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HomeMy WebLinkAboutContract 46694 CITY SECRiETAW.a�� �, 1 CONTRACT NO. "C AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FRIENDS OF THE FORT WORTH NATURE CENTER AND REFUGE, INC. THIS LICENSE AGREEMENT ("Agreement") is made and entered into by and between the City of Fort Worth,Texas, a home rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager, and the Friends of the Fort Worth Nature Center and Refuge, Inc., a legally constituted non-profit entity ("Friends"), acting by and through its duly authorized President. WHERAS, the Friends was formed in 1974 to support the operation of the Fort Worth Nature Center and Refuge("Nature Center")through financial and in-kind contributions; WHEREAS, on November 20, 1984, the Fort Worth City Council approved M&C C-8732, which authorized the City Manager to enter into a contract with the Friends for the operation of a gift shop at the Hardwicke Interpretive Center of Nature Center for the benefit of the Nature Center; WHEREAS, on December 21, 1984, pursuant to the authority granted by M&C C-8732, the City and the Friends entered into a Concessionaire Agreement,the same being City Secretary Contract(`CSC") Number 14164; WHEREAS, on December 12, 1995, the Fort Worth City Council approved M&C C-15819, which authorized the City Manager to execute an agreement with the Friends regarding management of the bison collection; WHEREAS, on February 21, 1996,the City and the Friends entered into an Animal Transfer and Trust Agreement,the same being CSC Number 21669; WHEREAS, on March 11,2010,the parties entered into a new license agreement to update and replace CSC 14164 for the stated purpose of providing the best practicable atmosphere and operation of the Nature Center for the benefit of the public while preserving the non-commercial atmosphere of the Nature Center, the same being CSC 39920 (`License Agreement"); WHEREAS, on December 20, 2005, the City and the Fort Worth Nature Center and Refuge Conservancy, Inc., (`Conservancy"), an organization organized to support and promote the activities of the Nature Center, entered into an agreement for the operation and maintenance of an access gate at the Nature Center, the same being City Secretary Contract (`CSC") Number 32955, as renewed or amended by CSC Numbers 34840, 36204, 32955-01, 32955-02, 32955-R5, and 32955-R6(`Access Gate Agreement"); m C-) WHEREAS, pursuant to the Conservator's Contract, the City agreed to operate and maintain an entry M gate primarily for the purpose of collecting entry fees in the Nature Center with all revenue generated therefrom mto be deposited into a special fund maintained by the Conservancy and used only for the operation, expansion, 0 or improvement of the Nature Center, X —ne WHEREAS, in order to create on dynamic organization with increased capacity for excellences and tv community impact in the provision of support for the Nature Center,the Conservancy merged with and into the NFriends on or about December 31, 2011, wherein the Conservancy ceased to exist with the Friends acting as the C= surviving corporation; WHEREAS, from and after the effective date of the above-stated merger, the Friends legally possessed all of the rights, privileges, and powers and became subject to all of the restrictions, liabilities, and obligations of the Conservancy, including, without limitation, the assumption of all duties and liabilities and the performance of all obligations and covenants of the Conservancy under the Access Gate Agreement; WHEREAS, because of the above-stated merger, the parties now wish to combine the responsibilities and obligations contained in the License Agreement and the Access Gate Agreement with the intent this new agreement supersede the above-referenced contracts; OFFICIAL RECORD Agreement with the Friends of the Fort Worth Nature Center and Refuge,Inc. CITY SECRETARY I of 15 FT.. WORTH, TX WHEREAS, on November 15, 2011, the Fort Worth City Council authorized the execution of this Agreement through Mayor and Council Communication C-25292; and NOW THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: SECTION 1. TERMINATION OF PRIOR AGREEMENTS 1.01 The License Agreement and the Access Gate Agreement shall automatically terminate and be superseded by this Agreement upon the Effective Date of this Agreement. Nothing contained herein shall serve to relieve the parties of any obligations under the License Agreement or the Gate Access Agreement that existed prior to the termination thereof. SECTION 2. PURPOSE 2.01 It is understood and agreed that the purpose of this Agreement is to provide the best practicable atmosphere and operation of the Nature Center for the benefit of the public while preserving the non- commercial atmosphere of the Nature Center. SECTION 3. USE OF NATURE CENTER BY FRIENDS 3.01 For the purposes of this Agreement,the term "Director"shall refer to the Director of the City's Parks and Community Services Department and that individual's designees and shall include the Manager of the Nature Center. 3.02 City grants the Friends a non-exclusive license and privilege to operate, as an independent contractor, a gift shop in a designated area of the Hardwicke Interpretive Center at the Nature Center. The exact location of the gift shop shall be determined by the Director in that person's sole and absolute discretion and may be subject to change at any time by the Director. All items of merchandise to be sold and all prices to be charged shall be subject to the prior approval of the Director. 