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Contract 54201
CSC No. 54201 11 v .MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN G\��y6��Rv�PF,I BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. This MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN ("Agreement") is made and entered into by and between the CITY OF FORT WORTH("City"),a home-rule municipal corporation of the State of Texas,acting by and through its duly authorized Assistant City Manager, and the BOTANICAL RESEARCH INSTITUTE OF TEXAS INC. ("BRIT"), a Texas non-profit corporation acting by and through its duly authorized representative,each individually referred to herein as a"party"and collectively referred to herein as the "parties." WHEREAS, the City owns a tract of land for the benefit of the public known as the Fort Worth Botanic Garden("Botanic Garden"); and WHEREAS,the Botanic Garden was founded in 1934 by the City as the first public garden in Texas; and WHEREAS, BRIT was founded in 1987 as a non-profit international research and education center that studies plants and preserves a significant historical botanical collection; and WHEREAS,the City Council finds that BRIT has provided significant financial and other benefits to the Botanic Garden, including, but not limited to, construction of the LEED Platinum building and associated site improvements valued at over $23,000,000 to provide scientific research of international importance and numerous educational and public services programs; and WHEREAS, the City Council further finds that in recognition of their common interest and mission in the areas of horticulture,botanical science,biodiversity conservation,sustainability, and support of volunteer activities, the City and BRIT previously entered into a cooperative agreement for BRIT to provide management of education, volunteer, marketing, admissions, and administrative operations at the Botanic Garden (City Secretary Contract Number 49874, as amended), which has provided significant financial and other benefits to the Botanic Garden; and WHEREAS,the Botanic Garden Task Force recommended that the City Council consider management of the Botanic Garden by a non-profit entity; and WHEREAS, the City and BRIT desire to enter into an agreement for BRIT to manage all operations at the Botanic Garden in order for the Botanic Garden to be transformed into a world- class facility; and WHEREAS,the City Council finds that the payments to BRIT under this Agreement serve a public purpose and sufficient controls are in place to ensure that the public purpose is carried out; MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page I of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. NOW, THEREFORE, in consideration of the mutual promises and benefits stated herein and other good and valuable consideration,the City and BRIT mutually agree as follows: I. BOTANIC GARDEN 1.1 The boundaries of the Botanic Garden are set forth in Exhibit"A"which is attached hereto and incorporated herein by reference. 1.2 A tract of land adjacent to the Botanic Garden, which is more specifically depicted in Exhibit "A," is leased by the City to BRIT Landowner, a separate Texas non-profit corporation, City Secretary Contract Number 31471 ("BRIT Lease"), and such tract of land is subleased by BRIT Landowner to BRIT. The boundaries of the BRIT Lease are specifically excluded from the definition of the Botanic Garden and this Agreement shall not apply to the BRIT Lease or the property contained within the BRIT Lease. 1.3 The City and BRIT entered into a Shared Use Agreement regarding certain maintenance responsibilities at the Botanic Garden, City Secretary Contract Number 41888 ("Shared Use Agreement"). 1.4 The City and BRIT entered into a Supplemental Agreement regarding landscaping and maintenance responsibilities, City Secretary Contract Number 47046 through which BRIT pays an annual fee to City for the City to hire two employees to perform landscaping and maintenance responsibilities of BRIT under the BRIT Lease and the Shared Use Agreement ("Supplemental Agreement"). City and BRIT agree that upon transfer of the positions responsible for performing the maintenance, the City and BRIT will execute a termination of the Supplemental Agreement and amend the Shared Use Agreement to eliminate conflicting responsibilities. 1.5 The Texas Garden Club, Inc.'s ("TGC") headquarters building is located in the Botanic Garden as more specifically shown in Exhibit"A." BRIT understands that the City and TGC are currently working to clarify the nature and extent of TGC's legal rights and limits of their property interest at the Botanic Garden. BRIT may negotiate with TGC for use, rental or maintenance of the headquarters building and the surrounding land. Until the property dispute is settled, BRIT shall allow City to review any proposed written agreements between BRIT and TGC and provide the City with an opportunity to object to specific provisions which conflict with the City's position with regard to the nature and extent of TGC's legal rights and limits of their property interest. If the City negotiates a new lease with TGC, BRIT may request amendment to any of the lease provisions that would benefit the operation of the Botanic Garden. II. TERM 2.1 This Agreement shall begin on May 1, 2020 and shall expire on September 30, 2040 ("Term"), unless terminated in accordance with the terms and conditions of this Agreement. This MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 2 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. Agreement may be renewed under terms and conditions agreed to between the City and BRIT in a written renewal to the Agreement. BRIT shall provide City with notice no less than three years from the end of the Term if BRIT decides not to renew this Agreement. City shall provide BRIT with notice no less than three years from the end of the Term if City decides not to renew this Agreement. III. MANAGEMENT SERVICES 3.1 BRIT shall manage all operations of the Fort Worth Botanic Garden in accordance with the terms and conditions of this Agreement("Management Services"). The Management Services shall include, but are not limited to, management of the administration, maintenance, exhibits, landscape, horticulture, programs, special events, advertising, sales, volunteers, admissions, contracts, improvements, and security for the Botanic Garden. BRIT shall manage the Botanic Garden as a public botanical garden for the use,benefit,and enjoyment of the public. BRIT agrees that with respect to admission of the public and the charges therefor, it will not discriminate as to race, religion, color, sex, national origin, age, sexual orientation, transgender, gender identity, gender expression, or disability. BRIT will assume the performance of Management Services for various operations at the Botanic Garden, take possession of the associated equipment, and hiring employees to perform the Management Services in phases between May 1, 2020 and October 1, 2020, with the intent that BRIT assume management of all Management Services at the Botanic Garden by October 1, 2020. BRIT and City agree to execute memorandums to the Agreement as each phase of operations and the associated equipment are assumed by BRIT, or City employees are hired by BRIT, to clearly document the dates BRIT begins performing the Management Services for each operation, assumes possession of the associated equipment, and hires any City employees (or has City employees assigned to BRIT) to perform the Management Services. The memorandums shall establish any Supplemental Management Fees or Additional Management Fees (as defined herein) that City will pay to BRIT for the management functions that have been assumed by BRIT on or prior to October 1, 2020. The executed memorandums shall be filed with the City Secretary's Office with this Agreement. 3.2 Licenses and Permits. BRIT shall obtain, and keep in effect, at its own cost and expense, all licenses and permits necessary for the Management Services and operation of the Botanic Garden, as well as state licenses and permits necessary for the sale of alcoholic beverages. BRIT shall provide written notice to the City within thirty days of any changes to the permits and licensing for the sale of alcoholic beverages at the Botanic Garden. City shall not require a plat of the Botanic Garden property in order for BRIT to obtain a building permit. City shall waive building permit fees in an amount up to $50,000.00 for each project in the Botanic Garden. 3.3 Use of Management Fee and Revenues. BRIT shall use the Management Fee and revenues generated at the Botanic Garden solely for the benefit of the Botanic Garden and the programs at the Botanic Garden. BRIT may use the Management Fee and revenue generated at the Botanic Garden in conjunction with BRIT funds for expenditures that have a common benefit to both the Botanic Garden and BRIT's separate programs or functions,but it is intended that the percentage MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 3 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. of expenditures be apportioned in accordance with the benefits provided to the Botanic Garden and the benefits provided to BRIT's separate programs or functions. 3.4 Admission Fees. 3.4.1 BRIT shall charge the general admission fees adopted by the City Council on November 13, 2018 (M&C G-19422)which are: a. Adult $12.00 b. Children- ages 6-15 (50% of adult fee) $6.00 c. Senior—age 65 and over (80% of adult fee) $10.00 d. Children- age 5 and under free 3.4.2 BRIT may increase the admission fees periodically by adding an amount that does not exceed the increase since the time the fees were previously set in the Consumer Price Index issued by the United States Bureau of Labor Statistics covering All Urban Consumers for the Dallas/Fort Worth, Texas Region, or if this index ceases to be published, then a comparable index ("CPI"), to the amount of the admission fees previously charged. BRIT shall not be required to reduce admission fees in response to decreases in the CPI. 3.4.3 BRIT shall notify the City in writing of any increases in the admission fees no later than thirty days prior to the increased fee being imposed. 3.5 Membership Prog am. BRIT may establish a membership program and establish the membership fees for the membership program. 3.6 Accessibility Options. BRIT shall provide admission accessibility options with at least ten percent(10%) of non-membership program admissions that are: (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 the accessibility options. 3.7 Pam. BRIT shall manage all parking areas within the Botanic Garden. BRIT may charge a reasonable fee for parking for special events at the Botanic Garden at any time during the term of this Agreement. BRIT shall not charge a fee for parking,other than for special events until such time as parking currently available on the Botanic Garden property is inadequate for the level of visitations which the Botanic Garden is experiencing. Any expansion of the number of parking lots or parking spaces located on the Botanic Garden property shall require the approval of the City Council. 3.8 Storage Space. 3.8.1 BRIT may use the storage space at the following City properties in order to perform the Management Services: (1) under Chisholm Trail Parkway, in the area located under the northbound and southbound lanes of Chisholm Trail Parkway at the northeast corner of Chisholm Trail Parkway and University Drive; (2) R.D. Evans Community Center, 3242 Lackland Road, MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 4 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. Fort Worth, Texas 76116; and(3)the new Park and Recreation Department Building at the James Avenue Service Center, 5001 James Avenue, Fort Worth, Texas 76115 ("Storage Space"). 3.8.2 The estimated monthly value of the Storage Space is $5,325.00. BRIT shall not be required to pay the City a fee for use of the Storage Space. Access to the Storage Space is available to BRIT on a daily basis between the hours of 6:30 a.m. and 2:00 p.m. BRIT must contact City staff to arrange for access to Storage Space. A City employee must be present at all times during access to the Storage Space under Chisholm Trail Parkway. 3.8.3 City shall provide BRIT with 90 days' advance written notice if the Storage Space will no longer be available for use. If the Storage Space will no longer be available for BRIT to use, the City has the option to provide BRIT with alternative storage space for BRIT to use or to adjust the Management Fee to cover the cost of storage for the Botanic Garden. 