AMENDMENT #2 TO
MUSEUM OPERATION AGREEMENT
THIS AMENDMENT #2 TO MUSEUM OPERATION AGREEMENT ("Amendment") is made and entered into as of January 2024 ("Effective Date"), by and between the CITY OF FULLERTON, a municipal corporation (hereinafter referred to as "CITY"), and the FULLERTON MUSEUM CENTER ASSOCIATION, a non-profit organization, organized and existing under the laws of the State of California (hereinafter referred to as "ASSOCIATION"). CITY and ASSOCIATION are collectively referred to herein as "Parties".
WHEREAS, the Parties entered into a Museum Operation Agreement (the "Agreement") dated June 15, 2004 for the joint operation and programming of the Fullerton Museum Center located at located at 301 N. Pomona Avenue, in the City of Fullerton, County of Orange, State of California pursuant to the terms and conditions of the lease for the Premises between the CITY and the North Orange County Community College District (hereinafter referred to as the "District"); and WHEREAS, the Agreement had an initial term of ten (10) years, commencing July 1, 2004, with the option to extend the term of the Agreement for an additional ten (10) years upon mutual consent of the Parties; and
WHEREAS, the Parties amended Sections 7.01(b) 4., 7.01(b) 5. and 11.1 through Amendment #1 to the Agreement, dated October 16, 2010; and WHEREAS, on July 14, 2015, CITY's Director of Parks and Recreation approved ASSOCIATION's request for a ten (10) year extension of the Agreement, through July 1, 2024; and
WHEREAS, while the Parties previously had differing opinions regarding the validity of such extension, the City Council now desires to ratify such extension; and WHEREAS, operations and programming for the Museum are exclusively handled by ASSOCIATION;
WHEREAS, CITY and Museum wish to have the term of this Agreement terminate simultaneously with the Lease Agreement between the District and the CITY; and WHEREAS, the Parties desire to amend the Agreement to reflect their current and intended respective rights and obligations.
NOW, THEREFORE, the Parties agree as follows:
1. CITY and ASSOCIATION agree that there are no unfulfilled obligations under the Agreement.
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Amendment #2
Paragraph 2.2 shall be deleted in its entirety and replaced as follows:
a. The term of this Agreement shall expire on December 31, 2028 unless as it may be earlier terminated as provided herein.
Paragraph 3.02 shall be deleted in its entirety and replaced as follows:
3.01 Exhibit Property
Permanent exhibit objects obtained through donation or purchase by the ASSOCIATION are to remain ASSOCIATION's property, subject to provisions contained in Article 9.
4. Article 4 (Use) shall be deleted in its entirety and replaced as follows:
4.01 Permitted Use of Premises
ASSOCIATION is authorized to use the Premises to manage, operate, maintain, and provide diverse exhibitions and education programs in the humanities, history, cultural and fine arts, and sciences for the primary benefit of the residents of the City of Fullerton and further to the greater Orange County, and for fundraising efforts for the Museum, including fundraising events for the benefit of the Museum, held by third parties.
ASSOCIATION shall not use the Premises for any other purpose without CITY's prior written consent. ASSOCIATION shall not use the Premises or any portion thereof for any illegal or unlawful purposes and will not cause or permit a nuisance to be created or maintained therein.
4.02 Use of Downtown Plaza
ASSOCIATION acknowledges and agrees that use of the Downtown Plaza requires prior approval from the CITY in accordance with this section. CITY agrees to reserve the Downtown Plaza for ASSOCIATION's use on dates that have been agreed upon in advance by CITY and ASSOCIATION, provided that ASSOCIATION complies with the requirements of this section.
To use the Downtown Plaza for a Museum event, ASSOCIATION shall obtain a Parks & Recreation rental permit at least thirty (30) days prior to the event. CITY agrees to waive rental fees, including alcohol and amplified music fees, for Museum events. ASSOCIATION agrees to pay all other event-related Notwithstanding the foregoing, ASSOCIATION acknowledges and agrees that any use of the Downtown Plaza by the CITY will take priority over the use of such space for Museum events. CITY and ASSOCIATION agree to meet frequently, at least once a month, to discuss and agree to scheduling for the Plaza.
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4.03 Exhibits
(a) ASSOCIATION shall have control over selection of exhibits, consistent with the mission of the ASSOCIATION. ASSOCIATION shall also be responsible for the interior design, exhibit design, and decoration of the interior of the Museum building as appropriate for the accommodation of the exhibits.
(b) ASSOCIATION may establish a permanent collection focused specifically on the subject of Leo Fender and his historical ties t Fullerton. ASSOCIATION may exhibit items from the permanen collection as part of a Leo Fender Gallery.