3.03 City further grants the Friends a non-exclusive right to sell merchandise or services throughout the Nature Center with the prior written approval of the Director. The Director's approval shall include, but not be limited to,the time, location,and type and prices of merchandise or services to be sold. 3.04 In addition, City grants the Friends, subject to the prior approval of the Director, permission to use the Nature Center at no charge for purposes of conducting mission-oriented programs and events to benefit the Nature Center. The Friends may, with the Director's prior approval, serve or sell beer, wine, or both at fundraising events at the Nature Center, provided the Friends has obtained all permits and permissions required by law and met the requirements of this Agreement with respect to insurance. Under no circumstances may the Friends permit any alcohol other than beer or wine to be served or sold at the Nature Center. 3.05 The Friends shall be responsible for ensuring purchase and maintenance of inventory for the gift shop and for ensuring the proper handling of all proceeds from fundraising and sales of merchandise or services, including maintaining account balances and records and making bank deposits. 3.06 The Friends shall also have a non-exclusive right to use and occupy a portion of the Nature Center to serve solely as office space to a employees and volunteers of the Friends who shall be responsible for overseeing and managing the uses permitted herein ("Office Space"). The exact location of the Office Space within the Nature Center shall be determined by the Director, in that person's sole and absolute discretion and may be subject to change at any time by the Director. License Agreement with the Friends of the Fort Worth Nature Center and Refuge,Inc. 2 of 15 SECTION 4 ACCESS GATE 4.01 The access gate at the Nature Center shall be operated, scheduled, and controlled by the City, through the Director, who shall hire and retain all employees and, who shall have and retain full and complete authority over all employees and volunteers involved in the management, operation, and maintenance of the access gate. All employees shall be paid for said employment through the City. 4.02 City agrees to provide funding to staff the access gate and open the Nature Center to the public on a schedule similar to that of other similar facilities operated by the City. 4.03 The entry fees collected at the Nature Center's access gate by the City shall be placed in a special trust fund maintained by the Friends, titled "Friends of the Fort Worth Nature Center Special Fund", which will be used solely for the operation, expansion, or improvements to the Nature Center. 4.04 The amount of entry fees charged for entry into the Nature Center shall be determined by the Fort Worth City Council ("City Council"). If, at any time, the City Council directs the discontinuation of the collection of entry fees at the access gate, then the management, operation and maintenance of the access entry gate will cease; however, all other terms of this Agreement related to the expenditure of collected entry fees will continue in full force and effect as long as there are sufficient proceeds from the entry gate to oversee the expenditures. 4.05 The City, through the Director, shall maintain the sole and exclusive right to control the operation of the Nature Center and all expenditures of entry fee monies shall be with the consent and approval of the Director. 4.06 Friends shall keep complete and accurate records, books and accounts according to customary and accepted business practices and City shall, or its representatives, shall have the right to audit same at any reasonable time. Friends shall furnish to the Director, on or before the 15`x' day of each and every month, a statement showing the amount of all gross receipts during the preceding month. 4.07 Friends shall furnish said Director an annual audit of its books by an independent certified public accountant relating to the Friends' collection of the entry fees at the Nature Center's access gate, such report to be furnished within ninety(90)days after the end of the fiscal year of the Friends. 4.08 Friends agrees to pay $15.00 to the City for every paid individual and family Friends membership. Friends agrees to make these payments into the Friends of the Fort Worth Nature Center Special Fund on a quarterly basis, with the quarterly due dates being the last day of July, October, January, and April of each applicable License term. With every quarterly payment, Friends shall provide to the Director a full and complete list of every paid individual and family Friends membership. This payment may be revised upon written mutual agreement of the parties. SECTION 5. TERM AND TERMINATION 5.01 This Agreement shall be binding on the date of execution by the parties and effective beginning on May I, 2015 ("Effective Date") and shall remain in effect until April 30, 2016, unless terminated earlier as provided herein. License Agreement with the Friends of the Fort Worth Nature Center and Refuge,Inc. 3 of 15 5.02 This Agreement may be renewed for fourteen (14) consecutive, 1-year periods under the same terms and conditions. Such renewals shall occur automatically unless the Agreement has been terminated or either party gives notice at least sixty(60) days prior to the last day of the then-current term. 5.03 Either party may terminate this Agreement, with or without cause, by providing thirty (30) days' written notice to the other party. 