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HomeMy WebLinkAboutA9435 - Palm Springs Public Library Foundation MOU55575.18200\40893611.7 Agreement A9435 1 MEMORANDUM OF UNDERSTANDING BETWEEN THE PALM SPRINGS PUBLIC LIBRARY FOUNDATION AND THE CITY OF PALM SPRINGS This Memorandum of Understanding (“MOU”), by and between the City of Palm Springs (the “City”), and the Palm Springs Public Library Foundation (the “Foundation”), and together known as the “Parties,” establishes a framework for a sustainable partnership between the Parties in order for mutual support to continue and prosper. This MOU shall be effective on the date (“Effective Date”) that it is signed by both Parties, following any legally required approval by the governing bodies of the Parties. RECITALS WHEREAS, the City is a charter city and California municipal corporation; WHEREAS, the Palm Springs Library Board of Trustees (“Board”) reviews and amends library policy, reviews progress reports, discusses immediate and long-range library planning, prepares an annual budget, prepares an annual report for the City Council and State Library, and administers the Library Trust Fund; WHEREAS, the Foundation was established as a nonprofit public benefit corporation in the State of California on June 3, 2014; WHEREAS, the Foundation was created to engage in the solicitation, receipt, and administration of funds and property, and from time to time, to disburse such funds, property and the income thereof to, or for the benefit of, the Palm Springs Public Library system; WHEREAS, the Foundation intends to solicit donations for the Palm Springs Public Library system from individuals, organizations and corporations and recommend to the City that the Palm Springs Public Library system amenities be named for specific donors depending on the amount donated; WHEREAS, the Parties desire to enter this MOU to clearly delineate the responsibilities of the Parties to each other in accomplishing the purposes stated herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing, both Parties agree as follows: DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 55575.18200\40893611.7 Agreement A9435 2 I. OBLIGATIONS OF THE CITY a. Governance/Administration i. Authorize the Foundation to use the name, likeness and logo of the City and the Palm Springs Public Library when deemed appropriate by the Director of Library Services, or his or her designee. ii. Prior to any use of the Foundation’s logo the City shall receive approval of the President of the Foundation. iii. Recognize the Foundation as a legally separate, independent entity with its own governing body. b. Coordination i. Provide support for mutually agreed upon Foundation programs, budgets, projects, fundraising activities, and/or reports. ii. Provide staff consulting and technical assistance for mutually agreed upon improvement programs and projects whenever possible. iii. Assist the Foundation’s coordination with other agencies, as needed. iv. Hold a regular meeting, at a minimum annually, between the City and the Foundation to discuss matters mutually agreed upon between the City and the Foundation. v. The Director of Library Services shall be the primary contact on behalf of the City. c. Maintenance Standards i. Except as may be set forth in one or more Facility Use Agreements, the City shall be solely responsible for maintaining all Palm Springs Public Library system facilities in good condition, substantial repair, in a safe, clean and sanitary condition, and in compliance with all rules, regulations, ordinances, or laws. d. Finances i. Any funds provided to the City under this MOU shall be used to support the construction, operation, maintenance, and improvement of the Palm Springs Public Library system. ii. Upon receiving any funds pursuant to II.c.iii., determine whether any such funds are funds contributed to the Foundation from the Library Trust Funds and return any such funds to the appropriate Library Trust Fund account(s). e. Services Offered to the Foundation i. Provide space at Palm Springs Public Library system facilities, as well as program and maintenance support for activities and other Palm Springs Public Library system improvement projects, to include meeting, program, DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 55575.18200\40893611.7 Agreement A9435 3 fundraising, and event space at mutually agreed upon times at the Palm Springs Public Library system facilities. To the extent that a Palm Springs Public Library system facility is used, either by the Foundation itself (i.e., for meetings or events), or by third parties (i.e., for fundraising events), any such use shall be subject to a Facility Use Agreement, in a form approved by the City Attorney and City Manager. ii. Promote the Foundation’s presence and programs, as permitted. iii. Publicly recognize the work, contributions, services, and/or donations received directly or indirectly from the Foundation. iv. The City will coordinate with the Foundation to erect and/or install signage and other Library Elements (as defined in Section III.a, below) at Palm Springs Public Library system facilities. The approval, permitting and display of such signage shall be subject to the City’s laws and regulations. The Foundation will pay for the signage and the City shall provide personnel to assist in erecting and/or installing the signage at the Palm Springs Public Library system facilities. Notwithstanding the foregoing, for electronic signage, the City shall pay for, maintain, and update such electronic signage for Palm Springs Public Library events and for donor recognition. viii. Contributions. The Board may, in its sole and