OPERATING AGREEMENT BY AND BETWEEN THE CITY OF FORT BRAGG AND THE MENDOCINO COAST RECREATION AND PARK DISTRICT FOR THE C.V. STARR COMMUNITY CENTER This Operating Agreement (“Agreement”) is made this 1st day of September, 2022, by and between the City of Fort Bragg, a California general law city (“City”), and the Mendocino Coast Recreation and Park District, a California Recreation and Park District organized under the California Public Resources Code, Section 5780 et seq. (“District”) for the operation of the C.V. Starr Community Center.
Recitals
WHEREAS, on March 6, 2012, voters in the City of Fort Bragg passed Measure A which enacted Ordinance No. 902-2012 authorizing the City of Fort Bragg to levy a half-cent sales tax to make funds (“Sales Tax Revenues”) available for the operation and maintenance of the C.V. Starr Community Center including the Sigrid & Harry Spath Aquatic Facility and surrounding property as further described in Exhibit A (“Premises”); and WHEREAS, the Ordinance established that, prior to levying the sales tax, the parties must enter into a property tax sharing agreement and title to the Premises must be transferred to the City; and WHEREAS, the parties have entered into a property tax sharing agreement that allows the City to allocate certain revenues (“Property Tax Revenues”) for the operation and maintenance of the C.V. Starr Community Center; and WHEREAS, the City took title to the Premises on May 14, 2012 and on May 9, 2012 entered into an Agreement with the District for the operation and management of the Premises to provide recreational services and activities for the health and welfare of City residents and others in the Mendocino coast region; and WHEREAS, on September 30, 2013, the Agreement was extended with modifications, in order for the District to operate and manage the Premises in fiscal year 2013/2014; and WHEREAS, on June 23, 2014, the Agreement was renewed with modifications, in order for the District to operate and manage the Premises through June 30, 2017 and again through June 30, 2022; and WHEREAS, the parties wish to enter into a new Operational Agreement with modifications and additional provisions for a three-year term; and WHEREAS, the District has authority under the Public Resources Code and other applicable law to organize, promote, conduct, and advertise programs of community recreation that improve a community's quality of life, establish systems of recreation and recreation facilities, maintain and operate recreation facilities, and contract with other public agencies to provide recreation facilities and programs of community recreation within the District's boundaries; and WHEREAS, the City has authority under the Government Code and other applicable law to contract with any other local agency for the performance of municipal services or functions within the City; and WHEREAS, the District represents and warrants that it is fully qualified and authorized to perform the services described in this Agreement by virtue of its specialized experience and training, education and expertise and further represents that it is willing to accept responsibility for performing such services in accordance with the terms and conditions set forth in this Agreement; and WHEREAS, the Board of Directors of the District on ______, by minute action, authorized execution of this Agreement on behalf of the District; and WHEREAS, the City Council of the City on August 8, 2022, by Resolution No. ____-2022, authorized execution of this Agreement on behalf of the City; NOW, THEREFORE, the City and the District, for the consideration hereinafter described, mutually agree as follows:
Agreement
1. Premises.
City authorizes the District to operate, control, and maintain the Premises and the District agrees to accept the Premises, including all structures, buildings and facilities covered by this Agreement within the property boundary described in Exhibit “A”, and take the same in their present condition “AS IS” with all faults, and agrees to maintain the same in a safe condition, and, at any termination of this Agreement, to promptly turn back the same to the City in the same or better condition, reasonable wear and tear excepted. The City shall not be obligated to make any alterations, additions, or betterments to the Premises, except as otherwise provided for in this Agreement.
Term.
2.1 The term of this Agreement shall commence on September 1, 2022 and terminate at midnight on September 1, 2025, unless earlier terminated by either party as provided in Section 2.2 or extended as provided in Section 2.3.
2.2 Either party may request an early termination of this Agreement. Such a request must be made in writing, and must be made a minimum of six months in advance of the proposed termination date, unless the parties mutually agree in writing to a lesser time. Provided that such written request is timely made, termination shall occur upon the specified termination date. The parties acknowledge and agree that such a termination will require a substantial amount of time to accommodate ongoing obligations at the Premises and to enable full separation of responsibilities and obligations of the parties. The parties agree to cooperate reasonably one with the other in such an event to facilitate such a separation as expeditiously as possible.
