MUSEUM OPERATION AGREEMENT
THIS OPERATION AGREEMENT is made and entered into this
15' day of June, 2004, by and between the CITY OF FULLERTON, a municipal corporation (hereinafter referred to as "CITY") and the FULLERTON MUSEUM CENTER ASSOCIATION, a non-profit 501 (c) 3 organization, organized and existing under the laws of the State of California, and the United States Internal Revenue Service (hereinafter referred to as "ASSOCIATION").
R-E-C-I-T-A-L-S
WHEREAS, on March 7, 1975, CITY and ASSOCIATION entered into an Operation Agreement for the Fullerton Museum Center (hereinafter referred to as the "Museum") on that certain real property located at 301 North Pomona Avenue, Fullerton, California (hereinafter referred to as the "Premises"); and
WHEREAS, said Operation Agreement was extended for a five (5) year term on May, 1979 and subsequently amended on October 18, 1979, November 2, 1982, April 5, 1983, June 3, 1986, and October 6, 1998; WHEREAS, other agreements are being entered into
contemporaneously herewith between the CITY and the North Orange County Community College District (hereinafter referred to as the "District") relative to the lease of the Premises; and
WHEREAS, CITY desires to appoint ASSOCIATION as its agent to jointly program and operate the Museum pursuant to the terms and conditions of the lease between CITY and District;
NOW THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
ARTICLE 1
PRELIMINARY MATTERS
1.01 Definitions
As used in the Agreement, the following terms shall have the following meanings:
(a) "Board" means the Board of Trustees of the ASSOCIATION. (b) "Museum" means the real property commonly known as the Fullerton Museum Center, located at 301 N. Pomona Avenue, Fullerton CA 92832. (c) "Director" means the Supervisory staff person retained by the CITY to manage and operate the Museum Center.
(d) "CITY Clerk" means the CITY Clerk of the CITY of Fullerton. (e) "CITY" means the CITY of Fullerton, California, a municipal corporation of the State of California.
(f) "CITY Attorney" means the CITY Attorney of the CITY. (g) "CITY Council" means the CITY Council of the CITY.
(h) "CITY Manager" means the CITY Manager of the CITY.
(i) "Fiscal Year" means July 1 through June 30.
()) "ASSOCIATION" means the Fullerton Museum Center Association, a California non-profit public benefit corporation.
(k) "Fee Resolution" means the CITY of Fullerton document establishing rental fees and use guidelines for citizen and businesses, and other organizational use of public facilities.
1.02 Status of ASSOCIATION
(a) By its execution of the Agreement, ASSOCIATION warrants that it is duly incorporated under the laws of the State of California and that true and correct copies of its Articles of Incorporation (EXHIBIT A) and Bylaws (EXHIBIT B) and a true and correct listing of ASSOCIATION'S trustees and officers and their terms of office (EXHIBIT C), certified as such by the ASSOCIATION's Secretary, have been filed with the CITY Clerk.
(b) By its execution of the Agreement, CITY accepts and agrees to the organization of the ASSOCIATION as set forth in the aforementioned Articles of Incorporation and Bylaws.
1.03 Compensation of Board Members and Meetings
(a) The members of the Board shall serve without compensation other than reimbursement for expenses incurred by them in the course of the performance of services for the ASSOCIATION when authorized by the Board and in conformance to ASSOCIATION Bylaws.
(b) Regular meetings of the Board are subject to the bylaws of ASSOCIATION.
1.04 Changes in Directors and Officers, Articles and Bylaws ASSOCIATION shall notify the CITY Clerk within 30 days of any change in the membership of the Board and any change in the officers of ASSOCIATION. Any amendment of ASSOCIATION's Articles of Incorporation or Bylaws shall be filed with the CITY Clerk.
1.05 CITY Representation on the Board
The CITY Manager or his designated representative shall be a liaison to the ASSOCIATION Board and shall participate in the discussions of the Board to the same extent as any member of the Board. The ASSOCIATION shall give the CITY Manager or his designated representative notice of all meetings of the Board, which notice shall include all relevant materials. The CITY Council shall have one designated representative on the Board. This representative shall have the same authority to make, second, or vote on motions at the meetings of the Board.
