FY2023-26 Memorandum of Understanding - Approving Funding Of The Kodiak Economic Development Corporation (KEDC)MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is made and entered into the Sixteenth day
of September, 2022 ("Effective Date"), by and between the Kodiak Island Borough ("Borough")
and Kodiak Economic Development Corporation, an Alaskan nonprofit entity ("Nonprofit")
(collectively referred to as the "Parties").
RECITALS
WHEREAS, the Borough is fortunate to enjoy the efforts of many benevolent nonprofit
organizations that provide services that enrich our lives; and
WHEREAS, Kodiak area nonprofit organizations provide services that many of our
community members rely upon; and
WHEREAS, these organizations provide expanded services that cannot be provided
through the ordinary governmental budget; and
WHEREAS, these organizations expand the services that can be provided, with limited
funds, in the community; and
WHEREAS, the viability of these services is fundamental to the quality of life enjoyed In
the community.
NOW, THEREFORE, the Borough wishes to make a charitable gift in the amount of
$10,000 (ten thousand dollars) to Nonprofit for the use and benefit of the citizens of the Kodiak
Island Borough for fiscal year 2023, and the Parties agree as follows:
AGREEMENT
1. Recitals. The Recitals set forth above are true and correct and are incorporated
Into this MOU as though expressly set forth herein.
2. Term. The term of this MOU shall commence on the Effective Date and terminate
June 30, 2022.
3. Contingency. The transfer of money from Borough to Nonprofit is contingent upon
the Nonprofit providing its 501(c)(3) or 501(c)(4) financial documentation to Borough.
4. Donations in Lieu of Cash. It is understood and agreed to by and between the
Parties that some nonprofit organizations may prefer a gift other than a cash donation. The
Parties agree to cooperate in good faith to allow other donations in lieu of a cash donation. If
such a request is agreed to, a description of the exact type of donation is described below:
NIA
5. Non -Discrimination. Nonprofit agrees that it will ensure equal employment
opportunity without discrimination or harassment on the basis of race, color, religion, sex, sexual
orientation, gender Identity or expression, age, disability, marital status, citizenship, genetic
information, or any other characteristic protected by law.
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6. Independent Contractors. Nonprofit and its representatives, agents, and/or
employees are independent contractors. Nothing in this MOU shall be deemed to constitute a
partnership or joint venture between the Borough and Nonprofit, nor constitute any Party to be
the agent of the other Party for any purpose.
7. Indemni . Nonprofit shall indemnify, defend and hold the Borough and its elected
officials, officers, employees, consultants, agents and contractors harmless from and against any
and all actions, claims, damages, liabilities, liens, obligations, demands and judgments (including
attorney fees) arising from this MOU.
8. Scope of Work. Nonprofit intends to perform the tasks pursuant to this MOU as
described in Attachment A.
It is agreed and acknowledged that the Borough's donation is to be used to improve and
implement the services stated above intended to be provided by Nonprofit within the Kodiak Island
Borough jurisdiction. The funds or in-kind donation are not intended to be used by Nonprofit in
any other way (i.e., not for bonuses to executives or similar administrative overhead expenses).
Accordingly, the Borough is entitled to know exactly how the donation was used or applied, and
Nonprofit shall provide a written report to the Borough Assembly detailing the use of the
funds within the Nonprofit entity. The written report shall be submitted no later than June
30"', 2023, to the Borough's representative designated to receive Notices as specified in Part 10
below.
9. Defaults and Remedies.
a. Default. Failure by either Party to negotiate in good faith as provided in this
MOU shall constitute an event of default hereunder. The non -defaulting Party shall give written
notice of a default to the defaulting Party, specifying the nature of the default and the required
action to cure the default. If a default remains uncured ten (10) days after receipt by the defaulting
Party of such notice, the non -defaulting Party may exercise the remedies set forth below.
b. Exclusive Remedies for Default. In the event of an uncured default by a
Party, the other Party's sole and exclusive remedy shall be to terminate this MOU and neither
Party shall have any further right, remedy or obligation under this MOU ; provided, however, any
obligation under a specific provision of this MOU for Nonprofit to indemnify or defend the Borough
shall survive such termination.
