Loading...
9.a Scandia Veterans Memorial Staff Report Date of Meeting: June 21, 2016 To: City Council From: Neil Soltis, Administrator Re: Veteran’s Memorial Agreement Background: The City approved the site plan and design concept of the Scandia Veteran’s Memorial to be placed in Lilleskogen Park on July 15, 2015. It is in the best interest of the City to define the relationship between the groups for the purposes of construction, capital improvements, continued maintenance and use of the Scandia Veteran's Memorial. The agreement as drafted is between the City, the Scandia Marine Lions Foundation (SMLF), and the Scandia Veterans Memorial Committee (SVMC - an informal organization of area residents). Issue: Which parties should be responsible for the construction, capital improvements, and continued maintenance of the Veteran’s Memorial? Proposal Details: Below is a summary of the key provisions of the agreement: TERM: The agreement would be in perpetuity or until such time as the SMLF and SVMC are disbanded or no longer perform any material maintenance obligations. CONSTRUCTION: The Committee agrees to construct the Memorial per the specifications and site plan as authorized and approved by the City. Any future construction would require the express written consent of all parties. USE: The SVMC may use the Premises for conducting veteran or military service appreciation ceremonies at its discretion. OWNERSHIP: The Premises shall remain part of a City-owned public park and therefore shall remain available and open to the general public during park hours. CONSTRUCTION AND MAINTENANCE COSTS: SMLF shall oversee any and all costs associated with the initial construction, capital maintenance and improvements deemed necessary to secure the safety and good repair of the Memorial and Premises. The SVMC and SMLF will oversee the maintenance of said Premises, structures, decorative landscaping, etc. to ensure that the Premises are kept in good repair at their own expense, subject to the terms herein. The City shall be responsible for general maintenance of the park property outside of the perimeter of the Memorial. INSURANCE: The City agrees to secure property insurance coverage for the Memorial and the Premises. The cost of the coverage to the City will be $1.00 per $100 of coverage. The City will also provide workers compensation and liability insurance coverage for volunteers works at the site pursuant to a volunteer policy once one is adopted. Note that this coverage is already included in the City’s policies. DONATIONS AND FUNDING: The SVMC shall be solely responsible for conducting fund raising drives. All donations to the SVMC shall be the property of the SMLF. Fiscal Impact: The initial fiscal impact to the City will be the need to insure the property as property in the open. The cost of the coverage will be $1 / $100 of value. In the event that the Committee or Foundation disbands or does not provide for the maintenance of the memorial, the cost of future maintenance will fall to the City. Options: 1. Approve the agreement as presented 2. Modify the agreement 3. Take no action on the agreement Recommendation: Approve the agreement as presented. The agreement was drafted to protect the City’s interest and to minimize the future costs to the City. 1 VETERAN'S MEMORIA L AG REEM ENT CITY OF SCANDIA & SCANDIA MARINE LIONS FOUNDATION SCANDIA VETERANS MEMORIAL COMMITTEE SCANDIA, MINNESOTA This VETERAN' S MEMORIAL AGREEMENT (this "Agreement”), is entered into as of this day of 2016, by and between the City of Scandia, a Minnesota municipal corporation and political subdivision, located at 14727 209th Street North, Scandia, Minnesota 55073, (the “City”), the Scandia Marine Lions Foundation, a Minnesota nonprofit corporation, with a registered office address of 14051 202nd Street North, Marine on St. Croix, Minnesota, 55047 (“SMLF”) and the Scandia Veterans Memorial Committee . WITNESSETH WHEREAS, the City owns and maintains a municipal park referred to as Lilleskogen Park located at the southwest corner of STH 97 and Oakhill Road ; and WHEREAS, the City approved the site plan and design concept of the Scandia Veteran’s Memorial to be placed in Lilleskogen Park on July 15, 2015; and WHEREAS, the City recognizes that the construction process and maintenance of the memorial site shall be funded solely with monies made available through the fund raising efforts of the SVMC and donations for the memorials to SMLF; and WHEREAS, the City and SMLF are ready, willing and able to enter into an agreement for the continued maintenance of the Scandia Veteran's Memorial at Lilleskogen Park on the terms and conditions as set forth in this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: DEFINITIONS As used in this Agreement, the following terms have the following meanings: “Memorial” shall mean the Scandia Veteran’s Memorial, located in Lilleskogen Park in the City, and constructed pursuant to the site plan and design concept previously approved by and on 2 file with the City. "Premises” shall mean the site of the Scandia Veteran’s Memorial in Lilleskogen Park, Scandia, Minnesota. "Term" shall mean a calendar year increment of this Agreement. TERM OF AGREEMENT This Agreement shall continue hereafter in perpetuity for additional Terms until such time as the SMLF is disbanded or no longer able to fund any material maintenance obligations under this Agreement. The Term of this Agreement may be altered, changed, extended or otherwise modified as mutually agreed to in writing by all parties to this Agreement. TERMINATION This Agreement may be terminated: At