APPENDIX
A
MEMORANDUM
OF UNDERSTANDING
This Memorandum of Understanding dated the day of ,
2006.
B E T W E E N:
(the “Town”)
-and-
(the “Foundation”)
WHEREAS the Town owns
and operates a museum within the Town of Markham known as the Markham Museum
and Historic Village (the “Museum”);
AND WHEREAS Town Council passed By-law 4-77 which
established an advisory committee of the Town, known as the Museum Advisory
Board (the “Advisory Board”);
AND WHEREAS pursuant to Terms of Reference established
by the Town, the purpose and role of the Advisory Board was to, amongst other
things, be an advocate of the Museum within the community, to provide advice
and recommendations to the Museum and to take a leadership role in developing
revenues for the Museum;
AND WHEREAS the Town recognizes the extensive and
generous contributions of the Advisory Board and volunteers who have been
instrumental in the development of the Museum and the Foundation;
AND WHEREAS on Town
Council passed a resolution dissolving the Advisory Board and repealing By-law
4-77;
AND WHEREAS the present Foundation, which is the
subject of this Memorandum of Understanding, has evolved from this earlier
Advisory Board;
AND WHEREAS the parties acknowledge that this
Memorandum of Understanding shall replace and supercede the Terms of Reference
for the Advisory Board and By-law 4-77;
AND
WHEREAS the Town, to
assist the Foundation, will provide secretarial assistance, legal advice and
the appointment of a Museum Manager whose role, among other matters, is, in
conjunction with Town Staff and the Board of Directors of the Foundation (the
“Board”), to develop programs for the Museum, to consult with the Board as to
the source of funds to undertake such programs, the administration of the Museum
and to make recommendations to the appropriate Committees and/or the Board for
the acquisition and deaccession of artifacts and archival materials;
AND WHEREAS at its meeting on , 2007, Town Council passed a Resolution
approving this Memorandum of Understanding;
AND WHEREAS at its meeting on , 2007, the Board passed a Resolution
approving the Memorandum of Understanding;
NOW THEREFORE, the Town and the Foundation agree as
follows:
1.
In
this Memorandum of Understanding the following shall mean:
“Board” shall mean,
collectively, the Board of Directors of the Markham Museum Foundation as
appointed by the Members of the Foundation from time-to-time, and individually,
as “Board Director”;
“Commissioner” shall mean the Commissioner of
Community and Fire Services or his or her designate;
“Council” shall mean the Municipal Council of
The Corporation of the Town of
“Foundation” shall mean the Friends
of the
“Members” shall mean all of the Regular
Members of the Foundation as defined by By-law No. 1 of the Foundation who are
the Mayor and Members of Council of the
Town of Markham, as may be elected from time-to-time;
“Museum” shall mean the
“Museum Collection” shall include all
artifacts, including heritage buildings, and archival materials, owned by the
Town, or owned by the Foundation and loaned to the Town pursuant to this
Memorandum of Understanding;
“Museum Manager” shall mean the person
appointed by the Town, in as the manager of the Museum; and
“Town” shall mean The Corporation of the Town
of
2.
The
purpose of this Memorandum of Understanding is to set out the roles and
responsibilities of the Town, including the Museum and the Foundation,
including the Board, with respect to the administration of the Museum, the
acquisition, deaccession and management of the Museum Collection, and the use
of Museum facilities.
3.
The
Town and the Foundation acknowledge the Goals of the Museum are as follows:
a.
to
study and collect the documentary and material heritage of the geographical
area now known as the Town of Markham from earliest times to the present;
b.
to
take an interdisciplinary approach to its subject matter, with exhibitions and
programs that include archaeology, history and science; and
c.
presenting
exhibitions and programs reflecting the experiences of all its citizens, from
the earliest humans to make this area their to the most recent arrivals; the Museum’s archival resources similarly
offer the potential for research into the heritage of all Town residents.
4.
The
Members of the Foundation shall appoint a Board of Directors (the “Board”),
consisting of up to eleven (11) members to be comprised as follows:
a.
Two
members shall be appointed from Council;
b.
The
Mayor Ex-Officio; and
c.
Up to
nine members shall be appointed from the community at large and shall be
considered based on recommendations from the Executive Committee.
5.
