MEMORANDUM OF UNDERSTANDING
BETWEEN MAD RIVER GIRLS FASTPITCH SOFTBALL ASSOCIATION
& THE CITY OF FORTUNA
FOR
NEWBURG AND ROHNER PARK FIELDS AND CONCESSION STANDS
This is a Memorandum of Understanding between the City of Fortuna, hereafter referred to as “CITY”, and Mad River Girls Fastpitch Softball Association, hereafter referred to as “ASSOCIATION”.
WHEREAS, CITY is the owner of the property located at Newburg Park and Rohner Park; and WHEREAS, said properties are designed for softball activities and buildings are designed to be used as concession stands; and
WHEREAS, ASSOCIATION is desirous of procuring from CITY on days not conflicting with CITY use during the months of March through June, the right to use Softball Field #1, Softball Field #2, the East Field, main concession stand, and storage shed in Newburg Park for practices and games, and the Bartow Field and associated concession stand for the ASSOCIATION’s annual opening tournament only; and
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
PURPOSE
The purpose of this Memorandum of Understanding is to establish and maintain an effective working relationship between CITY and ASSOCIATION. ASSOCIATION is given, except as otherwise provided in the section of this Agreement titled, SALE OF FOOD AND DRINK BY OTHERS, the exclusive right license and privilege to sell and vend soft drinks, food and other refreshments at Newburg Park.
HOLD HARMLESS
ASSOCIATION shall hold harmless, defend and indemnify CITY and its officers, officials, employees, and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with ASSOCIATION’s performance hereunder or its failure to comply with any of its obligations in this MOU, except such loss or damage as was caused by the sole negligence or willful misconduct of CITY.
LIABILITY INSURANCE
ASSOCIATION shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the ASSOCIATION, their agents, representatives, employees or subcontractors.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
2. Workers’ Compensation insurance as required by the State of California Minimum Limits of Insurance
ASSOCIATION shall maintain limits no less than:
1. General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
Deductibles and Self-Insured Retention
Any deductibles or self-insured retention must be declared to and approved by the CITY. At the option of the CITY, either: the insurer shall reduce or eliminate such deductibles or selfinsured retention as respects the CITY, its officers, officials, employees and volunteers; or the ASSOCIATION shall provide a financial guarantee satisfactory to the CITY guaranteeing payment of losses and related investigations, claim administration and defense expenses.
Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1. The CITY, its officers, officials, employees and volunteers are to be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the ASSOCIATION; and with respect to liability arising out of work or operations performed by or on behalf of the ASSOCIATION including materials, parts or equipment furnished in connection with such work or operations. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured or in any case where an agreement to indemnify the additional insured would be invalid under subsection b of Section 2782 of the Civil Code. General liability coverage can be provided in the form of an endorsement to the ASSOCIATION’s insurance, or as a separate owner’s policy.
2. For any claims related to this use, the ASSOCIATION’s insurance coverage shall be primary insurance in respect to the CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees or volunteers shall be excess of the ASSOCIATION’s insurance and shall not contribute with it.
3. The insurance policy required by this clause shall include an Endorsement which states that coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the CITY.
Acceptability of Insurers
Insurance is to be placed with California-admitted insurers with a current A.M. Best’s rating of no less than A:VII.
Verification of Coverage
ASSOCIATION shall furnish the CITY with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements shall be signed by an authorized representative of the issuing insurer. The endorsements shall conform to the CITY’s requirements. All certificates and endorsements are to be received and approved by the CITY before activities commence. The CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
LICENSES, PERMITS AND TAXES
CONTRACTOR shall obtain any and all permits or licenses, including City of Fortuna Business License and health permit as required by Humboldt County Health Department for food service, which may be required by law or ordinance in the conduct of their operations.
They shall pay any and all taxes which may be assessed against them or their property in this operation.
TERM
The term of this agreement shall be for one year from the Agreement date. The Agreement shall renew automatically for additional periods of one year unless either CITY or ASSOCIATION gives notice to the other in writing, at least thirty (30) days before the expiration of any annual term, of its intention not to renew the Agreement at the expiration of said term.
UTILITIES
CITY shall provide water, electricity and garbage services. All other utilities, including propane, are the responsibility of ASSOCIATION.
EQUIPMENT
ASSOCIATION shall supply and maintain all equipment and supplies needed to carry out the terms and conditions of this contract. Upon termination, all supplies and equipment shall be immediately removed by the ASSOCIATION, and shall then remain the property of the ASSOCIATION. Any equipment or supplies remaining at the concession stand twenty (20) days after termination of this Agreement shall become the property of CITY. No passenger vehicles shall be operated on any turf or infield areas without prior consent.
