AGREEMENT BETWEEN

THE DEPARTMENT OF NATURAL RESOURCES

AND THE

FRIENDS OF BADGER TRAIL, INC.

This agreement is between the Department of Natural Resources (hereinafter referred to as the "DNR"), acting through the Secretary, and the Friends of Badger Trail, Inc. (hereinafter referred to as “FOBT”), acting through the President of its Board of Directors or the Board's designee.

WITNESSETH:

WHEREAS, it is the purpose of the DNR to preserve, interpret, and manage its properties for the benefit, education, and enjoyment of the people of the state; and

WHEREAS, the DNR desires to extend its program and services at Badger State Trail (hereinafter referred to as “the trail; and

WHEREAS, FOBT has incorporated to assist the DNR in extending its program and services at the trail,

NOW, THEREFORE, pursuant to authority contained in Chapter 27, Wis. Stats., and in consideration of the mutual benefits which will accrue to the DNR and FOBT, the parties agree as follows:

1. AUTHORIZATION

The DNR authorizes FOBT to provide, and FOBT agrees to provide when able, the hereinafter described services to the visiting public for a period of one year commencing on the day following the ratification of this agreement by the DNR. The agreement will automatically renew for another year period, unless reasonable notice of cancellation is given by either party before the date of renewal. The DNR or FOBT reserve the right to terminate this agreement or any part thereof, at any time upon 30 days written notice without the necessity of any legal process, after holding a meeting prior to the termination setting forth the reasons for termination.

An evident and distinct separation shall be maintained between the management and decision-making activities of FOBT and those of DNR. All steps shall be taken to avoid even an appearance that the DNR directs the management or decision-making process of FOBT.

The management and operation of FOBT is subject to all applicable Wisconsin Statutes and the Wisconsin Administrative Code.

2. DNR RESPONSIBILITIES

The DNR will allow FOBT to use facilities at the trail which are designated for the sale of educational and interpretive items for the benefit of the visiting public.

A. Sales Items

The DNR shall cooperate with FOBT in the planning and design of merchandise appropriate for sale by FOBT at the facilities provided by the DNR.

B. Facilities

(1) The DNR shall provide FOBT with storage space and office use, and with such sales and other facilities as may be deemed necessary or desirable by the DNR. The DNR reserves the right to relocate or remove any such facilities in order to meet needs of the DNR upon reasonable notice. All facilities shall be subject to the right of the DNR to make such surveys and inspections as it deems necessary.

(2) The DNR reserves the right to design and construct any new facilities, and shall allow FOBT to review and comment on any plans therefore.

(3) The DNR shall provide FOBT with incidental utility services at each assigned facility, including water, local phone calls, copies, electricity, heat, and air conditioning, to the extent these utilities are required for the operation of the building for governmental purposes. All other utilities will be provided FOBT on a reimbursable basis.

(4) The DNR shall provide all general maintenance and repair services for the state-owned buildings.

(5) FOBT will be given special consideration in scheduling activities outside the normal building use schedule.

C. The DNR shall designate the property manager or the property manager's designee as liaison with FOBT.

D. Monies donated by FOBT to the DNR shall be expended to support the mission and activities of the trail.

E. The DNR will promote FOBT in appropriate publications and announcements.

3. FRIENDS RESPONSIBILITIES

A. Exclusive Support

FOBT will limit its official activities to the support of the trail.

FOBT may use facilities and equipment within the trail as designated by DNR for its programs and activities for the benefit of the visiting public.

B. Organization

(1) FOBT's bylaws shall comply with the requirements of the State of Wisconsin. Nonprofit status must be maintained in accordance with state laws and FOBT will make available for inspection, at the request of DNR, documents demonstrating nonprofit status. This agreement will automatically terminate if nonprofit status is lost, or if the bylaws are amended in such a way as to alter the intent of this agreement.

(2) DNR employees may be members of FOBT, but shall not serve on the board of directors or as treasurer. DNR employees shall not represent FOBT in any matter between FOBT and the DNR.

C. Interpretive Activities

Interpretive activities engaged in by FOBT must meet DNR standards and be approved by the property manager.

D. Sales Items

(1) FOBT shall not sell any item which has not been approved by the property manager. Whenever possible and appropriate, FOBT shall sell Wisconsin-made products. FOBT shall allow publications to be reviewed by the DNR for editorial and design quality.

(2) FOBT is not by this agreement granted the right to sell items, the sale of which would infringe on applicable contract rights of a concessionaire, if any.

(3) FOBT shall maintain a high standard of quality in all items produced or sold.

(4) FOBT shall sell items at fair market value and such prices shall be approved in advance by the DNR.

(5) FOBT shall display the sales items in good taste and in keeping with the general design and decor of the trail.

E. Fund-raising

Fund-raising events and activities sponsored by FOBT shall be approved by the property manager.

F. Facilities

(1) FOBT may redesign and renovate existing sales facilities as necessary, including renovation of display structures, furnishing, equipment, signing, display lighting, and lighting in the immediate area of the facility, provided that all plans are approved in advance by the DNR.

(2) FOBT shall keep the sales facility clean and presentable throughout the work day.

(3) FOBT shall exercise reasonable care to prevent damage to any DNR property used by it during its operation and shall, insofar as possible, protect all such property.

(4) The erection of signs and advertising or display materials relating to FOBT is not allowed unless authorized by DNR. All signs, advertising or display materials, and all publications, stationery, and other promotional material issued or used exclusively by FOBT shall be paid for by FOBT.