The
term of the appointment of each Board Director shall be for a period of three
years or for such term as may be required by By-law No. 1 of the Foundation, as
may be amended from time to time. The
Members shall appoint the Board so that the terms of the individual Board
Directors are staggered with no more than one third of the Board being
appointed in any one year.
6.
The
Board shall elect a Chair of the Board and any other officers as deemed
necessary, on an annual basis.
7.
The
Board shall hold a minimum of six meetings annually.
8.
The
Members shall hold an annual general meeting in accordance with By-law No. 1 of
the Foundation, and shall schedule such additional meetings from time-to-time
as may be necessary to deal with Foundation business.
9.
The
Members and the Board, in exercising their respective rights and duties, shall
do so in a manner consistent with the objectives and guiding principles set out
in the Foundation’s Articles of Incorporation and By-law No. 1 of the
Foundation, attached hereto as Schedule “A”, and the Goals of the Museum as
heretofore set out, and shall receive and maintain a fund or funds and shall
apply all of the principal and income therefrom for the following charitable
purposes:
10.
The
Members and the Board shall act honestly and in good faith with a view to the
best interests of the Foundation and shall exercise the care, diligence and
skill that a reasonably prudent person would exercise in comparable
circumstances.
11.
The Board shall establish standing committees to undertake and assist
the Board in its business. The Chair of
each standing committee shall be a Board Director and the other members of the
standing committee may be appointed by the Board through its nominating
process.
12.
The
Board shall establish the following Standing Committees:
a.
Museum
Collection Development Committee;
b.
Executive
Committee;
c.
Development
Committee;
d.
Volunteer
Committee; and
e.
such
other committees as the Board may deem to be necessary and appropriate from
time-to-time.
13.
Notwithstanding
Section 11, the Board shall appoint the Museum Manager as a member of the
Museum Collection Development Committee, and the Museum Manager shall be a
member ex officio of all other Committees of the Board.
14.
The
duties of the Standing Committees shall be as follows:
a.
Museum
Collection Development Committee – shall be responsible for making
recommendations to the Board regarding all acquisitions and deaccessions of the
Museum Collection in accordance with the terms of this Memorandum of
Understanding;
b.
Executive
Committee – shall be responsible for:
i.
providing recommendations to the
Board about advice to be given to the Museum Manager and the Town regarding the
operation of the Museum;
ii.
providing
advice to the Members regarding the business affairs of the Foundation;
iii.
the
preparation of a Strategic Plan for approval by the Board and the Members;
iv.
the
preparation of a Business Plans for approval by the Board; and
v.
for
selecting and recommending appropriate candidates to the Members for
appointment to the Board.
c.
Development Committee – shall be responsible for developing the overall
fundraising strategy of the Foundation, including but not limited to,
recommending specific campaigns to raise funds and solicit donations to support
the purposes of the Foundation.
d.
Volunteer
Committee – shall be responsible for the development of a volunteer program
which support the objects of the Foundation.
15.
The Executive Committee, when recommending candidates for approval by
the Members, shall give due regard to the following guidelines:
a.
general
knowledge and understanding of museum activities;
b.
experience
with charitable organizations;
c.
experience
with boards;
d.
fundraising
experience;
e.
business
experience;
f.
volunteer
and membership management experience;
g.
special
event management;
h.
candidate
is a significant financial contributor to the Foundation; and
i.
candidate
is a recognized community leader.
16.
The
Board shall prepare and present to the Members at the Annual General Meeting of
the Members of the Foundation the following:
a.
A
report on the activities of the Board for the previous year;
b.
An
audited Financial Statement of the Foundation, in accordance with By-law No. 1
and all applicable law; and
c.
A
Strategic Plan for approval by the Members.
17.
The
financial year-end of the Foundation shall be December 31. Audited Financial Statements for the
Corporation shall be prepared on a consolidated basis, and shall be presented
to the Annual General Meeting of the Members, which said meeting shall be held
within six (6) months of the Financial Year-end of the Corporation.
18.
The
Board shall provide the Commissioner with a copy of the material set out in
paragraph 16 a. to c., inclusive, a minimum of thirty (30) days prior to the Annual
General Meeting of the Members of the Foundation.
BUSINESS PLANS
19.
The
Board shall prepare a Strategic Plan which shall set out the long range
strategic direction of the Board which shall include but is not limited to the
long term fundraising plans and business objectives of the Board.