1.06 CITY Residents on the Board
A majority of the Board shall be residents of Fullerton, CA. If the number of Fullerton, CA residents become less than a majority, the next member appointed to the Board shall be a resident of Fullerton, ARTICLE 2
TERM
2.01 Termination of Prior Agreements
The Operation Agreement dated October 6, 1998, is hereby canceled effective July 1, 2004.
2.02 Term of Agreement
(a) The terms of the Agreement shall be for ten (10) years, effective July 1, 2004. CITY and ASSOCIATION shall have the option of extending the Agreement for an additional ten years under the same terms and conditions contained herein by mutual consent of both parties. This Agreement may otherwise be terminated at an earlier date as herein provided.
(b) Notwithstanding any other provision of this Agreement to the contrary, this Agreement is conditioned upon CITY obtaining and maintaining in effect a lease of the premises from District, otherwise this Agreement may be terminated by either party without further rights against or liability to the other.
ARTICLE 3
PERSONAL PROPERTY
3.01 Loaned Property
All personal property located at the Center, or otherwise reserved for Center purposes, or donated to the ASSOCIATION for Center purposes, shall become CITY property. Said personal property shall include, but not be limited to, furnishings and equipment. property for exhibits or temporary ASSOCIATION use shall not become CITY property under these terms.
3.02 Care of Personal Property
(a) CITY shall maintain, at its expense, all equipment, furnishings and trade fixtures required for maintenance and operation of the Center, including, but not limited to, property loaned to the CITY by the ASSOCIATION, reasonable wear and tear excepted.
(b) CITY shall not sell or otherwise dispose of any property loaned to it by the ASSOCIATION except by returning same to the CITY.
CITY shall return said property to the ASSOCIATION upon termination of the Agreement. CITY shall pay ASSOCIATION the reasonable market value of any property not returned.
(C) ASSOCIATION shall not sell or otherwise dispose of any property loaned to it by the CITY except by returning same to the ASSOCIATION. ASSOCIATION shall return said property to the CITY upon termination of the Agreement. ASSOCIATION shall pay CITY the reasonable market value of any property not returned.
(d) All property or improvements obtained through donations or purchase by the ASSOCIATION are to be registered as CITY property at the end of the fiscal year in which the property was obtained.
3.03 Exhibit Property
Permanent exhibit objects obtained through donation or purchase by the ASSOCIATION are to remain ASSOCIATION property, subject to provisions contained in Article 9.
ARTICLE 4
USE
4.01 General Use
(a) The CITY shall have authority and shall be financially responsible for all operations at the Center, except as otherwise provided herein.
(b) It is the intention of the CITY and the ASSOCIATION that the Center be operated in a manner consistent with the guidelines of the American Association of Museums.
(C) The CITY and the ASSOCIATION shall operate the Center for the public under the name of the "Fullerton Museum Center."
4.02 Specific Operations and Programming
(a) Prior to March first (Ist) of each calendar year of the Term, an exnibit and programs plan for the following fiscal year shall be prepared by the ASSOCIATION in conjunction with the CITY Council's annual consideration of funding.
(b) CITY and ASSOCIATION shall jointly pursue regular promotion of all programs including but not limited to press releases, public service announcements, and notices to school districts. (C) In addition to normal Center operations, ASSOCIATION may conduct or permit the following activities at the Center:
(1) Activities, including but not limited to rentals and special events, designed to raise funds for the benefit of the Center or promote Center interests.
(2) Meetings of persons involved in Center and ASSOCIATION activities.
(3) The operation of a museum store pertaining to Center exhibits and programs or otherwise having artistic,
scientific, cultural or historical interest.
(4) Food service and/or catering to accommodate all activities including, but not limited to, all programs and special events.
(5) The licensing of the Center by the State of California for the sale of alcoholic beverages as allowed by the Grant Deed, the State of California Alcohol and Beverage
Control, and applicable CITY codes.
(d) In addition to normal Center operations, CITY may conduct or permit the following activities at the Center:
(1) Activities, including but not limited to rentals and special events, designed to raise funds for the benefit of the Center or promote Center interests.
(2) Meetings of persons involved in Center or CITY activities. (3) Food service and/or catering to accommodate all activities including, but not limited to, all programs and special events.
