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To clarify the legal control and operating authority for the two foundations (Craven Community College Foundation and Public Radio East Foundation), the Craven Community College Board of Trustees passed Memoranda of Understanding for both foundations at its July 18, 2006, meeting. The Memorandum of Understanding with the college foundation was confirmed by the Craven Community College Foundation Board at its August 1, 2006 called meeting. The Memorandum of Understanding with the Public Radio East Foundation Board was confirmed at the PRE Foundation's August 10, 2006 called meeting.
Each Memorandum of Understanding lays out the duties of the respective Foundations and the duties of the College. The Memoranda of Understanding also address cooperation, indemnification, independent entities, term, successors and assigns, and modifications, waivers, and amendments.
Each Memorandum of Understanding describe the relationship between the institution and the respective foundations. Both Memoranda of Agreement indicate that the College and the Foundation are independent entities, with each agreement containing the same clause (see Section 5 on page 4 of each agreement):
Independent Entities
Each Memorandum of understanding also clearly indicates the duties of the college and the foundation, and the principle of cooperation between the college and each foundation.
The Memorandum of Understanding between the Trustees of Craven Community College and the Craven Community College Foundation, includes agreement of the Foundation's Duties (listed on page 2) the College's Duties (listed on page 3) and Cooperation (listed on page 3).
The Memorandum of Understanding between the Trustees of Craven Community College and the Public Radio East Foundation, Inc., includes agreement of the Foundation's Duties (page 2), the College's Duties (page 3), and Cooperation (page 3):
1. Foundation's Duties.
a. The Foundation shall actively cooperate and assist the College in the implementation of private-sector fundraising appeals, campaigns, and events, public awareness activities, and advocacy efforts that enhance the mission, goals, and objectives of the College. The Foundation shall solicit, receive, hold and invest funds, administer property, and make expenditures to support the programs, activities, and needs of the College in accordance with this Agreement, the College's Donations and Gift Receipt Policy, and the Foundation's Joint Donations and Gift Receipt Policy.
b. The Foundation shall not solicit or accept gifts for any use specified by a donor that is inconsistent with the mission, goals, and objectives of the College. The Foundation agrees to abide by the College's gift and fundraising policies as it may, from time to time, adopt or amend. The acts, deeds, functions, and activities of the Foundation shall in no way conflict with the authority of the College.
c. The books and records of the Foundation shall be kept in accordance with generally accepted accounting principles and shall be audited annually in accordance with generally accepted auditing standards by an independent professional auditor who shall furnish to the College copies of the annual audit. Any audit findings, audit exceptions, or any misuse of funds shall be reported to the Foundation's Board of Directors who shall maintain a written policy regarding the handling and resolution of such occurrences. A copy of this policy shall be provided to the College. The Foundation shall take appropriate corrective action to remedy such occurrences.
d. The Foundation agrees to transfer restricted funds, both current gifts and income from endowments, to the College in an expeditious manner when requested by the College for expenditure in accordance with the terms and conditions applicable to the particular funds.
e. The Foundation, at its sole expense, shall maintain or provide adequate insurance in such forms and sums as the Foundation and the College agree are necessary.
f. The Foundation shall reimburse the College for any reasonable expenditure made by the College for the benefit of the Foundation.
2. College's Duties.
a. The President of the College shall assign the necessary duties and functions to appropriate College employees in order to effectuate the College's duties under and intent of this Agreement.
b. During the term of this Agreement, the Foundation shall be authorized to use the facilities, equipment, personnel, and services of the College in order to carry out the Foundation's activities in support of the College, subject to the College's facilities use policies and procedures.
c. During the term of this Agreement donors to the Foundation shall be acknowledged and recognized in substantially the same manner and generally afforded the same privileges as donors to the College.
3. Cooperation. The Foundation understands that the College has ultimate responsibility for compliance with the Accreditors' standards. The College and the Foundation agree to cooperate and to do all things reasonably necessary or desirable for the mutual benefit of the parties in operating the Foundation according to the Accreditors' standards. To further effectuate these procedures, the parties shall not unreasonably withhold consent or agreement to any new or different terms, agreements, or positions not otherwise included in this Agreement, but deemed desirable or necessary by either the Accreditors or both parties.
Both Memoranda of Agreement between the college and the two foundations (beginning at the bottom of page 3 of each agreement) contain the same indeminification policy that describes any liability associated with the relationship between the college and either foundation. Each indemnification policy reads:
a. Foundation covenants and agrees to defend, indemnify, and hold harmless College and its trustees, officers, agents, and employees from and against any and all liabilities, demands, claims, damages, losses, costs (including attorneys' fees), and expenses of whatever kind or nature, including, without limitation, any and all direct and indirect costs of defense, made against, or incurred or suffered by College or its trustees, officers, agents, and employees as a direct or indirect consequence of any claim, demand, or cause of action arising out of, resulting from, or which would not have occurred or existed except for the Foundation's negligence, bad faith, or fraud.
b. To the extent permitted by North Carolina law, the College covenants and agrees to defend, indemnify, and hold harmless the Foundation and its trustees, officers, agents, and employees from and against any and all liabilities, demands, claims, damages, losses, costs (including attorneys' fees), and expenses, including, without limitation, any and all direct and indirect costs of defense, made against, or incurred or suffered by the Foundation or its trustees, officers, agents, and employees arising out of, resulting from, or which would not have occurred or existed except for College's negligence, bad faith, or fraud.
Also at its July 18, 2006, meeting, the Craven Community College Board of Trustees passed a Donations and Gift Receipt Policy. The Donation and Gift Receipt Policy requires all donations of money or gifts of personal property to be reviewed by the Executive Director of Development and Outreach Programs and the President, and places full authority for accepting or declining a donation with the President. The Donations and Gift Receipt Policy also outlines conditions for acceptance of gifts of real property, and indicates that no gift of real property may be accepted by the College or one of its Foundations without the approval or concurrence of the Craven Community College Board of Trustees.
The policies explicated by the Craven Community College Board of Trustees in their Donations and Gift Receipt Policy were confirmed by the boards of each of the two foundations in the form of a Joint Donations and Gift Receipt Policy applicable to both the Craven Community College Foundation and the Public Radio East Foundation. The Joint Donations and Gift Receipt Policy was confirmed by the Craven Community College Foundation Board at its August 1, 2006, meeting and by the Public Radio East Foundation Board at its August 10, 2006, meeting.
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