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HomeMy WebLinkAboutResolution 2016-009 Approving Mayor to execute a Community Partner and License Agreement with Marana Heritage ConservancyMARANA RESOLUTION NO. 2016-009 RELATING TO HERITAGE; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A COMMUNITY PARTNER AND LICENSE AGREEMENT BETWEEN THE TOWN OF MARANA AND THE MARANA HERITAGE CONSERVANCY WHEREAS in January 2015, the Town Council adopted the Town of Marana Strategic Plan III, identifying Heritage as one of its five focus areas, with the principle statement "We will seek to preserve the unique history and culture of Marana for generations to come" and the stated initiative of collaborating with the Marana Heritage Conservancy to achieve that goal; and WHEREAS the Marana Heritage Conservancy is a not - for - profit organization established to discover, preserve and promote the traditions, cultures, historic places, working landscapes and natural treasures in the Marana sphere of influence through education, preservation, commu- nity events, fundraising and community outreach; and WHEREAS the Town has established the Marana Heritage River Park and one of the im- provements at the fIeritage Park is a residential building which has been reconstructed and im- proved by the Town, and which is commonly known as the "Heritage House"; and WHEREAS on May 4, 2010, the Town Council adopted Resolution No. 2010 -43, formal- ly endorsing the Conservancy as the Town's designated partner and caretaker of the Town's treasured past and authorizing the Town Manager to provide support and assistance to the Con- servancy, including allowing the Conservancy to use, at no cost, such portions of the Town's Heritage (louse and heritage Park as the Town Manager may designate and the materials and logos associated with the Marana Heritage Project to the extent and for purposes and uses au- thorized by the Town Manager; and WHEREAS the Town and the Conservancy desire to enter into an agreement regarding their partnership that will include, among other items, authorization for the Conservancy to use the heritage Mouse; and WHEREAS the Mayor and Council of the Town of Marana rind it is in the best interests of its citizens to enter into this agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF TH E TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The community partner and license agreement between the Town of Mara- na and the Marana Heritage Conservancy attached to and incorporated by this reference in this 00044673, DOCX I1 Marana ReSOILItion No, 2016-009 � � resolution as Exhibit A is hereb approved, and the Ma is hereb authorized and directed to execute it for and on behalf of the Town of Marana. SECTION 2. The Town's Mana and staff are hereb directed and authorized to under- take all other and further tasks re or beneficial to carr out the terms, obli and ob- jectives of the a PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA., this 19th day of January, 2016. ATTEST: Ma Ed onea APPROVED AS TO FORM: 4049W�71 WMI_ 01 r7ldaibupowua ( JJc e I y �n C. B.4nson, Towta Clerk 0011111 00044673.DOCX /I Marana Resolution No. 2016-009 - 2 - COMMUNITY PARTNER AND LICENSE AGREEMENT BETWEEN THE TOWN OF MARANA AND THE MARANA HERITAGE CONSERVANCY THIS COMMUNITY PARTNER AND LICENSE AGREEMENT (this Agreement ") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town "), and the MARANA HERITAGE CONSERVANCY, an Arizona non - profit corporation (the "Conservancy "). The Town and the Conservancy are sometimes collectively re- ferred to in this Agreement as the "Parties," either of which is sometimes individually referred to as a "Party." RECITALS A. In January 2015, the Town Council of the Town of Marana adopted the Town of Marana Strategic Plan. III (the ""Plan"'). The Plan identifies Heritage as one of its five focus areas, with the principle statement "We will seek to preserve the unique history and culture of Marana for generations to come" and the stated initiative of collaborating with the Marana Heritage Conservancy to achieve that goal. B. The Marana Heritage Conservancy is a not -for -prof it 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, 4. preservation, community events, fundraising and community outreach. C. The Town of Marana has established the Marana Heritage River Park (the "Herit- age Park " ), located within the Town of Marana at 12375 N. Heritage Park Drive. One of the improvements owned by the Town at the Heritage Park is a residential building which has been reconstructed and unproved by the Town, and which is commonly known as the "Heritage House." D. On May 4, 2010, the Town Council adopted Resolution No. 2010 -43, formally en- dorsing the Conservancy as the Town's designated partner and caretaker of the Town'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, such portions of the Town's Heritage