(4) Rental of the facility to approved individuals or
organizations as outlined in the CITY's fee resolution.
4.03 Exhibits
(a) ASSOCIATION shall have control over the selection of exhibits, consistent with the mission of the Association. CITY staff shall coordinate and advise ASSOCIATION on exhibit selection. Exhibit display is subject to the Right of First Refusal Policy (EXHIBIT D).
Appropriate CITY staff, in coordination with the ASSOCIATION shall be responsible for the interior design, exhibit design, and decoration of the buildings at the Center as appropriate for the accommodation of exhibits.
(b) ASSOCIATION shall provide continuous programming, consistent With the museum's mission, with at least four (4) exhibitions annually at Museum. Working with CITY staff, ASSOCIATION shall be responsible for the investigation of suggested exhibitions and programs, final review and selection of exhibitions, programs, and activities. Exhibits and programs are to be produced consistent with the Museum's stated mission.
(c) The ASSOCIATION shall be allowed to establish a permanent collection focused specifically on the subject of Leo Fender and his llstorical ties to Fullerton. The Association may exhibit the items er dallery rom the permanent collection as part of a Leo Fender Gallery. All permament collection acquisitions are subject to prior approval by the Museum Director, or his designee.
4.04 Fund Raising
(a) ASSOCIATION agrees to solicit corporate and other private funding and general financial support to support the mission of the Museum, and to promote public awareness, membership, participation and community support for the Museum.
(D) ASSOCIATION agrees to implement an annual fund raising program to support exhibitions and educational programs. CITY staff shall provide support, however, it shall be the responsibility of the ASSOCIATION's Board of Directors for the success of the annual fund raising activities.
(C) ASSOCIATION may contract with a person or persons for fund raising purposes, subject to conditions described in Article 5, Section 5.01 (b). The position shall coordinate with CITY staff at all times.
ARTICLE 5
PERSONNEL
5.01 Employment Practices
(a) Except as otherwise provided herein, CITY shall be responsible for the terms and conditions of employment of Center staff including without limitation, all wages, salaries, benefits, termination's, and expenses for any claims or liability arising out of the CITY's employment practices. Under no circumstances shall an employee of the CITY be considered an ASSOCIATION employee.
(b) Except as otherwise provided herein, ASSOCIATION may employ independent contractors, upon approval of CITY, to perform "non- regular" duties associated with the ASSOCIATION's responsibilities as described herein. All fees and expenses for independent contractors are the responsibility of the ASSOCIATION. Under no circumstances shall an independent contractor for the ASSOCIATION be considered an employee of the CITY. Any and all independent contractors utilized by the ASSOCIATION shall be required to conform with the Standard Insurance Requirements as established by the Risk Management division of the CITY. ASSOCIATION shall be responsible for ensuring that appropriate insurance is in evidence and has been approved by CITY prior to the commencement of any work by independent contractors.
(c) ASSOCIATION shall comply with all applicable Federal, State, and local laws, rules, and guidelines in regards to all recruitment, contracts, supervision, evaluation, and termination in all aspects of contracting, including, but not limited to:
(1) obtaining, at its own expense, all necessary permits and licenses; giving all necessary notices; paying all fees required by law; preserving the public health and safety; and, providing copies of all such permits and licenses to the CITY; and, maintaining all appropriate permits and licenses during the term of the employment.
(2) not engaging in discrimination in hiring, selection, retention, promotion or treatment of any person employed by the ASSOCIATION as a result of the Agreement. Discrimination means any act that unlawfully differentiates treatment intended or unintended, based on age, physical or mental disability, race, creed, color, religion, gender, marital status, or national origin.
(C) ASSOCIATION shall carefully select and train its independent contractors in a manner consistent with generally accepted museum standards and practices.
(d) ASSOCIATION shall not knowingly allow any independent contractor, who is under the influence of alcohol or illegal substance while performing his duties, on the premises. Nor shall the ASSOCIATION continue the employment of a contractor determined to be dishonest or incompetent, such determination to be done in accordance with State and Federal employment laws.
5.02 Center Director
Agreement. CITY shall retain the authority to employ, terminate, evaluate and otherwise supervise the Center Director.
ARTICLE 6
MAINTENANCE, REPAIRS AND CAPITAL IMPROVEMENTS
6.01 Water, Sanitation, and Utilities
During the term of the Agreement CITY shall provide for water and sanitation services for the Center.
