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HomeMy WebLinkAboutContract 45061 (2)Lease Agreement between City of Fort Worth and Events Facilities Fort Worth, Inc. LEASE AGREEMENT THE STATE OF TEXAS § COUNTY OF TARRANT § CITY SECRETARY CONTRACT NO. -.r it was .. THIS LEASE AGREEMENT ("Agreement") is made and entered into by and between Event Facilities Fort Worth, Inc., a Texas non-profit corporation, acting by and through Mike Groomer, its duly authorized President ("EFFW"), and the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager ("City"), as of September 26, 2013 ("Effective Date"). RECITALS WHEREAS, the City owns certain parkland located at 3220 Botanic Garden Boulevard, Fort Worth, Texas 76107, commonly known as the Fort Worth Botanic Garden ("City Property"); and WHEREAS, EFFW, as a support organization to Southwestern Exposition and Livestock Show, is the owner of an approximately 18.746 acre tract ("EFFW's Property") located immediately adjacent to the north and west of the City Property; and WHEREAS, as part of its construction of a parking lot on EFFW's Property, EFFW has constructed a new retaining wall ("New Wall") on EFFW's Property along the northern boundary of the Fuller- Garden in the City Property to provide a more attractive and stable retaining structure; and WHEREAS, EFFW and the City entered into a License Agreement dated as of November 16, 2011, the City Secretary Contract No. 42559 ("2011 Agreement") pertaining to EFFW's construction of the New Wall; and WHEREAS, pursuant to the 2011 Agreement, EFFW has continuing maintenance and repair obligations for the New Wall and the responsibility for paying for the initial landscaping on the south side of the New Wall adjacent to the City Property; and WHEREAS, pursuant to Section 5(a) of the 2011 Agreement, the City has elected to install and maintain the landscaping on the south side of the New Wall adjacent to the City Property pursuant to a mutually approved landscape plan with EFFW paying the City $ $21,225.86 to apply against the costs of this landscaping; and WHEREAS, EFFW desires to lease to the City an area of approximately 0.258 acres, as shown as "Lease Area" on the attached Exhibit "A", so that the City may install and maintain the landscaping and use the Lease Area throughout the Term in a manner consistent with the City Property. ©FF8CGB L RECp . D CITY SECRET/ARV ORM RECEtVb flCT8i7t3 'age I of 8 NOW THEREFORE, for and in consideration of the mutual agreements stated herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. LEASE AREA. EFFW leases to the City, and the City leases from EFFW the Lease Area foi the City's uses associated with the City Property Other than EFFW's continuing obligation to maintain and repair the New Wall, the City shall have the exclusive right to control the Lease Area throughout the Term. 2. TERM. The term ("Term") of this Lease commences on the Effective Date and continues for a term coterminous with the 2011 Agieement which expires on November 30, 2031 (the "Term"). The Term shall renew automatically for two additional ten (10) year renewal terms unless either party gives the other party written notice at least sixty (60) days prior to the commencement date of the applicable renewal term that the renewal term shall not be exercised or approved. 3. LEASE RENTAL. The City shall pay EFFW $1.00 per year as rental for the lease and use of the Lease Area. 4. MAINTENANCE AND REPAIR. EFFW shall have the right, upon no less than ten (10) days prior notice to the City (except in an emergency when no notice is required) to enter the Lease Area for the purpose of maintenance and repair of the New Wall. The City shall not make any alterations to the New Wall without EFFW's express prior written consent, and the City shall promptly notify EFFW if the City becomes aware of the need for any repair or maintenance of the New Wall. Other than EFFW's responsibility to maintain and repair the New Wall, EFFW shall have no obligation to perform or pay for any maintenance or replacement of landscaping, irrigation systems, or any other improvements on the Lease Aiea. The City shall, at the City's sole cost and expense, maintain the landscaping and irrigation systems in the Lease Area in a manner consistent with the City Property. 