HomeMy WebLinkAboutContract 49874-A2 CSC No. 49874-A2
Second Amendment to Cooperative Agreement for Management Services
co�sOgj\N 'VN between the
Botanical Research Institute of Texas, Inc.
and the
City of Fort Worth, Texas
This Second Amendment to Cooperative Agreement for Management
Services, ("Second Amendment"), is made and entered into by and between the
Botanical Research Institute of Texas, Inc., a non-profit, 501(c)3 organization located in
Fort Worth, Texas, incorporated in the State of Texas and duly recognized under Federal
law ("BRIT"), and the City of Fort Worth, Texas, a home-rule municipal corporation
situated in Tarrant, Denton, Johnson, Wise, and Parker Counties, Texas ("City").
WHEREAS, BRIT and the City entered into a Cooperative Agreement for
Management Services for BRIT to provide the City with management services for
education and volunteer programs at the Fort Worth Botanic Garden, City Secretary
Contract Number 49874 ("Agreement"); and
WHEREAS, the City and BRIT executed the First Amendment to the Agreement
to allow BRIT to manage a membership program for the Fort Worth Botanic Garden; and
WHEREAS, the City and BRIT desire to amend the Agreement to add
management services for operations of the Botanic Garden, in areas such as budgeting,
events, security, contracts and environmental controls, as part of the management
services provided by BRIT for the Botanic Garden; and
WHEREAS, the City and BRIT desire to amend the Agreement to revise the
management fee payments for membership management support to address payments
owed to BRIT that were deferred; and
WHEREAS, the City and BRIT desire to amend the Agreement to revise the
management fee for membership marketing support as BRIT did not assume
management of that function until January 1, 2020; and
WHEREAS, the City and BRIT desire to amend the Agreement to provide BRIT
with access to portions of the City's network;
NOW, THEREFORE, the City and BRIT agree to amend the Agreement as follows:
1.
Section 1 of the Agreement is amended to add the following after the first sentence:
The management services provided by BRIT shall also include management
services relating to managing the operations of the Botanic Garden in areas such as
Second Amendment to Cooperative Agreement for Management Services Page 1 of 17
City Secretary Contract Number 49874
FT, VVkua,e in, iA
budgeting, events, security, contracting, and environmental controls, as more specifically
set forth herein.
II.
Section 1.1.6, subsection a. of the Agreement is amended to be and read as
follows:
a. Administer the education, volunteer, and membership programs, and provide
consultation services for Botanic Garden operations, hiring staff to fill positions
necessary to perform the Services provided by BRIT pursuant to this Agreement.
III.
Section 1 of the Agreement is amended to add subsection 1.1.25 to be and read
as follows:
1.1.25 Botanic Garden Operation Services. BRIT shall provide City with
management Services for Botanic Garden operations as set forth in Exhibit "C" which is
attached hereto and incorporated herein by reference.
IV.
Section 1 of the Agreement is amended to add subsection 1.2.15 to be and read
as follows:
1.2.15 Provide BRIT access to the City's Network necessary for BRIT to perform
the duties set forth in this Agreement. City and BRIT shall execute a Network Access
Agreement in substantially the form set forth in Exhibit "D" which is attached hereto and
incorporated herein by reference.
V.
Section 3, subsection 3.2 of the Agreement is amended in its entirety to be and
read as follows:
3.2 Membership Program. The City shall make a single annual payment to
BRIT on or before October 1st of each year, in the amount of $23,260.00, as a
management fee for staff support of the membership program, with the first payment
being due on October 1, 2019. City shall pay BRIT$11,630.00 on or before June 1, 2020
to cover payments that were not assessed and paid for the period of May 1, 2019 to
September 30, 2019. The City shall make a single annual payment to BRIT in the amount
of$65,022.00, as a management fee for membership marketing support. Payments shall
be due on October 1st of each year. City has previously paid BRIT the prorated amount
of $48,766.50 for the period of January 1, 2020 through September 30, 2020 to cover
BRIT assuming management of this function on January 1, 2020. Collectively, the
Second Amendment to Cooperative Agreement for Management Services Page 2 of 17
City Secretary Contract Number 49874
management fee for membership marketing support of the membership program and the
management fee for membership marketing support shall be referred to as the
"Membership Management Fee". Subject to annual appropriations by the City Council,
the Membership Management Fee will increase by three percent annually or by the
Consumer Price Index, whichever is greater, but not to exceed five percent. After all costs
for administering and managing the membership program are paid, net revenues from
membership sales will be split with the City receiving 75% of the net revenues and BRIT
retaining 25% of the net revenues as a management fee. The City and BRIT may
negotiate annually the revenue sharing between BRIT and the City for membership sales
and the percentages may be adjusted upon the approval of the City's City Manager or the
City Manager's designee and the BRIT Board.
VI.
Section 3 of the Agreement is amended to add subsection 3.3 to be and read as
follows:
3.3 Garden Operations. The City shall pay BRIT $59,471.00 for the period of
January 1, 2020 to September 30, 2020 as management fee for Botanic Garden
operations which shall cover personnel costs, a portion of the cost for NetSuite software
supporting point of sale systems for admission and retail operations, and a portion of the
cost for IT support for installing and supporting NetSuite and other software needed for
managing transition of data to BRIT for future management of the Garden. BRIT shall be
responsible for paying for the remaining costs of the NetSuite software and IT support.
VI I.
