HomeMy WebLinkAboutUkiah Valley Cultural and Recreation Center 2011-02-15; Amendment 6 2017-02-1500u. No, -Ab
CITY OF UKIAH AND UKIAH VALLEY CULTURAL AND RECREATION CENTER
MANAGEMENT AGREEMENT FOR THE ALEX RORABAUGH RECREATION CENTER
This Agreement ("Agreement") amends, restates and replaces all prior agreements between
the City of Ukiah ("City") and the Ukiah Valley Cultural and Recreation Center ("UVCRC"), including
amendment numbers 1-5, and is made and entered this ( �_t`"day of 2017 ("Effective
Date"), by and between the City, a California general law city ("City'), and the UVCRC, non-profit public
benefit corporation for operation of the Alex Rorabaugh Recreation Center ("ARRC") located at 1640
South State Street, Ukiah California.
Recitals
A. Under an Agreement for the Construction, Operation, Maintenance of a Gymnasium by and
between the Ukiah Unified School District and Ukiah Valley Cultural and Recreational Center,
dated 1- 15 It 7, , the UVCRC has a right of possession and use of the ARRC, a 21,000
square foot community recreation center which includes multipurpose rooms, gymnasium,
court yard, office space, and kitchen.
B. The City of Ukiah is experienced in operating community facilities and collaborative
recreation/leisure activities in the Ukiah Valley area.
C. The City and the UVCRC desire to take advantage of the City's experience in recreation/le sure
programming and facility management to ensure responsibility for the ARRC's operation
including its financial performance, while remaining in line with the ARRC's mission to engage,
inspire and mobilize people, programs, partners and funding—to provide a safe place,
especially for kids, to learn, play and recreate.
D. The parties believe they can maximize the programs offered and better control the expenses of
operating the ARRC if the City, using City employees, manages the operation of the facility.
E. The parties desire to set forth the terms and conditions of their relationship in this Agreement
with further details of the actual ARRC operations to be set forth in a Center Operating Plan.
F. The City and UVCRC commit themselves to work together in the spirit of partnership for the
success of the ARRC, subject to the terms and conditions of this Agreement, and to deal with
each other with fairness, respect, cooperation, and good faith in the operation of the ARRC and
performance of the Agreement. The City and UVCRC commit to promptly resolve disputes over
this Agreement and/or ARRC operations.
NOW THEREFORE, the parties agree as follows
Agreement
1. Parties to the Agreement
City is the City of Ukiah, 300 Seminary Avenue, Ukiah, California 95482, with its principal
contact for purposes of this Agreement as follows:
City Manager
300 Seminary Avenue
Ukiah, CA 95482
Phone: 707-463-6221
Fax: 707-463-6740
UVCRC is the Ukiah Valley Cultural and Recreation Center or Alex Rorabaugh Recreation Center
(ARRC) 1640 South State Street #1, Ukiah, California 95482, with its principal contact for
purposes of this Agreement as follows:
Board Member or his/her designee
ARRC
1640 South State Street #1
Ukiah, CA 95482
Phone: 707-462-8562
Fax:
2. Term
2.1 The term of this Agreement shall commence on 15 X2017 and terminate at midnight on
�� 2019, unless earlier terminated by eithe party as provided in Section 2.2. The
term of this Agreement shall be two (2) years. However, the parties may agree to extend the
Agreement for an additional two-year term or additional terms of any length to which they
agree in writing. Upon expiration of a term, this Agreement will continue on a month-to-month
basis, until either party gives notice of termination in writing not less than thirty (30) days in
advance of the proposed termination date.
2.2 In addition to the provisions of Section 5.6 below, 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 proposed termination date, unless City and UVCRC
mutually agree to a lesser time. Provided that such written request is timely made, termination
shall occur upon the specified termination date.
3. Management and Staffing
City and UVCRC agree to cooperatively manage and operate the ARRC as a successful recreation
center for the benefit of the public. A "Facilities Administrator" or other classification as
determined by the City, shall be employed by the City and responsible for all ARRC operations.
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The initial Center Operating Plan (COP) is attached to this Agreement and is incorporated into
this Agreement by this reference. The COP, among other things, details staff duties and
operating relationships. The parties hereby authorize the City of Ukiah City Manager ("City
Manager") and the UVCRC Board to modify in writing the COP from time to time as may be
necessary to facilitate efficient operations of the ARRC consistent with the intent of this
Agreement.
A Facilities Attendant shall be employed by the City and directly supervised by the Facilities
Administrator. The City shall provide the UVCRC with opportunities for meaningful and
substantial input on the ongoing performance of the Facilities Attendant. The Facilities
Administrator shall have operational authority for the management and operation of the ARRC.
The duties and responsibilities of the Facilities Administrator shall include, but not be limited to:
a. Managing the ARRC so that it is developed and maintained as a successful recreational
center.
b. Managing rental and use of the facility.
C. Preparing and administering the annual budget and work plan for development and
operation of the ARRC.
d. Preparing the progress reports and annual budget for the preceding fiscal year for
approval by the City Council.
e. Organizing, scheduling, and directing City employees, volunteers, and independent
contractors assigned to the ARRC.
f. Reporting on status of operations at the ARRC as requested, including, but not limited
to, providing reports intended for the City Council and UVCRC Board of Directors.
g. Performing all duties that are usual and customary and normally associated with the
position of a Facilities Administrator of a public recreation center.
