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HomeMy WebLinkAbout2014-425 RESOLUTION NO. 2014-425 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AWARDING A GRANT IN THE AMOUNT OF $2,500 TO THE 3 SAN BERNARDINO BLACK CULTURE FOUNDATION AND AUTHORIZING THE EXECUTION OF A GRANT RECIPIENT AGREEMENT FOR THE CREATION 4 AND INSTALLATION OF A STATUE OF ROSA PARKS AT THE ROSA PARKS MEMORIAL BUILDING. 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor and Common Council hereby award to the San Bernardino Black 8 9 Culture Foundation a Cultural Development Grant in the amount of$2,500.00, made pursuant 10 to San Bernardino Municipal Code Chapter 15.57, for the purposes of promoting fine art and 11 culture in the City of San Bernardino; and, 12 SECTION 2. The City Manager of the City of San Bernardino is hereby authorized to 13 execute on behalf of the City a Grant Recipient Agreement, attached as Exhibit "A" and 14 15 incorporated herein by this reference as though set forth fully at length. 16 SECTION 3. That the authorization granted by this Resolution is rescinded and of no further 17 effect if the action authorized is not performed within sixty (60) days of the passage of this 18 Resolution. 19 20 21 22 23 24 25 26 27 28 /// I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AWARDING A GRANT IN THE AMOUNT OF $2,500 TO THE SAN BERNARDINO BLACK CULTURE FOUNDATION AND AUTHORIZING THE 3 EXECUTION OF A GRANT RECIPIENT AGREEMENT FOR THE CREATION AND INSTALLATION OF A STATUE OF ROSA PARKS AT THE ROSA PARKS 4 MEMORIAL BUILDING. 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 8 15th day of December, 2014,by the following vote, to wit: 9 10 Council Members: AYES NAYS ABSTAIN ABSENT 11 MARQUEZ _X 12 BARRIOS X 13 VALDIVIA X 14 15 SHORETT X 16 NICKEL _X 17 JOHNSON _X 18 MULV IHILL X 19 20 Georg Hanna, ity Clerk 21 22 The foregoing resolution is hereby approved this— da )of Decemb , 014. d 23 2 24 li CAREY DA IS, Mayor 25 City of San Be ardino Approved as to form: 26 GARY D. SAENZ, City Attorney 27 By: 28 2014-425 GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR CREATION AND INSTALLATION OF A STATUE OF ROSA PARKS AT THE ROSA PARKS MEMORIAL BUILDING IN SAN BERNARDINO This Grant Recipient Agreement (the "Agreement") is entered into this 15t lday of December 2014, BY AND BETWEEN: the City of San Bernardino, a Charter City organized under the laws of the State of California, with an address of 300 N. "D" Street, San Bernardino, California (the "CITY"); AND, San Bernardino Black Culture Foundation, a non-profit organization, incorporated under the laws of the State of California and having its principal place of business in San Bernardino, CA (the "Grant Recipient") (individually CITY or GRANT RECIPIENT may be referred to as a "PARTY" and collectively CITY and GRANT RECIPIENT may be referred to as the "PARTIES"). WITNESSETH : WHEREAS, the CITY collects Cultural Development Construction Fees pursuant to San Bernardino Municipal Code Chapter 15.57 to promote fine arts and culture; and WHEREAS, the Fine Arts Commission of the City of San Bernardino has considered the proposal by the Grant Recipient and recommends the City support the creation and installation of a Rosa Parks statute at the Rosa Parks Memorial Building in San Bernardino ("Project") to promote fine arts and culture; and WHEREAS, the Mayor and Common Council of CITY have determined that it is advantageous and in the best interest of the CITY to support the Project to promote fine arts and culture; and, WHEREAS, CITY and GRANT RECIPIENT desire to memorialize the nature of the Project and desire to set forth their rights, duties, and liabilities in connection with the City's support of the Project; and, WHEREAS, no official or employee of the CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 1 of 8 2014-425 NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. SCOPE OF SERVICES. CITY hereby awards to GRANT RECIPIENT, and GRANT RECIPIENT hereby agrees to accept, a Cultural Development Grant in the amount of$2,500.00, subject to availability of the funds, for the purpose of creating and installing a permanent statue of Rosa Louise McCauley Parks, an African-American civil rights activist, at the Rosa Parks Memorial Building located at 464 West 4th Street in San Bernardino. The Project shall be budgeted in substantial conformity with the budget attached as Attachment "1" and incorporated herein by this reference as though set forth fully at length. 2. DISBURSEMENT, RECORDS, AND REPORTS. 