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HomeMy WebLinkAboutContract 31502-A4 t , CITY SECRETARY 4 CONTRACT NO, 222Z44 s a A %IENDED AND RESTATED LICENSE AGREEMENT BETWEEN �qy THE' ,ORT WORTH GARDEN CLUB AND THE CITY OF FORT WORTH '9 THIS AMENDED AND RESTATED 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 Fort Worth Garden Club, a Texas non-profit corporation ("FWGC"), acting by and through its duly authorized representative. WHEREAS, the City owns a certain piece of property known as the Fort Worth Botanic Garden located at 3220 Botanic Garden Boulevard, Fort Worth, Texas 76107 ("Botanic Garden"); WHEREAS, in the mid-1980s, FWGC contracted with the City to construct the Garden Center Conservatory Complex and an attached Lecture Hall ("Complex") at the Botanic Garden at no cost to the City(M&C C-8639 and C-9250); WHEREAS, in exchange, the City agreed to operate and maintain the Complex'as public facilities primarily for educational purposes and secondarily to provide space to hold meetings of public interest and benefit; WHEREAS, thereafter, FWGC and City have been party to a series of agreements pursuant to which (1) all revenue generated through the Complex was deposited into a special fund maintained by FWGC and used solely for the operation, expansion, or improvement of the Complex and the Botanic Garden and (2) FWGC was granted a right to use certain space within the Complex, with the current agreement being Fort Worth City Secretary Contract ("CSC") Number 31502, as amended and renewed by CSC Nos. 31502-A1, 31502-A2, and 31502-R1A3 ("Prior Agreement"); WHEREAS, in 2016, with the financial support of FWGC and the Fort Worth Botanical Society, Inc.,the City hired a consultant to develop a Botanic Garden Strategic Plan ("Plan"); WHEREAS, the purpose of the Plan was to prepare (1) baseline information for the Botanic Garden's current operations; (2) conduct an organizational analysis; (3) reconsider the Botanic Garden's mission; (4) create a unified vision in cooperation with FWGC and the Fort Worth Botanical Society; (5) review and provide steps for implementing the adopted 2010 Botanic Garden Master Plan; (6) set goals and develop objectives and timelines for achieving them; and (7) provide a financial analysis plan to assure current and future operating needs are met; WHEREAS, the Plan established several key goals, including the reorganization of the roles of the support groups and the increase of private support for the Botanic Garden; WHEREAS, on November 15, 2016, the City Council accepted receipt of the Plan and directed City staff to begin the process of further reviewing and evaluating the Plan to develop OFFICIAL RECORD Amended and Restated Agreement with the Fort Worth Botanic Garden Club CITV SECRETARY 1 of 18 1".WORTH,H,TX 7 strategies and policies for its implementation, which includes actions for realigning the governance structure at the Botanic Garden(M&C G-18885); WHEREAS, this Agreement is intended to help carry out the goal of reorganizing the role of FWGC in supporting the Botanic Garden; WHEREAS, per the Prior Agreement, all revenue generated by or for the City or FWGC (including the DBMGCC, as hereinafter defined) at the Complex, including any rental of rooms, patios, gardens, equipment, or parking lots, and photography fees and wedding fees (collectively, the "Rentals and Fees"), were required to be deposited into a special fund to be maintained by the FWGC and used only for the operation, expansion, or improvement of the Botanic Garden (the "FWGC Special Fund"); WHEREAS, the parties acknowledge that the term Rentals and Fees does not include revenues generated by FWGC (including the DBMGCC) through its independent fundraising events,projects, and donations; WHEREAS, FWGC established the Deborah Beggs Moncrief Garden Center Committee ("DBMGCC") to administer the FWGC Special Fund on behalf of the FWBG for the benefit of the Botanic Garden, which is held and administered separately from all other FWGC funds; WHEREAS, any funds remaining in the FWGC Special Fund as of the Effective Date of this Agreement shall remain in that account to be used and expended for the purposes stated herein; WHEREAS, from and after the Effective Date of this Agreement, any and all Rentals and Fees shall be collected by the City and deposited into a specially designated City fund, special purpose fund, or other similar City fund to be dedicated exclusively for the benefit the Botanic Garden ("City Botanic Garden Fund"); WHEREAS, under the Prior Agreement, the DBMGCC directly funded nine (9) City staff positions for the Botanic Garden; WHEREAS, as of the Effective Date of this Agreement, the City shall assume sole responsibility for funding or ensuring the funding of all staff positions at the Botanic Garden, including staff positions funded by the FWGC Special Fund under the Prior Agreement; and WHEREAS, the parties desire to simultaneously terminate the Prior Agreement and enter into this Agreement, effective as of the Effective Date. NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the sufficiency of which is hereby acknowledged, the City and FWGC hereby agree as follows: Amended and Restated Agreement with the Fort Worth Botanic Garden Club 2 of 18 SECTION 1. TERMINATION OF PRIOR AGREEMENT 1.01 The Prior 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 Prior Agreement that existed prior to the termination thereof. SECTION 2. PURPOSE 2.01 The sole purpose of this Agreement is to provide the best practicable atmosphere and operation of the Botanic Garden for the benefit of the public while preserving the non- commercial atmosphere of the Botanic Garden. SECTION 3. TERM AND TERMINATION 3.01 Primary Term. This Agreement shall be binding on the date of execution by the parties and effective as of April 29, 2017 ("Effective Date") and shall remain in effect until April 1, 2018, unless terminated earlier as provided herein("Primary Term"). 