Notwithstanding the parties' agreement to cooperatively manage and operate the ARRC, City
employees working at the ARRC are employed solely by the City, and the City retains all responsibilities
associated with their employment. UVCRC employees working at the ARRC are employed solely by the
UVCRC, and the UVCRC retains all responsibilities associated with their employment. The parties agree
to cooperate fully with each other in resolving any employment issues. The UVCRC agrees to
indemnify and hold the City, its agents, officers and employees harmless from any claim or damage
resulting from an employment matter involving an ARRC UVCRC employee acting within the scope of
employment. The City agrees to indemnify and hold the UVCRC, its agents, officers and employees
harmless from any claim or damage resulting from an employment matter involving a City employee
acting within the scope of employment. "Employment matter", as used herein means any claim or
liability arising out of the employer/employee relationship or which could be asserted by an employee
against his or her employer.
The ARRC staff for a joint event may be comprised of employees of both the City and the UVCRC
pending availability. It is acknowledged and agreed between the parties that to achieve the optimum
performance of the total ARRC staff, City employees may be directed to work at the ARRC on UVCRC
activities within the scope of this Agreement and UVCRC employees may be directed to work at the
ARRC on City activities within the scope of this Agreement. However, UVCRC shall have the exclusive
authority to oversee and direct the activities of its employees and volunteers and the City shall have
the exclusive authority to oversee and direct the activities of its employees and volunteers. The UVCRC
shall have no authority over or control the performance of City employees and the City and its
employees, including the Facilities Administrator shall have no authority over or control the
performance of UVCRC employees or volunteers.
The Facilities Administrator for the City and the UVCRC Board Member or his/her designee shall meet
periodically to evaluate ARRC operations and shall prepare no later than July 30th of each year and
present as soon as practicable thereafter an annual report on ARRC operations to the City Council and
the Board of Directors of the UVCRC. The report shall include user satisfaction data as well as data on
the financial performance of the ARRC. The Facility Administrator and Board Member may jointly
request assistance from the City and UVCRC staff in development of the annual report.
4. Grounds and Facilities
The UVCRC shall retain all of its right, title and interest, as such may appear in the grounds,
buildings, structures and all other improvements, and its equipment. Subject to approval of the
Facilities Administrator, certain equipment owned by the UVCRC may be used at the ARRC
provided however, any such equipment must be identified in writing attached to the COP and
the equipment must be clearly identifiable or marked as UVCRC property on the equipment
itself. Items must be identified in writing within thirty (30) days of the Effective Date.
The City and UVCRC agree that both parties shall continue joint use of the grounds, buildings,
equipment and other improvements at the ARRC in furtherance of this Agreement. The parties
shall jointly determine the most effective use of the ARRC grounds, buildings, equipment and
other improvements subject to the approval of the City's Community Services Administrator, or
such other individual designated in writing by the City Manager, in consultation with a Board
Member or his/her designee for the UVCRC.
5. Budget and Funding
5.1 The parties agree that it is the intent of the arrangement governed by this Agreement that
revenues generated by ARRC programs and usage will be sufficient to cover operating expenses
(including, but not limited to, maintenance and contributions to any capital improvement
reserves established in the budget). (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
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of the year last referenced. For example, "fiscal year 2008/09" means the period beginning July
1, 2008 and ending June 30, 2009).
In February of each year, the Facilities Administrator and UVCRC Board Member or
his/her designee shall develop budget assumptions related to the ARRC operating
budget for the following fiscal year.
Before March 15, or on another mutually agreed-upon date, the Facilities Administrator
and the UVCRC Board Member or his/her designee shall develop preliminary proposed
annual ARRC operating budget and work plan. The budget will include estimated costs
and revenue from rental and activities as well as agreed-upon capital improvement
reserves. The UVCRC may agree to the preliminary proposed ARRC operating budget
and work plan or terminate this Agreement subject to the notification provisions of
section 5.6.
The proposed annual budget and work plan and the latest progress report will be
included in the City Manger's Recommended Budget, which must be submitted to the
City Council no later than May 15 each year. Once the City Council has established the
annual operating budget, the UVCRC may agree to the ARRC operating budget or
terminate this Agreement subject to the notification provisions of section 5.6.
d. Once the annual budget and work plan is approved by the City Council, that annual
budget and work plan shall be implemented by the Facilities Administrator for the
upcoming fiscal year.
5.2 The City shall pay an agreed-upon amount for City programs held at the ARRC and other
identified usage including but not limited to rental of office space. The foregoing payments
shall be made quarterly to the ARRC revenue fund managed by the City of Ukiah and shall be
due by July 15, October 15, January 15 and April 15. City will provide detailed usage reports
along with the documentation of the payments to a UVCRC Board member or his/her designee.
5.3 The City and UVCRC may agree to a mid -year budget adjustment to the ARRC budget in special
circumstances including but not limited to, a significant unexpected expense affecting the ARRC
operations which could not be reasonably anticipated or controlled.
5.4 The City shall provide UVCRC with monthly reports on the operating position of the ARRC. Both
parties agree to maintain agreed-upon customer service standards and accessibility over the
course of the year, while recognizing that operations may change over the year in order to
meet financial objectives for ARRC operations.
5.5 As part of the annual budget and work plan adoption process, the parties will agree on a
method for separately accounting for fee-based activities and usage. Any net operating gain or
loss shall follow the procedures as set forth in the COP "Budgeting Section".
5.6 In the event that the UVCRC does not agree to the annual budget and work plan as approved by
the City Council, this Agreement shall terminate. The UVCRC will notify the City in writing that
this Agreement shall be terminated six months from the date of notification, or on another date
as agreed-upon by the parties. Distribution of net operating gain or loss shall be suspended
during the six-month notice period. Likewise, the UVCRC shall not be obligated to pay the
amount of revenue shortfalls, as described in section 5.5, during the six-month notice period.
