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HomeMy WebLinkAboutFeiro Marine Life Center Facility Use Agreement −1− FACILITY USE AGREEMENT BETWEEN THE CITY OF PORT ANGELES AND THE FEIRO MARINE LIFE CENTER This Facility Use Agreement (“Agreement”) is made and entered into as of the date of the last signature affixed below by and between the City of Port Angeles, (“City”), a non-charter code city and Washington State Municipal Corporation, and the Feiro Marine Life Center, (“FMLC”), a Washington non-profit corporation. WHEREAS, the City is the owner/manager of the Marine Life Center building, located on the City Pier at 315 North Lincoln Street, Port Angeles, Washington; and WHEREAS, in the early 1970’s the community of Port Angeles worked to build the Marine Life Center, a teaching laboratory and public aquarium on the new City Pier; and WHEREAS, the force behind this project was the late Arthur Feiro and on November 21, 1981, the lab was dedicated to the citizens of Port Angeles; and WHEREAS, for thirty-four years, FMLC was supported financially, in an almost equal partnership, by the City and Peninsula College; and WHEREAS, due to funding cuts in 2015, FMLC converted to non-profit status; and WHEREAS, in 2015, the City entered a Service Agreement to provide FMLC with a final year’s funding, but did not execute a Facility Use Agreement for the Marine Life Center at that time; and WHEREAS, the City wishes to enter into a Facility Use Agreement with FMLC for the FMLC’s exclusive operation of the Marine Life Center consistent with the City and FMLC’s stated vision and purposes; NOW, THEREFORE, in consideration of the promises and commitments made herein, the sufficiency of which is hereby acknowledged, it is agreed as follows: 1. Premises. The City hereby agrees to allow the FMLC to use the building on the City Pier located at 315 North Lincoln Street, for the sole purpose of operating a Marine Life Center. 2. Term. This Agreement shall be deemed to be in full force and effect as of January 4, 2022. The use permitted under this Agreement shall expire December 31, 2027, unless extended or modified in a subsequent written agreement between the parties. 3. Use. FMLC shall use the premises for the sole purpose of operating a Marine Life Center, which includes educational activities such as live animal exhibits, −2− youth programs, adult programs, student education, and service programs, as well as the basic operations to support these educational opportunities. All other uses not in accord with the above stated purpose are expressly prohibited without the prior written consent of the City’s Parks and Recreation Director. 4. Dates and Hours of Operation. The days, hours, and operation of the Marine Life Center is left to the discretion of the FMLC Executive Director. 5. Parking. Employees and volunteers, as designated by FMLC, necessary for its operation, shall have the right of access and the right to park adjacent to the Facility. Parking shall consist of up to five parking spaces which shall be located in the designated parking area to the west of the Facility (four spaces) and the rear door of the Facility (one space). 6. Consideration. In consideration of the valuable services provide to the City by FMLC, including operation of educational, tourism-related facilities, there are no rental fees associated with this Agreement. 7. Duties of the FMLC. A. FMLC shall keep the premises in a clean and sanitary condition at all times and shall be responsible for the costs of janitorial supplies and services. The City maintains the public bathrooms in an adjoining building to the FMLC facility. FMLC shall not be required to provide public bathrooms at its facility. B. FMLC shall provide for the care and feeding of the marine animals under FMLC’s care and all costs incurred to do so. C. FMLC shall operate in compliance with the laws of the State of Washington, all ordinances of the City of Port Angeles, and all regulations of the Port Angeles Parks and Recreation Department, and will not allow the violation of any of these laws, ordinances, or regulations by any other party within the area in which FMLC operates. FMLC shall not be responsible for payment of any real property taxes associated with the facility. D. FMLC shall have the right to operate and conduct a gift shop within the premises of the Facility and keep all sale proceeds for FMLC operational expenses. FMLC shall promptly pay all sales tax resulting from operation of any retail store within the Facility E. FMLC shall not erect any permanent sign on the premises or in the vicinity thereof without obtaining the prior written consent of the City. F. FMLC be responsible for maintaining compliance with all then- −3− applicable COVID-19 guidelines and precautions, as recommended by the Clallam County Public Health Department, for all employees, volunteers, vendors and guests. 8. Duties of the City. The City shall be responsible for all reasonably necessary maintenance and repairs of the building and grounds, with exception of the seawater system and the exhibit structures. 9. Alterations. No alterations or improvements shall be made to the facility without prior written consent of the Parks & Recreation Director. In the event such approval is given, it is understood that such alterations or improvements shall become the property of the City without compensation to FMLC at the expiration or termination in any manner of this Agreement. However, any equipment including, but not limited to, aquariums, portable tanks, audio visual and office equipment owned by FMLC shall remain the property of FMLC at the expiration or termination in any manner of the Contract. 