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MEMORANDUM OF UNDERSTANDING
This MEMORANDUM OF UNDERSTANDING (“MOU”) is made and effective on _____________ (“Effective Date”) by and between the CITY OF MENIFEE , a California municipal corporation, (“City”) and Veterans of Foreign Wars Post 1956, a non-profit 501(c)(19) organization dba Menifee Post No. 1956 Veterans of Foreign Wars of the United States, Inc., a non-profit 501(c)(19) organizat ion / 1956 – Menifee Post Veterans of Foreign Wars, Inc., a non-profit 501(c)(19) organization (“Partner Organization”). City and Partner Organization may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.” The Parties intend for this MOU to establish a framework between the Parties to support veterans, promote civic engageme nt, and leverage resources of both parties to provide quality programs to the public.
Section 1. Term and Termination
A. Term. The term of this MOU shall begi n on the Effective Date and shall end on June 30, 2030 unless the term of this MOU is otherwise terminated or extended as provided in this MOU.
B. Termination. Either Party may terminate this MOU upon ninety (90) days’ written notice to the other Party. Upon terminat ion each Party shall deliver to the other Party all documents and materials, if any, prepared for that other Party up to the date of termination.
Section 2. Rights and Obligations of the Parties
A. Special Provisions. The Parties may ag ree to additional, supplementary, or modified terms and conditions to those contained in the body of this MOU which shall be set forth in Exhibit A attached hereto and incorporat ed herein by this reference. In the event of a conflict between Exhibit A and the body of this MOU, Exhibit A shall control.
B. Rights and Obligations. The rights and oblig ations of the Parties are set forth in Exhibit B attached hereto and incorporated herein by this reference. Each Party shall dedicate the time to performance of its obliga tions as may be reasonably necessary to perform such obligations to the standards obs erved by a competent practitioner in the geographic area where that Party is located, and to the reasonable satisfaction of the other Party.
C. Cooperation and Noninterference. The Parties shall use best efforts to cooperate to accomplish the purposes of this MOU. Ne ither Party shall unreasonably interfere with the other Party’s rights or obligations under this MOU. To the extent the rights and obligations hereunder involve performance of a specific or specialized activity or program, neither Party shall conduct competitive activities or programs at a time, in a location, or in a manner which may reasonably be expected to discourage participation in or otherwise detract from the activity or program conducted pursuant to the rights and obligations of the other Party.
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D. Personnel. If the rights and obligations hereunder i nvolve the provision of personnel from one Party to another Pa rty, the providing Party shall reasonably cooperate with requests from the other Party to reassign or replace such personnel as the same may be requested in that Party’s discretion.
E. Materials and Equipment. Except as otherwise stated in this MOU or in any exhibit hereto, each Party shall provi de all materials, facilities, and equipment for that Party’s performance hereunder, at that Party’s sole cost and expense.
F. Access to Facilities. Where the right s and obligations he reunder include one Party’s use of or entry into any facility, real property, or other building granted by the other Party such right of use or entry shall be subject to and conditioned on the terms of this MOU only. Unless otherwise stated, the rights of use or access granted pursuant to this MOU shall apply to the officers, employees, subcontractors, agents, and volunteers of the applicable Party provi ded that such persons shall be subject to the terms and conditions of this MOU. If Partner Organization enters City property or meets in person with City employees during the performance of this MOU, Partner Organization shall comply w ith all applicable regulatory and City security and safety procedur es, protocols, and practices. If City enters Partner Organization property or meets in pers on with Partner Organization employees during the performance of this MOU, City shall comply with all applicable security and safety procedures, protocols, and practices, if any, included in Exhibit B.
G. Compliance with Law. Each Party shall, at its sole expense, comply with all local, state, and federal laws and regulations applicable to the performance of this MOU, including obtaining and maintaining any re quired approval or permit necessary therefor. Section 4 shall specifically apply to Claims (defined therein) arising from a Party’s noncompliance with any applicab le law, including specifically Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law. Each Party is inde pendently responsible for reviewing and complying with all applicable laws, incl uding but not limited to the payment or nonpayment of prevailing wages required under California law.
