MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding (MOU), entered into as of the date of the last signature affixed hereto (Effective Date), is made between National Recreation and Park Association, Incorporated a New York not-for-profit corporation and Section 501(c)(3) organization located at 22377 Belmont Ridge Road, Ashburn, Virginia, 20148 (“NRPA” or “Grantor”) and the City of Rialto (grantee), a provider of park, recreation, or community services located at 214 North Palm Street in Rialto, CA (“Rialto”) .
Grantee will be responsible for the financial oversight, design, construction, reporting and project management of this project throughout the length of the MOU. Grantee is the owner of the site and project, collaborator on grant deliverables, such as reporting, events, and other activities, responsible for ongoing maintenance of the project and ensuring all grant deliverables are met and the project is completed in accordance with the terms of this MOU.
Purpose
The purpose of this MOU is to confirm approval of the terms governing the acceptance and use of Twenty Thousand Dollars ($20,000.00) (“Grant Funds”) made available to Grantee for the implementation of the project selected for grant funding, Refresh at Bud Bender Park (“Project”).
Made possible, in part, through the support of Niagara Bottling, LLC, NRPA is managing the administration of the grant program (“Program”). Grants made through this Program are intended to support refreshes at parks that have previously received support from NRPA in partnership with Niagara Bottling, LLC.
Having been selected as a recipient of Grant Funds through this Program, Grantee is required to accept the terms contained within this MOU in order to receive the Grant Funds and participate in this Project.
Project Funding
Within thirty (30) days upon execution of this MOU and delivery to NRPA, NRPA will send Grantee a check or wire transfer in the amount of Twenty Thousand Dollars ($20,000.00) Grant Funds will be distributed by NRPA
No matching funds are required
It is expressly understood that the NRPA has no obligation to provide additional support or funds to the Grantee for this Project or any other project or purposes.
Grant Requirements
Grantee will use the Grant Funds to:
Install hardscape pavers at the park’s signage area, three new dog friendly drinking fountains, 150 tons of new infield clay and laser level, and repaint the field scoreboard at Bud Bender Park, in alignment with Grantees’ proposal.
Complete Project by March 31, 2024
Grantee will install temporary signage recognizing Niagara Bottling’s donation and environmental education, to be mutually agreed upon and approved in advance Grantee will promote receipt of Grant Funds and success of Project through social media Grantee will submit a final report (template provided by NRPA) explaining the success of the Project and how the Grant Funds were utilized upon completion of the Project Grantee may be asked to host a volunteer event for 10-15 local Niagara Bottling employees Grantee acknowledges and agree they are liable for satisfying these requirements, and may allocate the performance of such obligations at their discretion. All parties shall put forth reasonable, good faith efforts to promptly and transparently communicate with one another concerning such performance requirements under this MOU.
Promotion
NRPA and Niagara Bottling, LLC may use Grantee’s name., park names, photos, and/or information in connection with the Project for promotional or other purposes associated with the Project, in any and all media, without limitation and without further payment, notification, or permission, except where prohibited by law. If the Grantee’s photo release form does not cover promotional and other uses, NRPA can provide one upon request.
Grantee shall provide NRPA an opportunity to review and approve any statement, message or use of Niagara Bottling, LLC logo related to this grant or Project in advance of its release to the public. Any promotion, public announcement, annual report or promotion relating to the Grant Funds or Project shall be subject to the prior review of Niagara Bottling, LLC and the National Recreation and Park Association.
All Parties shall retain all title, ownership, rights, and intellectual property rights in their own respective marks, logos, content, materials, tools and intellectual property. Under no circumstance will any Party to this MOU use another Party’s Licensed Marks in a false, misleading, or disparaging manner. Upon completion of the Project, Parties shall, at their own expense, return all copies Licensed Marks to their respective owners beyond what is necessary for record-keeping purposes.
Limits of Liability
To the fullest extent permitted by applicable law, Grantee hereby releases Niagara Bottling, LLC and NRPA, and each of their directors, officers, managers, members, employees, agents, attorneys, advisors, consultants, volunteers and other like parties (collectively the “Support Parties”), from any liability whatsoever relating to or arising out of the Project or the use of the Grant Funds. Grantee further waives any right to sue or bring any action of any kind against the Support Parties relating to or arising out of the Project or the use of the Grant Funds. This limitation of liability shall apply whether the Support Parties’ liability arises due to breach of contract, breach of warranty, or as a result of tortious conduct, including, but not limited to, negligence (of any kind), strict liability, statutory liability, or any other causes of action.
NRPA’s liability, if any, arising out of or in any way related to the relationship and/or dealings between NRPA and Grantee, shall be limited to the payment amounts paid pursuant to this MOU. NRPA shall not be liable for any damages caused by or arising out of the acts or omissions of a third party.
