Loading...
Item 9BCITY OF SOUTHLAKE MEMORANDUM May 29, 2012 TO: Shana Yelverton, City Manager FROM: Chris Tribble, Director of Community Services SUBJECT: Consider approval of Bob Jones Nature Center & Preserve Management Agreement Action Requested: City Council consideration of a Bob Jones Nature Center & Preserve Management Agreement with the Bob Jones Nature Center Organization Background Information: In the 1990's the City launched an initiative to purchase land for a park. The property acquired included some of Bob and Almeady Jones' original farm, so the City Council decided unanimously to honor his family's memory by naming the park land Bob Jones Park. While the park was under development, a number of Southlake residents saw the value of preserving and conserving a section of the park as restored Cross Timbers ecosystem. In 2001, the Parks and Recreation Board appointed a Nature Center Development Committee to research and report on the potential of a nature center in Southlake. Following the submission of that report, the City Council adopted a resolution that supported the creation of a nature center. Also as a result of the report, the original development committee evolved into a 501(c)(3) nonprofit organization - the Bob Jones Nature Center Organization - dedicated to preserving and providing education about the Cross Timbers. As you know, the City of Southlake and the Bob Jones Nature Center (BJNC) Organization have operated in partnership for many years to provide programs and events for environmental education and preservation of the natural environment. The City and Organization have operated under agreements that have delineated the duties and responsibilities to ensure that our Nature Center patrons receive the best possible experience. City of Southlake Values: Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork A Shana Yelverton, City Manager City Council Meeting Date — June 5, 2012 Page 2 of 6 From 2005 — 2009 a Community Services Agreement was in place between the City and the Bob Jones Nature Center Organization: WHEREAS, the purpose of Nature Center is to provide educational opportunities about the natural environment for residents of and visitors to the City; and to preserve and protect such natural environment within and surrounding the Nature Center; and WHEREAS, establishment of Nature Center at Bob Jones Park, has been recommended by the Southlake Park Board and approved by resolution of the City Council; and WHEREAS, City and Nature Center have determined that sections of City property within Bob Jones Park, including portions of adjacent Army Corps of Engineer Property, designated as Nature Center; and WHEREAS, City and Nature Center desire to enter into an Agreement whereby Nature Center will provide services for environmental education and preservation and for related use and enjoyment within the designated area to the residents of and visitors to Southlake. In April 2008, the Bob Jones Nature Center & Preserve ( BJNCP) opened as a fully functional educational center that includes 76 acres on the Preserve with access to almost 400 acres of Cross Timbers habitat on U.S. Army Corps of Engineer land and almost 20 miles of trails on the Walnut Grove National Recreation Trail. In 2009, the City employed a full -time BJCNP Coordinator tc manage the operations of the BJNCP with the BJNC Organization responsible for education programs and events. In 2010, the City parted ways with the BJNCP Coordinator (still vacant), and began discussions on future options for the management of the facility. Also in 2010, the City kicked off the BJNCP Master Plan and the City Council adopted the Plan on June 21, 2011 as part of the City's Southlake 2030 Comprehensive Plan. City of Southlake Values. Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork A Shana Yelverton, City Manager City Council Meeting Date — June 5, 2012 Page 3 of 6 Over the past 18 months, the City has been working with the Bob Jones Nature Center Organization Board on a potential management agreement for the future management of the facility. The Board has long had a strategic goal to manage the Center, and have been working with staff to develop a proposal in this regard. Governance of the Bob Jones Nature Center Organization, a 501(c)(3) nonprofit corporation, is provided by a Board of Directors for the oversight of programs and volunteers. Current board members include: President: Debra Edmondson Vice President: Julie Landesberg Secretary: C.D. Peebles Treasurer: Bruce Rosentiel Director: Ray Chancellor Director: Monica Hutchins Director: Peter Kao Director: Norm Lyons Director: Jane Musser Director: Jennifer Myers Director: Steve Oligmueller Director: Wanda Schafer Director: Beatriz Terrazas Director: Al Zito Director Emeritus: Dr. Bobby Jones Executive Director: Emily Galpin The Board has developed a Strategic Plan to guide their policy development and operations. This document defines what the organization stands for and the priorities they have identified for meeting its mission. In addition, the Board recently developed a Business Plan that outlines the implementation of their broad goals and objectives, built upon the Board's assessment of its strengths, weaknesses, opportunities, and threats. The plan also refers to the proposed management agreement. City of Southlake Values. Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork A� I Shana Yelverton, City Manager City Council Meeting Date — June 5, 2012 Page 4 of 6 A copy of the proposed Agreement is attached detailing responsibilities of the Bob Jones Nature Center Organization and the City in areas of general requirements, management, use of the property, term, operations review, rules, policies, consideration, promotion, personnel, City's rights, finances, accounting, reports and audits, indemnity and insurance, and termination. The contract will include several requirements and performance measures including the following: • Contractor must operate the Nature Center in a professional, efficient and cost effective manner to provide top quality programs and services at a standard comparable to comparable Nature Centers in the North - Central Texas region • Contractor must operate the Nature Center in accordance with the City's Values • Contractor must adhere to best practice financial management principles, maintain efficient and accurate accounting principles in the format defined by the City's Finance Director, and must submit monthly financial statements to the City's Finance