2.1 Grant Disbursement. GRANT RECIPIENT shall be paid the grant amount of $2,500.00. No other amounts, except those expressly provided for in this Agreement, shall be paid by CITY. 2.2 Grant Reversion. If GRANT RECIPIENT is unable to secure all funding necessary to complete the Project by December 31, 2015, or is unable to begin work on the Project by March 31, 2016, or is unable to complete the Project by June 31, 2016, then any unexpended Grant amount paid to Grant Recipient shall be immediately returned to the CITY. 2.3 Records and Audits. The Grant Recipient shall maintain accounting books, records, documents and other evidence relating to this Agreement, adequate to show, without limitation, all costs incurred and revenues received by the Grant Recipient for the Project and the overall progress toward completion of the Project ("Project Books and Records"). The Grant Recipient shall maintain Program Books and Records in accordance with the generally accepted accounting standards. Program Books and Records must be kept in the possession of the Grant Recipient for at least three years after the date of last disbursement under this Agreement, or for such longer period, if any, required to resolve any claims or audits, or if required to do so by the City. 2.4 Access. The Grant Recipient shall permit, and shall ensure that all third parties permit, authorized representatives of the City, agents of the City, and any other third party authorized by the City, unrestricted access at all times to: (i) Project Books and Records and any other documentation related to the Project held by the Grant Recipient; (ii) the premises of the Grant Recipient where Project Books and Records are kept or Project activities are or have been carried out; (iii) other sites where Project-related documentation is kept or Project activities are or have been carried out; and (iv) all personnel of the Grant Recipient. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 2 of 8 2014-425 2.5 Reports. The Grant Recipient shall provide to the City, not later than June 31, 2015, a written report on the progress of the Project. The Grant Recipient shall submit written reports on the progress of the Project periodically thereafter at least once every six months, until the Project is completed. Grant Recipient shall include in any such reports an explanation for any variance between planned and actual progress of the Project and any variance between planned and actual expenditures. 3. TERM; TERMINATION. The term of this Agreement shall be from December 1, 2014 until June 31, 2016. This Agreement may be terminated at any time upon thirty (30) days written notice by either PARTY. The terms of this Agreement shall remain in force unless mutually amended in writing. The duration of this Agreement may be extended with the written consent of both parties. 4. INDEMNITY. GRANT RECIPIENT agrees to and shall indemnify and hold the CITY, its elected officials, employees, agents, or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of GRANT RECIPIENT, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the Project under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, GRANT RECIPIENT agrees to protect and defend at its own expense, including attorney's fees, the CITY, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. GRANT RECIPIENT hereby waives any and all rights to any types of express or implied indemnity against the CITY, its elected officials, employees, agents or representatives, with respect to third party claims against the GRANT RECIPIENT relating to or in any way connected with the accomplishment of the Project under this Agreement. 5. INSURANCE. The GRANT RECIPIENT shall maintain, where available at a reasonable cost, all risk property insurance on Project assets and comprehensive general liability insurance with financially sound and reputable insurance companies. The insurance coverage shall be consistent with that held by similar entities engaged in comparable activities. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, GRANT RECIPIENT shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 3 of 8 2014-425 ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. INDEPENDENT CONTRACTOR. GRANT RECIPIENT shall perform the Project provided by this Agreement, but for all intents and purposes GRANT RECIPIENT shall be an independent contractor and not an agent or employee of the CITY. GRANT RECIPIENT shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for GRANT RECIPIENT and its officers, agents, and employees, and all business license, if any are required, in connection with the services to be performed hereunder. 8. PERMITS AND OTHER REQUIREMENTS. GRANT RECIPIENT warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, all necessary licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of GRANT RECIPIENT to practice complete the Project. 9. NOTICES. Any notices, documents, correspondence, or other communication concerning this Agreement or the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. TO THE CITY: TO THE GRANT RECIPIENT: City Manager Secretary 300 N. "D" Street P.O. Box 7288 San Bernardino, CA 92418 San Bernardino, CA 92411 Either PARTY may change the address for delivery of notices by sending notice of the change to the other PARTY in conformity with this Section. 10. 