HomeMy WebLinkAboutContract 41888 CITY SECRETARY
CONTRACT NO.
SHARED USE AGREEMENT
This Shared Use Agreement ("Agreement") is entered into by and between The City of Fort Worth, a
Texas home rule municipal corporation("City"), acting by and through Susan Alanis, its duly authorized
Assistant City Manager and Botanical Research Institute of Texas, Inc., a Texas non-profit corporation
("BRIT"), acting by and through S. H. Sohmer, its duly authorized•President. City and BRIT may be
collectively referred to as "the parties"and individually referred to as a"party."
WHEREAS, the City is the owner of certain property located at 1800 University Drive, Fort Worth,
Texas ("Leased Property"), which property is leased to BRIT under a Lease Agreement (City Secretary
Contract No. 31471) ("Lease"); and
WHEREAS, BRIT is the owner of the improvements located on the Leased Property (the "BRIT
Facilities");
WHEREAS, City is the owner of certain property located adjacent to the Leased Property, as more fully
described on Exhibit "A", attached hereto and made apart hereof for all purposes("Shared Property");
WHEREAS, City and BRIT have both contributed to the cost of the design and construction of a parking
lot that BRIT has constructed on the Shared Property;
WHEREAS, BRIT has constructed other improvements on the Shared Property at BRIT's expense,
including a Retention Pond, a Research Garden and Access Driveway(as hereinafter defined); and
WHEREAS, City and BRIT enter into this Agreement for the purpose of using the Shared Property, and
to set forth the parties' rights, duties and responsibilities for the Shared Property and the improvements
thereon.
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 BRIT
agree as follows:
AGREEMENT
1• No Rent. Understanding that all consideration for the rights and licenses granted herein has been
exchanged and acknowledged in full between the parties, there will be no additional rents, fees or charges
assessed or collected in connection with the terms of this Agreement, other than the remedy of
reimbursement set forth in Sections 7 and 8 hereunder,when applicable.
2. Parkin2 Lot. City does hereby grant unto BRIT the non-exclusive right to access and use the
parking lot located on the Shared Property, including parking spaces, access drives, lights, irrigation and
any associated improvements and facilities (collectively, the "Parking Lot"), as more fully described on
Exhibit "A", attached hereto and made apart here
BRIT Facilities, including, without limitation a ectrac with operations of the
P �o�$e contractors, agents, licensees,
invitees or volunteers of BRIT, or any other p s "H''��
(collectively, the"BRIT Visitors"). Parking will QIaNeMPOW ces designated for parking and
no such space will be designated for the exclusiv usf q�f y,�
���, i�AUt he written consent of BRIT in
atsoev r sha 1
each instance. Under no circumstances wh ev r e de med to have any rights to any
receipts arising solely from the use by any person of the Parking Lot; provided that the foregoing does not
restrict BRIT from selling tickets or charging for adinittance to the BRIT Facilities under any
circumstances. City may, in City's sole and absolute discretion, grant to others the non-exclusive right to
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use the Parking Lot, other than the BRIT Spaces specifically designated for use by BRIT, and any
consideration the City might receive for such licenses shall be the sole property of City; provided that no
such grant may restrict the use and access of the Parking Lot by BRIT or the BRIT Visitors, and at no
time will BRIT or the BRIT Visitors be required to pay the City (or any other party) any fees for use of
the Parking Lot. Notwithstanding the foregoing, BRIT shall have exclusive use of twelve parking spaces,
as depicted on Exhibit "A"("BRIT Spaces"). Any other use by BRIT shall be by written agreement of the
parties. BRIT shall be solely responsible for signage designating the BRIT Spaces as reserved, subject to
the prior written approval of City as to the design and location of such signage.
3. Retention Pond. City does hereby grant unto BRIT the non-exclusive right to access and use the
area of the Shared Property labeled on Exhibit "A" as the "retention pond" for maintenance, use, re-
construction and repair of the retention pond located thereon and its associated equipment and
improvements ("Retention Pond"), and for no other purpose without the written consent of City. The
Retention Pond and its associated equipment and improvements are depicted on Exhibit "A" hereto and
include the pumps providing irrigation water to the Parking Lot, but no piping, valves, sprinklers or other
irrigation equipment.