All these materials shall clearly identify the trail as a property of the State of Wisconsin Department of Natural Resources.

G. Records and Accounting

(1) FOBT shall conduct its fiscal operations in accordance with accepted business practices, using purchase orders, receipts, invoices, and inventory records.

(2) FOBT shall submit to DNR a complete financial report, through the property manager, annually within 90 days following the end of FOBT's fiscal year (November 1 – October 31). The report is not required to include a list of donors or itemized donations. The report shall be accompanied by a written summary of FOBT activities for the year.

(3) The DNR may review and/or audit the records of FOBT at any time during the term of this agreement with reasonable notice.

(4) FOBT shall maintain a checking account in its name, and shall deposit proceeds from sales, etc., in the account at least once a month. Only the treasurer or the president’s designee may make the deposits.

(5) FOBT will provide notice of its meetings in a manner which is reasonably likely to apprise interested persons.

H. Personnel

(1) FOBT shall provide such personnel as are reasonably necessary to operate the sales facilities as indicated by the level of gross sales. These personnel may include, as necessary, a business office staff, facility managers, and sales clerks. Otherwise, DNR personnel may offer sales items to the public as an incidental supplement to their regular duties.

(2) FOBT shall designate one member or employee who is authorized to act as liaison with the DNR.

(3) All FOBT employees and volunteers involved in visitor contact shall be oriented in the trail’s visitor service programs and shall be approved by the property manager before assuming such responsibilities.

(4) FOBT personnel are not DNR employees and are not authorized to undertake any DNR function or activity on behalf of the DNR beyond routine visitor information services and participation in interpretive programs. FOBT employees and members shall not engage in activities which would reasonable lead the visiting public to conclude that they are DNR employees. No FOBT employee or member shall wear a DNR uniform. All FOBT employees and volunteers involved in public contact shall wear some easily observable and readily identifiable indicia of FOBT affiliation while at the trail on FOBT business. If the DNR specifies volunteer uniforms or indicia, they shall be worn by FOBT employees and volunteers while on duty.

(5) Where applicable, FOBT shall furnish full worker's compensation coverage for its employees and shall comply with all social security and withholding tax laws and rules. A person claiming that the coverage is not required under Chapter 102, Wis. Stats., shall upon request, provide the basis for such opinion in writing to the DNR.

(6) Nondiscrimination

In connection with the performance of work under this agreement, FOBT agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in s. 51.01(5), sexual orientation or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

Except with respect to sexual orientation, FOBT further agrees to take affirmative action to ensure equal employment opportunities. If the annual work force is less than 10 employees, FOBT is exempted from this requirement.

I. Approvals

(1) Hours of operation, rates and prices, standards of service, and merchandise to be sold shall be subject to the approval of the property manager.

(2) FOBT may at any time make a written request to the property manager for such necessary approvals. Failure to disapprove within 30 days of receipt of such written request shall be deemed to constitute DNR approval.

4. INDEMNIFICATION AND INSURANCE

A. General

FOBT will not be required to purchase liability insurance as long as it is engaged only in the sale of books, brochures, and other items related to natural history, or in assisting DNR interpretive programs, or in assisting DNR in minor grounds maintenance projects.

B. Exception

In the event of FOBT sponsorship of events, programs, and projects beyond the scope of those noted in Paragraph A, FOBT shall purchase public liability insurance to be effective during a period of time specified by DNR to provide adequate protection of the state's interests. The liability insurance will name the State of Wisconsin, Department of Natural Resources and its employees, and Friends of Badger Trail, Inc., as insured in any amount of $300,000 single limit per occurrence including coverage of $300,000 for bodily and personal injury and $25,000 for property damage so that the DNR will be protected from any liability arising out of the activities of FOBT. FOBT shall furnish the DNR with a copy of the insurance policy or a certificate of insurance, to be placed in a file with the agreement, at least two weeks before FOBT begins such events, programs, or projects. FOBT will indemnify the DNR against any cause of action, claim, damage, cost of expense, including reasonable attorney's fees, arising from its management or operation, or from any breach or default by FOBT in the performance of this agreement, or from any negligence of FOBT during such events, programs, or projects. If any action or proceeding is brought against the DNR by reason of any such cause or claim, FOBT, upon notice from the DNR, will defend the DNR by counsel satisfactory to the DNR. If insurance is required, this agreement will be conditioned on the DNR's approval of the insurance policy. Any notice of cancellation of the insurance policy will require notice to the DNR.

C. Copyright Infringement

FOBT, in selling the articles described herein, guarantees that the sale or use of those articles will not infringe on any copyright. FOBT covenants that it will at its own expense defend every suit which shall be brought against the State of Wisconsin (provided that FOBT is promptly notified of such suit, and all papers therein are delivered to FOBT) for any alleged infringement of any copyright by reason of the sale or use of such articles sold or distributed by FOBT, and agrees that FOBT will pay all costs, damages, and profits recoverable in any such suit.

5. ASSIGNMENT

No transfer or assignment of this agreement or of any part thereof or interest therein, directly or indirectly, voluntary or involuntary, shall be made unless such transfer or assignment is first approved in writing by the DNR Secretary or the Secretary's authorized representative.

6. APPROPRIATIONS

Nothing herein contained shall be construed as binding the DNR to expend any sum in excess of appropriations made by the Legislature, or administratively allocated, for the purpose of the agreement, or to involve the DNR in any contract or other obligation for the future expenditure of money in excess of such appropriations or allocation.