HomeMy WebLinkAboutContract 60446CSC No. 60446
INFRASTRUCTURE CONSTRUCTION AGREEMENT
WITH CITY 2022 BOND PROGRAM
This INFRASTRUCTURE CONSTRUCTION AGREEMENT ("Agreement") is made and
entered into by and between The City of Fort Worth ("City"), a home -rule municipal corporation of the
State of Texas, acting by and through its duly authorized Assistant City Manager, and the Botanical Research
Institute of Texas Inc. ("BRIT"), acting by and through its duly authorized representative. City and BRIT
are referred to herein individually as a "party" and collectively as the "parties."
WHEREAS, BRIT, a 501(c) (3) corporation, is managing the Botanic Garden pursuant to that
certain Management Agreement regarding management of and improvements to the Botanic Garden, City
Secretary No. 54201, between BRIT and City ("Management Agreement"); and
WHEREAS, pursuant to the Management Agreement, the City committed to spending
$17,000,000 (as adjusted for CPI) over a twelve-year period for deferred facility maintenance or other
capital expenditures as requested by BRIT; and
WHEREAS, on August 19, 2021, the City and BRIT entered into a Tax Notes Infrastructure
Construction Agreement (CSC 56196) with city participation in the amount of $2,547,441 (M&C 21-0367)
for the construction of seven infrastructure projects with estimated completion date in June 2023; and
WHEREAS, on May 7, 2022, the residents of City of Fort Worth approved the 2022 Bond Program
of which $6,338,500.00 ("City Participation") is designated to fund 7 master planning and infrastructure
improvement projects at the Botanic Garden that were not included in original Tax Notes project list. These
7 new projects are further described herein and depicted on the Table attached hereto as Attachment A
("Projects"); and
WHEREAS, pursuant to the Management Agreement, BRIT, for no additional management fee or
compensation, will design and construct the Projects; and
WHEREAS, BRIT and the City desire to enter into this Agreement to facilitate design and
construction of the Projects;
NOW, THEREFORE, for and in consideration of these recitals and the covenants and conditions
contained herein, BRIT and the City do hereby agree as follows:
1.
CFA Ordinance
The Community Facilities Agreements Ordinance ("CFA Ordinance"), as amended, but limited to
only the specific sections listed in this paragraph, is incorporated into this Agreement by reference, as if it
was fully set forth herein. In addition to the terms and conditions in this Agreement, BRIT agrees to comply
with the following provisions of the CFA Ordinance (City Code, Part II, Chapter 9
htti)s:Hcodelibrary.amlegal.com/codes/ftworth/latest/ftworth tx/0-0-0-62316) in the performance of
BRIT's duties and obligations pursuant to this Agreement:
■ § 9-3 PURPOSE AND SCOPE
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Infrastructure Construction Agreement with City 2022 Bond Program
■ § 9-4 DEFINITIONS
■ § 9-301 MATERIAL TESTING
■ § 9-302 INSPECTION FEES
■ § 9-304 CALCULATION AND PAYMENT OF ESTIMATED INSPECTION AND
TESTING FEES
■ § 9-317 REQUIREMENTS FOR CONTRACTORS CONSTRUCTING COMMUNITY
FACILITIES
■ § 9-318 REQUIREMENTS FOR A NOTICE TO PROCEED TO CONSTRUCTION
■ § 9-401 PUBLIC PROCUREMENT REQUIREMENTS
■ § 9-403 LIMITS ON CITY PARTICIPATION
■ § 9-404 CITY'S WAGE RATES
■ § 9-406 CHANGE ORDERS
■ ARTICLE VII: CONSTRUCTION, FINAL INSPECTION, AND CFA CLOSEOUT
BRIT further agrees to cause all contractors hired by BRIT to comply with the CFA Ordinance as recited
herein in connection with the work performed by the contractors.
2.
Incorporation of Engineering Plans
The engineering plans for the Projects will be approved by the Director of City Park & Recreation
Department. Final engineering plans should be sent to City Park & Recreation Department for records
upon request.
3.
