HomeMy WebLinkAboutContract 32955 r,;iTY SECRETA{�Y`ak���
': CN i FACT NO.
AGREEMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
THIS 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, located in Tarrant,
Denton and Wise Counties, Texas, (hereinafter referred to as the "City") acting by and through
its duly authorized Assistant City Manager, and Fort Worth Nature Center and Refuge
Conservancy, Incorporated, a legally constituted non-profit entity (hereinafter referred to as the
"F)ANCRC"), acting by and through its duly authorized President.
RECITALS
WHEREAS, the Fort Worth Nature Center and Refuge Conservancy has agreed to
donate to the City of Fort Worth, for use at the Fort Worth Nature Center and Refuge, a
controlled access entrance gate; and
WHEREAS, upon the acceptance of the donation of the access gate from the Fort
Worth Nature Center and Refuge Conservancy by the City, the City agrees to operate and
maintain the gate primarily for purpose of collecting entry fees into the Fort Worth Nature
Center and Refuge; and
WHEREAS, all revenue generated through entry fees collected at the controlled access
gate will be deposited into a special fund maintained by the Fort Worth Nature Center and
Refuge Conservancy and used only for the operation, expansion or improvement of this Fort
Worth Nature Center and Refuge;
NOW THEREFORE, in consideration of the mutual covenants herein expressed, the
parties agree as follows:
SECTION 1.
PURPOSE
1.01 It is understood and agreed that the sole purpose of this agreement is to provide
additional funds for the operation of the Fort Worth Nature Center and Refuge and for the
benefit of the public while preserving the non-commercial atmosphere of the Nature Center
and Refuge.
SECTION 2.
ACCESS GATE
2.01 For and in consideration of the mutual covenants and agreements herein contained,
Fort Worth Nature Center and Refuge Conservancy, Inc. (F)VNCRC) hereby donates a
controlled access gate to the City of Fort Worth for use at the entry to the Fort Worth Nature
Center and Refuge, hereinafter referred to as FWNC&R, as listed herein, same being located
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in Fort Worth, Tarrant County, Texas, as described and depicted on Exhibit A, attached hereto
and incorporated herein for all purposes incident to this Agreement.
2.02 All construction will be preformed in compliance with Section 9 of this Agreement.
2.03 Title to the access gate and any structures or buildings shall be vested in the City of
Fort Worth.
SECTION 3.
TERM
3.01 The primary term of this License Agreement shall be for a period of one (1) calendar
year commencing on the 1 st day of December 2005, and ending on the 30th day of November
2006. The primary term may be renewed by mutual agreement between the FWNCRC and
the City for fourteen (14) successive one-year periods under the same terms and conditions of
this License Agreement. FWNCRC must advise the City in writing of its intent to renew the
Agreement, no later than sixty (60) days prior to the end of the original agreement and the end
of each of the successive renewal periods.
SECTION 4.
TERMINATION
4.01 It is expressly provided that either party shall have the right to terminate this License
Agreement, without cause, upon thirty (30) days written notice to the other party.
4.02 If for any reason, at any time during any term of this Agreement,the City Council fails to
appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City
may terminate this Agreement pursuant to this Section following (i) delivery by the City of
written notice of the City's intention to terminate or (ii) the last date for which funding has been
appropriated by the City Council for the purposes set forth in this Agreement.
SECTION 5.
EMPLOYEES
5.01 FWNCRC agrees that the access gate at the FWNC&R shall be operated, scheduled and
controlled by the City, through its PACSD Director, who shall hire and retain all employees
and, who shall have and retain full and complete authority over all employees and volunteers
involved in the management, operation and maintenance of the access gate. All employees
shall be paid for said employment through the City.
City agrees to provide funding to staff the access gate and open the FWNC&R to the public on
a schedule similar to that of other similar facilities operated by the City.
SECTION 6.
ENTRY FEES
6.01 City and FWNCRC mutually covenant and agree that the entry fees collected at the
access gate at the FWNC&R by the City shall be placed in a special trust fund maintained by
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the FWNCRC, entitled Nature Center Conservancy Special Fund, which will be used solely for
the operation, expansion or improvements at the FWNC&R.
6.02 The amount of entry fees charged for entry into the FWNC&R shall be determined by
the City Council. If at any time the City Council directs the discontinuation of the collection of
entry fees at the access gate, the management, operation and maintenance of the access entry
gate will cease, however, all other terms of this related to the expenditure of collected entry
fees will continue in full force and effect as long as there are sufficient proceeds from the entry
gate to oversee the expenditures.
6.03 The City, through it Parks and Community Services Director, shall maintain the sole
and exclusive right to control the operation of the FWNR&C and all expenditures of entry fee
monies shall be with the consent and approval of the Parks and Community Services Director.