Director • Contractor must meet as required with the Director of Community Services, or his /her designee, at least every other month and submit monthly attendance reports, volunteer reports, and program /event participation reports • Contractor must comply with all applicable federal, state and local laws, ordinances, rules, policies, and regulations • Contractor must comply with all applicable government health, safety and environmental regulations • Contractor must distribute the City's Customer Satisfaction Surveys to all program participants, and maintain a positive overall customer satisfaction rating with programs and services of at least 98% • Contractor must maintain successful program participation levels for both youth and adults including an increase in participation levels by 3% per year unless the contractor can demonstrate a nature center capacity constraint or some other reasonable issue that prevents the growth • Contractor must respond to all written inquiries and complaints from users within two (2) business days City of Southlake Values. Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork A Shana Yelverton, City Manager City Council Meeting Date — June 5, 2012 Page 5 of 6 • Contractor must ensure that 100% of both employee and contract staff participate in annual customer service training • Contractor must conduct pre - employment and annual criminal background checks, and pre - employment and for - cause drug screenings, and shall not assign, even on a temporary basis, any person whose check is incomplete or who has not successfully passed or who fails such checks or screenings • Contractor must maintain an annual rating of at least 95% on monthly facility inspections for the areas within their control Approval of this agenda item will result in a Bob Jones Nature Center & Preserve Management Agreement with the Bob Jones Nature Center Organization for an initial term expiring September 30, 2012, and including (3) additional three -year renewal options. Financial Considerations: In FY2011, the City received approximately $155,830 in revenue from Nature Center program fees. The City's expenditures for FY2011 totaled $283,891 for salaries, programs costs, office supplies, phone service, garbage, recycling, janitorial, alarm monitoring, facility and equipment maintenance, grounds maintenance, and utilities. A net cost to the City of $128,061. With this contract, the Contractor will be responsible for all staffing, furnishings, equipment, supplies, and telephone service costs. The Contractor will pay the City 20% of gross revenue for activity and program fees while the City is still handling program scheduling and registration, 50% of any facility or grounds usage fees if charged, and 50% of all facility and pavilion rental fees. The City will pay the contractor a $100,000 annual payment and be responsible for grounds maintenance, facility and equipment maintenance and utilities totaling approximately $44,000. For Year 1 of the agreement the City will continue to receive an estimated $156,000 in revenue from Nature Center fees, and project an estimated $284,000 in expenses. A net cost to the City of $128,000 For Year 2 and subsequent years the City will receive virtually no revenue, and project an estimated $144,000 in annual expenses. No significant additional operating costs beyond those listed above are anticipated with the contract. City of Southlake Values. Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork Shana Yelverton, City Manager City Council Meeting Date — June 5, 2012 Page 6 of 6 Strategic Link: This item is linked to the City's Strategy Map related to the focus area of Performance Management and Service Delivery and meets the Corporate Objectives to Collaborate with Select Partners to Implement Service Solutions. Citizen Input/ Board Review: N/A Legal Review: City Attorney will review and recommend the new agreement. Alternatives: City Council action to approve the Bob Jones Nature Center & Preserve Management Agreement with the Bob Jones Nature Center Organization as per staff recommendation City Council decision not to approve the Bob Jones Nature Center & Preserve Management Agreement with the Bob Jones Nature Center Organization as per staff recommendation Supporting Documents: Copy of proposed Bob Jones Nature Center & Preserve Management Agreement Staff Recommendation: Staff recommends the City Council approve the Bob Jones Nature Center & Preserve Management Agreement with the Bob Jones Nature Center Organization. City of Southlake Values. Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork CITY OF SOUTHLAKE A BOB JONES NATURE CENTER & PRESERVE MANAGEMENT AGREEMENT THIS BOB JONES NATURE CENTER & PRESERVE MANAGEMENT AGREEMENT ( "Agreement ") is made between the City of Southlake, Texas ( "CITY "), a municipal corporation, and the Bob Jones Nature Center Organization, a 501C3 non - profit organization ( "CONTRACTOR "). WHEREAS, CITY desires that CONTRACTOR manage the operation of the CITY'S BOB JONES NATURE CENTER & PRESERVE as specifically described below; NOW, THEREFORE, CITY AND CONTRACTOR AGREE as follows: ARTICLE 1. DEFINITIONS Unless the context clearly indicates otherwise, in this Agreement: BEGINNING DATE means the date on which CITY gives CONTRACTOR written notice to begin management of the Nature Center. EXPIRATION DATE means September 30, 2012. If the Agreement is automatically renewed, as provided in Section 3.1, any annual anniversary of the original expiration date. FISCAL YEAR means the period beginning October 1 of any year and ending September 30 of the following year. BOB JONES NATURE CENTER & PRESERVE (hereinafter referred to as "Nature Center") means the property and all improvements located on the Property the City may make available to the CONTRACTOR as provided herein. PROPERTY means the land on which the Nature Center is located at 355 E. Bob Jones Road, Southlake, Texas. CITY ADMINISTRATOR means Director of Community Service or his designee. ARTICLE 2. GENERAL REQUIREMENTS §2.1 Management of the Nature Center. CITY hires CONTRACTOR to manage, supervise, and operate the Nature Center in accordance with this Agreement. CITY delegates to CONTRACTOR the responsibility and authority to implement operating policies that should adhere to CITY policies where applicable and take other actions necessary to operate the Nature Center in a manner that meets CITY standards. Page 2 of 21 §2.2 Independent contractor. CONTRACTOR is an independent contractor with respect to the