HomeMy WebLinkAboutContract 44552 (2)C1TV SEC�' L � —� �
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LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement") is made and entered into by and between the
Cit�� of Fort Worth (the "City"), a home-rule municipal corporation of the State of Texas, acting
by and through its dul�� authorized Assistant City Manager, and the Fort Woxth Symphony
Orchestra Association (the "FVJSOA"), a Texas non-profit corporation, acting by and through its
dul�� authorized President.
1.
Purpose
1.01 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 ("Event").
2.
Premises
2.01 This Agreement addxesses the use by FWSOA of the following tracts of land (collectively,
the "Premises") located in the Fort WoYth Botanic Gatden, 3220 Botanic Garden Boulevard, Fort
Worth, Texas 76107:
a. Tract One — CITG Site
Being an appro�nately 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 hexein for all purposes as though it
were set forth at length.
b. Tract Two — CITG Parking
Consisting of the following three parking lots and street-front parl�ing area: the Weekend
Paxl�ing Lot (9�, the Japanese Garden Lot (9J), the Gardens Restaurant Lot (9R), and
parl�ing 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.
c. Tract Three — Garden Center Parking
Consisting of two designated parl�ing lots: the Botanic Garden Center North Lot (9N) and
the Botanic Garden Center South Lot (9S). The location and boundaries of Tract Three
are illustxated in Exhibit A, which is attached hereto and incoxporated herein for all
purposes as though it �vexe set forth at length.
FWSOA License Agreement - 2013 __���_��„-..----. —T ---d Page 1 of 17
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d. 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
3.01 Tract One
a. For and in consideration of the monetary pa��ments to be made hereunder fot the
benefit of the Garden and subject to the other conditions and terms provided hexein, the City
does hereby agree to license to the FWSOA the property identified above as Tract One for up to
60 days each calendax year, with no more than 30 concert dates, for the purpose of (i) erecting a
band shell, backstage area, patxon tables, and lawn seating for the CITG concerts and (u)
providing parking for artists and other FWSOA Event personnel along Rock Spring Drive
between Uni�rersity Drive and Old Gaxden 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 parl�ing. 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.
b. For 2013, the Event dates shall be June 7, 8, 9, 14, 15, 16, 21, 22, 23, 28, 29, and
30, and July 3, 4, 5, and 6. For all subsequent years, the FWSOA shall coordinate with Garden
staff (i) to establish an initial proposed schedule fox 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.
FWSOA will pxovide the Gaxden director with a finalized conceYt schedule and any changes in
pricing by April 15`h of each Event year so that the schedule may be added to the Fort Worth
Botanical Society, Inc. ("F�X/BS") website in a timely manner.
c. In addition to use associated with holding the Event, FWSOA shall be provided
reasonable access to and use of Tract One for rehearsal purposes. Exexcise of this privilege shall
be contingent on FWSOA contacting the Garden dixector at least four weeks prior to the date of
the first concert of the season to negoriate the dates and times of rehearsal for the upcoming
season. FWSOA shall be given a June wedding schedule by April 15` beginning with the 2014
Event. FWSOA shall make Yeasonable attempts to work around this schedule, including any
updates to it, when scheduling its rehearsals. The Garden staff will pYovide weekly updates for
Garden Center events and weddings to FWSOA from May 28`'' through July 6`h. 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 Yehearsals shall be scheduled by
the Garden director and conducted b�� FWSOA in a manner that miiiiinizes impact on other
functions that are tal�ing place at the Garden.
3.02 Tract Two
a. For and in consideration of the monetarj� payments to be made hereunder for the
benefit of the Garden and subject to the other conditions and terms pYovided herein, the Cit��
does hereby agree to license to the F��JSOA beginning at 5:00 p.m. on Event daps all parking
FWSOA License Agreement - 2013 Page 2 of 17
spaces available on the property identified above as Tract Two to provide patron parking for sale
to the public.
b. FWSOA staff may contact Garden staff no earlier April 15`t' to establish an
estimated number of salable parking spaces for each Event date. Passes for the estimated number
of paxl�ing spaces within Tract Two may be sold in advance by FWSOA. The City reserves the
right to use 75 spaces in the Weekend Lot foY parl�ing in connection with events being held at the
Japanese Garden and the Gardens Restaurant, respectively. Exercise of this xight by the City will
be conditioned on Garden staff providing F�XISOA �uith at least two weeks' advance notice of
City's intent to use such spaces.
c. On the day of each concert, Garden staff shall provide FWSOA with a final
number of available salable spaces foY that day.