The parties acknowledge and agree that such a termination will require a substantial amount of
time to accommodate ongoing obligations at the ARRC and to enable full separation of
responsibilities and obligation of the parties. The parties agree to cooperate reasonably with
one another in such an event to facilitate such a separation as expeditiously as possible.
Termination of this Agreement as provided in the Section (with each party bearing its own
costs) shall be sole remedy of the parties
6. Programing and Pricing
6.1 The City and UVCRC will agree upon programming and pricing as part of the annual budget and
work plan process. This includes rates for office rental and room rental.
6.2 The parties acknowledge that the scope of community services offered at the ARRC, including
youth, family, intergenerational, special event, and adaptive programming may evolve over
time.
6.3 It is intended that the annual City Council approval of the budget and work plan will authorize
the City manager to adjust prices and programming as needed in accordance with a City Council
adopted policy or directive.
7. Reserved Uses
7.1 In an effort to continue active fundraising and accommodate shared use agreements a series of
partnerships and reserved uses have been outlined. These reserved uses may change from
time to time. The changes or additions to these reserved uses will be agreed upon jointly
between the UVCRC and the City and will be documented appropriately.
The current "reserved uses" are set forth as follows:
"Exhibit B" Ukiah Unified School District:
Addendum to Agreement: Use of Property
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"Exhibit C" Ukiah Valley Cultural Recreational Center: Use of Property
8. Revenues and Marketing
8.1 The parties agree that Ukiah Valley residents are intended to be the primary beneficiaries of the
ARRC, although the ARRC will be available for the use of non-residents as well. To that end, the
parties desire to develop a marketing plan and activity program pricing structure that will
accomplish the foregoing goal and will provide adequate revenues to cover annual operating
expenditures. The parties also intend to jointly and/or individually seek grants or other sources
of funding which may be available to provide existing or expanded services and programs at the
ARRC. Both parties agree to cooperate fully, one with the other, in such endeavors.
8.2 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.
9. Audits, Record Retention and Inspection
The parties understand and agree that the City is a public entity and as such is 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.
Each party grants the other party, at the requesting party's expense, the right to conduct at any
reasonable time an audit and re -audit of the books, records and business conducted related to
this Agreement and observe the operation of the business so that the accuracy of the above
records and any of the invoices for services provided can be confirmed.
In the event of any dispute between the parties as to financial matters, the parties agree, as
their sole remedy, to mutually choose an independent auditor to conduct an investigation of
the disputed matter. If the parties are unable to mutually choose an independent auditor, each
party shall identify one auditor and those two auditors shall choose a third, independent
auditor to conduct the investigation. The auditor so named shall be deemed to have been
mutually chosen by the parties. If, as a result of the investigation of the mutually chosen
auditor, any adjustment in payment is required by either party, such payment shall be made
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within sixty (60) days of receipt of written demand for same. The decision of the mutually
chosen auditor shall be final and binding upon the parties.
10 Dispute Resolution
10.1 Operational Issues
Except as otherwise specifically set forth in this Agreement, any dispute concerning day to
day operational decisions in the implementation of this Agreement as further detailed in the
COP shall be resolved by the Community Services Administrator and the Executive Director of
the UVCRC. For any disputes which cannot be resolved by these individuals, either party may
request that the Ukiah City Manager resolve the dispute after first consulting with the UVCRC
Board President. The decision of the City Manager shall be final.
10.2 Other Issues
Should other disputes arise between the parties for which a dispute resolution mechanism or
remedy is not otherwise specifically set forth in this Agreement, and the parties are unable to
resolve such matters between themselves by negotiation after the complaining party has
provided the other party written notice of the complaint and a reasonable opportunity to cure
the problem, then such disputes shall be resolved through mediation. Both parties shall
participate in mediation for a minimum of a 60 -day period prior to taking the dispute through
the court process. In the event the dispute is not resolved through mediation then the item
shall be resolved in the courts of the County of Mendocino County in accordance with
applicable law and procedure, including any claims procedures that may be required by law
with respect to a general law city.
10.3 Termination Option
If either party seeks judicial redress of a dispute as set forth in section 10.2, that action shall
give either party the opportunity to terminate this Agreement by providing the other party six
months advance written notice of such desire to terminate. The action to terminate this
Agreement described in this section is not intended nor shall it adversely affect the process set
forth in section 10.2.
11 Indemnification
The City agrees to indemnify defend and hold harmless UVCRC, its agents, officer and
employees, from and against any and all liability, expense, including defense costs and legal
fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily
injury, death, personal injury, or property damage arising from or connected with City's
operations or its services under this Agreement, including any Worker's Compensation suits,
liability or expense, arising from or connected with services performed by or on behalf of the
City by any person pursuant to this Agreement. City's duty to indemnify UVCRC shall survive
the expiration or other termination of this Agreement.
11.1 The UVCRC agrees to indemnify, defend and hold harmless City, its agents, officer and
employees, from and against any and all liability, expense, including defense costs and legal
fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily
injury, death, personal injury, or property damage arising from or connected with UVCRC's
operations or its services under this Agreement, including any Worker's Compensation suits,
liability or expense, arising from or connected with services performed by or on behalf of the
UVCRC by any person pursuant to this Agreement. UVCRC's duty to indemnify City shall survive
the expiration or other termination of this Agreement.