Description of Improvements; Exhibits and Attachments
The attached exhibits and attachments describe the nature and extent of the Improvements that are
the subject of this Agreement and are attached hereto and incorporated herein by reference:
Under the Management Agreement, the City has an obligation to construct, maintain, repair or
relocate certain public infrastructure deferred facility maintenance projects or other capital expenditures.
Due to BRIT's management presence on -site, it was determined that the most efficient way to accomplish
the City's obligation is to provide funding to BRIT through this Agreement so that BRIT can obtain its own
contractors and oversee the work.
To the extent that the Exhibits, Location Map, or the Cost Estimates conflict with the
Engineering Plans, the Engineering Plans shall control.
4.
Construction of Improvements
BRIT agrees to cause the construction of the Projects contemplated by this Agreement with
construction to be completed in a good and workmanlike manner and in accordance with all City standards
and specifications, the Engineering Plans, the Cost Estimates provided for the Projects, and this Agreement.
BRIT acknowledges that City will not accept the Projects until the City receives affidavits and lien
releases signed by BRIT's contractors verifying that the contractors, and all subcontractors and material
suppliers, have been paid in full for constructing the Projects, and consent of the surety on payment and
performance bonds provided for the Projects.
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Infrastructure Construction Agreement with City 2022 Bond Program
5.
City Participation
The City shall reimburse BRIT in an amount not to exceed $6,338,500.00 for design and
construction costs after presentation of proper documentation by BRIT to the City that the Projects have
been constructed and accepted by BRIT and all contractors and material suppliers have been paid.
Reimbursement payments shall be made per Project and may be made on a monthly (ongoing) basis or in
a lump sum upon completion of the specific Project.
It is the policy of the City of Fort Worth to ensure the full and equitable participation of Business Equity
Firms, in the procurement of all goods and services. All requirements and regulations stated in the City's
current Business Equity Ordinance No. 24534-11-2020, as amended (`BEO"), apply to this Agreement. On
Projects valued at $100,000 or more, BRIT's prime contractor on each such Project is required to comply
with the intent of the BEO by meeting or exceeding the Business Equity Goal, as obtained by BRIT in
coordination with the DVIN (as defined in the BEO), through one of the following methods: 1. Business
Equity subcontracting participation, 2. Commercially useful function services performed by the
Business Equity Prime to count towards the goal, 3. Combination of Business Equity Prime services
and Business Equity subcontracting participation, 4. Business Equity Joint Venture participation, 5.
Good Faith Effort documentation or 6. Prime Waiver documentation. BRIT agrees to submit to the
DVIN its contractor's periodic payment reports for review.
6.
Completion Deadline; Extension Periods
This Agreement shall be effective on the date this Agreement is executed by the City's Assistant
City Manager ("Effective Date"). BRIT shall complete construction of the Projects and obtain the City's
acceptance of the Improvements by September 30, 2026 ("Term"). If construction of the Projects has
started during the Term, the BRIT may request that this Agreement be extended for an additional period of
time ("Extension Period"). All Extension Periods shall be agreed to in writing by the City and the BRIT as
set forth in a written amendment to this Agreement. In no event shall the Term of this Agreement plus any
Extension Periods be for more than three years.
7.
Failure to Construct the Improvements
(a) The City may utilize the BRIT's Financial Guarantee, if any, or the funding set aside for this
Agreement, to cause the completion of the construction of the Projects if at the end of the Term,
and any Extension Periods, the Projects have not been completed and accepted by the City. If the
Projects are not completed at the end of the Term, and any Extension Periods, there will be no
further obligation for City Participation to be paid to the BRIT.
(b) The City may utilize the BRIT's Financial Guarantee to cause the completion of the construction
of the Projects or to cause the payment of costs for construction of the Projects before the expiration
of the Term, and any Extension Period, if the BRIT breaches this Agreement, becomes insolvent,
or fails to pay costs of construction.
(c) Nothing contained herein is intended to limit the BRIT's obligations under the CFA Ordinance,
this Agreement, the Financial Guarantee, BRIT's agreements with BRIT's contractors, or other
related agreements.
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Infrastructure Construction Agreement with City 2022 Bond Program
8.