3.03 Tract Three
a. The property identified above as Tract Three shall remain available for use by City
staff, personnel associated with the Botanic Reseaich Institute of Texas (`BRIT"), and visitors to
the Garden and BRIT except for those days on which FWSOA elects to reserve and pay fox use
of the entire Botanic Garden Center (the `BGC"). For dates on which FWSOA xeserves the
entire BGC, FWSOA shall be entided to use of all parking in Tract ThYee beginning at 5:00 p.m.
save and except fifteen spaces, which shall be selected by the Garden diYector and shall remain
available for the use of BRIT personnel and visitors.
b. For 2013, FWSOA has reserved and shall pay for use of the entire BGC and
associated parking on the following dates: July 3, 4, 5, and 6. 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 entixe BGC and associated parking, the FWSOA, at its sole option, may offer sales of parl�ing
passes foi spaces in Tract Three in advance of the concert date.
c. 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 esrimated number of salable parl�ing
spaces for each Event date. Passes for the estimated number of parking spaces within Tract Three
may be sold in ad�Tance by FWSOA.
3.04 Office S�ace
a. 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.
4.
Consideration
4.01 In addition to any other consideration due hereunder, for the 2013 Event, the TWSOA
will pay to the FWBS a fee of $1,500.00 per concert date for the use of Txact 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."
FWSOA License Agreement - 2013 Page 3 of 17
4.02 In addition to any other consideiation due hereunder, for the 2013 Event, the FWSOA
shall pay F'�XjBS a reseivation fee of $900.00 for each date for which FWSOA reserves the entire
BGC and associated parl�ing spaces in Tract Three. For purposes of this Agreement, the fee due
under this paragraph is refe�red to as the `BGC Fee."
4.03 In addition to any other consideration due hereunder, for the 2013 Event, the FWSOA
will pay the FWBS one percent (1%) of the gross value of all revenue geneiated from sales of
concert rickets and parl�ing spaces on Cit��-owned property.
4.04 FWSOA shall deliver one-half of the License Fee and BGC Fee for the entire CITG
season to the F�X�BS 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 ��ear, FWSOA shall pay to the F�XrBS the balance of the
License Fee and BGC Fee as well as all other consideration due under this Agreement.
4.05 For the 2014 Event and subsequent renewal options, the City and FWSOA will negotiate
in good faith to modif�� the fees for items 4.01-4.04 listed above, which shall be set forth in an
amendment to this Agreement. If the parties cannot negotiate and agree to such fees prior to the
December 31, 2013, then this Agreement shall terminate automatically.
5.
Term and Termination
5.01 The primary term of this Agreement shall be for a period of two calendar years,
commencing on the 1S` day of January 2013, and ending on the 315` day of December 2014, with
two 2-year renewal options.
5.02 It is expressly provided that the City shall have the right to terminate this Agreement with
or without cause upon 270 days' written notice to FWSOA. It is also expressly provided that
FWSOA shall have the right to terminate this Agxeement with or without cause upon thirty 30
days' written notice to the City. If for an�� 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 Cit�T may terminate this Agreement pursuant to this section following (i) deliver�T 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 foxth in this Agreement.
6.
Acceptance and Protection of Premises
6.01 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 e�sts 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
an�� damage is done, FWSOA hereby covenants and agrees to reimburse the City therefore
prompdy. F`WSOA shall keep and maintain the Premises in a good, clean, and sanitarj� condition
at all times. F��USOA shall be responsible for all damages caused by FWSOA, its agents, servants,
employees, contractors, subcontractois, licensees, or invitees; FWSOA agtees to repair fully or
otherwise cuie 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 30 days of receipt of written notification from the City; all such
FWSOA License Agreement - 2013 Page 4 of 17
repairs or replacements must be made to the reasonable satisfaction of the City.
7.
