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HomeMy WebLinkAboutContract 52856 CSC No.52856 SEP SO 2019 LICENSE AGREEMENT BETWEEN THE FORT WORTH BOTANICAL SOCIETY,INC. AND THE CITY OF FORT WORTH THIS LICENSE AGREEMENT("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 non-profit corporation ("FWBS"), acting by and through its duly authorized President. The City and FWBS are referred to herein individually as a"party"and collectively as the"parties." 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 last agreement being Fort Worth City Secretary Contract ("CSC") Number 32788, as amended and renewed by CSC Nos. 35186, 32788-A2, 32788-A3, and 32788-R1A4, 32788-A5, 32788-A6R2, and 32788-A7R3 ("Prior Agreement"); WHEREAS, on November 15, 2017, 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, on January 23, 2018, the City Council approved the execution of an amendment to the agreement between the City and FWBS to address the transfer of funds by FWBS to the City, the deposit of future revenue with the City, establishment of the City's responsibility for repairs required under the sublease between the FWBS and the food service vendor, and authorizing separate agreements for special events in the Botanic Garden (M&C C- 28533 Revised),which resulted in the execution of CSC No. 32788-A6R2; WHEREAS, the Prior Agreement expires on March 31, 2019, and the City and FWBS desire to enter into a new agreement; WHEREAS, on November 13, 2018, the City Council approved the recommendations of the Botanic Garden Task Force to, in part, implement entrance fees and create membership programs at the Botanic Garden and explore governance by a non-profit entity(M&C G-19422); �Fd 'CORD License Agreement Between the Fort Worth Botanic Society,Inc. Page 1 of 16 and the City of Fort Worth >-TARY WHEREAS,the City and FWBS desire to enter into a new agreement to allow the FWBS to continue to use space in the Botanic Garden and address the impact of the implementation of entrance fees and membership programs at the Botanic Garden; NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the sufficiency of which is hereby acknowledged,the City and FWBS hereby agree as follows: SECTION 1. LICENSED GRANTED 1.01 Licensed Premises. The City grants to the FWBS a non-exclusive license for the purposes stated herein,to use the following areas within the Rock Springs Building at the Botanic Garden: (a) certain designated office space ("Office Space"); (b) a portion of the Triplex for the purposes of storage("Triplex"); (c) the board room("Board Room"); and (d) the library("Library") 1.02 Collectively, the Office Space, Triplex, Board Room and Library are collectively referred to in this Agreement as the "Licensed Premises" and are set forth in more detail in Exhibit "A" which is attached hereto and incorporated herein for all purposes. 1.03 At all times during the term of this Agreement, the Licensed Premises shall remain under the control of the City, and FWBS shall not be responsible for any maintenance of the Licensed Premises. FWBS shall not have access to the City computing environment or network. City shall not be responsible for providing any supplies or equipment to FWBS for the Licensed Premises. 1.04 The City will be responsible for all expenses associated with water, sewer, electricity, gas and waste disposal utilities involving existing service lines for the;Licensed Premises. FWBS will be responsible for all other communication systems, utility expenses, including local and long distance telephone charges, computer charges, and cable television charges. Any additional electrical or utility service or service lines required by FWBS will be at the sole expense of FWBS. 1.05 FWBS may use the Office Space and the Triplex at all times during this Agreement. FWBS must reserve use of the Board Room and the Library by contacting City staff at the Botanic Garden in advance. SECTION 2. TERM AND TERMINATION 2.01 Primary Term. This Agreement shall be binding on the date of execution by the parties and effective beginning on April 1,2019("Effective Date")and shall remain in effect until October 31,2019 unless terminated earlier as provided herein("Primary Term"). License Agreement Between the Fort Worth Botanic Society,Inc. Page 2 of 16 and the City of Fort Worth 2.02 Renewal Term. This Agreement may be renewed upon mutual written agreement of the parties for two six-month renewal periods under the same terms and conditions (each a"Renewal Term"). 2.03 Termination for Convenience. Either party may terminate this Agreement,with or without cause, by providing thirty(30) days' written notice to the other party. 2.04 Termination for Cause. FWBS shall be in default under this Agreement if FWBS breaches any term or condition of this Agreement and such breach remains uncured after thirty(30)calendar days following receipt of written notice from the City referencing this Agreement (or, if FWBS has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith). 2.05 Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement pursuant to this Section following (i) delivery by the City of written notice of the City's intention to terminate or(ii)the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. 