3.9 Irrigation. BRIT may continue the City's previous use of water from the Trinity River for irrigation. City shall pay for repairs to the water line from the Trinity River to the Botanic Garden. BRIT shall pay for the maintenance of the pumping station. City shall notify BRIT upon receipt of a notice from the Trinity River Water District if the irrigation line needs to be temporarily shut off. 3.10 Improvements. 3.10.1 The Director of the Park and Recreation Department shall approve in writing the construction of all new buildings and permanent structures that require a building permit in the Botanic Garden ("Permanent Improvements"). Upon completion of construction of a Permanent Improvement, BRIT shall transfer ownership of the Permanent Improvement to the City by deed. BRIT shall maintain all Permanent Improvements and existing exhibits and structures in the Botanic Garden. BRIT shall create an endowment fund equal to five percent (5%) of the construction cost for each new Permanent Improvement. The endowment funds, and interest earned on the endowment funds, shall be used solely for maintenance of all new buildings and exhibits for which each endowment fund was created. All endowment funds shall be transferred to the City upon expiration or termination of this Agreement. 3.10.2 BRIT shall obtain the written consent of the Director of the Park and Recreation Department for demolition of any permanent facilities. BRIT shall control the horticultural assets in the Botanic Garden. BRIT shall obtain the written consent of the Director of the Park and Recreation Department for removal of the following significant horticultural collections: (1) the begonia collection; and(2)the orchid collection. 3.10.3 BRIT shall determine the scope of improvement projects at the Botanic Garden. City will assist with facilitating the review and construction of improvement projects. 3.10.4 BRIT shall obtain all permits required by the City's normal requirements and processes for the construction of public infrastructure or buildings in the City of Fort Worth, including the Infrastructure Plan Review process and the building permit review process. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 5 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 3.11 Contracting. 3.11.1 BRIT shall manage the hiring, letting, contracting or franchising of any of the work necessary to fulfill any of its obligations or responsibilities under this Agreement. All such contracts paid for with the Management Fee or revenues from operations at the Botanic Garden must be in conformity with the terms and conditions of this Agreement and all other laws, rules, regulations and City policies. 3.11.2 For contracts involving the constructing, altering, or repairing a public building or carrying out or completing any public work, BRIT shall require the prime contractor, before beginning the work,to execute the following bonds with the City listed as an obligee,in the amount of the contract: (1) a performance bond if the contract is in excess of $100,000.00; and (2) a payment bond if the contract is in excess of$50,000.00. 3.11.3 BRIT shall make a good faith effort to promote the participation of Minority, Women and Disadvantaged Business Enterprises in any contracts that exceed$50,000.00. 3.11.4 If the City provides BRIT with funds for capital projects or specific projects or events, BRIT shall comply with the following public bidding requirements: a. Expenditure of City funds less than $3,000 -no requirements; b. Expenditure of City funds of$3,000 to less than $50,000 - public or private bidding may be used. BRIT must contact two historically underutilized businesses, on a rotating basis, from the State Comptroller's list; C. Expenditure of City funds of$50,000 or more - the contract must be publicly bid. BRIT must ensure that the City's wage rates are complied with; and d. For the hiring of professional services, such as architects or engineers, BRIT shall comply with state law by not using competitive bidding, but by selecting the most highly qualified provider of the services based on demonstrated competence and qualifications, and then attempting to negotiate with that provider a contract at a fair and reasonable price. 3.11.5 For any contracts to which subsection 3.11.4 applies, BRIT shall not be entitled to retain any of the funds the City provides to be used for BRIT's management of the project, personnel expenses, or other expenses, it being the intent of the City that all funds supplied to BRIT should be expended on contractors hired in accordance with the applicable public procurement requirements. 3.11.6 For contracts BRIT enters into using the Management Fee or revenues from the Botanic Garden, or private funding sources, the requirements of subsection 3.11.4 shall not apply. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 6 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 3.12 Audits. 3.12.1 BRIT shall keep complete and accurate records,books and accounts of all receipts and disbursements from its operations at the Botanic Garden. City shall, until the expiration of three (3) years after final payment under this Agreement, or the final conclusion of any audit commenced during the said three years,have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records, including, but not limited to, all electronic records, of BRIT involving transactions relating to this Agreement. BRIT agrees that 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. City shall give BRIT reasonable advance notice of intended audits. The City shall bear the cost and expense of conducting an audit,but shall not be obligated to reimburse BRIT for personnel or overhead costs associated with BRIT employees cooperating with or participating in an audit. 3.12.2 On an annual basis,BRIT shall obtain an audit,performed by a third-party certified public accountant, of the funds, receipts, and expenditures of BRIT and its affiliated entities with the revenues and expenses of the Botanic Garden broken out where feasible. On request by the City, BRIT shall provide the City with a copy of the audit. BRIT shall provide a report to the Director of the Park and Recreation Department on revenues, expenditures, and operations at the Botanic Garden no later than 90 days following the end date of the report. For the first three years of this agreement the report shall be submitted semi-annually for periods ending June 30 and December 31. After the first three years of this Agreement,the report shall be submitted annually for each calendar year. The report shall include a summary of operating results and specifically reports progress against goals for the Botanic Garden related to: a. Increase of Botanic Garden attendance versus City fiscal year 2020; b. At least 10% of attendance at the Botanic Garden is under free or reduced price admission not counting attendance through membership programs; c. Increase in non-City funding versus City fiscal year 2020; and d. Increase in participation in education,events and volunteer programs at the Botanic Garden versus City fiscal year 2020. 3.13 Stone Gazebo in Trinity Park. Because of the visual and design relationship between the Rose Garden in the Botanic Garden and the stone gazebo in Trinity Park, the City shall notify BRIT if the continued existence of the stone gazebo at its current location in Trinity Park becomes threatened. The City will relocate the stone gazebo in coordination with BRIT. 3.14 Security. BRIT shall manage security operations at the Botanic Garden and shall be obligated to provide reasonable security for the employees, visitors, equipment, structures, and exhibits within the Botanic Garden. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 7 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 3.15 Marketing and Advertising_ BRIT shall have the sole responsibility for management of and the expenses incurred in the advertising, marketing, merchandising and promotion of the Botanic Garden. 3.16 Janitorial and Groundskeeping Services. BRIT shall manage all janitorial and groundskeeping services at the Botanic Garden. BRIT shall maintain the Botanic Garden in a clean, neat and attractive condition. 3.17 Educational Programs. BRIT shall offer and manage educational programs for the public, with a special emphasis on educating children. 3.18 Master Planning. The City and BRIT commit to meeting the goals and objectives of the Botanic Garden Master Plan and BRIT will notify and consult with the City on updates to the Master Plan. BRIT shall not be precluded from making improvements not reflected in the Botanic Garden Master Plan if the improvements are approved by the City in accordance with the terms and conditions of this Agreement. IV. FURNITURE, FIXTURES, EQUIPMENT,VEHICLES AND ARTWORK 4.1 Furniture, Fixtures, Equipment, and Vehicles. 4.1.1 The City will permit BRIT to use all City-owned furniture, fixtures, equipment and vehicles currently used within the Botanic Garden to enable BRIT to fulfill its commitments hereunder for the benefit of the Botanic Garden and the visiting public. An inventory of the furniture, fixtures, equipment, and vehicles owned by the City at the Botanic Garden as of the date of execution of this Agreement, excluding minor office supplies, is listed in Exhibit`B" which is attached hereto and incorporated herein by reference. It is understood and agreed that the Management Fee paid by the City to BRIT and the revenue from the Botanic Garden generated during this Agreement shall be used by BRIT to obtain additional or replacement furniture, fixtures, equipment, and vehicles. 4.1.2 Title to all vehicles that are the subject of this Agreement shall be transferred from the City to BRIT during the Term. Ownership of all furniture, fixtures, and equipment, including any replacements, shall be vested in the City at all times. No later than January I of each year, BRIT shall provide City with an inventory of all furniture, fixtures, and equipment at the Botanic Garden that are owned by the City, a list of all vehicles transferred by the City to BRIT, and any additions or replacements to the furniture, fixtures, equipment, and vehicles. All vehicles owned by BRIT prior to the execution of this Agreement, and any additions or replacements of those vehicles, shall remain the sole property of BRIT. 4.2 Artwork. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 8 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 4.2.1 As used herein, the terms "Fort Worth Public Art Collection" and "FWPA" shall mean and include all permanently sited artworks owned by the City of Fort Worth that have been formally accessioned into the collection by the City Council of the City of Fort Worth and are maintained by the City of Fort Worth through its public art program known as Fort Worth Public Art. The Fort Worth Public Art Collection is maintained and programmed by the City's contractor, currently the Arts Council of Fort Worth and Tarrant County, Inc. 4.2.2 The City owns various artworks, cultural objects, memorials, and other works created by artists or artisans sited in the Botanic Garden, including members of the Fort Worth Public Art Collection and may acquire additional artworks for the Botanic Garden through gifts, donations, and/or commission through future City bond programs. Only artworks included in the Fort Worth Public Art Collection are maintained through the FWPA program. 4.2.3 An inventory of all artworks sited at the Botanic Garden, including members of the Fort Worth Public Art Collection,is listed in Exhibit"C"which is attached hereto and incorporated herein by reference. 4.2.4 Any additions, modifications, relocations, or removals of any artwork at the Botanic Garden shall be in accordance with the City's ordinances, polices, rules, and regulations, and the Fort Worth Public Art Master Plan Update, and shall be approved in writing by the City. 4.2.5 City shall, at its own expense, maintain and repair members of the Fort Worth Public Art Collection at the Botanic Garden. BRIT shall, at its own expense, maintain and repair all other artwork at the Botanic Garden. 4.2.6 BRIT shall allow City, Arts Council of Fort Worth, and their contractors to access the Botanic Garden for the purposes of condition assessment, routine treatment, conservation, and other work related to the FWPA Collection located at the Botanic Garden. Such access shall be granted by BRIT at dates and times as mutually agreed upon by the parties 4.2.7 BRIT may place temporary artworks in the Botanic Garden at its sole discretion for a term of up to one year. Any artworks temporarily sited past the one-year term and/or acquired by BRIT to be sited permanently at the Botanic Garden shall be reviewed and recommended by the Fort Worth Art Commission and approved by the City Council in accordance with the Gifts and Loans policy in the Fort Worth Public Art Master Plan Update. 