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HomeMy WebLinkAboutContract 42731STATE OF TEXAS § COUNTY OF TARRANT § LICENSE AGREEMENT CITY SECRETARY �2� 3 CONTRACT NO. - This LICENSE AGREEMENT ( "Agreement ") is made and entered into by and between the City of Fort Worth (the "City "), a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and the Fort Worth Symphony Orchestra Association (the "FWSOA "), a Texas non -profit corporation, acting by and through its duly authorized President. 1. Purpose The purpose of this Agreement is to establish the terms and conditions pursuant to which the City will provide FWSOA with use of designated portions of the Fort Worth Botanic Garden (the "Garden ") for the purpose of conducting the "Concerts in the Garden" ( "CITG ") series, consisting of performances by the FWSOA and other artists (hereinafter referred to as the "Event ") . 2. Premises This Agreement addresses the use by FWSOA of the following tracts of land (collectively, the "Premises ") located in the Fort Worth Botanic Garden, 3220 Botanic Garden Boulevard, Fort Worth, Texas 76107: Tract One — CITG Site Being an approximately 20.5 acre tract of land bounded generally by the southern right -of- way of Rock Springs Road on the South, Old Garden Road on the West and North, and University Drive on the East. The location and boundaries of Tract One are illustrated in Exhibit A, which is attached hereto and incorporated herein for all purposes as though it were set forth at length. Tract Two — CITG Parking Consisting of the following three parking lots and street -front parking area: the Weekend Parking Lot (9W), the Japanese Garden Lot (9J), the Gardens Restaurant Lot (9R), and parking along Rock Springs Road. The location and boundaries of Tract Two are illustrated in Exhibit A, which is attached hereto and incorporated herein for all purposes as though it were set forth at length. FWSOA License Agreement Page 1 of 16 Tract Three — Garden Center Parking Consisting of two designated parking lots: the Botanic Garden Center North Lot (9N) and the Botanic Garden Center South Lot (9S). The location and boundaries of Tract Three are illustrated in Exhibit A, which is attached hereto and incorporated herein for all purposes as though it were set forth at length. Office Space Being an interior office in the Rock Springs Building to be designated on each Event date by the Garden director or that individual's designee. 3. Permitted Use Tract One For and in consideration of the monetary payments to be made hereunder for the benefit of the Garden and subject to the other conditions and terms provided herein, the City does hereby agree to license to the FWSOA the property identified above as Tract One for up to sixty (60) days each calendar year, with no more than thirty (30) concert dates, for the purpose of (i) erecting a band shell, backstage area, patron tables, and lawn seating for the CITG concerts and (ii) providing parking for artists and other FWSOA Event personnel along Rock Spring Drive between University Drive and Old Garden Road. FWSOA shall be granted access to and use of Tract One on each Event date beginning at 3:30 p.m. On each Event date, the Garden entrance at University Drive and Rock Springs Drive will be closed to the public at 3:30 p.m. and access will be controlled by FWSOA security to allow for FWSOA parking. The Garden director shall have authority, in his sole discretion, to close the Garden entrance and /or allow FWSOA access to Tract One at an earlier time on an Event date. For 2011, the Event dates shall be June 3, 4, 5, 10, 11, 12, 17, 18, 19, 24, 25, and 26, and July 1, 2, 3, and 4. For all subsequent years, the FWSOA shall coordinate with Garden staff (i) to establish an initial proposed schedule for the Event dates at least one year prior to the date of the first concert and (ii) to determine a finalized schedule no later than September 1. In addition to use associated with holding the Event, FWSOA shall be provided reasonable access to and use of Tract One for rehearsal purposes. Exercise of this privilege shall be contingent on FWSOA contacting the Garden director at least three weeks prior to the date of the first concert of the season to negotiate the dates and times of rehearsal for the upcoming season. The use of Tract One for rehearsal outside of the scheduled times or the scheduling of rehearsals with less advance notice shall be at the sole discretion of the Garden director. All rehearsals shall be scheduled by the Garden director and conducted by FWSOA in a manner that minimizes impact on other functions that are taking place at the Garden. FWSOA License Agreement Page 2 of 16 Tract Two For and in consideration of the monetary payments to be made hereunder for the benefit of the Garden and subject to the other conditions and terms provided herein, the City does hereby agree to license to the FWSOA beginning at 5:00 p.m. on Event days all parking spaces available on the