House and Heritage Park as the Town Manager may designate and the materials and logos associated with the Marana Heritage Project to the extent and for purposes and uses authorized by the Town Man- ager. E. On August 7, 2012, the Town Council adopted Resolution No. 2012 -064 approv- ing a memorandum of understanding, and license agreement with the Conservancy 00044347.DOC 12 COMMUNITY PARTNER & LICENSE AGREEMENT: MARANA HERITAGE CONSERVANCY 1/8H2016 JF _l.. which established the services to be provided to the Town by the Conservancy and the support and assistance the Town would provide to the Conservancy, including allow- ing the Conservancy the use of the Marana Municipal Complex Community Room (the "2012 MOU "). The 2012 MOU was effective on August 8, 2012, and by its terms, was to remain in effect unless and until terminated by the Parties. F. The Town and the Conservancy desire to terminate the 2012 MOU and enter into a new agreement regarding their partnership that will include, among other items,, authorization for the Conservancy to use the Heritage House. C. 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 Town's history in accordance with the terms of this Agreement, have a value at least equal to the fair market value of use of the Heritage House and the other support and assistance to be provided to the Conservancy by the Town pursuant to this Agreement. AGREEMENT Now, THEREFORE, based on the foregoing recitals, which are incorporated here as the intent of the Parties in entering into this Agreement, and in consideration of the terms of this Agreement, the Parties hereby agree as follows: 1. Termination of 2012 MOU. The 2012 MOU is hereby terminated by mutual consent of the Parties. 2. 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 consistent with the provisions of the Town's Strategic Plan and this Agreement. b. Helitage Park docents. During the hours that the Conservancy staffs and opens the Heritage House to the public, as set forth in paragraph 4 below, the Con- servancy staff will make reasonable efforts to act as docents for visitors to the Herit- age Park. The Town will provide informational materials related to the park to the Conservancy to aid in this service. c. Major Town special events In coordination and collaboration with the Town, the Conservancy shall participate in major Town special events by providing educa- tional displays, food vending, performing arts demonstrations and/or other cultural and heritage - related exhibits consistent with the theme of the events and the terms of this Agreement. when participating in any special events, the Conservancy shall comply with all permitting requirements, as described in paragraph 20 below. d. Founders' Day The Conservancy shall plan, develop and present the Found- ers' Day event as set forth in this paragraph 2(d). Founders' Day will be held each 00044347.DOC I2 COMMUNITY PAR'T'NER & LICENSE AGREEMENT: MARANA HERITAGE CONSERVANCY 1/8H2016 JF - 2 - spring on a date set by the Conservancy. Founders' Day will Include performances by musicians, food and craft vendors, exhibitions, and other related activities. In presenting Founders' Day, the Conservancy shall comply with all permitting re- quirements, as described in paragraph 20 below. i. The Conservancy shall recruit, select, approve and contract with musicians, vendors, and other related exhibitors for Founders' Day. The vendors may in- clude food and crafts exhibitors and other exhibitors consistent with the theme of Founders' Day and the terms of this Agreement. The Conservancy shall ensure that all Founders' Day vendors possess a current Town of Marana business li- cense as of the date of the applicable Founders' Day. The Conservancy shall also ensure that all food vendors possess a current and appropriate permit from the Pima County Health Department, if required, as the date of the applicable Founders' Day. ii. The Conservancy shall ensure that all Founders' Day vendors enter into a release and indemnification agreement in a form approved by the Town. The Conservancy shall provide the completed release and indemnification agree- ments to the Town prior to the event each year. e. Fundraising The Conservancy agrees to continue its efforts to develop tax deductible charitable funding for activities appropriate to the shared mission of the Conservancy and the Town.. The Conservancy further agrees that all its fundraising activities will be undertaken in compliance with state, local and federal laws. 3. Support and assistance to be provided by the Tou)n. a. Marana Heritage Project materials and log os. 