3.02 Renewal Term. This Agreement may be renewed upon mutual written agreement of the parties for two consecutive six (6) month periods under the same terms and conditions (each a "Renewal Term"). 3.03 Termination for Convenience. Either party may terminate this Agreement, with or without cause, by providing thirty (30) days' written notice to the other party. 3.04 Termination for Cause. FWGC shall be in default under this Agreement if FWGC breaches any term or condition of this Agreement and such breach remains uncured after thirty (30) calendar days following receipt of written notice from the City referencing this Agreement (or, if FWGC has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith). 3.05 Fiscal Funding Out. 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. 3.06 FWGC's Duties Upon Expiration or Early Termination. In addition to any other obligations in this Agreement, prior to the effective date for expiration or termination of this Agreement, FWGC shall promptly remove all of its personal property from the Botanic Garden, Amended and Restated Agreement with the Fort Worth Botanic Garden Club 3 of 18 including, without limitation, the Office Space (as hereinafter defined); provided, however, FWGC shall not be obligated to remove any fixtures. FWGC shall also repair any FWGC- caused damage to the Botanic Garden, including, without limitation, the Office Space, including, but not limited to, any damage that FWGC causes during removal of its property, to the reasonable satisfaction of the Director of the Park and Recreation Department or that person's authorized designee ("Director"). If FWGC fails to comply with its obligations in this Section, City may, at its sole discretion, (i) remove FWGC's personal property and otherwise repair the Botanic Garden, including, without limitation, the Office Space, and invoice FWGC for City's costs and expenses incurred, such invoice to be due and payable to City within thirty (30) calendar days of its delivery to FWGC; or (ii) following no less than thirty (30) calendar days prior written notice to FWGC, take and hold any FWGC personal property as City's sole property; or (iii) pursue any remedy at law or in equity available to City. If FWGC fails to surrender the Botanic Garden, including, without limitation, the Office Space, to City following termination or expiration of this Agreement, all liabilities and obligations of this Agreement shall continue in effect until such is surrendered. 3.07 Remedies. Any termination of this Agreement as provided in this Agreement will not relieve FWGC from paying any sum or sums due and payable to City under this Agreement that remains unpaid and due at the time of termination, or any claim for damages then or previously accruing against FWGC under this Agreement. Any such termination will not prevent City from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or from recovering damages from FWGC for any default under the Agreement. All City's rights, options, and remedies under this Agreement will be construed to be cumulative, and not one of them is exclusive of the other. City may pursue any or all such remedies or any other remedy or relief provided by law, whether or not stated in this Agreement. No such termination shall relieve City from any obligation it may have to FWGC hereunder, and FWGC may pursue any and all rights and remedies or relief provided by law, whether or not stated in this Agreement. SECTION 4. RIGHTS GRANTED 4.01 City grants to FWGC a license to use a certain designated area within the Complex as an office ("Office Space"), the location of which is set forth in more detail in Exhibit A which is attached hereto and incorporated herein for all purposes. FWGC's use of the Office Space is on a non-exclusive basis with the City; however, FWGC has priority of use of the space for FWGC's office and meeting purposes. Upon the expiration or termination of this Agreement, City and FWGC will use good faith efforts to enter into a new license agreement allowing FWGC to continue to use the Office Space on the same terms and conditions as set forth in Section 5.03 below, for as long as the FWGC is providing financial support to the Botanic Garden through funding of maintenance, repair or capital projects at the Botanic Garden. Any new agreement, including the approval thereof, will be subject to all applicable laws, rules, regulations, and ordinances then in effect. 