President Approved as to Form: ~~ - 6 -