CITY, and the CITY shall not have the authority or responsibility to supervise the day -to -day activities of the CONTRACTOR or CONTRACTOR's employees. Nothing in this Agreement and its performance shall create an employment or agency relationship between CITY and CONTRACTOR. Nevertheless, CONTRACTOR agrees to seek advice from CITY and cooperate with CITY in its management of the Nature Center, and the parties both agree to cooperate with each other regarding the management of the Nature Center. §2.3 Use of the property. CITY grants to CONTRACTOR the use and possession of the Property during the term of this Agreement for the purposes of managing and operating the Nature Center, subject to the rights of CITY under this Agreement. §2.4 CITY'S right to inspection. CITY and its representatives have the right at all reasonable times to enter upon and to examine and inspect the Nature Center for any reason. In the event of a default, CITY has the right of access to the Nature Center that is reasonably necessary to cause the proper maintenance of the Nature Center. ARTICLE 3. TERM §3.1 Term. The term of this Agreement commences on August 1, 2012 and expires on September 30, 2012 with three (3), 3 -year renewal options, unless terminated earlier under one of the provisions of Article 10 of the Agreement. Nothing in this Article shall be construed as a limitation on either party's right to terminate this Agreement in accordance with Section 10.7 hereof. Both parties shall issue its decision, in writing, to renew the Agreement, with the exception of the initial two month period, or allow the Agreement to expire a minimum of six (6) months in advance of the expiration date, to ensure a smooth transition if a change is to occur following the end of the then current term. ARTICLE 4. RESPONSIBILITIES OF CONTRACTOR §4.1 Operation of the Nature Center. In the management, supervision, and operation of the Nature Center, CONTRACTOR shall: (a) operate the Nature Center as a municipal Nature Center, open to the general public without discrimination on any basis prohibited by applicable law, regulation or ordinance, subject to this Agreement; Page 3 of 21 (b) operate the Nature Center in a professional, efficient and cost effective manner to provide top quality programs and services at a standard similar to comparable to Nature Centers in the North - Central Texas region; (c) operate the Nature Center in accordance with the CITY's City of Southlake Values outlined in Article 18; (d) adhere to best practice financial management principles, by maintaining timely and accurate accounting records including monthly financial statements consisting of a balance sheet and profit and loss statement; (e) comply with all applicable federal, state and local laws, ordinances, rules, policies, and regulations; (f) maintain a minimum of 40 open hours weekly at days and times to be determined by CONTRACTOR with approval by the CITY ADMINISTRATOR in which the Nature Center and its building(s) will be staffed, and providing service to the public. (g) Keep the Nature Center open during the designated days and hours of operation, and retain employees sufficient and necessary to assure operation of the Nature Center at a standard comparable to Nature Centers in the North - Central Texas region; (h) establish, develop and implement ongoing, year- round, successful programs and events for all ages at a standard comparable to Nature Centers in the North - Central Texas region; (i) ensure exceptional customer service in the delivery of all aspects of nature center services provided; (j) maintain the Nature Center in a condition that is generally accepted in the Nature Center industry and by the CITY as safe; (k) maintain all personal property in good working order and replace items when necessary to operate the Nature Center at the standards set by the CITY. (I) comply with all applicable government health, safety and environmental regulations; (m) pay all operating expenses of the Nature Center, except for those expenses which the CITY agrees herein to pay. CITY shall pay for (i) repairs, janitorial and facilities maintenance, general grounds keeping services, and (ii) water, trash /recycling, sewer, electricity, natural gas, and security (alarm monitoring) expenses. •' 1 Page 4 of 21 (n) Prohibit sales, possession and consumption of alcohol on the Nature Center premises at any time unless proper permits are applied for and received. (o) Assist the CITY in gaining Leadership in Energy and Environmental Design ( "LEED ") certification for the Nature Center. (p) notify CITY when, in the opinion of CONTRACTOR, any part of the Nature Center maintained by CITY requires maintenance. Notification should be made in writing, to the CITY ADMINISTRATOR or his /her designee. If however, the parties disagree about the condition and /or required maintenance of the CITY - maintained facilities, CONTRACTOR will notify CITY in writing of the reasons behind CONTRACTOR'S request. CITY will respond to CONTRACTOR in writing within ten (10) business days of receipt of CONTRACTOR'S written request. CITY's determination regarding the need for maintenance will be final. (q) submit all required reports as specified per Article 8. §4.2 Rules and policies. CONTRACTOR agrees not to make any significant physical improvements without written approval from the CITY ADMINISTRATOR. All proposed projects /improvements will be considered on a project by project basis and must be consistent with the overall intended use of the Nature Center as per the current, adopted Bob Jones Nature Center & Preserve Master Plan. Requests for CITY approval must be made ninety (90) days in advance of the proposed installation date of any proposed improvement. CITY ADMINISTRATOR is the point of contact for any desired improvements or modification, and will determine the appropriate course of action for CITY approval. Any improvements or modifications to the Nature Center that are of a permanent nature or installed as fixtures to the Nature Center, shall become the property of the CITY. §4.3 CONTRACTOR'S responsibility for furnishings and equipment. CONTRACTOR shall provide all necessary office and needed supplies for the operation of the Nature Center, including, but not limited to, any additional office furniture and supplies, and other equipment needed for the operation of the Nature Center comparable to other Nature Centers in the North - Central Texas region. CONTRACTOR will be permitted to close or partially close the Nature