Site Preparations
7.01 Cit�s duties
a. Ciry staff will:
i. Install fencing to surround the north vista of Txact One on or before the
date of the first concert.
ii. Prior to the date of the first concert, prepare Event grounds in accordance
with established criteria.
iu. To the extent available, provide trailers (festival equipment) requested by
FWSOA and place such equipment in mutually agreed locations, with City waiving
the equipment-rental fee and FWSOA pa��ing only foY the equipment set-up cost.
iv. Provide, at no cost to FWSOA, City staff during staf�s regularly
established work hours to assist in planning, set-up, and operarion of the Event.
v. 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 agreed to b�� the
Director of the Parks and Community Services Department and FWSOA's CITG
manager and (u) the City being paid the cost of a minimum of three hours of
overtime for each non-exempt employee, based on the employee's hourly wage.
7.02 FWSOA's duties
a. FWSOA staff will, at its sole cost and expense:
i. Reserve all required trailers through Garden staff at least six months in
advance of the first performance date.
u. Pay the set-up fee for all festival equipment provided by the City.
iii. 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, Fire, Code Compliance and Parks and
Community Services Departrnents, (u) any and all requirements specifically made
by the City Fire Marshal in connecrion with this Agreement, or a part thereof or
the use thereof, and (ui) all rules, orders, and tegulations of the National Board of
Underwriters or other bod�� exercising similar functions in connection with the
prevention of fire or the coxxection 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
FWSOA License Agreement - 2013 Page 5 of 17
or the ownership, occupancy, or use thereof that e�st as of the date this
Agreement is executed.
iv. Provide an appropriate number of portable restrooms for the ma�mum
crowd expected, including handicap xestrooms in compliance with current ADA
standards.
v. Provide and install the band shell on the south vista of Tract One.
vi. 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 ("Director").
viu. PYovide 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.
ix. Supply and distribute either chipped wood or sand to minimize muddy
ground or standing water conditions in and around the restroom areas, bacl�stage,
orchestra break tent, pedestrian traffic areas, and elsewhere as required. F'WSOA
will pay for or Yeimburse the Garden for any matexial or supplies used in
conjunction with CITG.
x. Provide for the removal of all structures, buildings, and appurtenances of
any l�ind placed on the Piemises in connection with the Event as soon as possible,
but not later than 14 calendar daj�s after the date of the final performance of the
CITG season.
�. 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.
:
Ticket and Parking Prices
8.01 FWSOA will set admission and parking pricing and submit the pricing to the Director for
approval. Pricing information may not be advertised or distributed prior to receipt of the City
approval. FWSOA shall ensure that tickets are offered for sale at all customary ticket oudets and
at the performance site on concert evenings.
9.
Event Day Operations
9.01 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 t'tme
with the advance written approval of the Garden director.
b. Provide, place, and remove baxricades 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.
FWSOA License Agreement - 2013 Page 6 of 17
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 ma�� 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.
£ Manage parl�ing located in Txact Two after 5:00 p.m. each performance day.
g. Provide sufficient handicap parl�ing 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 ftom 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
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 or beds.
k. Ensure that the parl�ing lots behind the BGC and the Rock Springs Building are
not used for patron parl�ing and remain available for FWBS volunteers, City staff, and
food service personnel only.
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 bj� the Director.
n. Ensure that adequate certified Emexgency 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 securit�T personnel are
present to (i) control access through the Garden entrance at University Dxive and Rock
Springs Drive, beginning at 3:30 p.m. and (u) monitor and manage crowd-control issues,
beginning at 5:00 p.m. and continuing through one-half hour past the end of the concert.
p. Provide fox 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 standaxds,
Garden staff shall iinmediately notif�� 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 ieceiving 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 necessaty cleaning and maintenance of temporary restroom units used
in connection with the Event.
r. Ensure that the concerts remain a smoke-fxee environment.
FWSOA License Agreement - 2013 Page 7 of 17
10.
Rescheduling/Canceling Performance
10.01 FWSOA shall make eveiy effoit to avoid canceling a performance. If rain occurs on an
Event day, the F��SOA may attempt to hold the concert although the starring time may be
delayed.
10.02 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 vendoxs.
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; (u) receiving a credit in the amount of the ticket price toward
another FWSOA performance; or (iu) receiving a refund of the full ticket price.
11.
Promotions, Merchandise, and Signage
11.01 Unless otherwise agreed to hereunder oY in subsequent written documentation between
the parties, the FWBS shall have exclusive concessionaire rights for the Event, which shall include,
but not be limited to, the right to sell food, beverages, merchandise, and other items approved by
the Director.
