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HomeMy WebLinkAboutContract 14628 CONSTRUCTION AND OPERATION AGREEMENT STATE OF TEXAS CITY SECRETARY CONTRACT No.L��� .��ppa COUNTY OF TARRANT 6 WHEREAS, the City of Fort Worth owns approximately 115 acres of land known as the Botanic Garden, a unique area of plant and landscaping displays for the education and enjoyment of the public; and WHEREAS, the Fort Worth Garden Club, Inc. , a Texas nonprofit corporation, which assists the City in promoting and developing the Botanic Garden, desires to construct permanent public improvements to the Botanic Garden, includinq a lecture hall, and to contribute toward the costs of maintaininq said improvements and the operation thereof; NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: That, for and in consideration of the mutual covenants, prom- ises and agreements contained herein, the City of Fort Worth, a municipal corporation located in Tarrant County, Texas ("City"), acting herein by and through David Ivory, its duly authorized Assistant City Manager, and the Fort Worth Garden Club, Inc. ("Garden Club"), acting by and through Mrs. Tom Mastin, Jr. , its duly authorized President, do hereby covenant and agree as follows: 1 . City grants to Garden Club the right to construct at no cost to City permanent improvements on that tract of land known as the Botanic Garden, the same beinq located in Fort Worth, Tarrant County, Texas, as shown on Exhibit "A", attached hereto and made a part hereof. The Garden Club will provide the City a finished lecture hall, which will accommodate the use by 300 to 350 people, together with interior and exterior landscaping. A copy of the final building OFFICIAL RECORD'� 1IT1 SECRETARY FT. WORTH, TDL specifications and construction plans, when completed, will be marked Exhibit "B" and deposited with this contract in the office of the City Secretary of the City of Fort Worth. Said Exhibit will become a part hereof for all purposes relating to the work to be performed and the area of the improvements contemplated. 2. Upon completion of the lecture hall and its acceptance by City, and throuqhout the life of the buildinq, City will operate and main- tain the hall as a public facility to be used primarily for educa- tional purposes; and secondarily for other meetings of public interest and benefit. 3. This aqreement shall be for a term commencing upon the execu- tion of this aqreement and endinq on the 30th day of September, 1994, with an option to renew this aqreement for a secondary term of five (5) years commencing on the 1st day of October, 1994, and end- inq on the 30th day of September, 1999, said option to be exercised upon written notice to the Director of the Park and Recreation Department not more than twelve (12) months nor less than sixty (60) days prior to the expiration of the primary term. Followinq said secondary term, this agreement shall be renewed automatically for a period of five (5) years unless either the Garden Club or the Park and Recreation Director shall qive the other written notice of de- sire not to renew said contract. 4. In connection with new construction at the Botanic Garden, the Garden Club aqrees to consult with the Park and Recreation Director and Park and Recreation Advisory Board for review and comment prior to planninq and orovidinq for such construction, and in every instance the prior consent of the Park and Recreation Director for any such planning, construction or improvement will be required. All -2- such construction and improvement will be performed in strict com- pliance with all of the applicable provisions of. the Constitution and laws of the State of Texas and the Charter, ordinances, requla- tions, policies and directives of. the City of. Fort Worth and its Park and Recreation Director. The title to any buildings or improve- ments constructed in the Botanic Garden under this agreement shall at all times be vested in City. 5, All plans and specifications, includinq changes, for the con- struction of the improvements, as mentioned hereinabove, shall require the written approval of the Park and Recreation Director of the City of Fort Worth before any construction or installation begins. Approval by the Park and Recreation Director shall not con- stitute or be deemed a release of the responsibility and liability of Garden Club or its officers, agents, servants, employees, con- tractors and subcontractors for the accuracy and competency of its designs, workinq drawings and specifications or other engineering documents prepared by Garden Club, its officers, agents, servants, employees, engineers, architects, contractors and subcontractors. h. Garden Club, its contractors and subcontractors, shall obtain all licenses and permits necessary for the construction of improve- ments on the leased premises; permit fees will be waived by the City. 7. Garden Club shall require its General Contractor to execute a performance bond, a payment bond payable to Garden Club, and a main- tenance bond payable to the City coverinq a period of one (1 ) year after acceptance of the building by the City. S. Garden Club shall pay promptly when due all legitimate and lust bills or charges for construction as well as any other amounts law- -3- fully due for material, services and labor furnished in connection herewith and shall indemnify City for non-payment of same. Garden Club shall indemnify City against any and all mechanic's and mater- ialmen's liens or any other type of claims or liens imposed upon the premises demised hereunder arising as a result of Garden Club's acts or omissions. 