2.06 FWBS's Duties Upon Expiration or Early Termination.In addition to any other obligations in this Agreement, prior to the effective date for expiration or termination of this Agreement, FWBS shall promptly remove all of its personal property from the Licensed Premises; provided, however,FWBS shall not be obligated to remove any fixtures. FWBS shall also repair any FWBS- caused damage to the Licensed Premises and Botanic Garden, including, but not limited to, any damage that FWBS causes during removal of its property, to the reasonable satisfaction of the Director of the Park and Recreation Department or that person's authorized designee("Director"). If FWBS fails to comply with its obligations in this Section, City may, at its sole discretion, (i) remove FWBS's personal property and otherwise repair the Licensed Premises and Botanic Garden and invoice FWBS for City's costs and expenses incurred, such invoice to be due and payable to City within thirty(30) calendar days of its delivery to FWBS; or(ii) following no less than thirty (30) calendar days prior written notice to FWBS, take and hold any FWBS personal property as City's sole property; or(iii)pursue any remedy at law or in equity available to City. If FWBS fails to surrender the Licensed Premises to City following termination or expiration, all liabilities and obligations of this Agreement shall continue in effect until such is surrendered. 2.07 Remedies. Any termination of this Agreement will not relieve FWBS from paying or transferring any sum or sums due and payable to City under this Agreement that remains unpaid and due at the time of termination, or any claim for damages then or previously accruing against FWBS under this Agreement. Any such termination will not prevent City from enforcing the payment or transfer of any such sum or sums or claim for damages by any remedy provided for by law, or from recovering damages from FWBS for any default under the Agreement. All City's rights, options, and remedies under this Agreement will be construed to be cumulative, and not one of them is exclusive of the other. City may pursue any or all such remedies or any other License Agreement Between the Fort Worth Botanic Society,Inc. Page 3 of 16 and the City of Fort Worth remedy or relief provided by law, whether or not stated in this Agreement. No such termination shall relieve City from any obligation it may have to FWBS hereunder and City may pursue any and all rights and remedies or relief provided by law, whether or not stated in this Agreement. SECTION 3. CONSIDERATION 3.01 In consideration of the benefits the members of the FWBS provide to the Botanic Garden, including but not limited to,volunteering at the Botanic Garden and funding improvements to the Botanic Garden,the FWBS shall not be required pay a license fee for use of the Licensed Premises. SECTION 4. MEMBERSHIP 4.01 Annual memberships to the FWBS issued before April 1, 2019 will receive free entrance to the Botanic Garden until March 30, 2020. Annual memberships to the FWBS issued after April 1,2019 will not receive free entrance to the Botanic Garden. The City's membership program for the Botanic Garden shall be the membership program that may be honored by the American Horticultural Society's reciprocal garden visitation privileges program. On April 1, 2019, membership in the FWBS will no longer be recognized by the American Horticultural Society's reciprocal garden visitation privileges program. Lifetime memberships in the FWBS issued before April 1,2017will be honored by the City for free admittance to the Botanic Garden until the death of the holder of the lifetime membership. SECTION 5. SPECIAL EVENTS AT THE BOTANIC GARDEN 5.01 The City will manage all special events at the Botanic Garden that were historically managed by the FWBS, including the Plant Sale, Japanese Festival, Art in the Garden, and Butterflies in the Garden. Members of the FWBS may volunteer to assist with the special events or provide their extensive knowledge of the events. SECTION 6. VOLUNTEERS 6.01 Members of the FWBS who choose to volunteer at the Botanic Garden must become registered with, and will be overseen by, the GROW program which is managed for the City by the Botanical Research Institute of Texas. SECTION 7. FACILITIES AND IMPROVEMENTS 7.01 The FWBS may provide for alterations to or restorations of existing facilities or structures at the Botanic Garden with the prior written approval of the Director. If the Botanic Garden is managed by a non-profit entity during this Agreement, the FWBS agrees to renegotiate section 7 License Agreement Between the Fort Worth Botanic Society,Inc. Page 4 of 16 and the City of Fort Worth of this Agreement with the non-profit management entity, or the City, as applicable. The FWBS shall cooperate with the City in the management of any construction of the alterations and restorations. City and FWBS agree that FWBS will perform all construction(i)in accordance with a set of plans and specifications pre-approved by the 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 workmanlike manner; and(iv) in accordance with industry standards of care, skill, and diligence. 7.02 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 FWBS 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, or (ii) an 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 FWBS or any of its contractors, and their officers, agents, employees and subcontractors. The City shall own the final plans and specifications used for construction. 