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HomeMy WebLinkAbout2008-004 Central Coast Zoo Society AgreementCITY OF ATASCADD -O CONTRACT# Contract No. AGREEMENT FOR SERVICES OF THE CENTRAL COAST ZOOLOGICAL SOCIETY This agreement is made upon the date of execution, as set forth below by and between the Central Coast Zoological Society, a non-profit organization, hereinafter referred to as "Contractor" and the City of Atascadero, California, a Municipal Corporation, hereinafter referred to as "City" The parties hereto, in consideration of the mutual covenants contained herein, hereby agree to the following terms and conditions: 1.00 GENERAL PROVISIONS 1.01 TERMS. This agreement will become effective on the date of execution set forth below, and will continue in effect until terminated as provided herein. 1.02 SERVICES TO BE PERFORMED BY CONTRACTOR. Contractor agrees to perform or provide the services specified in "Description of Services" attached hereto as "Exhibit A" hereby incorporated herein. Contractor shall determine the method, details and means of performing the above - referenced services. Contractor may, at Contractor's own expense, employ such staff or assistants, as Contractor deems necessary to perform the services required of Contractor by this agreement. City may not control, direct or supervise Contractor's assistants or employees in the performance of those services except as set forth herein. The parties agree that they will coordinate activities such as education, membership, marketing and special events cooperatively. 1.03 COMPENSATION. In consideration for the services to be performed by Contractor, City agrees to allow the Contractor to sell Society memberships to the Zoo and offer free admission to members. In addition, at its option, the Contractor may choose to operate and maintain a gift shop on Zoo grounds and keep all revenue. The City will also provide free office space and telephone service for Zoological Society staff for performing Society business and activities attached hereto as "Exhibit B". The City will pay all utilities for the gift shop and office space for the Contractor's use of the facilities under the terms provided in "Exhibit B," hereby incorporated herein. The Contractor agrees to pay the City a minimum of $10,000 to the City in the first year, $20,000 in the second year and $30,000 in the third year of this agreement, payable annually in two equal payments,(the first payment by June 30th, and the second by December 31St), in consideration for selling memberships, the use of City office space and utilities, operation of the Gift Shop and the use of Charles Paddock Zoo name. The aforementioned sums will be the minimal financial support the Society will provide the Zoo on an annual basis. The Contractor will also provide significant financial support for the improvement of the Charles Paddock Zoo on an on-going basis in the form of capital fundraising. Requests for such -1- • � h support for specific improvement projects shall be formally made by the City Zoo staff at least annually prior to the start of the Society's Fiscal Year. 2.00 OBLIGATIONS OF CONTRACTOR 2.01 MINIMUM AMOUNT OF SERVICE BY CONTRACTOR. Contractor agrees to devote the hours necessary to perform the services set forth in this agreement in an efficient and effective manner. Contractor may represent, perform services for and be employed by additional individuals or entities, in Contractors sole discretion, as long as the performance of these extra- contractual services does not interfere with or present a conflict with City's business. The Contractor activities and conduct shall be consistent with the mission of the Charles Paddock Zoo, American Zoo and Aquarium Association (AZA) and City Council policies, procedures and direction. The Contractor shall set annual fundraising and expense goals to be shared with the City. 2.02 TOOLS AND INSTRUMENTALITIES. Contractor shall provide all tools, office equipment and instrumentalities to perform the services under this agreement except those listed in "Tools and Instrumentalities Provided by City" attached hereto as "Exhibit B" and hereby incorporated herein. 2.03 INDEPENDENT CONTRACTOR, EMPLOYEES OF CONTRACTOR. Contractor enters into this Contract as, and shall at all times remain as to the City, an independent contractor and not as an employee of the City. Nothing in this Contract shall be construed to be inconsistent with this relationship or status. Any persons employed by Contractor for the performance of services pursuant to this Contract shall remain employees of Contractor, shall at all times be under the direction and control of Contractor, and shall not be considered employees of City. All persons employed by Contractor to perform services pursuant to this Contract shall be entitled solely to the right and privileges afforded to Contractor employees and shall not be entitled, as a result of providing services hereunder, to any additional rights or privileges that may be afforded to City employees. 2.04 COMPLIANCE WITH EMPLOYMENT LAWS. The Contractor shall keep itself fully informed of, shall observe and comply with, and shall cause any and all persons, firms or corporations employed by it or under its control to observe and comply with, applicable federal, state, county and municipal laws, ordinances, regulations, orders and decrees which in any manner affect those engaged or employed on the work described by this Contract or the materials used or which in any way affect the conduct of the work. 2.05 UNLAWFUL DISCRIMINATION PROHIBITED. Contractor shall not engage in unlawful employment discrimination. Such unlawful employment discrimination includes, but is not limited to, employment discrimination based upon a person's race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, gender, citizenship or sexual orientation. 