2.3 This Agreement may be extended by the written mutual Agreement of the parties.
Use of Premises.
3.1 The District agrees to operate, control, and maintain the Premises for the use and enjoyment of the general public in accordance with all applicable Federal, State and City laws, regulations, and policies. The District shall not use or permit the Premises to be used in whole or in part during the term of this Agreement for any purpose other than as herein set forth without the prior written consent of the City.
3.2 Capital improvements to the facilities and structures on the Premises shall be subject to the approval of the City and shall be identified and approved in the Annual Budget along with a schedule for design, construction and completion. Prior to undertaking any capital improvement project, the parties shall confer on the methods and practices for contracting the work and reach Agreement on which party shall oversee the project. All projects shall be competitively bid in accordance with the California Public Contract Code. Title to all capital improvements shall immediately become vested in the City regardless of who constructs or oversees the project.
4. Management and Staffing.
4.1 The District Administrator shall efficiently administer and manage the day-to-day operation of the Premises in accordance with the terms and conditions of this Agreement. The District will consult with the City Manager prior to hiring any District Administrator and provide the City an opportunity to participate in the recruitment, evaluation and hiring of any District Administrator.
4.2 The District Administrator shall report directly to the District’s Board of Directors and have authority over all staff hiring decisions as well as all performance review and disciplinary measures. The District Administrator shall submit hiring recommendations to the District Board for confirmation prior to issuing employment offers for key administrative positions (e.g., Business Manager, Recreation Supervisors, Maintenance Supervisor & Guest Services Supervisor). The District Administrator shall manage staff pursuant to applicable District personnel policies. Any such proposed changes shall be subject to the approval of the District Board.
4.3 The District Administrator will ensure that all Center staff are trained in all safety-related matters as required by law or appropriate for all services to be provided by the District. This includes pre-employment screening, fingerprinting, and criminal history checks as required by law.
4.4 The District Administrator shall meet as needed with City staff to review administrative and operational, and budgetary issues related to the operation of the Premises and also consult with City staff on the establishment of detailed fiscal procedures, controls, reporting and auditing requirements. By the last day of each quarter, the City Manager shall submit to the District Manager and District Board a monthly budget reconciliation for the previous month. The City shall submit a monthly budget for review by the District Board, MCRPD will put it in its monthly Board packet. The District may establish its own reporting requirements for the District Administrator.
4.5 The District Administrator will be responsible for
(i) scheduling programs, activities, rentals and other uses of the Premises with the goal of maximizing use of the facility consistent with budgetary goals and constraints, (ii) proposing hours of operation subject to the approval of the District Board, (iii) ensuring the establishment of an effective promotion and marketing program for the Premises (including web-based advertising, social media, print media, special events, etc.), (iv) developing programs and opportunities for increasing patronage, and (v) working jointly with the City, and individually, to seek and secure grants or other sources of funding. He or she shall also reach out to, and identify opportunities to coordinate with other organizations in the local area including, but not limited to the Fort Bragg Unified School District, Mendocino Unified School District, Point Arena Unified School District, Mendocino College, Mendocino Coast District Hospital, Redwood Coast Senior Center, and local Chambers of Commerce.
4.6 At the request of the City, the District will provide the City the opportunity to provide input to the District on the performance of the District Administrator and to raise any issues of concern regarding his or her performance and the management and operation of the Premises.
4.7 The parties agree that there shall be no discrimination based upon race, color, creed, religion, gender, marital status, age, disability, national origin, sexual orientation, or ancestry, in any activity or membership offered pursuant to this Agreement.