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 Her- itage 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. Heritage House use The Town shall permit the Conservancy to use, at no cost, those portions of the Heritage House identified below for the term of this Agree- ment (collectively the "Licensed Area "), subject to the Conservancy's performance of its obligations under this Agreement. The Conservancy shall use the Heritage House for the administration and operation of the Conservancy, including exhibitions and educational programs related to Marana's history and heritage. The Town will co- ordinate any use of a joint use area with the Conservancy prior to the date of the use. i. Exclusive use of the three offices with entrances to the living room area, identified as the "exclusive use areas" in the drawing attached to and incorpo- rated in this agreement as Exhibit A. 00044347.DOC IZ COMMUNITY PAR'T'NER & LICENSE. AGREEMENT: MARANA HERITAGE CONSERVANCY 1 /8H20I6 JFi -3 Ii. Joint use, with the Town of Marana, of the living room area just inside the front door of the Heritage House, the kitchen area, the bathrooms, and the stor- age house, as identif ied on Exhibit A as "j pint use areas." iii. Reasonable parking in the parking lot located just south of and adjacent to the Heritage House. 4. Hours of operation at .Heritage .House. During the term of this agreement, the Con- servancy shall make reasonable efforts to staff and open the Heritage House to the public during normal operating hours, as determined by the Conservancy, except on official Town holidays. 5. Utilities. The Town shall be responsible for paying water and electric utilities fees for the Heritage House when they become due and payable. The Conservancy shall be responsible for paying for other services associated with the use of the Heritage House, including telephone and internet service. 6. Repairs and exterior maintenance. The Town shall pay all costs to repair the Herit- age House and shall maintain the exterior of and grounds around the Heritage House. 7. Interior maintenance and custodial services. The Conservancy shall maintain and pay for all clean -up and custodial services within the interior Licensed Area of the Heritage House. S. No modifications. The Conservancy shall not make any alterations, improvements, additions, changes, or modifications of any kind to the Heritage House without the prior written approval of the Town Manager. 9. Non Assignment. The Conservancy's rights under this Agreement cannot be as- signed by the Conservancy nor shall the Conservancy grant any license in connection with the Heritage House without the prior written approval of the Town Manager. 10. Inspection. The Town shall have the right at all reasonable times to inspect the Heritage House and to require the Conservancy to correct any unsatisfactory conditions relative to the Conservancy's use of the Heritage House pursuant to this Agreement. 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 correc- tion by the Conservancy. 11. Access/ke y control. The Conservancy shall comply with any and all policies, pro- cedures, rules or directives of the Town related to access to Town facilities and posses- sion and use of Town keys, electronic access identification cards or other access devices. 12. 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 Agreement, 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 Agreement, the Conserv- ancy shall not display the name, logo and/or seal of any government entity other than 00044347.DOC I2 COMMUNITY PARTNER & LICENSE AGREEMENT: MARANA HERITAGE CONSERVANCY 1/8H2016 J -4- the Town on its written materials without also displaying the name, logo or seal of the Town. 13. Use, reproduction and removal of historic records and artifacts. All records and arty - 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 provided in this Agreement, the Conservancy shall comply with any and all policies, procedures, rules or directives of the Town related to historic records, artifacts and collection development and acquisition. a. The Conservancy may use the Town'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 Town's historic records or artifacts, subject to the following terms and conditions. i. Nothing contained in this Agreement 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. ill. 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 Town's historic records or artifacts from the Heritage House or the Marana Municipal Complex (""MMC"') for use in its public exhibitions and educational programs. The Conservancy shall provide notice to the Town whenever a record or artifact is removed from the Heritage House or the MMC. 14. Expenses. Except as provided in this Agreement, the Conservancy shall be re- sponsible for all of its operating expenses, including the purchase and maintenance of any additional equipment required for the Conservancy's operation or administration. 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 Agreement. 15. Effective date and duration. This Agreement shall be effective as of the signature date of the last Party to sign this Agreement, and shall remain in effect unless and until terminated pursuant to paragraph 31 below. 