20.
The
Board shall prepare a Business Plan each year, commencing for the business year, which shall set out the
fiscal plan of the Board for the next three business years which shall include
but is not limited to planned or proposed fundraising initiatives and
campaigns, and the proposed annual operating and capital budgets for the
Foundation. The Business Plan shall be
consistent with the goals and objectives of the Strategic Plan approved by the
Members.
21.
The
Board shall provide the Commissioner with a copy of its draft Business Plan on
or before May 1st for the following business year and a copy of its
final Business Plan on or before September 1st of that same
year.
22.
The
business year for the Board shall run from January 1st to December
31st in any given year.
23.
The
Board shall not purchase any goods, expend any funds or enter into any
agreement or contract on behalf of the Foundation which is of a value of $100,
000.00 or greater without the prior approval from the Members. No contract, expenditure of funds or purchase
of goods shall be divided into one or more contracts or purchases so as to
avoid the requirements of this subsection.
Where a series of contracts or purchases which pertain to the same
subject matter with the same supplier, customer or consultant in any twelve
(12) month period combine to equal the limits set out herein, the series of
contracts or purchases shall be deemed to be a single purchase for the purposes
of this Agreement.
BANKING REQUIREMENTS
24.
The
Board shall pass a resolution appointing two Senior Town Staff chosen by the
Town and two Directors to act as signing officers for all cheques, drafts or
orders for the payment of money and all notes and acceptances and bills of
exchange. Such resolution shall require
that all cheques, drafts or orders for the payment of money and all notes and
acceptances and bills of exchange shall be executed either by the two appointed
Senior Town Staff or by one appointed Senior Town Staff and one of the
appointed Directors.
FUNDRAISING
25.
The Board shall have, as one of its primary responsibilities, the
undertaking of fundraising activities which support the objects of the
Foundation and which shall be consistent with the Board’s Strategic Plan and
Business Plan.
ACQUISITION AND DEACCESSION
OF MUSEUM COLLECTION
26.
The
Members and the Board acknowledge and shall be bound by the Town’s “Markham
Museum Collection Management Policy” attached as Schedule “B” as may be amended
by the Town in consultation with the Board from time-to-time.
27.
Subject
to the provisions of this Memorandum of Understanding, the Board shall
undertake the acquisition of artifacts or archival materials, and deaccession
of artifacts or archival materials from the Museum Collection based on
recommendations from the Museum Collection Acquisitions Committee and Museum
Manager, and in accordance with the Town’s “Markham Museum Collection
Management Policy” attached as Schedule “B“, as may be amended from time to
time.
28.
Any
expenditure of funds or purchase of artifacts or archival materials with a fair
market value greater than One Hundred Thousand Dollars ($100,000.00), by the
Board shall have the prior approval of the Members. No contract, expenditure of funds or purchase
of artifacts, archival materials or goods shall be divided into one or more
contracts or purchases so as to avoid the requirements of this subsection. Where a series of contracts or purchases
which pertain to the same subject matter with the same supplier, customer or
consultant in any twelve (12) month period combine to equal the limits set out
herein, the series of contracts or purchases shall be deemed to be a single
purchase for the purposes of this Agreement.
29.
The
Board shall not purchase or accept any donations or bequests of real property
without the prior approval of the Members.
30.
The
Board acknowledge that all deaccession of artifacts and archival materials
owned by the Town or which form part of the Museum Collection must be approved
by the Members and be in accordance with the Town’s “Markham Museum Collection
Management Policy” attached as Schedule “B“, as may be amended from time to
time.
31.
All
artifacts or archival materials which are acquired by the Foundation through
purchase, donation, gifts or otherwise shall form part of the Museum Collection
of the Museum, and shall be transferred to the Town in accordance with all
applicable laws, rules and regulations.
32.
All artifacts
or archival materials which are acquired by the Foundation through gift or
donation to the Foundation which cannot be legally transferred to the Town,
shall be loaned to the Town for the exclusive use of the Town and such artifacts
or archival materials shall form part of the Muesum Collection to be used by
and displayed in the Museum in accordance with the “Markham Museum Collection
Management Policy”, as the Commissioner and/or the Museum Manager, in
consultation with the Board, may deem appropriate.