5. Operating Manual.
The District Administrator, with the assistance of District and City staff, shall prepare, and keep regularly updated, an Operating Manual containing the day-to-day operating procedures and protocols for the Premises. The Operating Manual, and any subsequent substantive changes, shall be subject to prior review by the City Manager and the approval of the District Board with a current copy provided to the City at all times. All procedures and protocols contained in the Operating Manual shall conform and be consistent with all applicable City ordinances, regulations, rules and policies. The Operating Manual shall include, but not be limited to:
Customer service procedures and protocols
Facility use reporting requirements
Daily and long-term maintenance requirements, inspection requirements, and preventative maintenance schedules Licensing and permitting requirements
Energy efficiency protocols
Security systems and procedures (including key control policy) Emergency action plan
Illness, Injury and Prevention Plan
Safety Program (OSHA protocols, hazard mitigation, safety practices, safety training, incident reporting procedures, etc.) Lifeguard and Pool policies and procedures for the Aquatic Facility Volunteer policies
Policies and procedures for the Skate Park Facility, Dog Park, Outdoor Fitness & BBQ Area, and Petanque Courts Facility use and rental procedures/risk transference protocols, including provisions regulating alcohol consumption at special events on the premises Accessibility procedures and protocols compliant with the requirements of the Americans with Disabilities Act of 1990 and all related regulations, guidelines and amendments Solid waste disposal and recycling procedures for facility, including provisions for food-waste recycling at special events held at Premises Programs.
The District shall provide, at a minimum, aquatics and fitness programs, enrichment classes, and special events at the C.V. Starr Center. The District and the City desire a seamless offering of such programs in Fort Bragg and for the C.V. Starr Center to be utilized to the maximum extent possible.
The District’s Just For Kids, Assets, KUDOS, and Adult & Youth Sports programs shall remain independent District programs paid for out of separate District revenues not otherwise dedicated to this Agreement. The parties agree to consult with one another from time to time on whether these programs and others serving the Fort Bragg area should be brought within the framework of this Agreement.
Special events developed by the District to raise funds for the District, such as the Aquathon, the Coast Cup Soccer Tournament and the Jesse Ales Memorial Men’s Softball Tournament, shall remain independent District fundraisers.
Grounds and Facilities.
7.1 Except as provided in this Agreement, the City shall retain all of its rights, title and interest, as such may appear, in the grounds, buildings, structures and all other improvements and equipment on the Premises. Subject to the approval of the District Administrator, equipment owned by organizations using the Premises (including the District) may be stored on the Premises and restricted to the use of the organization’s members/guests. Such equipment shall be marked and clearly identifiable.
7.2 The cleanliness and sanitation of the Premises shall be a top priority. All buildings, facilities, and grounds shall be kept in a neat and clean condition at all times including appropriate containers through-out the Premises for non-recyclable and recyclable wastes. The District shall use reasonable means to ensure that recyclable wastes are separated and available for collection pursuant to the applicable terms and conditions of the City’s current franchise agreement for such collection.
7.3 All equipment and furnishings on the Premises will be maintained in good working condition and any necessary maintenance and/or repairs shall be performed on a timely basis. Regular maintenance schedules shall be established and adhered to and regular reports regarding maintenance activities will be required to be maintained and available for inspection by City staff. The C.V. Starr Director shall promptly notify the City and District Board of any and all facility and/or equipment maintenance, repair or replacement issues that arise which have not been identified and/or funded through the Annual Budget.
7.4 The District is responsible for maintaining its portion of any shared resources in accordance with the cost allocation methodology approved in the Annual Budget.
7.5 Meeting rooms shall be made available free of charge for use by City or District staff subject to availability.
7.6 The City retains the right to enter the Premises at any time to ensure the District’s compliance with the terms and conditions of this Agreement and to exercise any of the rights granted to the City by this Agreement.
8. Budget and Funding.
8.1 The parties agree that it is the intent of the arrangement governed by this Agreement that the District shall operate and maintain the Premises pursuant to an annual budget (“Annual Budget”) and fee schedule (“Fee Schedule”) approved by the City Council. (For purposes of this Agreement, “fiscal year” shall mean the twelve consecutive months beginning July 1 of the year first referenced and ending June 30 of the year last referenced.) For each fiscal year covered by this Agreement, the Annual Budget and Fee Schedule will be approved by the City Council prior to June 30 of the prior fiscal year.
In February or another agreed upon date of each year, the City Manager, in consultation with the City Council, and the District Administrator, in consultation with the District Board, shall develop budget assumptions related to the operating budget for the Premises for the following fiscal year. During this process, the District Administrator and City Staff shall work together regarding proposed changes to personnel costs (including but not limited to: new or changed job classifications, new staff positions, modifications to compensation schedules, modifications to employee benefits, cost of living adjustments, costs for employee training, compliance costs associated with updated public health or safety regulations and/or newly enacted statutes impacting workplace management, etc.).