Center on designated CITY holidays, designated Nature Center holidays, and for inclement weather (on- going rain or snow, temperatures below 40 F, or approaching severe weather such as tornadoes) with appropriate notice given to CITY in a form determined by the CITY 9B -11 Page 5 of 21 ADMINISTRATOR or his /her designee. CITY reserves the right to close and /or approve the closing of the Nature Center at times other than as provided in this Agreement. Nothing herein shall render CONTRACTOR ineligible for Southlake Parks Development Corporation (SPDC) funding. CONTRACTOR is required to make application for such programming and any such application will be considered in the same manner as all other applications. CITY owned property and fixtures located at the Nature Center as of the Beginning Date of this Agreement will remain at the Nature Center for the use of the CONTRACTOR in the operation of the Nature Center. However, said property will remain CITY property and shall be returned to the CITY upon request. An inventory of CITY owned property and fixtures located at the Nature Center will be completed by the CITY prior to the beginning date of this agreement. §4.4 Promotion of Nature Center activities. (a) CONTRACTOR agrees to use reasonable efforts to conduct a continuous program of marketing which will include but not be limited to maintaining a website, advertising, public relations, and promotional activities to assure that the Nature Center has an appropriate and ongoing visual image and presence in print and communications media. All marketing shall note that the Nature Center is a CITY facility. (b) CONTRACTOR may be required to offer Southlake residents the opportunity to register early for all Nature Center activities at the discretion of the CITY ADMINISTRATOR. (c) CITY will provide a specific section in the Southlake Scene and /or its website for marketing of the Nature Center and Nature Center programs and events. Content must be provided to CITY by the due date set by CITY. The CITY will communicate the due date to CONTRACTOR, in writing, at least thirty days in advance of the due date. (d) CITY will provide links to the CONTRACTOR website and post events and press releases as content is approved by the CITY. CONTRACTOR will not determine any CITY website written or visual content, nor press release content. The CITY will work with CONTRACTOR to provide reasonable coverage. 9B -12 Page 6 of 21 (e) CONTRACTOR content requests to be sent out by CITY press release or placed on CITY calendars must be received by CITY from CONTRACTOR 30 days prior to event, unless approved by CITY ADMINISTRATOR or his /her designee. (f) CONTRACTOR agrees to work with the CITY in developing a sponsorship program and package that corresponds to the CITY Sponsorship Policy. §4.5 Nature Center personnel. (a) CONTRACTOR shall recruit, interview, and hire the employees for the Nature Center, including management and other necessary staff determined by CONTRACTOR to be necessary for the operation of the Nature Center to the CITY's standards. All personnel shall be employees of CONTRACTOR or independent sub - contractors of CONTRACTOR, and not employees or independent sub - contractors of CITY. (b) CONTRACTOR shall ensure that its employees and contractors maintain a professional appearance and demeanor at all times, and that all employees shall wear neat appearing uniform shirts, or nametags clearly identifying them as employees of CONTRACTOR, and ensure 100% of both employee and contract staff who are employed at the time of the annual training participate in annual customer service training approved and provided by the CITY (c) CONTRACTOR shall establish requirements for employees at least as stringent as those established by the CITY'S personnel policies with respect to CONTRACTOR's employees and contractors assigned to the Nature Center, including the responsibility to conduct pre - employment and annual criminal background checks and pre - employment and for -cause drug screenings. CONTRACTOR shall not assign to the Nature Center, even on a temporary basis, any person who has not successfully passed or who fails such criminal background checks or screenings. CONTRACTOR will provide results of such screenings to CITY. CITY will provide a copy of the CITY'S personnel policies to CONTRACTOR and arrange for CITY'S Director of Human Resources to meet with and review all applicable policies with CONTRACTOR on an annual basis and upon request of CONTRACTOR. 9B -13 Page 7 of 21 CITY will also inform CONTRACTOR regarding CITY'S current testing and screening procedures and vendors. (d) CONTRACTOR shall immediately notify the CITY ADMINISTRATOR of any personnel or other issues, identified in current or post - employment, that could impact the health, safety or welfare of Nature Center patrons, or that could prove to be detrimental to the public image of the Nature Center and /or the CITY. §4.6 Operations review. (a) Periodically, but not less than every other month, CONTRACTOR shall meet with CITY ADMINISTRATOR or his /her designee to review the CONTRACTOR's management, promotional activities, programs, finances, and policy recommendations concerning the Nature Center. At the meeting, CONTRACTOR will make reports available as may reasonably be required by CITY ADMINISTRATOR. Each month CONTRACTOR will provide monthly financial statements including a balance sheet and profit and loss statement, a monthly attendance report, a monthly volunteer tracking report tracking all volunteers and volunteer hours, and a monthly program /event participation report as defined by the CITY ADMINISTRATOR. The CITY ADMINISTRATOR will provide a written list of topics to be covered and documentation requested to the CONTRACTOR at least one week prior to each meeting. §4.7 Performance Measures. CONTRACTOR will be required to meet performance measures which include: (a) Customer Satisfaction: The CITY's Customer Satisfaction Surveys shall be distributed by the CONTRACTOR to all program participants for continual customer feedback to the CITY. The CONTRACTOR and the CITY agree that the CONTRACTOR shall maintain a positive overall satisfaction rating of at least 98% with the CONTRACTOR'S programs and services. (b) Participation Levels: The CONTRACTOR must maintain successful program participation levels for both youth and adults. The CITY and CONTRACTOR agree that participation levels should increase by 3% per year, beginning October 1, 2012, unless the CONTRACTOR can demonstrate