7.03 FWBS may authorize a third party contractor to undertake all or any portion of any construction(a"Third Party Contractor')provided that FWBS 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 FWBS,and their officers,agents,servants and employees; (ii)a requirement that the Third Party Contractor provide FWBS with a bond or bonds,which FWBS 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." 7.04 IF FWBS ENTERS INTO ANY THIRD PARTY CONTRACT FOR CONSTRUCTION OF ANY PUBLIC 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 OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY License Agreement Between the Fort Worth Botanic Society,Inc. Page 5 of 16 and the City of Fort Worth AND ALL PERSONS, OF ANY HIND 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 FWBS,AT FWBS'S OWN EXPENSE,SHALL INDEMNIFY,DEFEND(WITH COUNSEL REASONABLY ACCEPTABLE TO THE INDEMNIFIED PARTIES HEREIN) 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. 7.05 City shall retain ownership of buildings,fixtures,and all attached furnishings. 7.06 The title to any building or improvements constructed at the Botanic Garden under this Agreement shall, at all times, be vested in the City. 7.07 To the extent allowed by law, the City hereby waives a construction-related permit fees for construction projects that relate to the construction rights gr ted to the FWBS pursuant to this Agreement. SECTION 8. LIENS 8.01 The FWBS 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 FWBS, 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 FWBS fail to discharge the same,such failure shall constitute a breach of contract. SECTION 9. RIGHT TO AUDIT 9.01 FWBS 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 FWBS involving transactions relating to this Agreement ("Audit Documents"). The FWBS agrees that the City shall have access during normal working hours to all necessary FWBS 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 FWBS reasonable advance notice of intended audits including the purpose of the audit and the documents the City believes to be directly pertinent. License Agreement Between the Fort Worth Botanic Society,Inc. Page 6 of 16 and the City of Fort Worth 9.02 FWBS 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 all Audit Document of such contractor or subcontractor involving, and further that City 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. SECTION 10. INDEPENDENT CONTRACTOR 10.01 It is expressly understood and agreed that FWBS shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. FWBS shall have the exclusive right to control all details and day-to-day operations relative to the activities under this Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. FWBS acknowledges that the doctrine of respondeat superior will not apply as between City and FWBS, its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between City and FWBS. 10.02 City and the FWBS mutually agree that City, acting by and through its City Manager and Director, reserves the sole and exclusive right to exercise jurisdiction and control over all of the employees of the Botanic Garden excepting those volunteers and employees of the FWBS. Save and except such persons, all persons employed by the City at the Botanic Garden shall be the employees of the City, including, but not limited to, those funded by the FWBS, and the FWBS will not in any way directly supplement the salaries or compensation received by employees of the City. SECTION 11. CARE OF THE PREMISES AND BOTANIC GARDEN 11.01 FWBS covenants and agrees that it shall take the Premises and Botanic Garden as it finds it. FWBS further covenants and agrees that it will leave the Botanic Garden in as similar to or better condition than that which exists prior to the FWBS's use. The FWBS covenants and agrees that FWBS will not do, or permit to be done, any injury or damage to any of said Botanic Garden or suffer any waste to the Botanic Garden. FWBS shall keep and maintain the Botanic Garden in a good, clean, and sanitary condition at all times while using said properties. 11.02 Subject to ordinary wear and tear, FWBS will pay the costs of repairing any damage that may be done to the Premises or Botanic Garden, or any of the fixtures, furniture, or furnishings by any act of FWBS or FWBS's officers,representatives,servants,employees,agents,subcontractors, or subleassees acting in such capacity. The Director shall determine whether any damage has been done,the amount of the damage,the reasonable costs of repairing the damage,and whether FWBS is responsible. The Director shall make the assessment in the presence of a representative from License Agreement Between the Fort Worth Botanic Society,Inc. Page 7 of 16 and the City of Fort Worth FWBS. The Director shall be the sole judge of the damage to the Premises and Botanic Garden, in which judgment shall be exercised reasonably. Any damage by FWBS shall be repaired or replaced by FWBS to the reasonable satisfaction of the Director within thirty (30) calendar days after the City sends written notice of such damage or within such time as agreed to otherwise by the parties in writing. If the FWBS fails to remedy the damages in the time set forth above, then the FWBS agrees to reimburse the City for any costs incurred by the City in repairing or replacing such damage, with any such amount to be due and payable to the City within thirty(30) calendar days after the City sends a written invoice to the FWBS detailing such costs. SECTION 12. ASSIGNMENT 12.01 FWBS agrees that it shall not assign any rights or interests obtained under this Agreement, or any part thereof,without first obtaining written consent of the City. Any