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HomeMy WebLinkAboutContract 60085CSC No. 60085 LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND BOTANICAL RESEARCH INSTITUTE OF TEXAS This LICENSE AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH, a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager ("City"), and the BOTANICAL RESEARCH INSTITUTE OF TEXAS, INC. ("Licensee"), a Texas non-profit corporation, DBA FORT WORTH BOTANIC GARDEN, acting by and through its duly authorized representative. City and Licensee are referred to herein individually as a ("Party") and collectively as the ("Parties"). WHEREAS, the City owns certain property located at 4825 Campus Drive, Fort Worth, TX 76119 known as Rolling Hills Park; WHEREAS, Licensee desires to use an approximate 3.8 acre portion of the Rolling Hills Park as shown on Exhibit "A" attached hereto and incorporated herein by reference ("Premises") for mutually beneficial horticultural activities, as more fully described on Exhibit `B". attached hereto and incorporated herein by reference; WHEREAS, Licensee has a desire to construct greenhouses, laydown area for nursery stock, temporary office and restroom space, bulb chillers, runoff detention and control, storage building, potting area, irrigation system, future office and administration building, and other support improvements on the Premises at Licensee's expense ("Improvements"); WHEREAS, the City and its residents will benefit from the Improvements through use of mutually supporting horticulture programs, to include propagating native plant species; WHEREAS, each Party finds that the performance of this Agreement is in the common interest of the Parties, that the undertaking will benefit the public interest and the division of costs fairly compensates the performing Party for the services or function under this Agreement; WHEREAS, the City has determined that it will make the Premises available to Licensee in accordance with the terms of this Agreement and that adequate controls are in place to ensure that the public purpose is carried out; and WHEREAS, the Parties wish to set forth the rights, duties, and responsibilities of the Premises and the Improvements thereof. NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged by the Parties, City and Licensee agree as follows: SECTION 1 PREMISES 1.1 Licensed Premises. For the Term specified in Section 2 below, and any extensions thereof, City hereby grants Licensee, its affiliates, successors, assigns, licensees, employees, representatives, independent contractors, and suppliers (all of whom shall be included in the term "Licensee") the exclusive right to enter upon and use the Premises, as more specifically described in Exhibit "A" which is attached hereto and incorporated herein by reference. Licensee shall be allowed to bring equipment thereon and to use the Premises for the purpose of constructing and installing greenhouses and other Improvements and for the uses described in Section 2 below. OFFICIAL RECORD License Agreement with BRIT (Rolling Hills Park) CITY SECRETARY page 1 of 19 FT. WORTH, TX 1.2 Condition of the Premises. Licensee agrees that Licensee has examined the Premises prior to the execution of this Agreement and is satisfied with the physical condition of the Premises. Licensee's taking possession of the Premises shall be conclusive evidence of its receipt of the Premises in a safe, sanitary, and good condition and repair. LICENSEE AGREES THAT IT IS TAKING THE PREMISES IN ITS CURRENT "AS IS" CONDITION WITH NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER BY CITY. Licensee agrees that open park space is not prepared by the City for use as a horticultural venue and may contain hazardous conditions that are not obvious or latent defects that could result in injury to program participants. Licensee assumes the risk of injury to Licensee and program participants for use of open space for Licensee's Improvements. City makes no warranty that the Premises are suitable for Licensee's intended use. SECTION 2 USE OF PREMISES 2.1 Licensee may use the Premises for the purpose of constructing the Improvements and conducting the horticulture activities described in Exhibit `B". 2.2 Licensee may bring into the Premises any equipment reasonably necessary to further the intended use of the Premises. However, the City reserves the right to prohibit any equipment which, in the City's sole discretion, may be dangerous or harmful to the Premises. 2.3 The City agrees to remove surplus materials that have been stored on the Premises to support Licensee's Improvements. 2.4 Licensee agrees not to make any material alterations, additions, or improvements to the Premises other than the Improvements without the prior written consent of the City. 2.5 Licensee will not be responsible for any toxic substances or materials that exist on the Premises prior to Agreement execution. Under no circumstances will Licensee use or cause to be used on the Premises any illegal, hazardous or toxic substances or materials, or store or dispose of any such substances or materials on the Premises; however, License may use and store fertilizers, herbicides, and pesticides in accordance with all applicable laws that are used by Licensee for horticultural purposes. Licensee further agrees to use due diligence and best practices in managing horticultural materials and plants. 