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Fort Worth City Secretary Contract Number:47359
ADOPT-A-PARK AGREEMENT FOR FIRST FLIGHT PARK
This ADOPT-A-PARK AGREEMENT ("Agreement") is made and entered into by and
between THE CITY OF FORT WORTH ("City"), a home-rule municipality organized under the laws
of the State of Texas,and ELAN WEST 7TH,L.P., ("Adopter"), a Delaware limited partnership, acting
by and through ELAN WEST 7"' GENERAL PARTNER GP, L.L.C., a Delaware limited liability
company.
WHEREAS, the City owns First Flight Park, which is located at 2700 Mercedes Avenue, Fort
Worth,Texas;
WHEREAS, Adopter is developing approximately five acres of real property adjacent to First
Flight Park into a multi-family development consisting of townhomes, apartments, and a parking garage,
all of which is located west of Carrol Street,north of Merrimac,east of Foch,and south of Azalea Avenue
("Linwood Development');
WHEREAS, the Fort Worth City Council approved certain zoning changes for the Linwood
Development based on representations and assertions by the Adopter that it would adopt the Park(zoning
case ZC-12-118; City of Fort Worth Ordinance Number 20512-12-2012);
WHEREAS,pursuant to a separate license agreement between the City and Adopter,the Adopter
is constructing certain community enhancements and improvements to First Flight Park, including,
among other things, aviation themed and dog park areas, said agreement being recorded with the City
Secretary as City Secretary Contract Number 47367("FFP License");
WHEREAS,the proposed enhancements and improvements to be constructed in First Flight Park
by the Adopter will benefit the public by helping to enhance the overall environment and livability of the
Linwood Development and the surrounding area;
WHEREAS,the types of amenities and improvements to be constructed by Adopter are premium
level enhancements that go beyond that which would otherwise be constructed for parks of similar size,
WHEREAS, as a result, such amenities and improvements will require an enhanced and more
expensive level of service and maintenance than the City would ordinarily provide;
WHEREAS, Adopter, as part of the consideration for being allowed to construct such
improvements under the FFP License, has agreed to maintain the Park in accordance with the terms of
this Agreement;and
NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged,the parties agree as follows:
SECTION 1
INCORPORATION OF RECITALS AND DESCRIPTION OF PROPERTY
1.01 The parties agree that the recitals set forth above are true and correct and form the basis upon
which the parties have entered into this Agreement.
1.02 The City hereby engages the Adopter, and the Adopter hereby agrees to provide, furnish and
perform the Services (as hereinafter defined) set forth in this Agreement in the City park known as First
Adopt-A-Park Agreement with Elan West 71h,L.P. 2015 OFFICUAL N� (R®
CITY SECRETARY
I Yo WORTH,TX
4
Flight Park located at 2700 Mercedes Avenue, Fort Worth, Texas ("Park") as further described and
depicted in Exhibit A,attached and incorporated herein for all proposes.
SECTION 2
DUTIES AND RESPONSIBILITIES
2.01 Adopter shall, at its sole cost and expense, cornmence and provide the Services (as hereinafter
defined) in accordance with this Agreement and its attachments and all applicable laws. In providing the
Services,Adopter shall take such steps as are reasonably appropriate to ensure that the Services involved
are properly coordinated with any related work performed by the City.
2.02 Plans for all Services (as hereinafter defined) and planting materials shall be submitted to the
City's Director of the Park and Recreation Department or that person's designee ("Director") on the
effective date of this Agreement,unless otherwise agreed to by the parties. To the extent that the Adopter
desires to revise any such plans or provide additional plans, then the Adopter must do so not less than
sixty(60) calendar days prior to the anticipated implementation or start date related to any such plans. No
Services shall commence until written approval of the plans has been granted by the Director. Any
Services performed by Adopter prior to written approval by the Director may be stopped at the discretion
of the Director and subject to removal and replacement by Adopter at the Adopter's sole cost and
expense.
2.03 Adopter represents that it has or will secure, at its own expense, all materials, supplies,
machinery, equipment, tools, superintendence, labor, personnel, insurance, and other accessories and
services necessary to provide the Services in accordance with the requirements of this Agreement and the
City. The following shall constitute the services to be provided by the Adopter and shall be referred to as
the"Services":
a. Generally.
i. Adopter shall provide all janitorial, custodial, and grounds keeping services for
the Park, and maintain the Park in a clean, neat, and attractive condition. In
addition to any other requirements set forth in this Section 2.03,Adopter shall, at
a minimum, maintain the Park at a Level II classification as defined in the Park
Maintenance Standard Classification System set forth in Exhibit B, which is
attached hereto and incorporated herein ("Park Maintenance Standards"). To the
extent that a conflict exists between the Park Maintenance Standards and any
other portion of this Section 2.03, then the terms set forth below in this Section
2.03 shall govern.
ii. Adopter shall pay for all electrical hookups, electricity, water impact, water tap
and meter fees,and water usage.
iii. Adopter shall adhere to the "Guidelines for Landscape in Parkway" as required
by Exhibit C,which is attached hereto and incorporated herein for all purposes.
b. Irri_a�.
i. The parties acknowledge that Adopter has installed an underground irrigation
system in the Park per the FFP License. Adopter shall maintain and operate the
underground irrigation system and any associated additions in accordance with
any plans reasonably approved by the Director, the Park Maintenance Standards,
Adopt-A-Park Agreement with Elan West 71h,L.P. 2 433
and this subsection. Maintenance shall include, without limitation, any and all
necessary and ordinary upkeep and repairs to ensure that the entire irrigation
system is functioning properly, and shall be performed by a State of Texas
licensed irrigator that is reasonably approved by the Director.
