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HomeMy WebLinkAboutContract 31502-A1 CITY 8ECRETARY? CONTRACT NO._� FIRST AMENDMENT TO CITY SECRETARY CONTRACT NUMBER 31502, A LICENSE AGREEMENT WITH FORT WORTH GARDEN CLUB THIS FIRST AMENDMENT OF CITY SECRETARY CONTRACT NUMBER 31502, ("First Amendment') 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 legally constituted non-profit entity ("FWGC"),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,on March 17,2005,the City and the FWGC entered into a license agreement with the stated purpose of providing 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, the same being City Secretary Contract("CSC")Number 31502("Agreement'); WHEREAS, to effectuate that purpose, the FWGC wishes to provide for certain alterations or restoration to existing facilities at the Botanic Garden, which includes a plan to restore the Rose Garden Colonnade and Oval Rose Garden; WHEREAS, the parties desire to amend this Agreement to allow the FWGC to perform alterations and restorations in accordance with the Agreement and the provisions set forth below; and NOW, THEREFORE, for and in consideration of $10.00, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: I. Section 8, "OWNERSHIP OF CONSTRUCTED FACILITIES", is hereby amended, in whole, to read as follows: "SECTION 8. FACILITIES AND IMPROVEMENTS 8.01 The FWGC may provide for alterations to or restorations of existing facilities or structures at the Botanic Garden with the prior written approval of the PACSD Director. The FWGC will have the right to manage construction of the alterations and restorations. City and FWGC agree that FWGC will perform all construction (i) in accordance with a set of plans and specifications pre-approved by the PACSD 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 occupy said buildings until the City issues a certificate of occupancy. 8.02 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, First Amendment to CSC 31502 OFFI 14 RECOKD RECEIVED FEB 10 2014 CITY SECRETARY FT.YM+DRTHI TX 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. 8.03 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 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 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." 8.04 IF FWGC ENTERS INTO ANY THIRD PARTY CONTRACT FOR CONSTRUCTION OFANYPUBLIC 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 KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS,PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND 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 HEREIA) 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. First Amendment to CSC 31502 2 of 4 8.05 City shall retain ownership of buildings, fixtures, and all attached furnishings. The FWGC shall retain ownership of the plans 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 the FWGC and the PACSD Director. In the event of a dispute over the administration of said items,the decision of the PACSD Director is final. 8.06 The title to any building or improvements constructed at the Botanic Garden under this Agreement shall, at all times, be vested in the City; provided, however that with the consent of the Fort Worth City Council, title to newly constructed buildings may be retained by the FWGC for the purposes of securing loans made for such construction, but title to all such buildings shall revert to and vest in the City promptly upon the payment of such loan. City shall retain ownership of the buildings, fixtures, and all attached furnishings." II. A new Section 33 titled,"Liens",is hereby added to the Agreement to read as follows: "SECTION 33. LIENS "33.01 Unless otherwise specifically authorized by this Agreement,the 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,the 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 the FWGC fail to discharge the same,such failure shall constitute a breach of contract." III. A new Section 34 titled,"Right to Audit", is hereby added to the Agreement to read as follows: "SECTION 34. RIGHT TO AUDIT 34.01 The FWGC agrees that 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 involving transactions relating to this Agreement. 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. 34.02 The FWGC further agrees to include in any contractor and subcontractor agreements hereunder 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 directly pertinent books, documents, papers, and records of such contractor or subcontractor involving transactions of the contract or subcontract, and further that City First Amendment to CSC 31502 3 of 4 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." IV. All other terms and provisions of the Agreement between the City and FWGC shall remain in full force and effect except as specifically amended or set forth herein. V. All terms in this First Amendment that are capitalized but not defined shall have the meanings assigned to them in the Agreement. IN WITNESS WHE OF, the arties have executed this First Amendment in multiples, this day of� 2014. CITY OF FORT WORTH FORT WORTH GARDEN CLUB B - By: usan Alanis G Maurie Alliston Reyn d Assistant City Manager President APPROVED AS TO FORM AN—D LEGALITY: Assistant ty homey 1 ATTEST: ®PC Fe Q City Secre 1 17 Contract Authorization: 00000O00 M&C:C-20541 AS February 22,2005 OFRECORD First Amendment to CSC 31502 CITY StETARY FT.WORTH,TX City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 2/22/2005 DATE: Tuesday, February 22, 2005 LOG NAME: 80FWGCCONTRACT REFERENCE NO.: C-20541 SUBJECT: Authorize Execution of Contract Renewal with Fort Worth Garden Club, Inc. RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a contract renewal with the Fort Worth Garden Club, Inc. (FWGC) for a primary term of ten years with two additional five-year renewal options. DISCUSSION: On September 25, 1984 (M&C C-8639), the City Council authorized the City Manager to execute a contract with the Fort Worth Garden Club, Inc. (FWGC) to permit them to construct the Garden Center Conservatory Complex at no cost to the City. On September 24, 1985, (M&C C-9250), the City Council authorized the City Manager to execute a contract with the FWGC to permit them to construct a Lecture Hall as a part of the Garden Center Conservatory Complex. Upon the City's acceptance of the donation of these facilities, the City agreed to operate and maintain them as public facilities primarily for educational purposes and secondarily for other meetings of public interest and benefit. The City controls all operations of the Garden Center Conservatory Complex. All revenue generated through this complex is deposited into a special fund maintained by the Fort Worth Garden Club, Inc. and used only for the operation, expansion or improvement of this complex or the Fort Worth Botanic Garden, with the written consent of the Parks and Community Services Director. These two contracts were written to expire on the same date, September 30, 2004. The FWGC wishes to continue this contractual agreement with the City and requests a new contract that consolidates both original contracts into one. It is understood and agreed that the purpose of continuing this agreement is to provide for the best practicable operation of the Garden Center Conservatory Complex for the benefit of the public, while preserving the non-commercial atmosphere of the Botanic Garden. If it should become undesirable to continue the operations described by the proposed agreement, the City Council could modify or discontinue the operations. City staff recommends continuing the current arrangement which would benefit the public, Botanic Garden and City of Fort Worth. The Fort Worth Botanic Garden is located in COUNCIL DISTRICT 7. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action will have no material effect on City funds. Logname: 80FWGCCONTRACT Page 1 of 2 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: Sandra Youngblood (5755) Logname: 80FWGCCONTRACT Page 2 of 2