2.6 Licensee may not use any part of the Premises for any use or purpose that violates any applicable law, regulation, or ordinance of the United States, the State of Texas, the County of Tarrant, or the City of Fort Worth, or other lawful authority with jurisdiction of the Premises. 2.7 Licensee shall have shared use of the parking lot located at 2525 Joe B. Rushing Road, including parking spaces, access drives, and key pad activated entrance gate. 2.8 All permanent improvements made to the Premises will be deeded to the City following completion. License Agreement with BRIT (Rolling Hills Park) Page 2 of 19 SECTION 3 TERM 3.1 Term. This Agreement shall be effective beginning on the date that this Agreement is executed by the City's Assistant City Manager ("Effective Date") and expire on September 30, 2040, ("Initial Term"), unless terminated in accordance with the terms and conditions of this Agreement. This Agreement may be renewed under terms and conditions agreed to between the City and Licensee in a written renewal to the Agreement. Licensee shall provide the City with notice no less than three years from the end of the Initial Term if Licensee decides not to renew this Agreement. City shall provide Licensee with notice no less than three years from the end of the Initial Term if the City decides not to renew this Agreement. SECTION 4 LICENSE FEE 4.1 License Fee. Licensee shall not receive payment for any services provided under this Agreement. The City and Licensee expressly agree and stipulate that this Agreement is based on valuable consideration and an exchange of promises that will be independently beneficial to both Parties. Specifically, Licensee agrees that the City will provide a benefit to Licensee by providing use of the Premises at no charge to Licensee for said Improvements. Licensee has accepted this as valuable consideration for its performance of the horticulture activities described in Exhibit `B". Additionally, City agrees that Licensee's Improvements, as more fully described in Exhibit `B". will provide a benefit to City, and that City has accepted as valuable consideration. Both Parties agree as a condition precedent to executing this Agreement that the consideration is valuable and sufficient and that neither Party shall be able to assert otherwise in the event of litigation. SECTION 5 DUTIES AND RESPONSIBILITIES 5.1 In addition to any other duties and responsibilities set forth in this License Agreement, Licensee shall: 5.1.1 Immediately report any maintenance or repair needs to the Park & Recreation Department. 5.1.2 Be solely responsible for initiating, maintaining, and supervising all safety precautions in connection with Licensee's Improvements on the Premises. 5.1.3 Abide by the insurance requirements set forth in Exhibit "C". which is attached hereto and incorporated herein for all purposes. 5.1.4 Construct approximately 40,000 square feet of greenhouses and support amenities for the horticulture activities described in Exhibit `B". 5.1.5 Be solely responsible for installation and all charges for gas, water, sewer, electricity, power, telephone, internet connection or other utility service furnished to, or used in connection with, the maintenance, use or repair of the Improvements during the term of this Agreement, including any connection fees. License Agreement with BRIT (Rolling Hills Park) Page 3 of 19 5.1.6 Require Licensee staff to be onsite at all times when volunteers are at the facility. 5.1.7 Consider proposals from the City regarding supporting horticulture programs including propagating native plant species. 5.1.8 Discuss with the City mutual support of all operations. 5.2 Maintenance of Shared Use Facilities. 5.2.1 Entry Gate —Unless damage is caused by Licensee's Improvements, maintenance is the responsibility of the City. 5.2.2 Access Road —Any maintenance costs will be shared evenly between the City and Licensee. Licensee will be responsible for maintaining the separate fire access gate and road to the existing internal road network that is acceptable to the Fire Department. 5.2.3 Parking Lot — Any maintenance costs will be shared evenly between the City and Licensee. 5.2.4 Restrooms — Licensee will provide its own restrooms but in instances of temporary outages, City will work with Licensee to provide onsite restroom access with no maintenance cost sharing. 5.2.5 Security — The City and Licensee will be jointly responsible for parking lot security. Licensee will be responsible for Premises and fire access gate to Campus Drive. SECTION 6 LIENS 6.1 Licensee acknowledges that it has no authority to engage in any act or to make any contract that may create or be the foundation for any lien upon the property or interest in the property of the City. If any such purported lien is created or filed, Licensee will not permit it to remain, and will, at its cost and expense, promptly discharge, all liens, encumbrances, and charges upon the Premises or a part thereof, arising out of the use or occupancy of the Premises or a part thereof by Licensee, by reason of any labor or materials furnished or claimed to have been furnished, by, through, or under Licensee, by reason of any construction, improvement, alteration, addition, repair, or demolition of any part of the Premises. Licensee's failure to discharge any such purported lien shall constitute a breach of this License Agreement and City may terminate this