16. Relationship of the parties. In the performance of the services contemplated by this Agreement, the Conservancy shall act solely as an independent contractor, and nothing expressed or implied in this Agreement shall be construed to create the relationship of 00044347.DOC 12 COMMUNITY PARTNER & LICENSE AGREEMENT: MARANA HERITAGE CONSERVANCY 1/8H2016 JF -5- employer and employee, partnership, principal and agent, or to create a joint venture between the Town and the Conservancy. 17.501(c)(3) status of the Conservancy. The Conservancy shall maintain its 501(c)(3) status as anon- profit corporation in good standing at all times during the term of this Agreement and shall submit proof of such good standing to the Town upon the Town's request. 18. Insurance. The Conservancy shall maintain insurance throughout the term of this Agreement from carriers acceptable to the Town with the following required coverages and limits: Commercial General Liability U.S. $1,000,000 per occurrence U.S. $2,000,000 aggregate a. The Conservancy shall deliver one or more certificates of insurance evidencing coverage as described in this paragraph 18 to the Town upon execution of this Agreement. The Conservancy shall also deliver new certificates of insurance each time the policy(s) is updated. All certificates shall be delivered to: Town of Marana Legal Department, 11555 W. Civic Center Drive, Marana, Arizona 85653. a. The Town shall be named as an additional insured on the commercial general liability insurance policy required by this paragraph 18. As an additional insured, the Town shall be provided coverage for any liability arising out of operations per- formed in whole or in part by or on behalf of the Conservancy. The additional in- sured endorsement form identification number shall also be included within the de- scription box on the certificate of insurance and the applicable policy number shall be included on the endorsement. b. All policies required pursuant to this paragraph 18 shall be endorsed to con- tain a waiver of transfer of rights of recovery (subrogation) against the Town, its agents, officers, officials, and employees for any claims arising out of the Conservan- cy's work or service. Endorsements evidencing this waiver of subrogation shall be provided to the Town along with all other insurance documentation required by this paragraph 18. c. The certificates) shall also stipulate that the insurance afforded the Conservancy shall be primary insurance and that any insurance carried by the Town, its agents, offi- cials or employees shall be excess and not contributory insurance to that provided by the Conservancy. Coverage provided by the Conservancy shall be primary insurance with respect to all other available sources. d. The coverage requirements specified in this paragraph 18 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 para- 00044347.DaC /2 COMMUNITY PARTNER &. LICENSE AGREEMENT: MARANA HERITAGE CONSERVANCY 1/8//2016 JT -6- graph 18. The Conservancy shall give the Town immediate notice of any other can- cellation or reduction of any coverage required by this paragraph 18. Cancellation or reduction of any coverage required by this paragraph 18 is grounds for termina- tion of this Agreement by the Town. 19. Indemn�* cation. 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 planner 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 Agreement. 20. 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 Agreement. 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 Agreement. In consideration of the services to be performed by the Conservancy under the terms of this Agreement, 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 Agreement. 21. Appointment of representatives. To further the commitment of the Parties to coop- erate in the activities described in this Agreement, 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 Tony Hunter, Management Assistant, and the initial representative for the Conserv- ancy shall be Patrick Nilz, President. The representatives shall be available at all rea- sonable times to discuss and review the performance of the Parties to this Agreement and their responsibilities in connection with the services to be performed under this Agreement. 22. Toum 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 Z of this Agreement. The Conservancy may also request assistance from Town personnel in the performance of these services by contacting the Town Representative. Assistance will be provided at the Town's sole discretion, first taking into consideration the Town's staffing requirements and operational needs. 