5.04 If for any reason, at any time during any term of this Agreement, the City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement pursuant to this Section following (i) delivery by the City of written notice of the City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. SECTION 6. REVENUE DISTRIBUTION FROM FUNDRAISING ACTIVITIES 6.01 In accordance with its by-laws, the Friends covenants and agrees to hold net profits from all concession and fundraising activities (including, but not limited to, membership sales, grants, donations, gift shop revenues, and special events proceeds fees) for the benefit of the public and to deposit such money into a special fund to be used only for the operation, expansion, or improvement of the Nature Center. 6.02 For purposes of this section, "net profits" shall be defined as the sum of all gross revenues minus reasonable costs associated with the operation of the Friends organization, including, but not limited to, costs associated with running the gift shop and conducting fundraising events and initiatives. SECTION 7. GIFT SHOP OPERATING HOURS 7.01 The Friends agrees to operate the gift shop during the regular operating hours of the Hardwicke Interpretive Center at Nature Center. 7.02 City staff of the Nature Center shall be authorized to provide point-of-sale support in the absence of Friends volunteers. SECTION 8. NON-DISCRIMINATION/DISABILITIES 8.01 The Friends, for itself, its personal representatives, successors in interest and assigns, as part of the consideration herein, agrees that no person shall be excluded from participation in or denied the benefits of Friends' use of the Nature Center on the basis of race, color, national origin, religion, handicap, gender, sexual orientation, or familial status. 8.02 The Friends further agrees for itself, its personal representatives, successors in interest and assigns, that no person shall be excluded from the provision of any services on or in the construction of any improvements or alterations to the Nature Center on grounds of race, color, national origin, religion, handicap, gender, sexual orientation,or familial status. SECTION 9. RIGHT TO AUDIT 9.01 The Friends agrees that the City shall, until the expiration of three (3) years after expiration of this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of the Friends involving transactions relating to this Agreement. The Friends agrees that the City shall have access during normal working hours to all necessary Friends facilities and shall be provided adequate and License Agreement with the Friends of the Fort Worth Nature Center and Refuge,Inc. 4 of 15 appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give the Friends reasonable advance notice of intended audits. 9.02 The Friends further agrees to include in any subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after expiration or termination of the subcontract, have access to and the right to examine any directly pertinent books, documents, papers, and records of such subcontractor involving transactions to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable advance notice of intended audits. SECTION 10. NATURE CENTER BISON HERD 10.01 The City will provide adequate pasture space at the Nature Center at no charge for a private conservation bison herd, legal title to which is to be held by the Friends in trust for the public with the City of Fort Worth as the named beneficiary. 10.02 The Friends agrees to ensure that all costs associated with the care and management of the bison herd are paid, including, but not limited to, costs of feed, water, veterinary services, additional fencing, handling facilities, and acquisition and disposition of animals. 10.03 The City agrees to provide staff to assist with the daily care and management of the herd and to advise the Friends regarding management and care decisions, including acquisition and disposition of animals. 10.04 The City agrees to manage sale of surplus animals and pass net revenues generated through to the Friends. 10.05 The City shall maintain responsibility and liability with respect to City staff members assigned to care for the bison herd. 10.06 The obligations in this Section 10 are intended to supplement and clarify the requirements of City Secretary Contract 21669. To the extent any provision of this Agreement conflicts with Contract 21669, the terms of Contract 21669 shall control SECTION 11. FACILITIES AND IMPROVEMENTS 11.01 The Friends may provide for alterations to or restorations of existing facilities or structures at or the construction of new facilities or structures at the Nature Center with the prior written approval of the Director. The Friends will have the right to manage construction of the alterations, restorations and construction. City and Friends agree that Friends will perform all work(i) in accordance with a set of plans and specifications pre-approved by the Director prior to beginning any construction; (ii) in accordance with all applicable laws, ordinances, rules, regulations, and specifications of all federal, state, county, city, and other governmental agencies now or hereafter in effect; (iii) in a good and workman like manner; and (iv) in accordance with industry standards of care, skill, and diligence. If any improvements include buildings, then the Nature Center shall not occupy said buildings until the City issues a certificate of occupancy. If any improvements are funded by funds received pursuant to Section 4.03 of this Agreement concerning the Nature Center's entry fees, including, but not limited to, any funds deposited or to be deposited into the Friends of the Fort Worth Nature Center Special Fund,the Friends agrees that it will comply with the requirements of Chapter 252, Texas Local Government Code, and all other applicable federal, state, and local laws, regulations, ordinances, and City policies in awarding any contracts for such improvements. License Agreement with the Friends of the Fort Worth Nature Center and Refuge,Inc. 5 of 15 11.02 Approval by the City of any plans and specifications relating to any construction shall not constitute or be deemed(i)to be a release by the City of the responsibility or liability of the Friends or any of its contractors, and their officers, agents, employees and subcontractors, for the accuracy or the competency of the plans and specifications, including, but not limited to, any related investigations, surveys, designs, working drawings and other specifications or documents, or (ii) an assumption of any responsibility or liability by the City for any negligent act,error or omission in the conduct or preparation of any investigation, surveys, designs, working drawings and other specifications or documents by the Friends or any of its contractors, and their officers,agents,employees and subcontractors. City shall own the plans and specifications. 