6.04 FWNCRC shall keep complete and accurate records, books and accounts according to
customary and accepted business practices and City shall, or its representatives, shall have the
right to audit same at any reasonable time. FWNCRC shall furnish to the Director, on or
before the 15th day of each and every month, a statement showing the amount of all gross
receipts during the preceding month. FWNCRC shall furnish said Director an annual audit of
its books by a certified public accountant, such report to be furnished within ninety (90) days
after the end of the fiscal year of the FWNCRC.
SECTION 7.
CONSTRUCTION; IMPROVEMENTS; LICENSES
7.01 In connection with the construction of the access gate and any other new construction
or improvements in the FWNC&R,the FWNCRC and the City shall consult with the Parks and
Community Services Advisory Board for review and comment prior to planning and providing
for such construction and obtain the prior consent of the City Council. Such consultation and
approval of City Council shall include discussions concerning the funding of ongoing
maintenance costs. Minor alterations or restorations of existing facilities or structures may be
done with prior approval of the Director of Parks and Community Services.
7.02 All such construction and improvement will be performed in strict compliance with all
applicable provisions of the Constitution and laws of the State of Texas and the Charter,
ordinances, regulations, policies and directives of the City of Fort Worth. FWNCRC, its
contractors and subcontractors, shall obtain all licenses and permits necessary for the
construction of improvements to the FWNC&R. Permit fees will be waived by the City to the
extent permitted by law.
SECTION 8.
OWNERSHIP OF CONSTRUCTED FACILITIES
8.01 The title to any buildings or improvements constructed in the FWNC&R under this
agreement shall at all times be vested in the City; provided; however, that with t
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the City Council, title to newly constructed buildings may be retained by the FWNCRC for the
purposes of securing loans made for such construction, but title to all such buildings shall
revert to and vest in City promptly upon the payment of such loan. City shall retain ownership
of the buildings, fixtures and all attached furnishings.
SECTION 9.
LIENS
9.01 FWNCRC agrees that unless otherwise authorized in accordance with this Agreement,
that it shall do no act nor make any contract that may create or be the foundation for any lien
upon or interest in the City's property and 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, FWNCRC
at its sole expense shall liquidate and discharge same within ten (10) days after notice from
City to do so; and should FWNCRC fail to discharge same, such failure shall constitute a
breach of the covenant herein.
SECTION 10.
SIGNAGE
10.01 FWNCRC, may at its sole expense, with prior written approval of the Director, install
signs in the areas at the access gate within the FWNC&R. All signs must be in keeping with
the general aesthetic background of the FWNC&R, and the size,type, color, location, materials
used, manner of display and subject matter must be specifically approved by the Director, prior
to installation. In the installation, maintenance and/or removal of such signs, FWNCRC will
exercise reasonable care not to damage City buildings and/or property.
SECTION 11.
INDEPENDENT CONTRACTOR
11.01 It is expressly understood and agreed that FWNCRC shall operate as an independent
contractor in each and every respect hereunder and not as an agent, representative or employee
of the City. FWNCRC shall have the exclusive right to control all details and day-to-day
operations relative to the activities under this Agreement and shall be solely responsible for the
acts and omissions of its officers, agents, servants, employees, contractors, subcontractors,
licensees and invitees. FWNCRC acknowledges that the doctrine of respondeat superior will
not apply as between City and FWNCRC, its officers, agents, servants, employees, contractors,
subcontractors, licensees and invitees. FWNCRC further agrees that nothing in this Agreement
will be construed as the creation of a partnership or joint enterprise between City and
FWNCRC.
SECTION 12.
SUBLEASE; ASSIGNMENT
12.01 FWNCRC agrees that it shall not sublease or assign any rights or interests obtained
under this Agreement, or any part therof, without first obtaining written consent of the City,
and any attempted sublease or assignment without the prior written consent of City shall be
void.
SECTION 13.
COMPLIANCE WITH LAW
13.01 FWNCRC will comply with all federal, state and local laws, statutes and all ordinances,
charter provisions, rules and regulations of City; including all rules, regulations and/or
requirements of the City of Fort Worth Police and Fire Departments; and any and all
requirements specifically made by the City of Fort Worth Fire Marshal in connection with this
License Agreement.
SECTION 14.
INDEMNIFICATION
14.01 FWNCRC AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS
OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY
AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY
HIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE
OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS
AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY,
INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE
OCCASIONED BY (i) FWNCRC'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR
OMISSION OR INTENTIONAL MISCONDUCT OF FWNCRC, ITS OFFICERS,
AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE
CITY) OR SUBCONTRACTORS, RELATED TO USE OF THE FWNC&R AND
PREMISES 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
FWNCRC AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED
COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
SECTION 15.
CHARITABLE ORGANIZATION
15.01 FWNCRC agrees that if it is a charitable organization, corporation, entity or individual
enterprise having, claiming or entitled to any immunity, exemption (statutory or
otherwise) or limitation from and against liability for damage or injury to property or
persons under the provisions of the Charitable Immunity and Liability Act of 1987,
C.P. R.C., § 84.001 et seq., or other applicable law, that FWNCRC hereby expressly
waives its right to assert or plead defensively any such immunity or limitation of
liability as against City. Copy of the documentation stating this organization's status as
a 501(3)(c) entity is due annually, by May 1" of each year, to the address specified
below under Notices.