5. COMPLIANCE WITH LAW. The City's use of the Lease Area must be in accordance with all applicable laws, rules, regulations, ordinances, and restrictions in effect during the Term. 6. WAIVER OF LIABILITY. EFFW shall not be responsible for any claims arising out the use and occupancy of the Lease Area by the City, its employees, agents, contractors, subcontractors, and invitees, and the City waives all claims against EFFW for any property damage or personal injury occurring in the Lease Area during the Term, even if the damage or injury is alleged to arise out of some condition on the Lease Area. 7. As Is. The City accepts the Lease Area in "as is" condition as of the Effective Date. 8. EVENT OF DEFAULT. If either party fails to comply with its obligations under this Lease, the non -defaulting party may terminate this Lease upon written notice to the other party and may pursue any remedies available at law or in equity. Lease Agreement between City of Fort Worth and Events Facilities Fort Worth, Inc. Page 2 of 8 9. RELATIONSHIP. Neither EFFW nor the City shall be construed, by virtue of this Lease, to be the agent, partner, joint venturer, or associate of the other. 10. CONTRACTOR'S INDEMNIFICATION. The City must include the following language in any contract it enters into with any contractor, subcontractor, or vendor that the City hires to perform work in the Lease Area: [Contractor] shall indemnify, defend, and hold harmless the City of Fort Worth, Southwestern Exposition and Livestock Show, Event Facilities Fort Worth Inc. , and Fort Worth Botanical Society, Inc., and any and all parties claiming by, through, or under those entities (collectively, "Indemnified Parties") from and against, any and all liabilities, losses, damages, costs, expenses (including, without limitation, court costs, reasonable attorneys' fees, and expenses), causes of action, suits, claims, demands, or judgments, of any nature, whether foreseen or unforeseen, ordinary or extraordinary (collectively, "Claims"), arising or alleged to arise from or in connection with any injury to or death of any person or any damage to or loss of vehicles or any other property of [Contractor:), its employees, agents, volunteers, invitees, contractors, and subcontractors, or any other third party on or about the Lease Area arising out of or connected with [Contractor's] use of the Lease Area or in connection with or arising out of [Contractor's] obligations under this agreement, even if such claims result from or are claimed to have resulted from the concurrent negligence of the Indemnified Parties. At least ten days prior to the commencement date of the Term, the City shall furnish EFFW with a copy of its agreement(s) with the contr actors, subcontractors or vendors showing the inclusion of the indemnification provision provided above. 11. CONTRACTOR'S INSURANCE. The City must include the following language in any contract it enters into with any contractor, subcontractor, or vendor that the City hires to perform work in the Lease Area: [Contractor] shall, at its sole expense, maintain in effect at all times during its work in the Lease Area the following insurance coverages from insurance companies licensed to do business in the State of Texas covering [Contractor] for its operations on, in, or about the Lease Area with limits not less than the following: Coverage Limits (a) Workers' Compensation Policy Workers' Compensation Employer's Liability Statutory Limits $500,000.00 Lease Agreement between City of Fort Worth and Events Facilities Fort Worth, Inc. Page 3 of 8 This policy must include a Waiver of Subrogation in favor of the City of Fort Worth, Southwestern Exposition and Livestock Show, and Event Facilities Fort Worth, Inc. (b) Commercial General Liability Policy Bodily Injury/Property Damage $1,000,000.00 combined single limit $1,000,000.00 aggregate This policy shall include broad form contractual coverage and must name the City of Fort Worth, Southwestern Exposition and Livestock Show, and Event Facilities Fort Worth, Inc. as additional insured parties. This policy shall be primary insurance to Licensor as respects any other insurance carried by Licensor. At least ten days prior to the commencement date of the Term, the City shall require the contractors, subcontractors and/or vendors to furnish EFFW with certificates of insurance evidencing these coverages and the waiver and naming the City of Fort Worth, Southwestern Exposition and Livestock Show, and Event Facilities Fort Worth, Inc. as additional insured parties. 