Termination
If BRIT desires to terminate this Agreement before BRIT's contractors begin constructing the
Projects, BRIT agrees to the following:
(a) that BRIT and City must execute a termination of this Agreement in writing;
(b) to pay to the City all costs incurred by the City in connection with this Agreement, including
time spent by the City's inspectors at preconstruction meetings.
9.
Award of Construction Contracts
(a) BRIT will award all contracts for the construction of the Projects and cause the Projects to be
constructed in accordance with the CFA Ordinance.
(b) BRIT will employ construction contractors who meet the requirements of the City to construct the
Projects including, but not limited, to being prequalified, insured, licensed and bonded to construct
the Projects in the City.
(c) BRIT will require BRIT's contractors to provide the City with payment and performance bonds
naming the City and the BRIT as dual obligees, in the amount of one hundred percent (100%) of
the cost of the Projects as required by the CFA Ordinance. The payment and performance bonds
shall guarantee construction of the Projects and payment of all subcontractors and material
suppliers. BRIT agrees to require BRIT's contractors to provide the City with a maintenance bond
naming the City as an obligee, in the amount of one hundred percent (100%) of the cost of the
Projects, that guarantees correction of defects in materials and workmanship for the Projects by the
contractor and surety for a period of two (2) years after completion and final acceptance of the
Projects by the City. All bonds must be provided to the City before construction begins and must
meet the requirements of the City's Standard Conditions, Chapter 2253 of the Texas Government
Code, and the Texas Insurance Code.
(d) BRIT will require BRIT's contractors to provide the City with insurance equal to or in excess of
the amounts required by the City's standard specifications and contract documents for BRIT -
awarded infrastructure construction contracts. The City must be named as an additional insured on
all insurance policies. The BRIT must provide the City with a Certificate of Insurance (ACORD
or form approved by the State of Texas), supplied by each contractor's insurance provider, which
shall be made a part of the Project Manual.
(e) BRIT will require the BRIT's contractors to give forty-eight (48) hours' advance notice of their
intent to commence construction of the Improvements to the City's Construction Services Division
so that City inspection personnel will be available. BRIT will require BRIT's contractors to allow
construction of the Improvements to be subject to inspection at any and all times by the City's
inspectors. BRIT will require BRIT's contractors to not install or relocate any sanitary sewer, storm
drain, or water pipe unless a City inspector is present and gives consent to proceed, and to allow
such laboratory tests as may be required by the City.
(f) BRIT will not allow BRIT's contractors to begin construction of the Projects until a notice to
proceed to construction is issued by the City.
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Infrastructure Construction Agreement with City 2022 Bond Program
(g) BRIT will not allow BRIT's contractors to connect buildings to service lines of sewer and water
mains constructed pursuant to this Agreement, if any, until said sewer, water mains and service
lines have been completed to the satisfaction of the City.
(h) BRIT shall ensure the contractors are paid the City's wage rates in effect during construction of
the Projects.
10.
Utilities
BRIT shall cause the installation or adjustment of utilities required to: (1) serve the Project; and (2)
to construct the Improvements required herein, notwithstanding public utilities which are the responsibility
of the City as required and defined in Section 9.4 the Management Agreement.
11.
Easements and Rights -of -Way
BRIT agrees to provide, at its expense, all necessary rights -of -way and easements, if any are
required for the construction of the Projects provided for by this Agreement, and any easements acquired
shall be dedicated to the City.
12.
Liability and Indemnification
(a) BRIT HEREBY RELEASES AND AGREES TO INDEMNIFY, DEFEND AND HOLD THE
CITY HARMLESS FOR ANY INADEQUACIES IN THE PRELIMINARY PLANS,
SPECIFICATIONS, ENGINEERING PLANS, AND COST ESTIMATES SUPPLIED BY
THE BRIT FOR THIS AGREEMENT.
