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Iowa Great Places MOUTHE CITY OF DuB E MEMORANDUM ~-~-~ •,c April 11, 2007 ~ ~_; a ~ ~- ~ ~~ --~ - N r ~ w J r (~ ~ TO: The Honorable Mayor and City Council Members ~ m ~ N FROM: Michael C. Van Milligen, City Manager SUBJECT: Iowa Great Places Memorandum of Understanding Assistant City Manager Cindy Steinhauser is recommending approval of a draft Memorandum of Understanding between the City of Dubuque and the State of Iowa for the Iowa Great Places Program. I concur with the recommendation and respectfully request approval to finalize this agreement, and as long as there are no material changes, to execute the agreement. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager ~~~ MEMORANDUM OF UNDERSTANDING BETWEEN THE STATE OF IOWA, ACTING BY AND THROUGH THE GOVERNOR AND THE CITY/COUNTY OF ,IOWA THIS MEMORANDUM OF UNDERSTANDING ("MOU"), is effective as of 200_, and is made by and between the THE STATE OF IOWA, ACTING BY AND THROUGH THE GOVERNOR ("State"), and THE CITY OF IOWA ("Great Place"). In furtherance of the purposes, privileges and obligations in the Great Places program ("Program"), created on January 11, 2005 by Governor Thomas J. Vilsack's Executive Order 39 and legislatively implemented in Iowa Code 303.3C (2005) and Iowa Code 303.3D (2006), the parties hereby enter into this MOU. In consideration of the mutual covenants contained in this MOU, the sufficiency of which is hereby acknowledged, the parties agree as follows: SECTION 1. PURPOSE. The purpose of this MOU is to assist the Great Place in the cultivation of the unique aspects of its community for the benefit of its citizens and the State, and to outline the areas where the State and the agencies and boards under the direction and control of the State ("Agencies" and "Boards") may assist the Great Place in accomplishing the objectives specified in the Great Place's proposal dated ("Proposal"). The State hereby delegates to the Director of the Department of Cultural Affairs ("Director") the responsibility for planning, developing and executing the Program, and the power and authority to negotiate, execute, modify and extend this MOU, the Proposal, and the Work Plan and Projects (as hereinafter defined). SECTION 2. IDENTIFICATION AND INCORPORATION OF WORK PLAN. 2.1 When used in this MOU, the term "Work Plan" refers to the separate document outlining each proposed project ("Project") in the Proposal and the steps, if any, that the Great Place and any appropriate Agencies or Boards may take in furtherance of each Project. 2.2 The Work Plan negotiated for this Great Place is attached hereto as Exhibit A and is hereby incorporated into and made a part of this MOU by this reference as if the Work Plan was fully set forth in this MOU. The parties may jointly agree to amend, supplement, or modify the Work Plan, either through an amendment to this MOU or in connection with a Project for which funds are granted pursuant to a Grant Agreement entered into by the parties, as defined and more fully described in Section 3 hereof. 2.3 The Great Place understands and acknowledges that a commitment by the State, an Agency, Board, or other entity to assist the Great Place in the identification or application for funding or financial assistance in the Work Plan or elsewhere in this MOU does not in any way constitute a guarantee that the Great Place will receive the requested funding or financial assistance. 2.4 The Great Place understands and acknowledges that a commitment by the State, an Agency, Board or other entity to consider or review legislative or regulatory changes does not constitute a guarantee that the desired changes will ultimately be enacted or adopted. SECTION 3. GRANT AGREEMENT. As a condition precedent to receiving legally available funds, if any, from the Iowa Great Places Program Fund ("Fund"), the Great Place shall enter into the Iowa Great Places Grant Agreement ("Grant Agreement"), a copy of which is attached hereto as Exhibit B, for each Project for which monies from the Fund are sought by the Great Place. SECTION 4. RESPONSIBILITIES OF THE STATE. Pursuant to this MOU, the State agrees to do the following: 4.1 The State shall direct Agencies and Boards to undergo the tasks assigned to them pursuant to the Work Plan. 4.2 The State, through the efforts of the Department of Cultural Affairs, shall endeavor to identify and remove legislative or administrative obstacles to the accomplishment of the objectives outlined in the Proposal. 4.3 Nothing in this MOU shall obligate the State to provide funding for any Project; any obligation of the State to provide funding shall be governed by and subject to the terms of a Grant Agreement. SECTION 5. RESPONSIBILITIES OF THE GREAT PLACE. Pursuant to this MOU, the Great Place agrees to do the following: 5.1 The Great Place shall implement the Projects pursuant to the Work Plan, except that nothing in this MOU shall require or obligate the Great Place to follow through on a Project that the Great Place decides not to pursue or for which funding has not been obtained. 5.2 The Great Place shall work with the Director and staff of the Department of Cultural Affairs to propose and prepare amendments to the Work Plan. 5.3 To the extent that the Great Place or its agents have previously received grants or assistance from the State, a Board or Agency, the Great Place and its agents shall fulfill those prior obligations. The Great Place acknowledges that failure to completely fulfill the Great Place's outstanding obligations for prior Board or Agency assistance may hinder or preclude further assistance. 2 SECTION 6. DURATION. This MOU shall become effective on ,and shall be in effect for a period of three (3) years ("Term"). If it appears that the Work Plan will not completed by the end of the Term, by mutual agreement the Director and the Great Place may agree to extend this MOU under the same terms and conditions for a period of time required to complete the Work Plan. SECTION 7. TERMINATION FOR CAUSE. 