4.2.8 For any artworks BRIT places in the Botanic Garden, BRIT shall execute an agreement with the artist containing language in substantially the following form: Artist understands and agrees that the artwork will be displayed at the Fort Worth Botanic Garden, which is property owned by the City of Fort Worth. Artist agrees that City shall have the right to remove the artwork at any time from the City of Fort Worth's property. ARTIST HEREBY AGREES TO PERMANENTLY WAIVE ALL RIGHTS OT ATTRIBUTION AND INTEGRITY WITH RESPECT TO THE ARTWORK AND ANYAND ALL CLAIMS AS MAY MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 9 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. ARISE UNDER THE VISUAL ARTISTS RIGHTS ACT(VARA) OR ANY OTHER LOCAL, STATE, FOREIGN, OR INTERNATIONAL LA W THAT CONVEYS THE SAME OR SIMILAR RIGHTS,FOR ALL PURPOSES. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY,AND HOLD HARMLESS CITYFROMAND AGAINSTANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,A TTORNEYS FEES,INSOFAR AS THE SAME ARE BASED ONANY CLAIM THAT THE ARTWORK PLACED ON THE CITYS PROPERTY CONSTITUTES AN INFRINGEMENT OF ANY PATENT, TRADE SECRET, TRADEMARK, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTYRIGHT. V. IT, COMMUNICATION,AND SECURITY SYSTEMS AND EQUIPMENT; NETWORK ACCESS 5.1 IT, Communication, and SecuritySystems and Equipment. The City will permit BRIT to use the internet technology, communication, and security systems and equipment owned by the City and located at the Botanic Garden which are listed in Exhibit "M which is attached hereto and incorporated herein by reference, and any Upgrades thereof as set forth in subsection 5.2 ("IT, Communication, and Security Systems and Equipment"). It is understood and agreed that the Management Fee paid by the City to BRIT and the revenue from the Botanic Garden generated during this Agreement shall be used by BRIT to obtain additional or replacement IT, Communication,and Security Systems and Equipment. No later than January I of each year,BRIT shall provide City with an inventory of all IT, Communication, and Security Systems and Equipment at the Botanic Garden that are owned by the City, including any additions or replacements. 5.2 Upgrades. From May 1,2020 through September 30,2021,the City's Internet Technology Solutions Department shall be responsible for paying the cost of replacing the outdated security system, access system, cameras, fiber optic cable, and Wi-Fi at the Botanic Garden("Upgrades"). The cost of the Replacements shall be part of the $4,300,000.00 in Capital Expenditures that City intends to spend in Fiscal Years 2020 and 2021 as set forth in Article IX of this Agreement. City shall be responsible for contracting for and managing the installation of the Upgrades. Upon completion of the installation of the Upgrades, City and BRIT shall execute a memorandum to be filed with the City Secretary's Office with this Agreement containing an inventory of all the Upgrades that BRIT may use to perform the Management Services. 5.3 Network Access. City shall provide BRIT with 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 "E"which is attached hereto and incorporated herein by reference. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 10 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. VI. PERSONNEL 6.1 As part of its management responsibilities, and subject to the terms and conditions of this Agreement,BRIT will have all exclusive rights of a manager,including but not limited to the right to supervise, hire, promote, discharge, transfer, lay off, resolve disputes in accordance with appropriate BRIT procedures, to assign work, and to assess performance of all BRIT employees working at the Botanic Garden. 6.2 The City is not responsible for wages,insurance benefits,workers'compensation premiums (or qualified self-insurance alternative), vacation leave, sick leave, group insurance premiums, pension or retirement benefits, other benefits, or other obligations or liabilities owed to BRIT employees. BRIT shall be responsible for all wages, insurance benefits, workers' compensation premiums (or qualified self-insurance alternative), vacation leave, sick leave, group insurance premiums,pension or retirement benefits and other benefits,or other obligations or liabilities owed to BRIT employees. 6.3 It is the intent of the City and BRIT to allow BRIT the opportunity to hire City employees who work at the Botanic Garden to fill the positions necessary for BRIT to perform the Management Services. City employees who work at the Botanic Garden will have the option to seek employment with BRIT or to obtain another position with the City. 6.4 For City employees who leave the City to become BRIT employees, the City and BRIT have made certain accommodations as provided in this Section 6.4. 6.4.1 The City employees who become BRIT employees will have the option to have up to 120 hours of earned vacation and compensatory leave time at the City transferred to BRIT. Employees selecting this option will be required to sign a written agreement with the City indicating the amount of earned vacation and compensatory leave time, not to exceed 120 hours, which the employee will transfer to BRIT. The City will pay to BRIT the dollar value of the leave time transferred to BRIT equal to the amount the City otherwise would have paid to the employee if the employee took the leave time while employed by the City, including the cost that the City would have incurred for taxes and employer-paid benefits, as a supplemental management fee ("Supplemental Management Fee"). The Supplemental Management Fee shall be in an amount not to exceed $203,952.10. This amount represents the estimated cost if all employees currently working at the Botanic Garden accepted a position with BRIT and transferred 120 hours to BRIT. It is anticipated by the City and BRIT that the actual amount will be lower. The Supplemental Management Fee shall be paid to BRIT as set forth in the memorandums executed by the City and BRIT, as outlined in section 3.1. Any amount of earned vacation and compensatory leave time not transferred to BRIT will be paid to the employee in accordance with City policy. 6.4.2 BRIT will credit the tenure at the City of former City employees when calculating those employees' paid leave time. BRIT will also waive the ninety day probation period for use of paid leave time for City employees who become BRIT employees. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 11 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 6.5 City Employees within 5 Years of Retirement. The City will give City employees who are eligible to retire within five years of May 1, 2020 the one-time irrevocable option to remain City employees while continuing to work at the Botanic Garden. To be effective, this option must be exercised by the employee, in writing, within 10 days after the date that the employee is informed that he or she must choose whether to exercise the option. These employees will be assigned by the City to BRIT, but will remain City employees ("City Retained Employee"). The City will document in each City Retained Employee's City personnel file that they have chosen to remain a City employee. The City Retained Employees will have all rights of a City employee, such as compensation, benefits, and appeal rights for termination. The City will be responsible for providing performance evaluations and making all employment disciplinary decisions such as suspension without pay, demotion, disciplinary probation, and termination. BRIT will be responsible for the daily supervision of the City Retained Employees including the direction and control of the City Retained Employees and assigning the City Retained Employees tasks. Each of City and BRIT will maintain worker's compensation insurance with respect to the City Retained Employees. Each party will include an alternate employer endorsement of the other policy on its worker's compensation policy. BRIT will timely forward documentation to the City for the City to make personnel decisions. Any City Retained Employee can: 6.5.1 retire on their eligible retirement date; 6.5.2 continue to work for the City after their retirement eligibility date, but will not continue to be assigned to BRIT and will be assigned to a different positon with the City. BRIT may agree to allow a City Retained Employee to continue to be assigned to BRIT for up to one year after their retirement eligibility date; 6.5.3 enter the City's DROP when the City Retained Employee becomes eligible,but will not continue to be assigned to BRIT and will be assigned to a different position with the City. BRIT may agree to allow a City Retained Employee to continue to be assigned to BRIT for up to one year after entering the City's DROP; 6.5.4 leave their employment with the City at any time, including becoming BRIT employees before or after reaching their retirement eligibility date; or 6.5.5 request a different position with the City in which the employee will not be assigned to BRIT. VII. OWNERSHIP AND USE OF THE BOTANIC GARDEN 7.1 Title to all public lands, permanent improvements and property currently owned by the City at the Botanic Garden, and any Permanent Improvements constructed at the Botanic Garden during this Agreement, shall remain vested or shall be vested in the City. 7.2 BRIT understands that the Botanic Garden is dedicated public parkland, and that state law prohibits any use of the Botanic Garden that is not for park and recreation purposes unless the City complies with chapter 26 of the Texas Parks & Wildlife Code ("Park Conversion"). BRIT shall promptly notify City of any proposed use of the Botanic Garden that will require a Park Conversion, including but not limited to, granting utility or other easements on the property or MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 12 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. using the Botanic Garden for a purpose that is not a park and recreational purpose. BRIT further understand that the typical Park Conversion takes a minimum of ninety(90) days to complete. 7.3 BRIT may enter into agreements for organizations to use space in the Botanic Garden for meetings and events. Any long term agreements shall include an indemnity clause in favor of the City and insurance from the entity using the space. VIII. MANAGEMENT FEE 8.1 As compensation for Management Services rendered under this Agreement, the City shall pay BRIT an annual management fee ("Management Fee"). The Management Fee shall be paid to BRIT in equal monthly installments on or before the 5t'day of each month. 8.2 For Fiscal Year 2021 (October 1, 2020 through September 30,2021),the Management Fee shall be in the amount of$3,350,000.00. For each subsequent fiscal year,the amount of the annual Management Fee, subject to the limitation in Section 8.3 below, shall be adjusted by adding an amount equal to any annual increase in the CPI,to the amount of the Management Fee paid during the previous fiscal year. If a decrease in the CPI occurs, the Management Fee shall be the same amount paid during the previous fiscal year. While City Retained Employees are assigned to BRIT, the City shall withhold from the Management Fee the amount the City budgets for each City Retained Employee assigned to BRIT. 8.3 It is agreed by the City and BRIT that the percentage that the Management Fee represents of the total revenue for the Botanic Garden for each fiscal year is expected to decrease over time as additional revenue sources are developed by BRIT for the Botanic Garden. Any request by BRIT for an increase in the Management Fee in section 8.2 of this Agreement must be accompanied by documentation from BRIT showing a good faith effort to increase other revenue sources for the Botanic Garden. 8.4 During the transition period between May 1, 2020 and September 30, 2020, City shall pay BRIT an additional management fee in an amount not to exceed$1,355,000.00 for BRIT assuming management of functions prior to October 1, 2020 ("Additional Management Fee"). Each time BRIT assumes management functions during the transition period,memorandums will be executed by the City and BRIT, as outlined in section 3.1, which establish the amount of the Additional Management Fee. City will pay to BRIT an amount equal to the payroll costs appropriated in the fiscal year 2020 approved budget of the City for the positions previously performing transferred responsibilities. The $1,355,000.00 amount 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 by the City and BRIT that the actual amount paid to BRIT will be lower because BRIT will not assume management of all functions on May 1, 2020. For each function at the Botanic Garden that BRIT assumes management of during the transition period, the City will calculate the Additional Management Fee based on the number of days from the date BRIT assumes management through September 30, 2020. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 13 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. IX. FUNDING OBLIGATIONS 9.1 Revenues from the Botanic Garden held by the City at the execution of this Agreement, or collected thereafter, shall not be used by the City for debt financing for deferred facility maintenance or other capital expenditures. 9.2 The City commits to spending$17,000,000.00, adjusted by adding an amount equal to any increase in the CPI since December 22, 2017 as hereinafter described. The $17,000,000.00 shall be expended during a twelve year period beginning on May 1, 2020, for deferred facility maintenance identified in the facility assessment conducted by Elements of Architecture, Inc. dated December 22, 2017 ("Facility Assessment"), or other capital expenditures requested by BRIT ("Capital Expenditures"). A copy of the executive summary of the Facilities Assessment is attached hereto as Exhibit "F" and incorporated herein by reference. City has identified approximately $4,300,000.00 of the $17,000,000.00 Capital Expenditures that City intends to spend in Fiscal Years 2020 and 2021, a copy of which is attached hereto as Exhibit "G" and incorporated herein by reference. City shall be responsible for contracting for and managing the construction of the Capital Expenditures. Notwithstanding anything to the contrary herein, the information in Exhibit"F" and"G"are general guidelines only and shall not be legally binding on the City. 9.3 The City will obtain and pay for a survey of the Botanic Garden boundaries, which is estimated to cost $20,000.00. 9.4 City will contract for and pay for all construction, maintenance, repairs, or relocations of the following utility infrastructure: (1) "public" water and sewer lines; and (2) all stormwater infrastructure, electric lines, fiber optic cables, and gas lines. City shall not be responsible for paying any cost to construct, maintain, repair, or relocate: (1) "private" water and sewer lines; or (2) utility infrastructure that is damaged by BRIT or damaged by activities that BRIT manages at the Botanic Garden. For purposes of this agreement "public" water and sewer lines shall mean water and sewer lines that provide water and sewer service to properties that are located outside of the Botanic Garden and"private"water and sewer lines shall mean water and sewer lines that only serve the Botanic Garden. For purposes of this Agreement, construction, replacement, or relocation of private water and sewer lines shall not require review and approval of the City's Infrastructure Plan Review Center. X. TERMINATION 10.1 Termination for Cause. Either party may terminate this Agreement immediately by providing written notice to the other party in the event of. (i) either party becoming subject to a bankruptcy proceeding; being adjudicated insolvent; failing to pay its debts generally as they become due; or seeking or acquiescing to appointment of any trustee, receiver, master, custodian, or liquidator; or (ii) failure by the other party to perform any covenant, condition, or term of this MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 14 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. Agreement and such defaulting party fails to diligently pursue a cure thereof to its completion after thirty (30) calendar days' written notice specifying such failure of performance or default. The party terminating this Agreement for cause shall also be free to pursue any and all other legally available remedies against the other party. 10.2 Termination for Convenience. Either party may terminate this Agreement at any time and for any reason by providing the other party with 1 year advance written notice of termination. 10.3 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify BRIT of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 10.4 Duties and Obligations of the Parties upon Termination or Expiration. City and BRIT agree to take all steps necessary to prepare for City to resume management of the Botanic Garden should this Agreement expire, and not be renewed, or is terminated before the end of the Term, including, but limited to, complying with the following duties and obligations on or before the effective date of the termination or expiration: a. City shall pay BRIT for Services actually rendered up to the effective date of termination or expiration(prorated for any partial month) and BRIT shall continue to provide City with Services in accordance with this Agreement up to the effective date of termination or expiration. b. BRIT shall return all City provided data to City in a machine readable format or other format deemed acceptable to City. c. BRIT shall return all furniture, fixtures, and equipment provided to BRIT pursuant to this Agreement, or any additions or replacements purchased by BRIT in accordance with this Agreement, to the City. d. BRIT shall transfer title to all vehicles provided to BRIT pursuant to this Agreement, or any additional or replacement vehicles purchased by BRIT in accordance with this Agreement, to the City. e. BRIT shall provide City with all records related to the management of the Botanic Garden requested by the City. f. BRIT shall terminate all contracts entered into by BRIT for operations at the Botanic Garden, or with the consent of the City and contractor, assign contracts to the City that the City desires to continue. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 15 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. g. BRIT shall remove its property and artwork from the Botanic Garden. h. BRIT shall pay to the City all endowment funds required to be created and maintained by BRIT pursuant to this Agreement. i. BRIT shall return all IT, Communication, and Security Systems and Equipment, and any additions or replacements purchased by BRIT in accordance with this Agreement, to the City. 10.5 City makes no guarantee that it will hire any employees of BRIT should this Agreement be terminated or expire without being renewed, including employees of BRIT who were City's employees prior to the execution of this Agreement. 10.6 If any City employees are assigned to BRIT in accordance with the terms of this Agreement at the time this Agreement is terminated or expires without being renewed, the assignment of the employees will cease and the employees will be under the full supervision and control of the City. XI. EXISTING AGREEMENTS Except for contracts the City executes in accordance with Article IX of this Agreement, City will terminate all existing contracts City has entered into for the Botanic Garden, with the termination of each contract to be effective on or before September 30, 2020. City will notify BRIT of any contracts that the City is not successful in causing to be terminated by September 30, 2020. XII. TERMINATION OF PRIOR AGREEMENT BETWEEN CITY AND BRIT Contemporaneous with the assumption by BRIT of management of the Fort Worth Botanic Garden, the timing of which is scheduled for October 1, 2020, but may be extended as defined in Section 27.2 of this Agreement, City and BRIT shall execute a termination of the prior agreement between the City and BRIT, the cooperative agreement for BRIT to provide management of education, volunteer, marketing, admissions, and administrative operations at the Botanic Garden (City Secretary Contract Number 49874, as amended). For the sake of clarity, the BRIT Lease shall remain in full force and effect and shall not be effected by execution of this Agreement. XIII. LIENS BRIT agrees that it will take all steps necessary to prevent any lien being placed on the Botanic Garden. Any lien attempted to be created or filed shall be void. Should any purported MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 16 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. lien on City property be created or filed, BRIT, at its sole expense, shall liquidate and discharge the same within ten(10) days after notice from the City to do so. XIV. CONFIDENTIAL INFORMATION 14.1 Confidential Information. BRIT, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by City ("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of City. 14.2 Unauthorized Access. BRIT 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 City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised, in which event, BRIT shall, in good faith, use all commercially reasonable efforts to cooperate with City in identifying what information has been accessed by unauthorized means and shall fully cooperate with City to protect such City Information from further unauthorized disclosure. XV. INDEPENDENT CONTRACTOR It is expressly understood and agreed that BRIT shall operate as an independent contractor as to all rights and privileges and work performed under this Agreement, and not as agent, representative or employee of City. Subject to and in accordance with the conditions and provisions of this Agreement, BRIT shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers,agents, servants, employees, consultants and subcontractors. BRIT acknowledges that the doctrine of respondeat superior shall not apply as between City, its officers, agents, servants and employees, and BRIT, its officers, agents, employees, servants, and subcontractors. BRIT further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and BRIT. It is further understood that City shall in no way be considered a Co-employer or a Joint employer of BRIT or any officers,agents, servants,employees or subcontractors of BRIT. Neither BRIT, nor any officers, agents, servants, employees or subcontractors of BRIT shall be entitled to any employment benefits from City. BRIT shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. XVI. LIABILITY AND INDEMNIFICATION 16.1 LIABILITY-BRIT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 17 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF BRIT, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. 16.2 GENERAL INDEMNIFICATION-BRIT HEREBY COVENANTSAND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO BRIT'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCL UDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF BRIT, ITS OFFICERS, AGENTS,SERVANTS OR EMPLOYEES. 16.3 EMPLOYMENT CLAIMS INDEMNIFICATION - BRIT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, WHICH CLAIM THAT CITY AND BRIT ARE A CO EMPLOYER OR A JOINT EMPLOYER OF ANY EMPLOYEE OF BRIT OR ANY EMPLOYEE OF THE CITY, INCLUDING, BUT NOT LIMITED TO, CITY RETAINED EMPLOYEES, AS DESCRIBED IN PARAGRAPH 6.5. IN ALL MATTERS AS TO WHICH INDEMNIFICATION IS A VAILABLE TO THE CITY UNDER THIS AGREEMENT, THE CITY SHALL BE FREE TO CHOOSE AND RETAIN COUNSEL, AT BRIT'S EXPENSE, PROVIDED THAT THE CITYSHALL CONSULT IN GOOD FAITH WITH BRIT REGARDING SUCH CHOICE. 16.4 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 OF ANY RELEVANT TESTING OR MONITORING. IF BRIT SUSPECTS OR BECOMES A WARE OF ANY UNAUTHORIZED ACCESS TO ANY FINANCIAL OR PERSONAL IDENTIFIABLE INFORMATION ("PERSONAL DATA") BY ANY 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 FULL YAND IMMEDIATELY COMPLY WITH APPLICABLE LAWS, AND SHALL TAKE THE APPROPRIATE STEPS TO MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 18 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. REMEDY SUCH DATA BREACH. BRIT WILL DEFEND,INDEMNIFYAND HOLD CITY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, CAUSES OF ACTION, LIABILITY, LOSS, COSTS AND DAMAGES, INCLUDING REASONABLE ATTORNEY FEES, ARISING OUT OF OR RELATING TO ANY THIRD PARTY CLAIMARISING FROMBREACHBYBRIT OFITS 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 ONLYFOR 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 BYLAW. 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. 16.5 IF ANYACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, BRIT, ON NOTICE FROM THE CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT BRIT'S EXPENSE, BY OR THROUGH ATTORNEYS SELECTED BY OR SATISFACTORY TO THE CITY. 16.6 BRIT agrees to notify City promptly upon the notification of any claim or lawsuit BRIT becomes aware of relating to the Botanic Garden, including, but not limited to, claims for injury, death, damages, or employment claims. BRIT agrees to make its officers, representatives, agents, employees, and contractors available to City, at all reasonable times, for any statements and case preparation necessary for the defense of any claims or litigation against the City related to the Botanic Garden. 