attempted assignment without the prior written consent of City shall be void. SECTION 13. RIGHT OF ACCESS 13.01 At all times during the term of this Agreement,City shall have the right,through its agents and representatives, to enter into and upon the Botanic Garden (luring reasonable business hours for the purpose of examining and inspecting the same and determining whether FWBS shall have complied with all of its obligations hereunder in respect to the use of the Botanic Garden. During any inspection, City may perform any obligations that City is authorized or required to perform under the terms of this Agreement or pursuant to its governmental duties under federal, state, or local laws,rules, or regulations. SECTION 14. COMPLIANCE WITH LAW 14.01 FWBS covenants and agrees that it shall not engage in any unlawful use of the Botanic Garden. FWBS further agrees that it shall not permit its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees, or invitees to engage in any unlawful use of the Botanic Garden, and FWBS immediately shall remove from the Licensed Premises any person engaging in such unlawful activities. Unlawful use of the Botanic Garden by the FWBS itself shall constitute an immediate breach of this Agreement. 14.02 FWBS will comply with all federal,state and local laws,statutes and all ordinances,charter provisions, rules and regulations of City; including all rules,regulations, and requirements of the City of Fort Worth Police and Fire Departments; and any and all requirements specifically made by the City of Fort Worth Fire Marshal in connection with this Agreement. Nothing contained in this Agreement shall be construed as prohibiting future City Councils from allocating, appropriating, administrating, or expending any funds that are the subject of this Agreement as it may deem appropriate. License Agreement Between the Fort Worth Botanic Society,Inc. Page S of 16 and the City of Fort Worth 14.03 FWBS shall,at its sole expense,obtain and keep in effect all licenses and permits necessary for its operations. SECTION 15. LIABILITY AND INDEMNIFICATION 15.01 FWBS agrees to forever release and waive all claims against the City, its departments, officers, agents, employees, and representatives for any and all claims, lawsuits, damages, and liabilities, including, but not limited to, personal injury (including, but not limited to, death) and property damage or loss, from any act or omission of the FWBS, its employees, officers, agents, representatives, and volunteers in connection with this Agreement. 15.02 INDEMNIFICATION. FWBS AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY AND HOLD HARMELSS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, REPRESENTATIVES, AND EMPLOYEES FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY HIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) OR PERSONAL INJURY(INCLUDING, BUT NOT LIMITED TO, DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (i) FWBS'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY ACT OR OMISSION OF THE FWBS, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, VOLUNTEERS, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS, RELATED TO USE OF THE BOTANIC GARDEN ON BEHALF OF FWBS OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH THE FWBS AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 15.03 Intellectual Property. FWBS agrees to assume full responsibility for complying with all State and Federal Copyright Laws, including, but not limited to, the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.) and any other regulations associated therewith, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of copyrighted works in FWBS's performances, events, or exhibitions to the copyright owner or representative of said copyright owner. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize,permit, or condone the performance, reproduction, or other use of copyrighted materials by FWBS or its officers, agents, servants, representatives, subcontractors, invitees, or licensees without the appropriate licenses or permission being secured by FWBS in advance. In addition to any other indemnification obligations set forth herein, FWBS AGREES TO AND DOES HEREBY RELEASE,DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CITY FOR, FROM, AND AGAINST ANY AND ALL CLAIMS, LOSSES, License Agreement Between the Fort Worth Botanic Society,Inc. Page 9 of 16 and the City of Fort Worth DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND NONPAYMENT TO LICENSING AGENCIES, INCLUDING, BUT NOT LIMITED TO, ASCAP, BMI, AND SESAC, ARISING OUT OF OR RELATED TO FWBS'S INFRINGEMENT OR VIOLATION OF ANY COPYRIGHT LAWS OR REGULATIONS. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of the Licensee. FWBS understands that it is responsible for securing any and all licenses by artists and performers giving permission for the recordings. FWBS is responsible for both reporting and payment of any music licensing fees that may be required by law. FWBS understands and agrees that without the proper license obtained by FWBS, there is a risk of an injunction or money damages arising from a copyright lawsuit brought by ASCAP, BMI, SESAC or any other licensing agency. If FWB S and City co-sponsor an event,compliance with intellectual property law will be the responsibility of the City, under its existing licenses; however, FWBS agrees to comply with the terms of the City's current ASCAP, BMI, SESAC, or other applicable license. 