COVID-19: The Recovery will Happen in Public Space

Written Agreements

Dec 31, 2008
Dec 14, 2017

Excerpted from Public Parks, Private Partners, published by Project for Public Spaces, 2000.

As one might expect, city administrations vary in their approach to sharing responsibility for a piece of the public realm. Some insist on strict guidelines as to the exact roles and responsibilities of the public and private partners. Others allow for a broad, flexible agreement that sketches out general duties. Still other partnerships emerge with no formal agreement at all.

Most nonprofit organizations enter into some form of agreement with their public sector partners to define a mutual working relationship. These agreements go by a number of different names memoranda of understanding, grant agreements, contracts, and master operating agreements, to name a few. Their main purpose is to recognize the different roles the partners have in the park and the activities they perform, whether they be programming, maintenance, authority over design and capital projects, paying bills, or a combination of all of these. Only in rare cases are these agreements binding contracts that hold the parties responsible to certain standards of upkeep as they would a private contractor. Most often, an MOU or other agreement is a non-binding expression of intent to work together to improve the park. While each agreement is unique to the situation, we can generalize about the basics.

Statement of mission

In the early stages of a partnership, before large-scale capital projects have been identified, and the capacity of the private partner is limited, an agreement might consist only of a joint statement of mission for the park acknowledging that the nonprofit has the right to perform certain types of activities in the park like programming, fundraising, or organizing volunteer clean-ups, or granting permits for gatherings and events. At the same time, the agreement will usually establish that the city will be responsible for other activities, such as maintenance or capital funding. Some MOU's in our sample also provide that the parks department will give office space in a park building to the nonprofit, and allow the group to use the park for appropriate activities.

There is some disagreement in the field about whether or not it is desirable to spell out what specific duties each partner will perform. Many feel that it is better to leave the agreement nonspecific, and therefore flexible and able to accommodate a changing relationship.

Maintenance of Effort

Many MOU's include a Maintenance of Effort clause, wherein the parks department agrees to use reasonable effort to maintain the current level of financial commitment to the park during the term of the agreement. Formalizing the public sector's contribution in some way is a significant concern for a nonprofit, because a greater involvement or success in fundraising or caretaking by a private partner may cause the city to feel its commitment can be reduced. In one case in our sample, the nonprofit partner has been so successful at raising funds for the park that it believes the parks department is resentful, and wants to cut the city's annual contribution. We also have encountered many cases where potential funders of nonprofit parks organizations have insisted that the city provide them with an assurance that private support will not replace, but will be supplemental to, sustained public funding.

Operating Subsidies

In certain cases, a city will provide a dedicated annual payment or contribution to a nonprofit for the improvement, maintenance, and/or operation of a park. This payment may be for a limited time, to launch the organization perhaps. It also may take the form of a fee- for-services. For example, as part of their agreement, the city of Richmond, Virginia is obligated to provide at least $125,000 to the Maymont Foundation, and may provide additional funds for improvements, as it chooses (the amount has risen in recent years). The city also provides other services such as tree work. The foundation is authorized to apply for Federal, State or other public funds for the improvement or operation of the park in conjunction with the city. The foundation also receives subsidies from the state of Virginia, and several neighboring counties.

New York City has taken the rare step of formally contracting with the Central Park Conservancy for the management and maintenance of Central Park. The contract provides for the city to pay the conservancy an annual fee-for-services that is determined by a matrix: if the conservancy raises and spends more than $5 million, the city will pay the nonprofit $1 million and match the net increase above $5 million by fifty cents on the dollar. If the conservancy raises over $6 million, the city will also grant the nonprofit 50% of net concession revenues, subject to a cap. Concession monies otherwise go directly into the city's general fund. The arrangement is intended to make it easier for the conservancy to raise money from outside sources, because it can leverage donations off of a city match.

Public review and authority

While the process for determining what is an appropriate activity or alteration to a public park is most often guided by preservation policies, recommendations of an approved master plan, or capital improvements and construction projects that are already planned, the responsibilities of the partners within that process are usually spelled out in an MOU or other agreement. In some cases, a nonprofit organization initiates projects that must be approved by parks departments and other public agencies that have the final authority over capital projects and programs.

Policy and Rules

Concerned with ensuring that parks or greenways remain public places, the public sector commonly retains the power to set and approve policies in the park. Typically these policies are related to operating hours, activities and behavior that is permitted or not permitted, such as the consumption of alcoholic beverages, and the charging of user fees. However, the involvement of the city may also extend to programming and event planning, depending on the situation.

In some cases, the nonprofit organization is given partial or full power to develop and set policies and rules. The Yakima Greenway Foundation, for example, has the power to develop and change policies for the entire greenway. In some cases it follows city and county policies for the land that is within their respective jurisdictions, determining other policies for the greenway as it sees fit. For policies such as the permitting of alcohol and liquor along the greenway, the foundation tends to follow the guidelines set by the city and county. For example, people who wish to rent a covered picnic shelter for a party are required to obtain a state liquor permit. The Maymont Foundation has full rein to set policies for Maymont Estate as long as the park has no admission charge and the majority of the park remains open to the public during normal operating hours.

Transfer of Funds

Sometimes a city and a nonprofit partner will agree that one group or the other will pay for only certain kinds of activities, such as capital projects or a staff member's salary. In these cases, partners may choose to enter into a grant agreement, which allows for one partner to give money, in the form of a grant, to the other for a specific purpose that is its assigned responsibility. The National AIDS Memorial Grove for example, has a grant agreement with the city of San Francisco in which the nonprofit pays for site improvements and construction and, upon their completion, will fund a gardener position in the parks department through an endowment to cover ongoing gardening and maintenance.

No Formal Agreement

Many nonprofits do not have formal written agreements with their partners. Not having a written agreement can be seen to have certain advantages, such as the freedom to operate with considerable flexibility and scope, if one so chooses. Other groups have simply developed working relationships with their public partners that have not necessitated the fashioning of an agreement. Many groups operate for a time without one, but eventually an issue brings the tenuousness of the relationship to bear and an agreement is fashioned. One of our sample organiza-tions that had no agreement with its public sector partner expressed concern that a change in leadership could endanger their partnership, and that a written agreement may be advisable in general.

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