property identified above as Tract Two to provide patron parking for sale to the public. FWSOA staff may contact Garden staff no earlier April 15`'' to establish an estimated number of salable parking spaces for each Event date. Passes for the estimated number of parking spaces within Tract Two may be sold in advance by FWSOA. The City reserves the right to use seventy - five (75) spaces in the Weekend Lot for parking in connection with events being held at the Japanese Garden and the Gardens Restaurant. Exercise of this right by the City will be conditioned on Garden staff providing FWSOA with at least two weeks' advance notice of City's intent to use such spaces. On the day of each concert, Garden staff shall provide FWSOA with a final number of available salable spaces for that day. Tract Three The property identified above as Tract Three shall remain available for use by City staff, personnel associated with the Botanic Research Institute of Texas ( "BRIT "), and visitors to the Garden and BRIT except for those days on which FWSOA elects to reserve and pay for use of the entire Botanic Garden Center (the "BGC "). For dates on which FWSOA reserves the entire BGC, FWSOA shall be entitled to use of all parking in Tract Three beginning at 5:00 p.m. save and except fifteen spaces, which shall be selected by the Garden director and shall remain available for the use of BRIT personnel and visitors. For 2011, FWSOA has reserved and shall pay for use of the entire BGC and associated parking on the following dates: July 1, 2, 3, and 4, 2011. For all subsequent years, the FWSOA shall contact Garden staff at least six months prior to the date of the first concert to coordinate and schedule the dates for which FWSOA wishes to reserve the BGC and associated parking during the upcoming CITG season. On dates for which FWSOA makes a reservation for the entire BGC and associated parking, the FWSOA, at its sole option, may offer sales of parking passes for spaces in Tract Three in advance of the concert date. For dates on which FWSOA does not reserve the entire BGC, FWSOA staff may contact Garden staff no earlier than April 15`'' to establish an estimated number of salable parking spaces for each Event date. Passes for the estimated number of parking spaces within Tract Three may be sold in advance by FWSOA. Office Space The office space identified above shall be available on the evening of each concert for the purpose of counting and auditing ticket and parking sales. FWSOA License Agreement Page 3 of 16 U, Consideration a. In addition to any other consideration due hereunder, the FWSOA will pay to the Fort Worth Botanical Society, Incorporated ( "FWBS ") a fee of $1,500.00 per concert date for the use of Tract One and Tract Two, with such funds to be allocated toward maintaining infrastructure and addressing safety concerns throughout the Garden. For purposes of this Agreement, the fee due under this paragraph is referred to as the "License Fee." b. In addition to any other consideration due hereunder, the FWSOA shall pay FWBS a reservation fee of $900.00 for each date for which FWSOA reserves the entire BGC and associated parking spaces in Tract Three. For purposes of this Agreement, the fee due under this paragraph is referred to as the `BGC Fee." C. In addition to any other consideration due hereunder, the FWSOA will pay the FWBS one percent (1 9/o) of the gross value of all revenue generated from sales of concert tickets and parking spaces on City -owned property. d. FWSOA shall deliver one -half of the License Fee and BGC Fee for the entire CITG season to the FWBS on or before the date of the first concert. No later than the thirtieth day after the date of the last CITG concert for the year, FWSOA shall pay to the FWBS the balance of the License Fee and BGC Fee as well as all other consideration due under this Agreement. 5. Term and Termination The primary term of this Agreement shall be for a period of two (2) calendar years, commencing on the 1" day of January 2011, and ending on the 31" day of December 2012. The parties covenant and agree to negotiate in good faith for a new license agreement to begin after the expiration of the primary term. It is expressly provided that City shall have the right to terminate this Agreement with or without cause upon two- hundred - seventy (270) days' written notice to FWSOA. It is also expressly provided that FWSOA shall have the right to terminate this Agreement with or without cause upon thirty (30) days' written notice to City. If for any reason, at any time during any term of this Agreement, the City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement pursuant to this section following (i) delivery by the City of written notice of the City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. G. Acceptance and Protection of Premises FWSOA covenants and agrees that it shall take the Premises as it finds them and that it will leave the Premises in as good or better