REPAIRS, MAINTENANCE AND MODIFICATIONS
ASSOCIATION shall keep all ballfields, concession stands, storage areas and all immediate outside areas in a clean and sanitary condition at all times. If ASSOCIATION fails to keep said premises in a clean and presentable condition, CITY may notify ASSOCIATION of deficiencies in writing, and if after receipt of such written notice, ASSOCIATION has not immediately instigated measures to remedy the unsatisfactory conditions, CITY may cause to have the necessary maintenance and/or cleaning services provided by others and the cost thereof shall be the responsibility of the ASSOCIATION. If said costs are not paid promptly by the ASSOCIATION, this Agreement shall be determined to be in default and CITY shall be entitled to all legal remedies provided herein.
ASSOCIATION shall provide the CITY with an annual minimum $500 donation towards infield material to maintain the two softball fields at Newburg Park, ASSOCIATION shall provide an annual professional cleaning service at the Newburg Park cook shack at their own expense, and ASSOCIATION shall fund all expenses for field modifications specific to the ASSOCIATION’s use.
No modifications shall be made to any CITY property without prior consent by the Parks & Recreation Director.
Any modifications to the concession stand buildings by ASSOCIATION or CITY shall become the property of the CITY. Modifications will include any items attached to the building, in any way. Portable equipment and supply items are not considered modifications for the purposes of this Agreement.
SALE OF FOOD AND DRINK BY OTHERS
ASSOCIATION shall have exclusive right and privilege to provide soft drinks, food and other refreshments, excluding beer and wine, from concession stands during games.
QUALITY OF FOOD
ASSOCIATION shall put forth an effort to serve high-quality, attractively prepared and wholesome food, beverages, confections and other healthy options.
SUBOTHER GROUPS OR ASSOCIATIONS
ASSOCIATION must receive permission from CITY prior to allowing other groups use of the Newburg Park Concession Stand. All subASSOCIATIONs or groups must provide individual insurance requirements and pay the monthly fees for use of the building. The CITY has the right to refuse use of the building to any other user group.
ADDRESS OF SERVICE
Any notice to be served or sent to either CITY or ASSOCIATION may be served or sent to them at the following address:
City of Fortuna Mad River Girls Fastpitch Softball Association 621 11th Street Kelly Helms, President
P.O. Box 545 P.O. Box 4361
Fortuna, CA 95540 Arcata, CA 95518
DEFAULT OF ASSOCIATION
In the event that default shall be made by ASSOCIATION in any of the covenants herein agreed to be performed by ASSOCIATION, or if ASSOCIATION violates any of the ordinances of the City of Fortuna or any laws of the State of California or any Federal laws, CITY shall have the right to terminate this contract. CITY may exercise said option to terminate this contract after ten (10) days written notice to ASSOCIATION specifying wherein such default or breach is alleged to exist on the part of ASSOCIATION to correct such default or breach within ten (10) days after the date of such notice. All other notice or demand required by the law to terminate this contract is hereby expressly waived by ASSOCIATION. In the event this contract is so terminated, it shall be lawful for CITY immediately thereafter to remove all persons and property from the premises except as hereinafter provided.
TERMINATION BY CITY
CITY shall have the right to terminate and cancel this agreement in its entirety and all rights ensuing there from if any one or more of the following shall occur:
1. ASSOCIATION shall fail duly and punctually to pay fees and charges or to make any other payments required hereunder when due to CITY.
2. Failure of ASSOCIATION to maintain the quality of foods and the quality of service to the satisfaction of the CITY Director of Parks and Recreation, after service of a 10 day notice to correct the condition objected to.
3. Failure of ASSOCIATION to maintain the improvements, equipment and facilities in good condition and repair after service of a written notice to correct the condition objected to.
4. The happening of any act which results in the suspension or revocation of any licenses or permits necessary for the conduct and operation of the concession stand as herein authorized.
5. The transfer of the interest of the ASSOCIATION under this agreement by operation of law, or otherwise, to any other person, firm or corporation.
6. Any substantial change in the ownership or proprietorship of ASSOCIATION which, in the opinion of the CITY, is not in the best interests of CITY or the public.
7. ASSOCIATION shall fail to keep, perform and observe each and every promise, covenants, and agreement set forth in the Agreement on their part to be kept, performed or observed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ________ day of _________________________, 2022:
MAD RIVER GIRLS FASTPITCH SOFTBALL ASSOC. CITY OF FORTUNA By By
Kelly Helms Merritt Perry
Mad River Girls Fastpitch Softball Assoc. President City Manager