nature center capacity constraint or some other reasonable issue that prevented the growth. NAMFE Page 8 of 21 (c) Complaints: The CONTRACTOR must respond to all written (complaint form, and email) inquiries and complaints from users within two (2) business days and produce a monthly report to the CITY ADMINISTRATOR regarding the complaints and the CONTRACTOR'S responses. The CITY agrees to also forward any inquiries and complaints it received to the CONTRACTOR in writing within two (2) business days. (d) Cleanliness of Facility: The CITY will utilize a facility scorecard to inspect the Nature Center on a monthly basis. The CONTRACTOR must maintain an annual rating of at least 95% on the monthly facility inspections for only the areas within their responsibility, and in their control. §4.8 Licenses, bonds and permits. CONTRACTOR shall obtain all licenses and permits required by governmental entities for activities conducted at the Nature Center. CONTRACTOR will provide a copy of all licenses to the CITY ADMINISTRATOR. § 4.9 Information Technology. (a) CITY shall continue to provide CONTRACTOR program registration and facility rental software (i.e. "Recware ") for the first eighteen (18) months of this Agreement. (b) After the above eighteen (18) month period has lapsed, CONTRACTOR will be responsible for providing its own program registration and facility rental software to manage all program and event registration and facility rentals. (c) CONTRACTOR will be responsible for all technical support for software and hardware utilized in the management of the Nature Center. (d) CONTRACTOR will be responsible for obtaining the Internet service necessary for the operation of the Nature Center. (e) CONTRACTOR will be responsible for obtaining the phone service necessary for the operation of the Nature Center. ARTICLE 5. CITY RIGHTS AND RESPONSIBILITIES § 5.1 CITY responsibilities. (a) The CITY will provide any and all documented accounting and attendance history (monthly and annually) of classes, birthday parties and any other activities offered by the CONTRACTOR broken into categories and sub categories where appropriate, on or near the Beginning Date of this Agreement. 9B -15 Page 9 of 21 (b) CITY shall consider, through CITY's normal approval process, a beer and wine permit to cover a minimum of four (4) events per year. CONTRACTOR'S request for a permit must be submitted to the CITY through the CITY ADMINISTRATOR, or his /her designee, at least 90 days prior to the event when possible. The events must meet all current CITY guidelines and policies, and abide by TABC rules. CONTRACTOR must provide CITY with all required documentation at the time of the permit application. (c) CITY will provide and determine all signage to be placed on and around the Nature Center and Preserve with the goal to ensure the consistency of all signage. CONTRACTOR will help CITY determine signage needs prior to creation of and placement of signage. CITY will provide CONTRACTOR with sixty (60) day notice before any signs are created or placed to allow for a period of review and discussion. (d) CITY will identify and determine standards for all Nature Center park amenities such as benches, tables, fencing, and other hardscapes with the goal to ensure consistency. (e) CITY will work to make sure that classes and programs offered by CONTRACTOR are not offered also by the CITY. CITY may provide nature oriented programming at the Nature Center and in other venues throughout the City but will identify such programming to CONTRACTOR for review and comment ninety (90) days prior the scheduled class or program date to allow for effective coordination. (f) CITY will diligently work with Contractor to obtain Leadership in Energy and Environmental Design certification for the City. (g) CITY shall be responsible for the physical maintenance of, and pay for, all necessary repairs to the physical conditions of the Nature Center, including but not limited to repairs to all structures (including repairs to foundations, walls, roofs, etc.), lawns, parking areas, sidewalks, seating, trails and walkways, landscaping (including landscape lighting), entrance gate and fencing. CITY shall also be responsible for all general clean -up (including providing interior janitorial services five days /week, as long as the CITY determines that five days /week remains necessary), plumbing, electrical, heating, ventilating and air conditioning, and natural gas systems and fixtures. CONTRACTOR agrees that CONTRACTOR will assist with day -to -day general clean -up in preparation for and following all classes, programs, events and activities the CONTRACTOR provides. CITY agrees to maintain the Nature Center in a good and operational condition in keeping with the CITY's standards CONTRACTOR shall assist the CITY by notifying the CITY in writing of any specific needs for repair. Page 10 of 21 § 5.2 CITY RIGHTS (a) CITY may utilize the Nature Center for CITY meetings, events and programs. CITY will provide CONTRACTOR with sixty (60) day notice of upcoming usage and will work with CONTRACTOR to avoid scheduling conflicts. (b) CITY shall prominently display signage, provided by the CITY that highlights the Nature Center as a CITY facility; provides contact information for Nature Center user comments, questions and concerns; and advertises the CITY'S ongoing customer satisfaction feedback program. (c) CITY shall conduct unscheduled inspections to assess the current conditions of the facility, grounds and equipment using the CITY'S facility scorecard; and to disseminate customer satisfaction comment cards and /or collect surveys. (d) CITY may conduct interim surveys as needed to regularly benchmark user satisfaction on programs, services and facilities. (e) CITY shall, at all times deemed appropriate by CITY, have the right to require the CONTRACTOR to forward electronic mail messages to the CONTRACTOR'S customer database. CITY will provide CONTRACTOR with the content of the electronic mail message it wishes to send to CONTRACTOR'S customer database no later than five (5) days prior to the date CITY wishes the electronic mail message to be sent. CONTRACTOR agrees to forward the electronic mail message on the date requested by CITY and provide CITY with documentation outlining the number of electronic mail messages forwarded, the content of the electronic message and date the electronic mail message was sent. ARTICLE 6. CONSIDERATION §6.1 Management fee due to CONTRACTOR. As consideration and compensation