(b) THE BRIT COVENANTS AND AGREES TO, AND BY THESE PRESENTS DOES HEREBY
FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,
AGENTS AND EMPLOYEES FROM ALL SUITS, ACTIONS OR CLAIMS OF ANY
CHARACTER, WHETHER REAL OR ASSERTED, BROUGHT FOR OR ONACCOUNT OF
ANYINJURIES OR DAMAGES SUSTAINED BYANYPERSONS, INCLUDING DEATH, OR
TO ANY PROPERTY, RESULTING FROM OR IN CONNECTION WITH THE
CONSTRUCTION, DESIGN, PERFORMANCE OR COMPLETION OF ANY WORK TO BE
PERFORMED BY SAID BRIT, ITS CONTRACTORS, SUBCONTRACTORS, OFFICERS,
AGENTS OR EMPLOYEES, OR IN CONSEQUENCE OF ANY FAILURE TO PROPERLY
SAFEGUARD THE WORK, OR ON ACCOUNT OF ANY ACT, INTENTIONAL OR
OTHERWISE, NEGLECT OR MISCONDUCT OF SAID BRIT, ITS CONTRACTORS, SUB-
CONTRACTORS, OFFICERS, AGENTS OR EMPLOYEES, WHETHER OR NOT SUCH
INJURIES, DEATH OR DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE
ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH, ITS OFFICERS, SERVANTS,
OR EMPLOYEES.
(c) BRIT WILL REQUIRE ITS CONTRACTORS TO INDEMNIFY, DEFEND AND HOLD
HARMLESS THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND
AGAINSTANYAND ALL CLAIMS, SUITS OR CAUSES OFACTIONOFANYNATURE
WHATSOEVER, WHETHER REAL OR ASSERTED, BROUGHT FOR OR ONACCOUNT
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Infrastructure Construction Agreement with City 2022 Bond Program
OFANYINJURIES OR DAMAGES TO PERSONS OR PROPERTY, INCLUDINGDEATH,
RESULTING FROM, OR INANY WAY CONNECTED WITH, THE CONSTRUCTION OF
THE PROJECTS CONTEMPLATED HEREIN, WHETHER OR NOT SUCH INJURIES,
DEATH OR DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED
NEGLIGENCE OF THE CITY OF FORT WORTH, ITS OFFICERS, SERVANTS, OR
EMPLOYEES. FURTHER, BRIT WILL REQUIRE ITS CONTRACTORS TO INDEMNIFY,
DEFEND, AND HOLD HARMLESS THE CITY FOR ANY LOSSES, DAMAGES, COSTS
OR EXPENSES SUFFERED BY THE CITY OR CAUSED AS A RESULT OF SAID
CONTRACTORS' FAILURE TO COMPLETE THE WORK AND CONSTRUCT THE
PROJECTS IN A GOOD AND WORKMANLIKE MANNER, FREE FROM DEFECTS, IN
CONFORMANCE WITH THE CFA ORDINANCE, AND IN ACCORDANCE WITH ALL
PLANS AND SPECIFICATIONS.
13.
Right to Enforce Contracts
Upon completion of all work associated with the construction of the Improvements, BRIT will
assign to the City a non-exclusive right to enforce the contracts entered into by BRIT with its contractors,
along with an assignment of all warranties given by the contractors, whether express or implied. Further,
BRIT agrees that all contracts with any contractor shall include provisions granting to the City the right to
enforce such contracts as an express intended third -party beneficiary of such contracts.
14.
Material Testing
BRIT is responsible for arranging and paying for material testing service fees, construction inspection
service fees, and water testing lab fees, if any.
The City maintains a list of pre -approved material testing laboratories. The BRIT must contract
with material testing laboratories on the City's list. Material testing laboratories will provide copies of all
test results directly to the City and the BRIT. If the Projects being constructed fail a test, the BRIT must
correct or replace the Projects until the Projects pass all retests. The BRIT must pay the material testing
laboratories directly for all material testing and retesting. The City will obtain proof from the material
testing laboratories that the material testing laboratories have been paid in full by the BRIT before the
City will accept the Projects.
15.
Notices
All notices required or permitted under this Agreement may be transmitted informally via
electronic means and if required to be formally delivered, given to a party by hand -delivery or by mail,
addressed to such party at the address stated below. Any notice so given shall be deemed to have been
received when deposited in the United States mail so addressed with postage prepaid:
CITY:
Park & Recreation Department
City of Fort Worth
4200 South Freeway, Suite 2200
Fort Worth, Texas 76115
City of Fort Worth, Texas
Infrastructure Construction Agreement with City 2022 Bond Program
BRIT:
Botanical Research Institute of Texas
Bob Byers, Executive Vice President
1700 University Drive
Fort Worth, Texas 76107
Page 6 of 13
With conies to:
City Attorney's Office
City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
and
City Manager's Office
City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
Or to such other address one party may hereafter designate by notice in writing addressed and
mailed or delivered to the other party hereto.