License Agreement upon thirty (30) days written notice. However, Licensee's financial obligation to the City to liquidate and discharge such lien shall survive following termination of this Agreement and until such a time as the lien is discharged. SECTION 7 CARE OF THE PREMISES 7.1 Licensee, at Licensee's own expense, shall keep the Premises and maintain all equipment and Improvements on the Premises in a safe, sanitary, sightly condition and in good repair License Agreement with BRIT (Rolling Hills Park) Page 4 of 19 during its use of the Premises; provided, however, the foregoing shall not be construed to require the Licensee to provide general janitorial services at the Premises. Licensee shall restore and yield the Premises, equipment, and Improvements back to the City,— at the expiration of this Agreement, in good or better condition as they existed in which Licensee found them. However Licensee shall not be required to remove the Improvements. This shall only apply during such time as the Licensee has use of the Premises as set forth in this Agreement. 7.2 Licensee will not do, or permit to be done, any injury or damage to the Premises, or any parts thereof. 7.3 Subject to ordinary wear and tear and to the extent allowed by law, Licensee will pay the costs of repairing any damage that may be done to the Premises or any of the fixtures, furniture or furnishings by any act of Licensee or any of Licensee's officers, representatives, servants, employees, agents, invitees, program participants, or anyone visiting the Premises upon the invitation of Licensee. The City shall determine, in its reasonable discretion, whether any damage has occurred, the amount of the damage, the reasonable costs of repairing the damage, and whether, under the terms of the Agreement, Licensee is responsible. The quality of the maintenance of the Premises, furnishings, fixtures or furniture by the Licensee shall be reasonably acceptable to the City. The costs of repairing any damage to the Premises shall be immediately due and payable by Licensee upon Licensee's receipt of a written invoice from City. 7.4 Licensee shall, at Licensee's sole expense, keep the Improvements in good condition, maintenance and repair. In the event that the Improvements are not reasonably maintained or repaired, the City shall notify Licensee in writing reasonably describing any deficiency, and Licensee shall have sixty (60) calendar days from the date of the notice to cure the non-compliance. If Licensee does not cure the non-compliance within sixty (60) calendar days from the date of the notice, or an additional reasonable period if Licensee is proceeding with reasonable diligence to cure the default, the City may terminate this Agreement pursuant to Section 12 below. If City comes in and makes repairs, the City will bill Licensee for reimbursement. SECTION 8 FORCE MAJEURE 8.1 If either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; pandemics and epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or emergency by the federal, state, county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the Party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such Force Majeure Event. If a Force Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening of its community centers, parks, or other City -owned and operated properties and facilities in the interest of public safety and operate them as the City sees fit. Licensee hereby waives any claims it may have against the City for damages resulting from any such Force Majeure Event. License Agreement with BRIT (Rolling Hills Park) Page 5 of 19 SECTION 9 LIABILITY AND INDEMNIFICATION 9.1 LICENSEE SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE AND PERSONAL INJURY OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF LICENSEE, OR ITS DIRECTORS, OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, CONTRACTORS, EMPLOYEES, PATRONS, GUESTS, INVITEES, PROGRAM PARTICIPANTS, OR SUBLICENSEES. LICENSEE HEREBY EXPRESSLY RELEASES AND DISCHARGES CITY FROM ANY AND ALL LIABILITY FOR ANY DAMAGE, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE OCCUPANCY AND USE OF THE PREMISES AND ANY AND ALL ACTIVITIES CONDUCTED THEREON SUSTAINED BY REASONS OF THE OCCUPANCY OF SAID PREMISES UNDER THIS AGREEMENT. 9.2 INDEMNIFICATION. LICENSEE, AT NO COST TO THE CITY, AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY, PROTECT, AND HOLD HARMLESS CITY AND CITY'S OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES, AND SERVANTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION), OF ANY NATURE, KIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY (1) RELATING TO THE USE OR OCCUPANCY OF THE PREMISES BY LICENSEE OR ANY OF ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, PATRONS, GUESTS, SUBLICENSEES, PROGRAM PARTICIPANTS, OR INVITEES; (2) BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF LICENSEE OR ANY OF ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, PATRONS, GUESTS, SUBLICENSEES, PROGRAM PARTICIPANTS, OR INVITEES OR OF ANY OTHER PERSON ENTERING UPON THE PREMISES WITH THE EXPRESS OR IMPLIED INVITATION OR PERMISSION OF LICENSEE; OR (3) BY ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF LICENSEE UNDER THIS AGREEMENT (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUATABLE TO ANY ACT, OMISSION, NEGLIGENCE, BREACH OF CONTRACT, INTENTIONAL CONDUCT, VIOLATION OF STATUTE OR COMMON LAW, BREACH OF WARRANTY, PRODUCT DEFECT, STRICT PRODUCT LIABILITY, OR ANY OTHER ACT, OMISSION, OR CONDITION WHATSOEVER OF THE CITY OR ITS PROPERTY. 