Section 5 of the Agreement is amended to add subsection 5.6 to be and read as
follows:
5.6 EMPLOYMENT CLAIMS INDEMNIFICATION. BRIT HEREBY
COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY,
ITS OFFICERS,AGENTS, SERVANTSAND EMPLOYEES, FROMANDAGAINSTANY
AND ALL CLAIMS OR LAWSUITS OFANYKIND OR CHARACTER, WHETHER REAL
OR ASSERTED, WHICH CLAIM THAT CITYAND BRIT AREA CO-EMPLOYER OR A
JOINT EMPLOYER OFANYEMPLOYEE OF BRIT ORANYEMPLOYEE OF THE CITY.
IN ALL MATTERS AS TO WHICH INDEMNIFICATION IS AVAILABLE TO THE CITY
UNDER THIS AGREEMENT, THE CITY SHALL BE FREE TO CHOOSE AND RETAIN
COUNSEL, AT BRIT'S EXPENSE, PROVIDED THAT THE CITY SHALL CONSULT IN
GOOD FAITH WITH BRIT REGARDING SUCH CHOICE.
Vill.
Section 5 of the Agreement is amended to add subsection 5.7 to be and read as
follows:
Second Amendment to Cooperative Agreement for Management Services Page 3 of 17
City Secretary Contract Number 49874
5.7 DATA BREACH. BRIT FURTHER AGREES THAT IT WILL MONITOR
AND TEST ITS DATA SAFEGUARDS FROM TIME TO TIME,AND FURTHER AGREES
TO ADJUST ITS DATA SAFEGUARDS FROM TIME TO TIME IN LIGHT OF
RELEVANT CIRCUMSTANCES OR THE RESULTS OFANYRELEVANT TESTING OR
MONITORING. IF BRIT SUSPECTS OR BECOMES AWARE OF ANY
UNAUTHORIZED ACCESS TO ANY FINANCIAL OR PERSONAL IDENTIFIABLE
INFORMATION("PERSONAL DATA")BYANY UNAUTHORIZED PERSON OR THIRD
PARTY, OR BECOMES AWARE OF ANY OTHER SECURITY BREACH RELATING
TO PERSONAL DATA HELD OR STORED BY BRIT UNDER THIS AGREEMENT OR
IN CONNECTION WITH THE PERFORMANCE OF ANY SERVICES PERFORMED
UNDER THIS AGREEMENT OR ANY STATEMENT(S) OF WORK("DATA BREACH"),
BRIT SHALL IMMEDIATELY NOTIFY CITY IN WRITING AND SHALL FULLY
COOPERATE WITH CITY AT BRIT'S EXPENSE TO PREVENT OR STOP SUCH DATA
BREACH. IN THE EVENT OF SUCH DATA BREACH, BRIT SHALL FULLY AND
IMMEDIATELY COMPLY WITH APPLICABLE LAWS, AND SHALL TAKE THE
APPROPRIATE STEPS TO REMEDY SUCH DATA BREACH. BRIT WILL DEFEND,
INDEMNIFY AND HOLD CITY, ITS AFFILIATES, AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS FROM AND
AGAINST ANYAND ALL CLAIMS, SUITS, CAUSES OF ACTION, LIABILITY, LOSS,
COSTS AND DAMAGES, INCLUDING REASONABLE ATTORNEY FEES, ARISING
OUT OF OR RELATING TO ANY THIRD PARTY CLAIM ARISING FROM BREACH BY
BRIT OF ITS OBLIGATIONS CONTAINED IN THIS SECTION, EXCEPT TO THE
EXTENT RESULTING FROM THE ACTS OR OMISSIONS OF CITY. ALL PERSONAL
DATA TO WHICH BRIT HAS ACCESS UNDER THIS AGREEMENT, AS BETWEEN
BRIT AND CITY, WILL REMAIN THE PROPERTY OF CITY. CITY HEREBY
CONSENTS TO THE USE, PROCESSING AND/OR DISCLOSURE OF PERSONAL
DATA ONLY FOR THE PURPOSES DESCRIBED HEREIN AND TO THE EXTENT
SUCH USE OR PROCESSING IS NECESSARY FOR BRIT TO CARRY OUT ITS
DUTIES AND RESPONSIBILITIES UNDER THIS AGREEMENT, ANY APPLICABLE
STATEMENT(S) OF WORK, OR AS REQUIRED BY LAW. BRIT WILL NOT
TRANSFER PERSONAL DATA TO THIRD PARTIES, UNLESS AUTHORIZED IN
WRITING BY CITY. BRIT'S OBLIGATION TO DEFEND, HOLD HARMLESS AND
INDEMNIFY CITY SHALL REMAIN IN FULL EFFECT IF THE DATA BREACH IS THE
RESULT OF THE ACTIONS OF A THIRD PARTY. ALL PERSONAL DATA
DELIVERED TO BRIT SHALL BE STORED IN THE UNITED STATES OR OTHER
JURISDICTIONS APPROVED BY CITY IN WRITING AND SHALL NOT BE
TRANSFERRED TO ANY OTHER COUNTRIES OR JURISDICTIONS WITHOUT THE
PRIOR WRITTEN CONSENT OF CITY.
IX.
The Agreement is amended to add Exhibit "C" which shall be and read as set forth
in Attachment "1" of this Second Amendment.
X.
Second Amendment to Cooperative Agreement for Management Services Page 4 of 17
City Secretary Contract Number 49874
The Agreement is amended to add Exhibit"D"which shall be and read as set forth
in Attachment "2" of this Second Amendment.
XI.