4.02 City grants to FWGC the right to make alterations to or restorations of existing facilities or structures in the Botanic Garden in accordance with the terms of this Agreement, including, but not limited to, Section 7. Amended and Restated Agreement with the Fort Worth Botanic Garden Club 4 of 18 4.03 FWGC shall have the right to appoint FWGC representatives to act in an advisory capacity to the Director to provide advice and input regarding assessment of the Botanic Garden facilities; maintenance, repair, and improvement of the Complex and the Botanic Garden; and annual budgeting priorities for the Complex and the Botanic Garden. SECTION 5. OPERATIONS AND MAINTENANCE 5.01 The Complex shall be operated, managed, and maintained 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 Complex. The City shall pay all salaries and benefits for all employees at the Complex and at the Botanic Garden, and neither FWGC nor the DBMGCC shall be required to fund any City employees or provide any employees to assist in the management or operation of the Complex or the Botanic Garden. 5.02 The City will continue to operate and maintain the Complex as a public facility to be used primarily for educational purposes and secondarily for other meetings of public interest or of benefit to the public. The City will also continue to operate and maintain the Complex as a public facility displaying plants and providing horticultural education programs throughout the life of the Complex. 5.03 Office Space. a. At all times during the term of this Agreement, the Office Space shall remain under the control of the City, and FWGC shall not be responsible for any maintenance of the Office Space. FWGC shall not have access to the City computing environment or network. City shall not be responsible for providing any supplies or equipment to FWGC's personnel or for the Office Space. b. The City will only be responsible for all expenses associated with water, sewer, electricity, gas and waste disposal utilities involving existing service lines to the Office Space. FWGC will be responsible for all telecommunications expenses to the Office Space, including any local and long distance telephone charges, internet computer charges, and cable television charges. Any electrical or utility service or service lines required by FWGC for the Office Space in addition to those in place as of the Effective Date of this Agreement will be at the sole expense of FWGC. C. FWGC may from time to time, at FWGC's sole cost, make minor refurbishments to the Office Space such as painting walls and replacement of floor and wall coverings, upon prior notice to, and approval of, the Director. 5.04 The City reserves the right, at all times, to offer and sell memberships to the Botanic Garden. Amended and Restated Agreement with the Fort Worth Botanic Garden Club 5 of 18 SECTION 6. FUNDS 6.01 Pursuant to the terms of the Prior Agreement, all Rentals and Fees were required to be deposited into the FWGC Special Fund to be used only for the operation, expansion, or improvement of the Botanic Garden. The parties acknowledge that the DBMGCC and the Texas Garden Clubs, Inc. are currently parties to an Outdoor Event Rental Agreement that was executed on or about June 24, 2014 ("Rental Agreement"). The parties agree to make a good faith effort to work with each other and the Texas Garden Clubs, Inc. to resolve potential issues concerning the event rental income to be received and any disbursements outlined in the Rental Agreement. 6.02 Any funds in the FWGC Special Fund as of the Effective Date of this Agreement shall remain in that designated account and shall be expended and disposed of in accordance with the terms of this Agreement. However, from and after the Effective Date of this Agreement, any and all Rentals and Fees received shall be deposited with the City into the City Botanic Garden Fund. From and after the Effective Date of this Agreement, no further Rentals and Fees from any operations at the Botanic Garden and the Complex shall be deposited into the FWGC Special Fund. 6.03 Any funds in'the FWGC Special Fund on the Effective Date of this Agreement shall continue to be maintained by the DBMGCC to be used only for the operation, expansion, or improvement of the Botanic Garden. In the event that this Agreement is renewed for either a first or second Renewal Term and funds remain in the FWGC Special Fund, then the DBMGCC shall adopt a budget reflecting the proposed expenditures from the FWGC Special Fund for each Renewal Term. The required budget is subject to approval by the Director and shall be a precondition to any renewal of this Agreement. All expenditures from the FWGC Special Fund shall be made only with the prior written consent of the Director. 6.04 DBMGCC shall keep complete and accurate records of all retained revenue in, and expenditures from, the FWGC Special Fund. On or before the 15t1i day of each and every month, DBMGCC shall furnish the Director with a statement detailing all retained revenue and expenditures from the FWGC Special Fund. 6.05 DBMGCC shall submit its internal financial control policy applicable to the FWGC Special Fund to the Director within thirty (30) calendar days after the Effective Date of this Agreement for approval by the Director. Any subsequent amendments to the DBMGCC's internal financial control policy for the FWGC Special Fund are subject to prior approval by the Director. DBMGCC shall strictly abide by such policy at all times until all of the FWGC Special Fund has been expended for the benefit of the Botanic Garden. 6.06 All deposits in the FWGC Special Fund shall be secured by eligible securities to the extent and in the manner required by applicable law, including, but not limited to, Texas Government Code 2257. Amended and Restated Agreement with the Fort Worth Botanic Garden Club 6 of 18 6.07 DBMGCC shall ensure that the FWGC Special Fund is a joint account to which the City is an account holder. 