H. Documents and Records. Any plans, speci fications, studies, drawings, estimates, test data, survey results, models, rende rings, materials and other documents or works of authorship fixed in any tangi ble medium of expression (collectively “documents”), in electronic or any other form prepared by one Party for the other Party pursuant to this MOU shall be the property of the other Party upon termination or expiration of this MOU. These documents shall be subject to the reasonable acceptance of the receiving Party. Any documents prepared hereunder shall not be released to third parties unless mutually agreed by both Parties or required by law. Each Party shall mainta in all documents prepared hereunder for the period required by law, or for three (3) years from the Effective Date, whichever is longer. Any documents hereunder shall be made available for inspection, audit, or copying during regular business hours upon request of the other Party. This MOU creates a non-exclusive and perpetual license for the receiving Party to copy, use, modify, reuse, or sublicense a ny and all copyrights , designs, rights of
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reproduction, and other intellectual property embodied in the documents provided hereunder. The providing Party shall require all subcontractors preparing documents under this MOU to agree to th is provision in writing. The providing Party represents and warrants that it has the legal right to grant the license required by this Paragraph. These documents are not necessarily suitable for any future or other use, and such future or other use shall be without liability to the providing Party.
I. Contract Administrators. All matters under this MOU shall be handled for Partner Organization by the current Post Comma nder (“Partner Orga nization Contract Administrator”), and for City by Mariana Mitchell, Community Services Director (“City Contract Administrator”.) Except as specified otherwise in this MOU, all correspondence shall be directed through the contract administrators established in this Paragraph, and neither Party shall take direction or orders for the performance of this MOU from any person other than such contract administrators.
Section 3. Independent Contractor Status
This MOU is by and between two independent entit ies and is not intended to and shall not be construed to create the relationship of agent, employee, partnership, joint venture, or association.
Neither Party shall have the authority to make any statements, representations, or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of such other Party. Neither Party sha ll be an employee of the other Party. Except as expressly provided herein, the m eans by which the Parties perform the rights and obligations set forth herein is within the exclusive direction a nd control of the performi ng Party. Neither Party shall ever represent that it or any of its officers , employees, or agents is in any manner officers, officials, employees, or agents of the other Part y or have the power to incur any debt, obligation, or liability whatever against th e other Party, or bind the other Pa rty in any manne r. Except as otherwise expressly provided by this MOU, neith er Party shall pay salaries, wages, or any compensation to the other Party for performing the rights and obligations hereunder.
Section 4. Indemnification
Each Party shall indemnify, protect, defend (with counsel acceptable to the Indemnified Party), and hold harmless the other Party, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if the indemnifying Party fails to provide a defense for the indemnified Party, the legal costs of counsel retained by the indemnified Party) and any judgm ent (collectively, “Claim s”), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this MOU by the indemnifying Party or by any individual or entity for which the Indemnifying Party is legally liable, including bu t not limited to officers, agents, employees or subcontractors of the Indemnifying Party. The provi sions of this Section do not apply to Claims occurring as a result of the indemnified Party’s gross negligence or willful acts or omissions. The
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costs of counsel referred to herein shall not exceed the hourly rate paid by the City for legal services multiplied by the reasonable number of hours spent.
Section 5. Partner Organization Insurance
Prior to performing any right or obligation under this MOU, Partner Organization, at its sole cost and expense, shall maintain in full force and ef fect at all times during the term of this MOU insurance as required by this Section.
A. Comprehensive Liability Insurance. Comprehensive liability insurance, including protective, completed operat ions and broad form cont ractual liability, property damage, and personal injury coverage, and comprehensive automobile liability including owned, hired, and non-owned automobile coverage. The limits of such coverage shall be at a minimum: (1) bodily injury including death, $1,000,000 for each person and each occurrence and $2,000,000 in the aggregate; and (2) property damage, $1,000,000 for each occurrence and $2,000,000 in the aggregate. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including de ath resulting therefrom, and damage to property resulting from the performance of this MOU, including the use of hired, owned, and non-owned automobiles. Comprehensive general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
B. Workers’ Compensation and Employer’s Liability. The minimum limit of Workers’ Compensation Insurance shall comply with the limits required by California law. The limit of Employer’s Liability coverage shall be $1,000,000 per accident, $1,000,000 per disease per employee, and $1,000,000 disease per policy.
