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HomeMy WebLinkAboutResolution 2012-064 MOU with heritage conservancy\/,.:\: ► 1 i► \i I I�� RELATING TO HERITAGE; APPROVIl�tG AND AUTHORIZING THE MAYOR TO EXECUTE A MEMORANDUM OF UNDERSTANDING BETWEEN TI� TOWN OF MARANA AND TF� 1�tiA.RANA HERITAGE CONSERVANCY REGARDING THE PRESERVATION AND PROMO- TION OF THE TOWN'S HISTORY AND HERITAGE THROUGH CULTURAL AND HERIT- AGE-RELATED ACTIVITIES AND EVENTS IN THE TOWN OF MARANA AND TI� CON- SERVANCY'S USE OF THE l��IARANA MUNICIl'AL COMPLEX CONZIVIUNITY ROOM WHEREAS the Town Council of the Town of Marana has deternuned through the adoption of the Town's Strategic Plan that maintaining a sense of community character and heritage by linking the past, present and future is in the public interest and enhances the community; and WHEREAS on May 4, 2010, the Town Council adopted Resolution No. 2010-43 formally en- dorsing the Marana Heritage Conservancy {the Conservancy), a not-for-profit organization that e�sts to discover, preserve and promote the traditions, cultures, historic places, working landscapes and natural treasures in the Marana sphere of influence, as the Town's designated partner and caretaker of the Town's treasured past; and WHEREAS the Town and the Conser�ancy desire for the Conservancy to present and promote cultural and heritage-related events and activities in the Town and to continue its work preserving the Town's history; and WHEREAS the Town Council desires for the Town to provide support and assistance to the Conservancy in the Conservancy's work preserving and promoting the Town's history; and WHEREAS the Mayor and Council of the Town of Marana feel it is in the best interests of the public to enter into this agreement. NOVV, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF I�tiARANA AS FOLLOWS: SECTION 1. The memorandum of understanding between the Town of Marana and the Ma- rana Heritage Conservancy, attached to and incorporated by this reference in this resolution as Ex- }ubit A, is hereby approved and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. Marana Resolution No. 2012-064 1 of 2 07l3ll2012 SECTION 2. The Town's Manager and staffare hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and obj ectives of the memorandum of understanding. PASSED, ADOPTED, and APPROVED by the Mayor and Co '1 of th own of Marana, Arizona, this 7�' day of August, 2012. G'�--�--�-�_ Mayor Ed Honea • �/ i.,c' � .�/. .��ir✓� . � . /� - �� : � • � Marana Resolution No. 2012-064 2 of 2 ���� �, �, �qiN1/!/I � o ,. � ti���R� F� � �, �SEAL � � � 'v��uu+�`` � , ����d6 IIt1� �``�� 07/31/2012 R. EXHIBIT A MEMORANDUM OF UNDERSTANDING AND LICENSE AGREEMENT THIS MEMORANDUM OF UNDERSTANDING AND LICENSE AGREEMENT (thiS ��MOU°� iS entered into by and between the ToWN oF MAxA1vA, an Arizona municipal corporation {the "Town �), and the MARANA HERITAGE CONSERVANCY, an Arizona non-profit corpo- ration (the "Conservancy"). The Town and the Conservancy are sometimes collectively referred to in this MOU as the "Parties;' either of which is sometimes individually referred to as a "Party.° RECrr�s A. In March 2012, the Town Council of the Town of Marana adopted the Town of Marana Strategic Plan II. The Strategic Plan identifies Heritage as one of the five focus areas of the Plan, with the goal of strengthening community character by linking the past, present and future. B. The Marana Heritage Conservancy is a not-for-profit organization established to discover, preserve and promote the traditions, cultures, historic places, working land- scapes and natural treasures in the Marana sphere of influence through education, preservation, fundraising and community outreach. C. On May 4, 2010, the Town Council adopted Resolution No. 2010-43, formally en- dorsing the Conservancy as the Towri s designated partner and caretaker of the Towri s treasured past and authorizing the Town Manager to provide support and assistance to the Conservancy. Among other items, the Resolution authorized the Conservancy to use, at no cost, materials and logos associated with the Marana Heritage Project to the extent and for purposes and uses authorized by the Town Manager. D. The Town and the Conservancy desire for the Conservancy to present and pro- mote cultural and heritage-related events and activities in the Town and to continue its work preserving the Towri s history. E. The Town and the Conservancy desire for #he Town to provide support and assis- tance to the Conservancy in the Conservancy's work preserving and promoting the Towri s history, including use of the Marana Municipal Complex Community Room (the "MMC Community Room"), F. The Town finds that the benefits to the Town resulting from the Conservancy's cultural and heritage-related activities in the Town, as well as the Conservancy's work preserving the Towri s history in accordance with the terms of this MOU, have a value (00026531.DOC / 11 } 7/I 1//2012 JF -1- 1 pF 3 t�ri�inal� at least equal to the fair market value of use of the MMC Community Room and the other support and assistance to be provided to the Conservancy by the Town pursuant to this MOU. AGREEMENT NOW, THEREFORE, based on the foregoing recitals, which are incorporated here as the intent of the Parties in entering into this MOU, and in consideration of the terms of this MOU, the Parties hereby agree as follows: 1. Services to be performed by the Conservancy. a. General. In coordination with the Town, the Conservancy shall