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 costs, salary and expenses of the City Attorney and members of his/her office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 4 of 8 2014-425 11. ASSIGNMENT. GRANT RECIPIENT shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the Grant Award made by this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release GRANT RECIPIENT of GRANT RECIPIENT'S obligation to complete the Project. 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the Superior Court of the State of California for the County of San Bernardino or the United States 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. 13. GOVERNING LAW. This Agreement shall be governed and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. REMEDIES; WAIVER. All remedies available to either PARTY for one or more breaches by the other PARTY are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 5 of 8 2014-425 The delay or failure of either PARTY to require performance or compliance of the other of any of its obligations under this Agreement shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the PARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver. 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and the understanding between the PARTIES, and supersedes any prior agreements and understandings relating to the subject matter of this Agreement. 19. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding obligation of the PARTY executing (or on whose behalf such signature is execute) with the same force and effect as if such facsimile or".pdf' signature page were an original thereof. 20. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 21. CORPORATE AUTHORITY. Each person executing this Agreement on behalf of the PARTIES hereto warrant that they are duly authorized to execute this Agreement on behalf of said PARTIES and that by doing so the PARTIES hereto are formally bound to the provisions of this Agreement. 22. COMPLIANCE WITH LAW. GRANT RECIPIENT agrees to abide by all federal, state, and local laws, ordinances and regulations. 23. FORCE MAJEURE. A PARTY shall not be liable for any failure or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 6 of 8 2014-425 25. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments,the terms set forth in this Agreement shall prevail. 26. CONSTRUCTION. The PARTIES have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the PARTIES and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement. /// /// GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 7 of 8 2014-425 GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR CREATION AND INSTALLATION OF A STATUE OF ROSA PARKS AT THE ROSA PARKS MEMORIAL BUILDING IN SAN BERNARDINO IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: 92014 GRANT RECIPIENT: San Bernardino Black Culture Foundation By: Its: Dated , 2014 CITY OF SAN BERNARDINO By: Allen Parker, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney By. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 8 of 8 ATTACHMENT 1 2014-425 Budget for Rosa Parks Sculpture Supplies & tools $1,000.00 Molding $7,000.00 Bronzing $9,700.00 Sculpting fee $13,500.00 Bronzed donor plaque $2,500.00 Statue installation and delivery $1,300.00 Concrete bench fabrication and Installation $3,000.00 -------------------------------------------------------------------------------- Total $ 38,000.00 The Rosa Parks Project is working with the San Bernardino County Board of Supervisors to acquire the necessary funding for the statue of Rosa parks. We are also looking for matching grants from Omnitrans and San bag. The San Manuel Mission Indians have expressed interest in donating as well. It is our hope that we could install the statue sometime in February for black History month. The sculpting process for the statue of Rosa Parks has been completed. Molding 1 week Bronzing 7 weeks Installation 1 day 2014-425 GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR CREATION AND INSTALLATION OF A STATUE OF ROSA PARKS AT THE ROSA PARKS MEMORIAL BUILDING IN SAN BERNARDINO This Grant Recipient Agreement (the "Agreement") is entered into this 11t17day of December 2014, BY AND BETWEEN: the City of San Bernardino, a Charter City organized under the laws of the State of California, with an address of 300 N. "D" Street, San Bernardino, California (the "CITY"); AND, San Bernardino Black Culture Foundation, a non-profit organization, incorporated under the laws of the State of California and having its principal place of business in San Bernardino, CA (the "Grant Recipient") (individually CITY or GRANT RECIPIENT may be referred to as a "PARTY" and collectively CITY and GRANT RECIPIENT may be referred to as the"PARTIES"). WITNESSETH : WHEREAS, the CITY collects Cultural Development Construction Fees pursuant to San Bernardino Municipal Code Chapter 15.57 to promote fine arts and culture; and WHEREAS, the Fine Arts Commission of the City of San Bernardino has considered the proposal