C. Quality of Insurance. All insurance required by this Section is to be placed with insurers with a Bests’ rating of no less than A:VII and admitted in California.
D. Additional Insured. City, including its officers, employees, agents, and authorized volunteers, shall be named as an a dditional insured on the aforementioned insurance policies of Partner Organization with respect to liability arising out of the Partner Organization’s performance of this MOU.
E. Proof of Insurance. Partner Organization shall furnish the City with certificates of insurance, additional insured endorsements, or policy language granting the additional insured status required hereunder and completed certified copies of all policies and endorsements. The certificate of insurance must specifically reference this MOU, and must contain the signature of the person authorized to bind coverage on behalf of the Partner Organization. The coverage shall contain no special limitations on the scope of protection affo rded to the additional insured or its officers, employees, agents, or authorized volunteers. The insurance provided to City as an additional insured must a pply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by City.
Additional insured status shall continue for one (1) year after the expiration or
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termination of this MOU or completion of full performance hereunder, whichever is later. A certified endorsement must be attached to all policies stating that coverage is primary insuran ce with respect to City a nd its officers, officials, employees, and volunteers, and that no insu rance or self-insurance maintained by City shall be called upon to contribute to a loss under the coverage.
F. Notice of Changes. Partner Organization shall provide written notice to City within ten (10) working days if (1 ) any of the required insurance policies are terminated; (2) the limits of any of the required polic ies are reduced, or (3 ) the deductible or self-insured retention on any of the required insurance policies is increased.
G. Self Insured Retentions and Deductible. Partner Organization shall obtain the written approval of City for self-insured retentions and deductibles for the insurance required herein. Changes to the same re quire the written cons ent of City, which may be conditioned on the procurement of a bond guaranteeing the payment of losses and related investigat ions, claim administration, a nd defense expenses that is satisfactory in all respects to each Party.
H. Subcontractors. If any subcontractor is performing the rights and obligations of Partner Organization hereunder, Partne r Organization shall include such subcontractor as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor, subject to all of the requirements in this Section 5.
Section 6. City Insurance
City shall comply with the insurance obligations, if any, included in Exhibit B hereto.
Section 7. Variations to Insurance
Each Party may but is not required to approve in writing a variation to the insurance requirements in Sections 5 and 6 as-applied to the other Party upon a determin ation that the coverage, scope, limits, and forms of insurance set forth above are either not commercially available or that the approving Party’s interests are otherwise fully protected.
Section 8. Notices
All notices and other communications to be given by either Party must be in writing and may be effective by personal delivery, overnight courier, or first cl ass or certified mail, return receipt requested and addressed to the appropriate Party as follows:
To Cit
y: To Partner Or ganization:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Veterans of Foreign Wars Post 1956 dba
Menifee Post No. 1956 Veterans of Foreign
Wars of the United States, Inc
PO Box 321
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Attn: Mariana Mitchell, Community Services
Director
With a Copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
Menifee, CA 92586
Attn: Post Commander
Notice shall be deemed received on the date personally delivered or, if mailed, three (3) days after deposit in the mail. Notice provided by overnight delivery shall be deemed received on the next business day after delivery by the overnight delive ry service. A Party may change its addressee by written notice to the other party at any time.
Section 9. Remedies and Breach
A. Cure Period. In the event of a default of the terms of this MOU by either Party, the non-defaulting Party shall give thirty (30) days written notice and opportunity to cure (the “Cure Period”) to the defaulting Party, and, if the default remains uncured at the end of the Cure Pe riod, may terminate this MOU and shall have any and all rights and remedies available at law or in equity to recover for the uncured default.