2.06 INDEMNIFICATION: Contractor hereby agrees to, and shall, hold City, its elective and appointive boards, officers, agents and employees, harmless and shall defend the same from any -2- W liability for damage or claims for damage, or suits or actions at law or in equity which may allegedly arise from Contractor's or any of Contractor's employees' or agents' operations under this agreement, whether such operations be by Contractor or by any one or more persons directly or indirectly employed by, or acting as agent for, Contractor; provided as follows: a. That the City does not, and shall not, waive any rights against Contractor which it may have by reason of the aforesaid hold -harmless agreement, because of the acceptance by City, or the deposit with City by Contractor, of any of the insurance policies hereinafter described. b. That the aforesaid hold -harmless agreement by Contractor shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations of Contractor or any, agent or employee of Contractor regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 2.07 INSURANCE. Contractor shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit D attached to and part of this Agreement. 3.00 OBLIGATIONS OF CITY 3.01 COOPERATION. Cit y agrees to comply with all reasonable requests of Contractor necessary to the performance of Contractor's duties under this agreement. Marketing, promotion, volunteer efforts and special events shall be conducted jointly, with prior authorization of the Zoo Director as may be necessary. 3.02 PLACE OF WORK. City agrees to furnish space for use by the Contractor while performing the services described in this agreement only as set forth in "Exhibit B," incorporated herein. Any work space requirements not set forth in "Exhibit B" shall be the responsibility of Contractor, and Contractor may use alternate space for performing described services. 4.00 TERMINATION OF AGREEMENT 4.01 TERMINATION OF NOTICE. Notwithstanding any other provision of this agreement, any party hereto may terminate this agreement, at any time, without cause by giving at least 90 days prior written notice to the other parties to this agreement. 4.02 TERMINATION ON OCCURRENCE OF STATED EVENTS. This agreement shall terminate automatically on the occurrence of any of the following events: (1) Bankruptcy or insolvency of any party; a) should the Contractor dissolve its organization, or terminate it's agreement to support the Charles Paddock Zoo, all of its assets shall revert to the City for the Charles Paddock Zoo. The funds shall be restricted for Charles Paddock Zoo budgetary expenditures and deposited with the Atascadero Community Services Foundation. -3- (2) Sale of the business of any party; (3) Unincorporation of either party; (4) The end of the 90 days as set forth in Section 4.01; (5) End of the contract to which Contractor's services were necessary; or (6) Assignment of this agreement by Contractor without the consent of the City. (7) In the event the City should privatize the Zoo, the remaining assets of the Zoological Society shall be deposited with the Atascadero Community Services Foundation, or if the Foundation does not still exist, another non-profit corporation organized and operated exclusively for charitable, educational or scientific purposes, and which has established its tax exempt status. 4.03 TERMINATION BY ANY PARTY FOR DEFAULT OF CONTRACTOR. Should any party default in the performance of this agreement or materially breach any of its provisions, a non -breaching party, at their option, may terminate this agreement, immediately, by giving written notice of termination to the breaching party. 4.04. TERMINATION. This agreement shall terminate on February 15th, 2011, unless extended as set forth in this Section. The City, with the agreement of the Contractor, is authorized to extend the term of this agreement beyond the termination date, as needed, under the same terms and conditions set forth in this agreement. Any such extension shall be in writing and be an amendment to this agreement. 4.05. OBLIGATIONS SURVIVE TERMINATION. Notwithstanding any termination of this Contract, Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this Contract by Contractor, and the City may withhold any payments due to Contractor until such time as the exact amount of damages, if any, due the City from Contractor is determined. All of the indemnification, defense and hold harmless obligations in this Contract shall survive termination. 5.00 SPECIAL PROVISIONS 5.01 CONFLICTS OF INTEREST. Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor's performance of services under this Contract. Contractor further covenants that in the performance of this Contract, Contractor shall take reasonable care to ensure that no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Contract. Contractor agrees to include language similar to this Section 5.01 in all contracts with subcontractors and agents for the work contemplated herein. 5.02 COOPERATION. City and Contractor shall promptly notify the other party should Contractor or City, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, ME request for admissions or other discovery request, court order or subpoena from any party regarding this Contract and the work performed thereunder or with respect to any project or property located within the City. City and Contractor each retains the right, but has no obligation, to represent the other party and/or be present at any deposition, hearing or similar proceeding. Contractor and City agree to cooperate fully with the other party and to provide the other party with the opportunity to review any response to discovery requests provided by Contractor or City. However, City and Contractor's right to review any such response does not imply or mean the right by the other party to control, direct, or rewrite said response. 