(1) As required, Adopter shall adhere to the "Water Rationing and
Conservation Procedures"set forth in Exhibit D,which is attached hereto
and incorporated herein for all purposes.
(2) Adopter shall supply the City with a plan for the maintenance and
operation of the irrigation system within thirty (30) calendar days after
the execution of this Agreement.
(3) Adopter shall ensure that the irrigation systems shall not operate during
wet and rainy weather or be in operation during freezing temperatures.
(4) Irrigation for the dog park shall be monitored daily for protection against
concentrated nitrogen and soluble salts onto the surface material of the
dog park. This may require(1)adjusting watering times and frequencies
for diluting the nitrogen and salt levels in the soil, (2) maintaining the
turf levels at higher than normal mow heights if the use of turf for the
surface material of the dog park is elected, and (3) protecting against
varied levels of waste nutrients within the soils with a proper fertilization
plan if the use of turf for the surface material of the dog park is elected.
C. Plantings.
i. In addition to any requirements set forth in this Section 2.03, including, but not
limited to, the Park Maintenance Standards, the Adopter shall install, maintain,
and replace all plantings and planting materials in the Park, including, but not
limited to, watering shrubs, grass, and trees, in accordance with a set of plans
proposed by Adopter and as reasonably approved by the Director.
d. Exhibits and Structures.
i. Adopter shall maintain the cleanliness of all exhibits and structures in accordance
with a set of plans proposed by the Adopter and as reasonably approved by the
Director.
ii. Artwork. Notwithstanding anything to the contrary, Adopter shall maintain, or
ensure the maintenance of, any artwork or monument, including, but not limited
to, the airplane sculpture and associated infrastructure, that Adopter may install
as part of the FFP License, in accordance with all applicable industry standards
for artwork maintenance and conservation. At the very least, maintenance shall
be sufficient to ensure that the artwork or monument will not experience
irreparable conditions that make it fall outside of an acceptable standard of public
display, including, but not limited to, rust, mold, fracturing, staining, chipping,
tearing,abrading,and peeling.
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e. Dog Park. In addition to any requirements set forth in this Section 2.03, including, but
not limited to,the Park Maintenance Standards and irrigation standards,the Adopter shall
perform the following:
i. Adopter shall provide an adequate number of disposable bags, or other means of
removing animal feces,and refuse cans for feces cleanup for the dog park.
ii. Adopter shall provide daily solid waste removal within the Park to ensure the
health and safety of the Park and its patrons.
iii. Adopter shall ensure that the access gate to the dog park is always equipped with
1/2" galvanized bolts and nuts to facilitate fence removal for maintenance of the
existing,or future,water main or water line. Neither the 'h"galvanized bolts and
nuts nor the fence shall be welded to prohibit easy accessibility to the water main
or water line. If the fence has been welded or accessibility impeded in any way,
then the Adopter shall be responsible for all costs associated with removing and
repairing said fence in the event that the City should need to access the water
main or water line for any reason.
£ Damage to the Park
i. Normal Wear and Tear. Adopter and City acknowledge that the Park is intended
to be used by the public for recreational and social purposes, along with any
other uses that are typically associated with public parks of the same or similar
size and nature within the City of Fort Worth. Therefore, the Services
contemplated herein for which Adopter is responsible include any and all normal
wear and tear associated with such uses of the Park(including,but not limited to,
its use as a dog park)by the general public.
ii. Damage by Adopter. In the event that any City-owned property, including,
without limitation, utilities, park improvements, concrete work, equipment, turf,
shrubs,plants, and the like are damaged or destroyed by the acts or omissions of
Adopter, its officers, directors, employees, contractors, affiliates, or associates
during the performance of the Services hereunder, including, but not limited to,
installation, watering, or maintenance of any landscape improvements, Adopter
shall be solely responsible for all repairs or replacements and any costs related
thereto. The Director shall reasonably determine whether any damage has been
done, the amount of the damage, the reasonable costs of repairing the damage,
and whether Adopter is responsible. The Director shall be the sole judge of the
damage to the Park, in which judgment shall be exercised reasonably. Any
damage by Adopter shall be repaired or replaced by Adopter to the reasonable
satisfaction of the Director within thirty (30) calendar days after the City sends
written notice of such damage or within such time as agreed to otherwise by the
parties in writing. If the Adopter fails to remedy the damages in the time set
forth above,then the Adopter agrees to reimburse the City for any costs incurred
by the City in repairing or replacing such damage, with any such amount to be
due and payable to the City within thirty(30)calendar days after the City sends a
written invoice to the Adopter detailing such costs.
iii. Damage by Vandalism. Subject to funding availability, City will be responsible
for repairing any damage to the Park that results fiom vandalism. In the event
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that the City lacks the funding necessary to repair such damage, then City and
Adopter agree to discuss, in good faith, the options for repairs,including,but not
limited to, financing, scope and timeline, and the party responsible for managing
and supervising such repairs. For purposes of this Agreement, "vandalism" shall
mean an action involving deliberate destruction of or damage to the Park,
excluding normal wear and tear by the general public, by an individual or entity
that is not a party to this Agreement.
iv. Other Damaee. In the event that damage occurs to the Park that is not covered
by this Section 2.03(f), then Adopter and City agree to discuss,in good faith, the
options for repairs,including,but not limited to,the financial share attributable to
each party, scope and timeline of repairs, and the party responsible for managing
and supervising such repairs.