the option of any party, in the event that any material portion of the Memorial shall be condemned, fully or partially destroyed or damaged by natural disaster or fire, or if insurance proceeds are insufficient to repair the Memorial after a natural disaster, fire or accident. Termination of this Agreement shall be without prejudice to any outstanding obligations of the parties accrued hereunder through the effective date o f termination, and any claims for damages arising out of the event or cause constituting the basis for such termination, including, without limitation, in the event of the SMLF's breach, the City’s right to require the immediate payment of all material obligations. OWNERSH IP AND USE OF PREMISES The City shall retain ownership of the park property upon which the Memorial stands and shall declare ownership of the Memorial upon its completion. For and in consideration of the conditions hereinafter stated, the SVMC coordinate the construction of the memorial and the SMLF agrees to fund the construction of the Memorial per the specifications and site plan as authorized and approved by the City. The City and SMLF or SMLC shall meet as necessary to discuss capital improvements for the Memorial. No party shall construct or place additional objects or monuments in addition to what is identified in the original site plan and design concept without th e express written consent of all parties. 3 The SVLF may use the Premises for conducting veteran or military service appreciation ceremonies at its discretion. The Premises shall remain part of a City-owned public park and therefore shall remain available and open to the general public during park hours. INSURANCE The City agrees to secure property insurance coverage for the Memorial and the Premises. The City agrees to provide liability and worker’s compensation coverage for volunteers pursuant to any City volunteer policy in place at the time that the work is performed. The SVMC and SMLF agree that they will not use or permit upon said Premises, any person, place, thing, or any activity that will invalidate any policies of insurance now or hereafter carried on said Premises and property. MAINTENANCE OF MEMORIAL GROUNDS AND STRUCTURES The SMLF shall oversee any and all costs associated with capital maintenance and improvements deemed necessary to secure the safety and good repair of the Memorial and Premises. Such improvements include but are not limited to general upkeep of the Premises and minor repairs of the Memorial and the surround ing area. Notwithstanding the placement or replacement of paving blocks, the SVMF shall make no alterations or capital improvements in or to said Premises without prior written consent of the City. The SMLF shall comply with all reasonable requests of the City and its agents concerning conditions of the Premises and its maintenance. In the event that the SMLF fails to maintain the Premises to the satisfaction of the City, the City reserves the right to facilitate the cleanup and/or maintenance deemed to be reasonably necessary. Before any remedial action is taken, the City will provide written notification of any unsatisfactory condition to the SMLF and allow either party reasonable time to correct the unsatisfactory condition. In the event that the City deems it necessary to take such remedial action, the SMLF shall be liable to the City for all costs incurred by the City in cleaning and/or maintaining the premises. The City will send a written invoice to SMLF at the address listed above, with payment terms enclosed. The City shall be responsible for general maintenance of the park property outside of the perimeter of the Memorial. 4 SUPPLIES The SMLF shall furnish, at their own expense, all flags/banners representing armed services and POW/MIA. If the SMLF is unable to provide the American flag for the Memorial flagpole, the City will provide for up to three 4' x 6' American flags per year. DONATIONS AND FUNDRAISERS The SVMC and SMLF shall be solely responsible for conducting fund raising drives. All donations solicited by the SVMC shall be the property of the SMLF to use at its discretion. COMPLIANCE WITH LAW Each party hereby agrees to comply with all laws, ordinances, rules and regulations of any federal, state, county, municipality or other government authority in connection with the exercise of the rights and performance of the maintenance obligations hereunder. The SVMC and SMLF shall comply with all laws, ordinances, rules and regulations applicable to the maintenance and use of the Memorial. REPRESENTATIONS AND WARRANTIES The City hereby represents and warrants that: 1. It has all necessary rights, licenses and authorization to carry out the terms of this Agreement; 2. It has full power and authority to enter into this Agreement and to make and perform its covenants, representations and undertakings contained herein; and 3. The individual who has signed this Agreement on behalf of the City has been duly authorized to do so. The SMLF hereby represents and warrants that: 1. It has all necessary rights, licenses and authorization to carry out the terms of this Agreement; 2. It has full power and authority to enter into this Agreement and to make and perform its covenants, representations and undertakings contained herein; and 5 3. The individual who has signed this Agreement on behalf of the SMLF has been duly authorized to do so. INDEMNIFICATION Each party shall defend, indemnify and hold harmless the other party and its officers, directors, employees and agents from and against any and all costs, claims, damages, losses, liabilities