6.08 In the event of expiration or early termination of this Agreement, or upon dissolution of FWGC, either voluntarily or involuntarily, all funds in the FWGC Special Fund and any assets acquired with funds from the FWGC Special Fund during the term of this Agreement and the Prior Agreement shall immediately vest to the City and, to the extent necessary, transferred to the City for deposit into the City Botanic Garden Fund. The FWGC shall take all necessary measures to ensure that all such assets and funds are transferred to the City in a timely manner. SECTION 7. FACILITIES AND IMPROVEMENTS 7.01 FWGC may, at FWGC's election and expense, construct and install alterations to or restorations of existing facilities or structures at the Botanic Garden with the prior written approval of the Director. FWGC shall cooperate with the City in the management of any construction of the alterations and restorations. City and FWGC agree that, if any alterations or restorations funded by FWGC are to be contracted for and performed by FWGC (and not by the City), FWGC will perform all construction (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 FWGC shall not allow any occupancy of those buildings until the City issues a certificate of occupancy. 7.02 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 FWGC 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 FWGC or any of its contractors, and their officers, agents, employees and subcontractors. City shall own the plans and specifications. 7.03 FWGC may authorize a third party contractor to undertake all or any portion of any construction (a "Third Party Contractor") provided that FWGC 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 Third Party 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 FWGC, and their officers, agents, servants and employees; (ii) a requirement that the Third Party Contractor provide FWGC with a bond or bonds, which FWGC shall forward to the City, that Amended and Restated Agreement with the Fort Worth Botanic Garden Club 7 of 18 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." 7.04 IF FWGC ENTERS INTO ANY THIRD PARTY CONTRACT FOR CONSTRUCTION OF ANY PUBLIC IMPROVEMENTS THAT DO NOT CONTAIN ALL OF THE ABOVE THIRD PARTY CONTRACT PROVISIONS, AND TO THE EXTENT THAT ANY CLAIMS, DEMANDS, LAWSUITS OR OTHER ACTIONS FOR DAMAGES OF ANY HIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY HIND 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 HAVE 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 FWGC, AT FWGC'S OWN EXPENSE, SHALL INDEMNIFY, DEFEND (WITH COUNSEL REASONABLY ACCEPTABLE TO THE INDEMNIFIED PARTIES HEREIN) AND HOLD HARMLESS THE CITY, ITS OFFICERS, MEMBERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS (EXCLUDING LICENSEE) AND VOLUNTEERS, FROM AND AGAINST ANY SUCH THIRD PARTY CONTRACT DAMAGES. THIS IS IN ADDITION TO ANY OTHER INDEMNIFICATION PROVISION PROVIDED IN THE AGREEMENT. 7.05 City shall retain ownership of buildings, fixtures, and all attached furnishings. FWGC shall retain ownership of the plants and art items that it provides for use by the City; however, the use, care, and management of all said items shall be administered jointly by FWGC and the Director. In the event of a dispute over the administration of said items, the decision of the Director is final. 7.06 The title to any building or improvements constructed at the Botanic Garden under this Agreement shall, at all times, be vested in the City, 7.07 The City hereby waives all construction-related permit fees for construction projects related to the construction rights granted to FWGC pursuant to this Agreement. Amended and Restated Agreement with the Fort Worth Botanic Garden Club 8 of 18 SECTION 8. LIENS 8.01 Unless otherwise specifically authorized by this Agreement, FWGC shall do no act nor make any contract that may create or be the foundation for any lien upon or interest in the Botanic Garden 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, FWGC, at its sole expense, shall liquidate and discharge the same within ten (10) days after notice from the City to do so; and should FWGC fail to discharge the same, such failure shall constitute a breach of contract. SECTION 9. RIGHT TO AUDIT 9.01 The City shall, until the expiration of three (3) years after the expiration of this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of the FWGC and DBMGCC involving transactions relating to this Agreement ("Audit Documents"). The FWGC agrees that the City shall have access during normal working hours to all necessary FWGC facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give the FWGC reasonable advance notice of intended audits. 9.02 FWGC further agrees to include in any contractor and subcontractor agreements that it may enter into for work at the Botanic Garden a provision to the effect that the contractor and subcontractors agree that the City shall, until the expiration of three (3) years after the expiration or termination of the contract or subcontract, have access to and the right to examine any Audit Documents of such contractor or subcontractor related to the work at the Botanic Garden, and further that City shall have access during normal working hours to all contractor and 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 the contractor and subcontractor reasonable advance notice of intended audits. 