SECTION 3
TERM OF AGREEMENT
3.01 The Agreement shall be binding on the last date of execution by the parties and effective
beginning on the date that the City takes title to the improvements set forth in the FFP License and shall
remain in effect until September 30, 2115, subject to early termination as provided herein ("Term").
Adopter and City shall execute a written memorandum evidencing the effective date as soon as such date
is established, in the form attached as Exhibit E, which is attached hereto and incorporated herein for all
purposes.
SECTION 4
ALTERATIONS,ADDITIONS,AND IMPROVEMENTS
4.01 Adopter shall not make or cause to be made any alterations, additions, or improvements to City
property without the prior written consent of the Director. Adopter shall present to the Director any plans
and specifications for such alterations, additions, and improvements at the time such approval is sought.
The Director reserves the right to either approve or disapprove of such plans,either in whole or in part,as
may be necessary in its sole and absolute discretion. Any alterations,additions, or improvements shall be
consistent with the Services to be provided in this Agreement. If Adopter desires to make any alterations,
additions, or improvements outside of the scope of Services set forth in this Agreement, then the parties
will need to address any such alterations,additions,or improvements through an amendment.
4.02 All alterations,additions,and improvements to City property made with the written consent of the
Director shall, upon completion and acceptance by the Director, become the property of the City.
Adopter may be required to remove, at its expense, any alterations, additions, or improvements not
meeting specifications as approved by the Director.
SECTION 5
MANAGEMENT AND OPERATION OF THE PARK
5.01 The City does not relinquish the right to control the management of the Park, or the right to
enforce all necessary and proper rules for the management and operation of the same. The City through
its City Manager, Director, Police and Fire personnel, and other designated representatives, has the right
at any time to enter any portion of the Park(without causing or constituting a termination of the use or an
interference of the use of the Park by Adopter) for the purpose of inspecting and maintaining the same
and doing any and all activities necessary for the proper conduct and operation of public property;
provided, this shall not authorize or empower the City to direct the activities of Adopter or assume
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liability for Adopter's activities.The Director reserves the right to modify or remove any improvements at
the Park as determined necessary by the Director. Should the Director elect to modify or remove any
improvements at the Park, such removal shall be at the sole cost of the City and the removal conducted in
a manner that does not terminate or interfere with the use of the Park by Adopter as otherwise provided
herein.
5.02 From time-to-time,individuals or entities may want to reserve the Park, either in whole or in part,
through the City's Park and Recreation Department, including, but not limited to, for special events or
occasions. The City agrees that, in granting such reservations, it will comply with its park reservation
policy, then in effect. The City will also make a good faith effort to coordinate with Adopter concerning
all such reservations to ensure that it does not interfere or conflict with Adopter's Services herein. Any
damage caused to the Park as a result of such events will be governed by Section 2.03.
SECTION 6
INDEMNIFICATION
6.01 ADOPTER AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY, AND HOLD THE
CITY, ITS OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES HARMLESS AGAINST
ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND,
INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS AND
PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEAT M, THAT MAY RELATE TO,
ARISE OUT OF OR BE OCCASIONED BY(t)ADOPTER'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR (it) ANY ACT OR OMISSION OF ADOPTER, ITS
OFFICERS, AGENTS, AFFILIATES, ASSOCIATES, EMPLOYEES, CONTRACTORS(OTHER THAN
THE CITI) OR SUBCONTRACTORS, RELATED TO THE SERVICES AND THE INSTALLATION
AND MAINTENANCE OF ANY IMPROVEMENTS ON THE PARK, 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 OR
WRONGFUL, WILLFUL ACTS OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR
SEPARATE CONTRACTORS,AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE
OR WRONGFUL, WILLFUL ACTS OF BOTH ADOPTER AND CITY OR ITS OFFICERS, AGENTS,
EMPLOYEES, OR SEPARATE CONTRACTORS, RESPONSIBILITY, IF ANY, SHALL BE
APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
6.02 Adopter covenants and agrees that the City shall in no way or under any circumstances be
responsible for any property belonging to Adopter, its members, employees, agents, contractors,
subcontractors, invitees, licensees, or trespassers, which may be stolen, destroyed, or in any way
damaged. The City does not guarantee police protection and will not be liable for any loss or damage
sustained by Adopter, its members, affiliates, employees, agents, contractors, and subcontractors on the
Park.
6.03 Adopter 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 Adopter, its employees, officers, agents, representatives, affiliates, and
volunteers in connection with this Agreement.
6.04 It is further agreed that the acceptance of this release shall not constitute a waiver by the City of
Fort Worth of any defense of governmental immunity, where applicable, or any other defense recognized
by the Statutes and Court decisions of this State.