Before March 15, or on another mutually-agreed upon date, the City Manager with input from the District Administrator and CV Starr Staff shall develop the proposed Annual Budget and Fee Schedule for presentation to the City Council and District Board at a joint workshop(s).
The City Manager shall review the proposed Annual Budget and Fee Schedule and authorize its submittal to the City Council for action to adopt the Annual Budget and Fee Schedule prior to presentation to the District Board.
The Annual Budget will include estimated revenues from activities, rentals, sales and other usage of the Premises, as well as projected Sales Tax and Property Tax Revenues. The Annual Budget will also include estimated line item costs and expenses related to the operation and maintenance of the Premises, including wages and benefits, program expenses, utilities and overhead, general and administrative expenses, City costs for administration of this Agreement, and the provision of support services to the District, and operating, repair and maintenance, and capital improvement reserve funds.
The Annual Budget will include a payment to the District equal to 2.0% of the Operating Revenue from the most recently audited annual financial statement (including general admission, discounts, rentals, registration, merchandise, and miscellaneous) as valuable consideration for the District’s administration of this Agreement.
The Fee Schedule will include rates for facility use, room rentals, programs, and services intended to encourage maximum use of the Premises while providing sufficient revenue to cover annual operating expenses.
Free or discounted memberships and/or passes may be authorized as part of the Fee Schedule or as a separate addendum. Unless expressly authorized in the Annual Budget and Fee Schedule, free or discounted memberships and/or passes are prohibited.
The proposed Annual Budget and Fee Schedule will be included in the City Manager’s annual budget recommendation to the City Council and shall be subject to modification by the City Council prior to final approval by the Council at its sole discretion.
Once the Annual Budget and Fee Schedule are approved by the City Council, the City shall notify the District and the approved Annual Budget and Fee Schedule shall be implemented by the District Administrator for the upcoming fiscal year. The District shall be responsible for notifying the City of any anticipated cost overruns on a timely basis. The Annual Budget and Fee Schedule may be modified by the City Council, at its sole discretion, to address unanticipated expenses or revenue shortfalls.
8.2 The City will establish and administer an enterprise fund in which will be deposited the Sales Tax and Property Tax Revenues. The City shall be the account holder and administrator for all bank accounts associated with funding the operation of the C.V. Starr Center. Transfers from the enterprise fund to the operating accounts for the C.V. Starr Center shall be made by the City with the Consent of the District Administrator on an as needed basis solely for the purposes of carrying out its obligations under this Agreement in accordance with the Annual Budget. The City shall maintain a dedicated bank account, with the City and District each holding signatory authority, to hold all transferred Sales Tax and Property Tax Revenues and all revenues generated from its operation of the Premises. The City will operate the Premises as a stand-alone financial enterprise distinct from other City operations and will cause to be implemented separate payroll and accounting systems.
The intent of this Agreement is for the City shall be responsible for the day to day financial operations relating to all financial transactions for payroll costs and budgeting, accounts payable, accounts receivable, and other financial operations, previously managed by the C.V. Starr Finance Officer.
Certain resources are shared between the District and the CV Starr Center. Costs for shared resources are allocated according to an allocation plan which is adopted annually as part of the budget preparation and approval process.
All revenues transferred from the City enterprise fund to the designated bank account and all revenues generated by the District from its operation of the Premises shall be used for the maintenance, operation, and administration of the Premises. Any portion of such revenues that may exceed the costs of maintaining, operating, and administering the Premises as provided in this Agreement shall be remitted to the City to be used solely for the costs of (i) operating and maintaining the Premises, (ii) any capital improvements at the Premises, or (iii) other parks and recreation purposes within the City, or for deposit in the operating, repair and maintenance and/or capital reserve funds. The City will ensure that all Sales Tax Revenues are used in accordance with the limitations of Ordinance No. 902-2012 as approved by the voters.
8.3 The City and the District shall undertake a mid-year budget review process in which the City Manager will be responsible for providing a report to the City Council and District Board detailing all revenues received, costs incurred, and expenditures paid for the current fiscal year, as well as any estimated changes to the budget assumptions approved by the Council in the Annual Budget. The report shall also identify any new capital improvements not identified in the Annual Budget process as well as any additional information requested by the Council relating to the District’s operation and maintenance of the Premises. After providing the report, the City Council may approve modifications or adjustments to the Annual Budget at its sole discretion.