11.03 The Friends may authorize a third party contractor to undertake all or any portion of any construction (a "Third Party Contractor") provided that the Friends first enters into a contract with such Third Party Contractor for the work to be undertaken by the Third Party Contractor and such contract contains all of the following: (i)a provision in a form acceptable to the City pursuant to which the contractor and any subcontractors involved with the work agree to release, indemnify, defend and hold harmless the City from any and all damages arising as a result of or in relation to the work and for any negligent or grossly negligent acts or omissions or intentional misconduct of the Third Party Contractor, any subcontractors, and the Friends, and their officers, agents, servants and employees; (ii) a requirement that the Third Party Contractor provide the Friends with a bond or bonds, which the Friends shall forward to the City, that guarantees the faithful performance and completion of all construction work covered by the contract and full payment for all wages for labor and services and of all bills for materials, supplies and equipment used in the performance of the contract; (iii) a requirement that the Third Party Contractor provide insurance in accordance with minimum requirements that may be required by the City, as approved in writing by the City's Risk Manager; and (iv) a requirement that the Third Party Contractor and any of its subcontractors comply with all applicable federal, state and local laws,ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. All of the requirements contained in this Section shall hereinafter be referred to as the "Third Party Contract Provisions." 11.04 IF THE FRIENDS ENTERS INTO ANY THIRD PARTY CONTRACT FOR CONSTRUCTION OF ANY IMPROVEMENTS THAT DO NOT CONTAINALL OF THE ABOVE THIRD PARTY CONTRACT PROVISIONS, AND TO THE EXTENT THAT ANY CLAIMS, DEMANDS, LAWSUITS OR OTHER ACTIONS FOR DAMAGES OFANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISE UNDER, ON ACCOUNT OF OR IN RELATION TO THE THIRD PARTY CONTRACT FOR WHICH THE CONTRACTOR THEREUNDER WOULD HA VE BEEN REQUIRED TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY IF THE THIRD PARTY CONTRACT PROVISIONS HAD BEEN INCLUDED IN THE THIRD PARTY CONTRACT ("THIRD PARTY CONTRACT DAMAGES'), THEN THE FRIENDS, AT THE FRIENDS OWNEXPENSE,SHALL INDEMNIFY,DEFEND (WITH COUNSEL REASONABLYACCEPTABLE TO THE INDEMNIFIED PARTIES HEREIN AND HOLD HARMLESS THE CITY, ITS OFFICERS, MEMBERS, AGENTS, SERVANTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS (EXCLUDING CITY) AND VOLUNTEERS, FROM AND AGAINST ANY SUCH THIRD PARTY CONTRACT DAMAGES. THIS IS IN ADDITION TO ANY OTHER INDEMNIFICATION PROVISION PROVIDED IN THE AGREEMENT. 11.05 The Friends may request a waiver of permit fees from City staff to further the overall public purpose of the construction rights granted to the Friends under this Section 11. City staff will forward any such request to the Fort Worth City Council for consideration. License Agreement with the Friends of the Fort Worth Nature Center and Refuge,Inc. 6 of 15 SECTION 12. OWNERSHIP OF CONSTRUCTED FACILITIES 12.01 The title to any buildings or improvements constructed at the Nature Center under this Agreement shall at all times be vested in the City; provided; however, that with the consent of the City Council, title to newly constructed buildings may be retained by the Friends for the purposes of securing loans made for such construction, but title to all such buildings shall revert to and vest in City promptly upon the payment of such loan. City shall retain ownership of the buildings, fixtures and all attached furnishings. SECTION 13. LIENS 13.01 Unless otherwise specifically authorized by this Agreement, the Friends shall do no act nor make any contract that may create or be the foundation for any lien upon or interest in the Nature Center or any other City property. Any such contract or lien attempted to be created or filed shall be void. Should any purported lien on City property be created or filed, the Friends, at its sole expense, shall liquidate and discharge same within ten (10) days after notice from City to do so; and should Friends fail to discharge same, such failure shall constitute a breach of contract. SECTION 14. SIGNAGE 14.01 Friends may, at its sole expense, with prior written approval of the Director, install signs in the areas where it operates a concession or occupies space within the Nature Center to indicate its business or location. All signs must be in keeping with the general aesthetic background of the FWNC&R, and the size, type, color, location, materials used, manner of display, and subject matter must be specifically approved by the Director prior to installation. In the installation, maintenance, and/or removal of such signs, Friends will exercise reasonable care not to damage City buildings and/or property. SECTION 15. INDEPENDENT CONTRACTOR 15.01 It is expressly understood and agreed that Friends shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Friends shall have the exclusive right to control all details and day-to-day operations relative to the activities under this Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Friends acknowledges that the doctrine of respondeat superior will not apply as between City and Friends, its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between City and Friends. 