Item 4JCITY OF
SOUTHLA1 -E
MEMORANDUM
September 12, 2012
TO: Shana Yelverton, City Manager
FROM: Chris Tribble, Director of Community Services
SUBJECT: Approve renewal of the Bob Jones Nature Center & Preserve
Management Agreement
Action
Requested: City Council renewal of the Bob Jones Nature Center & Preserve
( BJNCP) Management Agreement with the Bob Jones Nature
Center organization.
Background
Information: The current BJNCP management agreement with the Bob Jones
Nature Center Organization was approved by the City Council on
June 5, 2012 for an initial term of August 1 - September 30, 2012.
The agreement includes (3) additional three -year renewal options,
with this being the first renewal.
Financial
Considerations: The agreement calls for the City to pay the contractor a $100,000
annual payment and be responsible for grounds maintenance,
facility and equipment maintenance and utilities totaling
approximately $44,000. No significant additional operating costs
beyond those listed above are anticipated with the contract.
Funding for BJNCP operations and the management agreement
has been included in the proposed FY 2013 General Fund
Operating Budget.
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 has reviewed and recommended the agreement.
Alternatives: City Council action to approve the renewal
City of Southlake Values:
Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork
Shana Yelverton, City Manager
City Council Meeting Date — September 18, 2012
Page 2 of 2
City Council action to decline the renewal
Supporting
Documents: Copy of approved Bob Jones Nature Center & Preserve
Management Agreement
Staff
Recommendation: City Council renewal of the BJNCP Management Agreement with
the Bob Jones Nature Center organization.
City of Southlake Values.
Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork
CITY OF
SOUTHLAKE
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.
(1) 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.
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
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.
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.
Page 7of21
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 bevels: 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.
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.
(e) Satisfaction Survey: A customer satisfaction survey will be performed by
the CITY at a time when the performance of other city services are being
surveyed (typically every other year), at the CITY's expense. The
CONTRACTOR and the CITY agree that the CONTRACTOR shall maintain a
positive rating of at least 85% meaning that 85% of the responses to the
survey will rank their overall satisfaction with the CONTRACTOR as either
"somewhat satisfied" or "very satisfied ", excluding those who answer "no
experience ", "no comment ", or "neither satisfied, nor dissatisfied ". The CITY
will allow CONTRACTOR to review each customer satisfaction survey at least
five (5) days prior to the date the survey is performed.
§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_
Page 9 of 21
(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.
(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
Page 10 of 21
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.
§ 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.
Page 11 of 21
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 quarterly by November
1, February 1, May 1, and August 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
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.
Page 12 of 21
(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
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.
Page 13 of 21
§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' 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
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.
Page 14 of 21
§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:
(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
Page 15 of 21
$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:
(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
Page 16 of 21
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
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
Page 17 of 21
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
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.
Page 18 of 21
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
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.
§10.8 In the event of termination by either party, the payment from the City required in
this Agreement will be prorated to the date of termination, and CONTRACTOR shall return the
unaccrued balance to the City within 10 days of the date of termination.
ARTICLE 11. ASSIGNMENT AND DELEGATION
Neither party shall assign or delegate this agreement without the prior written consent of
the other party.
Page 19 of 21
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
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,
7 exas.
Page 20 of 21
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:
• 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.
Page 21 of 21
EXECUTED this day of u .2012
CITY OF SOUTHLAKE, TEXAS
ti +src:ar rar By:
V T H rr'•
`. 5�•, ..r�.'•• Mayor
ATTEST: = >-;' •s
-t ~s
Alicia Richardson, TRMC, City Secrjtft.1 - - ** ��•`'
CONTRACTOR
By:
Bob Jones Nature Center Organization
President
APP VE S t M EGALITY
/LYh
City Attorney