1. All other terms and conditions of the Agreement shall remain in full force
and effect except as specifically set forth in this Second Amendment.
2. All terms of this Second Amendment that are capitalized but not defined
shall have the meanings assigned to them in the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
Second Amendment to Cooperative Agreement for Management Services Page 5 of 17
City Secretary Contract Number 49874
IN WITNESS WHEREOF,the parties have executed this Agreement to be effective
on January 1, 2020.
CITY OF FORT WORTH BOTANICAL RESEARCH INSTITUTE OF
TEXAS
Dgn
By. BurAhdof� By
Dana Bu hdoff ul 27,2020 09:43 CDT)
Dana Burghdoff Edward Schneider
Assistant City Manager Executive Director
Date: J U[ 27, 2020 Date:
Recommended By:
7
By. By:
Richard Zavala Greg Bird
Director of Park& Recreation Board President
BY: By:
Bob Byers Edward Bass
Director, Fort Worth Botanic Garden Board Vice President
APPROVED AS TO FORM AND LEGALITY:
4�2
Richar McCracken(Jul27,202009:20CDT)
Richard A. McCracken
Assistant City Attorney
��.
ATTEST: �..,: •,�
7eD�klfi& C70`llGt�2f r U
'for Ronald P.Gonzales(Jul 27,202012:18 CDT) * i
Mary Kayser
City Y Secretar X .
M&C: 20-0347 (5/19/20) OFFICIAL RECORD
Form 1295: 2020-606830 CITY SECRETARY
FT. WORTH,TX
Second Amendment to Cooperative Agreement for Management Services Page 6 of 17
City Secretary Contract Number 49874
Contract Compliance Manager:
By signing, I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including all
performance and reporting requirements.
14
Sandra Young o (Ju124,2020 17:18 CDT)
Name: Sandra Youngblood
Title: Assistant Director, Park Operations
OFFICIAL RECOP
CITY SECRE g��.- ,
FT WORTH,TX
Second Amendment to Cooperative Agreement for Management Services Page 7 of 17
City Secretary Contract Number 49874
ATTACHMENT 1
EXHIBIT C
MANAGEMENT SERVICES FOR BOTANIC GARDEN OPERATIONS
I. General Duties
a. BRIT shall provide City with management services relating to the operations of
the Botanic Garden. BRIT will provide City staff with advice on where to focus
resources for the best return, on the best business model for achieving
success, and on how to manage growth in programs and provide improved
customer experience. BRIT will communicate guidance and recommendations
to the Botanic Garden Director. BRIT shall provide training,coaching, and other
support for day to day operations to City staff as requested by the Botanic
Garden Director.
b. BRIT shall develop an integrated business operations plan for private
management of the Botanic Garden that includes increased efficiency of all
operations, elimination of duplicative services, and revenue growth through
increased sales and return on investment. BRIT shall incorporate relevant
recommendations of the Botanic Garden Task Force into the plan.
c. BRIT shall meet all work deadlines agreed to between BRIT and the City.
d. BRIT shall deliver quarterly reports to the City related to work performed by
BRIT managing Botanic Garden operations.
e. BRIT will prepare an annual work plan identifying all key projects and programs
at the Botanic Garden as well as key projects and programs at BRIT.
f. BRIT will attend and participate in briefings with City staff no less than one time
per month to discuss sales, business performance, and strategic planning.
II. Sales
a. BRIT will forecast and monitor monthly rental sales based on prior performance
at the Botanic Garden using a percentage of growth determined by the City and
BRIT.
b. BRIT will deliver a report of projected growth in admissions sales based on
research from other institutions and on planned programming.
c. BRIT will define sales goals and expected results.
III. Business Performance Analysis
a. BRIT will consider issues identified in the task force recommendations and how
Second Amendment to Cooperative Agreement for Management Services Page 8 of 17
City Secretary Contract Number 49874
to determine the current status of those issues compared to comparable
gardens based on population and facilities.
b. BRIT will work with the City's Botanic Garden administration staff to develop
more integrated and effective ways to provide needed services across the
entire campus.
c. BRIT will analyze current financials for the Botanic Garden and how they affect
fiscal fitness to move forward with changes under consideration, and research
possible adjustments to make the financial model more effective as needed.
d. BRIT will work with City Botanic Garden staff to study current staffing and
operations and recommend changes as needed.
IV. Strategic Planning
a. BRIT will discuss with City staff the recommendations in previous studies (2005
Museum Assessment, 2010 Master Plan, 2016 Strategic Plan, and 2018 Task
Force Recommendations)for their strategic implications and application during
the development of business strategies.
b. BRIT will develop key, institution-wide, strategic goals for the Botanic Garden.
c. BRIT will devise business management objectives that are (1) measurable, (2)
have defined timelines, and (3) name specific parties responsible for
accomplishing goals (on subsequent visits after goals are determined),
including performance standards and other quantifiable initiatives to assure
timely and focused performance.
V. Oversight of Budget Management
a. BRIT will oversee Botanic Garden staff in maintaining running balance sheets
for Botanic Garden operating and capital accounts, and perform regular
reviews of revenue and expense for each account.
b. BRIT will provide budget projections at the regularly required periods for City
of Fort Worth budgetary units.
c. BRIT will assure that budgeted revenue targets and expense allowances are
observed.
d. BRIT will recommend adjustments to staffing, marketing, and/or expenditures
to bring revenue and expense into compliance with budgeted targets.
