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AMENDMENT TO CITY SECRETARY CONTRACT
NUMBER 19597
AGREEMENT BETWEEN THE
CITY OF FORT WORTH
AND
MID-WESTERN DEVELOPMENT & REALTY CO.
THE STATE OF TEXAS §
COUNTY OF TARRANT §
This amendment (this "Amendment") to City Secretary Contract No. 19597 (the
"Agreement") is made and entered into by and between THE CITY OF FORT WORTH, a
home-rule municipal corporation situated in Tarrant, Denton and Wise Counties, Texas, acting
herein by and through its duly authorized City Manager, (hereinafter referred to as the "City"),
and MID-WESTERN DEVELOPMENT & REALTY, LTD., successor by assignment and
conversion to Mid-Western Development& Realty Co. (hereinafter,referred to as "MW"), acting
herein by and through its duly authorized general partner, and is dated to be effective for all
purposes as of March 4, 2005 (the "Effective Date").
WITNESSETH:
WHEREAS, on March 1, 1993, the City and MW entered into an agreement known as
City Secretary Contract No. 19597, on file in the Office of the City Secretary of Fort Worth,
under the terms of which MW leased from the City a parking lot on the west side of the Fort
Worth Botanic Garden('Botanic Parking Lot");
WHEREAS, the City has identified funding for Phase One of the Botanic Garden's
Master Plan which includes the construction and relocation of greenhouses on a portion of the
Botanic Parking Lot currently leased to MW;
WHEREAS, the City and MW have agreed to amend City Secretary Contract No. 19597
to extend the term of the Agreement and to reduce the number of parking spaces used by MW on
the Botanic Parking Lot;
WHEREAS, in order to accommodate the parking needs of MW, the City has agreed to
sublease (and sub-sublease to MW) to the land currently owned by Event Facilities Fort Worth,
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Inc and leased to the Southwestern Exposition and Livestock Show and located north of the
Rowan Building for use as a parking lot by MW and its tenant (the "North Lot"), pursuant to the
terms and provisions of that certain Sub-Sublease Agreement Between The City of Fort Worth
and Mid-Western Development & Realty, Ltd. (the "North Lot Sub-Sublease") of even date with
this Amendment;
THEREFORE, the City and MW, for good and valuable consideration of the mutual
covenants and agreements contained herein, do mutually covenant and agree that said City
Secretary Contract No. 19597 is hereby amended as follows:
1.
City Secretary Contract No. 19597, is hereby amended to amend the defined term
"Parking Lot," as defined in the first recital paragraph of City Secretary Contract No. 19597, to
be restated as the "Botanic Parking Lot." The defined term "Parking Lot" shall be replaced in
each instance it appears in the Agreement with the term"Botanic Parking Lot."
2.
City Secretary Contract No. 19597, is hereby amended to amend Section 1 to reduce the
number of leased spaces for the construction of Phase One of the Botanic Garden Greenhouse
Project Plans on the Botanic Parking Lot, with said Section 1 being deleted and replaced in its
entirety with the following new Section 1:
"City leases to MW the Botanic Parking Lot that is more particularly
described in Exhibit "A" attached to this Agreement and incorporated herein by
reference. Subject to the following provisions of this Section 1, City shall have
the right to deliver written notice to MW no sooner than December 31, 2004,
providing that the term "Botanic Parking Lot" as used in this Agreement shall be
modified to mean a portion of the property described on Exhibit "A," which
modified portion of such property will include approximately 279 parking spaces
and is more particularly described in Exhibit "B" attached to this Agreement and
incorporated herein by reference. Such modification of the term "Botanic Parking
Lot" shall be effective (i) on the date City commences on-the-ground construction
of Phase One of the Botanic Garden's Master Plan on the Property described on
the attached Exhibit "A," and (ii) provided that on such date (a) the North Sub-
2 'CITY B'71HRU Y
Sublease has been executed and delivered by the City and MW, (b) the North
Sub-Sublease is fully effective, (c) all obligations of the City that are due and
owing as of the commencement date of the North Sub-Sublease have been fully
satisfied, and (d) all obligations of the City to reconfigure the parking spaces and
make related improvements as shown on Exhibit `B" attached to this Agreement
have been fully satisfied (the "Amendment Date"). City's notice to MW shall
state the City's best, good faith estimate of the Amendment Date."
