1 RESTRICTED GRANT AGREEMENT
San Manuel Band of Mission Indians
and
City of San Bernardino
Lytle Creek Community Center and Park Improvements
This Restricted Grant Agreement (this "Agreement") is entered into and made effective this December 15, 2023 (the "Effective Date") by and between the San Manuel Band of Mission Indians, a federally recognized Indian tribe located on the San Manuel Indian Reservation at 26569 Community Center Drive, Highland, CA, 92346 ("Tribe"), and the City of San Bernardino, a municipal government located at 290 North D Street, San Bernardino, CA 92401 (“Grantee”). Tribe, on the one hand, and Grantee, on the other hand, are each referred to herein individually as a “Party” and together as the “Parties.” I. GRANTEE'S STATUS. This grant is specifically conditioned upon Grantee’s status as an eligible grantee of Tribe in accordance with this Section. Grantee represents and warrants that it operates a fund that is a tax-exempt under Section 170 (b)(1)(v) of the Internal Revenue Code of 1986, as amended (hereinafter the “Code”), because Grantee is a governmental unit as defined by Section 170(c)(1) of the Code. Grantee represents and warrants that it is not a private foundation as defined in Section 509(a) of the Code. Grantee will notify Tribe immediately of any actual or proposed change in its tax status during the Grant Period (as defined below).
II. PURPOSE OF GRANT. The Parties acknowledge and agree that the purpose of Tribe's Grant (as defined below) is to provide funding for renovations and upgrades to the Lytle Creek Community Center and Park in Ward 3 of the City of San Bernardino (hereinafter "Grant Project"). The Grant (as defined below) is made only for renovations related to Lytle Creek Community Center and park improvements, including ADA accessible restroom addition, gazebo/picnic shelter upgrades, and indoor improvements associated with the Center’s afterschool enrichment program as described in this Agreement. The grant funds, which includes any interest earned on the funds (hereinafter collectively referred to as "Grant"), may not be used for any other purpose without prior written approval from Tribe.
III. OBJECTIVES OF GRANT PROJECT
Grantee shall undertake and complete Grant Project within eighteen (18) months of the Effective Date unless Tribe agrees in writing to alternative timelines.
IV. AMOUNT AND PAYMENT OF GRANT. The Parties agree the Grant amount is One Million Dollars ($1,000,000.00), payable upon Grantee's request within 15 days of Tribe's receipt of the fully executed Agreement, and that said Grant shall be used solely to fund renovations to Lytle Creek Community Center and Park in the City of San Bernardino.
V. PERIOD OF GRANT; TERM OF AGREEMENT. The Grant will be applied to fund the renovations of Lytle Creek Community Center and Park of San Bernardino for the period from Effective Date through completion of the Grant Project or within eighteen (18) months of Effective Date, whichever first occurs ("Execution Period").
VI. TERMS AND CONDITIONS OF GRANT. Grantee agrees that the Grant is subject to
2 the following conditions:
a. Expenditure of Grant Funds.
1. Use of Funds. Grantee will spend the Grant only for the purposes of funding the Grant Project as described above.
2. Payment of Funds to Related Parties of Tribe. No part of the Grant may be paid to any director, officer, employee or citizen (or their family members) of Tribe for any purpose.
b. Return of Funds. Grantee shall return to Tribe any and all Grant funds if Tribe determines in its reasonable discretion that either of the following apply:
1. Grantee has not performed in accordance with this Agreement; or
2. Any portion of the Grant is not used for the Grant Project. c. Records, Audits, Site Visits. The Grant provided by Tribe will be accounted for separately in Grantee's books and records. A systematic accounting record shall be kept by Grantee of the receipt and disbursement of the Grant. Grantee will retain original substantiating documents related to restricted Grant expenditures and make these records available for Tribe's review upon 10 days prior written request. As a material term of this Agreement Grantee agrees to maintain adequate financial records pertaining to the Grant for a minimum of three years after completion of the Grant Project, and acknowledges that Tribe may require Grantee to produce written documentation related to the Grant expenditures in a format appropriate to be forwarded by Tribe to the State of California in order to comply with Compact requirements, and Grantee agrees to timely comply with any such request. Tribe, or a designated representative, reserves the right, upon written notice, to conduct a site visit and/or audit Grantee's books and records relating to the expenditure of the Grant.
d. Reports. Grantee will submit a brief written summative report confirming completion of the Grant Project within sixty (60) days following the end of the Execution Period. e. Expenditures. Expenditures of the Grant must be made substantially in accordance with Section VI. Any material changes will be subject to Tribe's prior written approval.
