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HomeMy WebLinkAboutResolution 2021-019 Approving an Agreement Between TOM and Perimeter Bicycling Association for the 38th El Tour De Tucson MARANA RESOLUTION NO. 2021-019 RELATING TO SPECIAL EVENTS; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE TOWN OF MARANA AND PERIMETER BICYCLING ASSOCIATION OF AMERICA, INC. REGARDING FINANCIAL SUPPORT FOR THE 38TH EL TOUR DE TUCSON 28-MILE EVENT WHEREAS the Town of Marana is dedicated to providing exceptional community events that create opportunities for citizen engagement as directed by the Community focus area of the Town's Strategic Plan; and WHEREAS Perimeter Bicycling Association of America, Inc. ("Perimeter") is a nonprofit corporation responsible for the promotion and production of the annual El Tour de Tucson cycling event, which raises money for nonprofit, charitable entities and brings economic impact to the local community; and WHEREAS the Town and Perimeter desire to enter into an agreement regarding the Town's participation in and financial support of the 38th El Tour 28-Mile Event; and WHEREAS the Town Council finds that the agreement addressed by this resolution is in the best interests of the Town of Marana and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, as follows: SECTION 1. The agreement between the Town of Marana and Perimeter Bicycling Association of America, Inc. for the 38th El Tour 28-Mile Event, attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. SECTION 2. The Town's Managerhereby and staff are directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of this resolution. Resolution No.2021-019 PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 16th day of February, 2021. �vt Mayor Ed Honea ATTES • APPROVED AS TO FORM: ..�17 /7 Cherry La son, Town Clerk Jane .rall,'own Attorney Ilk :ViARANA AZ ESTABLISHED 1977 Resolution No.2021-019 EXHIBIT A TO MARANA RESOLUTION NO.2021-019 AGREEMENT BETWEEN THE TOWN OF MARANA AND PERIMETER BICYCLING ASSOCIATION OF AMERICA, INC. FOR THE 38TH EL TOUR 28-MILE EVENT THIS AGREEMENT (this "Agreement") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and PERIMETER BICYCLING ASSOCIATION OF AMERICA, INC., an Arizona nonprofit corporation ("Perimeter"). The Town and Perimeter are sometimes collectively referred to in this Agreement as the "Parties," each of which is sometimes individually referred to as a "Party." RECITALS A. The Town of Marana Strategic Plan Four identifies Community as one of its five focus areas. Under the Community focus area, the Plan includes an initiative to provide exceptional community events that create opportunities for citizen engagement. B. Perimeter is a nonprofit corporation responsible for the promotion and produc- tion of the annual El Tour de Tucson cycling event (the "Event"), which raises money for nonprofit, charitable entities and brings economic impact to the local community. C. The Town and Perimeter desire to enter into an agreement regarding the Town's participation in and financial support of the 38th El Tour 28-Mile cycling event, taking place on Saturday, April 10, 2021. D. The Town finds that the benefits to the Town resulting from Perimeter's promo- tion and production of the 38th El Tour 28-Mile cycling event have a value at least equal to the fair market value of the financial support to be provided to Perimeter 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. Financial support to be provided by the Town. Pursuant to the terms and conditions of this Agreement, including without limitation paragraph 21 (Termination) below, the Town shall provide financial support of $7,500.00 to Perimeter for the 38th El Tour 28-Mile cycling event within 30 days of the Effective Date of this Agreement. 2. Fee Waiver. The Town will waive fees for park rental and special event permits af- filiated with the Town of Marana start line location. 00073927.DOC/1 38TH PERIMETER BICYCLING EL TOUR 28-MILE EVENT AGREEMENT - 1 - EXHIBIT A TO MARANA RESOLUTION No.2021-019 3. Other Sponsors. The Parties acknowledge and agree other businesses and organi- zations are able to become official sponsors of different portions of the Event, and will be known collectively as "Presenting Sponsors." The Town of Marana will be the Event Start Sponsor of the "Town of Marana 28-Mile Start presented by Gladden Farms." 4. Event promotion by the Town. In addition to the financial support provided pursu- ant to paragraph 1 above, the Town shall also promote the events through the Town's media/communication outlets. The Town will use its best efforts to promote the name of all Presenting Sponsors of the Event. Whenever the Town wishes to utilize the name of the Event, or in any other way publicizes the Event, the Town shall refer to the Event with the name of all of the Presenting Sponsors. As an Event Start Sponsor of the 38th El Tour 28-Mile cycling event, the Town of Marana will encourage its members and affiliates to participate in the Event. 5. Benefits to be provided to the Town. In exchange for the financial support described in paragraph 1 above, Perimeter shall provide to the Town the benefits and services described in Exhibit A. 6. Books; taxes. Perimeter shall make available to the Town for inspection any books, ledgers or statements kept by Perimeter regarding activities conducted pursuant to this Agreement. Perimeter shall be liable for all taxes applicable to the proceeds received by Perimeter under this Agreement, if any. 7. Effective date and duration. This Agreement shall be effective as of the signature date of the last Party to sign this Agreement (the "Effective Date"), and shall remain in effect until December 31, 2021, unless sooner terminated pursuant to paragraph 21 below. Notwithstanding the foregoing, the indemnification provisions set forth in paragraph 11 below shall survive termination of this Agreement. 