9.03 Notwithstanding anything to the contrary, DBMGCC shall provide the City with a copy of all Audit Documents applicable to the FWGC Special Fund on or before the expiration or early termination of this Agreement. SECTION 10. INDEPENDENT CONTRACTOR 10.01 It is expressly understood and agreed that FWGC shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. FWGC shall have the exclusive right to control all details and day-to-day operations relative to its 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. FWGC acknowledges that the doctrine of respondeat superior will not apply as between City and FWGC, its officers, agents, servants, employees, contractors, subcontractors, Amended and Restated Agreement with the Fort Worth Botanic Garden Club 9 of 18 licensees and invitees. Nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between City and FWGC. 10.02 City and FWGC 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 Botanic Garden excepting those volunteers and employees of FWGC. Save and except such persons, all persons employed in the Botanic Garden shall be the employees of the City, and FWGC will not in any way directly supplement the salaries or compensation received by employees of the City. SECTION 11. CARE OF THE BOTANIC GARDEN 11.01 FWGC covenants and agrees that it shall take the Office and Botanic Garden as it finds it. FWGC further covenants and agrees that it will leave the Office and Botanic Garden in as similar to or better condition than that which exists prior to the FWGC's use. The FWGC covenants and agrees that FWGC will not do, or permit to be done, any injury or damage to any of said Office or Botanic Garden or suffer any waste to the same. FWGC shall keep and maintain the Office and Botanic Garden in a good, clean, and sanitary condition at all times while using said properties during the term of this Agreement. However, nothing contained herein shall obligate FWGC to improve or maintain the Botanic Garden other than to carry out any projects or activities voluntarily undertaken by FWGC in the Botanic Garden in accordance with Section 7 of this Agreement. 11.02 Subject to ordinary wear and tear, FWGC will pay the costs of repairing any damage that may be done to the Office and Botanic Garden, or any of the fixtures, furniture, or furnishings by any act of FWGC or FWGC's officers, representatives, servants, employees, agents, or subcontractors. The Director shall determine, in Director's sole reasonable judgment, whether any damage has been done, the amount of the damage, the reasonable costs of repairing the damage, and whether FWGC is responsible. Any damage by FWGC shall be repaired or replaced by FWGC 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 FWGC fails to remedy the damages in the time set forth above, then FWGC 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 FWGC detailing such costs. SECTION 12. ASSIGNMENT 12.01 FWGC 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. Amended and Restated Agreement with the Fort Worth Botanic Garden Club 10 of 18 SECTION 13. RIGHT OF ACCESS 13.01 At all times during the term of this Agreement, City shall have the right, through its agents and representatives, to enter into and upon any portion of Botanic Garden used by FWGC, including, but not limited to the, Office Space, during reasonable business hours for the purpose of examining and inspecting the same and determining whether FWGC shall have complied with all of its obligations hereunder in respect to the use of the Botanic Garden.. 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 14. COMPLIANCE WITH LAW 14.01 FWGC covenants and agrees that it shall not engage in any unlawful use of any portion of the Botanic Garden. FWGC 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 Botanic Garden, and FWGC immediately shall remove from the Botanic Garden any person under its control engaging in such unlawful activities. Unlawful use of the Botanic Garden by the FWGC itself shall constitute an immediate breach of this Agreement. 14.02 FWGC 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 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. Nothing contained in this Agreement shall be construed as prohibiting future City Councils from allocating, appropriating, administrating, or expending any funds that are the subject of this Agreement as it may deem appropriate. 14.03 FWGC shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for any of its operations at the Botanic Garden. SECTION 15. LIABILITY AND INDEMNIFICATION 15.01 FWGC 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 FWGC, its employees, officers, agents, representatives, and volunteers in connection with this Agreement. 15.02 FWGC AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, REPRESENTATIVES, AND EMPLOYEES FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY HIND, INCLUDING, BUT NOT Amended and Restated Agreement with the Fort Worth Botanic Garden Club 11 of 18 LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (i) FWGC'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY ACT OR OMISSION OF THE FWGC, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, VOLUNTEERS, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS, RELATED TO USE OF THE OFFICE SPACE OR ANY ACTIVITY CONDUCTED BY FWGC IN THE BOTANIC GARDEN 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 FWGC AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 15.03 FWGC agrees to assume full responsibility for complying with all State and Federal Copyright Laws, including, but not limited to, the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.) and any other regulations associated therewith related to any art installations made by FWGC in the Botanic Garden. 