AGREEMENT BETWEEN CITY OF SUNNYVALE AND SUNNYVALE
HISTORICAL SOCIETY AND MUSEUM ASSOCIATION FOR THE DESIGN,
DEVELOPMENT, OPERATION AND MAINTENANCE OF A HERITAGE
MUSEUM AT SUNNYVALE HERITAGE CENTER AT THE SUNNYVALE
COMMUNITY CENTER

THIS AGREEMENT dated _____________________________, 2004, is by and between CITY OF SUNNYVALE, a municipal corporation of the State of California ("CITY"), and SUNNYVALE HISTORICAL SOCIETY AND MUSEUM ASSOCIATION ("SOCIETY"), a California not for profit corporation;

WHEREAS, on December 15, 1992, pursuant to the Open Space Sub-Element of the General Plan of CITY, the City Council of CITY designated a ten (10) acre orchard at CITY’s Community Center as a special use site to be known as Orchard Heritage Park; and

WHEREAS, on May 14, 2002, the City Council approved the concept of establishing a historical museum at Orchard Heritage Park as outlined in Report to Mayor and Council No. 02-151, and

WHEREAS, on May 14, 2002, the City Council committed to contributing the sum of $500,000 to the SOCIETY for the development of a historical museum at Orchard Heritage Park, and

WHEREAS, on May 14, 2002, the City Council committed to replacing the CITY and SOCIETY’S "co-sponsorship" arrangement with a comprehensive agreement for the development, operation and maintenance of a Sunnyvale Historical Museum at Orchard Heritage Park and for all aspects of SOCIETY’S relationship with CITY, and

WHEREAS, on September 24, 2002, the City Council approved a Master Plan for Orchard Heritage Park depicting a conceptual plan for a future museum as outlined in Report to Mayor and Council No. 02-369, and

WHEREAS, on November 12, 2002, the City Council approved a general site plan for the development of a historical museum at Orchard Heritage Park as outlined in Report to Mayor and Council No. 02-433,

NOW, THEREFORE, the parties agree as follows:

1. CITY shall contribute $500,000 funding for this project from monies due the City under the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002, the City’s General Fund, or another City funding source.

2. SOCIETY shall use the entire $500,000 CITY contribution to fund architectural designs and museum exhibits and/or for construction materials for which there is a sole source. Exhibit costs include those related to professional design, services of an exhibit designer, research and documentation conducted by a professional historian, and costs related to exhibit displays.

3. Report to Council 03-295 regarding "Sunnyvale Heritage Museum Plaques and Recognition for Donors Contributing to Museum" is incorporated by reference in this Agreement, and SOCIETY shall comply with all related requirements and conditions contained therein based on City Council’s action of August 26, 2003.

SOCIETY shall be allowed at no charge the continued use of those areas of Murphy Park Building at Murphy Park depicted in Attachment A as "museum" and "museum work center" for the purpose of maintaining a Sunnyvale Historical Museum until one year following the completion of construction of a Historical Museum at Sunnyvale Heritage Center. With the exception of items stored in that area depicted in Attachment A as "garage," upon that one year anniversary, SOCIETY shall have removed all its belongings from the Murphy Park Building and shall relinquish further use of that structure. Use of the garage area may be used by SOCIETY until needed by CITY. Upon written notice that CITY needs the garage area, SOCIETY shall remove all items stored therein within 3 months of notice. Items not removed by that time may be disposed of by CITY.

1. The parties acknowledge that SOCIETY shall cause to be prepared at its expense and shall submit to CITY construction plans and specifications for a project (the "Project") consisting of a historical museum to commemorate the history of the City of Sunnyvale and the local region. Plans and specifications shall include any signage proposed to be erected outside the museum on City property (e.g., directional signage, interpretive signage).

2. SOCIETY shall prepare such plans and specifications in consultation with CITY. SOCIETY shall receive approval of all plans and specifications by the Director of Parks and Recreation and/or his designee(s) prior to filing of final plans and specifications under section 3(e) below.

3. The Project site consists of an area located within that portion of Orchard Heritage Park named by City Council "The Sunnyvale Heritage Center." The Project site is more precisely depicted in Attachment B, attached and incorporated by this reference, and final plans and specifications submitted by the SOCIETY shall reflect a museum consistent with Attachment B. The total square footage of the two-story museum shall not exceed 8,500 square feet with a first-story footprint not to exceed 4,700 square feet.