absolute discretion, disburse funds to the Foundation to assist the Foundation in its fundraising efforts for the benefit of the Palm Springs Public Library system. The Board shall consider contribution requests made in accordance with Section II.d below. II. OBLIGATIONS OF THE FOUNDATION a. Governance/Administration i. Register with the Internal Revenue Service (IRS) and California Franchise Tax Board (FTB) as a non-profit organization, and maintain such status. ii. Meet federal, state and local charitable solicitation requirements, if the Foundation solicits funds. iii. Obtain and maintain any necessary permits, licenses, special insurance, equipment, and inspections for Foundation programs, activities, or events and pay associated costs or fees, if any. iv. Authorize the City to use the logo of the Foundation to promote the Foundation and its activities when deemed appropriate by the President of the Foundation. v. Prior to any use of the name, likeness and logo of the City and the Palm Springs Public Library the Foundation shall receive approval of the Director of Library Services, or his or her designee. b. Coordination i. Work with the Director of Library Services or his or her designee and the Board to coordinate on Foundation plans, programs, needs, and projects. DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 55575.18200\40893611.7 Agreement A9435 4 ii. Coordinate fundraising activities on Palm Springs Public Library system facilities with Palm Springs Public Library staff. iii. The Foundation shall provide semi-annual reports to the Director of Library Services showing all donations, disbursements and other expenditures, and funds held. Moreover, the report shall list the number of fundraising events held, and the amount of money raised from each event. These reports shall be provided to the Director of Library Services on February 1 and August 1 of each year. The Foundation shall provide any financial records requested by the City within thirty (30) days following such request. c. Finances i. Comply with all IRS and FTB non-profit requirements to remain in good standing. ii. Donate specific, individual donations for the purchase and/or design and construction of Palm Spring Public Library system facility features, as set forth in Section IV, below. iii. Upon dissolution, return any and all funds donated to the Foundation for the benefit of the Palm Springs Public Library system to the City, in accordance with Article IX of the Articles of Incorporation of the Palm Springs Public Library Foundation. d. Contribution Requests i. The Foundation may submit contribution requests to the Board for the following expenses: fundraising events and efforts, fundraising data collection tools (including software or databases), personnel salaries for the Foundation’s Executive Director or other fundraising/administrative staff, program support for new or ongoing programs and services at the Palm Springs Public Library, costs for capital or awareness campaigns, and other expenses to directly support activities that either support or raise funds for the Palm Springs Public Library. ii. The Foundation shall not submit any contribution requests to the Board for the following expenses: memberships, and travel or meal expenses (including expenses for alcohol). iii. Each contribution request submitted to the Board shall include the following items/information in order to be considered by the Board: 1. The amount of the contribution sought; 2. A description of the activity, services, or goods that the contribution will be used for; 3. A specific budget demonstrating how the contribution will be allocated; and 4. A description of the forecasted or anticipated outcome of the activity, services, or goods for which the contribution will be used. DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 55575.18200\40893611.7 Agreement A9435 5 III. NAMING RIGHTS FOR THE LIBRARY AND ITS ELEMENTS a. Right to Issue Naming Rights. The Parties acknowledge and agree that the Foundation will be better able to support the renovation and continued operation and long-term maintenance of the Palm Springs Public Library system if it is able to raise funds through the issuance of naming rights for the Palm Springs Public Library and its component parts (“Naming Rights Opportunities”). Examples of potential Naming Rights Opportunities include, but are not limited to, the Library itself, the lobby, rooms, other facilities, and improvements, (the “Library Elements”). To the extent permitted by law, and subject to the City’s prior approval, as set forth in Section III.c, the Foundation shall have the right to issue Naming Rights Opportunities to the Palm Springs Public Library and the Library Elements. b. Term of Naming Right. The name will be affiliated with the Library Element for the applicable Naming Rights Term depending on the amount donated, as follows: Amount Donated Naming Rights Term Less than $5,000 1 years $5,001 to $10,000 5 years $10,001 to $50,000 10 years $50,001 to $100,000 15 years $100,001 or More 20 years c. Termination of Naming Right. Notwithstanding the specified Naming Rights Term, if the Library Element must be replaced or substantially repaired, it may be renamed for a new donor. The Naming Rights Opportunity may additionally be terminated under the following circumstances: i. The Foundation and the City shall each individually retain the right to rescind the naming rights if, in their sole discretion, it is determined that (i) a previously-approved name has become inappropriate due to subsequent criminal acts or acts of moral turpitude of the donor or the person or entity honored by the issuance of the