16.7 Notwithstanding anything to the contrary herein, this section shall survive the expiration or early termination of this Agreement. XVII. ASSIGNMENT AND SUBCONTRACTING MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 19 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 17.1 Assignment. BRIT shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment, the assignee shall execute a written agreement with City and BRIT under which the assignee agrees to be bound by the duties and obligations of BRIT under this Agreement. BRIT and Assignee shall be jointly liable for all obligations of BRIT under this Agreement prior to the effective date of the assignment. 17.2 Subcontract. If City grants consent to a subcontract, the subcontractor shall execute a written agreement with BRIT referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of BRIT under this Agreement as such duties and obligations may apply.BRIT shall provide City with a fully executed copy of any such subcontract. XVIII. INSURANCE 18.1 City shall provide property insurance for all property at the Botanic Garden. 18.2 BRIT shall provide City with certificate(s) of insurance documenting policies of the following types and minimum coverage limits that are to be in effect prior to commencement of any Management Services pursuant to this Agreement, including coverage for furniture, fixtures equipment, and vehicles at the Botanic Garden: 18.2.1 Coverage and Limits (a) Commercial General Liability: $1,000,000 - Each Occurrence $2,000,000 - Aggregate (b) Automobile Liability: $1,000,000 - Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by BRIT, its employees, agents, representatives in the course of providing Management Services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non- owned. (c) Worker's Compensation: Statutory limits according to the Texas Workers' Compensation Act or any other state workers' compensation laws where the work is being performed MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 20 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. Employers' liability $100,000 - Bodily Injury by accident; each accident/occurrence $100,000 - Bodily Injury by disease; each employee $500,000 - Bodily Injury by disease; policy limit (d) Liquor Liability $1,000,000 - Each Occurrence 18.3 General Requirements (a) The commercial general liability and automobile liability policies shall name City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation(Right of Recovery) in favor of City. (c) A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to City. Ten(10) days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102, with copies to the Fort Worth City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. 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, written approval of Risk Management is required. (e) Any failure on the part of City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that BRIT has obtained all required insurance shall be delivered to the City prior to BRIT proceeding with any work pursuant to this Agreement. XIX. COMPLIANCE WITH LAWS, ORDINANCES,RULES AND REGULATIONS MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 21 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. BRIT agrees that in the performance of its obligations hereunder, it shall comply with all applicable federal, state and local laws, ordinances,rules and regulations. If City notifies BRIT of any violation of such laws, ordinances, rules or regulations, BRIT shall immediately desist from and correct the violation. XX. NON-DISCRIMINATION COVENANT BRIT, for itself, its employees, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of BRIT's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. IF ANY CLAIM ARISES FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION COVENANT BY BRIT, ITS EMPLOYEES, ASSIGNS, SUBCONTRACTORS, OR SUCCESSORS IN INTEREST, BRIT AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM. XXI. NOTICES Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, or (2) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To City: To BRIT: City of Fort Worth Botanical Research Institute of Texas Attn: City Manager's Office Attn: Executive Director 200 Texas Street 1700 University Drive Fort Worth, TX 76102-6314 Fort Worth, TX 76107-3400 Facsimile: (817) 392-8654 With copy to Fort Worth City Attorney's Office at the same address XXII. NON-COMPETE During the Term, 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. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 22 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. XXIII. GOVERNMENTAL POWERS It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. XXIV. NO WAIVER The failure of City or BRIT to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of City's or BRIT's respective right to insist upon appropriate performance or to assert any such right on any future occasion. XXV. 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 pursuant to 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. XXVI. 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. XXVII. FORCE MAJEURE 27.1 City and BRIT shall exercise their best efforts to meet their 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, 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. 27.2 COVID-19. It is agreed by the City and BRIT that due to the COVID-19 pandemic, BRIT may not be able to assume management of all operations at the Botanic Garden on October 1, 2020 or management of any part of the operations before October 1,2020 during the transitional period. BRIT shall not be required to assume any of the obligations in this Agreement until the later of MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 23 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. October 1, 2020, or ninety (90) days after both: (1) the end of disaster declarations made by the City of Fort Worth, Tarrant County, Texas, and the State of Texas related to COVID-19; and (2) the Botanic Garden begins charging admission fees. If this section becomes applicable, the dates in this Agreement shall be adjusted and the fees in this Agreement reduced to account for the delay. XXVIII. HEADINGS NOT CONTROLLING Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. XXIX. REVIEW OF COUNSEL The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. XXX. AMENDMENTS/MODIFICATIONS/EXTENSIONS No amendment,modification,or extension of this Agreement shall be binding upon a party hereto unless set forth in a written instrument, which is executed by an authorized representative of each party. XXXI. ENTIRETY OF AGREEMENT This Agreement contains the entire understanding and agreement between City and BRIT, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. XXXII. COUNTERPARTS This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes,be deemed an original, but all such counterparts shall together constitute one and the same instrument. XXXIII. WARRANTY OF SERVICES MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 24 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. BRIT warrants that its services will be of a high quality and conform to generally prevailing industry standards. XXXIV. IMMIGRATION NATIONALITY ACT BRIT shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, BRIT shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. BRIT shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any BRIT employee who is not legally eligible to perform such services. BRIT SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY BRIT, BRIT'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to BRIT, shall have the right to immediately terminate this Agreement for violations of this provision by BRIT. XXXV. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL BRIT acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services with a company with 10 or more full-time employees that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The term "boycott Israel" has the meaning ascribed to it by Section 808.001 of the Texas Government Code. The term"company"shall have the meaning ascribed to it by Section 2270.001 of the Texas Government Code. To the extent that Chapter 2270 of the Government Code is applicable to this Agreement, BRIT certifies that BRIT's signature provides written verification to the City that BRIT: (1) does not boycott Israel; and (2)will not boycott Israel during the term of this Agreement. [SIGNATURES ON FOLLOWING PAGE] MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 25 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. IN WITNESS WHEREOF,the parties have executed this Agreement to be effective on the dates set forth in Article II of this Agreement. CITY OF FORT WORTH BOTANICAL RESEARCH INSTITUTE OF TEXAS T>a.B 3,c�u�r.�l/ B0000 y;Dana Bur hdoff(Jul 27,20 9:41 CDT) y. �. ' . 5-044 .r- - Dana Burghdoff Edward Schneider Assistant City Manager Executive Director Date: J Lj[ 27, 2020 Date: ,i+� / •tea Recommended By: By: By: Richard Zavala,Director Greg Bird Park&Recreation Department Board President By: ... Bob Byers Edward Bass Director,Fort Worth Botanic Garden Board Vice President APPROVED AS TO FORM AND LEGALITY: Z�Z� Richard A.McCracken(Jul 27,2020 09:15 CDT) Richard A.McCracken Assistant City Attorney OFFICIAL. RECORD CITY SECRETARY FT. WORTH,TX MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 26 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. ATTEST: or Ronald P.Gonzales(Jul 2 ,202012:19 CDT) s Mary Kayser City Secretary M&C: 20-0347 (5/19/20) Form 1295: 2020-606835 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. Sandra young o (Jut 24,202017:30CDT) Name: Sandra Youngblood Title: Assistant Director,Park Operations OFNUAL RECORD MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN 7 9���� BETWEEN THE CITY OF FORT WORTH AND 9 THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. FT WORTH,TX EXHIBIT "A" BOTANIC GARDEN BotanicGar-dens Approximate Boundary Exhibit `AR LAY —_ ;• F ETf Ef � 44�i06 yrt B .E : 181 ER - I �- i r Ei.CAM13 E e MPQ, WET ,� 3 -- _ f 30 Li�. B+otaai-.Garden Boundary CNY rPA'/b6•..L-1:11— nP.A.2—n tl.ftn& W-hY6—T-7.&d■tr rft-19 u AiP vd r. yrA•m EM P— tr a d mat tr 7= -q--M x r+rror.P.P— P—-a.4—d-—U -q¢ W+'ri'�"w—,Iv•x1ean�l�-wi-n—d- :- b—L•! Cfl'cfrul S4�h—m—M-rlNI b L�.—V cP=zJJzh MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 28 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. Ta{.'LGsx 1 .rF[�P 20M P..xtR47C0YtPY 511RrYY d-f@SO M � .v.xr�•�..ora l I uP�y�n K4PsvY iPi _J i w- a� _ rt�v JrS1M1 /'max Y e g=6 , u4 uv 1 Jmwmrai 13 r Taw i ,R, �i rNeretis xaarr swrvFr'A_d/dR atCar a `I es Jrawe —., aR t.-way aav4 "Ta.S'.•'C' 11' - � k; C,— 3..fif}AU" _ rE CZ •a�tYr-Jr4�P i$au w7wL 44 IF R!FlFS'fJr�aer.r'�imr�ev��Milo��� IFwWcw I J� 77 89(ff+DA" 5CMVY 17HY T' sw Y.r4:Jt; ° , W..�.'""' A',oe-'Ax zy.+.—ax+rt - -- f 02-)60 AL: 1C4Y6 NPr or fwr nu",S i9Rii?T£547PFYPs A—ridi am s:� ter:r.°ah16i.r, "-`tla r10-rrec ...-.w wy"iyFs sir a. ,si uron v ClfY fA,FUU N10f7i4 rAPP.AhF CGL&N.