condition than that which exists prior to FWSOA's use of the Premises. FWSOA further covenants and agrees that it will not do or permit to be done any injury or damage to any of said Premises or suffer any waste to the Premises; but in the Event any FWSOA License Agreement Page 4 of 16 damage is done, FWSOA hereby covenants and agrees to reimburse City therefore promptly. FWSOA shall keep and maintain the Premises in a good, clean, and sanitary condition at all times. FWSOA shall be responsible for all damages caused by FWSOA, its agents, servants, employees, contractors, subcontractors, licensees, or invitees; FWSOA agrees to fully repair or otherwise cure all such damages at FWSOA's sole cost and expense. The City shall determine whether any damage has been done, the amount of the damage, and the reasonable costs of repairing the damage. Any damage for which FWSOA is responsible hereunder shall be repaired or replaced by the FWSOA within thirty (30) days of receipt of written notification from the City; all such repairs or replacements must be made to the reasonable satisfaction of the City. VA Site Preparations Cm's duties City staff will: a. Install fencing to surround the north vista of Tract One on or before the date of the first concert. b. Prior to the date of the first concert, prepare Event grounds in accordance with established criteria. C. To the extent available, provide booths and trailers (festival equipment) requested by FWSOA and place such equipment in mutually agreed locations, with City waiving the equipment - rental fee and FWSOA paying only for the equipment set -up cost. d. Provide, at no cost to FWSOA, City staff during staff's regularly established work hours to assist in planning, set -up, and operation of the Event. e. On nights when fireworks are scheduled to be displayed, provide staff to wet down structures to reduce fire risks, with (i) the costs of staff time of exempt employees being reimbursed by the FWSOA at an hourly rate Community Services Department and FWSOA's cost of a minimum of three hours of overtime employee's hourly wage. FWSOA's duties agreed to by the Director of the Parks and CITG manager and (ii) the City being paid the for each non - exempt employee, based on the FWSOA staff will, at its sole cost and expense: a. Reserve all required trailers through Garden staff at least six (6) months in advance of the first performance date. b. Pay the set -up fee for all festival equipment provided by the City. C. Comply with and cause the Premises to comply with: (i) all valid federal, state, local and other governmental laws, ordinances, rules, orders and regulations generally affecting the Premises including all rules, regulations, and requirements of the City of Fort Worth and its Police and Fire Departments, (ii) any and all requirements specifically made by the City Fire Marshal in FWSOA License Agreement Page 5 of 16 connection with this Agreement, or a part thereof or the use thereof, and (iii) all rules, orders, and regulations of the National Board of Underwriters or other body exercising similar functions in connection with the prevention of fire or the correction of hazardous conditions that apply to the Premises. If applicable, FWSOA shall comply with the requirements of all policies of insurance which at any time may be in force with respect to the Premises (other than any policies obtained by City and not approved in writing by FWSOA) and, to the extent that FWSOA has written notice thereof, with the provisions of any contracts, agreements, and restrictions affecting the Premises or a part thereof or the ownership, occupancy, or use thereof that exist as of the date this Agreement is executed. d. Provide an appropriate number of portable restrooms for the maximum crowd expected, including handicap restrooms in compliance with current ADA standards. C. Provide and install the band shell on the south vista of Tract One. f. Provide and install other buildings and equipment as approved in writing in advance by the Parks and Community Services Director or that individual's designee. g. Provide for the delivery, set -up, and removal of rental tables and chairs, with the times for set -up and removal being approved in advance by the Garden director. h. Supply and distribute either chipped wood or sand to minimize muddy ground or standing water conditions in and around the restroom areas, backstage, orchestra break tent, pedestrian traffic areas, and elsewhere as required. FWSOA will pay for or reimburse the Garden for any material or supplies used in conjunction with CITG. i. Provide for the removal of all structures, buildings, and appurtenances of any kind placed on the Premises in connection with the Event as soon as possible, but not later than 14 calendar days after the date of the final performance of the CITG season. j. Provide for clearing of the ground area of the Premises as soon as possible, but not later than 14 calendar days after the date of the final performance of the CITG season. E:3 Ticket and Parking Prices FWSOA will set admission and parking pricing and submit the pricing to the Director of the Parks and Community Services Department for approval. Pricing information may not be advertised or distributed prior to receipt of City approval. FWSOA shall ensure that tickets are offered for sale at all customary ticket outlets and at the performance site on concert evenings. 