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Home My WebLink About2012-288 2012-288 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SAN BERNARDINO; THE SAN BERNARDINO BLACK CULTURE FOUNDATION, INC. AND THE MARTIN LUTHER KING STATUE RESTORATION COMMITTEE This Memorandum of Understanding("MOU")is made as of December 17 ,2012,by and between The City of San Bernardino ("CITY"); the San Bernardino Black Culture Foundation, Inc., a California nonprofit corporation ("SBBCF"), and the Martin Luther King Statute Restoration Committee ("MLK"). The parties to this MOU may be referred to herein collectively as "Parties" or individually as a"Party." RECITALS A. The CITY is a charter city operating under its charter, ordinances and the laws of the State of California. B. SBBCF is a nonprofit 501(c)(3) corporation. C. MLK is a committee formed to solicit donations on behalf of the SBBCF to be used for the restoration of the memorial statue of Dr.Martin Luther King Jr.(the"Statue")that is located in front of San Bernardino City Hall, and is owned by the City of San Bernardino. D. The Parties desire to enter into a cooperative relationship to restore the Statute("Restoration Project"). SBBCF will act as the umbrella foundation to receive and hold donations and fund raising money raised by MLK for the purposes of the Restoration Project. NOW,THEREFORE, in consideration of the recitals above and the mutual covenants contained in this MOU, the Parties agree as follows: 1. Raising of Funds. MLK shall be solely responsible for soliciting donations and sponsoring fund raising events on behalf of the SBBCF to be used toward the Restoration Project. It is understood and acknowledged that the City shall not be required to commit any funding towards the cost and expense of the Restoration Project. 2. Restoration Project Estimates. MLK estimates that the total cost of the Restoration Project will be approximately$ . MLK estimates that once the funds are raised to complete the Restoration Project, it will take approximately _ days to complete the Restoration Project. Memorandum of Understanding Page 1 of 3 F:\PENMAN\MOU MLK RESTORATION PROJECT.wpd EXHIBIT "A" 2012-288 3. Completion of Restoration Project. The City grants and acknowledges MLK's authority to restore the Statue and complete the Restoration Project. Prior to commencement of the Restoration Project,MLK shall provide the City a list of work that will be performed under the Restoration Project. Such work may include but is not limited to work to restore the Statute to its original condition in addition to beautification and enhancement of the area immediately surrounding the Statue including attractive landscaping. The City shall review and approve the proposed work to be performed within ten(10)days after receipt of the list provided by MLK. The City's approval of MLK's work list shall not be unreasonably denied. MLK shall only hire qualified licensed and bonded contractors to complete the Restoration Project. Any contractor hired to complete the Restoration Project shall be required to maintain a policy of general liability insurance that is acceptable to the City. 4. Collection of Cash Receipts. SBBCF shall act as the umbrella foundation for the Restoration Project. All funds raised by MLK for the Restoration Project shall be held by SBBCF in a separate interest bearing account and held until such time as there are sufficient funds to complete the Restoration Project. It is understood and acknowledged that donations made toward the Restoration Project are to be treated as charitable contributions to SBBCF to allow donors the option of claiming deductions that may be applicable to them under relevant tax regulations. SBBCF shall not use any funds raised toward the Restoration Project for any other purpose other than towards expenses or costs to restore the Statue unless the Parties agree otherwise in writing. If any funds are raised in excess of the total cost to complete the Restoration Project, those funds shall continue to be held in an interest bearing account to be used toward future costs and expenses related to the Statue unless all of the Parties agree otherwise in writing. 5. SBBCF Responsibilities. SBBCF's sole responsibility under the terms of this MOU is to permit donors to make charitable contributions to restore the MLK statue which is the sole property of the City. Any restoration and work to be done to the statue must be approved by the MLK Committee and the City and once this occurs, SBBCF's only responsibility is to issue the appropriate check or checks as instructed in writing. Such instructions shall be approved and signed by the City and the MLK Committee. 