• rIYAS " ,tom w... MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 29 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. EXHIBIT"A" METES AND BOUNDS DESCRIPTION 102.160 ACRES THOMAS WHITE SURVEY,ABSTRACT-16 6 TARRANT COUNTY, TEXAS Being a 102.160 acre tract of land,situated in the Thomas White Survey,Abstract 1636, City of Fart worth Tarrant County,Texas,being all of the remainder of Lot 1,Block 1,Botanic Carden Addition, according to the plat thereof recorded in Volume 386-214, Page 97, Plat Records,Tarrant County, Texas,all of the remainder of that certain called 64.91 acre tract conveyed to the City of Fart Worth according to the Deed recorded in Volume 167t Page 42, Deed Records, Tarrant County,Texas, a portion of the remainder of that certain called 37-1 2 acre tract conveyed to the City of Fart Worth according to the Deed recorded in Volume 410,Page 161, Deed Records, Tarrant County,Texas, a portion of the remainder of that certain called 4.985 acre tract conveyed to the City of Fort North according to the Reed recorded in Volume 1868, Page 42.2, Reed Records,Tarrant County, Texas, all of the remainder of that certain called First Tract(called; 16.57 acres)and all of the remainder of that certain called Second Tract(called,6.6 acres)conveyed to the City of Fart Worth according to the Deed recorded in Vohime 1843, Page 461, Deed Records,Tarrant County, Texas, all of that certain called 0-359 1000 acre tract conveyed to the City of Fart Worth according to the Deed recorded in Volume 4929, Page 303, Deed Records, Tarrant County, Texas, and heing all of that certain called 5.466 acre tract conveyed to the City of Fart Worth according to the Deed recorded in Volume 3973, Page 103, Deed Records, Tarrant County, Texas said 102.160 acre tract of land bung more particularly described by metes and bounds as follows,to-wit; BEGINNING at a 5/8-inch iron rod 1h-ith cap stamped "Teague, Nall, and Perkins" found at the southwest corner of the herein described tract, being in the west line of the above mentioned remainder of 16.57 acre First Tract, at the southeast corner of that certain called Lot 1, Block 1, Montgomery Corner Addition, according to the plat thereof recorded in County Clerk's Instrument Number D211214000,Official Public Records,Tarrant County,Texas,in the north right- of-way line of Interstate Highway 30 (variable width right-of-way), from which a 5/9-inch iron rod stamped "Dunaway Associates" found for reference in the old west right-of-way line of an abandoned Texas&Pacific Railroad spur bears North 89 degrees 50 minutes 55 seconds West, a distance of 40.00 feet THENCE North 00 degrees 32 minutes 21 seconds East along the east boundary line of the above mentioned Lot 1, Block 1, Montgomery Corner Addition, at a distance of 356.19 feet pass a 5/3- inch iron rod found at the northeast corner of said Lot 1,Montgomery Corner Addition,same being the southeast corner of that certain called Lot 1, Block 1, Mid-Western Development Addition, according to the plat thereof recorded in Cabinet A, Slide 7582, Plat Records, Tarrant County, Texas, and continue a total distance of 848.65 feet to a 1/2-inch iron found at the easternmost northeast corner of the abo e mentioned Lot 1,Block 1,Montgomery Corner Addition,being in the southernmost line of that certain called I of 1, Block 3, Will Rogers Memorial Center Addition, according to the plat thereof recorded in County ClerVs Instrument Number D212.156447, Official Public Records, Tarrant County, Texas, from which an 'X' cut in concrete found at the southernmost southwest corner of the above mentioned Lot 1, Block 3, WE[ Rogers Memorial Center Addition,bears South 89 degrees 35 minutes 30 seconds West, a distance of 20.00 fit; THENCE South 89 degrees 52 minutes 13 seconds East, along the southernmost line of said Lot 1, Black 3,Will Rogers Memorial Center Addition,a distance of 554.91 feet to a 3"steel fence corner post found at an inner ell corner of said Lot 1, Block 3,Will Rogers iMemorial Center Addition; CPN:0900 FILE:BOTANIC C RDE[ti S BRIT DESCRIPTIO[ti_4-29-20 1t2.DOCx PACE 1 of 4 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 30 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 102.160 ACRES THOMAS WHITE SURVEY!ABSTRACT-1636 (CONTINUED FROM PG,1) THENCE North 00 degrees 11 minutes 32.seconds East, along a southeast line of said Lot 1, Block 3, Will Rogers Memorial Center Addition, a northern line of said remainder of 6.6 acre Second Tract,the west line of the above mentioned 0-359 1000 acre tract;and the west line of the above mentioned 5.466 acre tract, a distance of 807.68 feet to a 5/3-inch iron rod stamped"Dunaway Associates"found; THENCE South 89 degrees 50 minutes 02 seconds East,along a southeast line of said Lot 1,Block 3, Will Rogers Memorial Center Addition, and the north line of said 5A66 acre tract, a distance of 311.60 feet to a 5/8-inch iron rod stamped`Dunaway Associates"found at an inner ell corner of said Lot 1, Block 3,Will Rogers Memorial Center Addition: THENCE North 00 degrees 11 minutes 41 seconds East, along an eastern line of said Lot 1,Block 3, � ill Rogers Memorial Center Addition. a distance of 297.08 feet to a 5/8-inch iron rod stamped "Dunaway Associates"found; THENCE South 89 degrees 49 minutes 16 seconds East,along an eastern line of said Lot 1,Block 3, � ill Rogers Memorial Center Addition,a distance of 37,30 feet to a 5/3-inch iron rod with plastic cap stamped "CFW Survey'set in the west boundary line of the above mentioned remainder of 64.91 acres,at an inner ell corner of said Lot 1, Block 3,Will Rogers Memorial Center Addition; THENCE North 00 degrees 37 minutes 08 seconds West, along an eastern line of said Lot 1,Black 3,Will Rogers Memorial Center Addition, at a distance of 126.75 feet pass the northwest corner of said remainder of 64.91 acres,same being the southwest corner of the above mentioned remainder of Lot 1, Block 1, Botanic Garden Addition, and continue a total distance of 656.22 feet to a 5/8- inch iron rod with plastic cap stamped"CnV Survey'set at the westernmost northwest corner of said remainder of Loot 1, Black 1, Botanic Garden Addition, from which a spike nail found bears South 00 degrees 37 minutes 08 seconds East,a distance of 4.06 feet; THENCE South 89 degrees 38 minutes 30 seconds East, along an eastern line of said Lot 1, Block 3, Will Rogers Memorial Center Addition,same being a west line of said remainder of Lot 1, Block 1, Botanic. Carden Addition, a distance of 376,00 feet to a 5/8-inch iron rod stamped"Dunaway Associates" found at an inner ell corner of said Lot 1, Block 3, Wiill Rogers Memorial Center Addition; THENCE North 00 degrees 35 minutes 29 seconds West,along the northernmost east line of said Lot 1, Block 3, �4il1 Rogers Memorial Center Addition, same being the northernmost rest line of said remainder of Lot 1, Block 1, Botanic Garden Addition, at a distance of 59782. feet pass the northernmost northeast corner of said Lot 1, Block 3,in south right-of-way line of Harley Avenue (variable width right-of-way),then continue along said south right-of-way line a total distance of 615.84 feet to a Mag Nail found in concrete in the south right-of-way line of Harley M-enue,being at the beginning of a non-tangent curve to the left having a radius of 1240,75 feet; THENCE continuing along the south right-of-way line of Harley Avenue and the north line of said remainder of Lot 1, Block 1, Botanic Carden Addition, along said non-tangent curve to the left, a chord bearing of North 70 degrees 2222 minutes 07 seconds East, a chord distance of 333,10 feet, c?ti:0900 FILE:BOTANIC GARDENS BRIT DESCMEYTIO[ti-4-28-20 R2.DOCX PAGE 2 of 4 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 31 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 102.160 ACRES THOMAS WHITE SURVEY,ABSTRACT-1636 (CONTINUED FROM PG. 2) and an arc distance of 334.11 feet to a 5/9-inch iron rod with plastic cap stamped "CFW Survey" set; THENCE North 62 degrees 39 minutes 15 seconds East,along the south right-of-way line of Harley Avenue and the north line of said remainder of Lot 1, Block 1,Botanic Carden Addition,a distance of 52.,97 feet to a 5/3-inch iron rod with plastic cap stamped"CFW Survey"set at the northernmost corner of said remainder-of Lot 1, Block 1, same being the northwest corner of the remainder of Lot 3,Block 1,Botanic Carden Addition, from which a 5/3-inch iron rod found in the south right- of-way line of Harley Avenue,bears North 62 degrees 39 minutes 15 seconds East, a distance of 39.16 feet', THENCE South 01 degrees 46 minutes 55 seconds East, along the west line of said remainder of Lot 3, Block 1, Botanic Garden Addition,a distance of 329.87 feet to an" "cut set in concrete; THENCE South 63 degrees 04 minutes 31 seconds East, along the south line of said remainder of Lot 3, Block 1, Botanic Carden Addition, a distance of 302.,64 feet to an¢ °'cut set in concrete at the southernmost corner of said Lot 3, Blank t THENCE North 36 degrees 00 minutes 01 seconds East, along the south line of said remainder of Lot 3, Block 1,Botanic Carden Additiur�a distance of 91,62 feet to a 5/9-inch iron rod-Mth plastic cap stamped-CFW Survey'set; THENCE North 57 degrees 33 minutes 15 seconds East, along the south line of said remainder of Lot 3, Block 1,Botanic Carden Addition, a distance of 202.93 feet to a 5/8-inch iron rod found at the easternmost southeast corner of said remainder of Lot 3,Black 1,same being the easternmost northeast corner of said remainder of Lot 1, Block 1, Botanic Garden Addition, in the west right- of-way line of University Drive( ariable width right-of-way); THENCE South 00 degrees 54 minutes 29 seconds East, along the east luxe of said remainder of Lot 1, Block 1, Botanic Garden Addition, and the west right-of-way line of University Drive, at a distance of 975.76 feet pass a 5/8-inch iron rod with plastic cap stamped.CFW Survey'set at the southeast corner of said remainder of Lot 1, Block 1, same being the northeast corner of said remainder of 54.91 acres,then continue a total distance of 1805,75 feet to a 5/3-inch iron rod vy-ith plastic cap stamped "CFW SunW' set in the west right-of-way line of University Drive at its intersection with the south boundary line of said remainder of 64,91 acres, same being the north boundary line of the above mentioned remainder of 37-1 2.acres; THENCE over and across said remainder of 37-1 2 acres, over and across the abo m mentioned remainder of 4.985 acres, and generally along a wrought iron fence (line of possession) the following eleven(11)courses and distances: South 36 degrees 49 minutes 11 seconds Nest, a distance of 20.30 feet; South 00 degrees 20 minutes 05 seconds West,a distance of 843A9 feet; South 2.5 degrees 50 minutes 39 seconds Nest, a distance of 24,21 feet', South 75 degrees 17 minutes 59 seconds West,a distance of 2425 feet; South 88 degrees 32 minutes 03 seconds West,a distance of 17OAl feet; CPN:08U0 FILE:HOTAkv]C Ca1RDENE MT DESCMMO[ti_4-29-20 R2.DOCX PACE 3 of 4 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 32 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 102.160 ACRES THOMAS WHITE SURVEY.ABSTRACT-1696 (CONTINUED FROM PG, 3) • South 33 degrees 00 minutes 58 seconds West,a distance of 99.95 feet; • South 69 degrees 25 minutes 00 seconds West,a distance of 479.17 feet; • South 73 degrees 45 minutes 54 seconds West,a distance of 49.69 feet; • South 81 degrees 17 minutes 26 seconds West,a distance of 39.76 feet; • South 69 degrees 15 minutes 55 seconds West,a distance of 360.79 feet; • South 75 degrees 19 minutes 43 seconds West,a distance of 69.96 feet; THENCE departing said fence, but continuing over and across said remainder of 57-1 2 acres, a distance of 40.48 feet to a 5/8-inch iron rod with plastic cap stamped "C'FW Survey' set at the southeast corner of said remainder of 16.57 acre First Tract, in the north right-of-way line of Interstate Highway 30: THENCE North 89 degrees 50 minutes 55 seconds West, along the north right-of-way line of Interstate Highvyay 30, same being the south line of said remainder of 16.57 acre First Tract, a distance of 387.06 feet to the POINT OF BEGINNING, containing 102.160 acres of land, more or less, Sure-glor's Nate (required to remain attached to, and considered a part of, the above described 120.160 acres): In areas where no right-of-way dedication for University- Drive and Interstate Highway 30 could be located, portions of the south and east boundary-lines of above described 102.160 acre tract follow lines of possession as of the date of survey, and may not reflect actual lines of ownership. Surveyor was not provided with a commitment for title insurance. Easements, dedications, and encumbrances which are not recorded in public records and could not he determined by said survey may exist and affect encumber the above described tract. Bearings based on the Texas State Plane Coordinate System, NAD83 (2011), Epoch 2010, Texas North Central Zone 4202. Distances are in Ground, U.S. Survey-feet and decimal parts thereof, and can be comr-rted to grid by dividing by a combined scale factor of 1,00012. 1, Stuart L. � arnock, a Registered Professional Land Surveyor in the State of Texas, do hereby certify-that this document was prepared from on a survey made on the ground, from recorded documentation and evidence collected,under my direction and supervision,during the months of January,February,March, and April, 2020. 