Second Amendment to Cooperative Agreement for Management Services Page 9 of 17
City Secretary Contract Number 49874
VI. Oversight of Operating Contracts
a. Upon request by the City, BRIT will assume the primary management role over
specified Botanic Garden operating contracts.
b. BRIT shall assure that deadlines and schedules are met in order to have
contracts approved and in place before products and services are needed.
c. BRIT shall advise garden management and financial support staff on contract
issues and management concerns.
d. BRIT shall oversee security of facilities and events, working with City Botanic
Garden staff to assure property, staff, and guests are safe.
VI I. Oversight of Financing for Construction Projects
a. BRIT will set up all capital projects in the City's systems or assist City staff in
setting up the capital projects to assure they are ready to be funded and
expensed.
b. BRIT will oversee expenditures to assure funding is available to complete each
project as designed.
c. BRIT will assist the Garden Director in monitoring contractors and assuring
compliance with plans and specifications, as well as assuring site and other
improvements are protected.
Vill. Review and Implementation of Major Infrastructure Improvement Contracts
a. BRIT will work with City staff and utility providers to analyze infrastructure
needs and best approaches to meeting them.
b. BRIT will review infrastructure projects during construction and before final
approval to assure that Botanic Garden needs will be met by the improvements.
c. BRIT will assure that all City documentation is completed before contracts for
major infrastructure improvement contracts begin, and will assist City staff with
obtaining the documentation.
d. BRIT will work with the Garden Director to support City staff and contractors as
needed during major infrastructure improvement project installations.
Second Amendment to Cooperative Agreement for Management Services Page 10 of 17
City Secretary Contract Number 49874
IX. Sales, Retail, Housekeeping and Events
a. BRIT will provide daily guidance and support for sales, retail, housekeeping,
and events staff.
b. BRIT will perform an annual review of rental pricing and make
recommendations for changes based on current market rates for similar
venues.
c. BRIT will assure that revenue goals for the Botanic Garden are explained to
Botanic garden staff and are monitored regularly to measure progress toward
attaining those goals.
d. BRIT will assist City staff in providing customer service support and training to
all new and current City employees so the employees are equipped to provide
top notch service to all Botanic Garden visitors.
e. BRIT will monitor the rental sales process and assures consistency, fairness,
and efficiency in serving rental customers.
f. BRIT will review event setup teams and schedules to assure that all events are
properly managed and guests receive all services for which they've contracted
in an efficient, friendly, and timely manner, and ensure that security or police
are available as needed and as required by City policy, City ordinance, and
state law for all events.
g. BRIT will inspect the condition of all indoor venues to assure proper
housekeeping, with special attention to cleanliness of all kitchen and restroom
facilities.
h. BRIT will assist City staff with verifying that all caterers meet city, county, and
state requirements, that service is timely and reflects well on the Botanic
Garden, and that payment of commissions is accurate and on time.
i. BRIT will review all refunds and recommend necessary changes or
adjustments.
Second Amendment to Cooperative Agreement for Management Services Page 11 of 17
City Secretary Contract Number 49874
ATTACHMENT 2
EXHIBIT D
NETWORK ACCESS AGREEMENT
This Network Access Agreement ("Agreement") is made and entered into by and
between the City of Fort Worth ("City"), a home rule municipal corporation with its principal
location at 200 Texas Street, Fort Worth, Texas 76102, organized under the laws of the
State of Texas and Botanical Research Institute of Texas, Inc. ("BRIT"), a non-profit,
501(c) 3 organization located in Fort Worth, Texas, incorporated in the State of Texas and
duly recognized under Federal Law.
1. The Network. The City owns and operates a computing environment,
software systems, and network (collectively the "Network"). BRIT wishes to access the
City's Network in order to provide the following services:
Management Services for the Botanic Garden
2. Grant of Limited Access. BRIT is hereby granted a limited right of access
to the City's Network for the sole purposes outlined in section 1. For each BRIT employee
who requires access to the City's Network, BRIT shall complete and deliver to City the
form attached hereto as Schedule 1, and incorporated herein by reference.
Such access is granted subject to the terms and conditions forth in this Agreement
and applicable provisions of the City's Administrative Regulation D-7 (Electronic
Communications Resource Use Policy), of which such applicable provisions are hereby
incorporated by reference and made a part of this Agreement for all purposes herein and
are available upon request.
3. Network Credentials. The City will provide BRIT with Network Credentials
consisting of user IDs and passwords unique to each individual requiring Network access
on behalf of the BRIT. If this access is being granted for purposes of completing services
for the City pursuant to a separate contract, then, this Agreement will expire at the
completion of the contracted services, or upon termination of the contracted services,
whichever occurs first. Otherwise, access rights will automatically expire one (1)year from
the date of this Agreement ("Expiration Date").
® Services are being provided in accordance with City Secretary Contract No. 49874
("Contract").
❑ Services are being provided in accordance with City of Fort Worth PeopleSoft
Contract No. . ("PSK#")
❑ Services are being provided in accordance with the Agreement to which this
Access Agreement is attached. ("Contract")
Second Amendment to Cooperative Agreement for Management Services Page 12 of 17
City Secretary Contract Number 49874
❑ No services are being provided pursuant to this Agreement.
4. Renewal. This Agreement shall renew in accordance with the term of the
Contract or PSK #. If there is no Contract or PSK #, this Agreement may be renewed
annually by City, in its sole discretion, at the end of the Expiration Date and each renewal
term thereafter.