12 Insurance
12.1General Requirements. Without limiting UVCRC's indemnification of City of Limiting City's
indemnification of UVCRC, UVCRC and City shall each provide and maintain at their own
expense throughout the term of this Agreement, the following insurance coverage:
(1) UVCRC shall provide insurance covering its operations under this agreement as further provided
below in subsection C?.:
(2) The City shall provide the following coverage under its Memorandum of Coverage with the
Redwood Empire Municipal Insurance Fund ("REMIF"):
a. During the term of this Agreement, the ARCC shall be insured against damage or loss to
the structure and its contents resulting from fire, lighting and other risks under
Redwood Empire Municipal Insurance Fund ("REMIF") memorandum of coverage
("MOC") excluding damage or loss resulting from flooding or earthquake. Such
coverage shall terminate upon termination of this Agreement. In the event of a loss or
damage to the ARRC, UVCRC agrees to comply with all MOC requirements, including,
but not limited to, the time and manner of reporting a covered event and paying from
the ARRC Operating fund by the UVCRC the portion of damage subject to the $10,000
deductible under the REMIF coverage. UVCRC agrees that City shall have no liability for
any damage or loss to the ARRC or its contents however caused, including, but not
limited to, the negligence of the City or its officers, agents, contractors, employees or
volunteers, is to the coverage afforded under the MOC.
b. Through REMIF, the City shall provide exclusive coverage for claims, damages, liability
and expense arising from events and coverage provided by the City shall be limited to
general liability, workers' compensation, and auto liability coverage available to the City
through REMIF.
C. For claims, damages, liability and expense not arising out of events and programs
conducted by the UVCRC at the ARRC, UVCRC shall provide the insurance specified in
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this subsection (3). This subsection shall also apply to the insurance the City is required
to provide under subsection (2).
Insurance provided by UVCRC and by City shall be provided by insurers satisfactory to City's Risk
Manager and satisfactory to the UVCRC's Board, respectively, and a certificate or other
evidence of coverage and certified copies of additional insured endorsements satisfactory to
City and UVCRC, respectively, shall be delivered to the City's Risk Manager and to the UVCRC
Board, respectively, before the effective date of this agreement. It is recognized that City
currently provides general liability, workers' compensation, and auto liability insurance
coverage through a combination of self-insurance, pooled coverage and purchased excess
insurance coverage. Such evidence of coverage shall specifically identify this Agreement and
shall contain the express condition that City or UVCRC, as applicable, is to be given at least
thirty (30) days advance written notice of any modification or termination of any program of
insurance. All such insurance provided by UVCRC or City shall be primary to and not
contributing with any other insurance maintained by the other party. With the exception of
workers' compensation insurance, all such insurance provided by UVCRC and by City shall name
"City of Ukiah" its elected officials, officers, employees, agents and representatives," "Ukiah
Valley Cultural and Recreation Center, its officers, employees, agents, and representatives," and
"Ukiah Unified School District," as additional insureds.
At all times during the term -of this Agreement, UVCRC and City shall provide and maintain the
following forms and amounts of insurance:
Liability
Comprehensive General Liability Insurance written on a commercial general liability
form or a comprehensive general liability form covering the hazards of premises -
operations, products/completed operations, independent contractors, advertising,
contractual, broad form of property damage, and personal injury with a combined single
limit of not less than Two Million Dollars ($2,000,000) per occurrence and an aggregate
limit of not less than Four Million Dollars ($4,000,000).
b. Workers' Compensation
Insurance in an amount and form to meet all applicable requirements of the Labor Code
of the State of California, including Employer's Liability.
C. Comprehensive Automobile Liability
Endorsed for all owned, non -owned, and hired vehicles with a combined single limit of
not less than Two Million Dollars ($2,000,000) per accident.
d. Failure to Comply
Failure on the part of UVCRC or City to procure or maintain required insurance shall
constitute a material breach of contract upon which City or UVCRC, respectively, may
immediately terminate this Agreement. Notwithstanding this requirement, in the even
that UVCRC or City fails to procure or keep in effect at all times the insurance coverage
required herein, city or UVCRC, respectively, may in its discretion procure said insurance
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on behalf of UVCRC or City, respectively, and charge UVCRC or City, respectively, the full
cost of the insurance and administration costs.
12.2The parties agree and will ensure that all staff are trained in all safety related matters as
required by law or appropriate for the services provided at the ARRC. This includes both
California and Federal criminal history checks as part of pre-employment screening.
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 Ukiah
300 Seminary Avenue
Ukiah, CA 95482
Phone: 707-463-6200
Fax: 707-463-6740
With a copy to:
City Clerk
City of Ukiah
300 Seminary Avenue
Ukiah, CA 95482
Phone: 707-463-6200
Fax: 707-463-6740
In the case of notices to be given to the UVCRC, notice shall be addressed as follows:
Board President
Ukiah Valley Cultural and Recreation Center
1640 South State Street #1
Ukiah, CA 95482
Phone: 707- 462-8562
Fax:
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Either party may change its address or other contact information by giving notice in writing to the
other party as specified in this section.
14. Amendments
This Agreement shall only be amended by a writing signed by both parties after approval by the
City Council and UVCRC Board of Directors.
15. 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. This provision does not affect any
obligation of the City for payment of funds attributable to a fiscal year for which an annual
budget has been approved.
16. Miscellaneous Provisions
16.1 Good Faith and Cooperation
The City and UVCRC agree that it is in their mutual best interest and in the best interest of the
public that the ARRC 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.
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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 UVCRC and the City 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 UVCRC or 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 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 ARRC under this Agreement are employees solely
of the party which hired such personnel for purposes of workers' compensation liability and for
purposes of receiving all other types of employee 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 furnishing all other employee benefits to
any personnel hired by them.
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IN WITHNESS, WHEREOF, the UVCRC and the City have executed this Agreement as of the day and
year first above written.
Approved as to form:
By: '�--
Daviport
City Attorney
UVCRC `
By:
Name: / r�I�GGt b' HCS$
City of Ukiah
By.
