Staff Report VeteransPREPARED BY: SHELAYNE HAMMACK
Management Analyst
Reviewed by: Assistant Town Manager Town Attorney Finance
N:\SHARE\COUNCIL REPORTS\2016\09-20-16\03 Veterans\Staff Report FINAL.docx
MEETING DATE: 09/20/16
ITEM NO: 3
COUNCIL AGENDA REPORT
DATE: SEPTEMBER 8, 2016
TO: MAYOR AND TOWN COUNCIL
FROM: LAUREL PREVETTI, TOWN MANAGER
SUBJECT: AUTHORIZE THE TOWN MANAGER TO EXECUTE A MEMORANDUM OF
AGREEMENT WITH THE VETERANS MEMORIAL AND SUPPORT
FOUNDATION OF LOS GATOS FOR THE VETERANS MEMORIAL AT THE
TOWN OF LOS GATOS CIVIC CENTER
RECOMMENDATION:
Authorize the Town Manager to execute a Memorandum of Agreement with the Veterans Memorial and
Support Foundation of Los Gatos for the Veterans Memorial at the Town of Los Gatos Civic Center.
BACKGROUND:
At its January 20, 2015 meeting, the Town Council agreed that a Veterans Memorial should be located
at the Town’s Civic Center. Upon review of the Council direction, the Veterans Memorial and Support
Foundation of Los Gatos (VFLG) chose the redwood grove located in the southwest corner of the Civic
Center lawn fronting Main Street and immediately adjacent to Pageant Way, as the proposed location for
a Veterans Memorial. At the January 20, 2015 meeting Council asked that the VFLG to move forward
with developing conceptual design proposals for a Veterans Memorial that included a trellis with a focal
point on the Civic Center plaza or a design proposal for the redwood grove that included statuary. These
concepts returned to the Town Council and the final design, Flame of Liberty, was selected at the June
21, 2016 Council meeting.
The purpose of the Veterans Memorial as envisioned by the VFLG is to honor and recognize the
courage, loyalty, dedication, commitment and sacrifice of those who have served to defend America’s
freedom and to offer a site of contemplation for reflection and remembrance. The VFLG is a nonprofit
501 (c)(3) foundation dedicated to honoring and supporting both U.S. military veterans, the men and
women of the Army, Navy, Air Force, Marines, and Coast Guard, and their families.
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: VETERANS MEMORIAL MEMORANDUM OF AGREEMENT
DATE: September 8, 2016
DISCUSSION:
A Memorandum of Agreement needs to be signed by both VFLG and the Town of Los Gatos to
establish clear guidelines and responsibilities for the development and execution of the project. The
Memorandum of Agreement outlines the roles and responsibilities of the VFLG and the Town for the
design, permits, construction, installation, and maintenance of the Veterans Memorial.
If the draft Memorandum of Agreement is approved, the VFLG will begin submitting appropriate
Architecture and Site, grading, and building permit applications, along with other necessary
requirements to the Town. Construction would occur after the Council’s consideration and approval of
the Architecture and Site application and the Town’s issuance of the building and grading permits. The
Memorial’s estimated completion is in FY 2017-18. Listed below are highlights from the agreement:
Scope of Development: The VFLG must file an Architecture and Site application for Council
approval. VFLG is responsible for paying all Town permit fees.
Town Responsibilities: Town will provide a space at the Los Gatos Civic Center Grounds. The
Town will provide all plan review and inspection services associated with approved building and
grading permits.
Design Professional: The VFLG shall have all aspects of the Veterans Memorial designed by a
professional.
Maintenance and Operation: The VFLG funds all maintenance at no cost to the Town.
Improvements for and Closure: The VFLG is responsible for construction oversight, grading,
landscaping and irrigation, electrical, other improvements, indemnification and insurance,
volunteers, removal of improvements, routine maintenance, and the reserve fund.
Depending upon the Council’s action and direction, Town staff will continue to work with the VFLG
with the goal of installing a Veterans Memorial in FY 2017-18.
CONCLUSION:
Authorize the Town Manager to execute a Memorandum of Agreement with the Veterans Memorial and
Support Foundation of Los Gatos for the Veterans Memorial at the Town of Los Gatos Civic Center.
ALTERNATIVES:
Alternatively, the Council could choose the following:
A. Direct staff to revise the Memorandum of Agreement and execute with the Veterans Memorial
and Support Foundation of Los Gatos.