6. Use of SBBCF Forms. MLK agrees to use the standard forms of SBBCF in its fund raising and money collecting efforts, and for other work related to the Restoration Project. Such forms include but are not limited to SBBCF's budget development forms, check request forms and cash receipt forms. 7. Records. SBBCF shall be responsible for maintaining records of all cash received and held for the Restoration Project. SBBCF shall make these records available at all times for MLK and/or CITY to review. Memorandum of Understanding Page 2 of 3 F:\PENMAN\MOU MLK RESTORATION PROJECT.wpd 2012-288 8. Use of Contractors. The Parties agree that the Restoration Project work shall be completed by qualified licensed and bonded contractors,which shall be required to obtain and maintain all required City of San Bernardino licenses, including but not limited to business licenses. Any contractor hired to complete the Restoration Project shall be required to maintain general liability insurance that is acceptable to the Parties and the City of San Bernardino. To the extent that it is economically feasible for the Restoration Project budget, the Parties may require the contractor to obtain a performance bond to insure the completion of the Restoration Project. 9. Amendment. This MOU may not be amended or modified except by a writing signed by an authorized representative of the Party against whom enforcement of the change is sought. 10. Severability. Each and every provision of this MOU is separate and distinct from any and all provisions of this MOU. Should any provisions of this Agreement be held unenforceable, for any reason, the balance of this MOU shall nonetheless remain in full force and effect. Any provisions shall only be deemed invalid to the extent permitted by law. 11. Governing Law. The formation, construction and performance of this MOU shall be governed by the laws of the State of California. 12. Captions. This MOU shall not be interpreted by reference to any of its titles or headings, which are inserted for convenience only. 13. Non-Discrimination. In performance of the activities set out in this Agreement, the Committee and SBBCF shall not engage in,nor permit their members,officers,employees, or agents to engage in discrimination in the hiring of persons because of their race,religion, color,national origin,ancestry,age,mental or physical disability,medical condition,marital status,sexual orientation,or any other status protected by law,except as permitted purusant to Section 12940 of the California Government Code. /// /// /// Memorandum of Understanding Page 3 of 3 F:\PENMAN\MOU MLK RESTORATION PROJECT.wpd 2012-288 14. Notices. Any notice to be given pursuant to this Agreement shall be deposited with the Untied States Postal Service, postage prepaid and addressed as follows: TO THE CITY: City Manager's Office 300 North"D" Street San Bernardino, CA 92418 Phone: (909) 384-5122 Fax: (909) 384-5138 TO THE COMMITTEE: MLK Statue Restoration Committee Attention: , i,.-ce - Address: 6 ' �•. ,�z,r �`j��y� v SCt Zscii c � Cif 5 2 S/a/ Phone: eo9 53 fi- 4 67 Fax: 9i7 — 335-- 306 /1-174; ,v >E.-4-.14/ 7? ) 4' TO THE SBBCF: San Bernardino Black Cultural Foundation, Inc. Attention: Address: P'1 box 7Zci 1 1 rte►c Cu. ()2_(.111 Phone: c!, Fax: ( Cl a 7 -7 2 15. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement,the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The cost, 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 "attorneys' fees" for the purpose of this paragraph. 16. Venue. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 17. Entire Agreement. This Agreement constitutes the entire agreement and the understanding between the parties,and supercedes any prior agreements and understandings relating to the subject matter of this Agreement. Memorandum of Understanding _ Page 4 of 3 F:\PENMAN\MOU MLK RESTORATION PROJECT wpd . 2012-288 18. Term and Termination. The term of this Agreement shall be for one year commencing on December 17, 2012 and ending on December 31, 2013, or until the restoration and beautification of the Statue are complete, whichever event occurs first. Either party may terminate this Agreement by giving the other party thirty(30) days advance written notice of termination, pursuant to the notice requirements of this Agreement. IN WITNESS WHEREOF,the Parties hereto have duly executed this MOU as of the date and year as indicated below. SA : RNARDINO BLACK CULTURE ••UNDA', ON, INC. dp,,,, Nj Dated: 1�Y•t 3 O13 By: i' �� - 2 Y• tIt 0 G t-nevieve Ech 6 President MARTIN LUTHER KING STATUE RESTORATION COMMITTEE Dated: ls-lli !< 02 3 2i BY: /z _� - %ll 0.-12. a i G/L • ' Dated: tal Ii(1Z By: k,•.tiP Patrick J. orris, Mayor it• an Bernardino Approved as to form: JAMES F. PENMAN, City Attorney By: • X14-1-.4-4. Memorandum of Understanding Page 5 of 5 Z:\PENMAN\MOU MLK RESTORATION PROJECT.wpd