f. Licensing and Credentials. Grantee will maintain, in full force and effect, all required governmental or professional licenses and credentials for itself, its facilities, and for its employees and all other persons engaged in work in conjunction with the Grant. g. Management and Organizational Changes. Grantee will provide immediate written notice to Tribe if significant changes or events occur during the Execution Period which could potentially impact the progress or outcome of the Grant Project, including, without limitation, changes in Grantee's management personnel or losses of funding from any other sources.
h. Termination. Either Party hereto may terminate this Agreement upon not less 3 than thirty (30) days' prior written notice to the other for failure on the part of such Party to perform a material obligation hereunder, or for a breach of such Party's representation or warranty made in this Agreement. Tribe may terminate this Agreement upon not less than thirty (30) days' prior written notice to Grantee for (i) Grantee's change in the fundamental mission, or (ii) Grantee's implication in an event, or series of events, of such notoriety or opprobrium that the continuation of this Agreement has or will have a negative impact upon Tribe, its image or reputation, or (iii) Grantee's inability to fulfill the requirements for payment set forth herein.
In the event of any termination of this Agreement, Grantee shall return all Grant funds received excluding all expenditures and contractual encumbrances consistent with this Agreement and incurred by Grantee in reliance on this Agreement.
If Tribe terminates this Agreement due to Grantee's breach hereof, Grantee will remove all signage and other identification from the facilities and all other places, things and sites wherever there are references to Tribe (collectively, "All Identification"), at Grantee's sole cost and expense.
Under all events of termination hereunder, the removal of All Identification will be completed as soon as reasonably practical, but in no event later than thirty (30) days after the notice of termination. The foregoing rights and remedies are cumulative of, and in addition to, any rights, remedies or recourses to which the terminating party may be entitled at law or in equity.
i. Public Reporting and Media. In recognition of the Grant it is the Parties' understanding that Grantee will express its appreciation and provide recognition publicly to Tribe. The Parties will mutually agree in advance on the manner of presentation and contents of such public recognition. Grantee will also disseminate to the public, by using established channels of communication, pertinent information relating to the results, findings or methods developed through the Grant.
j. Knowing Assumption of Obligations. Grantee acknowledges that it understands its obligations imposed by this Agreement.
k. Terrorist Activity. Grantee represents and warrants that it does not support or conduct, directly or indirectly, violence or terrorist activity of any kind.
I. Identification of Tribe. Grantee shall ensure that Tribe is clearly identified as a funder or supporter of Grantee in all published material relating to the subject matter of the Grant. All proposed external communications by Grantee regarding the subject matter of the Grant or the Tribe shall be submitted first to Tribe for its review and written approval. m. Ownership and Use of Marks.
1. License. Grantee acknowledges and agrees that Tribe is the owner of all right, title and interest in and to Tribe's name and logo (collectively its "Marks") and that Grantee's use of the Marks pursuant to this Agreement inures to the benefit of Tribe. Tribe hereby grants Grantee a non-exclusive and non-transferable license, without the right to sublicense, to use the Marks solely in connection with providing recognition of the Grant pursuant to this Agreement. Grantee will have no rights in or to the Marks, except as expressly granted 4 herein. Tribe expressly reserves to itself all rights in and to the Marks not expressly granted to Grantee pursuant to this Agreement. The manner and use of the Marks shall comply with all federal and state laws pertaining to trade names, trademarks and service marks in force at any time and shall clearly indicate Tribe's ownership of the Marks as requested and approved by Tribe.
2. Approval Rights. All uses of the Marks by Grantee are subject to the prior written approval of Tribe. Grantee will submit to Tribe for approval, at least ten (10) business days prior to its intended first use, all materials which contain the Marks (whether in print media, direct mail, television, radio, internet, email, billboard or in any other form, media or channel). Tribe will have the right to review and approve any copy containing reference to Tribe or including the Marks prior to its use by Grantee. Tribe will use its reasonable efforts to promptly review materials sent by Grantee for approval and will not unreasonably withhold or delay its approval. In no event shall Grantee make any unapproved changes to the Marks. n. Selection of Subgrantees. With regard to the selection of any subgrantees to carry out the purposes of the Grant, Grantee retains full discretion and control over the selection process, acting completely independently of Tribe. There is no agreement, written or oral, by which Tribe may cause Grantee to choose any particular subgrantee. o. No Agency. Grantee is solely responsible for all activities supported by the Grant, the content of any product created with the Grant, and the manner in which any such product may be disseminated. This Agreement will not create any agency relationship, partnership, or joint venture between the Parties, and Grantee will make no such representation to anyone.
p. Remedies. If Tribe determines, in its reasonable discretion, that Grantee has substantially violated or failed to carry out any provision hereof, including but not limited to failure to submit reports when due, Tribe may, in addition to any other legal remedies it may have, refuse to make any further Grant payments to Grantee hereunder or any other grant agreement, and Tribe may demand the return of all or part of the Grant funds not properly spent or committed to third parties, which Grantee will immediately repay to Tribe. Tribe may also avail itself of any other remedies available at law.