The Parties may agree in writing to a longer or shorter Cure Pe riod. If a default cannot reasonably be cured in the Cure Period or presents a substantial risk to the health and safety of eith er Party or the public, th e non defaulting Party may immediately terminate this MOU and seek any and all rights and remedies available at law or in equity.
B. Rights and Remedies Cumulative. The ri ghts and remedies of the Parties are cumulative and the exercise by either Part y of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
Section 10. Subcontract and Assignment
Neither Party may assign or subcontract any portion of this MOU without the prior written consent of the other Party. Any attempted assignment in violation of this Section shall be void.
Section 11. Survival
All obligations arising prior to the expiration or termination of this MOU and all provisions of this MOU allocating liability between the Parties shall survive the expiration or termination of this MOU.
Section 12. Time
Time is of the essence in this Agreement and for the performance of this MOU.
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Section 13. Applicable Law and Venue
This MOU shall be interpreted and enforced under the laws of the State of California. In the event that either Party brings any action against the other under this MOU, the Parties agree that trial of such action shall be vested exclusively in Riverside County.
Section 14. Attorneys’ Fees
If any legal action is commenced between the Partie s to this MOU, each Party shall bear its own costs of suit, including attorneys’ fees.
Section 15. Severability
If any term, provision, covenant, or condition of this MOU shall be determined to be invalid, void, or unenforceable by a court of competent jurisd iction, the remainder of this MOU shall not be affected to the extent the remaining provisions are not rendered impractical to perform taking into consideration the purposes of this MOU.
Section 16. Waiver
The waiver by either party of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, c ovenant, condition, or any subsequent breach of the same or any other term, covenant, or condition herein contained.
Section 17. Successors and Assigns
This MOU shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successor, and assigns.
Section 18. Captions
The captions, subtitles, and headings contained in this MOU are for convenience only and shall not in any way affect the meaning or interpretation hereof or serve as evidence of the interpretation hereof, or of the intention of the Parties hereto.
Section 19. Entire Agreement, Amendment, and Construction This MOU including the exhibits is the entire agreement of the Parties and supersedes all prior negotiations and agreements whether written or oral.
Section 20. Construction
The terms of this MOU shall be construed in ac cordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this MOU or any other rule of construction which might otherwise apply.
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Section 21. Incorporation of Exhibits
Each exhibit attached hereto is hereby incorporated herein by reference. Except for Section 2 A, references to this MOU shall include the exhibits.
Section 22. Amendments
This MOU may be amended only by written agreem ent and no purported oral amendment to this MOU shall be valid. The City Manager or his or her designee may execute and approve amendments to this MOU on behalf of the City which in the City Manager’s reasonable discretion do not substantially modify the terms and conditi ons of this MOU, provided, however, that the City Manager may instead require City Council for approval for any proposed amendment.
Section 23. No Third-Party Beneficiaries
There are no intended third-party beneficiaries under this MOU and no such third parties shall have any rights or obligations hereunder.
Section 24. Nondiscrimination
Each Party covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this MOU th ere shall be no discrimination against or segregation of, a ny person or group of persons on account of any impermissible classification including, but not li mited to, race, color, creed, re ligion, sex, marital status, sexual orientation, national origin, or ancestry
Section 25. Nonliability of Employees
No officer, official, employee, agent, representative, or volunteer of either Party shall be personally liable to the other Party, or any successor in intere st, in the event of any default or breach by the first Party or for any amount which may become due to the other Part y or to its successor, or for breach of any obligation of the terms of this MOU.
Section 26. No Undue Influence
Each Party declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of the other Pa rty in connection with the award, terms or implementation of this MOU, including any method of coerci on, confidential financial arrangement, or financial inducement. No offi cer or employee of either Party shall receive compensation, directly or indirectly, from the other Party, or from any officer, employee, or agent of said other Party, in connection with this MOU.
Section 27. No Benefit to Arise to Employees
No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or has re sponsibilities with respect to this MOU during his/her tenure or for one (1) year thereafter, shall have any interest, direct or i ndirect, in any agreement or sub-
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agreement, or the proceeds thereof, for the ri ghts and obligations performed hereunder. This Section shall apply to Partner Organization if Partner Organization is a public entity.
