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HomeMy WebLinkAboutContract 51523 CITY SECRETARY CONTRACT N0. p� I; LICENSE AGREEMENT FOR CONDUCTING THE JAPANESE FESTIVAL BETWEEN THE CITY OF FORT WORTH AND Ciri CgYA THE FORT WORTH BOTANICAL SOCIETY,INC, This LICENSE AGREEMENT FOR CONDUCTING THE JAPANESE FESTIVAL, ("Agreement") 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 nonprofit corporation ("Licensee"), 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 City and the Fort Worth Botanical Society have been party to a series of agreements pursuant to which the Fort Worth Botanical Society 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,which has been amended and restated; WHEREAS, on March 28,2017,the City Council, by M&C C-28165, approved the execution of an amended and restated agreement between the City and the Fort Worth Botanical Society to carry out the reorganization of support groups as identified in the Botanic Garden Strategic Plan, which resulted in the execution of CSC No. 32788-A5; WHEREAS, on January 23, 2018, by C-28533 (Revised), the City Council authorized an amendment to City Secretary Contract No. 32788, which includes allowing the City and the Fort Worth Botanical Society to enter into separate agreements for conducting special events in the Botanic Garden, including the Japanese Festival("Festival"),with negotiated terms addressing fee or revenue sharing; WHEREAS,the City and the Fort Worth Botanical Society desire to enter into a license agreement to establish the terms and conditions for the Fort Worth Botanical Society to conduct the Festival at the Botanic Garden; NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the City and Fort Worth Botanical Society agree to the following: 1. License Granted. City hereby grants to the Licensee a non-exclusive license to use a portion of the Botanic Garden as set forth in more detail in Exhibit A,which is attached hereto and incorporated herein by reference,and as agreed to by the parties in Section 4("Licensed Premises"). 2. License Fee. Licensee shall pay Three Thousand Five Hundred Dollars and No Cents($3,500.00) for the rights and privileges granted herein ("License Fee"). The License Fee shall be due and payable 30 days after the end of the Term without demand or offset, in legal tender of the United States. The License Fee shall be delivered to the Fort Worth Botanic Garden, Attn: Accounts Payable, 3220 Botanic Garden Blvd, Fort Worth, Texas 76107 or such other place in Tarrant County, Texas as the Director of the Department or that person's designee ""Director" mav— hereafter notify Licensee(in writing and with reasonable advanced notice). IL,cense 1 kD CM? SECRETARY License Agreement for Conducting the Japanese Festival 1 pf 1 Fort Worth Botanical Society,Inc. ° responsible for all other expenses related to the Japanese Festival.Licensee shall retain all revenue Licensee collects from conducting the Japanese Festival. 3. Admission Fee. Licensee shall set the admission fee for admittance to the Festival. The City shall collect all admissions fees during the Festival. The City shall retain from the admission fees collected during the Festival the amount equal to the regular,non-event admission fees charged for admittance to the Japanese Garden. City shall remit to Licensee the difference between the regular admission fees and total admission revenue collected during the Festival, which amount shall be Licensee's funds. 4. Term.The Agreement shall be effective from November 26,2018 to December 31,2018("Term"). The Festival may only be conducted during the Term from December 1,2018 to December 2,2018. 5. Use of the Licensed Premises.Licensee may use the Licensed Premises to conduct the Festival and associated activities,but for no other purpose. The Festival shall be conducted within the Japanese Garden area of the Licensed Premises as depicted in Exhibit A. Licensee shall not operate or allow any person to operate motor vehicles in the Garden without the approval of the Garden Director or his designee. Vendor booths and performance venues shall be located within and around the Japanese Garden according to a pre-approved plan. Licensee shall retain as Licensee's funds all revenue from vendor booths that Licensee receives from each vendor. Plant storage and display areas shall be located in the Licensed Premises in the parking areas of the Conservation Greenhouse and Japanese Garden as depicted in Exhibit A. Licensee shall deliver a plan for the Festival setup to the Director or his designee no later than one week prior to the Festival for City staff to review and comment upon. The City will only provide City staff in support of the Festival if staff are requested by the Licensee at least 24 hours in advance of the Term; however, a member of the Botanic Garden's management staff must be present at all times during the Festival and setup and breakdown of the Festival. Licensee shall not be responsible for the Direct Expenses of the management staff member supervising the activities on behalf of the City but shall be responsible for