4. Final plans shall bear a resemblance to (but not necessarily be a replica of) the Murphy Bayview Ranch house.

5. SOCIETY shall file final plans and construction specifications for the PROJECT with the CITY’s Department of Community Development under the miscellaneous plan permit process.

1. Upon filing of the final plans and specifications CITY shall review the Project through its staff under the miscellaneous plan permit process.

2. All fees that City would otherwise charge SOCIETY in connection with CITY’s review and processing of the Project are hereby waived.

1. Prior to construction, SOCIETY shall have secured the CITY’s approval of all plans and specifications in accordance with Section 3 of this Agreement.

2. Prior to construction, SOCIETY shall have obtained all necessary permits authorizing construction of the Project from CITY and other public agencies having jurisdiction over the Project, in compliance with all applicable laws, regulations, codes, and the permitting process.

3. Prior to commencement of construction of the Project, SOCIETY shall provide CITY with access to the financial records of SOCIETY, with proof that SOCIETY has sufficient funds to undertake and complete such construction, and that SOCIETY has sufficient funds to maintain and operate the Museum in accordance with Section 7 of this Agreement.

4. SOCIETY shall commence construction of the Project not later than June 30, 2008, and complete construction not later than June 30, 2010. SOCIETY shall provide all labor and materials necessary for construction of the Project, and shall be responsible for making all related payments to contractors associated with the PROJECT.

5. SOCIETY shall work closely with CITY regarding access to work site and staging of equipment and materials associated with PROJECT.

1. CITY shall use reasonable efforts to expedite planning, permits and approval for construction of the Project.

2. CITY shall conduct periodic inspections of the project to ensure compliance with Federal, State and local requirements.

1. Financial Accounting—SOCIETY shall employ standard business accounting practices in managing the financial affairs of the museum.
2. Use of Museum—interior of the building is designated exclusively for the purpose of a museum and related activities. SOCIETY shall not use the museum interior for other purposes without the prior permission of CITY. CITY shall not use the museum interior for other purposes without the prior permission of SOCIETY.
3. Maintenance of Building—Society shall be solely responsible for the routine care and upkeep of the museum’s interior and exterior, and shall maintain both in a condition consistent with the standards of care provided to City buildings by the Facilities Management Division. At least annually, staff from the Facilities Management Division shall accompany a Society representative on a tour of the museum and evaluate its condition using standard City forms used for this purpose. Deficiencies noted shall be addressed by SOCIETY within 1 month, with the exception of hazardous conditions, which shall be eliminated within 24 hours by SOCIETY.
4. Landscaping—SOCIETY shall have no responsibility relative to exterior landscaping associated with the museum. If and when CITY re-designs the landscaping immediately adjacent to and associated with the museum, CITY shall provide SOCIETY the opportunity to provide input to the re-design prior to actual renovation, and SOCIETY’S responsibilities relative to maintenance of exterior landscaping shall be re-evaluated by both parties.
5. Signs—City shall permit SOCIETY to erect interpretive, informational and directional signage pertaining to Orchard Heritage Park and its various components (including, but not limited to, the pending museum, Orchard Heritage Interpretive Park Exhibit; Sunnyvale Heritage Center, Bianchi Barn and orchard). Specific language, location, materials and design shall be approved by the Director of Parks and Recreation prior to construction or installation. SOCIETY shall be responsible for meeting any and all signage requirements resulting from any use of Proposition 40 funds as required by the State of California. Signs may be approved for installation prior to approval of museum design or construction phases.
6. Hours of Operation—SOCIETY shall ensure museum is staffed and open to the general public a minimum of 3 days per week, 3 hours per day, including at least one weekend day each week. Museum shall close by no later than 10 p.m. each evening unless otherwise permitted by the Director of Parks and Recreation. Hours of operation shall be clearly posted and visible to the general public on the exterior of the museum.
7. Programming/Curating—SOCIETY shall have sole responsibility for curating and programming the museum, including decisions related to procurement of artifacts, display of materials, rotation of displays, etc. SOCIETY shall maintain two rooms with a combined minimum of 700 square feet of space devoted to the purpose of "rotating" displays, and shall change exhibits associated with "rotating displays" at least annually.
8. Use of Outdoor Area and Sunnyvale Heritage Center—CITY shall provide at no charge to SOCIETY general use of the outdoor area depicted by Attachment C for up to ten (10) weeks (five consecutive weeks, twice yearly) during the school year for the purpose of providing educational experiences for local elementary school children. SOCIETY shall also have use of the outdoor area and Sunnyvale Heritage Center building for fund-raising purposes four times each year for a period of up to 48 hours per time. SOCIETY shall be allowed to request reservation of this area up to six (6) months in advance.CITY shall have no obligations in association with SOCIETY’S use of either outdoor area beyond permitting said use. All work associated with the preparation, implementation, and clean-up of said use shall be the responsibility of SOCIETY
9. Keys and Security—SOCIETY shall be responsible for the security of the museum, including keys, locks and security system. CITY shall be provided two keys and any security access codes to the museum (for Superintendent of Facilities and Superintendent of Parks).