15.02 City and the Friends mutually agree that City, acting by and through its City Manager and Director, reserves the sole and exclusive right to exercise jurisdiction and control over all of the employees of the FWNC&R, excepting those volunteers and employees of the Friends. Save and except such persons, all persons employed in the Nature Center shall be the employees of the City, and the Friends will not in any way directly supplement the salaries or compensation received by employees of the City. SECTION 16. PROPERTY LOSS,DAMAGE AND INJURY TO PERSONS 16.01 The Friends agrees to forever release and waive all claims against the City, its departments, officers, agents, employees, and representatives for any and all claims, lawsuits, damages, and liabilities, including, but not limited to, personal injury (including, but not limited to, death) and property damage or loss, from any act or omission of the Friends, its employees, officers, agents, representatives, and volunteers in connection with this Agreement. The Friends shall ensure that each and every volunteer that assists the Friends License Agreement with the Friends of the Fort Worth'Nature Center and Refuge.Inc. 7 of 15 pursuant to any term under this Agreement executes the City's release, waiver, and indemnification agreement before providing or performing any services at the Nature Center, a copy of which is attached hereto as Exhibit A. The Friends shall retain a copy of said agreement during the term of this Agreement and for three years thereafter and shall provide the City with all originals upon request. The Friends acknowledges and understands that the waiver, release, and indemnification agreement attached as Exhibit A is only effective for one year from the date of signature of each individual volunteer; therefore, the Friends shall ensure that each volunteer is current prior to allowing that person to provide or perform any services at the Nature Center. 16.02 Friends covenants and agrees that it shall take the Nature Center and Hardwicke Interpretive Center as it finds them. Friends further covenants and agrees that it will leave the Nature Center and Hardwicke Interpretive Center in as good or better condition than that which exists prior to the Friends' use of the Nature Center and Center. The Friends covenants and agrees that Friends will not do, or permit to be done, any injury or damage to any of said Nature Center or suffer any waste to the Nature Center; but in the event any damage is done, Friends hereby covenants and agrees to repair any damage or reimburse City promptly for the value of any damage. Friends shall keep and maintain the Nature Center and its assigned area in the Hardwicke Interpretive Center in a good, clean, and sanitary condition at all times. Friends shall be responsible for all damages caused by Friends, its agents, servants, employees, contractors, subcontractors, licensees, or invitees, and Friends agrees to fully repair or otherwise cure all such damages at Friends' sole cost and expense. The City shall determine whether any damage has been done, the amount of the damage, and the reasonable costs of repairing the damage. Any damage by the Friends or others incident to the exercise of privileges herein granted shall be repaired or replaced by Friends to the reasonable satisfaction of the City within thirty (30) days of receipt of written notification from the City. SECTION 17. ASSIGNMENT 17.01 Friends agrees that it shall not assign any rights or interests obtained under this Agreement, or any part thereof, without first obtaining written consent of the City. Any attempted assignment without the prior written consent of City shall be void. SECTION 18. RIGHT OF ACCESS 18.01 At all times during the term of this Agreement, City shall have the right, through its agents and representatives, to enter into and upon the Nature Center during reasonable business hours for the purpose of examining and inspecting the same and determining whether Friends shall have complied with all of its obligations hereunder in respect to the use of the FWNC&R. During any inspection, City may perform any obligations that City is authorized or required to perform under the terms of this Agreement or pursuant to its governmental duties under federal, state, or local laws, rules, or regulations. SECTION 19. COMPLIANCE WITH LAW 19.01 Friends covenants and agrees that it shall not engage in any unlawful use of the Nature Center. Friends further agrees that it shall not permit its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees, or invitees to engage in any unlawful use of the Nature Center, and Friends immediately shall remove from the Nature Center any person engaging in such unlawful activities. Unlawful use of the Nature Center by the Friends itself shall constitute an immediate breach of this Agreement. 