11.02 FWSOA shall maintain responsibility for and control of the creation of all graphic artwork,
ad�Textising, 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.
11.03 The performers at the Event may sell promotional items provided that 20% of all gross
revenue from the sale of such merchandise is paid to the FWBS. Gross revenue means and
includes the total amount of money received or to be received by the performer or by any agent,
employee, or subcontractor of the performer from all sales, whether for cash or credit, whether
collected or uncollected, made as a result of the rights granted herein; provided, however, that any
sales taxes imposed b�� local or federal law that are separately stated to and paid by a purchaseY of
any item sold by the performer or anyone acting by or on behalf of performer from an authorized
service or acrivity under this Agreement and directly payable to a ta�ng authority shall be excluded
from the computation of gross revenue. The FWSOA shall require that such payment be made to
the F`Y1BS and be on site during the Event. The FWSOA shall also send a copy of such contracts
to the Garden director and to the FWBS chaixperson. The FWSOA shall be liable for any
shortfall in payments by the performers as required hereunder.
11.04 In the event that the FWSOA becomes awaxe of a sponsoring person or entit�� that wishes
to sell or othenvise give merchandise to patrons of the Event, the FWBS will iinmediately make
the Director aware of such sponsor and the meichandise that it will be making available. The
FWBS will pxovide a list of items typically offered for concession. The FWSOA will work with the
CITG sponsors to ensure that there are no duplicate and/or conflicting items. If any of the items
FWSOA License Agreement - 2013 Page 8 of 17
duplicate and/or conflict with the FWBS's concession items, the FWSOA must compensate the
FWBS for any lost revenue.
11.05 The FWSOA shall mention, list, and/or refer to the FWBS as its concessionaire in all its
written publications and/ox brochures. The FWSOA shall also mention in its publications that
chair rental is available at the concert site.
11.06 The FWSOA shall notify the F`WBS when no intermission is planned during a given
concert.
11.07 FWSOA may, at its discretion and expense, provide Event banners to City staff so that
City staff, in turn, can hang these banners on the two 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. It is
the responsibility of FWSOA to reserve the banner poles in Trinit�� Park by contacting the Parks
and Community Services Department reservationist at La Gran Plaza. 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 xemain in place until the day the last scheduled concert of the CITG season.
11.08 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
Gaxden 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 City, the speaker platforms, and tents used in connection with the Event.
11.09 If an outside vendor is used, FWSOA and the FWBS will joindy review proposals from
potential food and beverage vendors, but FWBS shall retain the ultimate right to select the vendor
and to collect any payment that may be required from such a vendoY. The F'WSOA will manage
any outside vendors that deliver pre-ordered food to the concert site and must pay $500.00 to the
FWBS for that right.
12.
Utilities
12.01 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 AgYeement.
12.02 FWSOA shall be required to provide a 3-phase electric generatoY 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, restYooms, operations trailer, artists' trailer,
orchestra break tent, and course lamp at entrances. FWSOA shall ensure that a licensed
Electxician is present on the Premises during each performance.
12.03 FWSOA shall be responsible for all arrangements and costs associated with installation
and removal of any telephone or network equipment required.
12.04 FWSOA shall be responsible for any and all costs associated with its usage of utilities
(e.g., electric, water, telephone, gas).
FWSOA License Agreement - 2013 Page 9 of 17
13.
Fireworks
13.01 No fireworks ox 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
14.01 FWSOA agrees to assume full responsibilit�� 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. The Cit�� expressly assumes no obligations, implied or
otherwise, regarding payment or collection of any such fees or financial obligations. The City
specifically does not authoYize, permit, or condone the performance, Yeproduction, 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 the 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 infringement or violation of the Copyright Law and/or Regulations. The 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 it is responsible fox 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 requited by law.
14.02 F`Y�SOA understands and agrees that without the proper license obtained by FWSOA,
there is a risk of an injunction or money damages arising from a cop��right lawsuit biought by
ASCAP, BMI, SESAC or any other licensing agency.
15.
Liability and Indemnification
15.01 The City and FWSOA mutually covenant and agree that the City assumes no responsibility
for any propert�� placed on said Piemises, and the Cit�� is hereby expressly released and discharged
from any and all liabilit�� for any loss, injury or damage to persons or property that may be
sustained by use or occupanc5� of said Premises under this Agreement.
