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Item 4JCITY OF SOUTHLAKE MEMORANDUM June 4, 2015 TO: Shana Yelverton, City Manager FROM: Chris Tribble, Director of Community Services 4,11 - 1 SUBJECT: Renewal of Bob Jones Nature Center & Preserve Management Agreement Action Requested: City Council approval to renew 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 (BJNCO) was approved by the City Council on June 5, 2012 for an initial term of August 1-September 30, 2012. The agreement included (3) additional three-year renewal options. On March 18, 2012, City Council approved the first of the three optional renewals for the term October 1, 2012-September 30, 2015. The proposed Agreement presented at this time will be the second, three-year renewal option. The proposed renewal is for a three (3) year term, October 1, 2015—September 30, 2018. Based on the performance of Bob Jones Nature Center organization throughout the existing agreement, staff recommends the renewal of the agreement for the management of the Bob Jones Nature Center & Preserve and to provide nature programs to the community. Financial Considerations: The Contractor is responsible for all staffing, furnishings, supplies, and telephone. 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. 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 City of Southlake Values: Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork Shana Yelverton, City Manager Meeting Date — June 16, 2015 Page 2 of 2 4,11 -2 the Corporate Objectives to Collaborate with Select Partners to Implement Service Solutions. Citizen Input/ Board Review: Parks & Recreation recommended approval (4-0) June 8, 2015 Bob Jones Nature Center Board consideration June 10, 2015 City Council consideration June 16, 2015 Legal Review: City Attorney reviewed previous BJNCO agreement. Alternatives: City Council approve renewal of the Bob Jones Nature Center & Preserve (BJNCP) Management Agreement with the Bob Jones Nature Center organization. City Council decision not renew the Bob Jones Nature Center & Preserve (BJNCP) Management Agreement with the Bob Jones Nature Center organization. Supporting Documents: Proposed renewal agreement Staff Recommendation: City Council approval to renew the Bob Jones Nature Center & Preserve (BJNCP) Management Agreement with the Bob Jones Nature Center organization for a three (3) year term, October 1, 2015—September 30, 2018. City of Southlake Values. Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork CITY OF SOUTHLAKI 4J - 3 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 501 C3 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, 201 . 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 4J - 4 §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 October A4g4st 1, 201 and expires on September 30, 201 with two t ( ), 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 4J - 5 (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. Page 4 of 21 4J - 6 (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 4J - 7 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 4J - 8 (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 7 of 21 4J - 9 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. Page 8 of 21 4J - 10 (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. ) CI�mhoI�Tt�Niue—tprG side COnITC?ACTOC? prngrarn reggistratcicTni--ernnra fagili�TeRtA—1 4YVA—F ReGWaFe") fgr tht f�t �"����icc n (19) mgnthG 9f /a this greement ,.(a) Aftertea„e eighteen (19) month p ri„�s1�sed- CONTRACTOR will be responsible for providing its own program registration and facility rental software to manage all program and event registration and facility rentals. {G}L�j CONTRACTOR will be responsible for all technical support for software and hardware utilized in the management of the Nature Center. Page 9 of 21 4J - 11 CONTRACTOR will be responsible for maintaining abta+n+ng internet service necessary for the operation of the Nature Center. CONTRACTOR will be responsible for maintaining sbta+n+ng phone service necessary for the operation of the Nature Center. ARTICLE 5. CITY RIGHTS AND RESPONSIBILITIES § 5.1 CITY responsibilities. the (`ONTD A GTO hreL�T tegeFios A.PP1 s, ih A-ategeFies eihoro apprepria�R�� , poor the BeginniRg Date of this Agroomopt kb-)LqL 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. {.}LI2.L 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-)jg_L__ 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. {e7jsj) CITY will work to make sure 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. #4LgL_ CITY will diligently work with CONTRACTOR to obtain Leadership in Energy and Environmental Design certification for the City. Page 10 of 21 4J - 12 {g4JL 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. § 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 Page 11 of 21 4J - 13 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 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. Fer FY 22012, CITY will pa„ the prnra+orl Omni in+ fnt#crem 0 A aPr rcr-vi iTi Q 1 22 vog miti li R 3 0 d ays ef exe�t 0. AG R A-f GG4 A §6.2 Revenues due CONTRACTOR shall nazi CITY an aRRual naymert fer fees, Of used, and rental fees as per the PeFGeRtages speGifiedd iin §6.23 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. CNrtifirs+ 18 mnn+h�thiannn+r��the CITYTcn6�`024- of Tice? 0 Page 12 of 21 (b) Facility or grounds usage fees (i.e., admission fees), if used, must be approved by CITY, and 100% of revenues from usage fees will be retained by {G}� Facility and pavilion rental fees will be retained by the s"aared Sh AWoon CONTRACTOR. o 0 04LgL Prices charged for food, beverages, and merchandise shall be determined by CONTRACTOR. CONTRACTOR shall receive 100% of food, beverage and merchandise sales. {e3L�L 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 Page 13 of 21 4J - 15 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. 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 Page 14 of 21 4J - 16 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: (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 (ii) independent contractors (iii) personal injury (iv) products/completed operations (3) Property insurance for physical damage to the property of CONTRACTOR located at the Nature Center. and Property damage: $ 250,000 per occurrence or $1,000,000 combined single limit for bodily injury and property damage. Coverage for minimum of 100% of the fair market value of the property. Page 15 of 21 (4) Automobile liability, including coverage for the following: (i) owned/leased automobiles (ii) non -owned automobiles (iii) hired cars Bodily injury: $ 500,000 each person $1,000,000 each occurrence and Property damage: $ 250,000 per occurrence $1,000,000 combined single limit for bodily injury and property damage. 4J - 17 (a) 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 Page 16 of 21 4J - 18 (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 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. Page 17 of 21 4J - 19 (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 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 Page 18 of 21 4J - 20 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 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 un-accrued balance to the CITY within 10 days of the date of termination. Page 19 of 21 ARTICLE 11. ASSIGNMENT AND DELEGATION 4J - 21 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 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. Page 20 of 21 4J - 22 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: • 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 , 20154-2 CITY OF SOUTHLAKE, TEXAS By: Mayor ATTEST - Al 0. r__ m­;; Dinh.;ridc;r-nLori Payne, TRMC, City Secretary CONTRACTOR By: APPROVED AS TO FORM AND LEGALITY: City Attorney 4J - 23 Bob Jones Nature Center Organization President