33.
The Foundation shall not loan out or display any of the artifacts or
archival materials that it owns without the approval of the Museum Manager or
the Commissioner, and except in accordance with the Town’s “Markham Museum
Collection Management Policy” attached as Schedule “B”.
34.
The
Board shall adopt a Code of Ethics which shall be in keeping with the
principles set out in the International Council of Museums Code of Ethics and
as required by the Town’s “Markham Museum Collection Management Policy”
attached as Schedule “B”.
35.
Notwithstanding
the provisions of the Code of Ethics adopted by the Board, the Members, Board
Directors and officer or employees of the Board shall avoid any activity which
could be construed as an actual or potential conflict of interest with respect
to the business of the Foundation or the Museum, which shall include but is not
limited to the following:
a.
there will be no self-dealing or
any conduct of private business or personal services between any Member, Board
Director or officer or employee of the Board and the Foundation except as
procedurally controlled to assure openness, competitive opportunity and equal
access to inside information;
b.
no
Member, Board Director or officer or employee of the Board shall enter into
direct competition with the Museum by bidding or entering into the market for
items which the Museum wishes to acquire; and
c.
no
Member, Board Director or officer or employees of the Board shall use their
positions to obtain employment in the organization for themselves, family
members or close associates.
36.
The agendas for meetings of the Board or of the Members shall include
provision for disclosure of a direct or indirect pecuniary interest in a matter
and the general nature thereof.
37.
In addition to the foregoing provisions, the Board Directors and
officers acknowledge that they are deemed to members for the purposes of the Municipal Conflict of Interest Act and
therefore shall comply with the provisions of the Municipal Conflict of Interest Act.
38.
Neither the Members, Board Directors or officers or employees of the
Board shall disclose issues which are of a confidential nature involving the
Foundation or the Museum, which shall include but are not be limited to, all
proposed or pending acquisitions and deaccessions of art, personnel issues,
litigation or potential litigation, financial issues, legal issues and property
issues.
39.
Neither
the Members, Board Directors or officers or employees of the Board shall make
public statements on issues which impact on or relate to the Museum or the Town
without prior authorization from the Commissioner.
40. The Members, Board Directors and officers or employees of the
Board acknowledge that the Town is bound
by the Municipal Freedom of Information
and Protection of Privacy Act, R.S.O. 1990 c. M.56, as amended (“MFIPPA”). The Members, the Board Directors and officers
or employees of the Board agree to respect the spirit of MFIPPA and any other
Federal or Provincial privacy legislation that may be in effect during the term
of this Memorandum of Understanding. The
Members, the Board Directors and
officers or employees of the Board shall not directly or indirectly disclose or
destroy any personal or confidential information (defined as such in any
applicable legislation) provided to it by the Town pursuant to this Memorandum
of Understanding, without first obtaining the consent of the Commissioner.
41. The Members and the Board Directors shall comply with all
applicable by-laws, policies, guidelines and processes of the Town, including
but not limited to the Town’s “
42. The Members and Board Directors shall comply with all other
applicable laws, ordinances, rules and regulations of all applicable federal,
provincial and municipal governments.
ADVISORY ROLE OF BOARD
43. The Board shall act in an advisory capacity and provide advice
or make recommendations on matters regarding the administration and operation
of the Museum, which includes maintenance of the Museum, and the maintenance
and display of the Museum Collection, for the Town and/or Museum Manager’s
consideration. All advice or recommendations
provided by the Board shall be in the form of a resolution of the Board.
44. The
Town, as the owner of the Museum, and as the employer of the Museum personnel,
shall cause the Museum to operate in a manner which is compatible with the
Goals of the Museum as heretofore set out and in accordance with the Town’s “Markham
Museum Collection Management Policy”, attached as Schedule “B” and as may be
amended from time to time.
45. The Town shall be responsible for the operation and
maintenance of the Museum and the Museum Collection, which includes artifacts
and archival owned by the Town and
artifacts and archival materials owned by the Foundation and loaned to the Town
pursuant to this Memorandum of Understanding, by undertaking or providing the
following:
a.
Display some or all of the Museum Collection as part of a permanent
collection, from time-to-time and as deemed appropriate by the Museum Manager;
b.
Undertake
conservation and restoration of the Museum Collection;
c.