16.
Right to Audit
BRIT agrees that, until the expiration of three (3) years after acceptance by the City of the Projects
constructed pursuant to this Agreement, that the City shall have access to and the right to examine any
directly pertinent books, documents, papers and records of the BRIT involving transactions relating to this
Agreement. BRIT agrees that the City shall have access during normal working hours to all necessary
BRIT facilities and shall be provided adequate and appropriate workspace in order to conduct audits in
compliance with the provisions of this section. City shall give BRIT reasonable advance notice of intended
audits.
BRIT further agrees to include in all contracts with BRIT's contractors for the Projects a provision
to the effect that the contractor agrees that the City shall, until the expiration of three (3) years after final
payment under the contract, have access to and the right to examine any directly pertinent books,
documents, papers and records of such contractor, involving transactions to the contract, and further, that
City shall have access during normal working hours to all of the contractor's facilities, and shall be provided
adequate and appropriate work space in order to conduct audits in compliance with the provisions of this
section. City shall give BRIT's contractors reasonable advance notice of intended audits.
17.
Independent Contractor
It is expressly understood and agreed that BRIT and its employees, representative, 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, BRIT shall
have the exclusive right to control the details of its operations and activities and be solely responsible for
the acts and omissions of its employees, representatives, agents, servants, officers, contractors,
subcontractors, and volunteers. BRIT acknowledges that the doctrine of respondeat superior shall not
apply as between the City and its officers, representatives, agents, servants and employees, and BRIT and
its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. BRIT
City of Fort Worth, Texas Page 7 of 13
Infrastructure Construction Agreement with City 2022 Bond Program
further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise
between City and BRIT. It is further understood that the City shall in no way be considered a co -employer
or a joint employer of BRIT or any employees, representatives, agents, servants, officers, contractors,
subcontractors, and volunteers of BRIT. Neither BRIT, nor any officers, agents, servants, employees or
subcontractors of BRIT shall be entitled to any employment benefits from the City. BRIT 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.
The City, through its authorized representatives and employees, shall have the sole and exclusive
right to exercise jurisdiction and control over City employees.
18.
Applicable Law; Venue
This Agreement shall be construed under and in accordance with Texas law. 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.
19.
Non -Waiver
The failure of the City to insist upon the performance of any term or provision of this Agreement
or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent
of City's right to assert or rely on any such term or right on any fixture occasion.
20.
Governmental Powers and Immunities.
It is understood that by execution of this Agreement, the City does not waive or surrender
any of its governmental powers or immunities.
21.
Headings
The paragraph headings contained herein are for the convenience in reference and are not intended
to define or limit the scope of any provision of this Agreement.
22.
Severability
In the event that any clause or provision of this Agreement shall be held to be invalid by any
court of competent jurisdiction, the invalidity of such clause or provision shall not affect any of the
remaining provisions hereof.
23.
Review of Counsel
City and BRIT, and if they so choose, their attorneys, have had the opportunity to review and
comment on this document; therefore any rule of contract construction or interpretation that would
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Infrastructure Construction Agreement with City 2022 Bond Program
normally call for the document to be interpreted as against the drafting party shall not apply in
interpretation of this Agreement, and each section, portion, and provision of this Agreement shall be
construed solely on the basis of the language contained therein, regardless of who authored such
language.
24.
Prohibition on Boycotting Israel
BRIT acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City
is prohibited from entering into a contract with a company with 10 or more full-time employees that has a
value of $100,000 or more that is to be paid wholly or partly from public funds of the City 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 term "boycott Israel" has the
meaning ascribed to it by Section 808.001 of the Texas Government Code. The term "company" has the
meaning ascribed to it by Section 2271.001 of the Texas Government Code. To the extent that Chapter
2271 of the Government Code is applicable to this Agreement, by signing this Agreement, BRIT certifies
that BRIT's signature provides written verification to the City that BRIT: (1) does not boycott Israel; and
(2) will not boycott Israel during the term of this Agreement.