C. No Damages. Neither Party shall have any liability to the other for damages
or otherwise for any default, nor shall either Party have any other claims with respect to
performance or non-performance by the other Party under this MOU. Each Party specifically
waives and releases any such rights or claims they may otherwise have at law or in equity in the
event of a default by the other Party, including the right to recover actual, consequential, special
or punitive damages from the defaulting Party.
10. Third -Party Beneficiaries. This MOU is intended solely for the benefit of the Parties
and shall not be construed to create any rights in any person or entity other than the Parties.
11. Notices. All notices and communications in connection with this MOU shall be in
writing and shall be deemed given when delivered by personal service, or three (3) business days
after placement in the U.S. Mail, certified, return receipt requested, postage prepaid, and
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addressed to the addresses for Borough and Nonprofit set forth below, or such other addresses
as either Party may designate by written notice to the other in accordance with this Section 10.
Borough: Kodiak Island Borough
Manager's Office
710 Mill Bay Road
Kodiak, AK 99615-6398
Tel: (907) 486-9303
Nonprofit: K a o \ A -,C-- w.-Irw\ C E4-t-�,_ 0 T C) 10
Tel:f� 4tf_�_ Llln�r"7
12. Non -Binding. This MOU is non-binding and is entered into as an expression of the
Parties' good faith intent to draft, negotiate, and enter into an agreement regarding the charitable
gift to Nonprofit.
13. Assignment. The qualifications and identity of Nonprofit are of particular concern
to Borough. It is because of those unique qualifications and identity that Borough has entered
into this Agreement with Nonprofit. Accordingly, Nonprofit may not assign its right to negotiate
with Borough to any other person or entity. Any purported voluntary or involuntary assignment of
Nonprofit's negotiation rights without written approval by the Borough shall be null and void.
14. Applicable Law. This MOU shall be governed by and construed in accordance
with the laws of the State of Alaska without reference to choice of laws principles. Litigation
arising out of or connected with this MOU shall be instituted and maintained in the courts of the
Third Judicial District at Kodiak in the State of Alaska, and the Parties consent to jurisdiction over
their person and over the subject matter of any litigation in such courts, and consent to service of
process issued by such courts.
is. Severability. If an provision of this MOU is held by a court of competent jurisdiction
to be invalid or unenforceable, the remainder of the MOU shall continue in full force and effect
and shall in no way be impaired or invalidated, and the Parties agree to substitute for the invalid
or unenforceable provision a valid and enforceable provision that most closely approximates the
intent and economic effect of the invalid or unenforceable provision.
16. Entire Agreement. This MOU constitutes the entire agreement between the
Parties and supersedes whatever oral or written understanding they may have had prior to the
execution of this MOU. This MOU shall not be amended or modified except by a written
agreement executed by each of the Parties hereto.
17. Counterparts. This MOU may be executed in one or more counterparts, including
electronic pdf or facsimile counterparts, each of which shall, for all purposes, be deemed an
original, and all such counterparts, taken together, shall constitute one and the same instrument.
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18. Ambiquity. The Parties and their counsel have each carefully reviewed this MOU,
and the Parties have agreed to each term of the MOU. No ambiguity shall be presumed to be
construed against either Party.
19. Waiver. Waiver by either Party of any default, breach or condition precedent shall
not be construed as a waiver of any other default, breach or condition precedent or any other right
hereunder.
20. Headings. The section headings contained in this MOU are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this MOU.
21. Authority. The signatories to this MOU hereby represent and warrant that they are
fully authorized to sign this MOU on behalf of the Party that they represent.
IN WITNESS WHEREOF, the Parties have executed this Memorandum of Understanding
as of the date first set forth above.
KODIAK ISLAND BOROUGH
David Conrad, Inte-M fanro Manager
ATTE T:
r � �
No . MJavler, MMC, Borogh Clerk _
NONPROFIT:
Signed: —
Printed Name: L C C_.lL7 Z
Title: V 1 C_ T. - C—S I V C- t -J k<69 C—
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