9. Audits, Record Retention, and Inspection.
9.1 At all times during the term of this Agreement, the City shall keep separate, true, and complete books, records, and accounts of all income and fees received and expenditures made relating to the services being performed by the District hereunder. The parties understand and agree that they are public entities and, as such, are subject to various laws including, but not limited to, the California Public Records Act, and, as such, members of the public as well as representatives of governmental agencies have access to and the right to examine, audit, excerpt, copy or transcribe any pertinent transaction, activity, or other records of each party relating to this Agreement. Such material, including, but not limited to, all pertinent costs, accounting, and financial records shall be retained by each party for a period of at least five (5) years after their creation date.
Dispute Resolution.
10.1 Any dispute between the parties concerning the terms or conditions of this Agreement shall be resolved by the City Manager, the District Administrator, and if requested by the District, a representative of the District Board. If the parties cannot come to an agreement, the City Manager’s decision shall be binding unless review is requested per Section 10.2.
10.2 If the City Council or District Board desire to review the City Manager’s decision, the party desiring review shall notify the other party and an ad hoc committee will be formed consisting of two members of the City Council and two members of the District Board. The ad hoc committee shall have 45 days to make a recommendation.
10.3 If, after receiving the recommendation of the ad hoc committee, or 45 days following the formation of the committee if no such recommendation is made, either the City Council or District Board desire to submit the dispute to non-binding mediation, the party requesting mediation shall notify the other party. The mediation process will provide for the selection within 15 days by both parties of a disinterested third person as mediator, will be commenced within 30 days of the submittal, and will be concluded within 45 days from the commencement of the mediation unless a time requirement is extended upon the request of both parties. In the event of any dispute between the parties as to the accuracy of a party’s books and records, the mediator may choose an independent auditor to conduct an investigation of the disputed matter.
Indemnification.
To the maximum extent permitted by law, the District shall, at its own expense, indemnify, defend with counsel acceptable to the City, (which acceptance will not be unreasonably withheld), and hold harmless City and its officers, officials, employees, agents and volunteers (“Indemnitees”) from and against any and all liability, loss, damage, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties and fines, expenses and costs (including, without limitation, claims expenses, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature, whether actual, alleged or threatened, arising out of or in connection with the District’s, management of the facilities and programs, including without limitation its officers, officials, employees, agents, subcontractors, or volunteers, failure to comply with any of the terms of this Agreement.
The District’s obligation to indemnify, defend and hold harmless under this provision shall not be excused because of the District's inability to evaluate potential Liability, or because the District evaluates Liability and determines that the District is not or may not be liable. The District must respond within 30 calendar days to any tender for defense and indemnity by the City, unless the time for responding is extended by an authorized representative of the City in writing. If the District fails to accept tender of defense and indemnity within 30 calendar days, in addition to any other remedies authorized by law, so much of the Sales Tax and Property Tax Revenues as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the matter subject to tender, or until the District accepts the tender, whichever occurs first.
The District waives any and all rights to express or implied indemnity against the Indemnitees concerning any Liability of the District arising out of or in connection with the District's failure to comply with any of the terms of this Agreement.
12. Insurance.
12.1 Before commencing performance of the Agreement, the District must: a) procure "occurrence coverage" insurance of the kinds and in the amounts specified below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement by the District or its agents, representatives, employees, or subcontractors; and b) submit to the City certificates of insurance and endorsements, or other comparable documentation, evidencing insurance coverage that meets the requirements of this section including naming the City, its officers, employees, agents and volunteers as additional insureds. The coverage shall be primary as to any loss arising out of this Agreement. In the event the District participates in a public risk sharing pool, that pool shall provide evidence of coverage and shall provide City with an endorsement to the JPA Memorandum of Coverage adding the City as an additional covered party for the limits provided in this Agreement. An allocable portion of the District’s costs for insurance required under this Agreement will be included in the Annual Budget.