4.04 Fundraising
ASSOCIATION shall be solely responsible for soliciting corporate and other private funding and general financial support to support the mission of the Museum, and agrees to promote public awareness, membership, participation and community support for the Museum.
Article 5 (Personnel) shall be deleted in its entirety and replaced as follows:
ASSOCIATION may hire employees and independent contractors to serve as employees or independent contractors of ASSOCIATION at ASSOCIATION's sole cost and expense. ASSOCIATION shall be solely responsible for the payment of all wages, salaries and benefits for its employees and independent contractors, including any required withholdings, and any and all premiums, contributions and taxes required by law, including, but not limited to, workers' compensation insurance, unemployment compensation, and disability insurance.
Article 6 (Maintenance, Repairs and Capital Improvements) shall be deleted in its entirety and replaced as follows:
6.01 Building Maintenance
CITY will provide, at its sole cost and expense, any and all necessary repairs, maintenance and replacements to keep the building, and landscaping within the Premises, in good order, condition and repair and in compliance with all applicable laws, including, but not limited to, the replacement, repair and maintenance of the structural portions of the Museum, the roof of the Museum, and all Museum systems including the Heating, Ventilation, and Air Conditioning ("HVAC") system, the plumbing, electrical and mechanical systems, and paving, whether capital or non- capital.
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6.02 Exhibition and Gallery Space Maintenance
ASSOCIATION will provide, at its sole cost and expense, any and all necessary repairs, maintenance and replacements of the gallery spaces associated with the ASSOCIATION's exhibits, including, but not limited to, floors, and gallery lighting, to the extent necessary due to ASSOCIATION's use of such spaces.
6.03 Custodial Services
CITY will provide custodial maintenance for the Museum four (4) days per week. Custodial maintenance will consist of cleaning restrooms, emptying trash, dusting, sweeping and vacuuming, as deemed necessary by CITY staff. Further, CITY will buff the floors of the exhibit space one (1) time after the conclusion of each exhibit. If ASSOCIATION requests additional services beyond the services set forth in this section, such additional services will be at ASSOCIATION's sole cost. CITY will invoice ASSOCIATION following the provision of such additional services.
ASSOCIATION shall pay an invoice for additional services within thirty (30) days of the date of such invoice.
6.04 Utilities
CITY will be responsible for and pay all charges for water, sewer, trash, electricity and gas supplied to the Museum.
7. Paragraph 7.01 shall be deleted in its entirety and replaced as follows:
7.01 Fees
In exchange for ASSOCIATION's use of the Premises to provide exhibitions and education programs for the community, ASSOCIATION may use the Premises for no cost. CITY will not provide any funding to ASSOCIATION under this Agreement.
Sections 8.02, 8.03, 8.04, and 8.05 of Article 8 (Indemnity and Insurance) shall be deleted in their entirety and replaced as follows:
8.02 Insurance
(a) ASSOCIATION shall procure and maintain throughout the duration of this Agreement, insurance against claims for injuries to persons or damages to the Premises which may arise from or in connection with ASSOCIATION's operations, occupancy of and use of the Premises.
ASSOCIATION shall provide current evidence of the required Museum Operation Agreement
Amendment #2
insurance in a form acceptable to the CITY and shall provide replacement evidence for any required insurance which expires prior to the completion, expiration or termination of this Agreement.
Nothing in this section shall be construed as limiting in any way, the indemnification obligations set forth in this Agreement or the extent to which ASSOCIATION may be held responsible for payments of damages to persons or Premises.
Minimum Scope and Limits of Insurance.
(1) Commercial General Liability Insurance.
ASSOCIATION shall maintain commercial general
liability insurance coverage in a form at least as broad as Insurance Services Office Form CG 00 01 covering
CGL on an "occurrence" basis, including products and
completed operations, property damage, bodily injury,
and personal & advertising injury with limits no less
than $2,000,000 per occurrence. If a general
aggregate limit applies, either the general aggregate
limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
(2) Workers' Compensation and Employers' Liability
Insurance. ASSOCIATION shall maintain workers'
compensation insurance as required by the State of
California, with Statutory Limits, and Employers
Liability Insurance with limits of no less than
$1,000,000 per accident for bodily injury or disease.
(3) Property Insurance. ASSOCIATION shall maintain
property insurance against all risks of loss to any tenant improvements or betterments, at full replacement cost
with no coinsurance penalty provision.
(4) Host Liquor Liability. ASSOCIATION shall maintain a host liquor liability policy with a limit of not less than $1,000,000 per occurrence. If such insurance contains
a general aggregate limit, it shall apply separately to the Agreement or shall be twice the required
occurrence limit. This coverage is not required if
ASSOCIATION will not sell, serve or distribute alcohol
beverages on or from the Premises.