6.02 Routine Maintenance and Repairs
(a) CITY shall operate, maintain and manage the Center in a competent and efficient manner comparable to other well-managed and well-maintained operations of a similar nature. CITY shall maintain the Center in a safe, clean, wholesome, and sanitary condition, and provide routine repairs as herein required.
(b) CITY shall provide landscape, tree, preventative, and custodial maintenance service for the Center as necessary to maintain the facility and grounds in a safe, clean, sanitary and attractive condition at all times.
6.03 Capital Maintenance and Repairs
(a) CITY shall be responsible for all capital maintenance and repairs of the Center, including, but not limited to, structural components, roof, electrical system (excluding fixtures), main water lines, dry rot, fungus, and termite damage, gas lines, sidewalks, plumbing system (excluding fixtures), main electrical lines (excluding fixtures), and parking lot.
(b) CITY shall consider and perform needed capital maintenance and repairs in accordance with CITY's approved procedures for handling capital items and/or emergency situations.
6.04 Waiver
ASSOCIATION waives the right to make repairs at the expense of CITY and the benefit of the provisions of Sections 1941 and 1942 of the Civil Code of California relating thereto; and further agrees that it and when repairs, alterations, additions or betterment shall be made by it as required herein, it shall promptly pay for all labor done or materials furnished and shall keep the Center free and clear of any lien or encumbrance of any kind whatsoever.
6.05 Public Areas
(a) CITY shall maintain or cause to be maintained, including repair and replacement as necessary, public areas serving the Center but outside the Center property, including, but not limited to public roadways and main utility systems.
(b) Any and all improvements to the Center shall be the property of CITY.
ARTICLE 7
FISCAL TERMS
7.01 Fiscal Terms
(a) Subject to conditions described herein, the following fiscal terms shall apply:
In addition to other responsibilities described herein, CITY shall e financially responsible for providing maintenance and repair o he building and grounds at a level to be determined by CITY building and ground ted toty antenge ate of bot CiTy AND ASSOCIATION Board of Trustees to the extent specified in ARTICLE 8, and utility services including telephone, water, gas, and electricity.
CITY shall be financially responsible for the annually approved costs of exhibition production, subject to approval by the CITY council. This annual amount includes, but not limited to, costs for shipping, signs, curatorial fees, postage office supplies, and any other related charges for the exhibitions and educational programs.
ASSOCIATION shall be financially responsible for supplementing any and all necessary exhibition and educational costs above and beyond the annual amount approved through the CITY's annual budget process.
ASSOCIATION shall be financially responsible for temporary exhibit and permanent collection insurance, membership expenses (including exhibit announcements and invitations), receptions, food service, museum store stock and expenses.
(b) Distribution of shared revenues shall be determined in accordance with the annual budget approved by the CITY COUNCIL.
Subject to conditions described herein, the following fiscal terms shall apply:
1. CITY shall retain all admission income revenues at an amount set by the CITY in accordance to CITY's annual
budget. Prior to approval of the CITY's annual budget,
the ASSOCIATION may request ticket income over and above said amount to support special programs or exhibits. All requests by the ASSOCIATION for admission income shall
require approval by the CITY Council.
2. CITY shall retain all education program income at an amount set by the CITY in accordance with the CITY's
annual budget. Prior to approval of the CITY's annual
budget, the ASSOCIATION may request education program
income over
educational programs.
for education income
Council.
3. CITY shall retain all income from rental of the facility as determined by the CITY fee resolution document.
4. ASSOCIATION shall retain all gross revenues from
membership and membership activities. prior to the enc
f each fiscal year of the term, ASSOCIATION shall pay t the CITY ten percent (108) of the gross membership
revenues to CITY, subject to any and all conditions
described herein.
5. ASSOCIATION shall retain all gross revenues from museum store sales to the ASSOCIATION.: Prior to the end of each fiscal year, ASSOCIATION shall pay to the CITY ten percent (108) of the gross museum store revenue to CITY, subject to any and all conditions described herein.
6. ASSOCIATION shall retain all income from membership
fundraising activities, subject to any and all conditions described herein.