9.3 If any action or proceeding shall be brought by or against the City in connection with any such liability or claim, Licensee, on notice from the City, shall defend such action or proceeding at Licensee's expense, by or through attorneys reasonably satisfactory to the City. 9.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligations under this Section, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification License Agreement with BRIT (Rolling Hills Park) Page 6 of 19 obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 9.5 Licensee agrees to notify the City promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death, or damages on the Premises. Licensee agrees to make its officers, representatives, agents, and employees available to the City, at all reasonable times, for any statements and case preparation necessary for the defense of any claims or litigation for which the City may be responsible hereunder. Licensee shall place language in its contracts with contractors and subcontractors that contractors shall notify the City as required by Licensee in this subsection. 9.6 Licensee shall require all of its subcontractors to include in their subcontracts liability and indemnification language in favor of the City in substantially the same form as above. SECTION 10 AUDIT 10.1 Licensee agrees that the City shall, until the expiration of three (3) years after the termination or expiration of this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of Licensee involving transactions relating to this Agreement. Licensee agrees that the City shall have access during normal working hours to all necessary Licensee facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Licensee reasonable advance notice of intended audits. 10.2 Licensee further agrees to include in any contractor and subcontractor agreements hereunder a provision to the effect that the contractor and subcontractors agree that the City shall, until the expiration of three (3) years after the expiration or termination of the contract or subcontract, have access to and the right to examine any directly pertinent books, documents, papers, and records of such contractor or subcontractor involving transactions of the contract or subcontract, and further that the City shall have access during normal working hours to all contractor and subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. The City shall give the contractor and subcontractor reasonable advance notice of intended audits. SECTION 11 CHARITABLE IMMUNITY 11.1 Licensee 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 Licensee hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against the City. Copy of the documentation stating this organization's status is due annually to the address specified for Park & Recreation Department in the notice provision of this Agreement. License Agreement with BRIT (Rolling Hills Park) Page 7 of 19 SECTION 12 TERMINATION 12.1 Termination for Cause. Either Party may terminate this Agreement immediately by providing written notice to the other Party in the event of. (i) either Party becoming subject to a bankruptcy proceeding; being adjudicated insolvent; failing to pay its debts generally as they become due; or seeking or acquiescing to appointment of any trustee, receiver, master, custodian, or liquidator; (ii) failure by the other Party to perform any covenant, condition, or term of this Agreement and such defaulting Party fails to diligently pursue a cure thereof to its completion after thirty (30) calendar days' written notice specifying such failure of performance or default. The Party terminating this Agreement for cause shall also be free to pursue any and all other legally available remedies against the other Party; or (iii) in the event that the Management Agreement between City and Licensee for the Fort Worth Botanic Garden (the same being Fort Worth City Secretary Contract 54201) terminates for any reason whatsoever, this Agreement shall also terminate effective as of the date of the termination of the Management Agreement. 12.2 Termination for Convenience. Either Party may terminate this Agreement at will, anytime and for any reason by providing the other Party with one (1) year advance written notice of termination. 12.3 Duties and Obliizations of the Parties upon Termination or Expiration. Prior to the effective date for expiration or termination of this Agreement, Licensee shall promptly remove all of its personal property; provided, however, Licensee shall not be obligated to remove any Improvements or fixtures. Licensee shall surrender the Premises to the City in substantially the same condition as at the commencement of the Agreement, excepting only ordinary wear and tear and damage, or any alterations, additions, or Improvements thereon that were made with the prior written consent of the City. Licensee shall also repair any Licensee -caused damage to the Premises, including, but not limited to, any damage that Licensee causes during removal of Licensee's property, to the reasonable satisfaction of the Park & Recreation Department Director. Licensee shall terminate all contracts entered into by Licensee for operations of the Improvements, or with the consent of the City and contractor, assign contracts to the City that the City desires to continue. 