9. Upon acceptance of the building, the City shall be the owner of the building, fixtures and all attached furnishings. The Garden Club shall retain ownership of any plants, audiovisual equipment, art items displayed and educational materials that it shall provide for use by the City; however the use, care and management of all these said items shall be administered jointly by the Garden Club and by the Park and Recreation Director. The selection, placement and dis- posal of said items shall also be only with the prior written approval of the Park and Recreation Department. 10. The Garden Club and the City mutually covenant and agree that all monies collected by or for the City or the Garden Club at the lecture hall, or for the use of the lecture hall, including any adjacent rooms, patios and parking lots, shall be deposited into a special fund to be maintained by the Fort Worth Garden Club, Inc. , to be used only for the operation, expansion or improvement of the lecture hall and/or Fort Worth Botanic Garden. All expenditures from said fund shall be made only with prior written consent by the Park and Recreation Director. 11. The Garden Club shall keep complete and accurate records, books and accounts according to customary and accepted business practices, and City or its representatives shall have the right to examine and audit said records, books and accounts at any reasonable time. The -4- Garden Club shall furnish the Park and Recreation Director on or before the 10th day of each and every calendar month a sworn state- ment showinq the amount of all gross receipts during the preceding month. The Garden Club shall furnish said Park and Recreation Director a yearly audit of its books by a certified public accoun- tant, such report to be furnished within ninety (90) days after the end of the fiscal year of the Garden Club. 12. The City aqrees to provide funding to staff the lecture hall and open the lecture hall to the public, on a schedule similar to that of similar facilities operated by the City, and to provide basic utilities and basic maintenance services for buildings, plants and grounds. The Garden Club agrees to provide to the City monies to pay for such additional hours of operation, maintenance, services and employees as the Garden Club and the Park and Recreation Director may Jointly agree to be desirable and practicable. All salaries and benefits to be paid to said employees will be paid by the City from the monies provided by the Garden Club, and said employees shall be employees of the City. 13. The Garden Club aqrees that the lecture hall shall be operated, scheduled and controlled by the City of Fort Worth Park and Recreation Department, which shall hire and retain full and complete authority over all employees and volunteers involved in the manage- ment, operation and maintenance of the lecture hall, excepting the employees of any concession operation within the lecture hall and excepting the employee or employees of the Garden Club which the Garden Club may hire to conduct Garden Club business. All employees of the lecture hall, except such Garden Club employees, shall be paid for said employment only through the City. The Garden Club agrees that it shall make no payments to said City employees except through the City of Fort worth Park and Recreation Department. -5- 14. It is understood, acknowledged and anticipated by the parties hereto that the Community Foundations of Texas, Inc. , will give to the Fort Worth Garden Club, Inc. , a sum of money not to exceed One Million Dollars ($1 ,000,000) for the design, construction and interior furnishing of the lecture hall. It is further understood and agreed that this contract, as well as the design, construction and furnishing of the lecture hall, is contingent upon the receipt of said funds, and that in the event said funds are not given to the Garden Club, then either party to this agreement may terminate same. 15. It is understood and agreed that the construction of the lec- ture hall shall include the installation of a plaque in a location designated by the City of Fort Worth, which plaque shall contain an appropriate inscription stating that the lecture hall was made possible through the gift of Dorothea L. Leonhardt and Communities Foundation of Texas, Inc. The City shall cause the plaque to be furnished for installation in the lecture hall during its construc- tion, and the plaque shall remain in full view of visitors to the lecture hall at all times. Said plaque shall be the property of the City and shall remain attached to the lecture hall throughout the life of the building. It shall not be removed from the building upon the termination of this lease. 