Sage Sangi orm
City Manager
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CITY OF UKIAH AND UKIAH VALLEY CULTURAL AND RECREATION CENTER
MANAGEMENT AGREEMENT FOR THE ALEX RORABAUGH RECREATION CENTER
This Agreement ("Agreement") amends, restates and replaces all prior agreements between
the City of Ukiah ("City") and the Ukiah Valley Cultural and Recreation Center ("UVCRC"), including
amendment numbers 1-5, and is made and entered this 1,5 --day of — 2017 ("Effective
Date"), by and between the City, a California general law city ("City'), and the U RC, non-profit public
benefit corporation for operation of the Alex Rorabaugh Recreation Center ("ARRC") located at 1640
South State Street, Ukiah California.
Recitals
A. Under an Agreement for the Construction, Operation, Maintenance of a Gymnasium by and
between the Ukiah Unified School District and Ukiah Valley Cultural and Recreational Center,
dated (5 _
d- , the UVCRC has a right of possession and use of the ARRC, a 21,000
square foot community recreation center which includes multipurpose rooms, gymnasium,
court yard, office space, and kitchen.
B. The City of Ukiah is experienced in operating community facilities and collaborative
recreation/leisure activities in the Ukiah Valley area.
C. The City and the UVCRC desire to take advantage of the City's experience in recreation/le sure
programming and facility management to ensure responsibility for the ARRC's operation
including its financial performance, while remaining in line with the ARRC's mission to engage,
inspire and mobilize people, programs, partners and funding —to provide a safe place,
especially for kids, to learn, play and recreate.
D. The parties believe they can maximize the programs offered and better control the expenses of
operating the ARRC if the City, using City employees, manages the operation of the facility.
The parties desire to set forth the terms and conditions of their relationship in this Agreement
with further details of the actual ARRC operations to be set forth in a Center Operating Plan.
The City and UVCRC commit themselves to work together in the spirit of partnership for the
success of the ARRC, subject to the terms and conditions of this Agreement, and to deal with
each other with fairness, respect, cooperation, and good faith in the operation of the ARRC and
performance of the Agreement. The City and UVCRC commit to promptly resolve disputes over
this Agreement and/or ARRC operations.
NOW THEREFORE, the parties agree as follows
Agreement
1. Parties to the Agreement
City is the City of Ukiah, 300 Seminary Avenue, Ukiah, California 95482, with its principal
contact for purposes of this Agreement as follows:
City Manager
300 Seminary Avenue
Ukiah, CA 95482
Phone: 707-463-6221
Fax: 707-463-6740
UVCRC is the Ukiah Valley Cultural and Recreation Center or Alex Rorabaugh Recreation Center
(ARRC) 1640 South State Street #1, Ukiah, California 95482, with its principal contact for
purposes of this Agreement as follows:
Board Member or his/her designee
ARRC
1640 South State Street #1
Ukiah, CA 95482
Phone: 707-462-8562
Fax:
2. Term
2.1 The term of this Agreement shall commence on�S 2017 and terminate at midnight on
2019, unless earlier terminated by eithe party as provided in Section 2.2. The
term of this Agreement shall be two (2) years. However, the parties may agree to extend the
Agreement for an additional two-year term or additional terms of any length to which they
agree in writing. Upon expiration of a term, this Agreement will continue on a month-to-month
basis, until either party gives notice of termination in writing not less than thirty (30) days in
advance of the proposed termination date.
2.2 In addition to the provisions of Section 5.6 below, 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 proposed termination date, unless City and UVCRC
mutually agree to a lesser time. Provided that such written request is timely made, termination
shall occur upon the specified termination date.
3. Management and Staffing
City and UVCRC agree to cooperatively manage and operate the ARRC as a successful recreation
center for the benefit of the public. A "Facilities Administrator" or other classification as
determined by the City, shall be employed by the City and responsible for all ARRC operations.
The initial Center Operating Plan (COP) is attached to this Agreement and is incorporated into
this Agreement by this reference. The COP, among other things, details staff duties and
operating relationships. The parties hereby authorize the City of Ukiah City Manager ("City
Manager") and the UVCRC Board to modify in writing the COP from time to time as may be
necessary to facilitate efficient operations of the ARRC consistent with the intent of this
Agreement.
A Facilities Attendant shall be employed by the City and directly supervised by the Facilities
Administrator. The City shall provide the UVCRC with opportunities for meaningful and
substantial input on the ongoing performance of the Facilities Attendant. The Facilities
Administrator shall have operational authority for the management and operation of the ARRC.
The duties and responsibilities of the Facilities Administrator shall include, but not be limited to:
a. Managing the ARRC so that it is developed and maintained as a successful recreational
center.
b. Managing rental and use of the facility.
C. Preparing and administering the annual budget and work plan for development and
operation of the ARRC.
d. Preparing the progress reports and annual budget for the preceding fiscal year for
approval by the City Council.
e. Organizing, scheduling, and directing City employees, volunteers, and independent
contractors assigned to the ARRC.
f. Reporting on status of operations at the ARRC as requested, including, but not limited
to, providing reports intended for the City Council and UVCRC Board of Directors.
g. Performing all duties that are usual and customary and normally associated with the
position of a Facilities Administrator of a public recreation center.