1. Upon completion of the Project and acceptance of it by CITY, ownership in the Project shall vest in CITY.

2. Upon completion of the Project and acceptance of it by CITY, SOCIETY shall become responsible for furnishing all utilities (including, but not limited to, water, gas, electricity, sewer, and garbage) at no cost or expense to CITY. SOCIETY shall be responsible for the cost and expense of cable, computer, and/or telephone bills.

3. CITY shall list the Sunnyvale Historical Society and Museum Association and the Sunnyvale Historical Museum’s hours of operation in its Recreation Activity Guide for the purpose of promoting both the SOCIETY and the Museum at no charge to SOCIETY.

1. SOCIETY shall not charge the public for admittance to the Museum without prior consent of the CITY; CITY shall not charge the public for admittance to the Museum without prior consent of SOCIETY; the consent of either party shall not be unreasonably withheld. Donations to the museum shall be the responsibility and property of SOCIETY. CITY shall not charge SOCIETY any fees for its use of the Museum, provided that such use is first scheduled and approved by the Director of Parks and Recreation of CITY or his or her designee.

SECTION 11. INDEMNIFICATION AND INSURANCE.

1. SOCIETY shall defend, indemnify and hold harmless CITY, its officers, agents and employees from any claims, demands, actions, causes of action, losses, damages, liabilities, known or unknown, and all costs and expenses, including reasonable attorneys’ fees, in connection with any death of or bodily injury to persons or loss of or damage to property arising out of or in any way connected with the act, omission, or negligence of SOCIETY, its officers, employees, agents, contractor, subcontractor or any officer, agent or employee thereof in relation to the performance by SOCIETY of its obligations under this Agreement.

2. SOCIETY shall obtain and keep in force a liability insurance policy in the amount of not less than $1,000,000.00 insuring against the risks of personal and bodily injury and loss of or damage to property arising out of the performance by SOCIETY of its obligations under this Agreement. Such insurance policy shall designate CITY, its officials, employees, agents and volunteers as additional insureds with respect to liability arising out of activities performed on behalf of SOCIETY under this Agreement. For any claims related to such activities, SOCIETY’s insurance shall be primary.

3. SOCIETY shall obtain from any contractors performing activities designated in this Agreement with regard to the Project, whether such persons are performing such activities for compensation or in kind, certificates of such liability insurance protecting against the risks described in Section 5(b) as such contractors may have in effect. Such certificates shall designate CITY, SOCIETY, and their officials, employees, agents and volunteers as additional insureds with respect to liability arising out of activities performed by the contractor on behalf of SOCIETY under this Agreement.

4. CITY shall, at the expense of CITY, add the Museum Building to the City’s Property Coverage insurance policy. SOCIETY shall provide insurance coverage, at SOCIETY’s expense, for contents or any valuable or precious artifacts. Such insurance coverage requires written authentication and valuation of each item covered. CITY shall not be responsible for the replacement of any valuable artifact that is damaged or stolen from the museum.

1. The Director of Parks and Recreation or designee shall represent CITY in all matters pertaining to the administration of this Agreement. All requirements of CITY pertaining to the Project shall be coordinated through the CITY representative.

2. The President of SOCIETY or designee shall represent SOCIETY in all matters pertaining to the administration of this Agreement. All requirements of SOCIETY pertaining to the Project shall be coordinated through the SOCIETY representative.