15.04 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligations under this Section, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified,the indemnification obligation shall continue in full force and effect. 15.05 FWBS agrees to notify City promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death, or damages on the Premises or Botanic Garden. FWBS agrees to make its officers, representatives, agents, employees, contractors, and available to City, at all reasonable times, for any statements and case preparation necessary for the defense of any claims or litigation for which City may be responsible hereunder. FWBS shall place language in its contracts with contractors, subcontractors, and subleassees that they shall notify City as required by FWBS in this subsection. SECTION 16. INSURANCE REQUIREMENTS 16.01 During the term of this Agreement, FWBS shall procure and maintain at all times, in full force and effect, a policy or policies of insurance that provide the specific coverage set forth below as well as any additional coverage that a reasonable person would obtain to cover any and all other public risks related to FWBS's performance of its obligations under this Agreement. FWBS shall specifically obtain the following types of insurance at the following limits and subject to the additional requirements listed below. a. Commercial General Liability (required throughout term of Agreement and any renewals thereof): i. $1,000,000.00 Each Occurrence ii. $2,000,000.00 Aggregate License Agreement Between the Fort Worth Botanic Society,Inc. Page 10 of 16 and the City of Fort Worth b. Excess or Umbrella Policy i. $3,000,000.00 C. Liquor Liability i. $1,000,000.00 d. Automobile Liability i. $1,000,000 each accident on a combined single-limit basis, or ii. $1,000,000 Aggregate iii. Insurance policy shall be endorsed to cover "Any Auto", defined as autos owned, hired, and non-owned. iv. Pending availability of the above coverage and at the discretion of City,the policy shall be the primary responding insurance policy versus a personal auto insurance policy if or when in the course of FWBS's business as contracted herein. e. Worker's Compensation i. Statutory requirements 16.02 All insurance required under this Agreement must comply with the following general requirements: a. The City's Risk Manager shall have the right to review and evaluate all required insurance coverage and to make reasonable requests or revisions pertaining to the types and limits of that coverage. FWBS and its subcontractors shall comply with such requests or revisions as a condition precedent to the effectiveness of this Agreement. b. Each insurance policy shall be endorsed to provide the City a minimum thirty (30) days' notice of cancellation, non-renewal, or material change in policy terms or coverage,provided,however,that a ten day notice shall be acceptable in the event of cancellation for non-payment of premium. C. The City,its officers,employees,representatives,and servants shall be endorsed as an additional insured on all insurance policies required under this Agreement. d. All insurance policies required under this Agreement shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. e. FWBS's insurance policies shall each be endorsed to provide that such insurance is primary protection and that any self-funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. f. On the request of City,FWBS shall provide complete copies of all insurance policies required by this Agreement. Current and revised certificates of insurance shall be delivered to the Risk Management Division of the City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102 with a copy to the Botanic Garden, at the Botanic Garden office. g. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. License Agreement Between the Fort Worth Botanic Society,Inc. Page 11 of 16 and the City of Fort Worth h. Insurers must be authorized to do business in the State of Texas and have a current A. M.Best rating of A VII or equivalent measure of financial strength and solvency. i. Deductible limits, or self-funded retention limits, on each policy must not exceed $10,000.00 per occurrence unless otherwise approved by the City. j. The City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups in lieu of traditional insurance. Prior to employing such alternative coverage,the FWBS must obtain City's written approval. k. City shall not be responsible for the direct payment of insurance premium costs for FWBS's insurance. FWBS may be required to provide proof of insurance premium payments. 1. During any term of this Agreement, FWBS shall report to the Risk Management Division in a timely manner any loss occurrence that could give rise to a liability claim or lawsuit or that could result in a property loss. M. FWBS's liability shall not be limited to the specified amounts of insurance required herein. SECTION 17. CHARITABLE ORGANIZATION 17.01 If FWBS, 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 FWBS hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. The FWBS shall annually provide the City with a copy of the IRS Form 990 or other document that the FWBS submits to the Internal Revenue Service to maintain its status as a 501(c)(3)entity within thirty(30)days of filing same; such documentation shall be provided to the City at the address specified below under Notices. SECTION 18. NO WAIVER 18.01 The failure to insist upon strict performance of any of the covenants or agreements