16. Garden Club may, at its own expense, with prior written consent of the Park and Recreation Director, install signs in the areas where it operates a concession to indicate its business; however any such signs so installed must be in keeping with the general aes- thetic background of the park area, and the size, type, color, loca- tion, manner of display and subject matter of the sign must be specifically approved by the Park and Recreation Director prior to installation. In the installation, maintenance and/or removal of -6- such signs, Garden Club will exercise carp not to damage the build- ings and property of. City. 17. City and Garden Club agree that City, acting by and through its authorized representatives, shall at all times have the full and unrestricted right to enter the premises for the purpose of inspect- ing and maintaining the same and doing all things with reference thereto which City is obligated to do as set forth in this agreement or which it may deem necessary for the proper conduct and operation of public parks. It is expressly understood that the City will not exercise this right in any Garden Club offices without the prior consent of an authorized representative of the Garden Club. 18. Garden Club, in the performance of this aareement, will not discriminate against any person or persons because of sex, race, religion, color or national origin. This agreement is made and en- tered into with reference specifically to Chapter 13A, Article III ("Discrimination in Employment Practices") of the City Code of the City of Fort Worth, and Garden Club hereby covenants and agrees that it has fully complied with all provisions of same and that no em- ployee or emplovee-applicant has been discriminated against as pro- hibited by the terms of such ordinance. 19. The Garden Club covenants and agrees that it will not subcon- tract or assign all or any part of its rights, privileges or duties under this agreement without the prior written consent of City, and any attempted subcontract or assignment of same without such prior consent of. City shall be void. 20. It is understood and agreed that the sole purpose of this agreement is to provide the best practicable atmosphere and opera- tion of the Fort Worth Botanic Garden for the benefit of the public -7- while preserving the non-commercial atmosphere of the Botanic Garden. If it becomes undesirable to continue the operation de- scribed herein, same can be modified or discontinued by the City Council. The decision of the City Council shall be final. 21. With respect to the construction and operations under this agreement, the Garden Club shall take good care of the premises and suffer no waste and shall comply with all laws, federal, state and local, including all ordinances, rules and requlations of the City of Fort Worth, its Police, Fire, Health and Park and Recreation Departments. 22. Except as the same may be insured by the City under section 27 hereof, City shall in no way nor under any circumstances be respon- sible for any property belonging to Garden Club, its officers, agents, servants, employees, contractors, subcontractors, invitees or licensees which may be stolen, destroyed or in any way damaged. 23. It is expressly understood and agreed by the parties hereto that Garden Club shall operate as an independent contractor as to all rights and privileges granted herein and not as an officer, agent, representative, servant or employee of City; that Garden Club shall have exclusive control of and the exclusive right to control the details of the construction hereunder and all persons performing same and shall be solely responsible for the acts and omissions of its officers, agents, representatives, employees, contractors and subcontractors, licensees and invitees; that the doctrine of respon- deat superior shall not apply as between City and Garden Club, its officers, agents, representatives, employees, contractors or subcon- tractors; and that nothing herein shall be construed as creating a partnership or joint enterprise between City and Garden Club. -8- 24. Garden Club covenants and aarees to assume all risks of whatsoever kind or character arising out of, incident to or in connection with the proposed construction, its operations, and the employment of Garden Club staff, and does hereby indemnify, hold harmless and defend, at its own expense, City, its officers, agents, servants and employees, from and against any and all claims or suits for property damage or loss and/or personal inury, including death, to any and all persons of whatsoever kind or character, whether real or asserted, arising out of, incident to or in connection with, directly or indirectly, the Garden Club's use of the premises. 25. If Garden Club, as a charitable association, corporation, en- tity or individual enterprise, has or claims an immunity or exemp- tion (statutory or otherwise) from and against liability for damage or injury to property or persons, Garden Club hereby expressly waives its rights to plead defensively such immunity or exemption as against City. 26. Upon completion of the construction and acceptance by City and thereafter during the full term of this contract, the City shall, at its sole cost and expense, provide fire and extended coverage insur- ance for the lecture hall and its contents to the full insurable value thereof. 27. Garden Club agrees to furnish City with a certificate of insur- ance as proof that it has secured and paid for a policy of public liability insurance coverina all public risks related to the pro- posed construction and the Garden Club's operations hereunder. The amounts of such insurance shall be not less than the maximum liabil- ity which can be imposed on City under the laws of the State of Texas. At present such amounts shall be as follows: -9- Property damage, per occurrence $100,000.00 Personal injury or death, per occurrence $300,000.00 with the understanding of and agreement by Garden Club that such insurance amounts may be revised upward at City's option and that Garden Club covenants and agrees to so revise such amounts within thirty (30) days, following notice to Garden Club of such require- ments. 