sponsor, sup- port, develop and implement community cultural and heritage-related projects and programs that enrich the cultural life of the community and that are con- sistent with the provisions of the Towri s Strategic Plan and this MOU. b. Major Town special events. In coordination and collaboration with the Town, the Conservancy shall assist the Town in the planning and execution of major Town special events, including the Towri s annual Founders' Day celebration. The Conservancy shall provide an exhibition area at the Founders' Day event each year, which may include educational displays, food vending, performing arts demonstrations and other cultural and heritage-related exhibits consistent with the theme of Founders' Day and the terms of this MOU. The Conservancy may also participate in other Town events as determined in coordination and col- laboration with the Town. When participating in any special events, the Con- servancy shall comply with all permitting requirements, as described in para- graph 17 below. c. Fundraising. The Conservancy agrees to continue its efforts to develop tax de- ductible charitable funding for activities appropriate to the shared mission of the Conservancy and the Town. The Conservancy further agrees that all its fund- raising activities will be undertaken in compliance with state, local and federal laws. 2. Support and assistance to be provided by the Town. a. Marana Heritage Project materials and logos. The Town shall continue to permit the Conservancy to use, at no cost, materials and logos associated with the Marana Heritage Project to the extent and for purposes and uses authorized by the Town Manager. The Conservancy shall not modify, revise or alter the Marana Heritage Project materials and logos in any way. The Conservancy shall obtain the prior written approval of the Town Manager or designee before using the materials and logos. b. Marana Municipal Complex use. The Town shall permit the Conservancy to use, at no cost, the MMC Community Room located on the first floor of the Ma- {00026531.DOC / 11 } 7/11//2012 JF _2_ rana Municipal Complex, 11555 W. Civic Center Drive, Marana, Arizona 85653, on a non-exclusive basis. The Conservancy may use the MMC Community Room as an office and for meetings, exhibitions and educational programs relat- ed to Marana's history and heritage. The Conservancy shall obtain the prior written approval of the Town Manager or designee before using the MMC Community Room for public exhibitions and educational programs. Additional- ly, the Conservancy shall provide to the Town Representative, in advance, an ex- hibition schedule, including the days and hours of operation when the room will be open to the public. The Town shall retain priority in the use of the MMC Community Room. 3. Utilities. The Town shall be responsible for paying for all utilities for the MMC Community Room when they become due and payable. 4. No modifications. The Conservancy shall not make any alterations, improvements, additions, changes, or modifications of any kind to the MMC Community Room with- out the prior written approval of the Town Manager. 5. Non-Assignment. The Conservancy's rights under this MOU cannot be assigned by the Conservancy nor shall the Conservancy grant any license in connection with the MMC Community Room without the prior written approval of the Town Manager. 6. Maintenance, repairs and custodial services. The Town shall maintain the MMC Community Room and shall pay for all repairs, clean-up and custodial services at the MMC Community Room. 7. Inspection. The Town shall have the right at all reasonable times to inspect the MMC Community Room and to require the Conservancy to correct any unsatisfactory conditions relative to the Conservancy's use of the MMC Community Room pursuant to this MOU. The Town shall provide written notice to the Conservancy of any such unsatisfactory conditions and the written notice shall provide a reasonable length of time for correction by the Conservancy. 8. Access/key control. The Conservancy shall comply with any and all policies, proce- dures, rules or directives of the Town related to access to Town facilities and possession and use of Town keys, electronic access identification cards or other access devices. 9. Use of government entities' names/logos. To avoid confusion regarding whether the Conservancy is a department or division of the Town, in its activities pursuant to this MOU, the Conservancy shall not display the name "Town of Marana" or the Town's logo or seal on its written materials without the prior written approval of the Town Manager or designee. In its activities pursuant to this MOU, the Conservancy shall not display the name, logo and/or seal of any government entity other than the Town on its written materials without also displaying the name, logo or seal of the Town. 10. Use, reproduction and removal of histaric records and artifacts. All records and arti- facts related to Marana's history and heritage owned by or donated to the Town shall remain the sole property of the Town, wherever they are housed. Except as otherwise {00026531.DOC / 11 } 7/11//2012 JF -3- provided in this MOU, the Conservancy shall comply with any and all policies, proce- dures, rules or directives of the Town related to historic records, artifacts and collection development and acquisition. a. The Conservancy may use the Towri s historic records and artifacts in the Con- servancy's public exhibitions and educational programs. b. The Conservancy may reproduce or copy any of the Towri s historic records or artifacts, subject to the following terms and conditions. i. Nothing contained in this MOU shall be construed as an assignment or transfer of any copyright or other intellectual property rights by the Town to the Conservancy. ii. When reproducing copyrighted materials, the Conservancy shall ensure that all copyright and other proprietary notices or legends contained in or placed upon the materials shall appear on any copies. iii. The Conservancy expressly acknowledges that the Town may not have a copyright and/or reproduction rights for certain historic records or artifacts in its collection and that the existence or lack of existence of such rights may not be known to the Parties. Therefore, the Conservancy assumes all liability resulting from any unauthorized reproduction of materials by the Conservancy. c. The Conservancy may remove any of the Towri s historic records or artifacts from the Marana Municipal Complex ("MMC") for use in its public exhibitions and educational prograrns. The Conservancy shall provide notice to the Town whenever a record or artifact is removed from the MMC. 11. Expenses. Except as provided in this MOU, the Conservancy shall be responsible for all of its operating expenses. The Town shall neither seek from nor provide to the Conservancy any compensation for the services, support and assistance provided by the Parties under this MOU. 12. Effective date and duration. This MOU shall be effective as of the signature date of the last Party to sign this MOU, and shall remain in effect unless and until terminated pursuant to paragraph 29 below. 13. Relationship of the parties. In the performance of the services contemplated by this MOU, the Conservancy shall act solely as an independent contractor, and nothing ex- pressed or implied in this MOU shall be construed to create the relationship of employ- er and employee, partnership, principal and agent, or to create a joint venture between the Town and the Conservancy. 14. 501(c)(3) status of the Conservancy. The Conservancy shail maintain its 501(c)(3) status as a non-profit corporation in good standing at all times during the term of this MOU and shall submit proof of such good standing to the Town upon the Town's re- quest. {00026531.DOC / 11 } 7/11//2012 JF -4- 15. Insurance. The Conservancy shall maintain insurance with carriers acceptable to the Town with the following required coverages and limits: Worker's Compensation Employer's Liability Commercial General Liability Business Auto Liability Statutory U.S. $1,000,000 U.S. $1,000,000 per occurrence U.S. $2,000,000 aggregate U.S. $1,000,000 combined single limit a. The Conservancy shall deliver one or more certificates of insurance evidencing coverage as described in this paragraph 155 to the Town upon execution of this MOU. The Conservancy shall also deliver new certificates of insurance each time the policy(s) is updated. All certificates shall be delivered to: T. VanHook, Community Development Director at 11555 W. Civic Center Drive, Marana, Ari- zona 85653. b. The Town shall be named as an additional insured on the commercial general liability insurance policy required by this paragraph 155. As an additional in- sured, the Town shall be provided coverage for any liability arising out of opera- tions performed in whole or in part by or on behalf of the Conservancy. c. The certificate(s) shall also stipulate that the insurance afforded the Conservancy shall be primary insurance and that any insurance carried by the Town, its agents, officials or employees shall be excess and not contributory insurance to that pro- vided by the Conservancy. Coverage provided by the Conservancy shall be pri- mary insurance with respect to all other available sources. d. The coverage requirements specified in this paragraph 155 may not be changed or modified except by written agreement signed by all Parties. e. The Conservancy shall give the Town at least 30 calendar days' written notice prior to a planned cancellation or reduction of any coverage required by this paragraph 155. The Conservancy shall give the Town immediate notice of any other cancellation or reduction of any coverage required by this paragraph 155. Cancellation or reduction of any coverage required by this paragraph 15� is grounds for termination of this MOU by the Town. 16. Indemnification. The Conservancy agrees to defend, save, hold harmless, and in- demnify the Town, its officials, employees, agents, successors, and assigns from and against any and all manner of claims, suits, lawsuits, action or actions, causes or causes of action, liabilities, damages, and other claims and demands of whatsoever nature or kind, in law or in equity, in tort or in contract, or otherwise caused by or resulting from the Conservancy's errors, omissions, or negligent acts in the performance of services pursuant to this MOU. {00026531.DOC / 11 } 7/11//2012 JF -5- 17. Regulatory compliance and approvals. Each Party shall at its own expense comply with all applicable federal, state and local laws, rules, and regulations in connection with its obligations under this MOU. As part of this obligation, the Conservancy shall obtain any and all permits prescribed by the Town, the Northwest Fire District or any other appropriate regulatory agency for its activities under this MOU. In consideration of the services to be performed by the Conservancy under the terms of this MOU, to the extent legally permissible, the Town agrees to waive all Town of Marana review and permit fees that the Conservancy would normally be required to pay for the events and activities the Conservancy produces pursuant to this MOU. 18. Appointment of representatives. To further the commitment of the Parties to coop- erate in the activities described in this MOU, the Town and the Conservancy each shall designate and appoint a representative to act as a liaison for the Town and its various departments and the Conservancy. The initial representative for the Town shall be T. VanHook, Community Development Director, and the initial representative for the Conservancy shall be John Officer, President. The representatives shall be available at all reasonable times to discuss and review the performance of the Parties to this MOU and their responsibilities in connection with the services to be performed under this MOU. 19. Town personnel. At the Town s sole discretion, the Town may assign Town per- sonnel to assist the Conservancy in its performance of the services described in para- graph 1 of this MOU. The Conservancy may also request assistance frorn Town person- nel in the performance of these services by contacting the Town Representative. Assis- tance will be provided at the Town's sole discretion, first taking into consideration the Towri s staffing requirements and operational needs. 20. Notices. All notices, requests, demands, and other communications under this MOU shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested; to the following addresses: If to the Town, to: TOWN OF MARANA Attn: Community Development Director 11555 W. Civic Center Drive - Bldg A3 Marana, AZ 85653 If to the Conservancy, to: MARANA HERITAGE CONSERVANCY Attn: President P. O. Box 1074 Marana, AZ 85653 21. Entire agreement. This MOU constitutes the entire agreement and understanding of the Parties pertaining to the subject matter of the MOU and supersedes all offers, negotiations, and other agreements of any kind. All prior and contemporaneous agree- ments, representations and understandings of the Parties, oral or written, are supersed- ed and merged in this MOU. {00026531.DOC / 11 } 7/11//2012 JF -6- 22. Authority to execute agreement. The individuals executing this MOU hereby repre- sent that they have full right, power, and authority to execute this MOU on behalf of their respective Parties. 23. Force majeure. Notwithstanding any other term, condition or provision of this MOU to the contrary, if any Party to this MOU is precluded from satisfying or fulfilling any duty or obligation imposed upon it due to labor strikes, material shortages, war, civil disturbances, weather conditions, natural disasters, acts of God, or other events beyond the control of such Party, the time period provided herein for the performance by such Party of such duty or obligation shall be extended for a period equal to the delay occasioned by such events. 24. Immigration laws. The Conservancy warrants that it will at all times comply with all federal immigration laws and regulations that relate to its employees and with Ari- zona Revised Statutes section (A.R.S. §) 23-214 (A). The Conservancy acknowledges that pursuant to A.R.S. � 41-4401 and effective September 30, 2008, a breach of this warranty is a material breach of this MOU subject to penalties up to and including termination of this MOU, and that the Town retains the legal right to inspect the papers of any em- ployee who works on the MOU to ensure compliance with this warranty. 25. Scrutinized business operations. The Conservancy certifies that it does not have, nor will it for the duration of this MOU have, scrutinized business operations in Sudan or Iran as defined in A.R.S. § 35-391 and A.R.S. § 35-393, respectively. 26. Conflict of interest. This MOU is subject to the provisions of A.R.S. � 38-511, which provides for termination in certain instances involving conflicts of interest. 27. Attorneys' fees. The prevailing Party in a civil action to enforce this MOU shall be entitled to recover from the other Party, in addition to any relief to which such prevail- ing Party may be entitled, all costs, expenses and reasonable attorneys' fees incurred in connection with that civil action. 28. Governing law. This MOU shall be construed in accordance with the laws of the State of Arizona. 29. Termination. Either Party may terminate its participation in this MOU for any reason upon at least 90 days' prior written notice to the other Party. 30. Misceilaneous. a. This MOU may not be modified except in a writing signed by both of the Par- ties. b. The captions and section numbers appearing in this MOU are inserted only as a matter of convenience, and do not define, limit, construe or describe the scope or intent of such sections or articles of this MOU. � c. This MOU may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original and all of which, taken together, shall consti- tute one and the same agreement. {00026531.DOC / 11 } 7/11//2012 JF -7- IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the last date set forth below their respective signatures. The "Town": TOWN OF MAxANA, an Arizona munic- ipal corporation , /" Ed Honea, IVlayor Date: D r p ' �� ATTEST: Date �a � �t � � _ �c.��c- d�' 8�-/z wn C rk Date APPRO AS TO FORM: � � � T Attorney Date The "Conservancy": MARANA HERITAGE CONSERVANCY, an Arizona non-profit corporation �,� 1 �z____ Patrick Nilz, President {00026531.DOC / 11 } 7/11//2012 JF -g-