4. Research Garden.
(a) City does hereby grant unto BRIT the non-exclusive right to access and use the area of
the Shared Property labeled on Exhibit "A" as the"research garden"for maintenance, use, re-construction
and repair of the research garden and associated equipment and improvements ("Research Garden"), and
for no other purpose without the written consent of City.
(b) BRIT shall not install, erect, assemble,manufacture, fabricate or construct any permanent
structure on the Research Garden;provided,however,that plant-supporting structures, fencing, temporary
storage facilities, signage, irrigation and rainwater caches are allowed on the Research Garden, subject to
the prior written approval of City.
(c) Upon the termination of this Agreement or within a reasonable time thereafter, not to
exceed ten(10)business days,BRIT shall remove personal property,plant-supporting structures, fencing,
and/or temporary storage facilities owned or placed by BRIT in, under, or on the Research Garden. Any
such items not removed in accordance with this Section 4 will become City's property.
5. Access Drive. City does hereby grant unto BRIT the exclusive right to access and use the area of
the Shared Property labeled on Exhibit "A" as the "access drive" for maintenance, use, re-construction
and repair of an access drive to access the loading dock area of the BRIT Facilities ("Access Drive"), and
for no other purpose without the written consent of City.
6. Condition of Shared Property.
(a) BRIT hereby acknowledges that (i) it accepts the Retention Pond, Research Garden and
Access Drive in their present condition, and (ii) City has made no representations to it regarding the
safeness thereof or suitability for any particular purposes.
(b) Upon termination of this Agreement, BRIT shall surrender the Retention Pond, Research
Garden and Access Drive to 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 City.
(c) No promises of City to alter, remodel, repair, or improve the Shared Property and no
representations respecting the condition of the Shared Property have been made by City to BRIT, other
than as expressly contained in this Agreement.
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(d) BRIT agrees not to make any material alterations, additions, or improvements to the
Shared Property without the prior written consent of City, except as otherwise set forth in this Agreement.
(e) Under no circumstances will BRIT use or cause to be used on the Shared Property any
illegal, hazardous or toxic substances or materials, or store or dispose of any such substances or materials
on the Shared Property, including but not limited to chemically-treated wood, cacti, trees, castor beans,
any poisonous plants, or diseased or pest-ridden plants.
7. Maintenance and Repair of Retention Pond Research Garden and Access Drive
(a) BRIT shall, at BRIT's sole expense, keep the Retention Pond, Research Garden, and
Access Drive in good condition, maintenance and repair, provided, however, that the English Oak Trees
adjacent to Harley Avenue and within the Additional Shared Areas shall be a shared maintenance
responsibility between the parties. In the event that the Retention Pond, Research Garden, and Access
Drive are not reasonably maintained or repaired, City shall notify BRIT in writing reasonably describing
any deficiency, and BRIT shall have sixty(60) calendar days from the date of the notice to cure the non-
compliance. If BRIT does not cure the non-compliance within sixty (60) calendar days from the date of
the notice, or an additional reasonable period if BRIT is proceeding with reasonable diligence to cure the
default, City may terminate this Agreement pursuant to Section 13 below. BRIT shall maintain short path
lights and landscape lighting in the Research Garden. City shall maintain all tall pole lighting.
(b) BRIT's responsibilities under this Section 7 expressly extend to the irrigation pumps that
will be used for irrigation of the landscaping on the Parking Lot, which are located at the Retention Pond
("Irrigation Pumps"). Notwithstanding anything herein to the contrary, in the event the Irrigation Pumps
should become inoperable for any reason whatsoever, or are not functioning sufficiently so that the life of
the flora serviced by the Irrigations Pumps are endangered, BRIT shall begin a cure as soon as practicable
but in no event later than ten(10) days of the date on which BRIT received notice or otherwise discovered
that the Irrigation Pumps had become inoperable and complete such cure with reasonable diligence and
within a reasonable period of time. If the cure is not begun or thereafter completed as required above,
City may elect to repair the Irrigation Pumps at BRIT's expense. BRIT will reimburse the City for the
actual cost of such repairs within 30 days following receipt of an invoice for such costs.