0 Event Day Operations On each Event date, FWSOA shall, at its sole cost and expense: a. Manage all traffic entering the Garden beginning at 5:00 p.m. or at an earlier time with the advance written approval of the Garden director. FW'SOA License Agreement Page 6 of 16 b. Provide, place, and remove barricades and traffic cones as needed for interior Garden traffic control. c. Provide, place, and remove traffic control signage as needed outside of the Garden in accordance with City traffic codes. d. Provide, place, and remove all interior Garden temporary pedestrian and lawn signage associated with the Event. Unless otherwise approved by the Garden director, interior Garden signs may not be placed before Thursday of each concert weekend and shall be removed by 9:00 a.m. on the day after the last concert of the weekend. e. Supply duly qualified traffic control personnel as needed in and around the Garden to address traffic issues associated with the Event. f. Manage parking located in Tract Two after 5:00 p.m. each performance day. g. Provide sufficient handicap parking spaces in an appropriate area of the Garden and monitor such spaces to ensure they are not used by unauthorized vehicles. h. Provide and manage shuttle services from the Weekend Parking Lot and other remote parking areas. i. Ensure that no FWSOA- associated vehicles (including, but not limited to, vehicles being used by vendors, sponsors, stagehands, crewmembers, or patrons) drive or park off of designated roadways and on to turf areas unless expressly approved in advance by the Garden director. j. Ensure that buses do not park near curbs in a manner or location that causes or allows exhaust to blow on adjacent turf. k. Ensure that the parking lots behind the BGC and the Rock Springs Building are not used for patron parking and remain available for FWBS volunteers, City staff, and food service personnel only. 1. Open the audience area in Tract One to the public at 6:30 p.m. m. Begin the performance at 8:15 p.m. unless there is a weather delay or cancellation or a different time is approved in advance, in writing by the Director of the Parks and Community Services Department. n. Ensure that adequate certified Emergency Medical Services personnel are present at the Garden beginning at 6:30 p.m. and continuing through one -half hour past the end of the concert. o. Ensure that an adequate number of trained, courteous security personnel are present to (i) control access through the Garden entrance at University Drive and Rock Springs Drive, beginning at 3:30p.m. and (ii) monitor and crowd - control issues, beginning at 6:30 p.m. and continuing through one -half hour past the end of the concert. p. Provide for the removal of litter and other trash associated with the Event both during and after the concert. If litter and trash remain the following morning and the Premises do not, in the sole discretion of the Garden director, meet Garden standards, Garden staff shall immediately notify FWSOA, and FWSOA shall provide a "morning after" trash crew by 9:00 a.m. to complete the removal. If the FWSOA fails to perform the "morning after" trash removal after FWSOA License Agreement Page 7 of 16 receiving notice from the City, Garden staff will complete the trash removal, and FWSOA agrees to reimburse the City for the cost of such removal. q. Provide all necessary cleaning and maintenance of temporary restroom units used in connection with the Event. r. Ensure that the concerts remain a smoke -free environment. 10. Rescheduling/ Canceling Performance FWSOA shall make every effort to avoid canceling a performance. If rain occurs on an Event day, the FWSOA may attempt to hold the concert although the starting time may be delayed. In the event a concert is canceled: a. FWSOA shall initiate weather - cancellation communication with the Parks and Community Services Department, the media, and Event vendors. b. FWSOA shall honor canceled tickets at a subsequent performance. C. If the final performance of the season is cancelled, FWSOA shall provide patrons with option of: (i) declining to request a refund and instead donating the amount of the ticket price to FWSOA; (ii) receiving a credit in the amount of the ticket price toward another FWSOA performance; or (iii) receiving a refund of the full ticket price. 