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If ASSOCIATION maintains broader coverage and/or higher limits than the minimums shown above, CITY requires and shall be entitled to the broader coverage and/or the higher limits maintained by ASSOCIATION. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to CITY.
(ii) Other Insurance Provisions. The insurance policies shall contain or be endorsed to contain the following provisions:
(1) Additional Insured Status
The CITY, its officers, officials, employees, and
volunteers are to be covered as additional insureds on
the CGL policy 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. General liability coverage can be provided
in the form of an endorsement to the ASSOCIATION's
insurance (at least as broad as ISO Form CG 20 10).
(2) Primary Coverage
For any claims related to this Agreement,
ASSOCIATION's insurance coverage shall be primary
insurance coverage at least as broad as ISO CG 20 01
04 13 as respects 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
ASSOCIATION's insurance and shall not contribute
with it.
(3) Legal Liability Coverage
The property insurance is to be endorsed to include
Legal Liability Coverage (ISO Form CP 00 40 04 02 or
equivalent) with a limit equal to the replacement cost of the leased property.
(4) Notice of Cancellation
Each insurance policy required above shall provide
that coverage shall not be canceled, except with notice to the CITY.
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(iii) Waiver of Subrogation. ASSOCIATION hereby grants to CITY a waiver of any right to subrogation which any insurer of said ASSOCIATION may acquire against the CITY by virtue of the payment of any loss under such insurance. ASSOCIATION
agrees to obtain any endorsement that may be necessary to subrogation endorsement from the insurer.
(iv) Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A: VII, unless otherwise acceptable to the CITY.
(v) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the CITY. The CITY may require ASSOCIATION to purchase coverage with a lower retention or provide proof of ability to pay losses and related
investigations, claim administration, and detense expense:
within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or CITY.
(vi) Verification of Coverage. ASSOCIATION shall furnish the CITY with original Certificates of Insurance including all required amendatory endorsements (or copies of the
pplicable policy language effecting coverage required by thi ect and a copy of the Declarations and Endorsemer
Page of the CL policy listing all policy endorsements to CITY before occupying the premises. However, failure to obtain the required documents prior to the work beginning shall not waive ASSOCIATION's obligation to provide them. The CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
(vii) Special Risks or Circumstances. CITY reserves the right to modify these requirements at any time, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
(b) CITY shall maintain, as part of its property insurance program, All Risk Property Insurance for the Premises, which is equivalent to coverage maintained for other CITY property.
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9. Section 9.02(b) shall be deleted in its entirety and replaced as follows:
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. ASSOCIATION shall vacate the Premises and deliver possession thereof to the CITY, including returning all keys and combinations to the CITY.
2. ASSOCIATION shall return to CITY possession of all CITY's personal property.
3. CITY may, at its option, choose other remedies available herein or available by law.
10. Section 10.02 (Right of Inspection) shall be deleted in its entirety and replaced as follows:
10.02 Right of Entry
CITY and its officers, employees, agents and representatives shall have the right to enter the Premises upon seventy two (72) hours notice to ASSOCIATION. CITY and ASSOCIATION shall each have full access to the entire Premises, with the exception of the gallery spaces associated with ASSOCIATION's exhibits. CITY agrees that access to the gallery spaces associated with ASSOCIATION's exhibits is limited to ASSOCIATION and its officers, employees, agents and volunteers, unless ASSOCIATION grants CITY permission to access such spaces, which permission shall not be unreasonably withheld. Notwithstanding the foregoing, ASSOCIATION agrees that CITY may access the gallery spaces and any portion of the Premises in the event of an emergency, as determined by CITY, or to make emergency repairs, without permission or notice to ASSOCIATION.
11. ASSOCIATION acknowledges and agrees, consistent with Section 2.02(b) of the Agreement, that the Agreement is conditioned upon the CITY maintaining in effect a lease of the Premises from the District. If the CITY does not maintain in effect a lease of the Premises from the District, this Agreement may be terminated by either party without further rights against or liability to the other.
12. All terms not defined herein shall have the same meaning and use as set forth in the Agreement.
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13. All other terms, conditions, and provisions of the Agreement not in conflict with this Amendment shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first above written.
CITY OF FULLERTON FULLERTON MUSEUM CENTER
A Municipal Corporation ASSOCIATION
Meet Buyer
Eric Levitt
City Manager President
ATTEST
Lucinda Williams, City Clerk
APPROVED AS TO FORM
Richard D. Jones, City Attorney
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