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SECTION 7
INSURANCE
7.01 Duty to Acquire and Maintain. Adopter shall ensure that a policy or policies of insurance are
procured and maintained at all times, in full force and effect, to provide coverage of the types and
amounts specified herein, naming the City as an additional insured as set forth herein, and covering all
public risks related to the use, occupancy, condition,maintenance,existence, or location of the Park. The
insurance required hereunder may be met by a combination of self-insurance and primary and excess
policies.
a. Types and Amounts of Coverage Required
i. Commercial General Liability:
(1) $1,000,000.00 per occurrence, $2,000,000.00 aggregate, including
coverage for the following: (i) Premises Liability; (ii) independent contractors;
(iii) products/completed operations; (iv) personal injury; (v) contractual liability;
(vi) explosion,collapse,and underground property damage
ii. Umbrella Policy
(1) $5,000,000.00
iii. Environmental Impairment Liability(EIL)and Pollution LiabilitX
(1) $2,000,000 per occurrence
(2) $2,000,000 aggregate
iv. Automobile Liability:
(1) $1,000,000.00 Each accident on a combined single-limit basis. Coverage
shall be for"Any Auto"owned,non-owned,and hired.
V. Worker's Compensation:
(1) Per statutory limits of the State of Texas
vi. Employer's Liability
(1) $1,000,000.00 per accident
7.02 Revisions to Required Coverage. At the reasonable recommendation of the Director or the City's
Risk Manager, the City may at any time revise insurance coverage requirements and limits required by
this Agreement. Adopter agrees that within ten (10) days of receipt of written notice from the City, all
such revisions requested by the City will be implemented. The policy or policies of insurance shall be
endorsed to provide that no material changes in coverage, including, but not limited to, cancellation,
termination, non-renewal, or amendment, shall be made without thirty (30) days' prior written notice to
the City.
Adopt-A-Park Agreement with Elan West 711,L.P. 7 of 33
7.03 Underwriters and Certificates. The insurers for all policies must be licensed and approved to do
business in the State of Texas. Except for workers' compensation, all insurers must have a minimum
rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial
strength and solvency to the satisfaction of Risk Management. If the rating is below that required,prior
written approval of the City's Risk Management Division or the Director is required. Within ten (10)
business days following execution of this Agreement, Adopter shall ensure that City is furnished with
certificates of insurance signed by the respective companies as proof that the types and amounts of
insurance coverage required herein have been obtained. In addition, Adopter shall, on demand, provide
the City with evidence that it has maintained such coverage in full force and effect.
7.04 Deductibles. Deductible or self-insured retention limits on any line of coverage required herein
shall not exceed $25,000.00 in the annual aggregate unless the limit per occurrence or per line of
coverage,or aggregate is otherwise approved by the City.
7.05 No Limitation of Liabilitv. The insurance requirements set forth in this section and any recovery
by the City of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or affected to limit or in any way affect Adopter's liability to the City or other persons as
provided by this Agreement or law.
7.06 Umbrella or Excess Liability. If insurance policies art not written for specified coverage limits,
an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow
form of the primary coverage.
7.07 Additional Insured. The City, its officers, employees and volunteers shall be named as an
Additional Insured on the Automobile, Commercial General Liability, and Umbrella/Excess liability
policies.
7.08 Waiver of Subrogation. All policies of insurance shall include a waiver of rights of recovery
(subrogation)in favor of the City of Fort Worth.
7.09 Copies of Policies and Endorsements. City shall be entitled, upon request and without expense,
to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion
or revision or modifications of particular policy terms, conditions, limitations, or exclusions in order to
comply with the requirements of this Agreement except where policy provisions are established by law or
regulations binding upon either of party or the underwriter on any such policies.
7.10 Certificate of Insurance. Adopter shall submit to the City a certificate of insurance evidencing all
required insurance coverage and any applicable endorsements.
SECTION 8
INDEPENDENT CONTRACTOR
8.01 Adopter shall perform all work and Services hereunder as an independent contractor, and not as
an officer, agent, servant or employee of the City. Adopter shall have exclusive control of, and the
exclusive right to control the details of the work performed hereunder, and all persons performing same,
and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors,
affiliates, and subconsultants (or subcontractors). Nothing herein shall be construed as creating a
partnership or joint venture between the City and Adopter, its officers, agents, employees, contractors,
affiliates, and subconsultants (or subcontractors), and doctrine of respondent superior has no application
as between the City and Adopter.
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SECTION 9
LICENSES AND PERMITS
9.01 Adopter shall comply with all federal, state, and local laws,rules, and regulations,as well as with
all regulations, restrictions, and requirements of the Police,Fire, and Code Compliance Departments now
or hereafter in effect that are applicable to its operations and the Services to be provided herein. Adopter
shall obtain and keep in effect at its own cost and expense all licenses and permits, and pay all taxes
incurred or required in connection with this Agreement and its operations hereunder.
SECTION 10
LIENS
10.01 Adopter agrees not to take any action that would result in the creation of any lien on City
property. In the event that a lien is filed, as a result of any action of Adopter, Adopter will take all
necessary steps to bond around or remove the lien within ten days of its filing.
SECTION 11
TERMINATION AND DEFAULT
11.01 Termination for Convenience.
a. City. The City may terminate this Agreement without cause by giving the Adopter
thirty (30) calendar days' written notice of its intent to terminate. In the event that the City
terminates this Agreement for convenience, then the Adopter shall not be required to pay to the
City any of the Early Termination Fee(as hereinafter defined).
b. Adopter. Adopter may terminate this Agreement without cause by giving the City 180
calendar days' written notice of its intent to terminate. In the event that Adopter terminates this
Agreement for convenience, then Adopter shall pay to the City the full Early Termination Fee as
set forth in Section 11.03.