8. Maintenance and Repair of Parking Lot City shall, at City's sole expense, keep the Parking
Lot in good condition, maintenance and repair, including, without limitation, landscaping, paving,
utilities, tall pole lighting and irrigation systems, provided that the City's obligations hereunder do not
include the pumps located at the Retention Pond, which are the sole responsibility of BRIT. City shall
notify BRIT in advance of any repair to the Parking Lot that might interfere with BRIT's use of the
Parking Lot or access to the BRIT Facilities. In the event that the Parking Lot is not reasonably
maintained or repaired, BRIT shall notify City in writing, and City shall have sixty (60) calendar days
from the date of the notice to begin to cure the non-compliance. If City does not begin to cure the non-
compliance within sixty (60) calendar days from the date of the notice, BRIT may elect to perform any
necessary repairs and the City will reimburse BRIT for the actual cost of such repairs within 30 days
following receipt of an invoice for such costs, subject to (a) available funding and (b) City Council
approval, if required.
9. Utilities. BRIT shall pay or cause to be paid all charges for gas, water, sewer, electricity, light,
heat, power, telephone, or other utility service furnished to, or used in connection with, the maintenance,
use or repair the Retention Pond, the Research Garden or the Access Drive during the term of this
Agreement, including any connection fees.
10. Term. This Agreement is effective and shall terminate
upon the termination of the Lease, whether upon the expiration of the term on September 30, 2108, or
upon any earlier termination of the Lease according to its terms. Upon the conclusion of the term, this
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Agreement will automatically renew year-to-year for one year periods until terminated by BRIT or City,
each at its own discretion,with sixty(60) days notice to the other party.
11. Indemnity.
(a) BRIT COVENANTS AND AGREES, AT ITS EXPENSE, TO PAY, AND TO
INDEMNIFY AND SAVE CITY, ITS MEMBERS, DIRECTORS, OFFICERS, AGENTS, AND
EMPLOYEES HARMLESS AGAINST AND FROM, ANY AND ALL CLAIMS BY OR ON
BEHALF OF ANY PERSON, FIRM, CORPORATION, OR GOVERNMENTAL AUTHORITY
TO THE EXTENT.ARISING FROM THE OCCUPATION, USE, OR POSSESSION OF THE
SHARED PROPERTY BY BRIT, OR ITS OFFICERS, AGENTS, EMPLOYEES,
SUBCONTRACTORS, INVITEES, LICENSEES, OR VOLUNTEERS, INCLUDING ANY
LIABILITY FOR VIOLATION OF CONDITIONS, RESTRICTIONS, LAWS, ORDINANCES,
OR REGULATIONS AFFECTING THE SHARED PROPERTY OR THE OWNERSHIP OR
OCCUPANCY OR USE THEREOF (TO THE EXTENT SUCH VIOLATIONS DID NOT EXIST
PRIOR TO THE COMMENCEMENT OF BRIT'S USE OF THE SHARED PROPERTY OR
SUCH CLAIM OR VIOLATION DID NOT ARISE FROM THE USE OF THE SHARED
PROPERTY BY ANY PARTY OTHER THAN BRIT).
(b) BRIT SHALL RELEASE, INDEMNIFY, DEFEND, REIMBURSE, AND HOLD
HARMLESS THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS
AGAINST ANY AND ALL ENVIRONMENTAL DAMAGES AND THE VIOLATION OF ANY
AND ALL ENVIRONMENTAL REQUIREMENTS RESULTING FROM BRIT'S USE OF THE
SHARED PROPERTY AND WHEN SAID ENVIRONMENTAL DAMAGES OR THE
VIOLATION OF SAID ENVIRONMENTAL REQUIREMENTS WERE THE RESULT OF ANY
ACT OR OMISSION OF BRIT, ITS OFFICERS, AGENTS, EMPLOYEES,
SUBCONTRACTORS, LICENSEES, OR INVITEES OR THE JOINT ACT OR OMISSION OF
BRIT, ITS OFFICERS, AGENTS,EMPLOYEES, OR SUBLESEES. BRIT IS EXPRESSLY NOT
LIABLE FOR AND DOES NOT INDEMNIFY FOR ANY ENVIRONMENTAL DAMAGES OR
THE VIOLATION OF SAID ENVIRONMENTAL REQUIREMENTS WHICH HAVE
OCCURRED PRIOR TO THE DATE OF BRIT'S INITIAL OCCUPANCY OF THE SHARED
PROPERTY.