5. Network Restrictions. BRIT officers, agents, servants, employees or
representatives may not share the City-assigned user IDs and passwords. BRIT
acknowledges, agrees and hereby gives its authorization to the City to monitor BRIT's
use of the City's Network in order to ensure BRIT's compliance with this Agreement. A
breach by BRIT, its officers, agents, servants, employees or representatives, of this
Agreement and any other written instructions or guidelines that the City provides to BRIT
pursuant to this Agreement shall be grounds for the City immediately to deny BRIT access
to the Network and BRIT's Data, terminate the Agreement, and pursue any other
remedies that the City may have under this Agreement or at law or in equity.
6. Termination. In addition to the other rights of termination set forth herein,
the City may terminate this Agreement at any time and for any reason with or without
notice, and without penalty to the City. Upon termination of this Agreement, BRIT agrees
to remove entirely any client or communications software provided by the City from all
computing equipment used and owned by the BRIT, its officers, agents, servants,
employees and/or representatives to access the City's Network.
7. Information Security. BRIT agrees to make every reasonable effort in
accordance with accepted security practices to protect the Network credentials and
access methods provided by the City from unauthorized disclosure and use. BRIT agrees
to notify the City immediately upon discovery of a breach or threat of breach which could
compromise the integrity of the City's Network, including but not limited to, theft of BRIT-
owned equipment that contains City-provided access software, termination or resignation
of officers, agents, servants, employees or representatives with access to City-provided
Network credentials, and unauthorized use or sharing of Network credentials.
8. LIABILITY AND INDEMNIFICATION. BRIT SHALL BE LIABLE AND
RESPONSIBLE FOR ALL DAMAGES THAT THE CITY MAY INCUR DIRECTLY ON
ACCOUNT OF ANY BREACH OF THIS AGREEMENT BY BRIT, ITS OFFICERS,
AGENTS, SERVANTS OR EMPLOYEES. THE CITY, ITS OFFICERS, AGENTS,
SERVANTS AND EMPLOYEES, SHALL NOT BE LIABLE FOR ANY DAMAGES THAT
BRIT MAY INCUR AS A RESULT OF THE CITY'S RESTRICTIONS TO OR DENIAL OF
ACCESS TO BRIT 'S DATA ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT
BY BRIT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, OR FOR ANY
REASONABLE SECURITY MEASURES TAKEN BY THE CITY. IN ADDITION, BRIT
SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS,
PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, AND ALL
CLAIMS, DEMANDS AND JUDGMENTS THEREFOR, TO THE EXTENT CAUSED BY
Second Amendment to Cooperative Agreement for Management Services Page 13 of 17
City Secretary Contract Number 49874
THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF
BRIT, ITS OFFICERS,AGENTS, SERVANTS AND/OR EMPLOYEES. BRIT,AT BRIT'S
OWN COST OR EXPENSE, HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD
HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES
FROM AND AGAINST ANY CLAIM, LAWSUIT, DEMAND OR OTHER ACTION TO THE
EXTENT THAT THE SAME ARISES FROM THE NEGLIGENT ACT(S) OR
OMISSION(S) OR INTENTIONAL MISCONDUCT OF BRIT, ITS OFFICERS, AGENTS,
SERVANTS OR EMPLOYEES.
9. Confidential Information. BRIT, for itself and its officers, agents,
employees, and representatives, agrees that it shall treat all information provided to it by
the City as confidential and shall not disclose any such information to a third party without
the prior written approval of the City. BRIT further agrees that it shall store and maintain
City Information in a secure manner and shall not allow unauthorized users to access,
modify, delete or otherwise corrupt City Information in any way. BRIT shall notify the City
immediately if the security or integrity of any City information has been compromised or
is believed to have been compromised.
10. Right to Audit. BRIT agrees that the City shall, during the initial term, any
renewal terms, and until the expiration of three (3) years after termination or expiration
of this contract, have access to and the right to examine at reasonable times any directly
pertinent books, data, documents, papers and records, both hard copy and electronic,
of the BRIT involving transactions relating to this Agreement. BRIT agrees that the City
shall have access during normal working hours to all necessary BRIT facilities and shall
be provided adequate and appropriate work space in order to conduct audits in
compliance with the provisions of this section. The City shall give BRIT reasonable
advance notice of intended audits. BRIT further agrees to include in all its subcontractor
agreements hereunder a provision to the effect that the subcontractor agrees that the
City shall, during the initial term, any renewal terms, and until expiration of three (3)
years after termination or expiration of the subcontract, have access to and the right to
examine at reasonable times any directly pertinent books, data, documents, papers and
records, both hard copy and electronic, of such subcontractor involving transactions
related to the subcontract, and further that City shall have access during normal working
hours to all 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 subcontractor reasonable notice of intended audits.
11. Agreement Cumulative. This Agreement is cumulative of and in addition
to any written contracts, agreements, understandings or acknowledgments with the City
signed by BRIT. This Agreement and any other documents incorporated herein by
reference constitute the entire understanding and Agreement between the City and BRIT
as to the matters contained herein regarding BRIT's access to and use of the City's
Network.
12. Amendments. The terms of this Agreement shall not be waived, altered,
modified, supplemented, or amended in any manner except by written instrument signed
Second Amendment to Cooperative Agreement for Management Services Page 14 of 17
City Secretary Contract Number 49874
by an authorized representative of both the City and BRIT.
13. Assignment. BRIT may not assign or in any way transfer any of its interest
in this Agreement.Any attempted assignment or transfer of all or any part hereof shall be
null and void.