15.04 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligations under this Section, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. SECTION 16. INSURANCE REQUIREMENTS 16.01 During the term of this Agreement, FWGC 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 FWGC's performance of its obligations under this Agreement. FWGC 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. Fidelity. FWGC shall maintain coverage in the form of insurance or bond in the amount of$875,000.00 to insure against loss from the fraud, theft or dishonesty of Amended and Restated Agreement with the Fort Worth Botanic Garden Club 12 of 18 any of FWGC's officers, agents, trustees, directors employees, or volunteers related to the FWGC Special Fund. The proceeds of such insurance or bond shall be used to reimburse the City for any and all loss of funds associated with Section 6 of this Agreement concerning the FWGC Special Fund 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 6 concerning the FWGC Special Fund exceeds $875,000.00 then FWGC 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 this Agreement. 16.02 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. FWGC and any subcontractors shall comply with such requests or revisions as a condition precedent to the effectiveness of this Agreement. b. Each insurance policy shall endeavor to provide the City a minimum thirty (30) days' notice of cancellation, non-renewal, 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. FWGC's 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, FWGC 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, 200 Texas Street, Fort Worth, Texas 76102 with a copy to the Botanic Garden, at the Botanic Garden 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. It. 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,FWGC must obtain City's written approval. Amended and Restated Agreement with the Fort Worth Botanic Garden Club 13 of 18 k. During any term of this Agreement, FWGC 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. 1. FWGC's liability shall not be limited to the specified amounts of insurance required herein. SECTION 17. CHARITABLE ORGANIZATION 17.01 FWGC agrees that as 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, FWGC 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, FWGC shall provide the City with a copy of the IRS Form 990 or other document that FWGC 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 18. NO WAIVER 18.01 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 FWGC with all the covenants and conditions. SECTION 19. FORCE MAJEURE 19.01 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. FWGC hereby waives any claims it may have against the City for damages resulting from any such Force Majeure Event. Amended and Restated Agreement with the Fort Worth Botanic Garden Club 14 of 18 SECTION 20. SECTION HEADINGS 20.01 The headings in this Agreement are inserted for reference only, and shall not define or limit the provisions hereof. SECTION 21. SEVERABILITY 21.01 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 22. NOTICES 22.01 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 Park and Recreation Department 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115-1499 With a copy to: City Attorney City Attorney's Office 200 Texas Street Fort Worth, Texas 76102 FWGC: President Fort Worth Garden Club 3220 Botanic Garden Drive Fort Worth, Texas 76107 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. Amended and Restated Agreement with the Fort Worth Botanic Garden Club 15 of 18 SECTION 23. ENTIRE UNDERSTANDING 23.01 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. SECTION 24. VENUE AND CHOICE OF LAW 24.01 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 25. POWERS AND IMMUNITIES 25.01 It is understood that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. SECTION 26. AMENDMENT 26.01 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 27. EXECUTION 27.01 This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. IN WITNESS WHEREOF, the pard have x ut d t is Agreement in multiple counterparts in Tarrant County, Texas, on this of , 2017 to be effective as of the Effective Date. CITY OF FORT WORTH FORT WORTH GARDEN CLUB V RL usan Alanis uI slowAssistant City Manager t Amended and Restated Agreement with the Fort Worth Botanic Garden Club 16 of 18 APPROVED AS TO EORM A EGALITY: Tyler F. all ch Assist ty Attorney ATTEST: 6 Mar;J. K r '� x City Secretury ' �XAS Authorization: M&C: C-28165 (March 28, 2017) Form 1295: 2017-178357 Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. ob Byers Director, Fort Worth Botanic Garden OFFICIAL RECf%r?. t Amended and Restated Agreement with the Fort Worth Botanic Garden Club 17 of 18 EXHIBIT A OFFICE SPACE so; T o , rL N s K my Li , - l t a :3 r • 6� w • I + w Amended and Restated Agreement with the Fort Worth Botanic Garden Club 18 of 18 M&C Review Page 1 of 3 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FORTWORT111 COUNCIL ACTION: Approved on 3/28/2017 - DATE: 3/28/2017 REFERENCE C-28165 LOG NAME: 80FWBGCONTRACTS NO.. CODE: C TYPE: PUBLIC CONSENT HEARING: NO SUBJECT: Authorize Execution of