12.2 The District must maintain the coverages required by this Agreement throughout the term. The District may not allow any subcontractor to commence work on the Premises until the District and/or the subcontractor have obtained all insurance required by this Agreement for the subcontractor(s) and submitted certificates of insurance and endorsements evidencing such coverage to City.
12.3 The District must maintain Workers’ Compensation Insurance and Employer’s Liability Insurance (EPLI) for any and all persons employed directly or indirectly by the District. Workers’ Compensation Insurance as required by the State of California, with coverage providing Statutory Limits, and Employer’s Liability Insurance with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence must be provided. The insurance must be endorsed to waive all rights of subrogation against City and its officials, officers, employees, and volunteers for loss arising from or related to the services to be provided under this Agreement.
12.4 The District must maintain (i) Commercial General Liability insurance, or participate in a public risk-sharing pool, for the term of this Agreement in an amount not less than TWENTY-FIVE MILLION DOLLARS ($25,000,000.00) per occurrence, combined single limit coverage for risks associated with its obligations under this Agreement and (ii) Automobile Liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with its obligations under this Agreement. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles.
12.5 Required commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage must be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 1 (“any auto”). No endorsement may be attached limiting the coverage.
12.6 Except for Workers’ Compensation, all other insurance coverages required pursuant to this Agreement must include or be endorsed to include the following:
City and its officials, officers, employees, agents, and volunteers shall be additional covered as insureds with respect to each of the following: liability arising out of activities performed by or on behalf of the District, products and completed operations of the District; premises owned, occupied, or used by the District; and automobiles owned, leased, or used by the District. The coverage may contain no special limitations on the scope of protection afforded to City or its officials, officers, employees, agents, or volunteers.
Required insurance coverage must be primary insurance with respect to the City and its officials, officers, employees and volunteers. No insurance or self-insurance maintained by the City may be called upon to contribute to a loss under the coverage.
12.7 Insurance coverage required pursuant to this Agreement must include or be endorsed to include the following:
Any failure of District to comply with reporting provisions of the policy shall not affect coverage provided to the City and its officers, employees, agents, and volunteers.
Required insurance coverage may not be suspended, voided, canceled, reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
12.8 All insurance required under this Agreement must be placed with insurers with a Best’s rating of no less than A unless otherwise approved by the City.
13. Notices.
Any notice, consent, authorization or other communication to be given shall be in writing and deemed duly given and received when (a) delivered personally, (b) transmitted by facsimile, (c) one business day after being deposited for next-day delivery with a nationally recognized overnight delivery service, or (d) three business days after being mailed by first class mail, charges and postage prepaid, and in all cases properly addressed to the party to receive such notice at the last address furnished for such purpose by the party to whom notice is directed.
In the case of notices to be given to the City, notice shall be addressed as follows:
City Manager
City of Fort Bragg
416 N Franklin Street Fort Bragg, CA 95437
With a copy to:
City Clerk
City of Fort Bragg
416 N Franklin Street Fort Bragg, CA 95437
In the case of notices to be given to the District, notice shall be addressed as follows:
District Administrator
Mendocino Coast Recreation & Park District
300 South Lincoln Street Fort Bragg, CA 95437
Either party may change its address or other contact information by giving notice in writing to the other party as specified in this section.
Amendments.
This Agreement shall only be amended by a writing signed by both parties after approval by the City Council and District Board.
Appropriations.
The payment of any obligations of the City described in this Agreement is subject to the annual appropriation of funds for said payments by the City Council.
Miscellaneous Provisions.
16.1 Good Faith and Cooperation. The City and the District agree that it is in their mutual best interest and in the best interest of the public that the Premises be operated and managed as herein agreed and, to that end, the parties shall in all instances cooperate and act in good faith in compliance with all of the terms, covenants, and conditions of this Agreement and shall deal fairly with each other.
16.2 Severability. If any provision of this Agreement, or the application of such provision to any party or circumstance, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to such party or circumstance other than those to which it is held to be invalid or unenforceable, shall not be affected thereby.
16.3 Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of California, without regard to that state’s conflict of laws principles.
16.4 Entire Agreement. This Agreement contains the entire Agreement of the parties and supersedes all prior to contemporaneous written or oral negotiations, correspondence, understandings and agreements between the parties regarding the subject matter hereof.
