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Attachment 12 - Memorandum of Agreement between Veterans Memorial and Support Foundation of Los Gatos, and Town of Los GatosMEMORANDUM OF AGREEMENT AGR I "' . ~ l 'jt fHH ------ VETERANS MEMORIAL AND SUPPORT FOUNDATION OF LOS GATOS VETERANS MEMORIAL AT THE TOWN OF LOS GATOS CMC CENTER This Memorandum of Agreement ("Agreement'') is entered into by and between the Town of Los Gatos, a Municipal Corporation formed under the laws of the State of California, hereinafter referred to as the "Town"; and the Veterans Memorial and Support Foundation of Los Gatos, a 501(c)(3) non-profit organization hereinafter referred to as "Foundation." Collectively, the Town and the Foundation arc referred to herein as the "Parties." WHEREAS, the Veterans Memorial and Support Foundation of Los Gatos (Foundation) was incorporated as a non-profit California corporation in 2012 for the purpose of honoring and supporting both cwrcntly serving service members and all branches of the military-Anny, Navy, Air Force, Marines, Coast Guard, Merchant Marines, 111 Responders, and 911 Families; and WHEREAS, the Foundation is a 50l(c)(3) non-profit organization committed to building, installing, and maintaining in the Town of Los Gatos a tribute to U.S . military service members and veterans, including but not limited to the design, development, operation, and maintenance of the Veterans Memorial; and WHEREAS, the Town Council of the Town of Los Gatos strongly supports the Foundation and desires to assist the Foundation by granting it access to and use of Town property for the installation of the Veterans Memorial but has made it clear that the Town has no financia1 resources at this time to commit to the design, development, operation, or maintenance of the Veterans Memorial; and WHEREAS the Town at the June 21, 2016 Town Council meeting approved the a preliminary proposal to provide the Memorial improvements such as a statuary, plaques, walls, etc. on the property known as the Redwood Grove at the Los Gatos Civic Center; and WHEREAS, the Foundation will raise funds for the design, permitting, building, installing and maintaining of the Veterans Memorial for the Veterans Memorial to be constructed on the Redwood Grove at the Los Gatos Civic Center; and WHEREAS, the Foundation expects that jt can raise funds and secure other commitments for the development, operation, and maintenance of the Veterans Memorial; and WHEREAS, the Town Council will review the final A&S Application submitted by the F oundation and will have final approval of a Veterans Memorial; and MOA Page I of 7 ATTACHMENT 12 WHER EAS, the Parties desire a Memorandwn of Agreement to document their mutual commitment to proceed in good faith for the Veterans Memorial, subject to one or more fu~ public hearings and the discretion of the Town Council in its ultimate approval or disapproval of the Veterans Memorial. NOW THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the Parties agree as follows: 1. Recitals. The foregoing Recitals are incorporated into this MOA 2 . Scqpe of Develo.pment. The Foundation shall file an Architecture and Site Application and all fees to construct the Veterans Memorial that conforms to the conceptual plan approved by the Town Council on June 21, 2016. (the "Conceptual Plan"). The Conceptual Plan shaU conform with the direction preliminarily approved by the Town Council. After approval of the Architecture and Site Application, grading and building permit applications will be submitted conforming to the requirements of the applicable Building code and all related codes and regulations. The Foundation acknowledges that the project is a public works project as defined under state law. 3. Town RCSJ>Onsibilities . Town shall provide an adequate outdoor section of the Redwood Grove area at the Los Gatos Civic Center Park. The final location, layout, height, and square footage of Memorial Site may vary depending on how the Memorial adds to or deters to lhe uses of Civic Center Park, and will be subject to approval by the Town Council. The Town will provide all necessary plan review and inspection services required for successful completion of the project in accordance with the approved plans. The Town shall be responsible for ongoing utility bills, including electricity and water utility expenses. The Town will monitor the progress of the installation and related activities at no charge. 4 . Design Professional. The Foundation shall have the park Veterans Memorial designed by a professional and ensure that professional provides adequate insurance coverage for liability that may result from design of the Veterans Memorial. · 5. Maintenance 8lJ4 Operation. All items necessary for maintenance and operation shall be funded by the Foundation at no cost to Town except as noted herein. 