naming rights, (ii) a donor has failed to meet its financial obligations relating to a pledged donation, or (iii) any other factor relating to the donor, the honoree, or the donation has arisen that would discredit the Foundation, the Palm Springs Public Library, or the City and/or is contrary to the City’s interests. d. The City’s Prior Approval. The City shall retain all control over location, size, type, and amount of all Naming Rights Opportunities, and any in-kind donation. Prior to issuing any Naming Rights Opportunity, the Foundation shall obtain the City’s written approval of the Naming Rights Opportunity, including as applicable, the proposed location, size, type of opportunity, any required signage/installation, expected donation amount, value of in-kind DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 55575.18200\40893611.7 Agreement A9435 6 donation, and the donor’s name. The City shall have thirty (30) calendar days to review and approve or deny any proposed Naming Rights Opportunity. i. The Director of Library Services has the authority to approve or disapprove a proposed Naming Rights Opportunity up to $25,000. ii. The City’s City Manager has the authority to approve or disapprove a proposed Naming Rights Opportunity in excess of $25,000 up to $100,000. iii. Naming Rights Opportunities in excess of $100,000 shall require specific approval by the City’s City Council. iv. The Foundation shall not be required to obtain City approval for dedication plaques, engraved tiles or bricks or donor walls in locations approved by the City in its sole and absolute discretion. Such features shall be consistent with the design and functionality of the Palm Springs Public Library. e. Proceeds from Naming Rights. Other than reasonable Foundation operating expenses, the Foundation will use all donations it receives for the benefit of the Palm Springs Public Library system, including the restoration, operation (including programs and services), maintenance, and improvement of the Palm Springs Public Library System. The Foundation shall provide City the proceeds from the Naming Rights within thirty (30) days of receipt from donor. If the Foundation determines operating expenses are necessary to be retained from the donation, the Foundation shall provide the Director of Library Services documentation of the expense and justification for retaining the operating expense. If the Director of Library Services does not agree to the retaining of the operating expense, a hearing shall be held before the Board to determine if the operating expense is justified. If the Board determines the operating expense is not justified, the Foundation shall return the withheld proceeds of the donation to the City within thirty (30) days from the Board hearing. f. Costs. Any direct costs incurred in connection with the issuance of Naming Rights Opportunities shall be assumed and paid entirely by the Foundation or by donors. As further described below, this includes, without limitation, the cost of signage, plaques, name plates, changes in lighting, and the like, and the cost of any marketing materials or events required to identify and engage prospective donors. The Foundation shall be responsible for repairing any damage to any signage, plaques, or name plates. The City shall not be obligated to replace any Library Element or signage, plaque, or name plate that is damaged or destroyed. Any donor with naming rights to the damaged Library Element shall be honored in an alternative method at the sole discretion of the Director of Library Services. g. No Property Interest. Notwithstanding any provision of this MOU, the Parties do not intend to convey any ownership or other interest in the Palm Springs Public Library and nothing in this MOU or any donation agreement shall be construed or interpreted as a grant of easement or any other interest in any property, including any portion of any Palm Springs Public Library system facility. If this MOU or any provisions of this MOU are construed or interpreted by a court of competent jurisdiction as conveying an interest in real property among the Parties, DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 55575.18200\40893611.7 Agreement A9435 7 this MOU shall immediately become of no further force or effect, without notice to or action by any Party. IV. DONATIONS TO FUND LIBRARY ELEMENTS a. It is understood that the Foundation shall have the right to solicit donations that are designated by an individual donor (the “Specific Donation”). The Specific Donation can be designated by the individual donor toward the Foundation’s endowment or for use towards the purchase and/or design and construction of the Palm Springs Public Library, or the construction and installation of any Library Element. The individual donors and any conditions attached to the Specific Donation shall be consistent with the goals, values and objectives of the City and the Foundation and the design and functionality of the Palm Springs Public Library system facility for which the Specific Donation was made. V. INSURANCE The Foundation shall obtain and maintain insurance coverage in amounts and of the types (i.e. general liability and directors and officers) as required by the City’s Risk Manager, based on the Foundation’s structure and activities. V I . AMENDMENT, RENEWAL AND TERMINATION a. The term of this MOU shall commence on the Effective Date and, unless sooner terminated by written agreement of the Parties, shall end on the expiration of ten (10) years following the Effective Date (“the Expiration Date”). Either Party may renew this MOU for an additional period of ten (10) years to commence upon the Expiration