herein set forth or to declare forfeiture for any violation thereof shall not be considered or taken as a waiver or relinquishment for the future of City's rights to insist upon strict compliance by FWBS with all the covenants and conditions. SECTION 19. FORCE MAJEURE 19.01 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 emergency by the federal, state, county, or City government in accordance with applicable law: issuance of an Imminent Threat License Agreement Between the Fort Worth Botanic Society,Inc. Page 12 of 16 and the City of Fort Worth 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. FWBS hereby waives any claims it may have against the City for damages resulting from any such Force Majeure Event. SECTION 20. SECTION HEADINGS 20.01 The headings in this Agreement are inserted for reference only,and shall not define or limit the provisions hereof. SECTION 21. SEVERABILITY 21.01 In the event that any clause or provision of this Agreement shall be held to be invalid by any court or competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. SECTION 22. NOTICES 22.01 All notices required or permitted under this Agreement may be given to a party personally or by mail,addressed to such party at the address stated below or to such other address as one party may from time to time notify the other in writing. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: City: Director Park and Recreation Department 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115-1499 With a copy to: City Attorney City Attorney's Office 200 Texas Street Fort Worth, Texas 76102 FWBS President Fort Worth Botanical Society License Agreement Between the Fort Worth Botanic Society,Inc. Page 13 of 16 and the City of Fort Worth 3220 Botanic Garden Drive Fort Worth, Texas 76107 Or to such other address as said parties may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. SECTION 23. ENTIRE UNDERSTANDING 23.01 This Agreement expresses the entire understanding and all agreements of the parties hereto with each other, and neither party hereto has made or shall be bound by any agreement or any representation to the other party which is not expressly set forth in this Agreement. SECTION 24. VENUE AND CHOICE OF LAW 24.01 This Agreement shall be governed and construed according to the laws of the State of Texas. Should any action,whether real or asserted, at law or in equity, arise out of the execution, performance, or attempted performance of this Agreement, venue for said action shall lie in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas -Fort Worth Division. SECTION 25. POWERS AND IMMUNITIES 25.01 It is understood that by execution of this Agreement,C'L(-,:does not waive or surrender any of its governmental powers or immunities. SECTION 26. AMENDMENT 26.01 This Agreement cannot be modified or amended without the written consent of all parties hereto, and said amendment attached and made a part of this Agreement. SECTION 27. EXECUTION 27.01 This Agreement may be executed in multiple counterparts, each of which will be deemed an original,but which together will constitute one instrument. [SIGNATURES ON FOLLOWING PALE] License Agreement Between the Fort Worth Botanic Society,Inc. Page 14 of 16 and the City of Fort Worth IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below, to be effective upon the date set forth in Section 2. CITY OF FORT WORTH FORT WORTH BOTANICAL SOCIETY, INC. Dana Sur h o _ -- By: Dana Burghdoff ep 27,201 By: Dana Burghdoff Erdie Allsup Interim Assistant City Manager President Date: Sep 27,2019 Date: Sep 24, 2019 Recommended by: David Creek(Sep 27,2019) David Creek,Acting Director Park&Recreation Department APPROVED AS TO FORM AND LEGALITY: Rev A, M,�er4 Ric nard A.McCracken(Sep 27,2019) Richard A.McCracken Sr.Assistant City Attorney ATTEST: �ORT'w U 2 Mary J.Kayser * :' City Secretary M Authorization: M&C: C-29133 (5/21/19) Form 1295: 2019-484995 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. Raberf D. Byers Robert D.Byers(Sep 18,2019) Bob Byers Director,Fort Worth Botanic Garden OFFICIAL RECORD License Agreement Between the Fort Worth Botanic Society,Inc. C%a eWfJARY and the City of Fort Worth FT. WORTH,TX EXHIBIT A LICENSED PREMISES Licensed Premises highlighted in red. FRAGRANCE GARDEN Library Office Front Half of Storage Boardroom GPrrrvio J5 LDING 1 Fort Worth Botanic Garden Spaces CAFE Used by Fort Worth Botanical Society DECK 2019 (Not to Scale) License Agreement Between the Fort Worth Botanic Society,Inc. Page 16 of 16 and the City of Fort Worth 9/30/2019 M&C Review Official site of the City of Fort Worth,Teas CITY COUNCIL AGENDA FORT ORTH COUNCIL ACTION: Approved on 5/2 112 0 1 9 DATE: 5/21/2019REFERENCE C-29133 LOG NAME: 80FWBGSUPPORTGROUPLICENSE NO.: CODE: C TYPE: NOW PUBLIC NO CONSENT HEARING: SUBJECT: Authorize Execution of License Agreements with the Fort Worth Garden Club and Fort Worth Botanical Society, Inc.,for Certain Areas within the Fort Worth Botanic Garden and to make Improvements to the Botanic Garden;Authorize Waiver of Construction-Related Permit Fees for Improvements Made by the Fort Worth Garden Club and the Fort Worth Botanical Society,Inc.;Authorize Amendment to Management Services Agreement with the Botanical Research Institute of Texas, Inc.,in the Amount of$88,282.00 and Twenty-Five Percent of Net Membership Revenues for Management of a Joint GROW Membership Program for the Botanic Garden with Authority to Name Membership Levels, Increase