6. .Improvements for and Closure of the Veterans Memorial. A. The Veterans Memorial shall be designed to meet all required Conditions of Approval approved by Town. Items include, but are not limited to, plans and documentation referenced in the Conditions of Approval, required permits and any required monitors during construction. All documents shall be prepared by licensed professionals. All items necessary for design, permitting and construction shall be funded by the Foundation at no cost to Town except as expressly noted herein. MOA P age 2of7 B . Construction Oversight -The Foundation shall engage a properly licensed contractor to oversee any volunteers who may assist with construction of the Veterans Memorial . C . Grading -Any grading for the Veterans Memorial shall be performed by a properly licensed contractor hired by the Foundation. Such work shall be completed according to the stamped site grading and drainage plans, prepared by a licensed Civil Engineer or Architect as approved and permitted by Town (the "Approved Grading and Drainage Plans"). D . Landscaping and Irrigation -Installation of all landscaping and irrigation for the Veterans Memorial shall be performed on behalf of the Foundation, under the supervision of a properly licensed landscape contractor. Such work shall be completed per the Approved Landscaping Plans, prepared by a licensed Architect as approved and permitted by Town. E. Electrical -Installation of all electrical for the Veterans Memorial shall be performed on behalf of the Foundation, under the supervision of a properly licensed electrical contractor. Such work shall be completed per the Approved Utility Plans, prepared by a licensed Architect as approved and permitted by Town. F . Other Improvements -Other improvements for the Veterans Memorial will include installation of hardscape and shall be completed per the approved Grading and Drainage Plans and Architectural Site Plan prepared by a licensed Civil Engineer or Architect and approved and permitted by Town. Installation of all hardscape shall be perfonned on behalf of the Foundation, under the supeivision of a properly licensed contractor. G . Indemnification and Insurance -The Foundation shall ensure alJ contractors it hires or uses for the Veterans Memorial (i) indemnify the Town, the Foundation and each of their officers, employees and agents from any and aJI liability that may arise from that contractor's (or any of the contractor's officer's', employee's', agent's' or subcontractor's') acts or omissions regarding that contract and (ii) canies general liabiJity insurance in a minimum single-limit amount of $1,000,000, naming the Town of Los Gatos and its officer, employees and agents as additional insureds . H . Volunteers -The parties understand individual volunteers may not be protected by the above referenced indemnities ·and insurance coverage for potential liability that could result for those volunteers • actions or inactions related to any construction activities of the Veterans Memorial. M OA Page 3 of 7 The Foundation shall inform each of those volunteers of that risk and obtain their signature(s) on a waiver of liability. I. Removal of Improvements -If in its sole discretion, Town determines , at a duly noticed public meeting, it is in the best public interest to discontinue the use of Town property for a Veterans Memorial due to public safety concerns, then the Foundation shall be responsible for removal of all improvements and landscaping, as directed by Town, or pay Town no more than twenty Thousand Dollars ($20,000.00) to fund that removal. Such payment shall be made if the Foundation fails to satisfactorily remove, as reasonably determined by Town, the improvements and landscaping within sixty (60) days after notice is sent from Town to the Foundation indicating the Veterans Memorial is to be discontinued and the improvements and landscaping are to be removed. J . Routine Maintenance-The Foundation shall be responsible for all routine maintenance, including but not limited to the maintenance of all controllers, pumps, water filter and treatment systems, lighting, landscape, and bardscape . Standards of maintenance shall ensure continued ongoing function of the facility and its components. If systems fail, a contractor must be called out within 48 hours and systems must be repaired within 7 days, unless approved by the Town Manager. · All paints and coatings, including graffiti coating which shall be applied to all surfaces, shall be maintained and replaced per the manufacturer recommendation. Graffiti shall be removed from surfaces within 24 hours, weekends and Town Holidays excluded. Where removal is not practicable, the graffiti shall be made not visible to the public until such time as a pennanent remedy can be made. The painting over of graffiti shall not be accepted. K. Resecve Fund. -Within two years of project completion, the Foundation shall deposit no less than Ten Thousand Dollars ($10,000.00) in a fund with the Town of Los Gatos. Interest from this fund shall go to the Foundation. That fund shall be a maintenance reserve fund and shall remain in perpetuity. At the request of the Foundation, up to Two Thousand Five Hundred Dollars ($2,500.00) can be withdrawn for maintenance or upgrade of the Memorial . All funds withdrawn shall be replaced by the F oundation within 12 months. If in its sole discretion, Town determines, at a duly noticed public meeting, it is in the best public interest to repair the Veterans Memorial due to lack of maintenance by the Foundation, then the Town shall be entitled to use all principal and interest in the Reserve Fund for repair. 