Date. To exercise this option to renew, a Party must deliver to the other Party a written notice of its exercise of the option to renew at least sixty (60) days prior to the Expiration Date. b. Any modifications, assignments, alterations, or extensions must be in writing, signed, and approved by both Parties. c. This MOU may be terminated by either Party upon 30 days written notice. d. Distribution of Proceeds Upon Expiration of the Term or Termination. At the Board’s sole and absolute discretion, any loan made to the Foundation by the Board may become automatically due and payable upon termination or upon expiration of the Term. VII. INDEMNITY a. Each Party agrees to indemnify, defend, and hold harmless the other Party, its officers, agents and employees from any and all liabilities, claims, or losses of any nature, including reasonable attorneys’ fees and costs of suit, to the extent caused by, arising out of, or in connection with, the indemnifying Party’s negligent or DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 55575.18200\40893611.7 Agreement A9435 8 wrongful acts or omissions arising from its respective activities pursuant to this MOU. VIII. DISPUTE RESOLUTION a. The Parties agree to work together in good faith to resolve disagreements that may arise under this MOU. Should such a disagreement arise, the Parties having authority to resolve the dispute will meet and negotiate in good faith toward a mutually satisfactory solution. If any disagreement cannot be resolved through such negotiations, the Parties will consider other alternative dispute resolution processes upon which they may later agree. However, if at any time a Party determines that circumstances so warrant, such Party may seek any available remedy without waiting to complete the informal meet and confer process. IX. GENERAL PROVISIONS a. Assignment. Neither Party may assign or transfer all or any portion of its rights or obligations under this MOU to any third party, without obtaining the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any purported assignment, without the other Party’s prior written consent, shall be void. b. Binding Effect. This MOU shall be binding on all heirs, successors and assigns of the Foundation and the City. c. Entire Agreement. This MOU contains the entire agreement and understanding of the Parties on this subject. The City and the Foundation understand, acknowledge and agree that no Party, or any agent or attorney for any Party, has made any promise, representation or warranty of any kind whatsoever, express or implied, not contained herein to induce the execution of this MOU. The City and the Foundation understand, acknowledge and agree that this MOU has not been executed in reliance upon any promise, representation, or warranty not contained herein. d. Applicable Law. This MOU and all rights and obligations arising out of it shall be construed in accordance with the laws of the State of California. Any legal or administrative action arising out of this MOU shall be conducted in Riverside County, California. e. Warranty of Authority. The persons executing this MOU on behalf of the City and the Foundation represent and warrant that they are duly authorized to execute this MOU and to bind their respective Party to all terms and conditions of this MOU. f. Severability. If any section, subsection, sentence, clause or phrase of this MOU, or the application thereof to any of the Parties, is for any reason held invalid or unenforceable, the validity of the remainder of the MOU shall not be affected thereby and may be enforced by the Parties to this MOU. g. Notices. All notices, demands and communications between the City and the Foundation shall be in writing and shall be given by personal delivery, registered mail (return receipt requested, with postage prepaid), Federal Express, electronic mail, or any other reliable private express delivery service to the following addresses: DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 55575.18200\40893611.7 Agreement A9435 9 City of Palm Springs Palm Springs Public Library Foundation 3200 E. Tahquitz Canyon Way 300 S. Sunrise Way Palm Springs, CA 92262 Palm Springs, CA 92262 Attn: City Manager Attn: President The foregoing names, addresses may be changed at any time by written notice, as provided above. h. Interpretation. This MOU has been prepared jointly by the Parties, with full access to legal counsel of their own. No ambiguity shall be resolved against any Party on the premise that it or its attorneys were solely responsible for drafting this MOU or any provision thereof. i. Counterparts. This MOU may be executed electronically, and in one or more counterparts, each of which shall constitute an original. IN WITNESS, WHEREOF, the Parties enter into this Understanding as of the Effective Date. [Signatures on the following page.] DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 55575.18200\40893611.7 Agreement A9435 10 SIGNATURE PAGE TO MEMORANDUM OF UNDERSTANDING BETWEEN THE PALM SPRINGS PUBLIC LIBRARY FOUNDATION AND THE CITY OF PALM SPRINGS PALM SPRINGS PUBLIC LIBRARY FOUNDATION CITY OF PALM SPRINGS By: ___________________________ David Sidley, President Date: ___________________ By: ___________________________ Scott C. Stiles City Manager Date: ___________________ By: ___________________________ Serena Leiterman, Secretary Date: ___________________ ATTEST: By: ___________________________ Brenda F. Pree, MMC, CERA, City Clerk APPROVED AS TO FORM: By: ___________________________ Jeffrey S. Ballinger City Attorney DocuSign Envelope ID: 9212B6B1-5BAE-42CD-9967-312FF9E4DC8C 7/16/2023 7/16/2023 7/17/2023 Agenda Date:05/25/2023 AgendaItem:1D