Section 28. Authority to Execute
The persons executing this MOU on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this MOU on behalf of said Party, (iii) by so executing this MOU, such Party is formally bound to the provisions of this MOU, and (iv) that ente ring into this MOU does not violate any provision of any other agreement to which said Party is bound
Section 29. Counterparts
This MOU and all amendments and supplements to it may be executed in counterparts, and all counterparts together shall be construed as one document.
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IN WITNESS WHEREOF, the Parties have execu
ted this MOU as the Effective Date below.
CITY OF MENIFEE
City Manager
Attest:
City Clerk
Approved as to Form:
City Attorney
PARTNER ORGANIZATION
Michael Cano, Current Post Commander
Daniel Gregorio, Current Post Adjutant
Effective Date _______________________
EXHIBIT A
EXHIBIT A
SPECIAL PROVISIONS
The following is added to Section 5.C:
No Workers’ Compensation and Employer’s Liabil ity coverage shall be required if Partner Organization does not employ any person pursuant to the provisions of the California Labor Code.
In the event Partner Organization does not carry insurance required by this Paragraph, Partner Organization hereby represents and certifies to City that it has no such employees, and agrees that Section 4 shall expressly apply to said representation. .
EXHIBIT B
EXHIBIT B
RIGHTS AND OBLIGATIONS OF THE PARTIES
Partner Organization Obligations
• Event Support for yearly city-sponsored events including the Veterans Day Ceremony, Memorial Day Celebration, and Welcome Home Vietnam Veterans Events. o Designate Partner Organization liaison to attend and participate in City event planning meetings
o Assist with recruitment of event speakers, presenters, vendors, and additional event volunteers
o Seek additional sponsorship to enhance event components as agreed on in planning meeting
o Day of event support – Host public information event booth and provide volunteers to assist city staff in event set-up and break-down as-needed • Event Sponsorship - Procure services through Vietnam Veterans of America for helicopter display at the Welcome Home Vietnam Veterans Event, subject to display availability.
• Program and Event Promotion – Assist with promotion of city’s annual Veterans events, workshops, and resource programs at Partner Organization events and distribute event and program information to Partner Organization members. • Independence Celebration Parade Participation - Provide float, moving display, and/or participants for the parade to represent the Partner Organization at the annual event.
City Obligations:
• Designate City liaison for meetings and communication with Partner Organization o Schedule a quarterly collaboration meeting between Partner Organization Board and City staff
o Attend at least one Partner Organization Post 1956 member meeting per quarter to provide updates on City events, share information, and address matters pertinent to the Partner Organization and its members
o Provide information to Partner Organization for potential funding opportunities and support programs
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o Schedule and attend yearly meeting with Partner Organization to review the partnership.
• Authorize Use of Public Facilities
o Subject to the execution of City’s standard facility use agreement, authorize Partner Organization use of Palm Room at Kay Ceniceros Senior Center twice per fiscal year. Facility rental fees and staff costs will be waived for up to 10-hours total per fiscal year, with additional hours charged at normal facility rates. o For all use of any city facility, Partner Organization, at its sole cost, shall comply with all other requirements of reservations for use which may include additional approvals for special events, application for recurring use, insurance, or permits. • Program and Event Promotion and Support
o Assist with promotion of Partner Organization events and programs through official city communication channels including the website, social media, electronic message board, and at Kay Ceniceros Senior Center, including but not limited to Patriot’s Pen and Voice of Democracy Essay Contests. o Provide opportunity for award presentation ceremony for Patriot’s Pen and Voice of Democracy essay contests during City Veterans Day Ceremony o Specific to the annual Veterans Day Ceremony, the City will list Partner Organization as an event partner on event collateral
o Promote Partner Organization as sponsor on program collateral for Welcome Home Vietnam Veterans Events based on helicopter display component
Both Parties Obligations
• Collaboration on Grants
o Partner to identify grant programs or sponsorships which support the Partner Organization and/or related City-sponsored programs
o Provide letters of support for related grant applications upon request