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HomeMy WebLinkAboutSan Bernardino Valley Concert AssociationGRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION Page 1 of 8 GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION This Grant Recipient Agreement (the “Agreement”) is entered into this 7th day of June 2017, 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 VALLEY CONCERT ASSOCIATION (the “Recipient”) (individually CITY or RECIPIENT may be referred to as a “PARTY” and collectively CITY and 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 Recipient and recommends the City support the art related program proposed by Recipient ("Project") to promote fine arts and culture; and, WHEREAS, City and 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. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated in Paragraph 2.1 Compensation, Recipient hereby agrees to perform those actions as set forth in the Recipient’s proposal in Attachment “1,” attached hereto and incorporated herein in order to promote fine arts and culture within the City of San Bernardino. The Project shall be budgeted in substantial conformity with the budget included in Attachment “1.” GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION Page 2 of 8 2. COMPENSATION AND EXPENSES. 2.1 Compensation. RECIPIENT shall be paid the grant amount of $13,000, subject to availability of the funds. No other amounts, except those expressly provided for in this Agreement, shall be paid by CITY. 2.2 Grant Reversion. If RECIPIENT is unable to secure all funding necessary to complete the Project by December 1, 2017, or is unable to begin work on the Project by February 1, 2018, or is unable to complete the Project by June 30, 2019, then any unexpended Grant amount paid to Recipient shall be immediately returned to the CITY. 3.3 Records and Audits. The 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 Recipient for the Project and the overall progress toward completion of the Project ("Project Books and Records"). The 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 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. 3.4 Access. The 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 Recipient; (ii) the premises of the 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 Recipient. 3.5 Reports. The Recipient shall provide to the City, not later than December 1, 2017, a written report on the progress of the Project. The Recipient shall submit written reports on the progress of the Project periodically thereafter at least once every month, until the Project is completed. 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 July 1, 2017 until June 30, 2018, inclusive. 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. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION Page 3 of 8 4. INDEMNITY. 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 RECIPIENT, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services 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, 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. 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 RECIPIENT relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. 5. INSURANCE. The 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, 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, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. NO EMPLOYEE OR AGENT RELATIONSHIP. RECIPIENT shall perform acts provided by this Agreement, but for all intents and purposes RECIPIENT shall not be an agent or employee of the CITY. 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 RECIPIENT and its officers, agents, and employees, and all business licenses, if any are required, in connection with the actions to be performed hereunder. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION Page 4 of 8 8. LICENSES AND PERMITS. RECIPIENT warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, any licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of RECIPIENT to practice its business or profession. 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 RECIPIENT: Office of the City Manager San Bernardino Valley Concert Association 290 North “D” Street, 3rd Floor P.O. Box 377 San Bernardino, CA 92401 San Bernardino, CA 92402 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. 11. ASSIGNMENT. RECIPIENT shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the RECIPIENT’s interest in 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 RECIPIENT of RECIPIENT’s obligation to perform all other obligations to be performed by RECIPIENT hereunder for the term of this Agreement. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION Page 5 of 8 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated in the Superior Court of the State of California for the County of San Bernardino. 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. 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. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION Page 6 of 8 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 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. 24. 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. GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION Page 7 of 8 25. 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. 26. ATTACHMENTS. The Attachments to this Agreement are an integral part of this Agreement and have each been incorporated herein. 27. RELIGIOUS PROSELYTIZING OR POLITICAL ACTIVITIES The Recipient agrees that it will not perform or permit any religious proselytizing or political activities in connection with the performance of this Agreement. Funds under this Agreement will be used exclusively for performance of the services required under this Agreement and no funds shall be used to promote any religious or political activities. The Recipient will not discriminate against any employee or applicant for employment on the basis of religion and will not limit employment or give preference in employment to persons on the basis of religion. The Recipient will not discriminate against any person applying for the Project on the basis of religion and will not limit such services or give preference to persons on the basis of religion. The Recipient will provide no religious instruction or counseling, conduct no religious worship or services, engage in no religious proselytizing, and exert no other religious influence in the provision the Project. [Signature pages follow] GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION Page 8 of 8 GRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO VALLEY CONCERT ASSOCIATION IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: ____________, 2017 SAN BERNARDINO VALLEY CONCERT ASSOCIATION By: Its: Dated: ____________, 2017 CITY OF SAN BERNARDINO By: Mark Scott, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney By: ATTEST: Georgeann Hanna, CMC, City Clerk