and expenses including, but not limited to, reasonable attorney's fees, arising out of or related to any breach or non-performance by the indemnifying party of any of its maintenance obligations under this Agreement. Furthermore, each party mutually agrees to indemnify and refund to each other all such sums, which the respective party may be obligated or adjudged to pay, including attorney ’s fees and costs, on such actions, claims, or demands within thirty (30) days after written request for such indemnification. Failure to comply with the terms of indemnification as outlined herein may result in termination of this Agreement at the option of the non-breaching party. FORCE MAJEURE No party shall be liable to the other because of any failure to perform under this Agreement to the extent that such failure is caused by fire, earthquake, flood or any other acts of God, governmental regulations or restrictions, governmental taking, vandalism, strike, labor stoppage or any other cause or condition, whether similar or dissimilar to any foregoing, beyond the reasonable control of such party. Any termination under this section shall be without prejudice to the outstanding maintenance obligations of the parties accrued hereunder prior to the effective date of termination. RELATIONSHIP OF PARTIES Nothing herein contained shall be deemed to create any relationship of joint ventures, partners, principal and agent, or otherwise between the parties. No party shall have the right, or shall purport in any manner, to create any obligation on behalf of the other party, except as otherwise expressly described in this Agreement . NOTICES Any notices, requests, demands or other communications required or permitted under this 6 Agreement shall be in writing and shall be deemed to have been given when delivered personally, two (2) business days after being deposited with a recognized overnight courier service with all charges prepaid or billed to the sender, or three (3) business days after being mailed by certified mail, return receipt requested, addressed to the party being notified at the address of such party first set forth above, or at such other address as such party may hereafter and therefore have designated by notice; provided, that any notice and change of address shall not be effective until its receipt by the party to be charged therewith. GENERAL Neither this Agreement nor any of the terms or conditions hereof may be waived, amended or modified except by means of a written instrument duly executed by the party to be charged therewith. Any waiver or amendment shall only be applicable in the specific instance, and shall not constitute or be construed as a waiver or amendment in any other subsequent instance. No failure or delay on the part of either party in respect of any enforcement of its maintenance obligations hereunder shall in any manner affect such party’s right to seek or effect the enforcement at any other time or in respect of any other required performance. Neither this Agreement, nor any rights or obligations hereunder, may be assigned by any party without prior written consent of all other parties. The captions and paragraph headings used in this Agreement are for convenience of reference only, and shall not affect the construction or interpretation of this Agreement or any of the provisions hereof. This Agreement and all matters or disputes relating to the validity, construction, performance or enforcement hereof, shall be governed by and construed in accordance with the laws of the State of Minnesota. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original hereof, but all of which together shall constitute on and the same instrument. In the event of any dispute under or arising out of this Agreement, the prevailing party in such dispute shall be entitled to recover from the non-prevailing party or parties, in addition to any damages and/or other relief that may be awarded, its reasonable costs and expenses, including reasonable attorney’s fees, incurred in connection with prosecuting or defending the subject dispute. 7 This Agreement constitutes the sole and entire agreement and understanding between the parties hereto as to the subject matter hereof, and supersedes all prior discussions, agreements and understandings of every kind and nature between them as to such subject matter. This Agreement is intended for the sole and exclusive benefit of the parties hereto and their respective successors and permitted assigns, and no other person or entity shall have any right to rely on this Agreement or to claim or derive any benefit here from absent the express written consent of the party to be charged with such reliance or benefit. If any of the provisions of this Agreement are held to be invalid or unenforceable, either in its entirety or by virtue of its scope or application to given circumstances, such provision shall thereupon be deemed modified only to the extent necessary to render same valid, or not applicable to given circumstances, or exercised from this Agreement, as the situation may require; and this Agreement shall be con strued and enforced as if such provision had been included herein as so modified in scope or application, or had not been in cluded herein, as the case may be. SIGNATURES IN EXECUTION OF AGREEMENT IN WITNESS WHEREOF, the parties have executed this Agreement and affixed their seals as of the day and year first set forth above. CITY OF SCANDIA Date: Mayor Date: Administrator Date: Witness: SCANDIA MARINE LIONS FOUNDATION 8 Date: Date: Date: SCANDIA VETERANS MEMORIAL COMMITTEE Date: Date: Date: