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HomeMy WebLinkAboutResolution 2007-179 MOU regarding western heritage arenaMARANA RESOLUTION N0.2007-179 RELATING TO PARKS AND RECREATION; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A MEMORANDUM OF UNDERSTANDING WITH THE WESTERN HERITAGE COMMITTEE RELATING TO THE USE AND MAINTENANCE OF THE WESTERN HERITAGE ARENA AND ADJACENT PROPERTY; AND DECLARING AN EMERGENCY. WHEREAS the Town of Marana is committed to preserving and celebrating its western heritage; and WHEREAS the Town has constructed and owns a rodeo arena known as the Western Heritage Arena which is located on property owned by the Marana Unified School District; and WHEREAS the Town desires that the Western Heritage Committee use and maintain the Western Heritage Arena for appropriate rodeo and youth-related community events that benefit the citizens of the Town; and WHEREAS the Town desires to use the property adjacent to the Western Heritage Arena for community and special events that benefit the citizens of the Town; and WHEREAS the Mayor and Council of the Town of Marana find that the best interests of the public are served by entering into the Memorandum of Understanding. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Memorandum of Understanding, and its Exhibit, between the Town of Marana and the Western Heritage Committee, attached to and incorporated by this reference in this resolution as Exhibit A, is hereby authorized and approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana upon procurement by the Western Heritage Committee of rights to the use of the property from the Marana Unified School District. BE IT FURTHER RESOLVED THAT since it is necessary for the preservation of the peace, health and safety of the Town of Marana that this resolution become immediately effective, an emergency is hereby declared to exist, and this resolution shall be effective immediately upon its passage and adoption. {00006391.DOC /} JF 9/28/07 PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 16th day of October, 2007. f Mayor E~` Ho ea ATTEST: APPROVED AS T~ FORM: ~,.--, `~,~.-L ...~ celyn C ronson, Town Clerk ~ .Frank Cassidy, Tewn Att e ~~ ~' ~~~~~~! Id-~~ ~~~~~~~ r~ ,'~~e ~„ = _ .. ~ d ~'.u~,'A `` O ~~eo bib, '~ ~° °'siew-~~`` ®~~~`` f ~iir ®~®~ {00006391.DOC /} JF 9/28/07 2 MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING ("MOU") is made and entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and the WESTERN HERITAGE COMMITTEE, a private community-based group ("WHC"). The Town and WHC are sometimes referred to in this MOU as the "Parties." RECITALS A. The Town has constructed and owns a rodeo arena known as the Western Heritage Arena ("the Arena"). The Arena is located on certain property ("the Property") in the Town of Marana that is owned by the Marana Unified School District ("MUSD"). The Property is adjacent to and east of the MUSD maintenance facilities located at Barnett and Postvale Roads. The Property is more particularly defined in Exhibit A, attached hereto and incorporated herein by this reference. B. WHC desires to use and maintain the Arena for public, community events that benefit the citizens of the Town. C. The Town desires use of the Property during Town-sponsored community and special events that benefit the citizens of the Town. D. The Town finds that the benefit to the Town resulting from WHC's use and maintenance of the Arena and from the Town's use of the Property in accordance with the terms of this MOU have a value at least equal to the consideration provided by the Town to WHC under this MOU. AGREEMENT Now, THEREFORE, in consideration of the foregoing promises and the mutual covenants set forth in this MOU, the Parties hereby agree as follows: 1. Property Usage. WHC shall procure rights to the use of the Property upon which the Arena is located through separate agreement with MUSD, the Property owner. The Town does not have the right to lease, sublet, assign, encumber or allow use of the Property to WHC or any other party. Upon procurement of the rights to the use of the Property, WHC shall allow the Town to use the Property for special event functions, as a parking facility, and for other uses approved by WHC, provided such uses comply with all statutes, codes, ordinances and conditions applicable to the ownership, operation and improvement of the Property. WHC specifically allows the Town to use the Property for the following special events: a Founders' Day event in March of each year, an Independence Day event in July of each year, and a Holiday Tree Lighting event in December of each year. If the Town desires use of the Property for other purposes and/or events, the Town Manager or designee may request permission for the desired use from (00005869. DOC / 7) -1- the President of WHC or designee. WHC is under no obligation to consent to additional or alternative uses; however, consent shall not be unreasonably withheld. If the Parties have a conflict in desired uses that cannot be resolved through discussions, the Town has priority for use of the Property during the special events specifically listed in this paragraph. 2. Arena Usage. Subject to WHC's procurement of rights to the Property, as described in paragraph 1, the Town shall allow WHC to use the Arena for appropriate rodeo and youth-related events, including events of the Marana Junior Rodeo Association ("MJRA"). WHC shall give MJRA and other youth-related events scheduling priority over all other events. In addition, the Town shall have the option to reserve the Arena for a maximum of 6 events per year for community functions. If the Town desires to reserve the Arena, the Town Manager or designee shall make reservations with the President of WHC or designee. 3. Expenses. WHC shall be responsible for all operating expenses of the Arena including, but not limited to, the cost of all utilities, refuse removal, and service of portable restrooms. To ensure that youth-related groups, including the MJRA, have access to the Arena and to the events held at the Arena free of charge and in consideration for WHC's maintenance and repair of the Arena, the Town will provide funding in the amount of $3,000.00 per month to the WHC. 4. S01(c)(3) Status. WHC shall take all necessary and appropriate steps to acquire formal 501(c)(3) status as anon-profit corporation by March 1, 2008. 5. Inspection of Arena. The Town shall have the right at all reasonable times to inspect the Arena and to require WHC to correct any unsatisfactory conditions relative to the use and maintenance of the Arena in conformance with the provisions of this MOU. WHC will be provided with written notice of any defects or unsatisfactory conditions by the Town and will be given a reasonable time within which to correct same. 6. Maintenance, Repair and Staffing. WHC shall provide labor and equipment to maintain the Arena and to staff events. WHC shall obtain permission from the Town's Parks and Recreation Department Director prior to making any modifications of the Arena. WHC may submit requests for any capital improvements to the Parks and Recreation Department Director. The Town is under no obligation to grant or fund any such requests. 7. Insurance. WHC shall provide to the Town a Certificate(s) of Insurance naming the Town as an additional insured and providing coverage as follows: Commercial General Liability - $1,000,000 per occurrence; Aggregate - $2,000,000. The Certificate(s) shall contain provisions that coverage afforded under the policies shall not be canceled, terminated or reduced in limits until at least thirty calendar days prior written notice has been given to the Town. In addition, the Certificate(s) shall stipulate that the insurance afforded WHC 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 provided by WHC. 8. Indemnification. WHC shall indemnify, defend and hold harmless the Town, its departments, officers, employees and agents from, for, and against any and all claims, {00005869.DOC / 7} - 2 - suits, actions, legal proceedings, administrative proceedings, demands, losses or expenses, including reasonable attorney's fees, which are attributable to any intentional or negligent act or omission of WHC, its members, employees, agents, subcontractors, volunteers or anyone acting under WHC's direction, control or on its behalf or anyone employed by them. 9. Non-Assignment. WHC shall not have the right to assign this MOU or grant any license in connection with the Arena to any third party without prior consent and written approval of the Town. Upon any unapproved assignment or license by WHC, the Town has the right to terminate this MOU upon forty-five (45) days written notice to WHC. 10. Effective Date and Duration. This MOU shall be effective on the date it is signed by the Parties, and shall remain in effect for one year. The term may be extended by mutual written agreement of the Parties. 11. Termination. a. For Cause. Any party hereto may terminate this MOU for material breach of the MOU by another party. Prior to any termination under this section, the party allegedly in default shall be given written notice by the other party of the nature of the alleged default. The party said to be in default shall have forty-five (45) days to cure the default. If the default is not cured within that time, the other party may terminate this MOU. Any such termination shall not relieve either party from liabilities or costs already incurred under this MOU. b. Force Majeure. A party shall not be in default under this MOU if it does not fulfill any of its obligations under this MOU because it is prevented or delayed in doing so by reason on uncontrollable forces. The term "uncontrollable forces" shall