7. ASSOCIATION shall retain all income from food service fundraising activities, excluding food service income
derived Irom the operation of the museum store, subject to any and all conditions described herein.
8. ASSOCIATION shall retain all income from endowment
fundraising activities, subject to any and all conditions described herein.
9. ASSOCIATION shall retain all interest income from
endowment fundraising activities, subject to any and all conditions described herein.
10 ASSOCIATION shall retain all income from fundraising pledges and/or donations, subject to any and all
conditions described herein.
11. CITY and ASSOCIATION shall consider under separate
agreement, any and all revenue received from grants. Said agreement shall recognize any and all terms and
restriction of said grant, and shall be subject to
conditions described herein.
(C) Admission ticket prices shall be set based on recommendation by the ASSOCIATION. All admission prices shall be subject to review and approval by CITY.
7.03 Annual Funding Procedures
Said amount of annual CITY funding shall be determined by CITY during it annual budget process.
7.04 Quarterly, Annual, and Other Reports
On or before March first (Ist) of each year, ASSOCIATION shall submit to the CITY Manager's representative:
(a) A complete set of financial statements for the preceding fiscal year which have been prepared by a certified public accountant approved by the CITY and in accordance with standards set forth by the American Institute of Certified Public Accountants; and, (b) A program plan for the ensuing fiscal year, including a proposed budget expenditures and expenses and exhibition schedule.
7.05 Financial Records
(a) ASSOCIATION shall keep, or cause to be kept, true, accurate and complete recoras, Including a general ledger, an income statement. and a balance sheet prepared in accordance with generally accepter accounting principles, such that relevant financial statements are generated on a monthly basis.
(b) All account books, statements, balance sheets and supporting documents shall be retained by ASSOCIATION for a period of four (4) years after the end of the accounting year to which they pertain.
7.06 Inspection and Audit
(a) At least every third (3rd) year thereafter, ASSOCIATION, at its sole expense, shall have its financial statements audited by an independent certified public accountant approved by the CITY and in accordance with standards set forth by the American Institute of Certified Public Accountants.
(b) Upon reasonable notice, CITY oI its designated representative shall have the right to review and/or audit all ASSOCIATION records, at CITY's sole expense.
ARTICLE 8
INDEMNITY AND INSURANCE
8.01 Indemnification
(a) ASSOCIATION agrees to hold harmless the CITY, its officers, agents, employees, and volunteers from all loss, cost, and expense arising out of any liability or claim of liability for personal injury, bodily injury to persons, contractual liability or damage to property sustained or claimed to have been sustained arising out of activities of the ASSOCIATION or those of any of its officers, agents, employees, or volunteers, whether such act is authorized by this Agreement or not. ASSOCIATION further agrees to waive all rights of subrogation against CITY. The provisions of this Article do not apply to any damage or loss caused by the sole negligence or willful misconduct of the CITY or any of its agents or employees. (b) CITY agrees to defend, indemnify, and hold harmless the ASSOCIATION, its officers, agents, employees, and volunteers from all loss, cost, and expense arising out of any liability or claim of liability for personal injury, bodily injury to persons, contractual liability or damage to property sustained or claimed to have been sustained arising out of activities of the CITY or those of any of its officers, agents, or employees, whether such act is authorized by this Agreement or not. CITY further agrees to waive all rights of subrogation against ASSOCIATION. The provisions of this Article do not apply to any damage or loss caused by the sole negligence or willful misconduct of the ASSOCIATION or any of its agents, employees, or volunteers.
8.02 Insurance Requirements
ASSOCIATION shall, throughout the term of this Agreement and at its own cost and expense, maintain a policy or policies of insurance to provide Fine Arts Property coverage for the agreed replacement costs of any and all exhibitions. Such insurance shall be kept in force at all times and shall be of sufficient limits and scope to meet the American Association of Museums accreditation standards and lender's requirements.
8.03 Acceptability of Insurers
All required insurance shall be placed with insurers acceptable to the CITY with current BEST'S ratings of no less than Bt, Class X.
All insurers shall be licensed by or hold admitted status in the State of California. At the sole discretion of the CITY, insurance provided by non-admitted or surplus carriers with a minimum BEST'S rating of no less than A- Class X may be accepted iF ASSOCIATION evidences the requisite need to the sole satisfaction of the CITY.