C. In the event of such termination of this Agreement as set forth above, all rights and
privileges of Adopter hereunder shall cease and terminate and Adopter shall vacate the Park and
remove any and all personal property belonging to the Adopter on or before the effective date of
termination.
11.02 Termination for Cause.
a. Events of Default. The following events shall be deemed to be events of default("Events
of Default")by Adopter under this Agreement:
i. Adopter assigns this Agreement without complying with Section 15 of this
Agreement;
ii. Adopter becomes insolvent or makes a transfer in fraud of creditors,or makes an
assignment for the benefit of creditors;
iii. Adopter fails to comply with the insurance requirements in this Agreement;
iv. Adopter dissolves or fails to remain registered and in good standing with the
Texas Secretary of State; or
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V. Adopter fails to comply with any term, provision, condition, or covenant of this
Agreement.
b. Termination for Cause. City shall have the right to terminate this Agreement upon the
occurrence of any Events of Default, if the City provides Adopter with written notice of the
claimed Event(s) of Default and Adopter does not cure the default within thirty (30) calendar
days following the date that the City sends written notice to Adopter ("Cure Period"). To the
extent that an Event of Default cannot reasonably be cured within the aforesaid thirty (30) day
calendar period, the City shall not unreasonably withhold or delay its consent to the extension of
the Cure Period to a time period necessary to cure the Event of Default in question including by
way of example,but not limitation, the making of repairs, improvements or construction matters.
After notice and opportunity to cure as provided in this Agreement, the City shall have the right,
and without further notice, to declare this Agreement immediately terminated and to enter into
and take full possession of the Park save and except such personal property and equipment as
may be owned by Adopter. In the event of such termination of this Agreement by the City, all
rights and privileges of Adopter hereunder shall cease and terminate and Adopter shall
immediately vacate the Park and remove any and all personal property belonging to the Adopter.
Furthermore, in the event that the City terminates this Agreement for cause, then Adopter shall
pay to the City the full Early Termination Fee as set forth in Section 11.03.
11.03 Early Termination Fee
a. As stated in the recitals, the City has permitted the Adopter the right to construct a
premium level of improvements and amenities on the Park(per the FFP License), which requires
an enhanced and more expensive level of service and maintenance that exceeds the financial
capabilities of the City for maintenance of such parks. Because the City lacks funding to
maintain such improvements and amenities, Adopter, as part of the consideration for the
construction thereof,has agreed to maintain the Park per the terms of this Agreement. Therefore,
Adopter understands, recognizes, and agrees that termination of this Agreement prior to the
expiration of the Term will cause the City to suffer substantial financial harm. To ensure that the
City has adequate funding to maintain this Park for the long-term beneficial use of the public,
Adopter agrees to pay to the City an early termination fee of FIVE HUNDRED THOUSAND
DOLLARS AND NO CENTS($500,000.00)(`Early Termination Fee"),which the parties agree
reasonably approximates the actual harm to the City in the event of an early termination. Adopter
shall pay the Early Termination Fee to City on or before the effective date of termination of this
Agreement,or as otherwise directed in writing by the City.
11.04 Letter of Credit
a. On or before the effective date of this Agreement,Adopter shall provide the City with an
irrevocable standby letter of credit ("Letter of Credit") in favor of the City in the full amount of
the Early Termination Fee. The Letter of Credit must be issued by a financial institution in the
corporate limits of the City of Fort Worth and in a form acceptable to the City. This Letter of
Credit shall serve as security to the City for the faithful performance by Adopter of its obligation
to pay to the City the Early Termination Fee as set forth in this Section 11. The Letter of Credit
shall provide that the City may draw down any amount necessary to fulfill Adopter's obligation
to pay the Early Termination Fee by presenting the issuer with (i) a sworn, written statement,
signed by the City's City Manager or that person's authorized designee, that states that Adopter
has failed to pay the Early Termination Fee, either in whole or in part, in accordance with the
Agreement and(ii) a copy of the Letter of Credit.
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b. Adopter shall keep in effect and maintain this Letter of Credit at the amount specified
herein at all times until the earlier occurrence of the events set forth below in this Section
11.04(b)(i)-(iv), at which time Adopter shall have no further obligation to keep in effect or
maintain such Letter of Credit:
i. The expiration date for the Term of this Agreement;
ii. The effective date of termination as a result of termination under Section
11.01(a)of this Agreement(Termination for Convenience of the City);
iii. The effective date of a valid assignment of this Agreement, which is conducted
pursuant to Section 15;or
iv. In the event that early termination of this Agreement invokes Adopter's
obligation to pay the Early Termination Fee (see Sections 11.01(b) and 11.02),
then Adopter's obligation to keep in effect and maintain such Letter of Credit
shall cease on the date that the City receives payment in full of the Early
Termination Fee, either directly from Adopter, the Letter of Credit, or any other
means.
C. The Letter of Credit shall provide that the Letter of Credit shall not expire and that the
issuer shall not cancel the Letter of Credit unless the issuer provides written notice both to the
City and Adopter at least thirty (30) calendar days prior to such expiration or termination, in
which event Adopter shall be obligated to provide the City with a substitute Letter of Credit that
complies with the requirements of Sections 11.03 and 11.04 prior to the deadline for such
expiration or termination. The obligation to keep in effect and maintain such Letter of Credit
throughout the term of this Agreement shall be binding on any of Adopter's successors and
assigns.