the Direct Expenses of any other City employees working in support of the Festival, including the Plant Sale conducted as part of the Festival. Licensee shall work with the City to coordinate the dates and times the management staff member needs to be available. All Festival materials, other than plants being sold at the Festival's Plant Sale,must be removed from the Garden property within three days of the Festival unless written approval is provided in advance. All plants sold at the Festival's Plant Sale must be removed within fifteen(15)days after the end of the Festival. On the request of Licensee,City staff may unload,transport and help place plants on the Festival site, assist with the setup and breakdown for the Festival, provide trash removal and other support activities, and act as sales staff assisting with plant sales and answering customer questions. City License Agreement for Conducting the Japanese Festival 2 of 10 Fort Worth Botanical Society,Inc. staff may also maintain plant inventory during the Festival and the approved post-sale holding period. 6. Additional Licensee Responsibility. Licensee is responsible for recruiting, scheduling, and managing all vendors, educational activities, and performers during the Festival. Licensee is responsible to coordinate with GROW staff members in creating and implementing a plan for volunteer support of the Festival not less than six weeks in advance of the event. Licensee is also responsible, in accordance with the terms of the City's agreement with the Botanical Research Institute of Texas,to assure that all Society volunteers have properly registered with and completed required training for the GROW volunteer program in order to work at the Festival. 7. Termination. The City may terminate this Agreement, without cause, upon twenty (20) days written notice to the Licensee or immediately upon a breach of this Agreement by the Licensee. 8. Use not Exclusive. This Agreement and all rights granted to Licensee herein are strictly non- exclusive. The City reserves the right to enter into and grant other and future licenses, leases, and other authorizations for use of the Botanic Garden to other persons and entities as the City deems appropriate in accordance with applicable law. This Agreement does not establish any priority for the use of the Botanic Garden by Licensee or by any present or future licensees or other permit holders. In the event of any dispute as to the priority of use of the Licensed Premises, the first priority shall be to the public generally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees and other permit holders, as determined by the City in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. 9. Liabili . Licensee covenants and agrees to release City, its officers, agents, representatives, servants,and employees,from and against any and all claims or suits for property damage,personal injury, or any other type of loss or adverse consequence arising out of this Agreement or the use and occupancy of the Licensed Premises. Furthermore,City shall not be liable to Licensee for any damage or theft of Licensee's vehicles,equipment,or plants. 10. Restoration of the Botanic Garden. Licensee further agrees that,if during the course of the exercise of its rights under this Agreement, damages result to the Licensed Premises, the Botanic Garden, or City's park facilities,as determined by the Director in his sole and absolute discretion,Licensee shall repair or restore the same to a condition satisfactory to the Director during the term of this Agreement. If Licensee fails to complete all repairs and restoration prior to the expiration of the Term,City may, in its discretion,perform all such repairs and restoration on behalf of the Licensee. In this event, Licensee will reimburse the City for the costs of such repairs and restoration, and such reimbursement will be due immediately upon written request of the City. License Agreement for Conducting the Japanese Festival 3 of 10 Fort Worth Botanical Society,Inc. 11. INDEMNIFICATION. LICENSEE AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, AND ITS OFFICERS, AGENTS, REPRESENTATIVES,AND EMPLOYEES FROMAND AGAINST ANYAND ALL CLAIMS, LAWSUITS,ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCL UDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS, AND PERSONAL INJURY, INCLUDING,BUT NOT LIMITED TO,DEATH, THAT MAYRELATE TO,ARISE OUT OF OR BE OCCASIONED BY(i)LICENSEE'S USE OF THE LICENSED PREMISES AND THE BOTANIC GARDEN, (ii) LICENSEE'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT, OR (iii) ANY ACT OR OMISSION OF LICENSEE OR ITS OFFICERS,AGENTS,REPRESENTATIVES,EMPLOYEES, CONTRACTORS,AND SUBCONTRACTORS, RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR NONPERFORMANCE 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 LICENSEE AND THE CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 12. Compliance with Laws. Licensee shall, at its own cost and expense, comply with all applicable laws, including, but not limited to, existing zoning ordinances, governmental rules and regulations enacted or promulgated by any governmental authority and shall promptly execute and fulfill all orders and requirements imposed by such governmental entities for the correction, prevention and abatement of nuisances in or upon or connected with said premises because of Licensee's use thereof. 