by the Grant Recipient and recommends the City support the creation and installation of a Rosa Parks statute at the Rosa Parks Memorial Building in San Bernardino ("Project") to promote fine arts and culture; and WHEREAS, the Mayor and Common Council of CITY have determined that it is advantageous and in the best interest of the CITY to support the Project to promote fine arts and culture; and, WHEREAS, CITY and GRANT RECIPIENT desire to memorialize the nature of the Project and desire to set forth their rights, duties, and liabilities in connection with the City's support of the Project; and, WHEREAS, no official or employee of the CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 1 of 8 2014-425 NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein,the PARTIES hereby agree as follows: 1. SCOPE OF SERVICES. CITY hereby awards to GRANT RECIPIENT, and GRANT RECIPIENT hereby agrees to accept, a Cultural Development Grant in the amount of$2,500.00, subject to availability of the funds, for the purpose of creating and installing a permanent statue of Rosa Louise McCauley Parks, an African-American civil rights activist, at the Rosa Parks Memorial Building located at 464 West 4t" Street in San Bernardino. The Project shall be budgeted in substantial conformity with the budget attached as Attachment "1" and incorporated herein by this reference as though set forth fully at length. 2. DISBURSEMENT,RECORDS,AND REPORTS. 2.1 Grant Disbursement. GRANT RECIPIENT shall be paid the grant amount of $2,500.00. No other amounts, except those expressly provided for in this Agreement, shall be paid by CITY. 2.2 Grant Reversion. If GRANT RECIPIENT is unable to secure all funding necessary to complete the Project by December 31, 2015, or is unable to begin work on the Project by March 31, 2016, or is unable to complete the Project by June 31, 2016, then any unexpended Grant amount paid to Grant Recipient shall be immediately returned to the CITY. 2.3 Records and Audits. The Grant Recipient shall maintain accounting books, records, documents and other evidence relating to this Agreement, adequate to show, without limitation, all costs incurred and revenues received by the Grant Recipient for the Project and the overall progress toward completion of the Project ("Project Books and Records"). The Grant Recipient shall maintain Program Books and Records in accordance with the generally accepted accounting standards. Program Books and Records must be kept in the possession of the Grant Recipient for at least three years after the date of last disbursement under this Agreement, or for such longer period, if any, required to resolve any claims or audits, or if required to do so by the City. 2.4 Access. The Grant Recipient shall permit, and shall ensure that all third parties permit, authorized representatives of the City, agents of the City, and any other third party authorized by the City, unrestricted access at all times to: (i) Project Books and Records and any other documentation related to the Project held by the Grant Recipient; (ii) the premises of the Grant Recipient where Project Books and Records are kept or Project activities are or have been carried out; (iii) other sites where Project-related documentation is kept or Project activities are or have been carried out; and (iv) all personnel of the Grant Recipient. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 2 of 8 2014-425 2.5 Reports. The Grant Recipient shall provide to the City, not later than June 31, 2015, a written report on the progress of the Project. The Grant Recipient shall submit written reports on the progress of the Project periodically thereafter at least once every six months, until the Project is completed. Grant Recipient shall include in any such reports an explanation for any variance between planned and actual progress of the Project and any variance between planned and actual expenditures. 3. TERM; TERMINATION. The term of this Agreement shall be from December 1,2014 until June 31,2016. This Agreement may be terminated at any time upon thirty (30) days written notice by either PARTY. The terms of this Agreement shall remain in force unless mutually amended in writing. The duration of this Agreement may be extended with the written consent of both parties. 4. INDEMNITY. GRANT RECIPIENT agrees to and shall indemnify and hold the CITY, its elected officials, employees, agents, or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of GRANT RECIPIENT, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the Project under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, GRANT RECIPIENT agrees to protect and defend at its own expense, including attorney's fees, the CITY, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. GRANT RECIPIENT hereby waives any and all rights to any types of express or implied indemnity against the CITY, its elected officials, employees, agents or representatives, with respect to third party claims against the GRANT RECIPIENT relating to or in any way connected with the accomplishment of the Project under this Agreement. 