Exhibit `B" attached to and made a part of this Amendment is hereby incorporated into
and made a part of City Secretary Contract No. 19597 as Exhibit `B" thereto as if fully set forth
therein.
3.
City Secretary Contract No. 19597, is hereby amended by deleting Section 2 and
replacing it in its entirety with the following new Section 2:
"A. MW will use the Botanic Parking Lot solely for a parking area, which
parking area shall be used only in conjunction with the building located at 2501
Montgomery Street, Fort Worth, Texas, commonly known as the Rowan
Building; provided, however, the Botanic Parking Lot shall be open on weekends
and holidays for the use of visitors to the Fort Worth Botanic Garden. In this
connection, it is agreed that all gates to the Botanic Parking Lot except the gate
leading directly to the Rowan Building shall remain open during weekends and
holidays for the same hours that the Botanic Garden is open to the public.
`B. City agrees, effective no later than the Amendment Date and as a
condition precedent to the modification of the Botanic Parking Lot as
contemplated in Section 1 of this Agreement, to (i) sub-sublease the North Lot to
MW pursuant to the North Lot Sub-Sublease, (ii) complete all obligations of the
City required under the terms of the North Lot Sub-Sublease to be completed as
of the commencement date of the North Lot Sub-Sublease, and (iii) reconfigure
and make related improvements to the Botanic Parking Lot as shown on Exhibit
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"B" attached to this Agreement (including, without limitation, restriping the
parking spaces, installing and relocating fencing and gates, and expanding
curbcuts for ingress and egress). City agrees to effectively communicate and
coordinate with MW and its tenant concerning all work to be done by the City
under this Section 5(B) so as to minimize the disruption to their parking activities
and to enable them to secure such alternative parking arrangements as may be
necessary during the prosecution of such work."
4.
City Secretary Contract No. 19597, is hereby amended to amend Section 3 to extend the
second renewal term until February 28, 2013, with Section 3 being deleted and replaced in its
entirety with the following new Section 3:
"The primary term of the Agreement shall be for five years beginning on
March 1, 1993, and ending on February 28, 1998. MW shall have the option to
renew the Agreement for three (3) additional five-year terms; the first five-year
renewal term shall begin on March 1, 1998, and shall end on February 28, 2003;
the second five-year renewal term shall begin on March 1, 2003, and shall end on
February 29, 2008; and the third five-year renewal term shall begin on March 1,
2008, and shall end on February 28, 2013. The options to extend the Agreement
by MW shall be exercised by written notice that is received by City at least 60
days before termination of the then current term of the Agreement.
Notwithstanding the above, MW has the right to cancel this Agreement effective
March 1st of any year during any term of this Agreement, provided MW gives
written notice of its intention to cancel before January 1 st of that year.
"City, at its sole discretion, may offer to renew this Agreement at the end
of the third renewal term. If the City elects not to so offer to renew the
Agreement, the City shall give MW written notice of its intent not to so offer to
renew at the end of the third renewal term no later than March 1, 2011."
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5.
City Secretary Contract No. 19597, is hereby amended to amend Section 4 to reduce the
annual lease payment, with Section 4 being deleted and replaced in its entirety with the following
new Section 4:
,,The rent for the Botanic Parking Lot during the primary term shall be
$25,000.00 a year. The rent for the Botanic Parking Lot during the first renewal
term shall be $30,000.00 a year. The rent for the Botanic Parking Lot during the
second renewal term shall be $36,000.00 a year, but as of the Amendment Date
shall be reduced to equal $21,692.00 per year (pro-rated for the then-current year
as of the Amendment Date). The rent for the Parking Lot during the third renewal
term shall be $26,030.00 a year.
