MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("Memorandum") dated as of the day of , 2022, is between the City of Placentia, a municipal corporation ("City"); and Placentia Community Foundation which is a private 501(3)(c) non-profit organization ("PCF").
The City and PCF are referred to herein individually as a "Party" and collectively as the "Parties".
RECITALS
A. The City is currently undertaking a project to restore and refurbish the Kraemer Memorial Park Fountain (the "Fountain Restoration Project") which has been inoperable now for over 25 years.
B. To raise funds to help offset construction costs for the Fountain Restoration Project as well as provide a fundraising opportunity for PCF, City and PCF desire to implement a Legacy Brick Program that will allow members of the community to purchase and have installed dedication bricks around the refurbished fountain.
C. The purpose of this Memorandum is to provide the basic understanding between the Parties with respect to the general terms and principles regarding the Legacy Brick Program.
NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants and promises herein contained, the Parties hereto agree as follows:
AGREEMENT
I. Purpose and Scope:
A. To partially offset the cost of restoring the Kraemer Memorial Park Fountain, the City is looking to partner with the Placentia Community Foundation, which is a private 501(3)(c) non-profit organization, dedicated to funding grant programs that benefit the Placentia community.
B. During the term of this MOU, the Parties will coordinate a fundraising effort through a Legacy Brick Program to partially offset the cost of restoring the Kraemer Memorial Park Fountain as well as provide new revenues to PCF to reinvest back into the Placentia community.
C. All funds raised through the Legacy Brick Program will be split 60/40 with PCF receiving 60% and the City receiving 40% of the net proceeds collected from the brick sales pursuant to the responsibilities for each party as noted below.
D. Bricks will be sold for $130 each and senior citizens will be able to purchase bricks at a discounted rate of $95 each.
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E. The City will receive Five Dollars ($5.00) from each brick sold to be placed in a maintenance fund to fund future repairs and maintenance of the newly renovated fountain plaza space.
II. Term and Termination:
A. Term: This Memorandum shall be effective as of the date the last of the Parties has executed the same, or the date on which the PCF Board of Directors approves the Memorandum, whichever occurs later ("Effective Date"). This Memorandum shall remain in full force and effect for 10 years ("Term") subsequent to the Effective Date, or until all funds raised under this program are expended, whichever comes first, unless otherwise terminated pursuant to the provisions of paragraph B below.
B. Termination: Each Party has the right to terminate this Memorandum with or without cause by providing six (6) months written notice to the other Party.
Upon the issuance of such notice of termination, this Memorandum shall thereafter terminate as to the Party providing notice on 12:00 a.m. on a date that is six (6) months from the date of the notice, and termination of the Memorandum shall relieve the terminating Party of all further obligations.
CITY'S RESPONSIBILITIES:
C. City is the lead on the design and construction of the Fountain Renovation Project and final installation of Legacy Bricks.
D. City will have primary responsibility for marketing and communications of the Legacy Brick Program in partnership with PCF.
E. City will receive 40% of the net revenues collected from the brick sales to be used to offset project construction costs.
F. City shall manage the money provided by PCF to support ongoing City community and recreation programs in separate funds and shall carry over any unspent funds into future fiscal years to support additional programming needs.
III. PCF'S RESPONSIBILITY:
A. PCF will administer the Legacy Brick Program, coordinate with a brick manufacturer for brick sales and orders, review brick messaging on all bricks sold, and coordinate delivery of bricks to the project site for installation by the City's fountain contractor.
B. As the cost of Legacy Bricks sold in the program to citizens are tax deductible charitable donations, PCF will provide citizens with appropriate purchase receipts.
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C. PCF will collect payments for the bricks sold and remit payment to the City within 60 days of closing brick sales to the public.
D. PCF agrees to reinvest its share of the funds received from Legacy Brick sales back into the Placentia community pursuant to the following provisions:
a. PCF shall reinvest 40% of the net revenue it receives back into recreation and community programs managed and provided by the City's Community Services Department. The specific programs and events PCF wishes to support are outlined in Exhibit A. b. PCF shall reinvest 15% of the net revenue it receives in new grant programs in Placentia -based non -profits and community groups for the benefit of Placentia residents.
c. PCF may use a total of 5% of the net revenue it receives to cover administrative and tax filing costs.