12.4 Gratuities. The City may terminate this Agreement if it is found that gratuities in the form of entertainment, gifts or otherwise were offered or given by Licensee or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performance of this Agreement. In the event this Agreement is canceled by the City pursuant to this section, the City shall be entitled, in addition to any other rights and remedies, to recover from Licensee a sum equal in amount to the cost incurred by Licensee in providing such gratuities. 12.5 Fiscal Funding Out. Notwithstanding anything to the contrary, if, for any reason, at any time during the term of the Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate the portion of the Agreement regarding such obligations to be effective on the last of (i) ninety (90) calendar days following delivery by the City to Licensee of written notice of the City's intention to terminate; or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 12.6 Other Remedies. Any termination of this Agreement as provided in this Agreement will not relieve Licensee from paying any sum or sums due and payable to City under this Agreement that remains unpaid and due at the time of termination, or any claim for damages then or previously accruing against Licensee under this Agreement. Any such termination will not prevent the City from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or from License Agreement with BRIT (Rolling Hills Park) Page 8 of 19 recovering damages from Licensee for any default under the Agreement. All City's rights, options, and remedies under this Agreement will be construed to be cumulative, and not one of them is exclusive of the other. The City may pursue any or all such remedies or any other remedy or relief provided by law, whether or not stated in this Agreement. No such termination shall relieve the City from any obligation it may have to Licensee hereunder and the City may pursue any and all rights and remedies or relief provided by law, whether or not stated in this Agreement. SECTION 13 RIGHT OF ENTRY AND INSPECTION 13.1 In licensing the Premises, the City does not relinquish the right to control the management of the Premises, or the right to enforce all necessary and proper rules for the management and operation of the same. After receiving notice sent by the City at least twenty-four (24) hours in advance, Licensee must permit the City or its agents, representatives, or employees to enter the Premises for the purposes of inspection; determining whether Licensee is complying with this Agreement; maintaining, repairing, or altering the Premises; or any other reasonable purpose. During any inspection, the City may perform any obligations that the 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. In the event of an emergency, no advance notice from the City is required. SECTION 14 LICENSES AND PERMITS 14.1 Licensee shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for its operations. SECTION 15 NOTICES 15.1 All notices required or permitted under this Agreement, may be given to a Party by receipted overnight courier (such as Federal Express or UPS) or by United States certified mail, return receipt requested, 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: City of Fort Worth Park & Recreation Director 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 With copies to: City of Fort Worth Attn: Assistant City Attorney and Assistant City Manager 200 Texas Street Fort Worth, Texas 76102 LICENSEE Botanical Research Institute of Texas Attn.: Chief Executive Officer 1700 University Drive Fort Worth, TX 76107-3400 Or to such other address as such Party may hereafter designate by notice in writing addressed and mailed or delivered to the other Party hereto. License Agreement with BRIT (Rolling Hills Park) Page 9 of 19 SECTION 16 NON-DISCRIMINATION 16.1 Licensee shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria, and Licensee represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. 16.2 In the event of Licensee noncompliance with the nondiscrimination clauses of this Agreement, which is not cured within ninety (90) calendar days of notice of such noncompliance, this Agreement may be canceled, terminated, or suspended in whole or in part, and Licensee may be debarred from further agreements with the City. SECTION 17 VENUE AND CHOICE OF LAW 17.1 Licensee and the City agree that this Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. SECTION 18 THIRD -PARTY RIGHTS AND ASSIGNMENTS 18.1 The provisions and conditions of this Agreement are solely for the benefit of the City and Licensee, and any lawful assign or successor of Licensee, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 18.2 Licensee agrees that it will not subcontract or assign all or any part of its rights, privileges or duties hereunder without the prior written consent of the City, and any attempted subcontract or assignment of same without such prior consent of the City shall be void. SECTION 19 BINDING COVENANTS 19.1 Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the Parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives and permitted assigns, if any. SECTION 20 INDEPENDENT CONTRACTOR 20.1 It is expressly understood and agreed that Licensee and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as independent contractors as to all rights and privileges and work