mean, for the purposes of this MOU, any cause beyond the control of the party affected, including but not limited to failure of facilities, breakage or accident to machinery or transmission facilities, weather conditions, flood, earthquake, lightning, fire, epidemic, war, riot, civil disturbance, sabotage, strike, lockout, labor dispute, boycott, material or energy shortage, casualty loss, acts of God, or action or non-action by governmental bodies in approving or failing to act upon applications for approvals or permits which are not due to negligence or willful action of the parties, order of any government officer or court (excluding orders promulgated by the parties themselves), and declared local, state or national emergency, which, by exercise of due diligence and foresight, such party could not reasonably have been expected to avoid. Either party rendered unable to fulfill any obligations by reason of uncontrollable forces shall exercise due diligence to remove any such inability with all reasonable dispatch. 12. Relationship of Parties. It is not intended by this MOU to, and nothing contained in this MOU shall be construed to, create any partnership, joint venture or employment relationship between the parties or create any employer-employee relationship between any WHC employee/member and any Town employee. Neither party shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the other, including {oooosa69.DOC i ~} - 3 - (without limitation) the other party's obligation to withhold Social Security and income taxes for any of its employees. 13. Notices. All notices, requests and other communications under this MOU shall be given in writing and either (i) personally served on the party to whom it is given, or (ii) mailed by registered or certified mail, postage prepaid, return receipt requested, or (iii) sent by private overnight courier such as Federal Express or Airborne, or (iv) transmitted by facsimile (provided that a confirming copy of the facsimile transmission is mailed on the date of such transmission), addressed as follows: If to the Town: Town Manager or designee Town of Marana 11555 W. Civic Center Dr. Marana, AZ 85653 If to WHC: President Western Heritage Committee P.O. Box 633 Marana, AZ 85653 All notices shall be deemed given when delivered or transmitted by facsimile or, if mailed as provided above, on the second day after the day of mailing, and if sent by overnight courier, on the next day after the date of deposit with the courier. Any party may change its address for the receipt of notices at any time by giving written notice thereof to the other parties in accordance with the terms of this section. The inability to deliver notice because of a changed address of which no notice was given, or rejection or other refusal to accept any notice, shall be deemed to be the effective receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. 14. Miscellaneous. (A) This MOU contains all the terms and conditions of the agreement between the Parties and the MOU may not be modified except in a writing signed by both of the Parties. There are no other understandings, representations or agreements, written or oral, not incorporated herein. (B) Time is of the essence of this MOU. (C) This MOU shall be governed by and interpreted in accordance with the laws of the State of Arizona, and any lawsuit to enforce any provision of this MOU or to obtain any remedy with respect to this MOU shall be brought in the Pima County Superior Court, and for this purpose the Parties expressly and irrevocably consent to the jurisdiction of the Pima County Superior Court. {ooooss69.~oc i ~} ' 4 - (D) If either of the Parties fails to perform any of its obligations under this MOU or if a dispute arises concerning the meaning or interpretation of any provision of this MOU, the defaulting party or the party not prevailing in the dispute, as the case maybe, shall pay any and all costs and expenses incurred by the other party in enforcing or establishing its rights under this MOU, including, without limitation, court costs and reasonable attorneys' fees. (E) 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. (F) 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 constitute one and the same agreement. (G) This MOU shall be binding upon and inure to the benefit of the Parties and their respective successors in interest and assigns; provided, however, that no assignment of this MOU shall in any way relieve the assignor of its obligations under this MOU. (H) This MOU is subject to A.R.S. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the last date set forth below their respective signatures. THE TOWN OF MARANA, an Arizona WESTERN HERITAGE COMMITTEE, a private, municipal corporation c m ity-based group G=~~~ By. ~ By. Ed Honea, Mayor Date: /~ _ `1~/- ~r '~ Date: ~~' ~ ` ~ APPRQ~ AS TO FORM: Tovy Attorney v''