(c) The provisions of this Section 11 shall survive the termination or expiration of this
Agreement.
12. Insurance. BRIT shall procure and maintain for the duration of the Agreement insurance against
claims for injuries to persons or damages to property which may arise from or in connection with the
BRIT's operation and use of the Shared Property. The cost of such insurance shall be borne by BRIT,
unless otherwise specified. City reserves the right to adjust the limits to amounts as may be reasonable in
City's sole discretion.
Minimum Limits oflnsurance
BRIT shall maintain commercial general liability at limits no less than $500,000.00 combined
single limit per occurrence for bodily injury, personal, and property damage and a minimum
$1,000,000.00 aggregate. (The general aggregate limit shall apply separately to this project/location or the
general aggregate shall be twice the required occurrence limit.)
Each insurance policy required by this agreement shall be endorsed to state that coverage shall not be
suspended, voided, canceled, reduced in coverage or in limits requested, except after 30 days' prior
written notice by certified mail return receipt requested, has been given to the City.
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Insurance is to be placed with insurers approved or licensed to do business in the State of Texas with a
Best's rating of no less than A-; VII.
BRIT shall furnish City with certificates of insurance effecting coverage required by this clause. The
certificates for each insurance policy are to be signed by a person authorized by that insurer to bind
coverage on its behalf. In addition, City, its officers, and employees are to be endorsed as an"Additional
Insured". City reserves the right to obtain complete, certified copies of all required insurance policies,
upon written request.
13. Termination.
(a) If BRIT defaults in performing any material covenant or term of this Agreement and does
not correct the default within sixty (60) days after the date of the written notice from City to BRIT or an
additional reasonable period if BRIT is proceeding with diligence to cure the default, City, in its sole
discretion and in addition to any other remedy it may have hereunder, may declare this Agreement, and
all rights and interest created by it, terminated. If City elects to terminate, this Agreement will cease as if
the day of City's election were the day originally fixed in the Agreement for its expiration.
(b) If City defaults in performing any material covenant or term of this Agreement and does
not correct the default within sixty (60) days after the date of the written notice from BRIT to City or an
additional reasonable period if City is proceeding with diligence to cure the default, BRIT, in its sole
discretion and in addition to any other remedy it may have hereunder, may declare this Agreement, and
all rights and interest created by it, terminated. If BRIT elects to terminate, this Agreement will cease as
if the day of BRIT's election were the day originally fixed in the Agreement for its expiration.
(c) This Agreement shall terminate in the event that the governing body of City shall fail to
appropriate sufficient funds to satisfy any obligation of City hereunder, unless such obligation is assumed
by BRIT in its sole discretion. Termination shall be effective as of the last day of the fiscal period for
which sufficient funds were appropriated or upon expenditure of all appropriated funds, whichever comes
first. Termination pursuant to this non-appropriation clause shall be without further penalty or expense to
either party.
. (d) In the event that the Lease terminates for any reason whatsoever, this Agreement shall
also terminate effective as of the date of the termination of the Lease.
14. Miscellaneous.
(a) No waiver by the parties to this Agreement of any default or breach of any term,
condition, or covenant of this Agreement will be deemed to be a waiver of any other breach of the same
or other term, condition, or covenant contained in this Agreement. No provision of this Agreement may
under any circumstances be deemed to have been waived by either party to this Agreement unless such
waiver is in writing and signed by the party charged with such waiver.
(b) In the event that any clause or provision of this Agreement shall be held to be invalid by
any court or competent jurisdiction, the invalidity of such clause or provision shall not affect any of the
remaining provisions hereof.
(c) This Agreement expresses the entire understanding and all agreements of the parties
hereto with each other and neither party hereto has made or shall be bound by any agreement or any
representation to the other party which is not expressly set forth in this Agreement.
(d) All notices, consents, or other communications required or permitted hereunder shall be
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deemed sufficient if given in writing and delivered personally or sent by public or private express mail or
by U.S. Certified Mail, Return Receipt Requested, postage prepaid, to the other party at the following
addresses:
If to BRIT:
Copy to: Director
Botanical Research Institute of Texas, Inc.