performed under this Agreement, and not as agents, representatives or employees of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Licensee shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Licensee acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers, representatives, agents, servants License Agreement with BRIT (Rolling Hills Park) Page 10 of 19 and employees, and Licensee and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Licensee further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Licensee. It is further understood that the City shall in no way be considered a Co -employer or a Joint employer of Licensee or any employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers of Licensee. Neither Licensee, nor any officers, agents, servants, employees or subcontractors of Licensee shall be entitled to any employment benefits from the City. Licensee shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. SECTION 21 AMENDMENTS, CAPTIONS, AND INTERPRETATION 21.1 Except as otherwise provided in this Agreement, the terms and provisions of this Agreement may not be modified or amended except upon the written consent of both the City and Licensee. 21.2 Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21.3 In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any Party, regardless of the actual drafter of this Agreement. SECTION 22 GOVERNMENTAL POWERS AND IMMUNITIES 22.1 It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. SECTION 23 AUTHORIZATION AND COUNTERPARTS AND ELECTRONIC SIGNATURES 23.1 By executing this Agreement, Licensee's agent affirms that he or she is authorized by Licensee to execute this Agreement and that all representations made herein with regard to Licensee's identity, address, and legal status are true and correct. 23.2 This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. SECTION 24 SEVERABILITY AND NO WAIVER 24.1 If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired. License Agreement with BRIT (Rolling Hills Park) Page 11 of 19 24.2 The failure of either Party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that Party's right to insist upon appropriate performance or to assert any such right on any future occasion. SECTION 25 COMPLIANCE WITH LAWS 25.1 This Agreement is subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. 25.2 If the City notifies Licensee or any of its officers, agents, employees, contractors, subcontractors, licensees, volunteers, or invitees of any violation of such laws, ordinances, rules or regulations, Licensee shall immediately desist from and correct the violation. SECTION 26 SOLE AGREEMENT 26.1 This Agreement, including any exhibits attached hereto and any documents incorporated herein, contains the entire understanding and agreement between the City and Licensee, and any lawful assign and successor of Licensee, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. SECTION 27 IMMIGRATION NATIONALITY ACT 27.1 Licensee must verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by the City, Licensee must provide the City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Licensee must adhere to all federal and state laws as well as establish appropriate procedures and controls so that no services will be performed by any Licensee employee who is not legally eligible to perform such services. LICENSEE MUST INDEMNIFY THE CITY AND HOLD THE CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY LICENSEE, LICENSEE'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. The City, upon written notice to Licensee, will have the right to immediately terminate this Agreement for violations of this provision by Licensee. SECTION 28 BOYCOTTING ISRAEL PROHIBITED 28.1 If Licensee has fewer than ten (10) employees or this Agreement is for less than $100,000, this section does not apply. Licensee acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" has the meanings ascribed to those terms in Section 2271 of the Texas Government Code. By signing this Agreement, Licensee certifies that Licensee's signature provides written verification to the City that Licensee: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. License Agreement with BRIT (Rolling Hills Park) Page 12 of 19 SECTION 29 PROHIBITION ON BOYCOTTING ENERGY COMPANIES 29.1 Licensee acknowledges that, in accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with ten (10) or more full-time employees unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Licensee certifies that Licensee's signature provides written verification to the City that Licensee: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. SECTION 30 PROHIBITION ON DISCRIMINATION AGAINST FIREARM AND AMMUNITION INDUSTRIES 30.1 Licensee acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with ten (10) or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms "discriminate", "firearm entity" and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Licensee certifies that Licensee's signature provides written verification to the City that Licensee: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. SECTION 31 ENTIRETY OF AGREEMENT 31.1 This Agreement contains the entire understanding and agreement between the City and Licensee, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. License Agreement with BRIT (Rolling Hills Park) Page 13 of 19 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in multiples in Tarrant