15.02 FWSOA AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE
CITY, ITS OFFICERS, AGENTS SERVANTS, AND EMPLOYEES, FROM AND
AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACT'IONS, COSTS, AND
EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMI7"ED TO, THOSE FOR
PROPER7"YDAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO
BUSINESS AND ANYRESULTING LOST PROFITS) AND/OR PERSONAL INJURY
(INCLUDING DEAT'H) 7'HAT MAY RELATE TO, ARISE OUT OF OR BE
OCCASIONED BY (r) FWSOA'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR �11� ANY NEGLIGENT ACT OR
OMISSION OR INTENTIONAL MISCOND UCT OF FWSOA, ITS OFFICERS,
FWSOA License Agreement - 2013 Page 10 of 17
AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE
CI7"I�, SUBCONTRACTORS, LICENSEES, OR INVITEES RELATED TO USE OF
T"HE PREMISES OR THE PERFORMANCE OF THIS AGREEMENT. THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO
ANYLIABILI7"YRESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR
ITS OFFICERS, AGENT'S, EMPLOYEES, OR SEPARATE CONTRACTORS. IN 7'HE
EVENT' OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH FWSOA AND
T'HE CITY, RESPONSIBILITY, IF ANY, SHALL BE APPOR7"IONED
COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF ANY
IMMUNITY TO WHICH THE CI7'YIS ENTITLED UNDER TEXAS LAW.
16.
Insurance
16.01 FWSOA covenants and agrees to obtain and keep in force and to ensure its contractors, as
applicable, keep in foxce during the term of this Agieement one or more policies of insurance as
follows:
a. Commercial General Liabilitv
i. $1,000,000 each occurrence
u. $2,000,000 aggregate
b. Automobile Liabilitv
i. $1,000,000.00 each accident on a combined single limit
or
u. $250,000.00 Property Damage
iii. $500,000.00 Bodily Injury per person per occurrence
iv. 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.
c. Worker's Com�ensation
i. Coverage A: Statutory limits
u. Coverage B: Employer's Liability
(1) $100,000.00 each accident
(2) $500,000.00 disease - policy limit
(3) $100,000.00 disease - each employee
d. Lic�uor Liabilitv (required only if an�T alcoholic bevexage is vended)
i. $1,000,000.00 each occurrence
e. General Liability for Fireworks Dis�lay (required of p��rotechnics/fireworks
contractor�
FWSOA License Agreement - 2013 Page 11 of 17
$1,000,000.00 each occurrence
16.02 Tertns and Conditions A��licable 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 F�XIBS as Additional
Insureds thereon, as its interests may appear. The term City shall include its employees,
officers, officials, agents, and volunteers as xespects the contracted services.
c. Applicable policies shall be endorsed to name the City an Addirional Insured theieon,
as its interests may appear. The term Cit�� 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 pYovided 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 30 days' notice of cancellation or material change in coverage
effecring the required lines and limits of insurance shall be provided to the Cit�T. A ten days'
notice shall be acceptable in the event of non-payment of premium. Norice shall be sent to
the Risk Management Division, 1000 Throckmorton Street, Fort Worth, Texas 76102 with a
cop�� 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 Cit�T in its sole discretion; and, in lieu of traditional insurance, any
alternarive 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
Ciry.
i. Applicable policies shall each be endoxsed with a waiver of subrogarion in favor of
the City.
j. The City shall be entitled, upon its Yequest 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 AgYeement,
unless the City approves such exclusions.
17.
Notices
17.01 All notices required or permitted under this Agreement ma�� be given to a parry personally
FWSOA License Agreement - 2013 Page I2 of 17
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 Depaxtrnent
4200 South Freeway, Suite 2200
Fort Worth, T�i 76115-1499
FWSOA:
Fort Worth Symphony Orchestra
Association
330 East Fourth Street, Suite 200
Fort Worth, Texas 76102
With a co�y to•
City Attorney's Office
1000 Throckmorton
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.
18.
Compliance with Law and Policies
18.01 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 itnmediately remove from the PYemises any person engaging in such
unlawful activities. Unlawful use of the Premises by FWSOA itself shall constitute an iininediate
breach of this Agreement.