25.
Immigration and Nationality Act
BRIT shall verify the identity and employment eligibility of its employees who perform work under
this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request
by City, BRIT shall provide City with copies of all I-9 forms and supporting eligibility documentation for
each employee who performs work under this Agreement. BRIT shall adhere to all Federal and State laws
as well as establish appropriate procedures and controls so that no services will be performed by any BRIT
employee who is not legally eligible to perform such services. BRIT SHALL INDEMNIFY CITY AND
HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO
VIOLATIONS OF THIS PARAGRAPH BY BRIT, BRIT'S EMPLOYEES, SUBCONTRACTORS,
AGENTS, OR LICENSEES. City, upon written notice to BRIT, shall have the right to immediately
terminate this Agreement for violations of this provision by BRIT.
26.
Amendment
No amendment, modification, or alteration of the terms of this Agreement shall be binding unless
the same is in writing, dated subsequent to the date hereof, and duly executed by the City and BRIT.
27.
Assignment and Successors
BRIT shall not assign or subcontract all or any part of its rights, privileges, or duties under this
Agreement without the prior written consent of City. Any attempted assignment or subcontract without the
City's prior written approval shall be void and constitute a breach of this Agreement.
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Infrastructure Construction Agreement with City 2022 Bond Program
28.
No Third -Party Beneficiaries
The provisions and conditions of this Agreement are solely for the benefit of the City and BRIT,
and any lawful assign or successor of BRIT, and are not intended to create any rights, contractual or
otherwise, to any other person or entity.
29.
Compliance with Laws, Ordinances, Rules and Regulations
BRIT, its officers, agents, servants, employees, and contractors, shall abide by and comply with all
laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and
understood that, if City calls to the attention of BRIT any such violation on the part of BRIT or any of its
officers, agents, servants, employees, or subcontractors, then BRIT shall immediately desist from and
correct such violation.
30.
Signature Authority
The person signing this Agreement on behalf of BRIT warrants that he or she has the legal authority
to execute this Agreement on behalf of the BRIT, and that such binding authority has been granted by
proper order, resolution, ordinance or other authorization of the entity. The City is fully entitled to rely on
this warranty and representation in entering into this Agreement.
31.
Counterparts
This Agreement may be executed in multiple counterparts, each of which will be deemed an
original, but which together will constitute one instrument.
32.
Entire Agreement
This written instrument, together with any attachments, exhibits, and appendices, constitutes the
entire understanding between the City and BRIT concerning the work to be performed hereunder, and any
prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be
void.
33.
Fiscal Funding Limitation
In the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable by
any means whatsoever in any fiscal period for payments due under this Agreement, then the City will
immediately notify BRIT of such occurrence and this Agreement shall be terminated on the last day of the
fiscal period for which appropriations were received without penalty or expense to the City of any kind
whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have been
appropriated.
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Infrastructure Construction Agreement with City 2022 Bond Program
IN WITNESS WHEREOF, the City and BRIT have each executed this Agreement by their duly
authorized signatories to be effective on the date executed by the City's Assistant City Manager.
CITY OF FORT WORTH
cw�
Jesica McEachern
Assistant City Manager
Date: Nov 6, 2023
Recommended by:
Richard Zavala
Director, Park & Recreation Department
Approved as to Form & Legality:
A
Jeremy Anato-Mensah
Assistant City Attorney I
M&C No. 23-0837
Date: 09/26/2023
Form 1295: N/A
ATTEST:
Jannette P. Goodall
City Secretary
BRIT
Botanical Research Institute of Texas
Patrick New�(Sep%2 CDT)
Patrick Newman
Chief Executive Officer and President
Date: Sep 29, 2023
not
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.
Z-,-� 'Ns��
Name: Jing Yang
Title: Landscape Architect Manager
City of Fort Worth, Texas Page 12 of 13
Infrastructure Construction Agreement with City 2022 Bond Program
The following attachments are incorporated into this Agreement. To the extent a
conflict exists between the main body of this Agreement and the following attachments, the
language in the main body of this Agreement shall be controlling.