q. Waiver of Claims and Indemnification. Grantee waives any and all claims and recourse against Tribe, including the right of contribution for loss or damages to persons or property arising from, growing out of, or in any way connected with or incidental to fulfillment of the terms and conditions specified in this Agreement. Additionally, Grantee will indemnify, defend, protect and hold Tribe and its officers, managers, members, employees, agents and representatives, harmless from any cost, expense, claim, demand, liability and/or damage, including reasonable attorney's fees and costs ("Claims"), arising out of or in connection with, in whole or in part, (i) any false or misleading representation made by Grantee, its agents, employees or delegated representatives in connection with this Agreement, (ii) its breach of any term of this Agreement, (iii) the performance of Tribe's obligations pursuant to this Agreement, or (iv) any claims or actions brought by third parties, including, but not limited to, parties set forth below. Grantee further waives any and all Claims to the extent resulting from, relating to or arising out of (i) the facilities where programs are delivered and/or the operational activities of Grantee therein, including, without limitation, any disputes by, between or among participants, users, guests, or any other attendees and Grantee (or Grantee's respective agents, subcontractors 5 (if any), and employees) or its products and services, any personal injuries sustained by any person at or in connection with the facilities where programs are delivered, and/or any agreements with third parties entered into by Grantee or its agents in connection with the operation of the same facilities, or (ii) the negligent acts or omissions or willful misconduct of Grantee or its agents, subcontractors (if any), or employees in connection with the subject matter of this Agreement, except to the extent those Claims are directly caused by the negligence or willful misconduct of Tribe or its agents or employees.
The obligations of this Section VI (q) shall survive until the expiration of the statute of limitations applicable to the event giving rise to the Claims. r. Notices. All notices, requests, demands, or other communication permitted or required to be given under this Agreement shall be in writing and shall be deemed given or made when sent by United States certified or registered mail, return receipt requested and postage prepaid, or by a nationally recognized overnight courier, delivery fee prepaid, and in either case to the persons and at the addresses specified below:
If to Tribe:
Chief Intergovernmental Affairs Officer
San Manuel Band of Mission Indians
26569 Community Center Drive
Highland, CA 92346
If to Grantee:
Lydie Gutfeld
Director of Parks and Recreation
City of San Bernardino
290 North D Street
San Bernardino, CA 92401
The persons and addresses set forth above, from time to time, may be changed by written notice sent as aforesaid to the other Party.
s. Captions. All captions and headings in this Agreement are for the purposes of reference and convenience only. They shall not limit or expand the provisions of this Agreement.
t. Entire Agreement; Amendments and Modifications. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral, written and other agreements between the Parties. This Agreement may not be amended or modified, except in a writing signed by both Parties. u. Governing Law/ Jurisdiction. This Agreement shall at all times be governed by and construed in accordance with the laws of the State of California applicable to agreements made in California. Nothing in this Agreement shall be construed as a waiver of Tribe's immunity to unconsented suit.
6 v. Non-Assignment. The Parties agree that none of the provisions of this Agreement shall be assigned or delegated to any other person or entity without the prior written consent of the other Party, which consent will be in the Party's sole and absolute discretion. w. Successors and Assigns. The Parties agree that this Agreement shall be binding upon them and each of their respective successors and permitted assigns. x. Amendment. This Agreement may only be amended in a writing signed by each of the Parties hereto.
y. Waiver. No waiver hereunder will be valid unless set forth in a writing signed by the Party to be bound thereby. Neither the failure nor any delay on the part of either Party to exercise any right or remedy under this Agreement shall operate as a waiver thereof. z. Force Majeure. Each of the Parties shall be excused from performing its obligations under this Agreement if its performance is delayed or prevented by any event beyond such Party's reasonable control, including, but not limited to, acts of God, earthquake, fire, explosion, weather, disease, war, insurrection, civil strife, riots government actions, or power failure, provided that such performance shall be executed only to the extent of and during such disability.
aa. Severability. In the event any portion of this Agreement or any amendments or addenda hereto shall be held illegal, void or ineffective, the remaining portions hereof shall remain in full force and effect. If any of the terms or conditions of this Agreement is in conflict with any applicable statute or rule of law, then such term or condition shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed to be modified to conform to such statute or rule of law.
bb. Counterparts. This Agreement may be executed in two or more counterparts, each of which is deemed an original, but all of which taken together shall constitute one and the same instrument.
The Parties have executed this Agreement as of the date first written above.
SAN MANUEL BAND OF MISSION INDIANS CITY OF SAN BERNARDINO By: ___________________________________ By: __________________________ Name: Name:
Title: Title:
Dan D'Arrigo
CFO