1700 University Drive
Fort Worth,Texas 76107
If to City: City Manager
City of Fort Worth
1000 Throckmorton
Fort Worth,Texas 76102
Copy to: City Attorney's Office
City of Fort Worth
1000 Throckmorton
Fort Worth,Texas 76102
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.
[SIGNATURES ON FOLLOWING PAGE]
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1V WITNESS WHEREOF, this Agreement is executed by the parties to be effective on the V"hay of
CITY
City of Fort Worth, a Texas
home rule municipal corporation
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us Alams ,ry�o o° °ooO�l�j
Assistant City Manager 0 k0 o�d
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(j� o o * q'APPROVED AS TO FORM
°poo0°°° Crp� qNh LEGALFT
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City Secretary Assistant City Attorney
BRIT
Botanical Research Institute of
Texas, Inc.,a Texas non-profit
corporation
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BY f ) 0
S.H. Sohmer,President &Director P,4tt a
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
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EXHIBIT "A"
SITE PLAN
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION:-Approved on 12/14/2010 Ord: No, 19496-12-2010& 19497-12
reuse of storm water to sustain the garden and reduce water usage for irrigation. The City intends for this
facility to serve as an demonstration project for best practices in the collection, handling, and reuse of
storm water runoff. Staff is recommending the City participate in the construction of the North Lot in the
amount of$1,473,551.53 which is 49 percent of the overall $2,963,908.00 construction cost. These costs
are calculated based on the additional parking BRIT is providing over what is required to serve the new
BRIT facility. Also, staff is recommending a waiver of associated construction inspection and material
testing fees typically associated with the execution of community facility agreements in the amount of
$34,483.00. BRIT has agreed to provide for all the landscaping on the facility. BRIT is providing
construction plans and specifications for the South Lot at the Garden Center that visually complement the
North Lot project. The proposed CFA contemplates the City reimbursing BRIT $60,000.00 from the Park
Gas Lease Projects Fund for this effort. The South Lot project will be advertised for construction in the
spring of 2011.
Given the proposed educational components concerning water recycling and reuse and on site storm
water quality improvements, staff recommends that the following funding sources be used:
Park Gas Lease Projects Fund $609,551.53
Water and Sewer Utility Fund $462,000.00
Storm Water Utility Fund $462,000.00
The majority of the maintenance of the North Lot will be provided by the City with the exception of the
Research Garden and the retention pond. The specific maintenance responsibilities will be delineated as
part of the share use agreement for the North Lot.
This project is located in COUNCIL DISTRICT 7 and serves the entire City.
FISCAL INFORMATION /CERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above recommendations
and adoption of the attached appropriation ordinances and supplemental appropriation ordinance, funds
will be available in the current capital budget, as appropriated of the Park Gas Lease Project Fund and the
current operating budgets of the Water and Sewer Fund and the Stormwater Utility Fund. Upon approval,
the unaudited, unreserved, undesignated fund balance in the Storm Water Utility Fund will exceed the
minimum reserve in the Financial Management Policy Statements.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
5&6) C282 472045 807370158480 1462.000.00 5) PE45 538070 0609020
$462.000.00
4&6) C282 472069 807370158480 $462.000.00 3) PE69 538070 0209201
$462.000.00
6) C282 446200 801929990300 $609.551.53
6) C282 541200 807370158480 $924.000.00
6) C282 541200 801929990300 $609.551.53
4) PE69 538070 0209201 $462.000.00
CERTIFICATIONS:
Submitted for City Manager's Office by. Fernando Costa (6122)
Logname: 06BRIT CFA Paqe 2 of 3
Originating Department Head: Randle Harwood (6101)
Additional Information Contact: Bryan Beck (7909)
ATTACHMENTS
1. 06BRIT CFA Rec3.doc (Public)
2. 06BRIT CFA Rec6.doc (Public)
3. Accounting Records for C282 M&C 06BRIT pdf (CFW Internal)
4. BRIT White Pape rev 2r.pdf (Public)
5. fundinaverifcation.pdf (CFW Internal)
6. FWBG Parking Schemes.pdf (Public)
7. PE45 538070 0609020 A.doc (CFW Internal)
Logname: 06BRIT CFA Page 3 of 3