5.03 COMPLIANCE REQUIRED. Contractor shall keep itself informed of applicable local, state, and federal laws and regulations which may affect those employed by it or in any way affect the performance of its services pursuant to this Contract. Contractor shall observe and comply with all applicable laws, ordinances, regulations and codes of federal, state and local governments, and shall commit no trespass on any public or private property in performing any of the work authorized by this Contract. 5.04 NONDISCRIMINATION/NONPREFERENTIAL TREATMENT STATEMENT. In performing this Contract, the parties shall not discriminate or grant preferential treatment on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, or national origin, and shall comply to the fullest extent allowed by law, with all applicable local, state, and federal laws relating to nondiscrimination. 5.05 UNAUTHORIZED ALIENS. Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act (8 U.S.C.A. & 1101 et seq.), as amended; and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of work and/or services covered by this contract, and should the Federal Government impose sanctions against the City for such use of unauthorized aliens, Contractor hereby agrees to, and shall, reimburse City for the cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by the City in connection therewith. 6.00 MISCELLANEOUS 6.01 REMEDIES. The remedies set forth in this agreement shall not be exclusive but shall be cumulative with, and in addition to, all remedies now or hereafter allowed by law or equity. 6.02 WAIVER. The waiver at any time by any party of any of its rights with respect to a default or other matter arising in connection with this Contract shall not be deemed a wavier with respect to any subsequent default or other matter. 6.03 ASSIGNMENT. This agreement is specifically not assignable by Contractor to any person or entity. Any assignment or attempt to assign by Contractor, whether it be voluntary or involuntary, by operation of law or otherwise, is void and is a material breach of this agreement giving rise to a right to terminate as set forth in Section 4.03. 6.04 ATTORNEY FEES. In the event of any controversy, claim or dispute between the parties -5- hereto, arising out of or relating to this agreement, or the breach thereof, the prevailing party shall be entitled, in addition to other such relief as may be granted, to a reasonable sum as and for attorney fees. 6.05 TIME FOR PERFORMANCE. Except as otherwise expressly provided for in this agreement, should the performance of any act required by this agreement to be performed by either party be prevented or delayed by reason by any act of God, strike, lockout, labor trouble, inability to secure materials, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period of time equivalent to the period of delay and performance of the act during the period of delay will be excused; provided, however, that nothing contained in this Section shall exclude the prompt payment by either party as required by this agreement or the performance of any act rendered difficult or impossible solely because of the financial condition of the party required to perform the act. 6.06 NOTICES. Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this agreement or by law to be served on or given to any party to this agreement shall be in writing and shall be deemed duly served and given when personally delivered or in lieu of such personal service when deposited in the United States mail, first-class postage prepaid to the following address for each respective party: PARTY ADDRESS A. CITY OF ATASCADERO 6907 El Camino Real City Clerk Atascadero, CA 93422 Attention: Community Services Dept. B. CENTRAL COAST ZOOLOGICAL SOCIETY 9305 Pismo Avenue Atascadero, CA 93422 6.07 GOVERNING LAW. This agreement and all matters relating to this agreement shall be governed by the laws of the State of California in force at the time any need for the interpretation of this agreement or any decision or holding concerning this agreement arises. Any litigation concerning this Contract shall take place in the San Luis Obispo Superior Court, federal diversity jurisdiction being expressly waived. 6.08 BINDING EFFECT. This agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but nothing in this Section shall be construed as a consent by City to any assignment of this agreement or any interest in this agreement. 6.09 SEVERABILITY. Should any provision of this agreement be held by a court of competent jurisdiction or by a legislative or rulemaking act to be either invalid, void or unenforceable, the remaining provisions of this agreement shall remain in full force and effect, unimpaired by the holding, legislation or rule. 6.10 SOLE AND ENTIRE AGREEMENT. This agreement constitutes the sole and entire agreement between the parties with respect to the subject matter hereof. This agreement correctly sets forth the obligations of the parties hereto to each other as of the date of this agreement. All agreements or representations respecting the subject matter of this agreement not expressly set forth or referred to in this agreement are null and void. 6.11 TIME. Time is expressly declared to be of the essence of this agreement. 6.12 DUE AUTHORITY. The parties hereby represent that the individuals executing this agreement are expressly authorized to do so on and in behalf of the parties. 6.13 CONSTRUCTION. The parties agree that each has had an opportunity to have their counsel review this agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this agreement or any amendments or exhibits thereto. The captions of the sections are for convenience and reference only, and are not intended to be construed to define or limit the provisions to which they relate. 