18.02 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 paxt of FWSOA or any person employed by or admitted to said
Premises bj� said FWSOA, then FWSOA shall iminediately desist from and correct such violation
or vacate the Premises.
19.
Right of Entry
19.01 At all times during the term of this Agreement, the City shall have the right, through its
agents and representatives, to enteY 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.
19.02 During any inspection, the City may perform any obligations that the Cit�� is authoxized or
required to perform under the terms of this Agreement or pursuant to its governmental duties
undei fedeYal state or local laws, rules, oY regulations.
FWSOA License Agreement - 2013 Page 13 of 17
20.
Right to Audit
20.01 The FWSOA shall keep full, complete, and proper books, recoids, and accounts of the
gross receipts, both cash and/or credit, related to the Event. Said books, records, and accounts
shall at all xeasonable times be open to the inspection of the Parks and Community Services
Department, City auditor, or other authorized repxesentatives. FWSOA shall provide the Parks
and Communit�� Seivices Director with a detailed income and expense accounting on or before
October 15` of each ��ear.
21.
Independent Contractor
21.01 FWSOA shall opexate hereunder as an independent contractor as to all rights and
privileges herein contained and nothing herein shall be construed as creating a partneYship or joint
enterprise between F�X/SOA and the City.
22.
Charitable Immunity
22.01 FWSOA agrees that if it is a charitable organization, corporation, enrity or individual
enterprise having, claiming or entided to any iininunity, exemption (statutory or otherwise) ox
limitation from and against liabilit�� for damage or injui�� to properry ox persons under the
pxovisions of the Charitable Immunity and Liability Act of 1987, C.P. R.C., � 84.001 et seq., or
other applicable law, that FWSOA hereby expressl�� waives its right to assert or plead defensivel��
any such iinmunity or limitation of liability as against Cit��. Copy of the documentation stating this
organization's status as a 501(3)(c) entity is due annually, by May 15` of each year, to the address
specified for the PACSD in Paragraph 17 of this Agreement.
23.
Non-Discrimination
23.01 FWSOA agrees that during use of the PYemises, FWSOA will not subject an��one to
discrirninarion in any way because of the peison'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 ox national origin, age, handicap or sexual orientation.
24.
Governing Law; Venue
24.01 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
25.01 The failure to insist upon a strict performance of any of the covenants or agreements
heiein set forth or to declare a forfeiture for an�� 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 bp
FWSOA License Agreement - 2013 Page 14 of 17
FWSOA with all the covenants and conditions.
F�c�
Governmental Powers
26.01 It is understood that b�� e�ecution of this Agxeement, the Cit�� does not waive or surrender
any of its governmental powers.
27.
Force Majeure Event
27.01 If either Party is unable, either in whole ox part, to fulfill its obligarions under this
Agreement due to acts of God; stxikes, lockouts, or other industrial disturbances; acts of public
enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires;
floods; restraints or pYohibitions by any court, board, department, comi�ussion, or agency of the
United States or of any state; declaration of a state of disaster or of emergency by the federal, state,
count��, or Cit�� government in accordance with applicable law; issuance of an Imininent Thxeat
Alert or Elevated Threat Alert by the United States Department of Homeland Security or any
equivalent alert system that may be instituted by any agency of the United States; any arrests and
restraints; civil disturbances; or explosions; or some other reason beyond the Party's reasonable
control (collecti�rely, "FoLce Majeure Event"), the obligations so affected by such Force MajeuYe
Event will be suspended only during the continuance of such event. If a Force Majeure Event
occurs, the Cit�� ma��, in its sole discretion, close or postpone the opening of its community
centers, parks, or other City-owned and operated properties and facilities in the interest of public
safet�� and operate them as the City sees fit. If the Cit�� cancels the Event, FWSOA will be entitled
to a refund of any prior fees paid.
28.
Headings
28.01 The headings in this Agreement are inserted for reference only, and shall not define or
limit the provisions hereof.
29.
Severability
29.01 In the event that any clause or provision of this Agreement shall be held to be invalid by
any court of competent jurisdiction, the invalidit�� of such clause or provision shall not affect any
of the xemaining provisions hereof.
30.