8. Relationship of the Parties. In the performance of the services contemplated by this Agreement, Perimeter shall act solely as an independent contractor, and nothing ex- pressed or implied in this Agreement shall be construed to create the relationship of employer and employee, partnership, principal and agent, or to create a joint venture between the Town and Perimeter. 9. Use of names, trademarks, logos and seal. The Town grants Perimeter a limited license to use, at no cost, the Town's name, logo and seal in Perimeter's performance of the services described in this Agreement. Perimeter shall not use the Town's name, logo, and seal for any other purpose or use. Perimeter shall not modify, revise or alter the Town's logo and seal in any way. Perimeter grants the Town a limited license to use, at no cost, Perimeter's El Tour de Tucson name, trademarks, and logos in the Town's performance of the services described in this agreement. The Town shall not use Pe- rimeter's El Tour de Tucson name, trademarks, and logos for any other purpose or use. The Town shall not modify, revise or alter Perimeter's El Tour de Tucson trademarks and logos in any way. 00073927.DOC/1 38TH PERIMETER BICYCLING EL TOUR 28-MILE EVENT AGREEMENT - 2 - EXHIBIT A TO MARANA RESOLUTION No. 2021-019 10. Insurance. During the term of this Agreement, Perimeter shall maintain insurance from carriers acceptable to the Town with the following required minimum coverages and limits, and the Town shall be named as an additional insured on the commercial general liability insurance policy for the purposes of Perimeter's activities in relation to the events covered by this Agreement: Worker's Compensation: Statutory Employer's Liability: U.S. $100,000 Commercial General Liability: U.S. $1,000,000 per occurrence U.S. $2,000,000 aggregate Business Auto Liability: U.S. $1,000,000 combined single limit a. Perimeter shall deliver one or more certificates of insurance evidencing cover- age as described in this paragraph 10 to the Town upon execution of this Agreement and prior to commencing any activities pursuant to this Agreement. Perimeter shall also deliver new certificates of insurance each time the policy(s) is updated. All cer- tificates shall be delivered to the Town's Legal Department. b. As an additional insured on Perimeter's commercial general liability policy, 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 Perimeter. Perimeter shall deliver ad- ditional insured endorsement(s) along with the certificate(s) of insurance required by subparagraph (a) above. The additional insured endorsement form identification number shall also be included within the description box on the certificate of insur- ance and the applicable policy number shall be included on the endorsement. c. All policies required pursuant to this paragraph 10 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 Perimeter's work or service. Endorsements evidencing this waiver of subrogation shall be pro- vided to the Town along with all other insurance documentation required by this paragraph 10. d. The certificate(s) shall also stipulate that the insurance afforded Perimeter 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 provid- ed by Perimeter. Coverage provided by Perimeter shall be primary insurance with respect to all other available sources. e. The insurance requirements specified in this paragraph 10 may not be changed or modified except by written agreement signed by both Parties. f. During the term of this Agreement Perimeter 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 10. Perimeter shall give the Town immediate notice of any other cancellation or reduction of any coverage required by this para- 00073927 DOC/1 38TH PERIMETER BICYCLING EL TOUR 28-MILE EVENT AGREEMENT - 3 - EXHIBIT A TO MARANA RESOLUTION No.2021-019 graph 10. Cancellation or reduction of any coverage required by this paragraph 10 is grounds for termination of this Agreement by the Town. 11. Indemnification. Perimeter agrees to defend, save, hold harmless, and indemnify 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 Perimeter's errors, omissions, or negligent acts in the performance of services pursuant to this Agreement, or the errors, omissions or negligent acts of any party Perimeter contracts with in the performance of services pursuant to this Agreement, anyone directly or indirectly employed by Perimeter, or anyone for whose acts Perimeter may be liable. 12. 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: If to the Town, to: TOWN OF MARANA Attn: Town Manager 11555 W. Civic Center Drive - Bldg A3 Marana, AZ 85653 With a copy to: TOWN OF MARANA Attn: Town Attorney 11555 W. Civic Center Drive - Bldg A3 Marana, AZ 85653 If to Perimeter, to: PERIMETER BICYCLING ASSOCIATION OF AMERICA,INC. Attn: TJ Juskiewicz 2609 E. Broadway Boulevard Tucson, Arizona 85716 tj@eltourdetucson.org With a copy to: PERIMETER BICYCLING ASSOCIATION OF AMERICA,INC. Attn: Christiana Benson 2609 E. Broadway Boulevard Tucson, Arizona 85716 cbenson015@gmail.com Either Party may from time to time designate any other address for this purpose by written notice to the other Party. All notices under this Agreement shall be deemed received upon actual receipt. 