Provide
for the safety, security and preservation of the collection, which includes
obtaining insurance coverage for the Museum Collection;
d.
Stage
regular exhibitions;
e.
Undertake
program development for the Museum;
f.
Make
recommendations for the acquisition of artifacts or archival materials for the
Museum Collection to the Board;
g.
Monitor
the Museum Collection and review and revise the Town’s “Markham Museum
Collection Management Policy”, attached as Schedule “B”, as required;
h.
Maintain
and revise Museum policies, as required, to ensure they are consistent with the
Museum’s purpose and goals;
i.
Provide
educational opportunities for the public;
j.
Review
and make recommendations on potential donations accepted by the Board;
k.
In
consultation with the Board, to set fees, admission, rates, rentals and any
other charges for the use of the Museum or any other facilities provided;
l.
In
conjunction with the Board, to undertake fundraising and special programs or
other projects for the Museum;
m.
Undertake
membership activities, including recruitment, and establishing rates and
services provided;
n.
Operate
a gift shop, amusements, food service and special events as deemed appropriate
by the Town;
o.
Employ
appropriate staff to operate the Museum;
p.
In
conjunction with the Board, recruit and train volunteers to assist with Museum
operations, tours, special events and programs;
and
q.
In
consultation with the Board, to set the strategic direction for the Museum.
46. The Town shall provide the following support functions to
enable the Board to carry out responsibilities pursuant to this Memorandum of
Understanding:
a.
employ
appropriate Museum Staff;
b.
the Museum
Staff shall provide clerical support services for all Board meetings;
c.
the
Town’s Finance Department shall be responsible for maintaining a set of
accounts, operating the Foundation’s bank account, issuing tax receipts on
behalf of the Foundation as required and filing the necessary returns required
under the Income Tax Act on behalf of
the Foundation, invest such other funds as may be gathered as a result of the
Board’s activities, and report to the Board or the Executive Committee of the
Board, as deemed appropriate;
d.
the
Town’s Clerk’s Department shall be responsible for maintaining the corporate
minute book for the Foundation;
e.
the
Town’s Legal Department may provide legal advice on routine legal matters as
and when deemed appropriate by the Town Solicitor.
PART IV: GENERAL
TERM
47. This Memorandum of Understanding shall be for a one (1) year
term, commencing on , 2006 and
terminating on , 2007,
and shall be automatically renewed for successive one (1) year terms thereafter
until either party provides a minimum of at least ninety (90) days notice, in
writing, of termination of this Memorandum of Understanding.
GOVERNING LAW
48. This
Memorandum of Understanding shall be governed by and construed in accordance with the
laws of the
ENTIRE AGREEMENT
49. Where specifically provided herein, the Schedules to this
Memorandum of Understanding form and are part of this agreement. This Memorandum of Understanding constitutes
the entire agreement between the parties hereto pertaining to the subject
matter hereof and supercede all prior and contemporaneous agreements,
undertakings, negotiations and discussions, whether oral or written, of the
parties and there are no warranties, representations or other agreement between
the parties in connection with the subject matter of this Memorandum of
Understanding except as specifically set forth herein.
50. This Memorandum of Understanding and the Schedules, save and
except for the Markham Museum Collection Management Policy attached as Schedule
“B, may not be amended or modified by the parties except in written instrument
executed by both parties.
51. The parties acknowledge and agree that the Town may, as it
deems appropriate and in consultation with the Board, amend the terms and
provisions of the Markham Museum Collection Management Policy attached as
Schedule “B”, and any amendments made hereinafter shall form part of this
Memorandum of Understanding.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
corporate seals under the hands of their officers duly authorized in that
regard.
SIGNED, SEALED AND DELIVERED )THE FRIENDS OF THE
in the presence of: )
)
)
)
)
______________________________
)
Name: ) Title:
)
)
)
)
_______________________________
)
Name:
)
Title:
)
)
We have authority to bind the
)
Corporation
)
)
)
)THE CORPORATION OF THE
) TOWN OF
)
)
)_________________________________
)
Name: Frank Scarpitti
)
Title: Mayor
)
)
)
)
________________________________
)
Name: Sheila Birrell
)
Title: Clerk
Q:\Legal\Lisa\Agreements\Museum
MOU\Museum MOU 3 clean.doc