13. Insurance. Licensee shall carry insurance as set out in Exhibit B, which is attached hereto and incorporated herein for all purpose. 14. Notice. All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when (i) hand-delivered to the other party, its agent, employee, servant, or representative, or (ii) received by the other party by reliable overnight courier or United States Mail,postage prepaid,return receipt requested,at the address stated below or to such other address as one party may from time to time notify the other in writing. To THE CITY: To LICENSEE: Director Fort Worth Botanical Society, Inc. License Agreement for Conducting the Japanese Festival 4 of 10 Fort Worth Botanical Society,Inc. Park and Recreation Department Attn:Erdie Allsup City of Fort Worth 3220 Rock Springs Rd. 4200 South Freeway, Suite 2200 Fort Worth,Texas 76107 Fort Worth,Texas 76115 With copies to: With a copy to: Department of Law Darren B. Moore City of Fort Worth Bourland,Wall&Wenzel,P.C. Attn: City Attorney 301 Commerce Street, Suite 1500 200 Texas Street Fort Worth,Texas 76102 Fort Worth,Texas 76102 City Manager's Office City of Fort Worth 200 Texas Street Fort Worth,Texas 76102 15. Public Safety. Licensee shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Licensee's use of the Licensed Premises. 16. Hazardous Materials. Under no circumstances will the Licensee use or cause to be used on the Licensed Premises any hazardous or toxic substances or materials, or intentionally or knowingly store or dispose of any such substances or materials on the Licensed Premises. 17. Force Majeure. If either party is unable,either in whole or part,to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state;declaration of a state of disaster or of emergency by the federal,state, county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. If a Force Majeure Event occurs,the City may,in its sole discretion,close or postpone the opening of its community centers, parks,or other City-owned and operated properties and facilities in the interest of public safety and operate them as the City sees fit. 18. Choice of Law, Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. If any action,whether real or asserted,at law or in equity,arises on the basis of any provision of this Agreement,venue for such action shall lie in state courts located License Agreement for Conducting the Japanese Festival 5 of 10 Fort Worth Botanical Society,Inc. in Tarrant County, Texas or the United States District Court for the Northern District of Texas - Fort Worth Division. 19. Binding Effect. The terms and provisions of this Agreement shall inure to the benefit of and be binding upon City and Licensee and their respective successors and assigns and shall be covenants running with the land. 20. Entire Agreement. This Agreement contains all of the agreements between the parties respecting the subject matter hereof, and no prior representations or statements, verbal or written, have been made modifying,adding to,or changing the terms of this instrument. 21. No Waiver of Immunity. Nothing herein shall be deemed to limit or waive the sovereign or governmental immunity of the City. 22. Assi nnment. This Agreement, in whole or in part, is not assignable by either party, without the express written consent of the other party. Any attempt to assign this Agreement without the required consent is void and without force and effect. 23. Charitable Organization. If Licensee as a charitable organization, corporation, entity or individual enterprise, has, claims, or is entitled to any immunity, exemption (statutory or otherwise) or limitation from and against liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, Tex. C.P.R.C., §84.001 et. seq., or other applicable law, then Licensee hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against the City. [SIGNATURES ON FOLLOWING PAGE] License Agreement for Conducting the Japanese Festival 6 of 10 Fort Worth Botanical Society,Inc. By executing this Agreement, Licensee agrees to and accepts the terms, conditions and provision contained herein. This agreement is effective on the dates specified in Section 4 above. CITY OF FORT WORTH: LICENSEE: Fort Worth Botanical Society, Inc. Fernando Costa Erdie Allsup Assistant City Manager President Date:_ / Q //a Date: Recommended.• �QS21)- Q (Q�) ichard Zavala 'rector of Park&Recreation Department APPROVED AS TO FORM&LEGALITY ATTEST: QRT Richard A.McCracken Vary1J.Kayse �c Assistant City Attorney City Secretary �XP7, Contract Authorization: M&C: N/A Form 1295:N/A Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name: Bob Byers Title: Garden Director OFFICIAL RECORD CITY SECRETARY License Agreement for Conducting the Japanese Festival .