Memberships Benefits,and Increase the Cost of Memberships;Approve Transfer of Botanical Society Membership Privileges to GROW Memberships;Approve Waiver of Fees for Increased Benefits for GROW Memberships (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council: 1.Authorize execution of a License Agreement with the Fort Worth Garden Club for the use of certain areas within the Deborah Beggs Moncrief Garden Center and to make improvements to the Botanic Garden; 2.Authorize execution of a License Agreement with the Fort Worth Botanical Society, Inc.,for use of certain areas within the Rock Springs Building and to make improvements to the Botanic Garden; 3.Authorize a waiver of construction-related permit fees for improvements made by the Fort Worth Garden Club and the Fort Worth Botanical Society,Inc.at the Botanic Garden; 4.Authorize an amendment to the management services agreement with the Botanical Research Institute of Texas,Inc.,in the amount of$88,282.00 and twenty-five percent of net membership revenues for management of a joint GROW Membership Program for the Botanic Garden with authority to name membership levels;increase memberships benefits,and increase the cost of memberships; 5.Approve transfer of Botanical Society membership privileges to the GROW Membership;and 6.Approve waiver of fees necessary for providing increased benefits to holders of GROW Memberships. DISCUSSION: The purpose of this M&C is to execute agreements with support groups and campus partners in continuance of the City Council approved Fort Worth Botanic Garden Strategic Plan. On November 15,2016,the City Council authorized the acceptance of the Fort Worth Botanic Garden Strategic Plan and referred it to the City Manager and Staff to develop strategies and polices for the implementation of the strategic plan(Plan)(M&C G-18885).The Plan established several key goals, including the reorganization of support groups and the increase of private support for the Fort Worth Botanic Garden(FWBG).The reorganization process took place in two phases—(1)implementing actions for realigning governance and existing financial resources and(2)realigning governance structure in anticipation that a single entity may serve as the future sole support organization for the FWBG to promote and manage membership and conduct fundraising. License Agreements including construction-related fee waivers The Fort Worth Garden Club(FWGC)and Fort Worth Botanic Society,Inc.(FWBS)are long-standing support groups of the FWBG and have significantly contributed to its success over the past 85 and 40 years,respectively.The City,FWGC,and FWBS wish to continue these relationships under the new management structure as established by Council.As those changes were anticipated when Council authorized current agreements,the current FWGC and FWBS contracts were set to terminate on April 1,2019.This M&C requests execution of new license agreements for use of facilities at the Botanic Garden and for support group funded projects to the Botanic Garden. Both license agreements authorize a waiver of construction-related permit fees.Permit fee waivers for any future improvements by the FWGC and FWBS are appropriate because they further the public purpose of improving City-owned property with privately-donated funds.Adequate controls are in place to ensure that this public purpose will be carried out under the terms and conditions of the Agreements,which require that all improvements undertaken by or on behalf of the FWGC or FWBS must receive advance written approval from the Park&Recreation Department and comply with all requirements set forth in the Agreements.Article III,§7-47,Section 109.2.1 of the City Code, provides that work by non-City personnel on property under the control of the City of Fort Worth shall be exempt from permit fees if the work is for an action under a contract that will be or has been approved by the City Council. Fort Worth Garden Club On March 28,2017,the City Council approved M&C C-28165,that authorized the City Manager to apps.cfwnet.org/council_packet/mc_review.asp?I D=26998&councildate=5/21/2019 1/3 9/30/2019 M&C Review enter into an amended and restated agreement that allowed FWGC to retain special fund balances to be expended for the benefit of the FWBG and retain use of Garden spaces for an office,meetings, and events.Management of all city revenues were transferred to the city.The primary one-year term and two six-months renewal options have expired and the City and FWGC wish to continue this contractual relationship. There are no significant changes to the key terms of the proposed New License Agreement.All funds remaining in the FWGC's special fund as a result of the prior agreements must be used and expended for the benefit of the FWBG.The primary term of this Agreement will expire on October 1, 2019,and will include two optional six month renewals. Fort Worth Botanical Society. On March 28,2017,the City Council approved M&C C-28165,that authorized the City Manager to enter into an amended and restated agreement that allowed FWBS to retain special fund balances to be expended for the benefit of FWBG and retain use of Garden spaces for an office,meetings,and events. On September 30,2017,the FWBS transferred all funds held by FWBS pursuant to the agreement to a Special Revenue Fund created by the City.On January 23,2019,the City Council approved M&C C-28533(Revised)that authorized an amendment to the agreement providing for all