11. Promotions, Merchandise, and Signage FWSOA shall maintain responsibility for and control of the creation of all graphic artwork, advertising, printed materials, and imprinted souvenir merchandise associated with the CITG as well as all signs associated with CITG. FWSOA shall design an official CITG T- shirt, which shall be printed and offered for sale by FWBS as exclusive concessionaire and the proceeds of which shall be retained by FWBS. FWSOA may, at its discretion and expense, provide Event banners to City staff to be hung on the two (2) sets of banner poles in Trinity Park, if those poles are available, and to be hung on the poles at the Botanic Garden Boulevard entrance. All banners must be approved by the Parks and Community Services Department prior to being hung. Banners will be hung following City approval, with a goal of having them in place two weeks prior to the first concert. Banners will remain in place until the day the last scheduled concert of the CITG season. Except as provided above, no banners, advertisements, or signs may be hung from trees, fences, or buildings or be displayed on park property without the express permission of the Garden director. In addition, FWSOA covenants and agrees that no decorative or other material shall be nailed, tacked, screwed, or otherwise physically attached to any part of the City's property without the consent of the Garden director. FWSOA may, at its sole discretion and expense, hang advertisements, banners, and announcements on the stage or on props owned or leased by FWSOA, which shall include, but not be limited to, booths and trailers rented from the FWSOA License Agreement Page 8 of 16 City, the speaker platforms, and tents used in connection with the Event. The FWBS will retain management of all food and beverages. If an outside vendor is used, FWSOA and the FWBS will jointly review proposals from potential food and beverage vendors, but FWBS shall retain the ultimate right to select the vendor and to any payment that may be required from such a vendor. 12. Utilities a. Unless otherwise specifically provided in this Agreement, the City shall not provide or pay for any utility connections or usage of the FWSOA associated with this Agreement. b. FWSOA shall be required to provide a 3 -phase electric generator for use in erecting the stage. FWSOA shall hire a licensed electrician to install electrical supply for the Event, including but not limited to the stage, sound system, all booths, restrooms, operations trailer, artists' trailer, orchestra break tent, and course lamp at entrances. FWSOA shall ensure that a licensed Electrician is present on the Premises during each performance. c. FWSOA shall be responsible for all arrangements and costs associated with installation and removal of any telephone equipment required. d. FWSOA shall be responsible for any and all costs associated with its usage of utilities (e.g., electric, water, telephone, gas). 13. Fireworks No fireworks or other pyrotechnics display may occur in connection with this Agreement unless necessary and reasonable safety precautions have been provided to and approved by the Fort Worth Fire Department. 14. Copyright Compliance FWSOA agrees to assume full responsibility for complying with the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.) and any Regulations issued hereunder including, but not limited to, the assumption of any and all responsibilities for paying royalties which are due for the use of copyrighted works in FWSOA's performances or exhibitions to the copyright owner, or representative or said copyright owner. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the performance, reproduction, or other use of copyrighted materials by FWSOA or its agents or licensees without the appropriate licenses or permission being secured by FWSOA in advance. It is further agreed that FWSOA shall defend, indemnify and hold City harmless for any claims arising from nonpayment to licensing agencies, including, but not limited to, ASCAP, BMI, and SESAC or damages arising out of Licensee's F"'SOA License Agreement Page 9 of 16 infringement or violation of the Copyright Law and /or Regulations. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of the FWSOA. FWSOA understands that they are responsible for securing any and all licenses by artists /performers giving permission for the recordings. FWSOA is responsible for both reporting and payment of any music licensing fees that may be required by law. FWSOA understands and agrees that without the proper license obtained by FWSOA, there is a risk of an injunction or money damages arising from a copyright lawsuit brought by ASCAP, BMI, SESAC or any other licensing agency. 