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HomeMy WebLinkAboutSan Bernardino Valley Concert AssociationGRANT RECIPIENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN
BERNARDINO VALLEY CONCERT ASSOCIATION
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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
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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
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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
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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
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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
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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
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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
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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