Review of Counsel
30.01 Each party, and if it so chooses, its attorney has had the opportunit�T to review and
comment on this document; therefore any rule of contract construction ox interpretation that
would normally call for the document to be interpreted as against the drafting part�T shall not apply
in interpretation of this contract, and each section, portion, and provision of this Agxeement shall
be construed solel�� on the basis of the language contained therein, regardless of who authored
such language.
31.
FWSOA License Agreement - 2013 Page 15 of 17
Entire Agreement
31.01 This instrument (including all attachments, schedules, and exhibits attached hereto)
constitutes the enrire understanding and agreement of the City and FWSOA as to use of the
Premises and the Garden. Any priot or contemporaneous oral or written agreement is hereby
declared null and void to the extent in conflict with the texms and conditions of this Agreement.
32.
No Amendment
32.01 This Agieement cannot be modified or amended without the written consent of all the
parties hereto and attached and made a part of this Agreement.
33.
Multiple Counterparts
33.01 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
34.01 By executing this Agreement, F��1SOA'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 (coYporation, partnership, individual, etc.) are true and
correct.
IN WITNESS W , EOF, the� arries have executed this Agreement in multiples in Tarrant
Count��, Texas, this���ay of ��'' �" ��-C�-- , 2013.
i
CITY OF FORT WORTH FORT WOR SYMPHONY
ORCHES ASSOCIA�'IOr
B:
S sa anis
Assistant City Manager ,a
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ary Kay r ��
City Secretary ��
APPROVED AS TO FORM
AND LEGALITY:
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FWSOA License Agreement - 2013 � �"��`� `� �
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FWSOA License Agreement - 2013 P�ge 17 of 17
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 5/14/2013 '
DATE: Tuesday, May 14, 2013
LOG NAME: 80FWSOA2013
REFERENCE NO.: **C-26256
SUBJECT:
Authorize 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 execution of 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:
Over the past 23 years, the City and the Fort Worth Symphony Orchestra Association (FWSOA) have
brought to the citizens of Fort Worth the Concerts in the Garden (CITG) series. On May 24, 2011, (M&C
C-24919) the City Council authorized the execution of a contract with the FWSOA to permit them to have
the use of certain portions of the Fort Worth Botanic Garden (shown as Tracts I, II and III on the attached
Exhibit) for the purposes of conducting the CITG series of performances by the FWSOA and other
artists. The Agreement was for two years (January 2011 through December 2012), without any additional
renewal options. The primary reason for the shorter term was to balance the desire to allow the concerts
to continue with the need to allow sufficient time to assess economic conditions. In producing the
concerts series, the FWSOA relies heavily on private corporate sector underwriting.
The City and the FWSOA wish to continue in their relationship and enter into a new Agreement for an
initial term of two years with an effective date beginning on January 1, 2013 and ending on December 31,
2014, with two 2-year renewal options. For the 2013 concert series, 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 the amount of $900.00 for dates on which the Symphony wishes
to reserve the bulk of the Botanic Garden Center (BGC) lots. The City and FWSOA agree to negotiate in
good faith to modify the license fees for the 2014 concert series and subsequent renewal options. The
proposed terms of the new Agreement are consistent with City contracts in general. As part of the Fort
Worth Botanical Society's (FWBS) non-exclusive concessionaire's rights with the City of Fort Worth, the
FWBS shall receive 20 percent of the gross revenue from all merchandise sold by or for the performers at
the concerts. All funds paid to the FWBS are to be allocated toward maintaining infrastructure and
addressing safety concerns throughout the Botanic Garden. All other major terms and conditions of the
prior year's contract remain unchanged.
The Parks and Community Service Advisory Board endorsed this recommendation at its February 27,
2013 Board meeting.
The Botanic Garden is located in COUNCIL DISTRICT 7 and serves the entire City of Fort Worth.
_ . _ _
Logname: 80FWSOA2013 Page 1 of 2
FI;�CAL INFORMATION / CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on City
funds.
_ __ _
FUND CENTERS:
TO Fund/AccountlCenters FROM Fund/AccountlCenters
CERTIFICATIONS:
Submitted for Citv Manager's Office b� Susan Alanis (8180)
Originating Department Head: Richard Zavala (5704)
Additional Information Contact: Sandra Youngblood (5755)
_ _ __ _ _ . _ _
ATTACHMENTS
1. FWSOA License Areas.pdf (Public)
Logname: 80FWSOA2013 Page 2 of 2