10. Indemnification. FMLC shall defend, indemnify and hold harmless the City of Port Angeles, its officials, employees and volunteers from and against any and all claims, suits, actions or liabilities for injury or death of any person, or for loss or damage to property, which arises out of the use of the Marine Life Center building or premises, or from any activity, work or thing done, permitted, or suffered by FMLC in or about the facility or premises, except only such injury or damage as shall have been occasioned by the sole negligence of the City of Port Angeles. 11. Insurance. A. Term FMLC shall procure and maintain for the duration of the use or rental period insurance against claims for injuries to persons or damage to property which may arise from or in connection with the use of the Premises and the activities of the FMLC and its guests, representatives, volunteers and employees. B. No Limitation FMLC’s maintenance of insurance as required by the Agreement shall not be construed to limit the liability of the FMLC to the coverage provided by such insurance, or otherwise limit the City’s recourse to any remedy available at law or in equity. C. Required Insurance FMLC’s required insurance shall be as follows: −4− General Liability insurance shall be at least as broad as Insurance Services Office (ISO) occurrence form CG 00 01 covering premises, operations, products- completed operations and contractual liability. The City shall be named as an additional insured on FMLC’s General Liability insurance policy using ISO Additional Insured-Managers or Lessors of Premises Form CG 20 11 or an endorsement providing at least as broad coverage. The General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $1,000,000 general aggregate. The insurance policy shall contain, or be endorsed to contain, that the FMLC’s insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or self-insured pool coverage maintained by the City shall be excess of the FMLC’s insurance and shall not contribute with it. D. City Full Availability of FMLC Limits If the FMLC maintains higher insurance limits than the minimums shown above, the City shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by the FMLC, irrespective of whether such limits maintained by the FMLC are greater than those required by this Agreement or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained by the FMLC. E. Certificate of Insurance and Acceptability of Insurers The FMLC shall provide a certificate of insurance evidencing the required insurance before using the Premises. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII. 12. Assignment. This Agreement may not be assigned or transferred without the written approval of the City. 13. Anti-Discrimination. In all services or activities and all hiring or employment made possible by or resulting from this Agreement, there shall not be discrimination against any employee or applicant for participation in the Marine Life Center’s operation because of sex, age, (except minimum age and retirement provisions), race, color, creed, national origin, marital status, sexual orientation, or the presence of any sensory, mental, or physical handicap, unless based upon a bona fide occupational qualification. FMLC shall observe and fully comply with any and all applicable federal, state, or local law or regulations regarding non-discrimination. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination, or suspension in whole or in part of this −5− Agreement by the City, and may result in ineligibility for further City agreements. FMLC will also comply with other anti-discrimination laws or requirements of any and all jurisdictions having authority. 14. Compliance with All Laws and Regulations. In using the premises, FMLC will comply with all applicable laws, ordinances, and regulations from any and all authorities having jurisdiction. FMLC specifically agrees to comply and pay all costs associated with achieving such compliance without any notice from the City, and further agrees that the City of Port Angeles does not waive this section by giving notice of demand for compliance in any instance. 15. Notice. Any notice or information required or permitted to be given to the parties under this Agreement may be sent to the following addresses unless otherwise specified in a subsequent written directive: City of Port Angeles Corey Delikat, Parks and Recreation Director 321 E. 5th Street Port Angeles, WA 98362 Feiro Marine Life Center Melissa Williams, Executive Director P.O. Box 625 Port Angeles, WA 98362 16. Governing Law. This Agreement shall be governed, construed and interpreted by, through and under the Laws of the State of Washington. Venue for any claims that might flow from this Agreement shall be with the Clallam County Superior Court. 17. Entire Agreement. By signing this Agreement the City of Port Angeles and FMLC understand and concur that this document is considered to be all of the covenants, promises, agreements and conditions, oral or written between the parties. The parties hereby agree that this document contains the entire agreement between the parties and that this Agreement shall not be modified, changed, altered or amended in any way except through a written amendment signed by all of the parties hereto. [Signature Page Follows] −6− IN WITNESS WHEREOF, the City and FMLC have executed this Agreement the date and year indicated. CITY OF PORT ANGELES By: __________________________ Nathan A. West, City Manager Date:_________________________ PORT ANGELES FARMERS’ MARKET By: ____________________________ Melissa Williams, Executive Director Date:___________________________ Attest: ______________________________ Kari Martinez Bailey, City Clerk Approved as to form: ______________________________ William E. Bloor, City Attorney