County, Fort Worth, Texas. CITY: By: CA(3�1—� Name: Jesica McEachern Title: Assistant City Manager Date: Sep 11, 2023 BOTANICAL RESEARCH INSTITUTE OF TEXAS: By: Name: a c ewman Title: Chief Executive Officer Date: q 2� By: /.L• �:. Name: it iam Brentlikr Title: Board President By: N e: Bob Byers Title: Executive Vice President FOR CITY OF FORT WORTH INTERNAL PROCESSES: Approval Recommended: By: Aq�e )g Name: Dave Lewis Title: Acting Director Park & Recreation Department Approved as to Form and Legality AL By: NicoNico Arias 309:20 CDT) Name: Nico Arias Title: Assistant City Attorney Contract Authorization: M&C: N/A Form 1295: N/A Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: Sandra You od(Sep 5,202312:33 CDT) Name: Sandra Youngblood Title: Assistant Director Park & Recreation Department City Secretary: $h8 '8 sm" s=o By: Name: Jannette S. Goodall Title: City Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX License Agreement with BRIT (Rolling Hills Park) Page 14 of 19 EXHIBIT "A" PREMISES f w Mlw�r � w r• r! ! � r ... License Agreement with BRIT (Rolling Hills Park) Page 15 of 19 i ODUNAWAY p �� �ITM MM • IIA m. bi wh.tis NSW ,�`�`�.f.�rn License Agreement with BRIT (Rolling Hills Park) Page 16 of 19 EXHIBIT "B" HORTICULTURE ACTIVITIES Primary activities will include: • Holding and propagating portions of the Botanic Garden's orchid, begonia, and other plant collections to allow for backup stock and materials for sharing with other institutions, plant sales, and other events. • Winter storage of tropical plants such as citrus used in warm -season displays in the Botanic Garden • Propagation by seed, cuttings, or other methods of material for garden collections and community projects. This includes growing plant materials for Tarrant Area Food Bank community garden programs. • Production and/or holding of seasonal color for use in Botanic Garden displays and exhibits. Examples would include poinsettias for holiday displays and orchids for orchid exhibits. Also, to include color materials for Park & Recreation Department projects when mutually beneficial and space, time, and budget of both Parties allow. • Holding areas for permanent plant materials purchased for use in the Botanic Garden while waiting for completion of site preparation and for planting to be scheduled. • In -ground production of cut flowers, seed stock, and other plant materials for various Botanic Garden uses. • Cold storage/treatment of bulbs and other stock that require vernalization (artificial winter conditions) to complete annual growth cycles. • Storage of potting soil, soil amendments, fertilizers and pesticides, and other products needed for various production and plant maintenance activities as listed above. • Future headhouse/potting areas supporting greenhouse production. • Temporary office and potting facility and future permanent office and lab space for horticulture and research staff to include storage, restrooms, and other required support facilities. License Agreement with BRIT (Rolling Hills Park) Page 17 of 19 EXHIBIT "C" INSURANCE REQUIREMENTS Insurance. Licensee must provide the City with certificate(s) of insurance documenting policies of the following types and minimum coverage limits that are to be in effect prior to commencement of the Improvements: 10.1 Coverage and Limits (a) Commercial General Liability: $1,000,000 - Each Occurrence $2,000,000 - Aggregate (b) Automobile Liability: $1,000,000 - Each occurrence on a combined single limit basis Coverage will be on any vehicle used by Licensee, or its employees, agents, or representatives in the course of constructing Improvements under this Agreement. "Any vehicle" will be any vehicle owned, hired and non -owned. (c) Worker's Compensation: Statutory limits according to the Texas Workers' Compensation Act or any other state workers' compensation laws where the Services are being performed Employers' liability $100,000 - Bodily Injury by accident; each accident/occurrence $100,000 - Bodily Injury by disease; each employee $500,000 - Bodily Injury by disease; policy limit (d) Professional Liability (Errors & Omissions): ❑ Applicable ® N/A $1,000,000 - Each Claim Limit $1,000,000 - Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage must be claims -made, and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance must be submitted to City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies must name the City as an additional insured thereon, as its interests may appear. The term City includes its employees, officers, officials, agents, and volunteers in respect to the use of the Premises. License Agreement with BRIT (Rolling Hills Park) Page 18 of 19 (b) The workers' compensation policy must include a Waiver of Subrogation (Right of Recovery) in favor of the City. (c) A minimum of thirty (30) days' notice of cancellation or reduction in limits of coverage must be provided to the City. Ten (10) days' notice will be acceptable in the event of non-payment of premium. Notice must be sent to the City in accordance with the notice provision of this Agreement. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation will not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that Licensee has obtained all required insurance will be delivered to the City prior to Licensee proceeding with any work pursuant to this Agreement. License Agreement with BRIT (Rolling Hills Park) Page 19 of 19