14. Severability. If any provision of this Agreement is held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired.
15. Force Maieure. Each party shall exercise its best efforts to meet its
respective duties and obligations as set forth in this Agreement, but shall not be held
liable for any delay or omission in performance due to force majeure or other causes
beyond their reasonable control (force majeure), including, but not limited to, compliance
with any government law, ordinance or regulation, acts of God, acts of the public enemy,
fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any
governmental authority, transportation problems and/or any other similar causes.
16. Governing Law/Venue. This Agreement shall be construed in accordance
with the laws of the State of Texas. If any action, whether real or asserted, at law or in
equity, is brought on the basis of this Agreement, venue for such action shall lie in state
courts located in Tarrant County, Texas or the United States District Court for the Northern
District of Texas, Fort Worth Division.
17. Signature Authority. By affixing a signature below, the person signing this
Agreement hereby warrants that he/she has the legal authority to bind the respective
party to the terms and conditions in this agreement and to execute this Agreement on
behalf of the respective party, and that such binding authority has been granted by proper
order, resolution, ordinance or other authorization of the entity. The other party is fully
entitled to rely on this warranty and representation in entering into this Agreement.
[Signature Page Follows]
Second Amendment to Cooperative Agreement for Management Services Page 15 of 17
City Secretary Contract Number 49874
Executed effective as of the date signed by the Assistant City Manager below.
FORT WORTH:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
By: ensuring all performance and reporting
Name: Valerie Washington requirements.
Title: Assistant City Manager
Date:
By:
Approval Recommended: Name:
Title:
Approved as to Form and Legality:
By:
Name: Kevin Gunn
Title: IT Solutions Director
By:
Attest: Name: John B. Strong
Title: Assistant City Attorney
Contract Authorization:
By: M&C:
Name: Mary J. Kayser
Title: City Secretary
BRIT:
Botanical Research Institute of Texas, Inc.
By:
Name:
Title:
Date:
Second Amendment to Cooperative Agreement for Management Services Page 16 of 17
City Secretary Contract Number 49874
SCHEDULE1
NETWORK ACCESS AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS, INC.
(CITY SECRETARY CONTRACT 49874)
Schedule 1 shall be completed for each employee of the Botanical Research
Institute of Texas that requires access to the City's Network.
Name of Employee:
System Access (Full/Read-Only/Limited)
Approved:
Date:
Name:
Title:
Information Technology Solutions
City of Fort Worth
Second Amendment to Cooperative Agreement for Management Services Page 17 of 17
City Secretary Contract Number 49874
7/17/2020 M&C Review
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORTWORTII
DATE: 5/19/2020 REFERENCE M&C 20-0347 LOG NAME: 80BGBRITMANAGEMENT
NO..
NON- PUBLIC
CODE: C TYPE: CONSENT HEARING:
NO
SUBJECT. Authorize Execution of a Second Amendment to a Management Services Agreement with
the Botanical Research Institute of Texas, Inc. in the Amount of$59,741.00 for
Management of Garden Center Operations,Authorize Execution of a New Management
Services Agreement with the Botanical Research Institute of Texas, Inc. in the Annual
Amount of$3,350,000.00 for Management of the Fort Worth Botanic Garden,Authorize
Supplemental Management Fee in an Amount Not to Exceed $1,355,000.00 for Phased
Transition of Management Services, Authorize Payment of Amount Equivalent to up to 120
Hours Accrued Leave Per Employee in an Amount Not to Exceed $203,952.10, Authorize
Waiver of Construction-Related Permit Fees for Improvements Made by the Botanical
Research Institute of Texas, Inc., and Find that Payments, Transfer of Vehicles, City
Property, and Equipment, and Waiver of Fees Serve a Public Purpose (ALL COUNCIL
DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize execution of a Second Amendment to City Secretary Contract No. 49874, a
Management Services Agreement with the Botanical Research Institute of Texas, Inc. in the
Amount of $59,471.00 for Management of Select Administrative Operations;
2. Authorize execution of a New Management Services Agreement with the Botanical Research
Institute of Texas, Inc. in the amount of $3,350,000.00 for management of the Fort Worth
Botanic Garden;
3. Authorize a supplemental management fee in an amount not to exceed $1,355,000.00, offset
by corresponding reductions in City payroll costs appropriated in the FY2020 Approved
Budget, for management services assumed before October 1, 2020;
4. Authorize payment of an amount equivalent to up to 120 hours accrued leave for each
Botanic Garden employee that takes a position with the Botanical Research Institute of
Texas, Inc. in an amount not to exceed $203,952.10;
5. Authorize waiver of construction-related permit fees up to $50,000 for each project for
improvements made by the Botanical Research Institute of Texas, Inc.; and
6. Find that payments to and transfer of vehicles, City property and equipment to the Botanical
Research Institute of Texas, Inc. and waiver of fees serve a public purpose.
DISCUSSION:
Second Amendment to Contract 49874:
On October 10, 2017 (M&C C-28427) Council authorized staff to execute a contract with the Botanical
Research Institute of Texas (BRIT)to manage education and volunteer programs at the Botanic
Garden. This action was intended to take advantage of BRIT staff's expertise and increase efficiency
in delivering services for both organizations. The contract included payment of a management fee in
the amount of$192,000.00 from annual garden operational funds to BRIT and eliminated positions at
the Botanic Garden supporting those services. The agreement, City Secretary Contract Number
49874 (known as GROW), was implemented effective November 2017 and the program has enjoyed
increasing success with major growth in Pre-K, K-12, and adult education and in volunteer recruitment,
training, and utilization.