8. Town Administrator Authoritv. Unless otherwise specifically stated, whenever this MOA requires an approval of Town. such approval, at his/her sole MOA Page 4 of7 discretion, may be given by Town's Manager or his/her designee, if so designated in writing; provided, that the Town Manager, in his/her sole discretion, may decide to bring any matter to the Town Council; and provided, further, that the Town Council reserves the right to determine whether to terminate this MOA as described in Paragraph 9. The Town Manager also has the authority to allow minor deviations from the requirements of this MOA, if, in his/her sole discretion, he/she detennincs it is in the public interest to do so and such deviations are memorialized in writing. 9 . Termination by Town. Town shall have the right to terminate this MOA in the event the Foundation fails to comply with all the terms of this MOA, including all exhibits, unless such failure is caused by Town. If the Foundation breaches its obligations under this Agreement, the Town shall give the Foundation written notice of such breach, and the opportunity to cure such breach for a period of fifteen (15) business days after delivery of the notice of breach. l 0. Termination by the Foundation. The Foundation shall have the right to terminate this MOU in the event Town fails to comply with all the terms of this MOA, including all exhibits. The Foundation's right of termination shall be subject to a fifteen - day (15 -business day) formal notice set forth in paragraph 9 . 11 . Notic es. A. Any formal notice, request. approval or other communication to be provided by either party shall be in writing and dispatched by first class mai~ registered or certified mail, postage prepaid, return-receipt requested, or by electronic facsimile transmission followed by delivery of a "hard" copy, or by personal delivery (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), to the addresses of Town and the Foundation set forth below. Such written notices, requests, approvals or other communication may be sent in the same manner to such other addresses as either party may from time to time designate. B . Any notice that is transmitted by electronic facsimile transmission foJlowed by delivery of a "hard" copy, shall be deemed delivered upon its transmission; any notice personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S . Postal Service), shall be deemed received on the documented date of receipt and any notice that is sent by registered or certified maiJ, postage prepaid, return-receipt requested shall be deemed received on the date of receipt thereof. C. If to Town: MOA P a ge S o f 7 Town of Los Gatos Attention: Town Manager ·110 E . Main Street Los Gatos, CA 95050 D. Ifto the Foundation: Veterans Memorial & Support Foundation of Los Gatos 110 E. Main Street Los Gatos, CA 95030 12. Litigation Costs . If any legal action or any mediation, or arbitration, or other proceeding is brought for the enforcement or interpretation of this MOA, or bc:causc of an alleged dispute, breach, default, or misrepresentation in connection with any provision of this MOA, then the successful or prevailing party or parties will be entitled to recover reasonable attorneys' fees and other costs (including experts' fees and costs) incwred in that action or proceeding. in addition to any other relief to which they may be entitled. 13. Successors. The terms and conditions, covenants, and agreements set forth herein shall iqJJ>ly to, and bind the heirs, executors, administrators, assigns and successors of the parties hereto. This MOA cannot be assigned without the written agreement of each party. 14. Governing Law. This MOA shall be governed, construed, interpreted and enforced in accordance with and under the laws of the State of California. 15. Entire Agreement. This MOA represents the entire agreement of the parties and supersedes all negotiations or previous agreements between the parties with respect to development of the Veterans Memorial. Th.is MOA may not be amended unless agreed as such in writing and certified by the signatures of the parties hereunder. 16. Effective Date. It is understood and agreed this MOA shall not be effective until it has been signed by all parties and shall be effective as of the date it is signed on behalf of Town. IN WITNESS WHEREOF, the parties hereto have caused this MOA to be executed at Los Gatos, California, on the dates written below. TOWN OF LOS GATOS MOA Page 6of 7 VFLG Laurel Pr,tti, Town Manager , Kent Hillhouse, President D ate: ~ ~fti Date: t Or:.;r: 2b I f. Town Attorney ATTEST: Shelley Neis, Clerkdministrator MOA Page7 of7 This Page Intentionally Left Blank