8.04 Verification of Coverage
ASSOCIATION shall furnish the CITY with certificates of insurance which bear original signatures of authorized agents and which reflect insurers names and addresses, policy numbers, coverage, limits, deductibles and self-insured retentions. Additionally, ASSOCIATION shall furnish certified copies of all policy endorsements required herein. The CITY reserves the right to require at any time complete, certified copies of any or all required insurance policies and endorsements.
8.05 Modifications and Waivers
Any modification or waiver of the insurance requirements herein shall only be made by mutual written agreement.
8.06 All Risk Property Insurance
(a) The CITY shall maintain, as part of its property insurance program, All Risk Property insurance for the Center, which is equivalent to coverage maintained for other CITY property, but excluding coverage for earthquake and flood losses, as part of CITY's property insurance package. Such insurance shall include coverage for the authorized improvements and betterments.
ASSOCIATION shall notify the CITY immediately upon completion of any and all significant improvements or betterments to the Center. (b) The CITY shall maintain responsibility for any deductibles on the All Risk Property insurance and for uninsured damage to the Center except when such damage or loss is caused by the sole negligence or willful misconduct of the ASSOCIATION, its directors, officers, employees, agents or volunteers.
ARTICLE 9
DEFAULTS AND REMEDIES
9.01 Nature of Default
Failure by either party to perform any term or provision of the Agreement shall constitute a material breach of the agreement.
Failure of the breaching party to remedy said breach within thirty (30) days lor earlier if required to ensure public health and safety), following notice to do so by the non-breaching party shall constitute a default. The foregoing notwithstanding, should the breach not be curable within said thirty (30) days, then the breaching party shall have a reasonable extension of time provided it has begun and diligently pursues to completion said cure.
9.02 Remedies
In case of default, the parties hereto may exercise any one or more of the following remedies:
(a) Io require the matter be settled by binding arbitration by giving the other party written notice of same. Within ten (10) working days of said written notice, each party shall select an Arbitrator associated with the American Arbitration Association or an otherwise certified Arbitrator qualified to mediate such matters, and those Arbitrators shall then select a third Arbitrator. The three (3) Arbitrators shall apply California law and shall provide written findings supporting their decision within thirty (30) days of the conclusion of the arbitration hearing(s). The prevailing party shall be reimbursed by the other party for all of its reasonable costs and attorneys' fees related to the arbitration. (b) To terminate the Agreement by tendering the other party, sixty (60) days advance written notice, which notice shall specify the effective date of termination and the default causing same.
Termination shall be available only as a remedy for default. Upon termination:
1. CITY shall have no further obligation to provide funding or other assistance to ASSOCIATION pursuant to the Agreement.
2. ASSOCIATION shall vacate the Center and deliver possession thereof to CITY, including returning all keys and combinations to the CITY.
3. ASSOCIATION shall return to CITY possession of all personal property.
4. All assets donated to the ASSOCIATION for Center purposes shall be delivered to the CITY to be held in trust for the donor or lender and used solely for the purpose for which the donation or loan was made. Assets from the Association
endowment fund or permanent collection shall be likewise used solely for the purpose for which the donation was made, including the option to distribute the remaining assets to a non-profit agency, museum, foundation, or corporation, which is organized and operated exclusively for charitable or education purposes and which has established it tax exempt status under Section 501 ° 3 of the Internal Revenue Code and which is qualified for exemption from taxation under Section 23701 (d) of the californi the California Revenue and Taxation Code.
5. ASSOCIATION within a reasonable amount of time shall submit a final accounting to the CITY, and a final settlement of funds, either due to or from the CITY, shall be made.
6. CITY may, at its option, choose other remedies available herein, or available by law.
(C) The rights and remedies of the parties are cumulative, and the exercise by either party of one or more such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies, as provided herein or by law, for the same default or any other default.
ARTICLE 10
GENERAL PROVISIONS
10.01 Representatives
'(a) All actions authorized to be taken by CITY pursuant to the Agreement, without specification in the Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of CITY The CITY Manager may, by written notice to
ASSOCIATION, designate any officer of CITY as his representative ith respect to any specified authority given to the CITY Manager b he Agreement, and in such event the actions of such officer withi the scope of such authority shall have the same effect as if taken by the CITY Manager.