15. Liability and Indemnification City and FWSOA mutually covenant and agree that City assumes no responsibility for any property placed on said Premises, and City is hereby expressly released and discharged from any and all liability for any loss, injury or damage to persons or property that may be sustained by use or occupancy of said Premises under this Agreement. FW50A AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS SERVANTS, AND EMPLOYEES, FROM AND AGAINST ANYAND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCL UDING, B UT NOT LIMITED TO, THOSE FOR PR OPER TYDAMAGE OR LOSS (INCL UDING ALLEGED DAMAGE OR LOSS TO BUSINESS AND ANY RESULTING LOST PROFITS) AND /OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) FW5OA'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANYNEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OFFW50A, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), SUBCONTRACTORS, LICENSEES, OR INVITEES RELATED TO USE OF THE PREMISES OR THE PERFORMANCE OF THIS AGREEMENT. THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESUL TING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS. IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH FWSOA AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPOR TIONED COMPARATIVEL Y IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF ANY IMMUNITY TO WHICH THE CITY IS ENTITLED UNDER TEXAS LAW 16. Insurance FWSOA covenants and agrees to obtain and keep in force and to ensure its contractors, as applicable, keep in force during the term of this Agreement one or more policies of insurance as follows: FWSOA License Agreement Page 10 of 16 Commercial General Liability $1,000,000 each occurrence $2,000,000 aggregate Automobile Liability $1,000,000 each accident on a combined single limit or $250,000 Property Damage $500,000 Bodily Injury per person per occurrence A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non - owned, when said vehicle is used in the course of the event licensed herein. Worker's Compensation Coverage A: Statutory limits Coverage B: Employer's Liability $100,000 each accident $500,000 disease - policy limit $100,000 disease - each employee Liquor Liability (required only if any alcoholic beverage is vended) $1,000,000 each occurrence General Liability for Fireworks Display (required of pyrotechnics/ fireworks contractor) $1,000,000.00 each occurrence Terms and ConditionsAbtilicable to All Insurance a. Certificates of insurance evidencing all required insurance shall be delivered to the City at least two weeks prior to the first concert of each CITG season. b. Applicable policies shall be endorsed to name the City and the FWBS as Additional Insureds thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers as respects the contracted services. C. Applicable policies shall be endorsed to name the City an Additional Insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents and volunteers as respects the contracted services. d. Certificate(s) of insurance shall document that insurance coverage specified in this Agreement are provided under applicable policies documented thereon. e. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. f. A minimum of thirty (30) days' notice of cancellation or material change in coverage FWSOA License Agreement Page 11 of 16 effecting the required lines and limits of insurance shall be provided to the City. A ten (10) days' notice shall be acceptable in the event of non - payment of premium. Notice shall be sent to the Risk Management Division, 1000 Throckmorton Street, Fort Worth, Texas 76102 with a copy to Director, Parks and Community Services, 4200 South Freeway, Suite 2200, Fort Worth, Texas 76115 -1499. g. Insurers for all policies must be authorized to do business in the State of Texas and 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 the City's Risk Management Division. h. Deductible limits, or self insured retentions, affecting insurance required herein shall be acceptable to the City in its sole discretion; and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention groups must also be approved. Dedicated financial resources or letters of credit may also be acceptable to the City. i. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the City. j. The City shall be entitled, upon its request and without incurring expense, to review the FWSOA's insurance policies including endorsements thereto and, at the City's discretion, the FWSOA may be required to provide proof of insurance premium payments. k. The Commercial General Liability insurance policy shall have no exclusions by endorsements that have effect on the lines and limits of insurance required in this Agreement, unless the City approves such exclusions. 17. Notices All notices required or permitted under this Agreement may be given to a party personally or by mail, addressed to such party at the address stated below or to such other address as one party may from time to time notify the other in writing. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: CITY: Parks and Community Services Department 4200 South Freeway, Suite 2200 Fort Worth, TX 76115 -1499 With a copy to: City Attorney's Office 1000 Throckmorton Fort Worth, Texas 76102 FWSOA: Fort Worth Symphony Orchestra 330 East Fourth Street, Suite 200 Fort Worth, Texas 76102 Or to such other address as said parties may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. FWSOA License Agreement Page 12 of 16 18. Compliance with Law and Policies FWSOA covenants and agrees that it shall not engage in any unlawful use of the Premises. FWSOA further agrees that it shall not permit its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees or invitees to engage in any unlawful use of the Premises and FWSOA shall immediately remove from the Premises any person engaging in such unlawful activities. Unlawful use of the Premises by FWSOA itself shall constitute an immediate breach of this Agreement. FWSOA shall comply with all PACSD regulations, policies, and specific requirements for the Event and shall coordinate with City staff with regard to arrangements for site use. FWSOA covenants and agrees that during the term of this lease that if the City calls to the attention of FWSOA any such violation on the part of FWSOA or any person employed by or admitted to said Premises by said FWSOA, then FWSOA shall immediately desist from and correct such violation or vacate the Premises. 19. Right of Entry At all times during the term of this Agreement, City shall have the right, through its agents and representatives, to enter into and upon the Premises during reasonable business hours for the purpose of examining and inspecting the same for the purpose of determining whether FWSOA shall have complied with all of its obligations hereunder in respect to the use of the Premises. During any inspection, City may perform any obligations that City is authorized or required to perform under the terms of this Agreement or pursuant to its governmental duties under federal state or local laws, rules, or regulations. 20. Right to Audit The FWSOA shall keep full, complete, and proper books, records, and accounts of the gross receipts, both cash and /or credit, related to the Event. Said books, records, and accounts shall at all reasonable times be open to the inspection of the Parks and Community Services Department, City auditor, or other authorized representatives. FWSOA shall provide the Parks and Community Services Director with a detailed income and expense accounting on or before October 1" of each year. 21. Independent Contractor FWSOA shall operate hereunder as an independent contractor as to all rights and privileges herein FWSOA License Agreement Page 13 of 16 contained and nothing herein shall be construed as creating a partnership or joint enterprise between FWSOA and City. 22. Charitable Immunity FWSOA agrees that if it is a charitable organization, corporation, entity or individual enterprise having, claiming or entitled to any immunity, exemption (statutory or otherwise) or limitation from and against liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, C.P. R.C., � 84.001 et seq., or other applicable law, that FWSOA hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. Copy of the documentation stating this organization's status as a 501(3)(c) entity is due annually, by May 1" of each year, to the address specified for the PACSD in Paragraph 31 of this Agreement. 23. Non - Discrimination FWSOA agrees that during use of the Premises, FWSOA will not subject anyone to discrimination in any way because of the person's race, color or national origin, age, handicap or sexual orientation. No one can be excluded from the Event or denied the benefits of the Event because of race, color or national origin, age, handicap or sexual orientation. 24. Governing Law; Venue Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division 25. No Waiver The failure to insist upon a strict performance of any of the covenants or agreements herein set forth or to declare a forfeiture for any violation thereof shall not be considered or taken as a waiver or relinquishment for the future of City's rights to insist upon a strict compliance by FWSOA with all the covenants and conditions. 26. Governmental Powers It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. FWSOA License Agreement Page 14 of 16 27. Homeland Security If the United States Department of Homeland Security issues a Level Orange or Level Red Alert, the City, in its sole discretion, after consultation with FWSOA, may cancel or postpone the scheduled event in the interest of public safety. If the City cancels the event, FWSOA will be entitled to a refund of any prior fees paid. MJ Headings The headings in this Agreement are inserted for reference only, and shall not define or limit the provisions hereof. Qa Severability In the event that any clause or provision of this Agreement shall be held to be invalid by any court of competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. 30. Review of Counsel Each party, and if it so chooses, its attorney has had the opportunity to review and comment on this document, therefore any rule of contract construction or interpretation that would normally call for the document to be interpreted as against the drafting party shall not apply in interpretation of this contract, and each section, portion, and provision of this Agreement shall be construed solely on the basis of the language contained therein, regardless of who authored such language. 