for the management, operation and supervision of the Nature Center, CONTRACTOR shall receive an annual payment in the amount of $100,000 to be dispersed annually on November 1 of each year. The annual payment amount is subject to the annual City Council budget authorization. For FY 2012, CITY will pay the prorated amount for the remainder of FY 2012 within 30 days of execution of contract. §6.2 Revenues due to CITY. CONTRACTOR shall pay CITY an annual payment for revenues collected for usage fees, if used, and rental fees as per the percentages specified in 9B -17 Page 11 of 21 Article 7, Section 7.1 below. CONTRACTOR will disperse payment annually on November 1 of each year. §6.3 Following an annual review in accordance with Article 8, either party may request a review and re- consideration of the fees and finance reports required under Article 6 and Article 7 by sending written notice of such request for renegotiation within 30 days following completion of the annual review. Any changes to the agreement regarding the fees and financial reporting resulting from such renegotiation shall be effective only if approved by both the CONTRACTOR and the CITY'S Council and agreed in writing by the parties. In the event of such a modification to the fees and financial reporting, the remaining terms of the contract shall remain unchanged, unless agreed otherwise by the parties. Such considerations would not result in the CONTRACTOR recovering an amount less than that sufficient to cover all of the CONTRACTOR'S facility related operating expenses. ARTICLE 7. FINANCES §7.1 Fees and charges. (a) Fees to be charged for activities and programs at the Nature Center will be determined by the CONTRACTOR. CITY and CONTRACTOR agree that fees should be sufficient to pay operating expenses, but also be competitive with fees charged at comparable Nature Centers in the North - Central Texas region . CONTRACTOR shall receive 100% of activities and programs fees. For the first 18 months of the contract, the CITY will receive 20% of activities and programs fees provided the CONTRACTOR is using the City's Recware program for class scheduling and registration. (b) Facility or grounds usage fees (i.e., admission fees), if used, must be approved by CITY, and revenues from usage fees will be shared between CONTRACTOR (50 %) and CITY (50 %). (c) Facility and pavilion rental fees will be shared between CONTRACTOR (50 %) and CITY (50 %). (d) Prices charged for food, beverages, and merchandise shall be determined by CONTRACTOR. CONTRACTOR shall receive 100% of food, beverage and merchandise sales. (e) All patrons of the Nature Center shall be charged according to a published schedule of fees and charges. Neither CONTRACTOR nor CONTRACTOR's Page 12 of 21 employees, agents or sub - contractors shall waive any usage fees without CITY ADMINISTRATOR approval. §7.2 Annual operating budget. (a) CONTRACTOR shall submit any proposed budget requests to the CITY ADMINISTRATOR by April 1 of each year for review of potential impact to the CITY'S operating budget and capital improvements budget after an annual inspection and review of facility by both parties. ARTICLE 8. ACCOUNTING, REPORTS, AND AUDITS §8.1 Accounting records. CONTRACTOR shall maintain efficient and accurate accounting records in accordance with generally accepted accounting principles in the format defined by the CITY's Finance Director. §8.2 Annual financial review. Within 90 days after the close of each fiscal year of the CITY, CONTRACTOR shall submit to CITY Finance Director a financial review certified by CONTRACTOR, covering the specific financial condition and performance of the Nature Center. The financial review must span the fiscal year then ended. CITY reserves the right to require a full audit, at its expense, certified by a certified public accountant, should there be reason to believe an audit is warranted. If an audit is required and the audit report does not contain an "unqualified opinion," CITY may take such steps as it determines are necessary to obtain an unqualified opinion, and will provide a one week notice of its intent to do so. CITY may terminate this Agreement if CONTRACTOR fails to provide an unqualified opinion within 120 days of the end of a fiscal year. §8.3 CITY'S right to inspect and audit. CITY has the right to inspect the books, records, invoices, deposits, sales slips, canceled checks, and other financial data or transactions of CONTRACTOR's operation of the Nature Center at reasonable times during normal business hours. CITY also has the right to select an independent accounting firm to inspect or audit the books and records of the operation of the Nature Center. §8.4 Location of records. CONTRACTOR shall store all current fiscal year Nature Center records at the Nature Center. §8.5 Fiduciary relationship. CONTRACTOR has a fiduciary duty to CITY in all of CONTRACTOR'S financial obligations to CITY in accordance with this Agreement, including, but not limited to, faithfully accounting, depositing, and reporting all payments hereunder. Page 13 of 21 ARTICLE 9. INDEMNITY AND INSURANCE §9.1 Indemnity By CONTRACTOR. CONTRACTOR ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR AND AGREES TO FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY AND ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES AND EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF A PERSON OR DAMAGE TO PROPERTY, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE OPERATION OF THE NATURE CENTER, AND THE PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THE WORK AND SERVICES DESCRIBED HEREUNDER OR IN ANY WAY RESULTING FROM OR ARISING OUT OF THE MANAGEMENT, SUPERVISION, AND OPERATION OF THE NATURE CENTER UNDER THIS AGREEMENT, INCLUDING THE WORK, SERVICES, OPERATIONS AND LEGAL DUTIES OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, SUBCONTRACTORS, OR LICENSEES, IF ANY, REGARDLESS OF WHETHER SUCH INJURY, DEATH, OR DAMAGE IS CAUSED IN PART BY THE CITY'S NEGLIGENCE. NO PROVISION OF THIS AGREEMENT SHALL BE CONSTRUED AS WAIVING ANY DEFENSE OF THE PARTIES UNDER TEXAS LAW, INCLUDING THE DEFENSE OF GOVERNMENTAL IMMUNITY FROM SUIT OR LIABILITY. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. §9.2 Insurance . (a) CONTRACTOR shall obtain public liability insurance of the types and in the amounts set forth below from an underwriter licensed to do business in the State of Texas. CONTRACTOR shall furnish to CITY certificates of insurance or copies of the policies, evidencing the required insurance on or before the beginning date of this Agreement. CONTRACTOR agrees to submit new certificates or policies to CITY at least 30 days before the expiration date of the previous certificates or policies. The insurance shall be the following types in amounts not less than the indicated amounts: A' 1 Page 14 of 21 (1) Worker's Compensation and Statutory Employer's Liability or acceptable alternative. (2) Comprehensive General (Public) Bodily injury: Liability (or its equivalent), including $ 500,000 each person but not limited to the following: $1,000,000 each occurrence (i) premises /operations and (ii) independent contractors Property damage: (iii) personal injury $ 250,000 per occurrence (iv) products /completed operations or $1,000,000 combined single limit for bodily injury and property damage. (3) Property insurance for physical Coverage for minimum of damage to the property of 100% of the fair market value CONTRACTOR located at the of the property. Nature Center. (4) Automobile liability, including Bodily injury: coverage for the following: $ 500,000 each person $1,000,000 each occurrence (i) owned /leased automobiles and (ii) non -owned automobiles Property damage: (iii) hired cars $ 250,000 per occurrence $1,000,000 combined single limit for bodily injury and property damage. (b) On all insurance required in Subsections (a) and (b), CONTRACTOR shall require that the insurance provider: 9B - 21 Page 15 of 21 (1) name CITY its officers and employees as an additional insured; (2) provide a waiver of subrogation in favor of CITY; and (3) provide that the issuing insurance company provide 30 days' prior written notice to CITY of any material change to or cancellation of the insurance. ARTICLE 10. TERMINATION §10.1 For default. CITY may terminate this Agreement in accordance with this article for a default by CONTRACTOR. §10.2 What constitutes a default. (1) The following events constitute a default by CONTRACTOR: (a) a breach of the fiduciary obligations of CONTRACTOR under Sections 6.1, 6.2, 7.1, and 8.5 of this Agreement; (b) filing by CONTRACTOR of a voluntary petition for protection under federal bankruptcy laws, or the failure to obtain the dismissal of an involuntary petition under federal bankruptcy laws within 30 days after filing; (c) the inability of CONTRACTOR to provide an unqualified opinion in any required annual audit report in accordance with Article 8; (d) a failure of CONTRACTOR to perform its duties under this Agreement; or (e) The commission by CONTRACTOR or any of CONTRACTOR's employees or contractors of a felony or crime of moral turpitude if the CITY, in its sole discretion, reasonably believes that CONTRACTOR or CONTRACTOR's employee or contractor committed the act (regardless of whether convicted) and that the act suggests that the employee constitutes a threat to the users of the Nature Center or the public at large, or that the act could, on becoming public knowledge, impair the public's confidence or trust in the CITY or CONTRACTOR or the personnel at the Nature Center or in the operation of CITY government in general. (2) The following events constitute a default by CITY: (a) A breach of the fiduciary obligations of the CITY under Section 6.1 of this Agreement. (b) A failure on the part of the City to maintain the Nature Center in a good and operational condition, fulfill all of its obligations regarding the physical 9B - 22 Page 16 of 21 maintenance of the Nature Center, and make timely repairs as requested by Contractor in accordance with 5.1(g) of this Agreement. (c) A failure of CITY to perform any of its duties under this Agreement. §10.3 Correction. (1.) CONTRACTOR shall have 30 days after written notice from CITY specifying the nature of a default under Section 10.2(1)(e) because of the commission of an offense by an employee or contractor of CONTRACTOR, to correct the default (including without limitation, terminating the employment of an employee who causes a default of the agreement under Section 10.2(1)(e) by committing a felony or crime of moral turpitude), provided that this provision shall not apply unless CONTRACTOR shall immediately place such employee on leave or re- assign such employee to another location. If the default is of such a nature that it cannot reasonably be corrected within 30 days, the CITY may grant CONTRACTOR additional time as may be reasonably necessary to correct the default so long as CONTRACTOR diligently pursues the correction, and takes all reasonable measures to insure the safety of the public and fulfillment of CONTRACTOR'S other obligations hereunder. (2) CITY shall have 30 days after written notice from CONTRACTOR specifying the nature of a default under Section 10.2(2) to cure the default. If the default is of such a nature that it cannot reasonably be corrected within 30 days, the CONTRACTOR may grant CITY additional time as may be reasonably necessary to correct the default so long as CITY diligently pursues the correction, and takes all reasonable measures to insure the safety of the public and fulfillment of CITY'S other obligations hereunder. §10.4 Election to terminate. (1) CITY may elect to terminate this Agreement pursuant to this article by giving written notice of default to CONTRACTOR. If the default is under Section 10.2(1)(a), (b), or (d), or is under Section 10.2(1)(e) because of the commission of an offense by CONTRACTOR, this agreement shall terminate immediately upon delivery of written notice from CITY to CONTRACTOR of its election to terminate the agreement. If the default is under Section 10.2(1)(e) because of the commission of 9B - 23 Page 17 of 21 an offense by an employee of CONTRACTOR, this Agreement shall terminate upon expiration of the correction period if correction has not been made pursuant to Section 10.3, and CITY delivers to CONTRACTOR written notice of its election to terminate the Agreement via certified mail. (2) CONTRACTOR may elect to terminate this Agreement pursuant to this article by giving written notice of default to CITY. This Agreement shall terminate upon expiration of the correction period if correction has not occurred pursuant to Section 10.3 and CONTRACTOR delivers written notice to City of its election to terminate the Agreement via certified mail. §10.5 Remedy for certain defaults. If CONTRACTOR defaults under Section 10.2(1)(a), CONTRACTOR shall pay all amounts due CITY at the time of its default under the terms of this Agreement. §10.6 Lien. CITY has, at all times, a valid security interest to secure