5. INSURANCE. The GRANT RECIPIENT shall maintain, where available at a reasonable cost, all risk property insurance on Project assets and comprehensive general liability insurance with financially sound and reputable insurance companies. The insurance coverage shall be consistent with that held by similar entities engaged in comparable activities. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, GRANT RECIPIENT shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 3 of 8 2014-425 ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. INDEPENDENT CONTRACTOR. GRANT RECIPIENT shall perform the Project provided by this Agreement, but for all intents and purposes GRANT RECIPIENT shall be an independent contractor and not an agent or employee of the CITY. GRANT RECIPIENT shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for GRANT RECIPIENT and its officers, agents, and employees, and all business license, if any are required, in connection with the services to be performed hereunder. 8. PERMITS AND OTHER REQUIREMENTS. GRANT RECIPIENT warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, all necessary licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of GRANT RECIPIENT to practice complete the Project. 9. NOTICES. Any notices, documents, correspondence, or other communication concerning this Agreement or the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. TO THE CITY: TO THE GRANT RECIPIENT: City Manager Secretary 300 N. "D" Street P.O. Box 7288 San Bernardino, CA 92418 San Bernardino, CA 92411 Either PARTY may change the address for delivery of notices by sending notice of the change to the other PARTY in conformity with this Section. 10. 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 costs, salary and expenses of the City Attorney and members of his/her office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 4 of 8 2014-425 11. ASSIGNMENT. GRANT RECIPIENT shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the Grant Award made by this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release GRANT RECIPIENT of GRANT RECIPIENT'S obligation to complete the Project. 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the Superior Court of the State of California for the County of San Bernardino or the United States 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. 13. GOVERNING LAW. This Agreement shall be governed and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. REMEDIES; WAIVER. All remedies available to either PARTY for one or more breaches by the other PARTY are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 5 of 8 2014-425 The delay or failure of either PARTY to require performance or compliance of the other of any of its obligations under this Agreement shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the PARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver. 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and the understanding between the PARTIES, and supersedes any prior agreements and understandings relating to the subject matter of this Agreement. 19. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding obligation of the PARTY executing (or on whose behalf such signature is execute) with the same force and effect as if such facsimile or".pdf' signature page were an original thereof. 20. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 21. CORPORATE AUTHORITY. Each person executing this Agreement on behalf of the PARTIES hereto warrant that they are duly authorized to execute this Agreement on behalf of said PARTIES and that by doing so the PARTIES hereto are formally bound to the provisions of this Agreement. 22. COMPLIANCE WITH LAW. GRANT RECIPIENT agrees to abide by all federal, state, and local laws, ordinances and regulations. 23. FORCE MAJEURE. A PARTY shall not be liable for any failure or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 6 of 8 2014-425 25. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments,the terms set forth in this Agreement shall prevail. 26. CONSTRUCTION. The PARTIES have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the PARTIES and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement. HI HI /// /// GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 7 of 8 2014-425 GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR CREATION AND INSTALLATION OF A STATUE OF ROSA PARKS AT THE ROSA PARKS MEMORIAL BUILDING IN SAN BERNARDINO IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: , 201 5 GRANT RECIPIENT: San Bernardino Black Culture Foundation By: Its: ✓ �� J Dated 2014 CITY OF SAN BERNARDINO By: 1 arker, City anager APPROVED AS TO FORM: Gary D. Saenz, City Attorney By: CU4 GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO BLACK CULTURE FOUNDATION FOR INSTALLATION OF A ROSA PARKS STATUE Page 8 of 8