� �RTFf1F Fort Worth Botanical Society,Inc. / Exhibit A Licensed Premises MM WheekhairAccesalbFlity:Patbns 01 the . grounds are 6mRed in sammAmap is ave+�la �;nw or recommended routes In the lepattese Garden.The Conservatory end buildings are vAcelrhair accessbie. yp 46 BOTANIC MOEN FORT WOnTk { Open daily 8 a.m. Gates are locked at 11 p.m. LIN 6N0A . 11 Ld t*--wt.ti !XlF /t3fiK4i info ' P ✓sP'�. �GSwinfp re " I 17p�lsllL' ry I ;I Weekend Parking Visitor � Ca�BNAfim Grttt4hat�a��4111�ihq 1 trl'- t---Add lienal�iarlritno� '�'1AraF�talAin� ' be nt(A ok Chfr,,1• Gha�tk (�cttlA ona; St Ga�ltc * aru�vrs#Qr wtnt ntcd io it "5UnAd%a.rA ibbt h wo\b' FFwZb on or+t ae two loan'. �Okx% LZ mot 3o +\Aa �5tcuri9u�/�t41�ta tAfttm netek A'o�)t V'V4AuUV( *ern wJIMN 40(tdumitont-1 ' tt3t;on *rv�ywowls w**ptea %bt booictA Japanese Fall Festival 2018—Festiva) Areas License Agreement for Conducting the Japanese Festival 8 of 10 Fort Worth Botanical Society,Inc. Exhibit B Insurance 1.01 Duty to Acquire and Maintain. During the Term of this Agreement, Licensee shall ensure that a policy or policies of insurance are procured and maintained at all times, in full force and effect,to provide coverage of the types and amounts specified herein, naming the City as an additional insured as set forth herein, and covering all public risks related to the use, occupancy, condition, maintenance, existence, or location of the Licensed Premises. The insurance required hereunder may be met by a combination of self- insurance and primary and excess policies. 1.02 Types and Amounts of Coverage Required a. Commercial General Liability: (1) $1,000,000.00 Each Occurrence (2) $2,000,000.00 Aggregate, including coverage for the following: (i) Premises Liability; (ii) independent contractors; (iii) products/completed operations; (iv)personal injury; and(v) contractual liability; b. Property Damage Liability: (1) $1,000,000.00 per occurrence C. Umbrella Policy (1) $3,000,000.00 d. Automobile Liability: (1) $1,000,000.00 Each accident on a combined single-limit basis (2) $1,000,000.00 Aggregate 1.03 Revisions to Required Coverage. At the reasonable recommendation of the City's Risk Manager, the City may at any time revise insurance coverage requirements and limits required by this License. Licensee agrees that within twenty(20) days of receipt of written notice from the City, all such revisions requested by the City will be implemented. The policy or policies of insurance shall be endorsed to provide that no material changes in coverage, including,but not limited to, cancellation,termination, non-renewal, or amendment, shall be made without thirty(30)days' prior written notice to the City. 1.04 Underwriters and Certificates. The insurers for all policies must be licensed and approved to do business in the State of Texas. Except for workers' compensation,all insurers must have a minimum rating of A:VII in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required,prior written approval of the City's Risk Management Division is required. Within ten(10)business days following execution of this License, Licensee shall ensure that City is furnished with certificates of insurance signed by the respective companies as proof that the types and amounts of insurance coverage required herein have been obtained. In addition, Licensee shall, on demand, provide the City with evidence that it has maintained such coverage in full force and effect. License Agreement for Conducting the Japanese Festival 9 of 10 Fort Worth Botanical Society,Inc. 1.05 Deductibles. Deductible or self-insured retention limits on any line of coverage required herein shall not exceed$10,000.00 in the annual aggregate unless the limit per occurrence or per line of coverage, or aggregate is otherwise approved by the City. 1.06 No Limitation of Liability. The insurance requirements set forth in this section and any recovery by the City of any sum by reason of any insurance policy required under this License shall in no way be construed or affected to limit or in any way affect Licensee's liability to the City or other persons as provided by this Agreement or law. 1.07 Umbrella or Excess Liability. If insurance policies are not written for specified coverage limits,an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. 1.08 Additional Insured. The City, its officers, employees and volunteers shall be named as an Additional Insured on the Automobile and Commercial General Liability policies. 1.09 Waiver of Subrogation. The insurance shall include a waiver of rights of recovery (subrogation) in favor of the City of Fort Worth. 1.10 Copies of Policies and Endorsements. City shall be entitled, upon request and without expense,to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms,conditions,limitations,or exclusions in order to comply with the requirements of this Agreement except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 1.11 Certificate of Insurance. Licensee shall submit to the City a certificate of insurance evidencing all required insurance coverage and any applicable endorsements. License Agreement for Conducting the Japanese Festival 10 of 10 Fort Worth Botanical Society,Inc.