Amended and Restated Agreements with the Fort Worth Garden Club and Fort Worth Botanical Society, Inc., for Certain Uses Associated with the Botanic Garden and Waive Construction-Related Permit Fees for Future Projects (COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council: 1. Authorize an Amended and Restated Agreement with the Fort Worth Garden Club for the use of the Botanic Garden to, among other things, license certain areas within the Garden Center Building, sell merchandise, conduct programs and special events, and improve the existing facilities and structures; 2. Authorize an Amended and Restated Agreement with the Fort Worth Botanical Society, Inc., for the use of the Botanic Garden to, among other things, operate the Gardens Restaurant, license certain areas within the Rock Springs Building, sell merchandise, and conduct programs and special events, and improve the existing facilities and structures; and 3. Authorize waiver of construction-related permit fees to the extent permitted by law for future projects under the Amended and Restated Agreements with the Fort Worth Garden Club and the Fort Worth Botanical Society, Inc. DISCUSSION: On November 15, 2016, the City Council authorized the acceptance of the Fort Worth Botanic Garden Strategic Plan from EMD Consulting Group, LLC, and referred it to the City Manager and Staff for further review and evaluation to develop strategies and polices for the implementation of the strategic plan (Plan) (M&C G-18885). The Plan establishes several key goals, including the reorganization of support groups and the increase of private support for the Fort Worth Botanic Garden (FWBG). The reorganization process will take place over two phases— (1) implementing actions for realigning governance and existing financial resources and (2) realigning governance structure in anticipation that a single entity, currently referred to as the Botanic Garden Conservancy, may serve as the future sole support organization for the FWBG and whose primary functions will be to promote and manage membership and conduct fundraising. This Mayor and Council Communication (M&C), in conjunction with a companion (M&C) concerning future revenues from FWBG activities, addresses Phase 1. The Fort Worth Garden Club (FWGC) and Fort Worth Botanic Society, Inc. (FWBS) are long-standing support groups of the FWBG and have significantly contributed to its success over the past 40 years. The City currently has Agreements with the FWGC and FWBS governing each's use of the FWBG. In order to carry out Phase 1 of the reorganization plan, the Agreements need to be amended and restated to redefine each party's use of the FWBG and realign the financial resources associated therewith. Below is a summary of the current Agreements and the key terms of the proposed amended and restated Agreements. FWGC In the mid-1980s, the FWGC contracted with the City to construct the Garden Center Conservatory Complex and an attached Lecture Hall (Complex) at no cost to the City (M&C C-2639 and C-9250). In exchange, the City agreed to operate the facilities primarily for educational purposes and secondarily to http://apps.cfwnet.org/council_packet/mc_review.asp?ID=24456&councildate=3/28/2017 5/2/2017 M&C Review Page 2 of 3 provide space to hold meetings of public interest and benefit. Thereafter, the City and FWGC have been parties to a series of Agreements pursuant to which (1) all revenue generated through the Complex was deposited into a special fund maintained by the FWGC and used solely for the operation, expansion, or improvement of the Complex and Botanic Garden; (2)the FWGC was granted the right to use certain space within the Complex as a gift shop and office space; and (3)the FWGC directly funded certain Staff positions, with the current Agreement being Fort Worth City Secretary Contract No. 31502, as amended and renewed by CSC Nos. 31502-A1, 31502-A2, and 31502-R1A3. The key terms of the proposed Amended and Restated Agreement include the following: FWGC will be permitted to use the FWBG to make City-authorized improvements to existing facilities and structures. Any funds remaining in the special fund maintained by the FWGC after the effective date of the Agreement will remain in FWGC's special fund and any funds and revenues received by the FWGC as a result of the rights granted in this new Agreement will be deposited into its special fund. All funds in the FWGC's special fund must be used and expended for the benefit of the FWBG. Except as set forth below, any and all revenues generated at the Complex after the effective date of the Agreement will be deposited with the City into a special revenue fund. The FWGC will no longer fund any Staff positions at the FWBG. FWGC will continue to license areas within the Garden Center including certain designated office space. FWGC will retain a non-exclusive right to sell merchandise at the FWBG and use the FWBG for certain programs and special events The primary term of this Agreement will expire on April 1, 2018, and will include two optional six month renewals. The projected effective date of this Agreement will be April 1, 2017. The prior Agreement between the City and FWGC will automatically terminate and be superseded by the Amended and Restated Agreement on the effective date. FWBS Since 1973, the FWBS and City have been party to a series of Agreements pursuant to which the FWBS has operated the Japanese Garden and