Informal Report 10247 on March 5, 2019 informed Council of plans to implement a joint membership
program for the Botanic Garden and BRIT and add membership administration to the services already
managed by BRIT under the GROW agreement. On May 21, 2019 (M&C C-29133) City Council
apps.cfwnet.org/council_packet/mc_review.asp?I D=27916&councildate=5/19/2020 1/5
7/17/2020 M&C Review
approved the first amendment to CSC 49874 in the amount of$88,282.00 for the new joint
membership program. Membership has since grown to over 3,000 households in the first year of
operation ending March 9, 2020.
On January 1, 2020, the Botanic Garden's Garden Center Coordinator was hired to become BRIT's
new Vice President for Operations. As negotiations were already underway for a non-profit
management agreement and the VP of Operations would be assuming most of the responsibilities of
the Garden Center Coordinator under that agreement, it was decided to leave the Garden position
open and allow BRIT to temporarily manage those functions. The proposed amendment allows BRIT
to assume many of the advisory, financial management, and day to day sales, housekeeping, and
event management supervisory tasks at the Garden during the transition. The increased management
fee also funds software and other needs to manage those functions. The result will be significant
salary savings, better coordination of events and sales at both facilities, and better oversight of
finances. The proposed amendment allows BRIT to access City Information Technology (IT) systems
as needed by specified BRIT employees to perform these functions and makes adjustments to the
payments required in the first amendment for functions that were not implemented.
The major terms of the proposed amendment to the GROW agreement include the following:
1. Management of select administrative operations at the Botanic Garden, including advisory,
financial management, daily sales, housekeeping, and event management functions;
2. Increased management fees in the amount of $59,791.00 to be paid from the Botanic
Garden Special Revenue Fund for management of the administrative operations and related
expenses, including: (a) the City's portion of costs for NetSuite software supporting point of
sale systems for admission and retail operations, and (b) IT support for installing and
supporting NetSuite and other software needed for managing transition of data to BRIT for
future management of the Garden;
3. Additional indemnification protections to address BRIT managing City employees;
4. Providing select BRIT employees with access to the City's network, email, and software
resources in order to perform the management services;
5. Adjustment of payment date for a portion of the management fee for staff support of the
membership program in the amount of $11,630 that was deferred from FY 2018;
6. Revision of the management fees for membership marketing support services as
performance of those services were not assumed by BRIT until 1/1/20.
Management Agreement:
On November 15, 2016 City Council accepted the Botanic Garden Strategic Plan (M&C G-18885),
recommending significant changes in the operation of the Fort Worth Botanic Garden including
general admission fees and non-profit management. In January of 2018 a special Botanic Garden
Task Force (Task Force)was appointed by the City Manager's office for the purpose of determining
how best to ensure a sustainable future for the Fort Worth Botanic Garden. After reviewing multiple
financial projections, public input, a visitor intercept study by Highland Market Research, LLC, facility
assessments by a multi-disciplinary team led by Elements of Architecture, Inc., and other research, the
Task Force presented its recommendations to Council in November of 2018.
On November 13, 2018, Council approved M&C G-19422 accepting Task Force recommendations for
a general admission fee and financial accessibility program to reduce impact of fees on low-income
visitors. It further authorized staff to pursue an operational management agreement with BRIT to
determine whether it was an appropriate and willing non-profit partner. That directive led to initial
informal discussions with BRIT culminating with a letter of interest from the City to BRIT in June of
2019. A term sheet of agreed upon provisions for non-profit management was developed beginning in
September of 2019 and City Council was briefed on it in January of 2020.
General Conclusions:
1. The joint administration of Garden and BRIT programs under the management of BRIT staff
has created synergies and efficiencies resulting in major growth in education, volunteerism,
and membership programs for both institutions. This growth represents a significant public
benefit for the citizens of Fort Worth. Equivalent growth is expected in sales and events
programs.
2. Non-profit management for the Garden appears best suited to assuring continued
sustainability.
apps.cfwnet.org/council_packet/mc_review.asp?ID=27916&councildate=5/19/2020 2/5
7/17/2020 M&C Review
3. Due to similar mission; professional board governance, administration, and staff well
positioned to manage fundraising, research, education, and other programmatic services
typical of major botanical gardens; and physical proximity; BRIT is well suited as a non-profit
management partner for the Botanic Garden.
4. BRIT is uniquely positioned as the sole non-profit organization to manage the Garden and
has provided the City with significant financial and other benefits, including, but not limited
to, constructing a LEED certified building on the City's property adjacent to the Garden
valued at over $23 million, entering into a long term ground lease and related agreements
with the City for shared use and maintenance of the Botanic Garden and the adjacent
property where the LEED building is located, and management of education, volunteer,
membership, and marketing programs for the Botanic Garden.
5. Due to the myriad demands of transitioning an operation of the size of the Botanic Garden to
new management, it is desirable to closely coordinate efforts, develop joint teams to make
and implement strategic decisions affecting both institutions, and phase transfer of
employees and operations from the City to BRIT. Transitional provisions allowing City
employees to participate fully in these activities as required, including interim day to day
management of City staff by BRIT employees in certain cases, will be crucial to success.
6. Assuring that funding is available to allow the Botanic Garden to be properly staffed and
equipped to allow proper maintenance and programming serves a public purpose.
The major terms of the new agreement with BRIT include the following:
1. Management Services shall include, but are not limited to, management of the
administration, maintenance, exhibits, landscape and horticulture programs, special events,
advertising, sales, volunteers, admissions, contracts, improvements, and security for the
Botanic Garden.
2. The Agreement would authorize a term of 20 years with a 6 month transition period,
effective May 1, 2020 and to be fully implemented by October 1, 2020 or 90 days after 1.)
COVID restrictions are lifted and 2.) the Garden reopens with general admission fees.
Between May 1, 2020 and the full implementation date, BRIT can assume management of
Botanic Garden functions and the City's property and equipment can be transferred to BRIT
in phases.
3. For Fiscal Year 2021 (October 1, 2020 through September 30, 2021), the City will pay BRIT
a Management Fee in the amount of $3,350,000.00. For each subsequent fiscal year, the
amount of the Management Fee will adjusted by increases in the CPI. If a decrease in the
CPI occurs, the Management Fee will be the same amount paid during the previous fiscal
year.
4. To support the phased transfer of the management services between May 1, 2020 and
October 1, 2020, City will pay to BRIT a supplemental management fee in an amount not to
exceed $1,355,000.00, with such cost being offset by corresponding reductions in City
payroll costs as appropriated in the FY2020 approved budget for City positions previously
performing transferred responsibilities. The $1,355,00.00 represents the total amount the
City would pay if BRIT assumed management of all functions at the Botanic Garden on May
1, 2020. It is anticipated that the actual expense will be lower. For each function at the
Botanic Garden that BRIT assumes management of, the City will calculate the payment based
on the number of days remaining from the date BRIT assumes management through
September 30, 2020.
5. City employees who take a position with BRIT may choose to have up to 120 hours of earned
leave time with the City transferred to BRIT in lieu of the City paying the leave time to the
employee. The City will pay to BRIT an amount equivalent to the cost that the City would
have incurred for salary and employer-paid benefits if the leave were taken during
employment with the City. The estimated cost to the City if all employees take advantage of
this option is $203,952.10
6. Botanic Garden employees within five years of retirement have the option to remain at the
Garden as city employees assigned to BRIT. Those employees will retain city benefits and
appeal rights. Rights to discipline, evaluate, hire, and terminate remain with the City. These
retained employees will be managed on a day to day basis by BRIT and BRIT will provide
City supervisors with information on their performance. These employees will also have the
right to retire when eligible with full pension benefits earned, to request reassignment to
another City position, to enter the DROP program when eligible, or to leave the City to seek
other employment or become employees of BRIT.
apps.cfwnet.org/council_packet/mc_review.asp?ID=27916&councildate=5/19/2020 3/5
7/17/2020 M&C Review
7. The City will provide up to $17,000,000.00 in debt funded capital improvements and repairs
over a 12 year period beginning May 1, 2020. This funding will address deferred facility
maintenance identified in the facility assessment conducted by Elements of Architecture, Inc.
dated December 22, 2017. The agreement adjusts the deferred maintenance funding for
inflation from that study's date of publication.
8. Current admission fees, as adopted by the City Council on November 13, 2018 (M&C G-
19422) are $12 for adults, $10 for seniors, $6 for children and free for children 5 and under.
BRIT may increase the admission fees periodically by adding an amount that does not
exceed increases in the Consumer Price Index to the amount of the admission fees
previously charged. BRIT will provide admission accessibility options with a goal that at least
ten percent (10\%) of non-membership program admissions will be: (1) free, or at a reduced
rate from the admission fees; and (2) have reasonable options for days of the week and the
times of admittance for those using the accessibility options.
9. BRIT may establish a membership program and establish the membership fees for the
membership program.
10. Building permit fees for future improvements made by BRIT at the Botanic Garden will be
waived in an amount up to $50,000.00 for each project. Upon completion of construction,
the improvements will be owned by the City and BRIT will create an endowment fund equal
to 5\% of the construction cost for maintenance of the improvements.
11. Title to City-owned vehicles will be transferred to BRIT. The City will also transfer furniture,
fixtures and equipment necessary for operation of the Botanical Garden to BRIT. Upon
termination of the agreement, BRIT will be required to return vehicles, furniture, fixtures and
equipment, or their replacements, to the City.
12. BRIT shall not enter into any other agreements for the management of any other public
botanical gardens or otherwise compete with the operation of the Botanic Garden.
By approval of this M&C, the City Council finds that the waiver of building permit fees serve a public
purpose by improving City-owned property and sufficient contractual controls are in place to ensure
that public purpose is met. The City Council further finds that payment of the management fee to
BRIT and the transfer of vehicles, furniture, fixtures, and equipment to BRIT serves a public purpose
by ensuring the continued operation of the Botanic Garden as a public garden and sufficient
contractual controls are in place to ensure that public purpose is met.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available in the current operating budget, as
previously appropriated, in the Botanic Gardens Special Revenue (Botanic Gardens Spcl Revenue)
Fund to support the approval of the above recommendations and execution of the amendment. Prior
to any expenditure being incurred, the Park& Recreation Department has the responsibility to
validate the availability of funds.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfield 2
FROM
Fund I Department Account Project Program Activity Budget Reference# Amount
ID I ID I I Year (Chartfield 2)
Submitted for City Manager's Office by_ Dana Burghdoff(8018)
Originating Department Head: David Creek (5704)
Additional Information Contact: David Creek (5704)
apps.cfwnet.org/council_packet/mc_review.asp?ID=27916&councildate=5/19/2020 4/5
7/17/2020 M&C Review
ATTACHMENTS
apps.cfwnet.org/council_packet/mc_review.asp?ID=27916&councildate=5/19/2020 5/5