7.1 The failure by the Great Place to make substantial, timely progress toward performance of the obligations in the Work Plan may constitute grounds for default. However, an inability to complete a proposed Project due to the failure to obtain necessary funding shall not be grounds for default under this MOU. 7.2 If there is a default event, the State shall provide written notice to the Great Place requesting that identified breaches or noncompliance be remedied. Such notice shall state the date by which the breaches or noncompliance must be remedied. In the event that the breaches or noncompliance continues to be evidenced beyond the date specified in the written notice, the State may at its option: 7.2.1 Immediately terminate the MOU without additional written notice and without penalty; or 7.2.2 Unilaterally revise the MOU or the Work Plan to remove or otherwise modify or affect the obligations of the Great Place and the State with respect to the area of breach or noncompliance. SECTION 8. TERMINATION FOR LACK OF FUNDS OR CHANGE IN LAW. 8.1 Notwithstanding anything in this MOU to the contrary, and subject to the limitations, conditions, and procedures set forth below, either party shall have the right to terminate this MOU without penalty and without future obligation, by giving thirty (30) days written notice to the non-terminating party as a result of any of the following: 8.1.1 The State Legislature fails to appropriate funds sufficient to allow the Great Place, the State or any Agency or Board identified in the Work Plan to meet obligations under this MOU or the Work Plan; 8.1.2 The Great Places Program legislation, currently codified as Iowa Code 303.3C and 303.3D, is repealed or substantially modified; or 8.1.3 There is a decision of any court or an arbitration panel, or any law, rule, regulation or executive order is enacted, promulgated or issued, that materially affects the ability of the Great Place, the State to fulfill its obligations under this MOU or under Iowa Code 303.3C or 303.3D. SECTION 9. TERMINATION DUE TO GREAT PLACE'S ELECTION. Through the provision of thirty (30) days written notice, the Great Place may forego its status as an Iowa Great Place. If the Great Place chooses to do so, the Great Place acknowledges that it will no longer be eligible for assistance which depends in whole or in part on the Great Place's status as a designated Great Place. If a Great Place chooses to forego its status as an Iowa Great Place, the Great Place relieves the State, its Agencies and Boards from further obligations or responsibilities under this MOU and the Work Plan. By acting in such a manner, the Great Place likewise is relieved of further obligation under this MOU and the Work Plan. SECTION 10. EFFECT OF TERMINATION. Termination of this MOU under the terms of Sections 7, 8 or 9 hereof shall not operate to terminate any Grant Agreement the Great Place may have entered into with the State, nor shall termination of the MOU override, remove or otherwise affect any responsibility or obligation that the Great Place or its agents may have agreed to assume either under a Grant Agreement or as a condition to receipt of any other grant award or other assistance. SECTION 11. CONTRACT ADMINISTRATION. 11.1 Amendments. This MOU may be amended in writing from time to time by mutual consent of the Director and the Great Place. All amendments to this MOU must be fully executed by the Director and the Great Place. 11.2 Third Party Beneficiaries. There are no third party beneficiaries to this MOU. This MOU is intended only to benefit the State and the Great Place. 11.3 Assignment and Delegation. This MOU is premised upon the prior Great Places designation granted to the Great Place. Accordingly, this MOU may not be assigned, transferred or conveyed in whole or in part. 11.4 Integration. This MOU, and any documents incorporated herein by reference, represents the entire agreement between the parties. The Great Place represents and agrees that it is not relying on any representations or covenants of the State except for those expressly included in this MOU or in any Grant Agreement. 11.5 Not a Joint Venture. Nothing in this MOU shall be construed as creating or constituting the relationship of a partnership, joint venture, or other association of any kind between the parties hereto. Neither party shall have the authority to enter into any contract or create an obligation or liability on behalf of, in the name of, or binding upon the other party to this MOU. 11.6 Use of Third Parties. The Great Place acknowledges that the State, its Agencies or Boards may contract with third parties for the performance of any of State's obligations under this MOU or the Work Plan. 4 11.7 Delay or Impossibility of Performance. A party shall not be considered to be in default under this Agreement if performance is delayed or made impossible by an act of God, flood, fire, or other similar events beyond its control. 11.8 Notices. Any notices provided pursuant to this MOU shall be in writing and delivered to the representative of the party to receive notice (identified below) at the address of the party to receive notice as it appears below or as otherwise provided for by proper notice hereunder. The effective date for any notice under this Agreement shall be the date of mailing such notice. If to the State: Department of Cultural Affairs Attn: Director 600 E. Locust St. Des Moines, IA 50319 With a copy to: Governor, State of Iowa Attn: General Counsel State Capitol Des Moines, IA 50319 If to the Great Place: 11.9 Severability. If any provision of this MOU is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this MOU. 11.10 Counterparts. The parties agree that this MOU has been or maybe executed in several counterparts, each of which shall be deemed an original and all such counterparts shall together constitute one and the same instrument. SECTION 12. EXECUTION IN WITNESS WHEREOF, in consideration of the mutual covenants set forth above and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties have entered into the above Agreement and have caused their duly authorized representatives to execute this Agreement. State of Iowa Date: Chet Culver Governor, State of Iowa 5 Great Place Date: EXHIBIT A-Work Plan (to be attached) EXHIBIT B-Iowa Great Places Grant Agreement (to be attached)