2 3. Notices. All notices, requests, 'demands, and other communications under this Agreement shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested; to the following addresses: 00044347.DOC / 2 COMMUNITY PARTNER & LICENSE AGREEMENT: MARANA HERITAGE CONSERVANCY 1/$12016 JF 7 If to the Town, to: TOWN OF MARANA Attn: Town Manager's Office 11555 W. Civic Center Drive - Bldg A3 Marana, AZ 85653 If to the Conservancy, to: MARANA HERITAGE CONSERVANCY Attn: President P. 0. Box 1074 Marana, AZ 85653 24. Entire agreement. This Agreement constitutes the entire agreement and under- standing of the Parties pertaining to the subject matter of the Agreement and super- sedes all offers, negotiations, and other agreements of any kind. All prior and contem- poraneous agreements, representations and understandings of the Parties, oral or writ- ten, are superseded and merged in this Agreement. 25. Authority to execute agreement. The individuals executing this Agreement hereby represent that they have full right, power, and authority to execute this Agreement on behalf of their respective Parties. 26. Uncontrollable circumstances. Notwithstanding any other term, condition or pro- vision of this agreement to the contrary, if any Party to this agreement 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, 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. 27. I mmigra tion lazt)s. 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 Agreement subject to penalties up to and including termina- tion of this Agreement, and that the Town retains the legal right to inspect the papers of any employee who works on the Agreement to ensure compliance with this warranty. 28. Conflict of interest. This Agreement is subject to the provisions of A.R.S. § 38 -511, which provides for termination in certain instances involving conflicts of interest. 29. Attorneys' fees. The prevailing Party in a civil action to enforce this Agreement shall be entitled to recover from the other Party, in addition to any relief to which such prevailing Party may be entitled, all costs, expenses and reasonable attorneys' fees in- curred in connection with that civil action. 30. Governing lazi3. This Agreement shall be construed in accordance with the laws of the State of Arizona. 40044347,DOC I2 COMMUNITY PARTNER & LICENSE AGREEMENT: MARANA HERITAGE CONSERVANCY 1/$//2016 F -8- 31. Termination. Either Party may terminate its participation in this Agreement for any reason upon at least 90 days' prior written notice to the other Party. 32. Surrender of premises upon termination. Upon termination of this Agreement, the Conservancy agrees to surrender the Licensed Area to the Town in as good a condition as when received, ordinary wear and tear or damage resulting from causes beyond the reasonable control of the Conservancy excepted. 33. Disposition of personal property upon termination. Upon termination of this Agree - ment, the Conservancy agrees that the personal property of the Town shall not be re- moved from the Licensed Area but shall be surrendered in good condition. The Con- servancy agrees to remove all equipment and personal property belonging to the Con- servancy upon termination of this Agreement without causing damage to the Licensed Area. Any damage to the Licensed Area resulting from the removal of the Conservan- cy's personal property or equipment shall be solely the responsibility of the Conservan- cy. 34. Miscellaneous. a. This Agreement may not be modified except in a writing signed by both of the Parties. b. The captions and section numbers appearing in this Agreement 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 Agreement. c. This Agreement 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. d. Neither Party's waiver of the other's breach of any term or condition con- tained in this Agreement shall be deemed a waiver of any subsequent breach of the same or any other term or condition of this Agreement. [SIGNATURE PAGE FOLLOWS] 00044347.DOC /2 COMMUNITY PARTNER & LICENSE AGREEMENT: MARANA HERITAGE CONSERVANCY 118//2016 JF -9- IN WITNESS WHEREOF, the Parties hereto have executed this A as of the last date set forth below their respective si The "Town ": TOWN OF MARANA, an Arizona munic- ipal corporation Ed Honea,, Ma Date: /, ell The "Conservanc MARANA HERITAGE CONSERVANCY,, an Arizona non-profit corporation Patrick Nilz, President FOY, ATTEST', Date wnCl(o APPROWD AS.To FORM: KOWA Kim I own ZZ / Late STATE OF Arizona )ss. Count of Pima The fore 'Instrument was acknowled before me this da of 2015 b Patrick Nilz, President of MARANA HERITAGE CON- SERVANCY, an Arizona non-profit corporation, on behalf of the corporation. (Seal) Notar Public LIST OF EXHIBITS Exhibit A: Herita House Licensed Area drawin 00044347.DOC /2 COMMUNITY PARTNER & LICENSE AGREEMENT: MARANA HERITAGE CONSERVANCY 1/8H2016 JF _10- Exhibit A Stora House (Not to scale) JOINT USr_ JOINT USE 7- JOINT USE EXCLUSIVE USE a F InINT I ISIF k EXCLUSIVE USE el v 13 NA L " CFO 4 - 3 PARKING =-- -F� JOINT USE � 7 60 U r7, /AY/ Akl f,,K AMA EXCLUSIVE USE