SECTION 12
NON-DISCRIMINATION/DISABILITIES
12.01 Adopter, in its construction, maintenance, occupancy, or use of the Park shall not discriminate
against any person or persons because of race, age, gender, religion, color, national origin, sexual
orientation, gender identification, gender expression, transgender, disability or any other class of people
that may be protected by applicable law.
SECTION 13
NOTICES
13.01 Any notice required shall be sufficient if deposited in the U.S.Mail,postage prepaid,certified
mail,return receipt requested,and addressed to the other party as follows:
CITY: ADOPTER:
City of Fort Worth Elan West 7'1,LP
Attn: Park and Recreation Director Attn: Laird Sparks
4200 South Freeway, Suite 2200 600 E. Las Colinas Boulevard, Ste. 2100
Fort Worth,Texas 76115 Irving,Texas 75039
Adopt-A-Park Agreement with Elan West 7111,L.P. 11433
With copy to:
City of Fort Worth
Attn: City Attorney
1000 Throckmorton Street
Fort Worth,Texas 76102
13.02 Mailing of all notices pursuant to this Section shall be deemed sufficient if mailed postage
prepaid, certified mail,return receipt requested, and addressed as specified above,unless either party has
been notified in writing of any changes to such address(es) or addressee(s). All time periods related to
any notice requirements specified in this Agreement shall commence on the date notice is mailed,unless
otherwise set forth in this Agreement.
SECTION 14
VENUE AND JURISDICTION
14.01 This Agreement shall be governed by the laws of the State of Texas. Venue for any action
brought to interpret or enforce, or arising out of or incident to, the terms of this Agreement shall be in
Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth
Division.
SECTION 15
ASSIGNMENT
15.01 Adopter may not assign, transfer or otherwise convey any of its rights or obligations under this
Agreement to any other person or entity without the prior consent of the Fort Worth City Council, which
consent shall not be unreasonably delayed or withheld, conditioned on (i) contemporaneous assignment of
this Agreement to the proposed assignee or successor; (ii) the prior approval of the assignee or successor
and a finding by the Fort Worth City Council that the proposed assignee or successor is financially capable
of meeting the terms and conditions of this Agreement; and(iii)prior execution by the proposed assignee or
successor of a written agreement with the City under which the proposed assignee or successor agrees to
assume and be bound by all covenants and obligations of Adopter under this Agreement. Except as the
City, Adopter, and any lawful assignee or successor-in-interest may otherwise agree in writing, all rights,
duties, and obligations of the Adopter under this Agreement arising, accruing, or relating to the period
before the effective date of the assignment will be allocated to the Adopter and all rights, duties, and
obligations of the assignee or successor arising,accruing, or relating to the period after the effective date of
the assignment will be allocated to the lawful assignee or successor-in-interest. Any lawful assignee or
successor-in-interest of Adopter of the rights under this Agreement shall be deemed "Adopter" for all
purposes under this Agreement.
15.02 Subject to the limitations contained herein, the covenants, conditions, and agreements made and
entered into by the parties hereunder are declared to be for the benefit of and binding on their respective
successors,representatives, and permitted assigns,if any.
SECTION 16
WAIVER,SEVERABILITY,SECTION HEADINGS,
16.01 It is agreed that in the event any covenant, condition, or provision herein contained is held to be
invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or provision
shall in no way affect any other covenant, condition, or provision herein contained; provided, however,
that the invalidity of any such covenant, condition, or provision does not materially prejudice either
Adopt-A-Park Agreement with Elan West 711,L.P. 12 of 33
Adopter or the City in connection with the rights and obligations contained in the valid covenants,
conditions,or provisions of this Agreement.
16.02. The waiver by the City of any default or breach of a term, covenant, or condition of this
Agreement shall not be deemed to be a waiver of any other breach of that term, covenant or condition or
any other term,covenant,or condition of this Agreement,regardless of when the breach occurred.
16.03 The headings in this Agreement are inserted for reference only, and shall not define or limit the
provisions hereof.
SECTION 17
FORCE MAJEURE
17.01 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 of 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. Adopter herby waives any and all claims it may have against the
City for damages resulting from any such Force Majeure Event.
SECTION 18
MEMORANDUM OF AGREEMENT
18.01 Adopter understands and acknowledges that the Fort Worth City Council approved zoning case
ZC-12-118, as adopted and set forth in City of Fort Worth Ordinance Number 20512-12-2012, based on
certain representations and assertions made by Adopter to adopt the Park. The parties shall execute a
memorandum of Agreement to file in the Real Property Records of Tarrant County,at Adopter's expense,
to ensure that any future purchasers of the property that is the subject of ZC-12-118 have proper notice of
this Agreement.
SECTION 19
ENTIRE UNDERSTANDING
19.01 This Agreement, including all exhibits attached hereto, constitutes the final, entire, and complete
agreement between Adopter and the City and supersedes any prior and contemporaneous negotiations,
understandings,representations, and agreements between the parties. Any prior or contemporaneous oral
or written agreement that purports to vary from the terms hereof shall be void. This Agreement cannot be
modified or amended without the written consent of all the parties hereto and attached and made a part of
this Agreement.