performed other designated functions related to the FWBG, with the current Agreement being CSC No. 32788, as amended and renewed by CSC Nos. 35186, 32788-A2, 32788-A3, and 32788-R1A4. The FWBS currently leases the Japanese Garden and certain areas within the Rock Springs Building, including the Gardens Restaurant. The current Agreement also gives the FWBS (1) the exclusive right to sell merchandise or services throughout the Japanese Garden; (2) a non-exclusive license to operate a gift shop at the FWBG; (3) a non-exclusive right to sell merchandise and services through the FWBG; and (4) permission to use the FWBG for programs and events. The FWBS is required to deposit all funds collected as a result of its rights under the current Agreement into a specially restricted account to be managed by the FWBS and used solely for the operation, expansion, and improvement of the FWBG. The FWBS also employees 10 individuals to carry out its functions and directly funds, either in whole or in party, eight Staff positions for the FWBG. The key terms of the proposed Amended and Restated Agreement including the following: Beginning on the effective date of the Agreement, the City will assume operational control over the Japanese Garden and all gift shops, which will include Staff. FWBS will provide funding for one City employee to help operate, maintain, and provide services at the FWBG. Except as set forth below, beginning on the effective date of the Agreement, any and all revenue generated at the FWBG, including, without limitation, revenue from the Japanese Garden and any gift shops, will be deposited with the City into a special revenue fund. Any funds remaining in the special fund maintained by the FWBS as of the effective date of the Agreement will remain in FWBS's special fund and any funds and revenues received by the FWBS as a result of the rights granted in this new Agreement will be deposited into its special fund. All funds in the FWBS's special fund must be used and expended for the benefit of the FWBG. FWBS will continue to lease and operate the Gardens Restaurant. FWBS will continue to license other areas within the Rock Springs Building, including certain designated office space and the north entrance joint usage area, and a portion of the "Triplex" storage building. FWBS will retain a non-exclusive right to sell merchandise throughout the FWBG and use the FWBG for certain programs and special events. FWBS will be permitted to make City-authorized improvements to existing facilities and structures. http://apps.cfwnet.org%council_packet/mc_review.asp?ID=24456&councildate=3/28/2017 5/2/2017 .1.4&C Review Page 3 of 3 The primary term of this Agreement will expire on April 1, 2018, and will include two optional six-month renewals. The projected effective date of this Agreement will be April 1, 2017. The prior Agreement between the City and FWBS will automatically terminate and be superseded by the Amended and Restated Agreement on the effective date. Both Agreements will also include construction-related permit fee waivers. Permit fee waivers for any future improvements by the FWGC and FWBS are appropriate because they further the public purpose of improving City-owned property with privately-donated funds. Adequate controls are in place to ensure that this public purpose will be carried out under the terms and conditions of the Agreements, which require that all improvements undertaken by or on behalf of the FWGC or FWBS must receive advance written approval from the Park and Recreation Department and comply with all requirements set forth in the Agreements. The Fort Worth Botanic Garden is located in COUNCIL DISTRICT 7 and is classified as a citywide special use facility. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that this action will result in revenues previously being received by the FWBS and the FWGC to be receipted by the City. Appropriations for both revenue and expenditures for the Botanic Garden Special Revenue Fund area addressed in an accompanying Mayor and Council Communication. TO _ rFund Department Account Project Program Activity Budget Reference# Amount ID ID ( Year_� (Chartfield 2) FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID 'Chartfield 2) Submitted for City Manager's Office by: Susan Alanis (8180) Originating Department Head: Richard Zavala (5704) Additional Information Contact: Sandra Youngblood (5755) ATTACHMENTS Garden Club 1295.pdf Society 1295.pdf http://apps.cfwnet.org/council_packet/mc_review.asp?ID=24456&councildate=3/28/2017 5/2/2017 C-28165 C CERTIFICATE OF INTERESTED PARTIES FORM 1295 1of1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2017-178357 Fort Worth Garden Club Fort Worth,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 03/14/2017 being filed. City of Fort Worth Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. CSC31502 maintenance in the Botanic Garden Nature of interest 4 Name of Interested Party City,State,Country(place of business) (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Party. X 6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct. ���111111t1111///// �5-ROB.. PUB �,, s Signature f aut o ized agent of contracting business entit AFFIX NOTA TAM A Sworn to and subscribed before me,by the said (�(M l lG'I�j �,t/"1� this the I day of � 20_A? to certify which,witness my hand and seal of office. 194 W�w /�qklawe &wm Nft" Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277