HomeMy WebLinkAboutContract 32788-A6R2 CITY SECRETARY
CONTRACT NO.
SIXTH AMENDMENT AND RENEWAL OF CITY SECRETARY CONTRACT NO.32788
AN AMENDED AND RESTATED LICENSE AGREEMENT BETWEEN THE FORT WORTH
BOTANICAL SOCIETY,INC.AND THE CITY OF FORT WORTH
This SIXTH AMENDMENT AND RENEWAL OF CITY SECRETARY CONTRACT
NUMBER 32788,as amended,is made and entered into by and between The City of Fort Worth,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 Botanical Society, Inc., a Texas non-profit corporation
("FWBS"),acting by and through its duly authorized President.
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, since 1973, the FWBS and the 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 Botanic Garden, with the current agreement being Fort Worth City Secretary Contract
("CSC") Number 32788, as amended and renewed by CSC Nos. 35186, 32788-A2, 32788-A3, 32788-
R1A4,and 32788-A5 ("Agreement");
WHEREAS, on November 15, 2016, the City Council authorized the acceptance of the Fort
Worth Botanic Garden Strategic Plan ("Plan") which included the goal of reorganizing support groups
and increasing private support for the Botanic Garden;
WHEREAS, on March 28, 2017, the City Council approved the execution of an amended and
restated agreement between the City and FWBS to carry out the reorganization of support groups as
identified in the Plan(M&C C-28165),which resulted in the execution of CSC No.32788-A5;
WHEREAS, the Agreement requires the FWBS to maintain a restricted account titled, "Botanic
Garden Special Account" to be used for operation, expansion and improvement of the Botanic Garden
with any funds in the Botanic Garden Special Account immediately vesting with the City upon expiration
or termination of the Agreement;
WHEREAS, on September 20, 2017, the FW13S voluntarily transferred $642,978.00, which
amount includes all funds the FWBS held on behalf of the City under the terms of CSC No. 32788-A5,
from the restricted Botanic Garden Special Account to the City to be placed in the City's Botanic Garden
Special Revenue Fund;
WHEREAS, on January 23,2018,through M&C C-28533 (Revised),the City Council approved
the execution of an amendment to CSC No.32788-A5 to: (1)reflect the transfer of funds from the FWBS
to the City; (2) require any and all revenue generated at the Botanic Garden by the FWBS, including
revenue from the Gardens Restaurant and any gift shops,be deposited with the City in the Botanic Garden
Special Revenue.Fund; (3) to establish that the City will contract for and pay for repairs required under
the sublease between the FWBS and the food service vendor; and (4) authorize the City and FWBS to
enter into separate agreements for conducting special events in the Botanic Garden including the Plant
Sale,Art in the Garden and the Japanese Festival, with administratively negotiated terms addressing fees
or revenue sharing.
OFFICIAL RECORD
CITY SECRETARY
Sixth Amendment and Renewal of CSC 32788 FT"WORTHS TX 1 of 4
Fort Worth Botanical Society,Inc.
WHEREAS, FWBS and City desire to exercise the first six month renewal authorized by CSC
No. 32788-A5;
NOW,THEREFORE, in consideration of the mutual covenants herein expressed,the City and
FWBS agree to amend and renew the Agreement as follows:
I.
Section 3.02 of the Agreement is amended to be and read as follows:
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"). The parties agree to renew the Agreement for the first Renewal Term which shall begin on April
1,2018 and shall remain in effect until September 30, 2018, unless terminated earlier as provided herein.
H.
Section 4.04, Subsection b of the Agreement is amended to be and read as follows:
b. The parties may enter into separate agreements for conducting special events in the Botanic
Garden, including but not limited to, the Plant Sale, Art in the Garden and the Japanese Festival.
Any separate agreement shall address the fees or revenue sharing for the special events. All
revenue identified in such separate agreements as being retained by the FWBS shall be owned by
the FWBS with no restrictions imposed by the City on how such FWBS funds shall be used.
III.
Section 5, "Funds",of the Agreement is amended to be and read as follows:
5.01 Pursuant to the terms of the Prior Agreement, the FWBS was required to maintain a restricted
account titled, "Botanic Garden Special Account" to be used solely for the operation, expansion and
improvement of the Botanic Garden. The FWBS was required to deposit all program, event, and rental
fees collected by the FWBS into the Botanic Garden Special Account. The Amended and Restated
Agreement between the parties (City Secretary Contract No. 32788-A5), required the FWBS to continue
to maintain the Botanic Garden Special Account with all funds in the account being dedicated solely for
the operation, expansion or improvements of the Botanic Garden. City Secretary Contract No. 32788-A5
further provided that all future revenue generated at the Botanic Garden, including, but not limited to,
revenue from the Japanese Garden and any gift shops, would be deposited into a specially designated
special purpose fund or other similar City fund dedicated exclusively for the benefit of the Botanic
Garden ("City Garden Fund") and no additional funds or revenues from any operations at the Japanese
Garden or gift shop would be deposited into the Botanic Garden Special Account on or after the Effective
Date of City Secretary Contract No. 32788-A5. On September 30, 2017, the FWBS voluntarily
transferred $642,978.00 from the Botanic Garden Special Account to the City Garden Fund. Said funds
include all funds the FWBS held on behalf of the City under the terms of the Prior Agreement.