16.5 Parties in Interest. Nothing in this Agreement shall confer any rights or remedies under or by reason of this Agreement on any party other than the parties nor shall anything in this Agreement relieve or discharge the obligation or liability of any third party to any party to this Agreement nor shall any provision give any third party any right of subrogation or action over or against any party to this Agreement.
16.6 Waiver. Failure of either party to complain of any action, non-action or default of the other party shall not constitute a waiver of such party’s rights hereunder with respect to such action, non-action or default. Waiver by the District or the City of any right or any default hereunder shall not constitute a waiver of any subsequent default of the same obligation or for any other default, past, present or future. No payment by a party, or acceptance by the other party, of a lesser amount than shall be due from one party to the other shall be treated otherwise than as a payment on account. The acceptance by a party of a check for a lesser amount, with an endorsement or statement thereon, or upon any letter accompanying such check, that such lesser amount is payment in full, shall be given no effect, and a party may accept such check without prejudice to any rights or remedies which it may have against the other party.
16.7 Construction. This Agreement has been negotiated by the parties and their respective legal counsel and will be fairly interpreted in accordance with its terms and without strict construction in favor of or against any party.
16.8 No Assignment. This Agreement, nor any part of it nor any right or obligation arising from it shall be assigned without the express written consent of the parties.
16.9 Subcontracting. The District may subcontract portions of the services to be provided under this Agreement only with the prior written approval of the City. The District will be solely responsible for payment to such subcontractors and no contractual relationship will exist between any subcontractors and the City.
16.10 Independent Contractor Status. The parties shall at all times be acting as independent contractors. This Agreement is not intended, and shall not be construed to create the relationship of servant, employee, partner, joint venture or association as between the parties. The parties understand and agree that any of their personnel furnishing services to the Premises under this Agreement are employees solely of the party which hired such personnel for purposes of wages, salaries, workers’ compensation liability and for purposes of receiving all other types of employee benefits including, but not limited to, retiree pension and health benefits. The parties shall bear the sole responsibility and liability for furnishing workers’ compensation benefits to any personnel hired by them for injuries arising from or connected with services performed under this Agreement, and shall bear the sole responsibility and liability for paying compensation and furnishing all other employee benefits as described herein to any personnel hired by them.
IN WITNESS WHEREOF, the District and the City have executed this Agreement as of the day and year first above written.
MENDOCINO COAST RECREATION AND PARK DISTRICT
By: _________________________
Moneque Wooden
Administrator
CITY OF FORT BRAGG APPROVED AS TO FORM:
By: _____________________________ ____________________________ Peggy Ducey Keith F. Collins
City Manager City Attorney
ATTEST:
________________________________
June Lemos, MMC
City Clerk
"Exhibit A"
Legal Description of Premises
That certain real property situated in the City of Fort Bragg, County of Mendocino, State of California and being a portion of Section 7, Township 18 North, Range 17 West, Mount Diablo Meridian, more particularly defined and lying within the following described boundaries:
The bearing used in this description are in terms of the California State Grid, Zone 2.
Commencing at the Southwest corner of the intersection of Maple and Lincoln Streets, described by deeds of record as being East, 3330 feet and South 2300 feet of the section corner common to Sections 6 and 7, Township 18 North, Range 17 West, and Sections 1 and 12, Township 18 North, Range 18 West, Mount Diablo Meridian; thence from said point of commencement South 88° 36' 40" East, 57.44 feet to the true point of beginning; thence from said true point of beginning and along the exterior boundary lines of the parcel of land to be described as follows:
North 0° 45' 30" East along the Easterly sideline of Lincoln Street as it now exists, 288.58 feet to an intersection with the Southerly sideline of Willow Street as it now exists; thence South 88° 51' 31" East along said Willow Street sideline 571.27 feet; thence South 1° 37' 50" West along the Westerly sideline of an alley as now fenced, 395.67 feet; thence leaving said alley sideline North 87° 39' 45" West, 391.07 feet; thence South 0° 53' 42" West, 30.86 feet; thence North 88° 51' 31" West, 174.25 feet to a point in the Easterly sideline of the above mentioned Lincoln Street; thence North 0° 45' 30" East along said street sideline 129.78 feet the true point of beginning.
APN: 008-280-62
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