SECTION 13. TIME OF THE ESSENCE. Time is of the essence of this Agreement. If SOCIETY fails to perform its obligations set forth in Section 5 in a timely manner, CITY may terminate this Agreement, except to the extent that such obligations may be suspended pursuant to Section 6.

SECTION 14. FORCE MAJEURE. If, due to act of God; fire; flood; storm; inclement weather; earthquake; drought; acute restrictions or riot; war or insurrection; plant or animal infestation or disease; sudden or severe energy shortage; strike; work stoppage; work slowdown or other concerted job action; or other condition of emergency or disaster beyond the control of either party which makes performance of any of its obligations under this Agreement impossible or extremely impracticable, such obligations shall be suspended during such time any such condition or conditions exist.

SECTION 15. DISCRIMINATION. Neither CITY nor SOCIETY shall discriminate in the employment of persons engaged in the performance of this Agreement on account of race, color, national origin, ancestry, sex, disability, sexual orientation, or medical condition, in violation of state or federal laws, or any other basis otherwise prohibited by state or federal law.

SECTION 16. NOTICES. All notices shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows:

SECTION 17. EFFECT OF WAIVER OF BREACH OR VIOLATION. The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provision of law shall not be deemed to be a waiver of any other term, covenant, or condition or law. The subsequent acceptance by either party of any money that may become due hereunder shall not be deemed a waiver of any preceding breach or violation by the other party of any term or condition of this Agreement, or of any applicable law.

SECTION 18. LEGAL ACTIONS; ATTORNEY FEES.

1. Any disputes regarding this Agreement shall be resolved according to the laws of the State of California. Any legal proceedings shall be instituted in the courts of the State of California and County of Santa Clara, irrespective of any claim of diversity of citizenship or other possible jurisdictional conditions.

2. The prevailing party in any action brought to enforce the terms of this Agreement or arising out of this Agreement may recover its reasonable costs and attorney's fees expended in connection with such an action from the other party, not to exceed $ 5,000.00.

SECTION 19. INTEGRATED AGREEMENT. This document represents the entire and integrated Agreement between CITY and SOCIETY and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement shall not be construed as nor deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action herein for any cause whatever.

SECTION 20. AMENDMENT OF AGREEMENT. This Agreement may be amended only by written instrument, signed by both CITY and SOCIETY. Within six (6) months following the five (5) year anniversary of the execution of this Agreement, both parties shall meet to thoroughly review its terms and the condition of the museum building and shall consider mutually agreeable revisions to this Agreement. Similar actions shall be taken by both parties within six (6) months following the ten (10) year anniversary, fifteen (15) year anniversary, and twenty (20) year anniversary of the original execution of this Agreement.

SECTION 21. ALL PROVISIONS OF AGREEMENT ARE CONDITIONS. All provisions of this Agreement are expressly made conditions.

SECTION 22. TERMINATION OF AGREEMENT; SURVIVAL OF OBLIGATIONS.

This Agreement shall become operative upon its execution by the parties and shall remain operative and continue in full force and effect for fifty (50) years from the execution of this agreement, except that

1. SOCIETY may terminate this Agreement upon written notice to CITY for any of the following reasons:

1. The failure of CITY to comply with any and all terms of this agreement.

2. The failure of CITY to approve the plans and specifications within a reasonable time.

3. The failure of CITY to issue all permits necessary for construction of the Project within a reasonable time.

b.  CITY may terminate this Agreement upon written notice to SOCIETY for any of the following reasons:

1. The failure of SOCIETY to comply with any and all terms of this agreement

2. The failure of SOCIETY to commence construction of the Project by June 30, 2008.

3. The failure of SOCIETY to complete construction of the Project by June 30, 2010.

c. This Agreement may be terminated at any time upon the mutual assent of the City Council of CITY and the Board of Directors of SOCIETY.

Upon termination of this Agreement the parties shall have no further responsibilities thereunder, except that the obligation of SOCIETY pursuant to Section 3(a) shall survive the termination of this Agreement.

IN WITNESS WHEREOF, CITY and SOCIETY have executed this Agreement on the day and year first above written.

1. Murphy Park Floor Plan Recreation Building (.pdf format)

2. Murphy Park Floor Plan Recreation Building (.pdf format)

3. Outdoor Area, Sunnyvale Heritage Center at the Sunnyvale Community Center (.pdf format)