19.02 Friends will comply with all federal, state and local laws, statutes and all ordinances, charter provisions, rules and regulations of City; including all rules, regulations, and/or requirements of the City of Fort Worth Police and Fire Departments; and any and all requirements specifically made by the City of Fort Worth Fire Marshal in connection with this Agreement. License Agreement with the Friends of the Fort Worth Nature Center and Refuge, Inc. 8 of 15 SECTION 20. INDEMNIFICATION 20.01 THE FRIENDS AGREES TO DEFEND, INDEMNIFY AND HOLD HARMELSS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, REPRESENTATIVES, AND EMPLOYEES FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY(i) THE FRIENDS' BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF THE FRIENDS, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, VOLUNTEERS, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS, RELATED TO USE OF THE NATURE CENTER AND HARDWICKE INTERPRETIVE CENTER OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH THE FRIENDS AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. SECTION 21. INSURANCE REQUIREMENTS 21.01 During the term of this Agreement, Friends shall procure and maintain at all times, in full force and effect, a policy or policies of insurance that provide the specific coverage set forth below as well as any additional coverage that a reasonable person would obtain to cover any and all other public risks related to Friends' performance of its obligations under this Agreement. Friends shall specifically obtain the following types of insurance at the following limits and subject to the additional requirements listed below. a. Commercial General Liability (required throughout term of Agreement and any renewals thereof): i. $1,000,000.00 Each Occurrence ii. $2,000,000.00 Aggregate b. Liquor Liability (required for all events hosted by the Friends at which liquor (beer and wine only) is to be sold, served, provided,or allowed to be consumed) i. $1,000,000.00 ii. The Friends shall notify the City's Risk Manager in writing at least ten (10) working days prior to the scheduled event; such notice shall include the date, time and location of the event. Documentation of liquor liability insurance shall be provided to the City at least five business days prior to the date of the event. C. Fidelity. Friends shall maintain coverage in the form of insurance or bond in the minimum amount of $350,000.00 to insure against loss from the fraud, theft or dishonesty of any of Friends' officers, agents, trustees, directors employees, or volunteers. The proceeds of such insurance or bond shall be used to reimburse the City for any and all loss of funds associated with Section 4.03 of this Agreement concerning the Nature Center's entry fees, including, but not limited to, any funds deposited or to be deposited into the Friends of the Fort Worth Nature Center Special Fund, License Agreement with the Friends of the Fort Worth Nature Center and Refuge.Inc. 9 of 15 occasioned by such misconduct. To effectuate such reimbursement, such fidelity coverage shall include a rider stating that reimbursement for any loss or losses shall name the City as a Loss Payee. If, at any time during the term of this Agreement, the funds associated with Section 4.03 concerning the Nature Center's entry fee, including, but not limited to, any funds deposited or to be deposited into the Friends of the Fort Worth Nature Center Special Fund, exceeds$350,000.00, then the Friends shall contact the City's Risk Manager. The City's Risk Manager shall have the right to review and evaluate the insurance or bond coverage and suggest revisions in coverage in accordance with Section 21.02(a). 21.02 All insurance required under this Agreement must comply with the following general requirements: a. The City's Risk Manager shall have the right to review and evaluate all required insurance coverage and to make reasonable requests or revisions pertaining to the types and limits of that coverage. Friends and its subcontractors shall comply with such requests or revisions as a condition precedent to the effectiveness of this Agreement. b. Each insurance policy shall be endorsed to provide the City a minimum thirty (30) days' notice of cancellation, non-renewal, and/or material change in policy terms or coverage, provided,however,that a ten day notice shall be acceptable in the event of cancellation for non-payment of premium. C. The City, its officers, employees, representatives, and servants shall be endorsed as an additional insured on all insurance policies required under this Agreement. d. All insurance policies required under this Agreement shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. e. Friends' insurance policies shall each be endorsed to provide that such insurance is primary protection and that any self-funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. f. On the request of City, Friends shall provide complete copies of all insurance policies required by this Agreement. Current and revised certificates of insurance shall be delivered to the Risk Management Division of the City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102 with a copy to the Nature Center Manager,at the Nature Center office. g. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. h. Insurers must be authorized to do business in the State of Texas and have a current A. M. Best rating of A VII or equivalent measure of financial strength and solvency. i. Deductible limits, or self-funded retention limits, on each policy must not exceed $10,000.00 per occurrence unless otherwise approved by the City. j. The City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups in lieu of traditional insurance. Prior to employing such alternative coverage,the Friends must obtain City's written approval. k. City shall not be responsible for the direct payment of insurance premium costs for Consultant's insurance. Friends may be required to provide proof of insurance premium payments. License Agreement with the Friends of the Fort Worth Nature Center and Refuge.Inc. 10 of 15 1. During any term of this Agreement, Friends shall report to the Risk Management Division in a timely manner any loss occurrence that could give rise to a liability claim or lawsuit or that could result in a property loss. M. The Friends' liability shall not be limited to the specified amounts of insurance required herein. SECTION 22. CHARITABLE ORGANIZATION 22.01 The Friends agrees that if it is a charitable organization, corporation, entity or individual enterprise having, claiming or entitled to any immunity, exemption (statutory or otherwise) or limitation from and against liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, Tex. C.P.R.C., § 84.001 et seq., or other applicable law, that Friends hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. On or before May 1 of each year, the Friends shall provide the City with a copy of the IRS Form 990 or other document that the Friends submits to the Internal Revenue Service to maintain its status as a 501(c)(3)entity; such documentation shall be provided to the City at the address specified below under Notices. SECTION 23. NO WAIVER 23.01 The failure to insist upon strict performance of any of the covenants or agreements herein set forth or to declare forfeiture for any violation thereof shall not be considered or taken as a waiver or relinquishment for the future of City's rights to insist upon strict compliance by Friends with all the covenants and conditions. SECTION 24. FORCE MAJEURE 24.01 if either party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or emergency by the federal, state, county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States; any arrests and restraints; civil disturbances; or explosions, or some other reason beyond the party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such Event. If a Force Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening of its community centers, parks, or other City-owned and operated properties and facilities in the interest of public safety and operate them as the City sees fit. The Friends hereby waives any claims it may have against the City for damages resulting from any such Force Majeure Event. SECTION 25. SECTION HEADINGS 25.01 The headings in this Agreement are inserted for reference only, and shall not define or limit the provisions hereof. SECTION 26. SEVERABILITY License Agreement with the Friends of the Fort Worth Nature Center and Refuge.Inc. I 1 of 15 26.01 In the event that any clause or provision of this Agreement shall be held to be invalid by any court or competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. SECTION 27. DISPOSITION OF ASSETS 27.01 In the event of termination, or upon dissolution of Friends, either voluntarily or involuntarily, all funds left in the Friends' treasury and all other assets shall be expended in accordance with Friends By-Laws to benefit the FWNC&R. If the Nature Center or a legally recognized successor does not exist, the funds and assets will be discharged in compliance with IRS regulations. SECTION 28. COMPLIANCE WITH COPYRIGHT LAW 28.01 The Friends agrees to assume full responsibility for complying with the Federal Copyright Law of 1978 (17 U.S.C. 101, et seg.) and any Regulations issued thereunder including, but not limited to, the assumption of any and all responsibilities for paying royalties which are due to the copyright owner or representative of said copyright owner for the use of copyrighted works in the Friends' performances or exhibitions. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the performance, reproduction, or other use of copyrighted materials by Friends or its agents or licensees without the appropriate licenses or permission being secured by the Friends in advance. It is further agreed that Friends SHALL DEFEND, INDEMNIFY, AND HOLD CITY HARMLESS FOR ANY CLAIMS ARISING FROM NONPAYMENT TO LICENSING AGENCIES, INCLUDING, BUT NOT LIMITED TO, ASCAP, BMI, AND SESAC OR DAMAGES ARISING OUT OF FRIENDS' INFRINGEMENT OR VIOLATION OF THE COPYRIGHT LAW AND/OR REGULATIONS. City expressly assumes no obligation to review or obtain appropriate licensing, and all such licensing shall be the exclusive obligation of the Friends. Friends understands that it is responsible for securing any and all licenses by artists/performers giving permission for the recordings. Friends is responsible for both reporting and payment of any music licensing fees that may be required by law. 28.02 The Friends understands and agrees that without the proper license obtained by Friends,there is a risk of an injunction or money damages arising from a copyright lawsuit brought by ASCAP, BMI, SESAC, or any other licensing agency. 28.03 If the Friends and City co-sponsor an event, compliance with Copyright Law will be the responsibility of City, under its existing license; however, Friends agrees to comply with the terms of City's current ASCAP and BMI contracts. SECTION 29. NOTICES 29.01 All notices required or permitted under this Agreement may be given to a party personally or by mail, addressed to such party at the address stated below or to such other address as one party may from time to time notify the other in writing. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: City: Director Parks and Community Services Department 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115-1499 License Agreement with the Friends of the Fort Worth Nature Center and Refuge. Inc. 12 of 15 With a copy to: City Attorney City Attorney's Office 1000 Throckmorton Fort Worth,Texas 76102 Friends President Friends of the Fort Worth Nature Center and Refuge,. Inc. 9601 Fossil Ridge Road Fort Worth, Texas 76135-9148 Or to such other address as said parties may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. SECTION 30. ENTIRE UNDERSTANDING 30.01 This Agreement expresses the entire understanding and all agreements of the parties hereto with each other, and neither party hereto has made or shall be bound by any agreement or any representation to the other party which is not expressly set forth in this Agreement save and except those obligations articulated in City Secretary Contract 21669. To the extent any provision of this Agreement conflicts with Contract 21669, the terms of Contract 21669 shall control SECTION 31. VENUE AND JURISDICTION 31.01 This Agreement shall be governed and construed according to the laws of the State of Texas. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, or attempted performance of this Agreement, venue for said action shall lie in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas -Fort Worth Division. SECTION 32. POWERS AND IMMUNITIES 32.01 It is understood that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. SECTION 33. AMENDMENT 33.01 This Agreement cannot be modified or amended without the written consent of all parties hereto, and said amendment attached and made a part of this Agreement. SECTION 34. EXECUTION 34.01 This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. License Agreement with the Friends of the Fort Worth Nature Center and Refuge,Inc. 13 of 15 IN WITNESS WHEREOF, the parties have executed this Agreement in multiples in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH FRIENDS OF THE FORT WORTH NATURE CENTER AND REFUGE, INC. By: ��t/j'�� By: Susan Alanis Name: MAVLT--l 2COAMN70 Assistant City Manager Title: Date: I—/S Date: �/R,NaJ� $ Z B�5 V Jf APPROVED AS TO FORM D CGALITY:, is McEI oy Assistant CI ttorney ATT Q� ® °° % E+8 ° °� Mary Kayser ° apo City Secretary �00000000 FXAS Authorization: M&C: C-25292 Date: November 15, 2011 OFFICIAL RECORD CITY S E CRETAR Y RTH,TX License Agreement with the Friends of the Fort Worth Nature Center and Refuge.Inc. 14 of 15 ;I joS I 'OuI`02fn3ag puE IQIUQD 9RUEN gllOM 110,4 ZIP JO spuap,4 aql ql!m IuQtuJgAd asu9311 d Em 3 � U + $ � F+ Sc U o00 .EaZ � ..�. o A Cd E q w O m o M � P40 t3 d .. dog o � e � u Vis '' o _ d C C LOx ar7vaA O b q r. v p rd 3 t*,o .S ldu H e v Sias F �� u 40 96 d OA a� O 1 -0. g � b 5 (s d O vvyj s b ai �}V }O y V S Z a 3 `� j C I y F �. C 53 O "�' '" ` m06 UW m m Fd y 3E3 � v � 8 � 5o a W� OrA � . gao'O E.f as a5� 3 � H �/ Waa � W v fir .r °' va: 8 ''� S [ d V I!q!gxg M&C Review Page 1 of 2 Cltfioal s+tc of the City of port MJorth Te<a CITY COUNCIL AGENDA FORTWORTII COUNCIL ACTION: Approved on 11/15/2011 DATE: 11/15/2011 REFERENCE NO.: **C-25292 LOG NAME: 80FONC CONTRACT FOR FWNCR CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of an Agreement with the Friends of the Fort Worth Nature Center and Refuge, Inc., to Manage Entry Fees, Operate a Gift Shop and Provide Other Sources of Support to the Fort Worth Nature Center and Refuge (COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council authorize execution of an Agreement with the Friends of the Fort Worth Nature Center and Refuge, Inc., to manage entry fees used to fund entry gate staff positions and minor capital improvements, to operate a gift shop on City property and to engage in a variety of other fundraising activities to benefit the Fort Worth Nature Center and Refuge. DISCUSSION: The Friends of the Fort Worth Nature Center and Refuge, Inc. (FDNC), is a Texas non-profit corporation formed in 1974 to support the operation of the Fort Worth Nature Center and Refuge (FWNC&R) through financial and in-kind contributions. The FONC originally entered into a contract with the City to operate a gift shop on November 20, 1984 (M&C C-8732, City Secretary Contract No. 14164). On March 11, 2010, a new updated Agreement was entered into that included the gift shop and management of the bison herd (City Secretary Contract No. 39920; executed administratively). Recently the FONC and the other FWNC&R non-profit support group, the Fort Worth Nature Center and Refuge Conservancy (NCC), agreed to merge their two organizations. The NCC is currently responsible for the management of entry fees to the park (M&C G-15022, City Secretary Contract No. 32955). A new Agreement is recommended to combine the responsibilities and obligations contained in the previous two separate documents and supercede all previous contracts. Following the lead of the current NCC contract, the new Agreement would provide for a one-year initial term and for the possibility of fourteen renewals. Under the new contract, the newly reconstituted FONC would (i) manage entry fees and use the funds to pay for entry gate staff and minor capital improvements, (ii) operate a gift shop at the Hardwicke Interpretive Center, (iii) manage the bison herd, and (iv) provide general fundraising and other support for the FWNC&R. The Nature Center and Refuge is located in COUNCIL DISTRICT 7 and serves ALL COUNCIL DISTRICTS. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that the Friends of the Fort Worth Nature Center & Refuge, Inc. is responsible for collection and deposit of user fees. This action will have no financial impact on City funds. TO Fund/Account/Centers FROM Fund/Account/Centers http:Happs.cfwnet.org/council_packet/mc_review.asp?ID=16077&councildate=11/15/2011 4/14/2015 M&C Review Page 2 of 2 Submitted for City Manager's Office by: Susan Alanis (8180) Originating Department Head: Richard Zavala (5704) Additional Information Contact: Mark Woolsey (5719) ATTACHMENTS http://apps.cfwnet.org/council_packet/mc_review.asp?ID=16077&councildate=I 1/15/2011 4/14/2015