Indemnification
To the fullest extent permitted by applicable law, Grantee shall indemnify, defend and hold harmless the Support Parties from any and all causes of action, suits, settlements, judgments, liens, indebtedness, damages, losses, costs, expenses, fees (including attorney’s fees and costs), penalties, claims, claims for relief, liabilities and demands of every kind, nature, and character (collectively, “Claims”) relating to or arising out of: (i) Grantees’ involvement in the development, planning, demolition, construction, installation, implementation, maintenance, repair and/or management of the Project; (ii) any failure by Grantees to comply with any applicable laws, rules and/or regulations (including, without limitation, building, safety and fire codes, etc.); (iii) Grantee’s negligence, misconduct, or malfeasance of Grantee or their agents or representatives; or (iv) any breach by Grantee of any agreement involving the Project or the use of the Grant Funds. In no event shall the Support Parties be liable for any punitive, exemplary, special, incidental, indirect or consequential damages of any kind (including, but not limited to loss of profits, loss of reputation and/or loss of current or prospective business advantage, even where such losses are characterized as direct damages) arising out of or in any way related to the relationship and/or dealings between the parties, regardless of whether the claim under which damages are sought is based upon contract, tort, negligence (of any kind), strict liability or otherwise, and regardless of whether the parties have been advised of the possibility of such damages at the time of contracting or otherwise. In such cases where Subgrantee’s obligation to indemnify may be limited due to the requirements of federal, state, or local laws, Subgrantee shall be responsible for the ordinary negligent acts and omissions of Subgrantee’s agents and employees causing harm to persons not a Party to this MOU.
Confidentiality
During the term of this MOU, the Parties may learn certain Confidential Information of each other. For purposes of this MOU, “Confidential Information” means the confidential and proprietary information, not generally known by non-party personnel, used by the disclosing party and which is proprietary to the disclosing party, and includes, without limitation, the disclosing party's trade secret or proprietary personnel, financial, marketing and business information, including strategic, operations and other business plans or forecasts, and Confidential Information provided by the disclosing party regarding its employees, customers, vendors, sponsors and other contractors. The receiving party shall: (i) protect and safeguard the confidentiality of the disclosing party’s Confidential Information with at least the same degree of care as the receiving party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the disclosing party’s confidential information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this MOU; and (iii) not disclose any such Confidential Information to any person, except to the receiving party’s officers, employees, consultants, accountants, and legal advisors who are bound by written confidentiality obligations and have a need to know the Confidential Information to assist the receiving party, or act on its behalf, to exercise its rights or perform its obligations under this MOU.
Term
This MOU shall be effective as of the Effective Date hereof and shall continue until March 31, 2024 (the “Term”) in accordance with Section 11.
Use of Grant Funds
The Grantee shall use the full amount of the Grant Funds exclusively for the purposes set forth in Section 1. Unless otherwise agreed in writing by the Grantor, the Grantee shall return any portion of the Grant Funds and the income earned thereon that is not expended for such purposes in accordance with Section 11.
All unspent or uncommitted Grant Funds shall be invested in highly liquid investments (such as an interest-bearing bank account) with the primary objective being preserving the Grant Funds availability for the Project. Any interest or other income generated by the Grant Funds must be applied to the purposes described in the Grant Project.
The Grantees agree not to use any portion of the grant or any income derived from the grant for the following:
To carry on propaganda or otherwise attempt to influence legislation within the meaning of Section 4945(d)(1) of the Internal Revenue Code of 1986, as amended (the Code); To influence the outcome of any specific public election or to carry on, directly or indirectly, any voter registration drive within the meaning of Section 4945(d)(2) of the Code; To provide a grant to an individual for travel, study, or similar purpose within the meaning of Section 4945(g) of the Code, without prior written approval of Grantor.
Payments of salaries, other compensation, or expense reimbursement to employees of the Grantees within the scope of their employment do not constitute “grants” for these purposes and are not subject to these restrictions; Except as expressly may be authorized in the approved Project, to provide a grant to any other organization without prior written approval of the Grantor; or To promote or engage in the following, but not limited to, acts that would create civil liability, criminal acts, criminal acts of violence, terrorism, hate crimes, the destruction of any state, or discrimination on the basis of race, national origin, religion, military and veteran status, disability, sex, age, or sexual orientation, or support of any entity that engages in these activities.
To travel to NRPA’s Annual Conference or any other conference travel without written approval from Grantor.