IV. MISCELLANEOUS
A. Neither Party shall have the right to assign this Memorandum without the express written approval of the other Party. This Memorandum shall be binding upon and inure to the benefit of the Parties and their permitted successors, assigns and legal representatives.
B. This Memorandum (including for the purpose of clarity, the recitals, to this Memorandum), and the exhibits (which are specifically incorporated by referenced herein), collectively contain the entire agreement between the Parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein or referred to herein.
C. No alteration or variation of the terms of this Memorandum shall be valid unless made in writing and signed by the Parties.
D. The City warrants, represents, and covenants that performance required of the City individually and collectively under this Memorandum shall fully comply with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations.
E. Notices or other communications, which may be required or provided under the terms of this Memorandum, shall be given as follows:
City: City of Placentia
401 E. Chapman Ave.
Placentia, CA
Attention: City Administrator
PCF: Placentia Community Foundation
401 E. Chapman Ave.
Placentia, Ca 92870
Attention:
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All notices shall be in writing and deemed effective when delivered in person or deposited in the United States mail, first class, postage prepaid and addressed as above.
Notwithstanding the above, the Parties may also provide notices by facsimile transmittal, and any such notice so given shall be deemed to have been given upon receipt during normal business hours or, in the event of receipt after business, on the following business day. Any notices, correspondence, reports and/or statements authorized or required by this Memorandum, addressed in any other fashion shall be deemed not given.
F. In any action or proceeding to enforce or interpret any provision of this Memorandum, or where any provision hereof is validly asserted as a defense, the Parties shall bear their own attorney's fees, costs and expenses.
G. Each Party warrants, represents, and covenants that the execution, delivery and performance of this Memorandum have been duly authorized by all necessary action of such Party's governing board, and the person executing this Memorandum on behalf of such Party has been duly authorized and empowered to do so on behalf of such Party.
H. The laws of the State of California and applicable local and federal laws, regulations and guidelines shall govern this Memorandum. In the event of any legal action to enforce or interpret this Contract, the laws of state of California shall apply.
1. Any Party shall be excused from performing its obligations under this Memorandum during the time and to the extent that it is prevented from performing by an unforeseeable cause beyond its control, including but not limited to any incidence of fire or flood; acts of God; pandemic or epidemic; commandeering of material, products, plants or facilities by the federal, state or local government; national fuel shortage; or a material wrongful act or omission by the other Party; when satisfactory evidence of such cause is presented to the other Party, and provided further that such nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing.
J. Each Party agrees that the insurance held by the other, whether commercial or self-insurance, is sufficient for the purpose of this Memorandum. The City acknowledges and agrees that in its performance under this Memorandum it shall require all of its contractors and subcontractors to carry adequate insurance as specified in any and all applicable local, state and federal laws, and regulations depending on the source of the funds.
K. The City shall remain independent from the PCF and neither the City, their employees, nor anyone working under the City shall be considered an agent or an employee of PCF. Neither the City, their employees nor anyone working under the City shall qualify for workers' compensation or other fringe benefits of any kind through the PCF. Neither the PCF, their employees, and volunteers, nor anyone working under PCF shall qualify for workers' compensation or other fringe benefits of any kind through the City.
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L. This Memorandum may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute the same agreement.
M. Authority and Signatures: The individuals signing this Memorandum, and its exhibits, which are incorporated herein by reference, have the authority to commit the Party they represent to the terms of this Memorandum, and do so commit by signing.
Approved as to Form:
IM
Christian L. Bettenhausen
City Attorney
CITY OF PLACENTIA, CALIFORNIA
Damien R. Ariula
City Administrator
PLACENTIA COMMUNITY FOUNDATION
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Exhibit A
City of Placentia Community Service and Recreation Programs
1. Movies in the Park
2. Concerts in the Park
3. Holiday Tree Lighting
4. Senior Programs and Services
5. Neighborhood Services Food Programs
6. Heritage Day Parade and Festival
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