B. Provide other direction.
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: VETERANS MEMORIAL MEMORANDUM OF AGREEMENT
DATE: September 8, 2016
COORDINATION:
This report was coordinated with the Town Manager’s Office, Town Attorney’s Office, the Parks and
Public Works Department, and the Community Development Department.
FISCAL IMPACT:
There are no fiscal impacts associated with the recommended actions.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Memorandum of Agreement
DRAFT
MOU
Page 1 of 7
MEMORANDUM OF AGREEMENT
VETERANS MEMORIAL AND SUPPORT FOUNDATION OF LOS GATOS
VETERANS MEMORIAL AT THE TOWN OF LOS GATOS CIVIC 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 are 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 currently serving service members and all
branches of the military—Army, Navy, Air Force, Marines,Coast Guard, Merchant
Marines, 1st Responders, and 911 Families; and
WHEREAS, the Foundation is a 501(c)(3) non-profit organization committed to
building, installing and maintaining a tribute to U.S. military service members and
veterans in the Town of Los Gatos, 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 financial 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, etcon 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 it 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 Foundation and will have final approval of a Veterans Memorial; and
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WHEREAS, the Parties desire a Memorandum of Agreement to document their
mutual commitment to proceed in good faith for the Veterans Memorial, subject to one or
more future 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 MOU.
2. Scope of Development. The Foundation shall file a Development Review
Application 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 shall conform with the direction preliminarily approved by the Town
Council and the requirements of the then current 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 Responsibilities. 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 the 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 agrees to waive any and all staff time fees (not including
permits and community development fees) associated with any direct services to be
provided by the Town in connection with the construction of this project. The Town shall
be responsible for ongoing utility bills, including electricity and water utility expenses.
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 and 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.
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MOU
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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 performed on
behalf of the Foundation, under the supervision of a properly licensed
contractor.
G. Indemnification and Insurance – The Foundation shall ensure all
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 all 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) carries general liability
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.
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MOU
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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 hardscape. 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. The painting over of graffiti shall not be accepted.
K. Reserve 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 Foundation 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 Authority. Unless otherwise specifically stated,
whenever this MOU requires an approval of Town, such approval, at his/her sole
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
DRAFT
MOU
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the right to determine whether to terminate this MOU as described in Paragraph 9. The
Town Manager also has the authority to allow minor deviations from the requirements of
this MOU, if, in his/her sole discretion, he/she determines 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 MOU
in the event the Foundation fails to comply with all the terms of this MOU, 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.
10. 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 MOU,
including all exhibits. LVPRPF’s right of termination shall be subject to a fifteen -day
(15-business day) formal notice set forth in paragraph 9 .
11. Notices.
A. Any formal notice, request, approval or other communication to be
provided by either party shall be in writing and dispatched by first class
mail, registered or certified mail, postage prepaid, return-receipt requested,
or by electronic facsimile transmission followed by delivery of a “hard”
copy, or by personal deliver y (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
followed 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 mail, postage prepaid, return-receipt requested shall
be deemed received on the date of receipt thereof.
C. If to Town:
Town of Los Gatos
Attention: Town Manager
110 E. Main Street
Los Gatos, CA 95050
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MOU
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D. If to 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 MOU, or because
of an alleged dispute, breach, default, or misrepresentation in connection with any
provision of this MOU, then the successful or prevailing party or parties will be entitled
to recover reasonable attorneys’ fees and other costs (including experts’ fees and costs)
incurred 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 apply to, and bind the heirs, executors, administrators, assigns and
successors of the parties hereto. This MOU cannot be assigned without the written
agreement of each party.
14. Governing Law. This MOU shall be governed, construed, interpreted and
enforced in accordance with and under the laws of the State of California.
15. Entire Agreement. This MOU 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. This MOU 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 MOU shall not be
effective until it has been signed b y 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 MOU to be executed at
Los Gatos, California, on the dates written below.
TOWN OF LOS GATOS
______________________________
Laurel Prevetti, Town Manager
VFLG
By:__________________________
Kent Hillhouse, President
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MOU
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Date:__________________________
Approved as to form:
______________________________
Robert Schultz
Town Attorney
ATTEST:
_______________________________
Shelley Neis, Clerk Administrator
Date:________________________