Notwithstanding the parties' agreement to cooperatively manage and operate the ARRC, City
employees working at the ARRC are employed solely by the City, and the City retains all responsibilities
associated with their employment. UVCRC employees working at the ARRC are employed solely by the
UVCRC, and the UVCRC retains all responsibilities associated with their employment. The parties agree
to cooperate fully with each other in resolving any employment issues. The UVCRC agrees to
indemnify and hold the City, its agents, officers and employees harmless from any claim or damage
resulting from an employment matter involving an ARRC UVCRC employee acting within the scope of
employment. The City agrees to indemnify and hold the UVCRC, its agents, officers and employees
harmless from any claim or damage resulting from an employment matter involving a City employee
acting within the scope of employment. "Employment matter", as used herein means any claim or
liability arising out of the employer/employee relationship or which could be asserted by an employee
against his or her employer.
The ARRC staff for a joint event may be comprised of employees of both the City and the UVCRC
pending availability. It is acknowledged and agreed between the parties that to achieve the optimum
performance of the total ARRC staff, City employees may be directed to work at the ARRC on UVCR(--
activities within the scope of this Agreement and UVCRC employees may be directed to work at the
ARRC on City activities within the scope of this Agreement. However, UVCRC shall have the exclusive
authority to oversee and direct the activities of its employees and volunteers and the City shall have
the exclusive authority to oversee and direct the activities of its employees and volunteers. The UVCRC
shall have no authority over or control the performance of City employees and the City and its
employees, including the Facilities Administrator shall have no authority over or control the
performance of UVCRC employees or volunteers.
The Facilities Administrator for the City and the UVCRC Board Member or his/her designee shall meet
periodically to evaluate ARRC operations and shall prepare no later than July 30th of each year and
present as soon as practicable thereafter an annual report on ARRC operations to the City Council and
the Board of Directors of the UVCRC. The report shall include user satisfaction data as well as data on
the financial performance of the ARRC. The Facility Administrator and Board Member may jointly
request assistance from the City and UVCRC staff in development of the annual report.
4. Grounds and Facilities
The UVCRC shall retain all of its right, title and interest, as such may appear in the grounds,
buildings, structures and all other improvements, and its equipment. Subject to approval of the
Facilities Administrator, certain equipment owned by the UVCRC may be used at the ARRC
provided however, any such equipment must be identified in writing attached to the COP and
the equipment must be clearly identifiable or marked as UVCRC property on the equipment
itself. Items must be identified in writing within thirty (30) days of the Effective Date.
The City and UVCRC agree that both parties shall continue joint use of the grounds, buildings,
equipment and other improvements at the ARRC in furtherance of this Agreement. The parties
shall jointly determine the most effective use of the ARRC grounds, buildings, equipment and
other improvements subject to the approval of the City's Community Services Administrator,or
such other individual designated in writing by the City Manager, in consultation with a Board
Member or his/her designee for the UVCRC.
5. Budget and Funding
5.1 The parties agree that it is the intent of the arrangement governed by this Agreement that
revenues generated by ARRC programs and usage will be sufficient to cover operating expenses
(including, but not limited to, maintenance and contributions to any capital improvement
reserves established in the budget). (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 example, "fiscal year 2008/09" means the period beginning .July
1, 2008 and ending June 30, 2009).
In February of each year, the Facilities Administrator and UVCRC Board Member or
his/her designee shall develop budget assumptions related to the ARRC operating
budget for the following fiscal year.
b. Before March 15, or on another mutually agreed-upon date, the Facilities Administrator
and the UVCRC Board Member or his/her designee shall develop preliminary proposed
annual ARRC operating budget and work plan. The budget will include estimated costs
and revenue from rental and activities as well as agreed-upon capital improvement
reserves. The UVCRC may agree to the preliminary proposed ARRC operating budges:
and work plan or terminate this Agreement subject to the notification provisions of
section 5.6.
C. The proposed annual budget and work plan and the latest progress report will be
included in the City Manger's Recommended Budget, which must be submitted to the
City Council no later than May 15 each year. Once the City Council has established the
annual operating budget, the UVCRC may agree to the ARRC operating budget or
terminate this Agreement subject to the notification provisions of section 5.6.
d. Once the annual budget and work plan is approved by the City Council, that annual
budget and work plan shall be implemented by the Facilities Administrator for the
upcoming fiscal year.
5.2 The City shall pay an agreed-upon amount for City programs held at the ARRC and other
identified usage including but not limited to rental of office space. The foregoing payments
shall be made quarterly to the ARRC revenue fund managed by the City of Ukiah and shall be
due by July 15, October 15, January 15 and April 15. City will provide detailed usage reports
along with the documentation of the payments to a UVCRC Board member or his/her designee.
S.3 The City and UVCRC may agree to a mid -year budget adjustment to the ARRC budget in special
circumstances including but not limited to, a significant unexpected expense affecting the ARRC
operations which could not be reasonably anticipated or controlled.
5.4 The City shall provide UVCRC with monthly reports on the operating position of the ARRC. Both
parties agree to maintain agreed-upon customer service standards and accessibility over the
course of the year, while recognizing that operations may change over the year in order to
meet financial objectives for ARRC operations.
5.5 As part of the annual budget and work plan adoption process, the parties will agree on a
method for separately accounting for fee-based activities and usage. Any net operating gain or
loss shall follow the procedures as set forth in the COP "Budgeting Section".
5.6 In the event that the UVCRC does not agree to the annual budget and work plan as approved by
the City Council, this Agreement shall terminate. The UVCRC will notify the City in writing that
this Agreement shall be terminated six months from the date of notification, or on another date
as agreed-upon by the parties. Distribution of net operating gain or loss shall be suspended
during the six-month notice period. Likewise, the UVCRC shall not be obligated to pay the
amount of revenue shortfalls, as described in section 5.5, during the six-month notice period.
The parties acknowledge and agree that such a termination will require a substantial amount of
time to accommodate ongoing obligations at the ARRC and to enable full separation of
responsibilities and obligation of the parties. The parties agree to cooperate reasonably with
one another in such an event to facilitate such a separation as expeditiously as possible.