Included Attachment
❑ Attachment A - List of Projects
❑ Attachment B - Mayor and Council Communication
❑ Attachment C - Location Map
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Infrastructure Construction Agreement with City 2022 Bond Program
Attachment A
List of Projects
CPN
Project Names
2022 Bond
104986
Master Plan Site Preparation
$ 300,000.00
104987
Master Planning
$ 150,000.00
104988
Japanese Garden
$ 979,000.00
104989
Infrastructure
$ 1,024,000.00
104991
Pedestrian / Circulation Improvements
$1,091,000.00
104992
Greenhouse Improvements
$ 2,288,500.00
102820
South Vista Event Venue
$ 506,000.00
TOTALS
$6,338,500.00
City of Fort Worth, Texas Page 1 of 1
Infrastructure Construction Agreement with City Participation
Rev. 08/09/21
Attachment B Official site of the City of Fort Worth, Texas
CITY COUNCIL AGENDA FORTWORm
Create New From This M&C
DATE: 9/26/2023 REFERENCE **M&C 23- LOG NAME: 80BRIT INFRASTRUCTURE
NO.: 0837 CONSTRUCTION AGREEMENT
CODE: G TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT. (CD 7) Authorize Execution of an Infrastructure Construction Agreement with the
Botanical Research Institute of Texas, Inc. in an Amount Not to Exceed $6,338,500.00 for
the Construction of Certain Capital Improvement Projects at the Fort Worth Botanic
Garden (2022 Bond Program)
RECOMMENDATION:
It is recommended that the City Council authorize execution of an Infrastructure Construction
Agreement with the Botanical Research Institute of Texas, Inc. in an amount not to exceed
$6,338,500.00 for the construction of certain capital improvement projects at the Fort Worth Botanic
Garden.
DISCUSSION:
The purpose of this Mayor and Council Communication (M&C) is to authorize the City Manager to
execute an Infrastructure Construction Agreement (ICA) with the Botanical Research Institute of
Texas, Inc. (BRIT) to fulfill the City's initial obligation to construct, maintain, repair or relocate certain
public infrastructure within the Fort Worth Botanic Garden (Botanic Garden) pursuant to the
Management Services Agreement (MSA) with BRIT (City Secretary Contract No. 54201) (M&C 20-
0347, May 19. 2020), collectively defined as "Capital Improvements".
The MSA with BRIT each contains a list of identified capital improvements and deferred facility
maintenance projects or other capital expenditures.
Due to the BRIT's management presence on -site, it was determined that the most efficient way to
accomplish the City's obligation is to provide funding to BRIT through an ICA so that BRIT can obtain
its own contractors and oversee the work.
On May 7, 2022, the City of Fort Worth residents approved the 2022 Bond Program, of which
$7,000,000.00 is designated to fund several capital improvements at the Botanic Garden that were not
included in the 2020 Tax Notes project list.
The 2022 Bond program included $7,000,000.00 for Fort Worth Botanic Garden Infrastructure
Improvements, which consist of $6,338,500.00 in work to be performed by BRIT under an ICA with
Park and Recreation Department (PARD) (estimated project draw -down schedule and amounts
attached) and $661,500.00 in improvements to be done by the Property Management Department
(PMD) (see tables below). Of the voter -authorized $7,000,000.00, only $3,000,000.00 has been
appropriated to date for both PARD and Property Management projects (as part of the Commercial
Paper program; see M&C 23-0611).
Approval of this M&C provides the contracting authorization for the full $6,338,500.00 for the PARD
ICA, but the agreement will include language making clear that the City's legal obligation is limited to
the funds that have actually been appropriated. In the unlikely event that the remaining funds were
not appropriated, the City would be able to terminate the agreement without any penalty.
The remaining $4,000,000.00 for the Botanic Garden bond projects will be included in the PARD
recommended 2022 Bond appropriations in Spring of 2024, 2025, and 2026, in conjunction with the
FWLab and Financial Management Services Department. As additional funds are appropriated for the
BRIT projects, they would be obligated and available under the ICA.
With this ICA, PARD will schedule reimbursements with the BRIT for an amount up to $6,338,500.00
from the 2022 Bond Funds, which includes funding for the design and construction of seven (7) capital
improvements required to support the operation and maintenance of the Botanic Garden.