future revenue at the Botanic Garden generated by the FWBS pursuant to the agreement to be deposited in the City's Special Revenue Fund and addressing special events at the Botanic Garden conducted by the FWBS.Management of the Gardens Restaurant remained with the FWBS.The primary one-year term and two six-month renewal options have expired and the City and FWBS wish to continue this contractual relationship. The primary change in the revised agreement is that FWBS will no longer manage the restaurant in the Rock Springs Building. The primary term of this Agreement will expire on October 1,2019,and will include two optional six month renewals.The FWBS will continue to fund one staff position for maintenance of the Victor and Cleyone Tinsley Garden at Rock Springs under the FWBS's separate agreement for management of the John Tinsley Trust. Membership On October 10,2017,the City Council approved M&C C-28427 authorizing a contract with the Botanical Research Institute of Texas,Inc.,(BRIT)to manage and coordinate education and volunteer programs at the Fort Worth Botanic Garden(City Secretary Contract No.49874). On November 13,2018 City Council approved M&C G-19422 approving the Botanic Garden Strategic Plan Task Force recommendations to establish general admission fees,membership fees,and a financial accessibility program for the FWBG,and authorize city staff to pursue management of the FWBG by a non-profit organization. Additionally,on March 5,2019 staff presented Informal Report No. 10247,Joint Botanic Garden Membership with BRIT.The report provided details on implementation of a joint membership through amendment of the existing GROW Collaborative Agreement for education and volunteer management services between the city and BRIT.This creates a new program providing membership privileges to the Botanic Garden. In order to facilitate the management of the membership program,an amendment is recommended to authorize BRIT to exercise additional rights. The proposed amendment to the agreement would continue BRIT's authority to manage the new joint GROW Membership Program for the Botanic Garden,including marketing for the membership program in an annual amount of$88,282.00. BRIT also retains twenty-five percent of annual net revenue from the membership program and transfer seventy-five percent of the annual net revenue to the City.By approval of this M&C,the amendment authorizes the City Manager or their designee the authority to negotiate the revenue sharing percentages on an annual basis and execute amendments to the agreement to adjust those percentages. In addition,the amendment authorizes the payment in the amount of$88,282.00 to be increased annually by three percent(3%)or increases in the Consumer Price Index,whichever is greater. The GROW Membership would follow the membership fees established by the City Council on November 13,2018 in M&C G-19422: a. Individual,one named adult$50.00 b.Family,2 named adults and all children less than 18 years in household$100.00 c.Lone Star Family$30.00 d.Dual,two named adults$80.00 e.Contributing,family plus one additional adult per visit$200.00 f.Supporting,family plus two additional adults per visit$500.00 g.Sponsor,family plus two adults per visit and two event tickets$1,000.00 The amendment also authorizes BRIT to: (1)increase the membership fees in an amount that does not exceed the annual increase in the Consumer Price Index,subject to approval by the City Manager or the City Manager's designee; (2)name each of the membership fee levels for marketing purposes;and (3)increase the benefits provided to membership holders,such as discounts to special events or merchandise at the FWBG,subject to approval by the City Manager or the City Manager's designee. The increase in benefits for membership holders may require a waiver of fees established by the City Council. An example may be discount levels at the gift shop. The waiver of fees is appropriate because it furthers the public purpose of increasing membership and revenue generated at the FWBG.Adequate contractual controls are in place to ensure that this public purpose is met. Membership services have historically been provided through FWBS and not directly by the FWBG. Approval is requested for the new membership program to honor FWBS memberships sold apps.cfwnet.org/council_packet/mc_review.asp?I D=26998&councildate=5/21/2019 2/3 9/30/2019 M&C Review before April 1,2019 and lifetime FWBS memberships sold before April 1,2017 for FWBG admission, applicable member discounts,and visitation privileges at other gardens participating in the American Horticultural Society's Reciprocal Garden Membership Program.Holders of FWBS membership would be required to convert their membership to a GROW Membership by May 1,2020. The Fort Worth Botanic Garden is located in COUNCIL DISTRICT 7 and serves the entire City of Fort Worth. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that this action has no financial impacts on the Botanic Garden Special Revenue Fund. TO _ Fund Department Account Project Program Activity Budget Reference# Amount i ID ID Year (Chartfield 2) FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 Submitted for City Manager's Office by_ Susan Alanis(8180) Originating Department Head: David Creek(5704) Additional Information Contact: Sandra Youngblood(5704) ATTACHMENTS BRIT Form 1295.pdf FWBS Form 1295.pdf FWGC Form 1295.pdf apps.cfwnet.org/council_packet/mc_review.asp?I D=26998&councildate=5/21/2019 3/3