19.02 Neither this Agreement nor any provision hereof may be modified except by an instrument in
writing, signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Adopt-A-Park Agreement with Elan West 7th,L.P. 13 of 33
f
l'
EXECUTED to be effective as set forth in Section 3.
CITY OF FORT WORTH: ELAN WEST 7TH,L.P.,
a Delaware limited partnership
by: Elan West 7`"General Partner GP,L.L.C.
a Delaware limit e liability company
By: By:
S—U154n Alanis Laird Sparks
As istant City Manager Vice President
Date: 3 I Date: 3 13 i LP
APPROVED AS TO FORM AND L ALITY:
Tyler F.Wa
Assistant Attorney
AT ST:
7
�®
® �
Mary J.Ka
City Secretary
No M&C required
� �. OFFICIAL RECORD
CITY SECRETARY
MAR 162016 ? FT.WOI 9 a-
crrY o�roRi�CRT►T � -
r,1TY SECRETARY
Adopt A-Park Agreement with Elan West 7h,L.P. 14 of 33
EXHIBIT A
FIRST FLIGHT PARK
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MERCEDES
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Adopt A-Park Agreement with Elan West 7d,L.P. 15 of 33
EXHIBIT B
PARK MAINTENANCE STANDARDS
CITY OF FORT WORTH
PARI:ANA RECREATION DEPARTMENT
PARK NUINTLNANCE STANDARD
CLASSIFICATION S)'STEM
A method of classification of the different levels of maintenance for the parks and properties maintained by the City of Port Worth Park and
Recreation Department has been developed to ensure adequate standards are established for each property, 'Ibis covers a wide variety ot'park systems
in existeoce and is based on the level and type of use at each site mud the level of development of each site. It is uou-d that a park may contain
multiple levels of maintenance.
L2vcl 1-State of the art maintenance:applied to the highest quality and most diverse sites,usually associated with inteascly developed areas which
experience high public use. Areas include:Botanic Gardao,City Hall,and the Central Business District.
Lcvel 11-High level nmimmance-associated with well developed park areas wilh high visilaticnr such m the Convention Center and Will Rogers
Memorial Center.Comintmily Centers,and libraries.
Level Ill-Moderne level maintemance-associated with loeatiolts of moderate levels ol'development and visitation. Level IIIA indicates sites that
receive litter control twice per week. Level IBB indicates 1hose sites that receive litter control once ler week.
Level Il'-Limited level maintenance-associated with locatimts of limited levels of development and moderate to minimal use.
Level V-Natural areas or reserved park sites. Maintenance performed at these sites is usually performed to maintain code standards or to address
safety related issues.
Adopt-A-Park agreement-\with Elan West Th,L.P. 16 of 33
Outline
Park/Athletic Field Maintenance
•Turfgrass Maintenance
•Park Litter Control
•free/Shrub Maintenance
•Ptowerbecl/Planting Maintenance
•Road and Parking Lot Maintenance
•Playground Maintenance
•Park Amenities Maintenance
•Trail Maintenance
•Median Maintenance
Adopt-A-Park Agreement with Elan West Th,L.P. 17 of 33
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EXHIBIT C
GUIDELINES FOR LANDSCAPING IN PARKWAY
Guidelines for Landscaping in Parkway
Public Open Space Easement(P.O.S.E.)
A 20 foot by 20 foot triangular public open
space easement is required on corner lots at
3 the intersection of two streets. A 15 foot by
° Public Open 15 foot triangular public open space of
Space Easement easement is required on corner lots at the
(P.O.S.E.} intersection of an alley and a street. In
addition, at the intersection of a driveway or
turnout section and a dedicated alley,a 10
foot by 10 foot triangular open space
Property Line easement is to be provided on each side at
the driveway or turnout at the time the
cu driveway and/or alley is constructed.
Public Street Right-of-way
No structure,object,or plant of any type may
obstruct vision from a height of 24-inches to a
height of 11 feet above the top of the curb,
including, but not limited to buildings,fences,walks,signs,trees, shrubs,cars,trucks,etc., in the
public open space easement as shown on the illustration.
Landscaping in Parkways
•A medium or large tree shall be planted a minimum of 2 feet from the face of the curb,sidewalk,
or other structure.
•A small tree or shrub shall be planted a minimum of 1.5 feet from the face of the curb,sidewalk,
or other structure.
•A minimum planting area of 3 feet must be available between back of curb and sidewalk to plant
any small tree or large shrub and a minimum of 4 feet to plant large trees.A large tree shall be
defined as a species that reach a height of 50 feet at maturity.
•In residential areas a minimum spacing of twenty-five feet is recommended between shade
trees planted on parkways and is required in commercial districts or major arterial streets.
•All landscaping shall be located so that pedestrians can walk parallel to the street within the
parkway whether a paved sidewalk is or is not provided.
•No tree or shrub shall obstruct the view of any traffic signal, sign,or other public sign.
•Trees planted under power lines will be a species that reaches a height of 30'or less upon
maturity.
•Any tree or shrub planted in the parkway is the property of the City and the City reserves the
right to prune or remove such tree or shrub if it becomes a traffic hazard or poses risk.
•Planting trees or shrubs on any public property requires a permit from Parks and Community
Services and can be obtained by calling the City Forester at 817-392-5738.