(b) All actions authorized to be taken by ASSOCIATION pursuant to the Agreement, without specification in the Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of the ASSOCIATION by the Board or by such officer of ASSOCIATION as may be designated by resolution of the Board.
(C) The officers designated as representatives of CITY and ASSOCIATION pursuant to this section may, on behalf of the parties hereto, enter into such subordinate arrangements and agreements as are consistent with the terms and conditions of the Agreement.
10.02 Right of Inspection
The CITY shall have the right to enter and inspect the facilities at any and all reasonable times, provided said entry and inspection is not disruptive to operation of the Center.
10.03 Taxes
The ASSOCIATION shall not be responsible for property taxes, fees, or assessments levied against the premises by any governmental agency.
The CITY shall not be liable for any taxes, fees, licenses, or assessments arising out of ASSOCIATION's activities at the Center.
10.04 Notices
Notices (which includes, but is not limited to, requests, demands, approvals, statements, reports, acceptances, consents, and waivers) given by one party to the other shall be in writing and shall be deemed given when either personally delivered or when deposited in the postal system of the United States of America, first class mail, postage prepaid, to the following addresses or such other addresses as it may designate hereafter by notice:
(a) To CITY:
CITY Clerk
CITY of Fullerton
303 West Commonwealth Avenue
Fullerton, California 92832
(b) To ASSOCIATION:
President
Fullerton Museum Center ASSOCIATION
301 North Pomona Avenue
Fullerton, California 92832
10.05 Assignability
The rights and duties of the ASSOCIATION under the Agreement may not be assigned or delegated without the prior written approval of CITY.
10.06 Partial Invalidity
If any term, covenant, condition, or provision of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in no way be affected, impaired or invalidated thereby.
10.07 Interpretations
Any Index, Summary, and the captions of the articles and sections of the Agreement have been inserted for convenience in reading the Agreement and are neither a part of the terms of the Agreement nor in any way define, limit, construe or describe the scope or intent of any provision of the Agreement. Whenever required by the context of the Agreement, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neuter genders shall each include the other.
10.08 Waiver of Rights
(a) The failure or delay of either party to insist upon strict enforcement of any of the terms herein and the acceptance of any services or the payment of any money by either party shall not operate or be deemed a waiver of any provision of the Agreement or any right or remedy (including indemnity) that either party may have and shall not be deemed a waiver of any subsequent or other breach of any term herein.
(b) Any failure or delay by either party in asserting any of its party e tes tEphe to that cure and ninten any setons bye sier, proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
10.09 Entire Agreement
The Agreement, including any exhibits, schedules, riders and addenda attached hereto and forming a part hereof, supersedes any and all other agreements, either oral or in writing between the parties hereto; and constitutes the entire, complete and exclusive agreement of the parties hereto. Each party to the Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by either party, or anyone acting on behalf of either party, which are not embodied herein. No oral or other agreements, or modifications to the Agreement, including a waiver of this clause, shall be valid and enforceable unless in writing and signed by the parties hereto; and, any other attempted amendment shall be void.
10.10 Force Majeure
If CITY'S OI ASSOCIATION's performance of any covenant or term of the Agreement is altered, delayed, or prevented by some unforeseeable, extraordinary circumstance beyond the control of either party, then performance of said covenant or term shall be excused to the extent that said circumstances altered, delayed or prevented same; and, said failure to perform shall not relieve the other party hereto from the performance of any of its duties herein.
Said circumstances include, but are not limited to, acts of God, war, CIVil commotion, labor disputes, strikes, fire, flood or other casualty, shortages of labor or material, government regulation or restriction and weather condition.
10.11 Survival
All representations, warranties, and covenants to indemnify and hold harmless shall survive the termination of the Agreement.
10.12 Time of the Essence
Time is of the essence of each and every provision of the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement on the day and year first above written.
CITY OF FULLERTON
Felt le
Mike Clesceri, Mayor
ATTEST: FULLERTON MUSEUM CENTER
ASSOCIATION BOARD OF TRUSTEES
Boverty White, CITY Cleri residen
Beverlet pre
Sari due Nether.
Dani-Sue Dittmar, Secretary
APPROVED AS TO FORM:
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