5.02 Except as provided by separate agreement as contemplated under Section 4.04(b) above,
beginning on October 1, 2017, any and all revenue generated at the Botanic Garden pursuant to the terms
of this Agreement, including, without limitation, revenue from the Gardens Restaurant and any gift shops,
("City Revenue") will be deposited with the City into the City Garden Fund. The City Garden Fund shall
hereinafter be referred to as the "Botanic Garden Special Revenue Fund." All City Revenue shall be
owned and controlled by the City. All City Revenue shall be delivered to the City by the FWBS within
Sixth Amendment and Renewal of CSC 32788 2 of 4
Fort Worth Botanical Society,Inc.
thirty (30) days of FWBS' receipt of the City Revenue. FWBS shall keep complete and accurate records,
books, and accounts according to customary and accepted business practices. On or before the 1511 day of
each and every month, FWBS shall furnish the Director with a statement detailing all City Revenue
received by the FWBS, the date FWBS received the City Revenue and the date City Revenue was
delivered to the City.
5.03 Upon the expiration or early termination of this Agreement, or upon dissolution of FWBS, either
voluntarily or involuntarily, all City Revenue held by the FWBS shall be immediately transferred to the
City for deposit in the Botanic Garden Special Revenue Fund.
5.04 Other than City Revenue, FWBS shall retain ownership of all of its other assets, specifically
including, without limitation, those assets received as membership dues, gifts, devises, and bequests, as
well as the funds held as the FWBS Endowment along with funds and revenues received by FWBS in the
future.
IV.
Section 6.02 of the Agreement is amended to add the following sentence:
The source of the funds provided to the City by FWBS pursuant to this subsection shall be from
the Tinsley Trust, a separate restricted account that the FWBS owns.
V.
Section 6.03, Subsection b of the Agreement shall be amended to read and be as follows:
b. The parties acknowledge that the FWBS currently subleases the Gardens Restaurant through
an agreement with Arif and Ripika Fazal, the same being recorded with the City Secretary as
CSC.No. 32788-01 ("Gardens Restaurant Sublease"). For purposes of maintaining and operating
the Gardens Restaurant, this Agreement shall serve as the Master Lease, as that term is defined
and set forth in the Gardens Restaurant Sublease, allowing the Gardens Restaurant Sublease to
continue in effect and uninterrupted through the term of this Agreement_ The Parties agree that
the Gardens Restaurant Sublease will terminate and be of no further effect upon the expiration or
early termination of this Agreement, unless otherwise agreed by the parties in writing. Any
amendments to the Gardens Restaurant Sublease shall be subject to review and approval by the
City prior to execution.
VI.
Section 6.03 of the Agreement is amended to add subsection d to be and read as foiiows:
d. The City shall contract and pay for repairs required under the Gardens Restaurant Sublease.
VII.
1. All terms of this Sixth Amendment and Renewal of City Secretary Contract No. 32788
that are capitalized but not defined shall have the meanings assigned to them in the License Agreement.
2. All terms and conditions of the License Agreement that are not expressly amended
pursuant to this Sixth Amendment and Renewal of City Secretary Contract No. 32788 shall remain in full
Sixth Amendment and Renewal of CSC 32788 3 of 4
Fort Worth Botanical Society,Inc.
force and effect.
IN WITNESS WHEREOF, the parties have executed this Sixth Amendment and Renewal of City
Secretary Contract No. 32788 on the dates set forth below.
CITY OF FORT WORTH City Secretary/Assistant City Secretary
/ /� FORT WORTH BOTANICAL SOCIETY,
7 Gti Lb.L._ INC.
Fernando Costa 4�jf '
Assistant City Manager
Name: Erdie Allsup
Date: (9 18 Title: President
Date: '
Recommended by:
i
Contract Compliance Manager:
ichard Zavala
ector, Park& Recreation Department By signing, I acknowledge that I am the person
Planning and Development responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
requirements.
APPROVED AS TO FORM & LEGALITY:
Name: Bob Byers
Richard A. McCracken Title: Botanic Garden Director
Assistant City Attorney
M&C No.: C-28533 (Revised)
Date: January 23,2018
Form 1295: 2018-297634
F F�RT�
ATTEST:
* OFFICIAL RECORD
Mary J. K o Gonzales �XAS CITY SECRETARY
FT.WORTH,TX
Sixth Amendment and Renewal of CSC 32788
Fort Worth Botanical Society,Inc.