•The following trees are prohibited on city parkways: hackberry(Celtis sp.), sycamore(Platanus
occidentalis),silver maple(Acersaccharinum), mulberry(Morus sp.), Siberian elm(U/Mus
pumila),mimosa(Albizia julibrissin),Arizona ash(Fraxinus velutina),cottonwood(Populus
deltoids),willow(Salix sp.), Bradford pear(Pyrus calleryana)or any species of tree, shrub vine or
grasses listed in the Nonnative Invasive Plants of Southern Forests published by United State
Department of Agriculture Forest Service.
Adopt-A-Park Agreement with Elan West 7th,L.P. 30 of 33
EXHIBIT D
WATER RATIONING AND CONSERVATION PROCEDURES
The purpose of these procedures is to provide a guide for watering activities in the Park and Recreation
Department in the event of required water conservation and rationing. Required water conservation and
rationing will be determined in accordance with the "Emergency Water Management Plan" adopted by
the Fort Worth City Council in August 1999. In April 2014, the Fort Worth City Council amended the
plan to approve Stage I Water Restrictions. Stage I Water Restrictions are permanent until removed by
the Fort Worth City Council.
As a general practice, the Park and Recreation Department makes every effort to use water wisely and
efficiently in all its operations, and the Adopter is expected to do the same. However, should water
rationing be mandated by the City of Fort Worth, the Park and Recreation Department has established the
following procedures dependent upon the level of conservation and rationing required. The Adopter is
required to abide by the Water Rationing and Conservation Procedures set forth in this exhibit.
Four (4) levels are identified: Level I/Voluntary, Level II/Minor Rationing, Level III/Major Rationing
(mandated rationing), and Level IV/Critical Emergency (crisis/disaster caused rationing). For some
categories, there are notes that serve to explain special conditions. An example would be where non-
treated river water is used. In the implementation of these procedures, the City will place the highest
priority on the health and safety of people and wildlife. Protection and preservation of both living and
developed resources are also addressed as a high priority to preserve and protect these resources and
infrastructure.
__
CATEGORY LEVEL I - - - - LEVEL 11 --- LEVEL-III LEVEL IV
Voluntar Minor Rationin Ma'or Rationin Critical- —.Sy
n
General Turf Two timoa per woo k. One time per week or in No wator(most turf will go Samo as Level III
Tuesdays and Fridays. accordanw with City-wide dormant)
rationing roguiromo nt. _ _
Adopt-A-Park Wator to maintain plants at all Wator to maintain plants at all No watodng o—pt trees or No watering. Turf goo.
Adopt-A-Median silos. Water turf two ti—' sites or in accord....With shrubs which would die. dormant,plants die.
Sites par wank.Tuesdays and Citywide rationing requirements.
Fridays.
Flowers Water two times ar weak. Water one time –- - –�- �-— – �--- - -�-- -– _-—
p par weak or to re water l plants
die– Sama as Lovoi ill.
(replaceable– Tuesdays and Fridays, keep plants olive i in replace all pia nls next cyclo).
sually annual color] ordo nco with C{tywitlo
rationing ra uire ments.
Newly Planted Trees According to regular water Sa ma es Level-1 or in 8arrx as Level i or in (Vo watering unless using
schetlulo.Tuesdays and accortlanco with Citywide accordance with Citywide untreated non-potable
Frida s. rationin re uiromonts. rationin re uiremants, water.
wwvra
Tree Watering Policy:
Under emergency rationing, only untreated non-potable water will be used to water newly planted trees.
Any additional watering beyond what is currently committed will require additional resources having a
general fund impact. Also, any major plantings will be delayed until water conservation efforts are no
longer necessary.
Adopt-A-Park Agreement with Elan West 7r11,L.P. 31 433
EXHIBIT E
EFFECTIVE DATE MEMORANDUM
EFFECTIVE DATE MEMORANDUM(sample only)
THIS MEMORANDUM is made as of by and
between the CITY OF FORT WORTH, a home-rule Texas municipal corporation ("City") and ELAN
WEST 7TH, L.P., ("Adopter"), a Delaware limited partnership, acting by and through ELAN WEST
7th GENERAL PARTNER GP,L.L.C.,a Delaware limited liability company.
Recitals:
WHEREAS,City and Adopter are parties to that certain Adopt-A-Park Agreement dated
(the"Agreement") (City Secretary Contract Number 47359)for First Flight Park located at 2700
Mercedes Avenue,Fort Worth,Texas("Park").
WHEREAS, Adopter has completed the improvements set forth in City Secretary Contract
Number 47367 and vested title to such improvements to the City per the terms of said contract.
WHEREAS, City and Adopter desire to entire into this Memorandum confirming the effective
date of the Agreement.
NOW,THEREFORE, City and Adopter agree as follows:
1. The actual Effective Date is
2. Capitalized terms not defined herein shall have the same meaning as set forth in
the Agreement.
CITY OF FORT WORTH: ELAN WEST 7TH,L.P.,
a Delaware limited partnership
by: Elan West 7t1'General Partner GP,L.L.C.
a Delaware limited liability company
By:
Susan Alanis By:
Assistant City Manager Laird Sparks
Vice President
Date: Date:
APPROVED AS TO FORM AND LEGALITY:
Tyler F.Wallach
Assistant City Attorney
Adopt-A-Park Agreement with Elan West Th,L.P. 32 of 33
ATTEST:
Mary J.Kayser
City Secretary
No M&C required
Adopt-A-Park Agreement with Elan West 7111,L.P. 33 of 33