Botanic Garden Capital Improvements Project List for Park and Recreation
Department and Property Management Department:
The Park and Recreation Department project list is as follows:
CPN Project
104986 Master Plan Site Preparation
104987 Master Planning
102820 South Vista Event Venue
104988 Japanese Garden
104989 Infrastructure
104991 Pedestrian/Circulation Improvements
104992 Greenhouse Improvements
TOTALS
2022 Bond
$ 300,000.00
$ 150,000.00
$ 506,000.00
$ 979,000.00
$ 1,024,000.00
$ 1,091,000.00
$ 2,288,500.00
$ 6,338,500.00
The Property Management Department project list is as follows:
CPN Project 2022 Bond
102823 Moncrief Garden Center
102826 Old Garden Road
$ 55,500.00
$ 86,000.00
102829 Rolling Hills Greenhouse Phase 1 $ 520,000.00
TOTALS $ 661,500.00
These projects are included in the 2022 Bond Program. The City's Commercial Paper (ECP) (M&C
22-0607; Ordinance 25765-08-2022) provides liquidity to support the appropriation. Available
resources will be used to actually make any interim progress payments until debt is issued. Once
debt associated with a project is sold, debt proceeds will reimburse the interim financing source in
accordance with the statement expressing official Intent to Reimburse that was adopted as part of the
ordinance canvassing the bond election (Ordinance 25515-05-2022).
These projects will have no impact on the Park & Recreation Department's annual operating budget
when completed.
The Botanic Garden is located in COUNCIL DISTRICT 7 and is classified as a Special -Use Facility
that serves on a City-wide and regional basis.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that partial funds are available in the current capital budget, as
previously appropriated, in the 2022 Bond Program Fund for various projects and funds will be
available in the capital budget, as appropriated annually in the 2022 Bond Program Fund to support
the approval of the above recommendation and execution of the agreement. Prior to any expenditure
being incurred, the Park and Recreation Department has the responsibility to validate the availability of
funds.
TO
Fund Department Account Project
ID ID
Program Activity Budget Reference #
Year (Chartfield 2)
Amount
FROM
Fund Department Account Project Program Activity Budget Reference # Amount
ID ID Year (Chartfield 2)
Submitted for City Manaqer's Office by_
Jesica L. McEachern (5804)
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
Dave Lewis (5717)
Joel McElhany (5745)
2022 Bond Proaram Proiected Draw Schedule (rv. 7) 07.19.2023.xlsx (CFW Internal)
80BRIT INFRASTRUCTURE CONSTAGREEMENT.docx (CFW Internal)
80BRIT Infrastructure Construction Aareement Meetina (Email) approval.msg (CFW Internal)
80BRIT ICA v2 (1).xlsx (CFW Internal)
FTW BG Location Map.pdf (Public)
Attachment C
Fort Worth Botanic Garden
Will Roger �y L t 'C'h*,�.
Memorial - x Legend
Center Complex
A. South Vista Event Venue
(3. on Attachment A. $506,000)
B. Pedestrian & Circulation Improvements
(6. on Attachment A. $1,091,000)
l C. Master Plan Site Preparation
(1. on Attachment A. $300,000)
DEXTER AVE � � D. Japanese Garden
Trinity (4. on Attachment A. $979,000)
N E. Greenhouse Improvements
BRY(L AVE0
_ '2 _ (7. on Attachment A. $2,288,500)
cil j)R ti� M1
F— �I I.z C} i Not Mapped:
Z
Master Planning ($150,000)
Q W� tf
Infrastructure ($1,024,000)
UNDEN AVE
Botanic
W
Gard Ih+ L'[ � R RD L+ 4
V
PERSHrNG AVE GPJRDEN LN
BIRCHMAN AVE
.r.. FORT WORTH.
This product is for informational purposes and may not have been prepared for or be
0.3 0 0.14 0.3 Miles suitable for legal, engineering, or surveying purposes. The City of Fort Worth assumes no e
responsibility for the accuracy of said data.
1: 9,028 }
NCTCOG ORTHOPHOTOGRAPHY s