6.14 AUTHORITY TO EXECUTE. The person or persons executing this Contract on behalf of Contractor warrant and represent that they have the authority to execute this Contract on behalf of their agency and further warrant and represent that they have the authority to bind Contractor to the performance of its obligations hereunder. 6.15 CHANGES. The City or Contractor may, from time to time, request changes in the scope of the services of Contractor to be performed hereunder. Such changes, including any increase or decrease in the amount of Contractor's compensation and/or changes in the schedule must be authorized in advance by both Parties in writing. Mutually agreed changes shall be incorporated in written amendments to this Contract. Any increase in the amount of Contractor's compensation and/or changes in Exhibit A and or Exhibit B must be authorized in advance by the City Manager. -7- Executed on SAWg tva�{ -2, Z , 2008, at Atascadero, ATTEST: CITY OF ATASCADERO ,¢ ) I By: Marcia McClure Torgerson Wade G. Mc inney City Clerk City Manager 16- Central Co st Zoolo ical S ciety -8- APPROVED AS TO ORM: Brian Pierik Citi Attorney APPROVED AS TO FORM: (2 G c Rachelle Rickar Administrative Services Director EXHIBIT A PROFESSIONAL SERVICES TO BE PERFORMED BY THE CONTRACTOR Contractor shall provide consultation and professional management services to The City and Zoo as follows: • Conduct fundraising, capital campaigns, procure grants and other funding to support the Charles Paddock Zoo mission and its facilities and operations. The Contractor will pay the City an annual Zoo operating subsidy of $10,000 in year one, $20,000 in year two and $30,000 in year three in each year of this agreement. Additional annual funding support for Zoo improvements, equipment, supplies, operations or special projects will be expected as additional Zoo support. Requests for this support will be made in writing by the Zoo staff annually to correspond with the Contractor's (Society's) budget cycle. The Contractor shall not solicit funds for specific projects or purposes not agreed upon by the City. • Assist with the recruitment of volunteers to assist with education, gift shop operations, special events and programs sponsored by the Charles Paddock Zoo. Volunteer access, hours, behavior and appearance will be subject to review and approval b y the Zoo Director. • Plan, coordinate and conduct special events, fundraisers, programs and activities that promote awareness and attendance growth at the Charles Paddock Zoo. • Develop, manage and solicit Society memberships, which will include free admission to the Charles Paddock Zoo. • At the City's preference, the Contractor will fund a full-time or part-time equivalent positions Education Coordinator position(s) to be a City employee(s). The employee and the education program will be under the supervision of the Zoo Director. The annual Contractor contribution for salary and benefits shall be reduced each year until the education position is nearly self-sustaining. The Education Coordinator position is covered under a separate agreement between the parties. However, the City and Contractor will review the viability of this arrangement based upon mutually agreed upon criteria prior to the end of the second year. It is anticipated that the funding commitment of the Society will decrease in subsequent years as the education program revenues increase. These revenue targets and funding levels will be established by the two parties. EXHIBIT B CONSIDERATION FOR SERVICES City resources to be made available to Contractor as follows: • The City will provide office and meeting space to contractor as described in Exhibit E, attached hereto. • The City will pay for gas, water and electrical service for all space used by the Contractor described in Exhibit E. The Contractor shall provide for its own telephone and security alarm service. • The City shall provide for use of the Zoo grounds, City equipment and staff to support Contractor initiatives subject to reasonable availability and budget constraints. All requests for use of City resources shall be submitted to the Zoo Director in writing at least sixty (60) days in advance of the date needed. The granting of the resources shall be at the sole discretion of the Zoo Director. • Use of the name and logo by the Contractor in advertisements, publications, and promotional efforts are permitted with the prior authorization of the Zoo Director. The Zoo name shall not be used for political purposes. • Exhibits, buildings, equipment and improvements paid for by the Contractor shall become the property and sole responsibility of the City. The Contractor will have no obligation to maintain or support any improvement. • Contractor shall be granted permission to offer free zoo admission with the sale of Society memberships. Contractor shall be offered the right of first refusal for a lease agreement to operate a gift shop and food concessions on Zoo grounds. If accepted, the terms of a food concessions agreement will be described in a separate agreement. -10- EXHIBIT C INSURANCE REQUIREMENTS: CONSULTANT SERVICES EXHIBIT D PLACE OF WORK • The City will provide portions of the "Ranger House" facility located in Atascadero Lake Park for Society offices. The portion of the Ranger House to be used exclusively by the Contractor shall be the office space (indicated in exhibit E). The adjacent Board meeting room will be shared by both parties. The meeting room may be used by the Zoo Education program will school is not in session. Diagram attached as Exhibit E. • Gift Shop space, if operated by Contractor, shown in Exhibit E. -12- EXHIBIT E PLACE OF WORK DIAGRAMS - 13 -