Termination of this Agreement as provided in the Section (with each party bearing its own
costs) shall be sole remedy of the parties
6. Programing and Pricing
6.1 The City and UVCRC will agree upon programming and pricing as part of the annual budget and
work plan process. This includes rates for office rental and room rental.
6.2 The parties acknowledge that the scope of community services offered at the ARRC, including
youth, family, intergenerational, special event, and adaptive programming may evolve over
time.
6.3 It is intended that the annual City Council approval of the budget and work plan will authorize
the City manager to adjust prices and programming as needed in accordance with a City Council
adopted policy or directive.
7. Reserved Uses
7.1 In an effort to continue active fundraising and accommodate shared use agreements a series of
partnerships and reserved uses have been outlined. These reserved uses may change from
time to time. The changes or additions to these reserved uses will be agreed upon jointly
between the UVCRC and the City and will be documented appropriately.
The current "reserved uses" are set forth as follows:
"Exhibit B" Ukiah Unified School District:
Addendum to Agreement: Use of Property
"Exhibit C" Ukiah Valley Cultural Recreational Center: Use of Property
8. Revenues and Marketin
8.1 The parties agree that Ukiah Valley residents are intended to be the primary beneficiaries of the
ARRC, although the ARRC will be available for the use of non-residents as well. To that end, the
parties desire to develop a marketing plan and activity program pricing structure that will
accomplish the foregoing goal and will provide adequate revenues to cover annual operating,
expenditures. The parties also intend to jointly and/or individually seek grants or other sources
of funding which may be available to provide existing or expanded services and programs at -the
ARRC. Both parties agree to cooperate fully, one with the other, in such endeavors.
8.2 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.
9. Audits, Record Retention and Inspection
The parties understand and agree that the City is a public entity and as such is 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.
Each party grants the other party, at the requesting party's expense, the right to conduct at any
reasonable time an audit and re -audit of the books, records and business conducted related to
this Agreement and observe the operation of the business so that the accuracy of the above
records and any of the invoices for services provided can be confirmed.
In the event of any dispute between the parties as to financial matters, the parties agree, as
their sole remedy, to mutually choose an independent auditor to conduct an investigation of
the disputed matter. If the parties are unable to mutually choose an independent auditor, each
party shall identify one auditor and those two auditors shall choose a third, independent
auditor to conduct the investigation. The auditor so named shall be deemed to have been
mutually chosen by the parties. If, as a result of the investigation of the mutually chosen
auditor, any adjustment in payment is required by either party, such payment shall be made
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within sixty (60) days of receipt of written demand for same. The decision of the mutually
chosen auditor shall be final and binding upon the parties.
10 Dispute Resolution
10.1 Operational Issues
Except as otherwise specifically set forth in this Agreement, any dispute concerning day to
day operational decisions in the implementation of this Agreement as further detailed in the
COP shall be resolved by the Community Services Administrator and the Executive Director of
the UVCRC. For any disputes which cannot be resolved by these individuals, either party may
request that the Ukiah City Manager resolve the dispute after first consulting with the UVCRC
Board President. The decision of the City Manager shall be final.
10.2 Other Issues
Should other disputes arise between the parties for which a dispute resolution mechanism or
remedy is not otherwise specifically set forth in this Agreement, and the parties are unable to
resolve such matters between themselves by negotiation after the complaining party has
provided the other party written notice of the complaint and a reasonable opportunity to cure
the problem, then such disputes shall be resolved through mediation. Both parties shall
participate in mediation for a minimum of a 60 -day period prior to taking the dispute through
the court process. In the event the dispute is not resolved through mediation then the item
shall be resolved in the courts of the County of Mendocino County in accordance with
applicable law and procedure, including any claims procedures that may be required by law
with respect to a general law city.
10.3 Termination Option
If either party seeks judicial redress of a dispute as set forth in section 10.2, that action shall
give either party the opportunity to terminate this Agreement by providing the other party six
months advance written notice of such desire to terminate. The action to terminate this
Agreement described in this section is not intended nor shall it adversely affect the process set
forth in section 10.2.
11 Indemnification
The City agrees to indemnify defend and hold harmless UVCRC, its agents, officer and
employees, from and against any and all liability, expense, including defense costs and legal
fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily
injury, death, personal injury, or property damage arising from or connected with City's
operations or its services under this Agreement, including any Worker's Compensation suits,
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liability or expense, arising from or connected with services performed by or on behalf of the
City by any person pursuant to this Agreement. City's duty to indemnify UVCRC shall survive
the expiration or other termination of this Agreement.
11.1 The UVCRC agrees to indemnify, defend and hold harmless City, its agents, officer and
employees, from and against any and all liability, expense, including defense costs and legal
fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily
injury, death, personal injury, or property damage arising from or connected with UVCRC's
operations or its services under this Agreement, including any Worker's Compensation suits,
liability or expense, arising from or connected with services performed by or on behalf of the
UVCRC by any person pursuant to this Agreement. UVCRC's duty to indemnify City shall survive
the expiration or other termination of this Agreement.