"Rent shall be paid monthly as follows:
A. Primary Term: Two Thousand Eighty Three and 33/100
Dollars ($2,083.33) on execution of the Agreement and Two Thousand
Eighty Three and 33/100 Dollars ($2,083.33) in advance on or before the
10th day of each month thereafter during the primary term of the
Agreement;
B. First Renewal Term: Two Thousand Five Hundred and
No/100 Dollars ($2,500.00) in advance on or before the 10th day of each
month thereafter during the first renewal term of the Agreement;
C. Second Renewal Term: Three Thousand and No/100
Dollars ($3,000.00) in advance on or before the 10th day of each month
thereafter during the second renewal term of the Agreement prior to the
Amendment Date, then One Thousand Eight Hundred and Seven and
67/100 Dollars ($1,807.67 for the remainder of the second renewal term
(provided that if the Amendment Date is a day other than the first day of a
month, then the rent shall be properly pro-rated as of the Amendment Date
and the excess rent previously paid shall be applied against the next
monthly installment of rent due and MW shall timely pay the remaining
balance of such next due monthly installment of rent); and
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D. Third Renewal Term: Two Thousand One Hundred Sixty
Nine and 17/100 Dollars ($2,169.17) in advance on or before the 10th day
of each month thereafter during the third renewal term of the Agreement.
"The rent shall be paid in cash or by check at the office of the Department
of Finance (Revenue Collection Section), City of Fort Worth, 1000 Throckmorton
Street, Fort Worth, Texas 76102. No notice or invoice shall be required to render
the monthly rent due and payable."
6.
City Secretary Contract No. 19597 is hereby amended to delete Section 5 and replace it
in its entirety with the following new Section 5:
"A. MW admits by accepting and using the Botanic Parking Lot that it has
inspected the Botanic Parking Lot and all improvements thereon and found them
in good condition and repair. MW agrees that it will, at its expense, keep and
maintain the Botanic Parking Lot and all improvements thereon, including, but
not limited to, the paved surface, the perimeter fence and the lighting system, in
good condition. MW agrees to make all repairs necessary or as requested by City
to prevent the paved surface of the Botanic Parking Lot from deteriorating in
value or condition, except normal wear and aging consistent with normal parking
lot uses. City shall have the right, through its agents and officials, to inspect the
Botanic Parking Lot and thereafter to make recommendations to MW about
repairs that, in the City's opinion, are necessary to the Botanic Parking Lot. In
this connection, MW agrees that it shall, within 30 days from the date of City's
recommendations, begin the recommended repairs. If MW fails to undertake the
recommended repairs within 30 days, the City may undertake the repairs. The cost
of the repairs shall be paid by MW within 30 days after written notification by the
City that the repairs are completed. MW shall have no obligation to water, care
for, or maintain shrubbery or other plantings that may be placed on the reserved
strips around the Botanic Parking Lot by the City.
`B. City agrees that construction for Phase One of the Botanic Garden
Greenhouse Project shall not begin, and therefore the Amendment Date shall not
occur, before January 1, 2005, or until the North Lot is ready for use in
accordance with the terms of the North Lot Sub-Sublease and the provisions of
Section 2 of this Agreement, whichever occurs first.
"C. City agrees to effectively communicate with MW and its tenant, and
provide MW and its tenant with copies of Phase One of the Botanic Garden
Greenhouse Project Plans for the purpose of providing MW with the opportunity
to comment on the plans relating to parking, ingress/egress and layout issues. The
work performed in connection with the Phase One of the Botanic Garden
Greenhouse Project Plans shall not interfere with the parking by MW and its
tenant on the modified Botanic Parking Lot depicted on Exhibit `B" of this
Agreement from and after the Amendment Date. City shall reasonably
accommodate the parking needs of MW during the construction process, however,
MW understands and agrees that MW and its tenants may experience temporary
disruption of the total number of available parking spaces due to the construction
of Phase One of the Botanic Garden Greenhouse Project, but such disruption shall
not be considered a breach of the terms of this Agreement provided it does not
impair MW or its tenant's ingress or egress into the Botanic Parking Lot or
temporarily reduce the number of parking spaces by more than 28 spaces. City
shall provide MW and its tenant at least three (3) business days advance notice
prior to any temporary disruption of parking spaces.