4292020 c,x pc^ -- �. STUART L.WARNOCI� RFIS,LISP — ---- --DATE „.,.,, ,.., ., TEXAS REGISTRATION NO.6579 _sT �l- _ _.r SUP v-ti:4SO4 FILE:BOTANIC C RDEItiS BRIT DESCEEMO[ti_4-29-24 R2.DOCx PAC r 4 of 4 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 33 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. EXHIBIT "B" FURNITURE, FIXTURES, EQUIPMENT,AND VEHICLES E,(_:-TANI(-- -GAP, G-ENS VE CLE ANE) EQUIF'MENT ASSET INVENT--)=Y _I5T Unit# Yea, ECtUIPMENe DESCRIPTION Cr•;1r•;1=N—{ Estimated Value 1030124 2017 JOH N DEERE GATOR HPX 9,500.00 1080100 2017 JD Gator TE 8,900.00 10801012017 JD Gator TE 8,900.00 1080102 2017 J D Gato r TE $ 8,900.00 1080103 2017 J D Gator TE S 8,900.00 1080104 2017 J D Gat or TE $ 8,900.00 2040364 2017 Ford Tommy Lift 43,193.00 2040301 2003 FORD F350 I rrigato r 155,388.00 2040301A2008 Rawson Keening L60dvw94truck bed $ 6,599.10 2060066 2007 FORD F450 Crew Cab 17,+000.00 2060133 2012 FORD F350 Dump Truck 16,000.00 501-01652001 Champion Cargo traifer 806.05 221-0029 1996 CHEVROLET 3500 Van Pending Replacement- $ 4,025.00 4th Qtr F"Y2020 6010200 2018 Kubota Tractor Leased Equipirent $ 41,500.00 maintained by PMD-Per Kubota th,e I ease can be transferred-hours updated 10.22.19 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 34 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 160-0241 2019 Kubota Mini excavator Leased Equipment $ 44.65S.oO maintained by PMa-Per Kubota the lease can be transferred-hours updated 10.22.19 5820022 1994VERMEER BigChipper $ 8,000.00 5820035 2014 REARC#T SC B Small Chipper $ 1,600.00 6020120 2012 SLAG STT V KB DF 72"Zero Turn Mower $ 6,500.00 310-0148 1994 METRO NURSERY TRAILIER $ 1,300.00 97[Y-0071 1959 Oran 3O1CW GARDEN CTR BACKUP GENERATOR $ 36,000-00 1000 Gallon ConvaultSplit Fuel Tank 500Gal diesel and 5,00gal 50,000.00 unleaded with 4"factory riser,24"factory installed spill bucket and AST Overfill protection 2 Fill Rite 702 diesel and unleaded fueling dispensers with OPW Safety Breaks and $ 4,000.00 3J4"x 20 fit hoses and 1/3 horse power electric pumps Nozzles included;2 OPW 3/4"Safety breaker and OPW 11BPfueling nozzles Network 0PW Integra 100 el ectric ta nk ga uge and OPW K800 In order to utilize the $ 23,500.00 Hybrid fuel control terminal OPW Phoenix network fuel manageme nt system, BRIT%+rill need to contact u;PW and purchase the front end Phoenixoffice SQLversion to maximize system capabilities -ota 1 $374,066.15 Less Leased Equipment $86,155.0-0 Estimated VaIueTotaI $287,911J5 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 35 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. FURNITURE CompoundGarden Center Meeting Garden Center Rock Springs Supplies Green house 54,8 foot tables 1 conference table 5 desks 1 desk 3 office chairs 18,6 foot tables 17 office chairs 16 office chairs 1 chair 6,6ft tables 10,6 foot outdoor 8,4X4 foot tables 14 chairs 1 conference table tables 25 chairs 408 indoor chairs 4 desks 8 chairs 30 chairs 694 outdoor chairs 14 benches 10 outdoor round tables 68,6 foot outdoor tables 15,8 foot outdoor tables Greenhouse equipment Misters/Humidifiers 2 Mist systems with controllers 2 Kits Plant Benches 8 Rolling 36 Rolling racks for terrariums Durable Plastic 2880 ft2 Rolling benches 824 ft2 Metal Screen Benches 69ft2 Plastic Ca its 5 Plastic 2 Metal 4 wheel 3 Metal 2 wheel 3 Hand trucks Lights 28 Fixtures with timer Potting Benches 2 Stationary with sinks 2 Moveable 1 Sink Sprayers 1 Dramm-Large 1 Dramm-small Cabinets 2 Storage cabinets and shelving MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 36 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 5 Metal Shelves 1 Plastic Shelf Miscellaneous 2 Injectors-Large 4 Injectors-small 1 Injector-Dosmatic Superpos 1 Ryobi Power Washer 1 4' ladder 1 6' ladder 1 Heavy duty pallet jack 1 Standard pallet jack —500 LF Hose Various Fans, portable Materials $8,000 Poinsettia production $2,000 Butterflies $1,300 Food Bank Program $2,000 Pots and Containers MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 37 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. EXHIBIT "C" ARTWORK `n U V V U U U V U V U V V V V U W m a a a a m a a a a a Q. a a a ~ vi ui © h h vi h vi vi h w w w h m m o o a o o a o 0 0 0 0 o a o a Z © O O © C] © O O O © O O O © © mv N N N N N N N N N N N N N N N m Q 'r � a a a a `� a a a a a a a a c CL a a a a a a a a a a a a a a a O Q m m m m m m m m m m m m m m m u $ $ 8 $ $ 8 8 $ $ o 0 0 o o 8 8 J O W ^ a0 m S~!/• m tl rl N 0000 m H N 07 K N v} V} v} v> vS v} v> v> v} u} v} N m W N t N v d W OJ N N 91 E O C r C r C C C C G 4u Cl N G G C W o 0 0 0 0 0 © o E E E o o m m Z m Vf m m V1 to CO CO J J J m m C7 l7 W v v G y m m ` a m ->w a v m v w Q > > > o > > > > > > C7 W W a n c a n a a n a n a n n n c'i _a > > —m —m —m > —m > m m z O i1'1 N LL0. 47 Vf f% Vl 4'] N V] N1 N N N fA fA W rl �O w m m 14 m w m m m 11 o oo O 0 r w w w w w m m m m m m o w a a C rmi �m-7 �m-1 �m-1 N �m-I ON N m H pp co pp pp pp ao pO po pO pp F O O O O O C] Q O N m © rl aN 2 � A rl rti 'ti r1 ri N 'i m rl C] D D � O O a 0 Z (f1 W C11 m Ch r-I h m V5 It m O O O a a O 0 m m m m m m m m m m m O } {n r1 rti rl rl ri rl 'i rl r1 rl rl .-i N N N N 0 V a a a a a a a a a a a a a a a a V 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 Q LL W LL LL LL LL LL LL LL LL LL LL LL LL LL LL uj 7 v w z E w C c b � d m r V v a qo ,a c Qo �o C LL O JO m u ¢] N O N a 0 0. ujO RO N fS m W C L .a+ a G `q G T — T L 00 ate. L oc — N L L. W 10 m Vi W 7 N m o F o �fl N z ° LL 2 i% m m U m j 2 a O Y Y A 10 0! O 0 C V V L q y r c c qEq ` Eq d v~i m obi C m v W v w O E E d F W Y 7 O C G Ol O C LV L Q 3 = O m C7 a mi �i C7 in a h a � m uVi c C G x G v m ar v a c o LO o p to of LL V C t N m �- O N ti o A ° o 0 o f c w : G m a O c L c w u W cu m 4 U OJ N N j O G L �° +O+ a `m C7 C7 4m? c cu w aci p c c a Zo o u u m c� u o v C W of O V ` ` c y w of G L 'm Q G C VI 'O G py d4 b-0 61 � V V C G c W V 3 'm G a O h0 '7i O O �m 2 V m a 33 om om Jm .ai 'D. m MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 38 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. W u u u 3 Z 3 3 3 3 3 3 3 3 3 3 3 3 3 3 66 U. U. L6 L w U. w w 3 3 3 G V V V u u u u u u u V u V u u u V lL 1L V. V w C H v C E a, N o 7 OC C C N m E L o °J l7 L j (u o 2 o� v O 3 r o a y r o mr -2 . 3 0 c y v z > t � 3 ,; a, M v 0 V Z V 1L V J°I N H Vrf l� W O Z Q V1 a a a a NA 00 pO pC 00 cn pOp pO 0 U7 O 8 -. 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T T Y 10 w V 10 a°+ a ? a 10 Y c a L O O J O J J Y a w N O m O O I T` w ro N ] G C W O m i° m 't c O u ; m a a ° m O c O y - h O 7 7 7 O J G m r E y � u > 0 0. o O a 3 L �7 0 c v E o F_ v 0 m ° w E c yCL O w O C c OO o CE m c . o ate+ w v '> a� N L E Y w M w Y Y C E .� V 7 O w > 4 �u C O _� N �_ pip 2w2 w w O O Aj W O 10 c L a ° — U w Y E w w F A ,� w w `! C a w c u o E o c c c i v a ocu ; > O O . O m C L L w y 10 10 o C Tri O T N w N H A L ° C C a E a l w w w a > o ° m w ° o c c m m E ° o 0 0 0 m m a n 0 u v w a w w w w m 0 E c c .. E 0 r r MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 42 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. V 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 a 3 LL tL LL LL LL W W V U V U V U U U V U V U U U U U V U Z U O O J O O 4! 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O O p _ E o u m m m E L E E 3 � a a s 3 O m u Q ¢ ¢ u d` d -1 d` w ar vl at c in u 00 O a0+ O am+ N V y CM j 41 41 m C tt In i rR 3 loi > > d d Q Q :� z H (D Q E 0. 0. a0' r y a m 10 rn m rn 0 i m in 14 � N m m a, o, m o m m O o 0 N L C X d 3 F L VI V C > Y r c > O E t C o v u . o y C O m Vrz w c 0 Y >> 41 Y y C C m w J v m J 0 'N IOL t u no w L O ' 0 4) w 41 c n c vo d > 0vpyp C 4)4) I`0 T LL °` E J ¢ 7 O O °h0 C u.l 04 •o+ c ti m = w 0 E L° c c v m o n o m Ip ut N N N m c O a 0 A O O m m m m 2 _ _ v '� 0 O 3 0 7 N w O C� 0 v m cm N d - F M J 1 Q J m d V) K V C d' d = C '1 C c O O lyj m O V 7 0 V> C N � m h Y N C C O O O C C C � Vmj 3 d d C 3 Q V1 1 y , C C _ .0 O C c C c_ C > -i 'W C W w .0 C C C > c Y Q C N O O E N O O O 0 W a� i > > v y vv_ ai ai ai ai a 0 E 3 N n c c C c m m p W m m m d O O O O — — — ; — e4 c o m > > > > 3 3 3 L 3 c E 4�i '0 3 E 0 0 0 m m m °o ' _ o L° ,, o 0 y 4J Q N N C C C 121 LA N Q v v v Vl v 41 w 41 5 6 6 E 5 Z Z Z Z .L c c v v v E E E E E m L N > > ; m m m a v o a a a s a s a 0 0 04 w m m m m m m a - & a, m m m — m— m 4o 4o m m m a m ro O v v `! d O O O N VI VI m N m N VI VI VI VI VI VI VI 0 C O = s K ; OC ; s o: o: = C ow 0- 0. 1 OL MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 43 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. I. V [77 Q Z V t' L L u Y O pO O <ri ri VY W G O N y N � m J N l G 01 w E r, N N V 10 a T N G W a :2 E O O = V w v ICE 10 C O C Y G 0J C 10 E G O N O1 L � � O m a D: y MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 44 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. EXHIBIT "D" IT AND COMMUNICATIONS SYSTEMS AND EQUIPMENT COMPUTER EQUIPMENT Item Quantity Status Name/Item Model Dell ID Computer 1 New Equipment Linda Tate Latitude 7400 42244 Computer 1 New Equipment Admission Latitude 7400 42535 Computer 1 New Equipment Cora Dudash Latitude 7400 42546 Computer 1 New Equipment Employee Kiosk 1 Latitude 7400 42564 Computer 1 New Equipment Debbie Garrett Latitude 7400 42628 Computer 1 New Equipment Gail Manning Latitude 7400 42745 Computer 1 New Equipment Bob Byers Latitude 7400 42746 Computer 1 New Equipment Christopher Brock Latitude 7400 42747 Computer 1 New Equipment Employee Kiosk 3 Latitude 7400 42748 Computer 1 New Equipment Open Latitude 7400 42749 Computer 1 New Equipment Admission Latitude 7400 42750 Computer 1 New Equipment Pamela Grimes Latitude 7400 42751 Computer 1 New Equipment Rover 137814 LAP Latitude 7400 42752 Computer 1 New Equipment Ennis Anderson Latitude 7400 42753 Computer 1 New Equipment Agnieszka Slocia- Latitude 7400 42754 Knasiak Computer 1 New Equipment Santos Latitude 7400 42241 Computer 1 New Equipment Teal Delli Gatti Latitude 7400 42235 Computer 1 New Equipment Rover 2 378185LAP Latitude 7400 42240 Computer 1 New Equipment Stephanie Sellers OptiPlex 7070 MFF 41127 Computer 1 New Equipment OptiPlex 7070 MFF 41143 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 45 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. Computer 1 New Equipment OptiPlex 7070 MFF 41157 Computer 1 New Equipment Robert Bauereisen Optiplex 7070 MT 41986 Computer 1 New Equipment Robert Howard Optiplex 7070 MT 42000 Computer 1 New Equipment Label computer Optiplex 7070 MT 42001 Computer 1 New Equipment Steven Huddleston Optiplex 7070 MT 42003 Computer 1 New Equipment Rachel Taylor Optiplex 7070 MT 42005 Computer 1 New Equipment Optiplex 7070 MT 42008 Computer 1 New Equipment Employee Kiosk 4 Optiplex 7070 MT 42010 Computer 1 New Equipment Employee Kiosk 2 Optiplex 7070 MT 42014 Computer 1 New Equipment Darcy Gustafson Optiplex 7070 MT 42015 Computer 1 New Equipment Label computer Optiplex 7070 MT 42018 Computer 1 New Equipment Gift shop Optiplex 7070 MT 42019 Computer 1 New Equipment Booking 1 Optiplex 7070 MT 42022 Computer 1 New Equipment Admin Desktop Optiplex 7070 MT 42023 Monitor(s) 3 Transfer Admissions Misc. 35 monitors, 33 keyboards, 33 mice, and 10 docking stations FIBER Item Quantity Status Description Fiber 2 New Equipment Chatsworth Wall Cabinet Fiber 7650 New Equipment Corning 6 Strand SM OSP Fiber Fiber 1500 New Equipment Corning 12 Strand SM OSP Fiber Fiber 3200 New Equipment Corning 36 Strand SM OSP Fiber Fiber 2 New Equipment Corning 4U Rack Mount Enclosure Fiber 2 New Equipment Corning W Rack Mount Enclosure Fiber 3 New Equipment Corning Small Wall Mount Enclosure Fiber 8 New Equipment Corning 3 Duplex LC SM Panel Fiber 8 New Equipment Corning 6 Duplex LC SM Panel Fiber 158 New Equipment Corning LC SM Unicam Fiber Connector Fiber 10 New Equipment Corning 6 Fan Out Kit Fiber 10 New Equipment Corning 12 Fan Out Kit Fiber 1 New Equipment Fusion Splicing MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 46 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. NETWORK Item Quantity Status Description Network 2 New Equipment SMARTUPS SC450 W/NETWORK MANAGEMENT CARD Network 1 New Equipment Catalyst 9500 16-port 10Gig switch, Essentials Network 1 New Equipment SOLN SUPP 8X5XNBD Catalyst 9500 16-port 10Gig switch, Netw Network 1 New Equipment 950W AC Config 4 Power Supply front to back cooling Network 3 New Equipment Catalyst 9200 24-port PoE+, Network Essentials Network 3 New Equipment SOLN SUPP 8X5XNBD Catalyst 9200 24-port PoE+, Network Esse Network 3 New Equipment 600W AC Config 6 Power Supply-Secondary Power Supply Network 12 New Equipment 10GBASE-SR SFP Module Network 6 New Equipment Catalyst 9200 Stack Module Network 3 New Equipment Cisco Catalyst 9200 Stack Module Network 2 New Equipment Catalyst 9200 24-port PoE+, Network Essentials Network 2 New Equipment SOLN SUPP 8X5XNBD Catalyst 9200 24-port PoE+, Network Esse Network 2 New Equipment 600W AC Config 6 Power Supply-Secondary Power Supply Network 5 New Equipment UNIFI ACCESS POINTS AC PRO 5PK POE NOT WRLS INCLUDED Network 1 New Equipment UNIFI AP AC PRO WRLS Network 3 New Equipment UNIFI AP AC MESH PRO WRLS NETWORK Item Quantity Status Description Serial# Network 1 Transferring to BRIT WS-C3850-48U FCW2124COW7 Network 1 Transferring to BRIT WS-C3850-24U FOC2122L3XT Network 1 Transferring to BRIT WS-C3850-24U FOC21221-158 Network 1 Transferring to BRIT WS-C3850-24U FOC21221-21F Network 1 Transferring to BRIT WS-C3850-24U F0C2123U1AP Network 1 Transferring to BRIT WS-C3850-24U FCW2123C04X Network 1 Transferring to BRIT WS-C3850-24U FCW1916DONR TELEPHONES AND FAX MACHINES Item Quantity Status Old Description New Description Status Phones 38 Existing Equipment Polycom Phones New Equipment TBD Analog Lines 9 Existing Equipment Polycom analog Lines New Equipment TBD MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 47 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. SECURITY EQUIPMENT Item Quantity Existing Equipment New Equipment Status Security 2 Bosch Analog cameras 1080P H.265 OUTDOOR VANDAL DOME W/IR LED Ordered Security 5 Bosch Analog cameras WV-S2531LN PANASONIC 1080P H.265 OUTDOOR VANDAL Ordered DOME W/IR LED Security 5 26 bit HID card readers (5) 37 bit readers HID GLOBAL CORPORATION Ordered 125 kHz mullion mount 920PTNNEK00000. MultiClass Reader, RP40,Wall Switch, proximity card reader HID/AWID/EM4102 Prox, SIO/SEOS+ Legacy,Std Ver. 1 Base Part Number • Keyset,Wiegand, Pigtail Cable: 18" (0.45m), Idel LED, Red, 5365, 5368, Power Response: Green LED, 1 Beep, Black requirements: 5-16 VDC Dimensions: 6.0-x 1.7-x 1.0- (15.2 cm x 4.3 cm x 1.91 cm) Security 1 Bosch controllers Access Door Controllers: Mercury Panels LP 1502 Ordered model number: Bosch APC-AMC2-4R4CF AMC2 Door Controller Security 1 Bosch Intrusion Alarm Will be replaced by STS360 Panel Future Panel at main BG Site MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 48 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. EXHIBIT "E" 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 Texas nonprofit corporation exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, . 