31. Entire Agreement This instrument (including all attachments, schedules, and exhibits attached hereto) constitutes the entire understanding and agreement of the City and FWSOA as to use of the Premises and the Garden. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with the terms and conditions of this Agreement. 32. No Amendment This Agreement cannot be modified or amended without the written consent of all the FWSOA License Agreement Page 15 of 16 parties hereto and attached and made a part of this Agreement. 33. Multiple Counterparts This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. 34. Contracting Authority By executing this Agreement, FWSOA's agent affirms that he or she is authorized by FWSOA to execute this Agreement and that all representations made herein with regard to FWSOA's identity, address, and legal status (corporation, partnership, individual, etc.) are true and correct. IN WITNESS WHEREOF, the parties have executed this Agreement in multiples, this 2Z day of QCCemb12,1( , 2011. CITY OF FORT WORTH 13y: Susan Alanis Assis�ant'City Manager EST: % C7>r AirCity Secretary APPROVED AS TO FORM AND LEGAL . By: Denis C., cElroy Assistant City Att6Aey M &C C -24919 5.24 11 FWSOA License Agreement FORT WORTH SYMPHONY OR( By: Amy Pres: d) O Ol 2 �8,U0 P TRACT III v j rkln �S TRACT I Parking- ro o (A J v `'� _ol �P BOTANIC GARDEN roar WoHrH �1-1a -1 Parking c 94 `,- y� , 0009? .notion. q p °n9 (Pedestrians Only) Weekend Parking TRACT 11 II Exhibit A Oar an K �l' M &C Review CITY COUNCIL AGENDA COUNCIL ACTION: Approved on 5/24/2011 Page 1 of 2 Official site of the City of Fort Worth, Texas FORT WoRm DATE: 5/24/2011 REFERENCE NO.: * *C -24919 LOG NAME: 80FWSOA2011 CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize a License Agreement with Fort Worth Symphony Orchestra Association for Use of the Fort Worth Botanic Garden for the Concerts in the Garden Series (COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a license agreement with the Fort Worth Symphony Orchestra Association for the annual Concerts in the Garden Series held at the Fort Worth Botanic Garden. DISCUSSION: On May 4, 2004, (M &C C- 20059) the City Council authorized the City Manager to execute a License Agreement (City Secretary Contract No. 31956) with Fort Worth Symphony Orchestra Association ( FWSOA) to permit the FWSOA to have the use of certain portions of the Fort Worth Botanic Garden for the purposes of conducting the Concerts in the Garden (CITG) series of performances by the FWSOA and other artists. The agreement was for five years (June 2004 through May 2009), with two additional one -year options. The two one -year options were exercised. The City and FWSOA wish to continue in this arrangement and enter into a new agreement for a term of two years commencing January 1, 2011 and ending December 31, 2012, after which the City and FWSOA will negotiate a new contract. The primary reason for this shorter term is to balance the desire to allow the concerts to continue with the need to allow sufficient time to assess economic conditions. In producing the concert series, the FWSOA relies heavily on private corporate sector underwriting and the availability of those resources is uncertain given the current economic conditions. The basic terms of the new agreement will remain unchanged from the last contract and are consistent with City contracts in general. As with the previous agreement, the FWSOA will pay the Fort Worth Botanical Society (FWBS) a rental fee of $1,500.00 for each concert date as well as one percent of the gross value of all revenue from sales of concert tickets and parking spaces on City - owned property. In addition, the FWSOA will pay the FWBS $900.00 for dates on which the Symphony wishes to reserve the bulk of the Botanic Garden Center (BGC) parking lots. However, under the new agreement a specified number of identified spaces in the BGC lot must remain available for use by personnel associated with the Botanical Research Institute of Texas, Inc. All funds paid to the Botanical Society are to be allocated toward maintaining infrastructure and addressing safety concerns throughout the Garden. The Parks and Community Service Advisory Board endorsed this recommendation at its April 27, 2011 Board meeting. The Botanic Garden is located in COUNCIL DISTRICT 7, Mapsco 76E, and serves the entire City of Fort Worth. FISCAL INFORMATION /CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on http://apps.cfwnet.org/council_packet/mc—review.asp?ID=l 5206&councildate=5/24/2011 12/12/2011 M &C Review City funds. TO Fund /Account/Centers Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS FROM Fund /Account/Centers Susan Alanis (8180) Richard Zavala (5704) Sandra Youngblood (5755) Page 2 of 2 http: // apps .cfwnet.org /council _packet /mc_ review. asp ?ID =15206 &councildate = 5/24/2011 12/12/2011