12 Insurance
12.1General Requirements. Without limiting UVCRC's indemnification of City of Limiting City's
indemnification of UVCRC, UVCRC and City shall each provide and maintain at their own
expense throughout the term of this Agreement, the following insurance coverage:
(1) UVCRC shall provide insurance covering its operations under this agreement as further provided
below in subsection 2:
(2) The City shall provide the following coverage under its Memorandum of Coverage with the
Redwood Empire Municipal Insurance Fund ("REMIF"):
a. During the term of this Agreement, the ARCC shall be insured against damage or loss to
the structure and its contents resulting from fire, lighting and other risks under
Redwood Empire Municipal Insurance Fund ("REMIF") memorandum of coverage
("MOC") excluding damage or loss resulting from flooding or earthquake. Such
coverage shall terminate upon termination of this Agreement. In the event of a loss or
damage to the ARRC, UVCRC agrees to comply with all MOC requirements, including,
but not limited to, the time and manner of reporting a covered event and paying from
the ARRC Operating fund by the UVCRC the portion of damage subject to the $10,000
deductible under the REMIF coverage. UVCRC agrees that City shall have no liability for
any damage or loss to the ARRC or its contents however caused, including, but not
limited to, the negligence of the City or its officers, agents, contractors, employees or
volunteers, is to the coverage afforded under the MOC.
b. Through REMIF, the City shall provide exclusive coverage for claims, damages, liability
and expense arising from events and coverage provided by the City shall be limited to
general liability, workers' compensation, and auto liability coverage available to the City
through REMIF.
C. For claims, damages, liability and expense not arising out of events and programs
conducted by the UVCRC at the ARRC, UVCRC shall provide the insurance specified in
P]
this subsection (3). This subsection shall also apply to the insurance the City is required
to provide under subsection (2).
Insurance provided by UVCRC and by City shall be provided by insurers satisfactory to City's Risk
Manager and satisfactory to the UVCRC's Board, respectively, and a certificate or other
evidence of coverage and certified copies of additional insured endorsements satisfactory to
City and UVCRC, respectively, shall be delivered to the City's Risk Manager and to the UVCRC
Board, respectively, before the effective date of this agreement. It is recognized that City
currently provides general liability, workers' compensation, and auto liability insurance
coverage through a combination of self-insurance, pooled coverage and purchased excess
insurance coverage. Such evidence of coverage shall specifically identify this Agreement and
shall contain the express condition that City or UVCRC, as applicable, is to be given at least
thirty (30) days advance written notice of any modification or termination of any program of
insurance. All such insurance provided by UVCRC or City shall be primary to and not
contributing with any other insurance maintained by the other party. With the exception of
workers' compensation insurance, all such insurance provided by UVCRC and by City shall name
"City of Ukiah" its elected officials, officers, employees, agents and representatives," "Ukiah
Valley Cultural and Recreation Center, its officers, employees, agents, and representatives," and
"Ukiah Unified School District," as additional insureds.
At all times during the term -of this Agreement, UVCRC and City shall provide and maintain the
following forms and amounts of insurance:
Liability
Comprehensive General Liability Insurance written on a commercial general liability
form or a comprehensive general liability form covering the hazards of premises -
operations, products/completed operations, independent contractors, advertising,
contractual, broad form of property damage, and personal injury with a combined single
limit of not less than Two Million Dollars ($2,000,000) per occurrence and an aggregate
limit of not less than Four Million Dollars ($4,000,000).
b. Workers' Compensation
Insurance in an amount and form to meet all applicable requirements of the Labor Code
of the State of California, including Employer's Liability.
C. Comprehensive Automobile Liability
Endorsed for all owned, non -owned, and hired vehicles with a combined single limit of
not less than Two Million Dollars ($2,000,000) per accident.
d. Failure to Comply
Failure on the part of UVCRC or City to procure or maintain required insurance shall
constitute a material breach of contract upon which City or UVCRC, respectively, may
immediately terminate this Agreement. Notwithstanding this requirement, in the even
that UVCRC or City fails to procure or keep in effect at all times the insurance coverage
required herein, city or UVCRC, respectively, may in its discretion procure said insurance
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on behalf of UVCRC or City, respectively, and charge UVCRC or City, respectively, the full
cost of the insurance and administration costs.
12.2The parties agree and will ensure that all staff are trained in all safety related matters as
required by law or appropriate for the services provided at the ARRC. This includes both
California and Federal criminal history checks as part of pre-employment screening.
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 Ukiah
300 Seminary Avenue
Ukiah, CA 95482
Phone: 707-463-6200
Fax: 707-463-6740
With a copy to:
City Clerk
City of Ukiah
300 Seminary Avenue
Ukiah, CA 95482
Phone: 707-463-6200
Fax: 707-463-6740
In the case of notices to be given to the UVCRC, notice shall be addressed as follows:
Board President
Ukiah Valley Cultural and Recreation Center
1640 South State Street #1
Ukiah, CA 95482
Phone: 707- 462-8562
Fax:
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Either party may change its address or other contact information by giving notice in writing to the
other party as specified in this section.
14. Amendments
This Agreement shall only be amended by a writing signed by both parties after approval by the
City Council and UVCRC Board of Directors.
15. 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. This provision does not affect any
obligation of the City for payment of funds attributable to a fiscal year for which an annual
budget has been approved.
16. Miscellaneous Provisions
16.1 Good Faith and Cooperation
The City and UVCRC agree that it is in their mutual best interest and in the best interest of the
public that the ARRC 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.
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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 UVCRC and the City 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 UVCRC or 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 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 ARRC under this Agreement are employees solely
of the party which hired such personnel for purposes of workers' compensation liability and for
purposes of receiving all other types of employee 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 furnishing all other employee benefits to
any personnel hired by them.
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IN WITHNESS, WHEREOF, the UVCRC and the City have executed this Agreement as of the day and
year first above written.
Approved as to form:
41--- , I
:
By ^—
Davi port
City Attorney
UVCRC `
By: r
Name: / �'r�I�LG� b' ty
City of Ukiah
r�
By.
Sage Sangi omo
City Manager
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