"D. City agrees that, notwithstanding the obligations of MW set forth in this
Agreement, City shall perform such repair, maintenance, and replacement
necessary due to damage caused by or in connection with activities of City and/or
the design and construction of Phase One of the Botanic Garden Greenhouse
Project. Such repair, maintenance and replacement shall be promptly made at
City's expense and so as not to materially, adversely interfere with the use of the
Botanic Parking Lot by MW and its tenants.
Fp, Wong, Trx.
"E. In addition to the obligations of the City provided under Section 13 of this
Agreement, City shall require the construction contractor to provide insurance
acceptable to the City, naming the City, MW, and its tenant as additional
insureds."
7.
All notices to be sent to MW shall be sent in accordance with the terms of City Secretary
Contract No. 19597 to the following address, unless and until a new address for notice is
provided by MW according to the terms of City Secretary Contract No. 19597:
To MW: With a cop- to:
Mid-Western Development& Realty, Ltd. Miller& Haney, L.L.P.
1204-B W. 7`h Street 512 Main Street, Suite 901
Fort Worth, Texas 76102 Fort Worth, Texas 76102
Attention: Brent Hyder and Attention: William D. Miller
Property Manager
8.
All other terms and conditions of City Secretary Contract No. 19597 which are not
amended herein, shall remain in full force and effect throughout the term of the Agreement, as
the same may be renewed and extended in accordance with the terms and provisions set forth
therein as modified by this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective for all purposes as of the Effective Date in Fort Worth, Tarrant County, Texas.
ATTEST: CIT F FORT WORTH
City Secretary ibby Watt
on
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY:
David Yett, City Attorney
pct �u�thor�i zatioD
Assistant ity Attorney
MID-WESTERN DEVELOPMENT &
REALTY LTD.,
By: Mid-Western Development & Realty
Management, L.L.C.,
Its general partner
By:
Brent . Hyder, Manager
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Whitney H. ore, Manager
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Fy. 11O RTH, TEN.
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Libby Watson, Assistant City Manager, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the City of Fort Worth and that she executed the same as the act of said City
of Fort Worth for the purposes and consideration therein expressed and in the capacity therein
stated.
2005 . GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
KATHY F.DURHAM
'= MY COMMISSION EXPIRES Notary Public ifi and for the State of Texas
January 24,2009
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Brent R. Hyder and Whitney H. More, known to me to be the
persons whose names are subscribed to the foregoing instrument, and respectively acknowledged
to me that he or she, as applicable, executed the same for the purposes and consideration therein
expressed, as the act and deed of Mid-Western Development & Realty Ltd., and in the capacity
therein stated as its duly authorized officer or representative.
,,GIVEN UNDER MY HAND AND SEAL OF OFFICE this 4day of /`�,
20M.
Notary Public in and for the State of Texas
WILLIAM D. MILLER
NOTARY PUBLIC
STATE OF TEXAS
N9rE OF t�+P My Comm. Expires 3-3-2007
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EXHIBIT B
DESCRIPTION OF REDUCED BOTANIC PARKING LOT
(TO ATTACH THE LEGAL DESCRIPTION AND PARKING CONFIGURATION AMP)
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 12/16/2003 - Ordinance No. 15807
DATE: Tuesday, December 16, 2003
LOG NAME: 80BGPARKINGLOT REFERENCE NO.: C-19909
SUBJECT:
Amendment to City Secretary Contract No. 19597 between the City of Fort Worth and Mid-Western
Development & Realty Company
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to amend City Secretary Contract No. 19597 with Mid-Western
Development & Realty Company to extend the term of the agreement and reduce the number of parking
spaces; and
2. Adopt the attached appropriation ordinance increasing estimated revenues and appropriations in the
Special Trust Fund in the amount of $36,000 from available funds for the relocation of the greenhouses
located at the Botanic Garden.