13. Entire agreement. This Agreement constitutes the entire agreement and under- standing of the Parties pertaining to the subject matter of the Agreement and super- 00073927 DOC/1 38TH PERIMETER BICYCLING EL TOUR 28-MILE EVENT AGREEMENT - 4 - EXHIBIT A TO MARANA RESOLUTION No.2021-019 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. 14. 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. 15. Force majeure. Notwithstanding any other term, condition or provision 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 short- ages, 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 per- formance by such Party of such duty or obligation shall be extended for a period equal to the delay occasioned by such events. 16. Immigration laws. Perimeter warrants that it will at all times comply with all fed- eral immigration laws and regulations that relate to its employees and with Arizona Revised Statutes section (A.R.S. §) 23-214 (A). Perimeter 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 termination of this Agreement, and that the Town retains the legal right to inspect the papers of any em- ployee who performs work or services pursuant to this Agreement to ensure compli- ance with this warranty. 17. Israel Boycott Divestments. Perimeter certifies that it is not currently engaged in, and agrees for the duration of this Agreement to not engage in, a boycott of Israel as defined by A.R.S. §35-393 18. 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. 19. 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. 20. Governing law. This Agreement shall be construed in accordance with the laws of the State of Arizona. 21. Termination. a. This Agreement shall be terminated without further action by the Parties if the 38th El Tour de Tucson event, as described in this Agreement, is cancelled for any reason. If the event is cancelled, Perimeter shall refund to the Town all financial support provided by the Town to Perimeter pursuant to paragraph 1 of this Agree- ment within 30 days of cancellation of the event. 00073927.DOC/1 38TH PERIMETER BICYCLING EL TOUR 28-MILE EVENT AGREEMENT - 5 - EXHIBIT A TO MARANA RESOLUTION NO. 2021-019 b. The parties understand that there is a possibility that the April 10, 2021 event date may be postponed, and the parties agree to abide by the terms set forth in this Agreement if the 38th El Tour Event is postponed to a later date in 2021 c. This Agreement may be terminated without further liability on 30 days' prior written notice by either Party upon a default by the other Party of any covenant or term of this Agreement, which default is not cured within 30 days of receipt of writ- ten notice of default, except that this Agreement shall not be terminated if the de- fault cannot reasonably be cured within such 30-day period and the defaulting party has started to cure the default within the 30-day period and diligently pursues the cure to completion; provided that the grace period for any monetary default is ten days from receipt of written notice. d. This Agreement may be terminated by mutual written agreement of the Par- ties. 22. 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. [SIGNATURE PAGE FOLLOWS] 00073927.DOC/1 38TH PERIMETER BICYCLING EL TOUR 28-MILE EVENT AGREEMENT - 6 - EXHIBIT A TO MARANA RESOLUTION No.2021-019 IN WITNESS WHEREOF,the Parties have duly executed this instrument below. The "Town": "Perimeter": TOWN OF MARANA,an Arizona munici- PERIMETER BICYCLING ASSOCIATION OF pal corporation AMERICA,INC.,an Arizona nonprofit corporation Ed Honea, Mayor TJ Juskiewicz, Executive Director Date: Date ATTEST: Federal I.D. # Town Clerk Date APPROVED AS TO FORM: Town Attorney Date STATE OF ARIZONA ) ) ss. County of Pima ) The foregoing instrument was acknowledged before me this day of ,2021 by TJ Juskiewicz, Executive Director of PERIMETER BICY- CLING ASSOCIATION OF AMERICA,INC.,an Arizona nonprofit corporation, on behalf of the corporation. (Seal) Notary Public LIST OF EXHIBITS Exhibit A: 28 Mile Event Start Benefits 00073927.DOC/1 38TH PERIMETER BICYCLING EL TOUR 28-MILE EVENT AGREEMENT - 7 - EXHIBIT A TO MARANA RESOLUTION No.2021-019 Exhibit A 28 Mile Event Start Benefits Official Event Sponsor Title (TOWN OF MARANA EL TOUR DE TUCSON 28 MI 1. EVENT PRESENTED BY GLADDEN FARMS) 2. Mayor or another dignitary has the first right of refusal to start the event 3. All Medallions that are presented to the 28 mile finishers will carry the name of the Town of Marana on the ribbon that is attached to the 28 mile Medallion All 28 mile placement awards will be named after the Town of Marana: 1st through 4th 4. place male and female 5.. Town of Marana logo on El Tour Route Map 6.. Logo on El Tour de Tucson Sponsor Page 7. Link from El Tour de Tucson website to the Town of Marana Website 8. Exposure in Virtual Goodie Bag 9. Branded Town of Marana 28 Mile Presented by Sponsor Race Packets (4) Town of Marana Sponsor banners (printed by Sponsor) placed along Main 10. Start/Finish Line in Downtown Tucson Town of Marana Logo on EL Tour Jersey (2nd Edition),T-shirt (2nd edition), and poster 11. (2nd Edition) 12. Full Page e-Tailwinds Newsletter Ad produced by Town of Marana 13. The Town of Marana will be the Event Start Sponsor of the 38th El Tour 28-Mile cycling event Town of Marana 2-sided promotional banner (printed by Perimeter) for Marana 14.. Start/Finish Line 00073927.DOC/I 38TH PERIMETER BICYCLING EL TOUR 28-MILE EVENT AGREEMENT 8