7/16/2018 M&C Review
OffidaI site of the City of Fort Worth,Teams
CITY COUNCIL AGENDA FORTORTII
COUNCIL ACTION: Approved on 1/23/2018
DATE: 1/23/2018 REFERENCE C- LOG 80FWBSCONTRACTAMENDMENT-
NO.: 28533(Revised)NAME: R
CODE: C TYPE: NOW PUBLIC CONSENT HEARING:
NO
SUBJECT: Authorize Amendment to License and Lease Agreement with Fort Worth Botanical Society,
Inc., for the Botanic Garden to Amend Provisions Relating to Deposit of Revenue and
Management of Special Events (COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council authorize an amendment to the License and Lease Agreement, City
Secretary No. 32788-A5, with the Fort Worth Botanical Society, Inc., for the Botanic Garden to amend
provisions relating to deposit of revenue and management of special events.
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 Fort Worth Botanical Society (FWBS) is a long-standing support group of the FWBG which has
contributed to its success over the past 40 years. 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, 32788-R 1A4 and 32788-A5.
The FWBS currently leases the Gardens Restaurant and contracts for the operation of the restaurant with a
food service vendor. The current Agreement also gives the FWBS permission to use the FWBG for programs
and events. The FWBS deposits 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.
On September 30, 2017, the Society voluntarily transferred $642,978.00 from the restricted Botanic Garden
special purpose fund to the Botanic Garden Special Revenue Fund. These funds include all funds the Society
held on behalf of the City under the terms of that Agreement. The City is grateful for the many years of
stewardship by the Society that resulted in major cash reserves to be used in support of the Botanic Garden.
As a result of this action, the Botanic Garden special purpose fund was closed leaving only FWBG
unrestricted operating account. This Agreement will be amended to make the following changes:
• Beginning on October 1, 2017, any and all revenue generated at the FWBG, including, without
limitation, revenue from the Gardens Restaurant, and any gift shops will be deposited with
the City into the Botanic Garden Special Revenue Fund. The City will contract for and pay
for repairs required under the sublease between the FWBS and the food service vendor.
• Beginning April 1, 2018, the City and the FWBS may by joint consent enter into separate agreements for
conducting special events in the Botanic Garden, including but not limited to, the Plant Sale, Art in the
Garden and the Japanese Festival, with administratively negotiated terms addressing fees and/or revenue
sharing.
http://apps.cfwriet.orgleouneil j)acket/mc_review.asp?ID=25.56B&counci ldate=1/23/2018 1/2
7/16/2018 M&C Review
All other terms remain the same.
• FWBS will have non-exclusive rights for 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.
• The primary term of the Agreement expires on April 1, 2018. There are two optional six-month renewal
periods.
The City plans to issue a request for proposals for management of the Gardens Restaurant after the
expiration of the Society's contract on April 1, 2018. This will be an open competitive market proposal process
where the current existing vendor can submit a proposal as well as other interested vendors. The City will
execute a contract directly with the successful bidder to manage all food service operations and receive all
revenues from those operations after that date.
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
to be receipted by the City.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year (Chartfield 2)
FROM
Fund Department Account ProjectProgram Activity Budget Reference# Amount
ID ID Year 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
Cert of Interested Parties signed by HHY 2018 01 02.pdf
http://apps.cfwnet.org/counci I j)acket/mc_review.asp?I D=25568&counci(date=1/23/2018 2/2
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
1of1
Complete Nos.1-4 and 6 it there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 it 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. 2018-297634
Fort Worth Botanical Society,Inc.
Fort Worth,TX United States Date Fated:
2 Name of governmental entity or state agency that is a panty to the contract for which the form is 01/02/2018
being filed.
Cith of Fort Worth Date Ackno
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,agd_ged:
and provide a
description of the services,goods,or other property to be provided under the contract.
32788
501c3 Non-Profit Organization
4
Nature of interest
Name of Interested Parry City,State,Country(place of business) (check applicable)
Controlling I Intermediary
5 Check only if there is NO Interested Party.
X
6 UNSWORN DECLARATION /_�/
My name is �� � � and my date of birth is 01/a w/4
My address is 91y'tt 9 66-4�0d �_, 76116 "R.A
(street) (city) (state) (zip cods) (country)
I declare under penalty
of perjury that the foregoing is true and correct.
Executed in 1 County. State of -rTO�KPVS on the 2 day of%/bJ. 20L
(month) (year)
Sign ture of authorized agent of contracting business entity
(Ibderant)
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.3337