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SECTION 16.
WAIVER
16.01 The failure to insist upon a 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 a strict
compliance by FWNCRC with all the covenants and conditions.
SECTION 17.
FORCE MAJEURE
17.01 It is expressly understood and agreed by the parties to this Agreement that if the
performance of any obligations hereunder is delayed by reason of war; civil commotion; acts
of God; inclement weather; governmental restrictions, regulations, or interferences; fires;
strikes; lockouts; national disasters; riots; material or labor restrictions; transportation
problems; or any other circumstances which are reasonably beyond the control of the party
obligated or permitted under the terms of this Agreement to do or perform the same, regardless
of whether any such circumstance is similar to any of those enumerated or not, the party so
obligated or permitted shall be excused from doing or performing the same during such period
of delay, so that the time period applicable to such design or construction requirement shall be
extended for a period of time equal to the period such party was delayed.
SECTION 18.
SECTION HEADINGS
18.01 The headings in this License are inserted for reference only, and shall not define or
limit the provisions hereof.
SECTION 19.
SEVERABILITY
19.01 In the event that any clause or provision of this License 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 20.
DISPOSITION OF ASSETS
20.01 In the event of termination, or upon dissolution of FWNCRC, either voluntary or
involuntary, all assets held by FWNCRC for the FWNC&R shall be transferred to the City for
the account of the PACSD, to be used in the Fort Worth Nature Center and Refuge only. With
the approval of the Director, FWNCRC may transfer said assets to another organization for use
at the FWNC&R only.
SECTION 21.
NOTICES
21.01 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
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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:
Parks and Community Services Department
4200 South Freeway, Suite 2200
Fort Worth, Texas 76115-1499
Fort Worth Nature Center and Refuge Conservancy, Inc.
1411 Shady Oaks Lane
Fort Worth, Texas 76107
With a copy to:
Sarah Fullenwider
City Attorney's Office
1000 Throckmorton
Fort Worth, Texas 76102
Or to such other address as said parties may hereafter designate by notice in writing addressed
and mailed or delivered to the other party hereto.
SECTION 22.
ENTIRE UNDERSTANDING
22.01 This License 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 License.
SECTION 23.
VENUE AND JURISDICTION
23.01 Venue shall be 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 24.
POWERS
24.01 It is understood that by execution of this Agreement, City does not waive or surrender
any of its governmental powers.
SECTION 25.
AMENDMENT
25.01 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.
101FFI)1C11IkI EC0PI D
CITY
SECTION 26.
EXECUTION
26.01 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 parti s have executed this License Agreement in
multiples, this day of �� , 2005.
CITY OF FORT WORTH FORT WORTH NATURE CENTER
AND REFUGE CONSERVANCY, INC.
Libby Wktson Marty Leonard
Assistant City Manager President
ATTEST:
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City SecitAary
APPROVED AS TO FORM
AND LEGALITY:
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By: �
Sarah Fullenwider,
Assistant City Attorney
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Contract Authorizatiox
Date
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COUNCIL ACTION: Approved As Amended on 11/29/2005
DATE: 11/29/2005 REFERENCE NO.: G-15022 LOG NAME: 80NATURECTRCONS
CODE: G TYPE: NON- PUBLIC CONSENT HEARING: NO
SUBJECT: Authorize Execution of a Contract for the Fort Worth Nature Center and Refuge with the Fort
Worth Nature Center and Refuge Conservancy to Manage Entry Fees
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a contract with the Fort Worth
Nature Center and Refuge Conservancy (FWNC&RC) to manage funds derived from entrance fees to fund
entry gate staff and minor capital improvements.
DISCUSSION:
The FWNC&RC is a tax-exempt organization established in 2004 for the purpose of assisting the Parks and
Community Services Department (PACSD) with implementing recommendations made in the FWNC&R
Strategic Master Plan (Plan).
The FWNC&RC wishes to enter into a contract with the PACSD to maintain a special fund for the purpose of
funding entry gate staff and minor capital improvements.
On November 15, 2005, the Parks and Community Advisory Board endorsed recommendation that the City
Council authorize execution of a contract for the Fort Worth Nature Center and Refuge with the Fort Worth
Nature Center and Refuge Conservancy.
The Nature Center and Refuge is located in COUNCIL DISTRICT 7 and serves all Council Districts.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that the Fort Worth Nature Center and Refuge Conservancy is responsible for
collection and deposit of user fees. This action will have no financial impact on City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Libby Watson (6183)
Originating Department Head: Randle Harwood (Acting) (5704)
Additional Information Contact: Randle Harwood (Acting) (5704)
ATTACHMENTS
http://www.cfwnet.org/council_packet/me review.asp?refnum=G-15 022 12/13/2005