payment of all fees and other sums of money becoming due under this Agreement from CONTRACTOR and to secure payment of any damages or loss that CITY may suffer by reason of CONTRACTOR'S breaching any covenant, agreement, or condition contained in this Agreement. The security interest covers all goods, wares, equipment, fixtures, furniture, and other personal property of CONTRACTOR that is now on the Property or placed on the Property at some later date, and all proceeds attributable to them. This property may not be removed from the premises without CITY'S consent until all arrearages in fees and all other sums of money then due the CITY under this Agreement have been paid and discharged, and all the covenants, agreements, and conditions of this lease have been fully complied with and performed by CONTRACTOR. If CONTRACTOR is in default, CITY may, in addition to any other remedies provided in this Agreement or by law, after giving reasonable notice of the intent to take possession and giving an opportunity for a hearing on the issue, enter on the Property and take possession of any goods, wares, equipment, fixtures, furniture, and other personal property of CONTRACTOR situated on the premises, without liability for trespass or conversion, and sell the property at public or private sale, with or without having the property at the sale, after giving CONTRACTOR reasonable notice of the time and place of any public sale or of the time after which any private sale is to be made. CITY or its assigns may buy any items to be sold at such a sale unless they are prohibited from doing so by law. Unless otherwise provided by law, and without excluding any other manner of giving CONTRACTOR reasonable notice, the NAME Page 18 of 21 reasonable notice requirement is met if notice is given at least ten (10) days before the time of sale. The proceeds from any such disposition, less any expenses connected with taking possession, holding, and selling the property (including reasonable attorney's fees and other expenses), will be applied as a credit against the indebtedness secured by the security interest granted in this section. Any surplus will be paid to CONTRACTOR or as otherwise required by law, and CONTRACTOR will pay any deficiencies immediately. When City requests, CONTRACTOR will execute and deliver to CITY a financing statement in sufficient form to protect CITYs security interest in the property and proceeds under the provisions of the Business and Commerce Code in force in Texas. §10.7 Other termination. Regardless of the other provisions of this Agreement, either party may terminate this Agreement upon a minimum of ninety (90) days written notice to the other party. The CITY Council shall approve CITY'S termination of the Agreement pursuant to this section. ARTICLE 11. ASSIGNMENT AND DELEGATION Neither party shall assign or delegate this agreement without the prior written consent of the other party. ARTICLE 12. NOTICES All notices to the parties shall be in writing and shall be sent by certified mail, return receipt requested, to the addressees and addresses specified below: All notices to CONTRACTOR shall be sent to: President of the Board of Directors c/o Bob Jones Nature Center Organization 355 E. Bob Jones Rd. Southlake, Texas 76092 All notices to CITY shall be sent to: Director of Community Services City of Southlake 1400 Main Street, Suite 210 Southlake, Texas 76092 9B - 25 Page 19 of 21 ARTICLE 13. MISCELLANEOUS §13.1 Non - Waiver. This Agreement shall not be construed against the drafting party. §13.2 No Waiver. No waiver of any breach of any term or condition of this Agreement shall be construed to waive any subsequent breach of the same or any other term or condition of this Agreement. ARTICLE 14. SEVERABILITY If any provision of this Agreement is held to be invalid or unenforceable as applied in a particular case for any reason, those circumstances shall not have the effect of rendering the provision invalid or unenforceable in any other case. The invalidity of one or more phrases, sentences, clauses, or sections in this Agreement shall not affect the remaining portions of the Agreement. ARTICLE 15. GOVERNING LAW This Agreement shall be governed by and construed under the laws of the State of Texas, and venue in any proceeding relating to this Agreement shall be in Tarrant County, Texas ARTICLE 16. ENTIRE AGREEMENT This agreement constitutes the entire agreement between the parties and neither of the parties shall be bound by any promises, representations or agreements except as expressly set forth in this Agreement. ARTICLE 17. BINDING CLAUSE This Agreement shall be binding upon the parties, their heirs, executors, administrators, devisees, legatees, trustees, successors, and assigns. ARTICLE 18. CITY OF SOUTHLAKE VALUES The City of Southlake has adopted values that are the fundamental principles that guide how members, officials, staff, and employees of the CITY conduct themselves in pursuit of the mission and vision. All business conducted with the CITY shall adhere to the CITY'S organizational values as described below: Page 20 of 21 • Integrity: Being worthy of the public's trust in all things. We deal honestly and respectfully with each other and the public at all times. • Innovation: Valuing progressive thinking, creativity, flexibility and adaptability in service delivery. • Accountability: Taking personal responsibility for our actions or inaction while putting the interests of the taxpayer first. • Commitment to Excellence: Behaving responsively in our delivery of service to the public. Our work is characterized by its quality and by the diligence with which it is carried out. We proactively seek to solve problems in advance. • Teamwork: Recognizing the importance of working together to meet our citizen's needs, communicating clearly, sharing resources and information freely. The values set forth in Article 18 are goals to which CITY officials, staff and employees are expected to adhere to in activities concerning this Agreement. While perceived failure to adhere to, comply with, or take action consistent with these values should be reported to an appropriate CITY official, staff member, or employee, such action or failure to act shall not be considered a breach of this Agreement. EXECUTED this day of , 2012 CITY OF SOUTHLAKE, TEXAS By: Mayor ATTEST: Alicia Richardson, TRMC, City Secretary CONTRACTOR Bob Jones Nature Center Organization President APPROVED AS TO FORM AND LEGALITY: 9B - 27 Page 21 of 21 City Attorney