12. NOTICES. Any notice provided for or permitted under this Lease shall be made in writing and may be given or served by (i) delivering the same in person to the party to be notified, or (ii) depositing the same in the mail, postage prepaid, certified with return receipt requested, and addressed to the party to be notified, or (iii) sending by facsimile, with a copy thereof sent by registered marl on the same day. If notice is deposited in the marl pursuant to (ii) or (iii) of this Section 12, it will be effective upon receipt or refusal. For the purpose of notice, the addresses of the parties are, until changed as provided below, as follows: If to the City: City of Fort Worth Attn: City Manager 1000 Throckmorton Fort Worth, Texas 76102 with copies to: City of Fort Worth Attn: Parks and Community Services Director 4200 South Freeway Suite 2200 Fort Worth, TX 76115-1499 City of Fort Worth Attn Assistant City Attorney 1000 Throckmorton Stieet If to EFFW: Events Facilities Fort Worth, Inc. Attn: Mike Groomer 505 Main Street, Suite 240, MS-21 Fort Worth, TX 76102 with copies to: Kelly Hart & Hallman LLP Attn. Jared P. Harrell 201 Main Stieet, Suite 2500 Fort Worth, TX 76102 Lease Agreement between City of Fort Worth and Events Facilities Fort Worth, Inc. Page 4 of 8 Fort Worth, TX 76102 However, the parties may from time to time change their respective addresses, and each has the right to specify as its address any other address upon at least ten days written notice to the other party. 13. BINDING. All provisions contained in this Lease are binding upon inure to the benefit of, and are enforceable by the respective successors and assigns of EFFW and the City. The provisions of this Lease may be amended, waived, or terminated only by an instrument signed by EFFW and the City. 14. GOVERING LAW: VENUE. This Lease shall be construed in accordance with and governed by applicable laws of the State of Texas. Venue for any action brought to interpret or enforce, or arising out of or incident to, the terms of this Agreement shall be in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 15. SEVERABILITY. The provisions of this Lease are severable, and if any word, phrase, clause, sentence, paragraph, section, or other part of this Lease or the application thereof to any person or circumstance shall ever be held by any court of competent Jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Lease and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Lease to other persons or circumstances shall not be affected thereby, and this Lease shall be construed as if such invalid or unconstitutional portion had never been contained therein. 16. GOVERNMENTAL POWERS. By execution of this Lease, the City does not waive or surrender any of its governmental powers. 17. ENTIRE CONTRACT This Lease (including the attached exhibits) contains the entire agreement between EFFW and the City, and no oral statements or prior written matters not specifically incorporated herein are of any force and effect. No modifications are binding on either party unless set forth in a document executed by that party. 18. COUNTERPARTS. This Lease may be executed in several counterparts, all of which when taken together shall constitute one and the same agreement. [Remainder of Page Intentionally Blank] Lease Agreement between City of Fort Worth and Events Facilities Fort Worth, Inc. Page 5 of 8 IN WITNESS WHEREOF, the parties have executed this Lease to be effective as of the date first above written in Fort Worth, Tarrant County, Texas. EFFW: Event Facilities Fort Worth, Inc., a Texas non-profit corp % / ation Mik- Groomer President Lease Agreement between City of Fort Worth and Events Facilities Fort Worth, Inc. CITY: City of Fort Worth, a Texas municipal corporation By: Susan Alanis Assistant City Manager APPROVED AS TO FORM AND LEGALITY: CIAArik tfer yler F. Wallach Assistant City Attorney ATTEST: Mary J. Kays City Secretar -__-►_ .r1 .+sv ... •_a. ..r..•• rr... -.-r+.ea. . NO NAC REQUIRED • FF COL EC RD ©6TY SECREMiinli flats ORIN, TX Page 6 of 8 ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF TARRANT This instrument was acknowledged before me on Sip/ 'm b e a-6 , 2013, by Mike Groomer, President of Event Facilities Fort Worth, Inc., a Texas non-profit corporation. � Sharon Lee McClung • My Commission Expires 01 /10/2015 9' �OF STATE OF TEXAS COUNTY OF TARRANT liltNotary Public, State of Texas ACKNOWLEDGMENT This instrument was acknowledged before me on , 2013, by Susan Alanis, Assistant City Manager of the City of Fort Worth, a Texas municipal corporation, on behalf of the City of Fort Worth. r f' .1 LINDA M, HIRRLINGER st MY COMMISSION EXPIRES February 2, 2014 Mk, d�'1 ?JLLuctA Notary Public, State of Texa Lease Agreement between City of Fort Worth and Events Facilities Fort Worth, Inc. Page 7 of 8 EXHIBIT "A" Plat Showing Lease Area t:11 ;4i: 1 :-i -!I 11:1_ 11:1: Zu IS 13 1vl 3N7 fJ&?dONd 11111111111111111111111 rn z 0 ,,..,p .. i-1::.:d:-, aps.trtat Lease Agreement between City of Fort Worth and Events Facilities Fort Worth, Inc. Page 8 of 8