28. Garden Club shall have no power to do any act or to make any contract that may create or be the foundation for any lien upon the premises or any interest in the demised premises; and any such con- tract or lien attempted to be created shall be void. Should any such Purported lien be created or filed, Garden Club, at its own cost and expense, shall take all necessary steps to eliminate or discharge the same in full within thirty (30) days next after the filing thereof, and, should Garden Club fail to do the same, such failure shall constitute a breach of Garden Club's covenant herein. 29. Garden Club covenants and agrees that, in the event of a breach of any covenant contained herein by Garden Club, then and in that event City may, at its option, declare this agreement forfeited and terminated with approval of. the City Council. 30. Garden Club covenants and agrees that, should any action, whether real or asserted, at law or in equity, arise out of or inci- dent to the terms of this agreement, venue for said action shall lie in Tarrant County, Texas. 31. In the event of termination, or upon dissolution of the Fort Worth Garden Club, Inc. , either voluntary or involuntary, all assets held by the Garden Club under this contract or received by the Garden Club for the Botanic Garden shall be transferred to the City -10- of Fort Worth for the account of the Pack and necreotion Department, to be used in the Fort Worth Botanic Garden only. with the approvaI of the pack and Recreation Director, the Garden cIob could transfer said noaeta to another organization for use at the Botanic ooraeo only. 33. This written instrument constitutes the entire anreemeut by the parties hereto 0000eroioq the premises, and any prior or contempo- raneous, oral or written agreement which purports to vary from the terms hereof shall be void. IN WITNESS wnEpEor, the said parties have hereunto set their hands and seal of office to duplicate oriqioolo on this, the ~ day of , A.D. 19_2S'. czrY OF rnVr nmVTn rO*r mxOnrn Gnnomw CLUB, INC. 4 Cuy: Assistant City maqer President u ' ep9n0vro AS To p0oM AND Lnn*zzrr: A»mr4icv acc"r"ev / Date: xzrmaT: �� iasa 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 David Ivory, 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 Citv of Fort Worth and that he 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE this r�ir` � day of A.D. 19� r Not Y P lic 'n and or Ihe State of Texas STATE OF TEXAS S COUNTY OF TARRANT S BEFORE ME, the undersigned authority, a Notary Public in and for Tarrant County, Texas, on this day personally appeared known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration therein expressed, as the act and deed of Fort Worth Garden Club, Inc. , and in the capacity therein stated as its duly authorized officer or representative. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of A.D. , 19 eS /u1 Notary PubU c in and for the State of Texas -12- City of Fort Worth, Texas lw-cc'�v4wzc Mayor, and Council Communication DATE REFERENCE SUBJECT: PAGE NUMBER Contract with Fort Worth Garden 1 9/24/85 C-9250 Club Inc. 1 °t Recommendation It is recommended that the City Council authorize the City Manager to execute an agreement with the Fort Worth Garden Club. Inc. for the construction of a lecture hall at the Fort Worth Botanic Garden as described below. Background At its meeting on September 17, 1985, the City Council approved a resolution ex- pressing its appreciation of the gift to the Fort Worth Garden Club and to the citizens of Fort Worth by the Communities Foundation of Texas, Inc. , in the name of Dorothea L. Leonhardt. The Communities Foundation of Texas, Inc. proposes to give to the Fort Worth Gar- den Club, in the name of Dorothea L. Leonhardt, the sum of approximately $1,000,000 for the design and construction of a lecture hall to be located in the Botanic Garden. It is proposed that the City contract with the Fort Worth Garden Club, Inc. to permit the Club to construct permanent improvements in the Botanic Garden at no cost to the City. Under the contract, the Club would provide the City a finished lecture hall , which will accommodate the use by 300 to 350 people. The Club would also provide public liability insurance covering its construction and con- cession operations. The City would provide fire and extended coverage insurance for the lecture hall and its contents. Upon completion of the lecture hall and its acceptance by the City, the City would operate and maintain the hall as a public facility to be used primarily for educational purposes, and secondly for other meetings of public interest and benefit. All plans and specifications, including changes for the construction of the improvements would be subject to advance approval by the Park and Recreation Director. The proposed contract term is for nine years beginning October 1, 1985, with a five-year option for extension. Following the extension, the contract would be renewed automatically for a period of five years unless either party gives writ- ten notice to the contrary. DAI:kcgq SUBMITTED FOR THK j-\ n DISPOSITION BY COUNCIL: PROCESSED BY CITY MANAGER'S _j_JJ/ r_) APPROVED nFFICE BY: ORIGINATING ❑ OTHER (DESCRIBE) DEPARTMENT HEAD: Chatl.l es Campbell ., Jr. CITY SECRETARY FOR CONTACT:DIrIONAL INFORM ffavid A. Ivory Ext. 6140 1 DATE