DISCUSSION:
As part of the the 1998 Capital Improvement Program, funds were designated for Phase One of the Botanic
Garden's Master Plan which includes the construction and relocation of greenhouses on a portion of the
Fort Worth Botanic Garden Parking Lot ("Parking Lot") currently leased to Mid-Western Development &
Realty Company ("MW'). The greenhouses are currently located along Old Garden Road, in the central
portion of the Botanic Garden. Relocating the greenhouses and maintenance compound to the Parking Lot
will allow the redevelopment of that area as the Demonstration Garden. Attached is a site plan of the
proposed greenhouse relocation.
In 1993, the City entered into an agreement (City Secretary Contract No. 19597) with MW for lease of the
Parking Lot for five years, beginning March 1, 1993, and ending February 28, 1998. The lease includes two
5-year options which will expire February 28, 2008. The lease also stipulated an annual lease fee amount
of $36,000. These funds are placed in a trust fund for future development of the Botanic Garden. In
January 2003, MW exercised the last 5-year option of the lease.
This recommendation will amend City Secretary Contract No. 19597 to add an additional five-year lease
term from March 1, 2008, until February 28, 2013, and reduce the leased area from 463 parking spaces to
approximately 255 parking spaces. Accordingly, the rent for the Parking Lot will be reduced from $36,000 a
year prorated to a rate of $19,826 per year once the remaining area of the Parking Lot is closed for the
construction of Phase One of the Botanic Garden Greenhouse Project Plans. The rent for the Parking Lot
during the third renewal term shall be $23,800 a year.
Additionally, the City will sub-sublease the parking lot north of the Rowan building ("Stock Show Parking
Lot) for a three year primary term, with two one-year options for the purpose of providing additional parking
for the tenants of MW located at 2501 Montgomery Street. This sub-sublease is needed to accommodate
the parking needs of MW due to the loss of parking spaces as a result of the relocation of the Botanic
Logname: 80BGPARKINGLOT Page 1 of 2
Garden greenhouses.
Terms of the agreement amendment include indemnification, insurance coverage, maintenance of the
Parking Lot, an opportunity for MW to comment on the Botanic Garden Greenhouse Project Plans relating
to parking, ingress/egress and layout issues, and establishment of an annual meeting to review the
maintenance, operations and programs related to the parking lots. The agreement will also allow MW to
continue to sublease the Parking Lot to the tenants of 2501 Montgomery Street.
Construction for Phase One of the Botanic Garden Greenhouse Project shall not begin before October 1,
2004, or until the Stock Show Parking Lot is ready for use, whichever occurs first. The City, at its sole
discretion, may renew this agreement at the end of the third renewal term. If the City elects not to renew
the agreement, written notice of intent will be given no later than March 1, 2011.
This Mayor and Council Communication (M&C) corresponds to M&C C-19908, Contract with Southwestern
Exposition and Livestock Show to Sublease Parking Lot.
The Botanic Garden is a citywide facility that is located in COUNCIL DISTRICT 7.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that upon adoption of the attached appropriation ordinance, funds will be
available in the current operating budget, as appropriated, of the Special Trust Fund
TO Fund/Account/Centers FROM Fund/Account/Centers
FE72 488692 080502101010 $36,000.00
FE72 VARIOUS 080502101010 $36,000.00
Submitted for City Manager's Office by. Libby Watson (6183)
Originating Department Head: Randle Harwood (Acting) (5704)
Additional Information Contact: Sandra Youngblood (5755)
Logname: 80BGPARKINGLOT Page 2 of 2