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. ("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") ❑ 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 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 49 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 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 BRITMAY 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, BRITSHALL 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 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 OMISSIONS) MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 50 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 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 Agreement, 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 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. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 51 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 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 Majeure. 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 AuthoritX. 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] MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 52 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 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: MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 53 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. SCHEDULE 1 NETWORK ACCESS AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS, INC. (CITY SECRETARY CONTRACT 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 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 54 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. EXHIBIT "F" FACILITY ASSESSMENT—EXECUTIVE SUMMARY Executive Summary FWBG Assessment Priority Ranking RANKING CATEGORIES- 1) Life Safety; 2) Prevention of further/future deterioration; 3)Visitor Experience; 4)Wait on Master Plan. RANK ZONE Bldg BUILDING NAME GENERAL ASSESSMENT COST 1 1 3 Conservatory Replace glazing &framing system, $2,266,314 drainage improvements, accessibility items, canopy replacement, boilers, heaters, ventilation fans/air curtains, plumbing valves, mister system, water pump, electrical elements, and fountain repairs. 1 2 13N- Production Building demolition and replacement. $1,001,880 B Fiberglass Greenhouse 1 3 18-4 Karesansui Building demolition and replacement. $872,850 1 2 13N- Production Glass Equipment and glazing replacement, $702,078 A Greenhouse structural repairs, electrical and mechanical element replacement, and accessibility items. 1 2 15 Rock Springs Kitchen renovations, firewall repairs, $399,961 Center electrical panel replacement and and The Gardens circuitry repairs, site drainage Restaurant elements, and accessibility repairs. 1 2 13N- Quonset House Building demolition and replacement. $376,740 E Storage 1 3 18-8 Moon Brid a Building demolition and replacement. $60,720 1 3 18-7 Hill Arbor Building demolition and replacement, $33,840 and pavement modifications. 1 4 13S South Production Repair structural connections, $28,601 Greenhouse mechanical vent repair, VCT flooring installation, electrical wiring repair and exit lighting replacement. 1 4 20 Cactus Garden Install shed tie down anchors, install $6,720 permanent code compliant electrical wiring and repairs, and pavement upgrades. 1 4 10 Compost Outpost Install shelter tie down anchors, and $6,660 mulch pathway dressing. 1 4 25C Backyard Reset piers and tie downs, and install $3,240 Vegetable GFI electrical outlet. Garden Storage Shed 2 2 9R Parking Areas and Irrigation line replacement, north $2,709,600 Miscellaneous perimeter fence replacement, Site roadway and path improvements, MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 55 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. Areas drainage improvements, and erosion control. 2 1 1 Deborah Beggs Fountain repairs, hardware updates, $1,455,059 Moncrief Garden repair of finishes, exterior envelope, Center accessibility items, entry canopy, RTU replacement, plumbing fixtures, electrical lighting panel and generator replacement. 2 5 33 South Vista Entrance gate fountain repair, site $887,400 excavation, grading and drainage improvements, landscape and irrigation modifications, dredge lagoons, and French drain installation. 2 1 4 Dorothy HVAC replacement, exterior $822,950 Leonhardt maintenance, ceiling repairs, Lecture Hall hardware updates, accessibility items, plumbing and electrical items, site and irrigation improvements, and fountain repairs. 2 5 29 Victor and Replace south perimeter fence, $797,250 Cleyone address Tinsley Rock drystack walls, expansion joints, paint Springs repair, install guardrails at bridge, Garden address boardwalk beam seats, drainage and irrigation improvements. 2 3 18- Waterfall Pond repairs and liner replacement. $750,000 16 2 1 7 Adelaide Polk Irrigation line replacement, new $250,464 Fuller irrigation system, paving and drainage Garden repairs, fountain repairs, pedestrian bridge maintenance, and garden element repairs. 2 5 28 Rose Ramp Drainage, fountain, and irrigation $246,000 improvements 2 2 17A Exhibition Glazing and equipment replacement, $206,386 Greenhouse and accessibility items. 2 2 17B Tri-Plex Building Exterior wall waterproofing and $174,834 grading upgrades, mechanical equipment replacement, site paving and drainage upgrades. 2 3 18- Pavilions Roof, siding, soffit and trim repairs, $160,203 13 kitchen upgrades, electrical equipment replacement, handrail and guardrail replacement. 2 3 18- Treasure Tree Gift Exterior wood paneling cleaning and $78,972 18 Shop replacement, paver replacement, mechanical &plumbing repair/replacement, guardrail, door/hardware, casework and flooring replacement, and electrical repairs. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 56 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 2 5 32 Oval Rose Garden Metal lattice maintenance, repoint $59,206 columns, lighting upgrades, irrigation and drainage improvements. 2 5 27 Shelter House Foundation repair, masonry $43,704 repointing, install accessible ramp at structure, resurface parking lot, and install accessible curb ramp. 2 5 26 Perennial Garden Dredge pond, install storm inlet and $35,100 drain pipe, construct swale, and minor electrical repair. 2 5 30 Lower Rose Fence and gate maintenance items, $32,356 Garden and repair wall cracking. 2 3 18- Mikoshi Shrine Roof, paneling, stair and trim $31,352 15 replacement, and paving walkway reconstruction. 2 4 9J Japanese Garden Asphalt overlay and striping, $31,200 Parking incorporate curb cut and flume. 2 3 18-5 Lake Arbor Floor beam, decking, and guardrail $16,215 replacement. 2 3 18- Miscellaneous Repair ramp structure, fence repairs $14,760 ST Structural and upgrades, pavement Elements replacement, concrete beam repair at bridge, steel beam paint coating at bridge. 2 3 18-1 Main Entrance Wood material element replacement, $11,530 Gate and site paving upgrades. 2 4 21 Grove Replace interpretive sign and $9,960 resurface asphalt roadway. 2 4 25D Backyard Install 6 piers and relevel grade $7,200 Vegetable beam. Garden Greenhouse 2 3 18- Summer House Wood trim replacement. $406 10 3 3 18-SI Miscellaneous Accessibility repairs, irrigation $423,000 Site upgrades, paving and site element Elements repairs. 3 2 11 Texas Native Boardwalk maintenance, entrance $172,602 Forest repairs, paving improvements, Boardwalk accessibility items, lighting and exterior facility upgrades. 3 1 2 Margery Leonard Drainage and pavement repairs, $86,400 Courtyard fountain repairs, and irrigation upgrades. 3 1 5 George Beggs,Jr. Exterior paving and drainage $25,800 Garden improvements, fountain and irrigation repairs. 3 5 31 Republic of Texas Repair cedar arbors, add skirt at $17,850 Garden EWC, incorporate drainage improvements. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 57 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 3 3 18- Exit Replace turnstile gate, steps, ramp $17,400 19 and railing, and repair courtyard fencing. 3 3 18- Bride's Room & Countertop replacement, mechanical, $11,382 12 Restrooms plumbing and electrical upgrades, and utility water line replacement. 3 3 18-9 Mary K. Umstead Exterior refinishing, guardrail and $11,316 Teahouse pathway replacement. 3 4 25 Backyard Repair drinking fountain, top-dress $9,180 Vegetable granite pathways, and replace Garden damaged entry gates, 3 4 25B Backyard Removed exposed nailing on $7,155 Vegetable underside of decking, replace door Garden Playhouse hardware, replace accessibility ramp, repair trim and surfaces, replace porch column, and install GFI electrical outlet. 3 3 18-6 Waterfall Handrail replacement and guardrail $3,450 Overlook modifications. 3 3 18- Pagoda Material surface cleaning, trim $810 17 replacement, and electrical upgrades. 4 2 14 North Vista Drainage, landscape and irrigation $648,000 improvements. 4 2 13N- Break Room Building envelope and interior $348,360 D Building upgrades, electrical and mechanical elements. 4 1 9N,9 Parking Areas and Entry wall repairs, paving and $337,800 S Main Entrance drainage improvements, and fountain upgrades. 4 4 9W Weekend Parking Incorporate accessible sidewalk, $147,120 lighting upgrades, drainage improvements, asphalt overlay and striping, install curb cut and flume. 4 1 6 Water Retaining wall repair, incorporate site $52,221 Conservation lighting, pavement improvements and Garden accessibility items. 4 4 22 Trial Garden Replace pavilion and shed structures, $46,770 and replace landscape timber edging. 4 2 12 Sister Cities Pedestrian bridge replacement. $42,000 International Grove 4 3 18- South Restrooms Sanitary sewer line replacement, $35,280 20S replace drinking fountain, and lighting upgrades. 4 3 18- Moon Viewing Paving replacement, and stair $22,008 11 Deck modifications. 4 3 18-3 Suzuki Garden Paving and walkway repairs. $12,600 4 3 18-2 Ticket Office Screen wall, wood trim, hardware, $9,819 and electrical items. MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 58 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 4 3 18- North Restrooms Replace ceilings, signage and door $9,113 20N hardware, seal concrete, mechanical upgrades, remove drinking fountain, and lighting upgrades. 4 3 18- Checkerboard Paving, steps and handrail upgrades $9,000 14 Bride at feeding station. 4 2 13N- Shop Office Paving repairs and cladding $7,507 C replacement 4 2 16 Fragrance Garden Pavement repairs. $1,440 4 4 25A Backyard Perform rain gutter maintenance. $0 Vegetable Garden Pavilion 4 4 23 Four Seasons No recommendations. $0 Garden 4 4 24 Horseshoe No recommendations. $0 FWBG Facility Assessment Total $17,107,094 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 59 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. EXHIBIT "G" FISCAL YEARS 2020 AND 2021 CAPITAL EXPENDITURES Project Total Cost Rose Ramp Fountains $ 195,179.00 Replace Fiberglass Greenhouse $ 1,034,969.00 South Vista $ 282,240.00 Conservation Greenhouse Repairs $ 75,825.00 Full Moon Bridge $ 50,606.00 Moncrief Garden Center $ 231,865.00 Hill Arbor $ 35,750.00 Fuller Garden Paving $ 75,254.00 Restaurant/Rock Springs Building $ 60,021.00 South Restroom $ 33,696.00 Shelter House $ 116,929.00 Site Amenities(Water Fountain,Elec.) $ 69,080.00 Old Garden Road Renovation $ 1,192,856.00 Southwest Quadrant Renovation $ 495,729.00 Front Entry $ 0.00 IT Upgrade $ 350,000.00 Total Cost $ 4,300,000.00 MANAGEMENT AGREEMENT FOR THE FORT WORTH BOTANIC GARDEN Page 60 of 60 BETWEEN THE CITY OF FORT WORTH AND THE BOTANICAL RESEARCH INSTITUTE OF TEXAS,INC. 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