Audit
Grantee is expected to keep and maintain detailed books and records relating to the Grant, and the Grant Funds (including, without limitation, all uses thereof and expenditures therefrom) (collectively, the “Records”) during the Term and for a period of seven (7) years thereafter (the “Audit Period”). NRPA and its assigns have the right to audit the Grantees’ financial records relating to this MOU upon not less than ten (10) business days’ advance written notice to Grantees by NRPA at any time during the Audit Period, at NRPA’s sole expense, during Grantee’s normal business hours. If as a result of an audit, NRPA determines that Grant Funds were not spent in accordance with the purposes of this Grant, the Grantees shall: (1) be required to return any Grant Funds not substantiated, and (2) reimburse NRPA for all costs and expenses incurred in connection with such audit. If NRPA determines that Grant Funds were used for fraudulent purposes, the Grantees shall be barred from participation in any further programs. Grantees shall further indemnify, defend, and hold the Support Parties harmless from any acts or omissions relating to its fraudulent use of the Grant Funds.
Termination and Repayment
Any Party may terminate this MOU at any time for any reason upon providing the other party thirty (30) calendar days’ written notice. Further, either party may terminate this MOU at any time effective upon receipt of written notice by the other party of failure to perform. In the event that this MOU is terminated for any reason, Grantee shall promptly repay to NRPA any portion of the Grant Funds not already spent (subject to and in accordance with all of the terms and conditions hereof) as of the effective date of such termination.
None of the Parties shall be liable to the other by reason of termination of this MOU for compensation, reimbursement or damages for any loss of prospective profits on anticipated sales or for expenditures, investments, leases or other commitments relating to the business or goodwill of any of the parties, notwithstanding any law to the contrary. No termination of this MOU shall release the obligation to pay any sums due to the terminating party which accrued prior to such termination.
12. Compliance with Laws.
Grantee will comply in full with all applicable federal, state, and local laws and regulations and rules of governmental agencies and bodies relating to Grantee's acceptance and use of the Grant Funds, including those that govern gifts, donations, contributions, expenditures, and anything else of value that benefit, directly or indirectly, public officials. Grantee agrees to notify Grantor immediately: (a) of any conduct on Grantee’s part that may be in violation of any applicable federal, state and local laws and (b) if Grantee receives notice of, or otherwise becomes aware of, any actual or threatened investigation, action, litigation, or disciplinary or other proceeding of which Grantee is or may be a subject in connection with the Grant Funds and to the extent permitted by applicable law, shall provide Grantor with all written notices and communications received by Grantee relating to or any such investigation, action, litigation, or disciplinary proceeding.
13. No Agency; Relationship of the Parties
Each party and their respective officers, employees, agents, contractors and/or consultants are independent contractors and are not, nor shall they hold themselves out to as or claim to be, employees or agents of the other party or any department, agency or unit thereof; accordingly, neither party shall have any authority to enter into any agreement on behalf of the other party or otherwise cause the other party to incur any obligations whatsoever other than as set forth herein.
14. Notices
All notices, requests, demands and other communications required or permitted under this MOU must be in writing and will be deemed to have been duly given, made and received only (a) when personally delivered, or (b) on the date specified for delivery when deposited with an overnight courier service such as Federal Express for delivery to the intended addressee, or (c) when sent via facsimile, only so long as followed by a hard copy sent in a manner set forth in (a) or (b) above, or (d) when delivered via email, only so long as followed by a hard copy sent in a manner set forth in (a) or (b) above, each of the foregoing addressed as set forth below:
If to Grantee, to:
City of Rialto
Parks, Recreation and Community Services Department
214 North Palm Street
Rialto, CA 92376
Attn: Cynthia Alvarado-Crawford, Director
Email: [email protected]
If to NRPA, to:
National Recreation and Park Association
22377 Belmont Ridge Road
Ashburn, VA 20148
Attn: Ayanna Williams, Director of Community and Environmental Resiliency Email: [email protected]
15. Entire Agreement.
This MOU supersedes any and all agreements, either oral or written, between the parties hereto with respect to the subject matter covered herein and contains all of the covenants and agreements between the parties with respect to the Grant purpose and Project in any manner whatsoever. Each party to this MOU acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein, and that no other agreement, statement, or promise not contained in this MOU shall be valid or binding. Any modification of this MOU will be effective only if it is in writing signed by the parties hereto. Any changes, additions or deletions to this MOU, including the Project, must be approved in writing by all the parties. This MOU and all amendments may be signed in counterparts, each of which will constitute one and the same document. Any signature delivered via facsimile or other electronic means shall be deemed an original signature to this MOU. The section headings contained in this MOU are for reference purposes only and shall not affect in any way the meaning or interpretation of this MOU.
16. Severability.
If any term, covenant, or condition of this MOU or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this MOU, or the application of such term, covenant, or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each and every remaining term, covenant, or condition of this MOU shall be valid and enforced to the fullest extent permitted by law.
These parties have caused this MOU to be signed by their duly authorized representatives as of the last date set forth below.
National Recreation and Park Association Grantee By: _________________________ By:_______________________ Printed Name: ___________________ Printed Name:_________________ Title: _________________________ Title:_____________________ Date: _________________________ Date:_____________________