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CITY SECRETARY
STATE OF TEXAS § CONTRACT Nar
COUNTY OF TARRANT §
WHEREAS, the City of Fort Worth, Texas owns a one hundred four-
teen and 62/100 (114.62) acre tract of land which is known as the
Fort Worth Botanic Garden; and
WHEREAS, within the confines of the Fort Worth Botanic Garden
is an area of oriental landscaping and design with unique horticul-
tural settings and displays, known as the Japanese Garden; and
WHEREAS, the Fort Worth Garden Center, Inc. , is a non-profit
corporation of the State of Texas which was organized for the
purposes of educating the public in the conservation of natural
resources, of promoting the beautification of the City of Fort Worth
by horticultural improvements and of continuing the development of
the Fort Worth Botanic Garden, of which the Japanese Garden is an
addition; and
WHEREAS, the Fort Worth Garden Center, Inc. desires to assist
the City of Fort Worth in promoting and developing the Japanese
Garden and in making contributions for the construction of permanent
public improvements therein;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
That for and in consideration of the mutual covenants, promises
and agreements contained herein the City of Fort Worth, a municipal
corporation located in Tarrant County, Texas, acting herein by and
through Robert L. Herchert, its duly authorized City Manager, here-
inafter called (Lessor") , and the Fort Worth Garden Center, Inc. ,
acting by and through its duly authorized president, Edith Tkac,
( "Lessee") , do hereby covenant and agree as follows:
1.
Lessor does hereby lease and demise to Lessee that part of the
Botanic Garden known as the Japanese Garden, same being located in
Fort Worth, Tarrant County, Texas, and being more particularly
described as follows:
OFFICIAL RECORD
CITY SECRETARY
FT. GURTM, TM I
A tract of land out of the T. White Survey, in Fort Worth,
Tarrant County, Texas, and being a portion of a tract of
land conveyed to the City of Fort Worth by deed recorded
in Volume 3873, Page 108, Deed Records, Tarrant County,
Texas, and all of a tract of land conveyed to the City of
Fort Worth by deed recorded in Volume 4829, Page 308, Deed
Records, Tarrant County, Texas, and more particularly
described as follows:
Beginning at the northwest corner of said tract recorded
in Volume 3873, Page 108;
Thence: South, with the west line of said tract recorded
in Volume 3873, Page 108, at 330.1 feet past the northwest
corner of said tract recorded in Volume 482.9, Page 308, at
755.1 feet past the southwest corner of said tract
recorded in Volume 4829, Page 308, in all a distance of
857.13 feet to an iron pin;
Thence: North 89 degrees 16 minutes 30 seconds East, with
fence line, 298.20 feet to an iron pin;
Thence: North 25 degrees 09 minutes East, with fence line,
167.56 feet to a cross cut on concrete;
Thence: North no degrees 17 minutes 47 seconds West, with
fence, 177. 76 feet to a fence corner;
Thence: North 87 deq_rees 08 minutes West, with fence,
33.55 feet to an iron pin;
Thence: North 5 degrees 04 minutes West, with fence, 91.0
feet,-
Thence:
eet;Thence: North 9 degrees 38 minutes 50 seconds East, with
fence, 19.90 feet to a point;
Thence: North 38 degrees 30 minutes 46 seconds East, with
fence, 40. 74 feet to a point;
Thence: North 47 degrees 22 minutes West, with fence, 16.0
feet to fence corner;
Thence: North 50 degrees 06 minutes 03 seconds East, with
fence, 77.01 feet to fence corner;
Thence: North 45 degrees 25 minutes 35 seconds East, 35. 68
feet to fence corner;
Thence: North 46 degrees 13 minutes 34 seconds East, with
fence, 7127 feet to fence corner;
Thence: North 61 degrees 5.1 minutes 11 seconds East, with
fence, 61.22 feet to an iron pin;
Thence: North 10 degrees 17 minutes West, with fence,
92.25 feet to an iron pin;
Thence: South 89 degrees 47 minutes West, with fence,
125.0 feet to a point;
Thence: North 64 degrees 44 minutes 48 seconds West, with
fence, 18.18 feet to a point;
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Thence: North 3 degrees 15 minutes 57 seconds West, with
fence, 6.79 feet to a point;
Thence: South 89 degrees 19 minutes West 46. 60 feet to a
point,-
Thence: North no degrees 22 minutes West, with fence,
112.85 feet to a point in the north line of said tract
recorded in Volume 3873, Page 108;
Thence: South 89 degrees 55 minutes West, with the north
line of said tract recorded in Volume 3873, Page 108,
328.18 feet to the place of beginning and containing 7.443
acres of land more or less.
same being completely enclosed by a fence, and same being depicted
on Exhibit "A" attached hereto and incorporated herein for all pur-
poses incident to this agreement.
2.
The lease on the above-described premises shall be for the
initial term of one (1) year, beginning April 1, 1982, and ending
April 1, 1983. Thereafter, this agreement shall be renewed automati-
cally on a year-to-year basis for five (5) consecutive one (1) year
terms with a five (5) year option, unless Lessor gives Lessee writ-
ten notice of its desire not to renew such lease for either of such
additional terms, in which event this lease shall terminate for the
remainder of the renewal terms, and neither party shall have any
further rights or duties hereunder.
3.
Lessee covenants and agrees to furnish, in a manner satisfac-
tory to the Park and Recreation Director, at no cost to Lessor,
personnel to collect admission fees and to serve as guides within
the described premises, and to provide the necessary supplies and
equipment to collect such fees.
4.
Lessee covenants and agrees to conduct the operation of the
Japanese Garden in accordance with the following rules and regula-
tions:
A. The Japanese Garden shall be made available to the public
and members of the Fort Worth Garden Center, Inc. , only at those
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hours and on such days when no construction or planting activities
are scheduled which might endanger or interfere with visitation;
B. On such days, the suggested hours of operation of the
Japanese Garden shall be as follows:
Tuesday through Friday 10:00 A.M. to 4:00 P.M.
Saturday 10:00 A.M. to 5:00 P.M.
Sunday 1:00 P.M. to 5:00 P.M.
with the understanding that such hours may be expanded or reduced
with Lessor' s written consent.
C. Admission to the Japanese Garden during such hours of
operation shall be obtained by the acquisition of a numbered ticket
by each person twelve (12) years of age or over; provided, however
no member of the Fort Worth Garden Center, Inc. , shall be required
to acquire such a ticket. Such ticket shall be valid for one admis-
sion only. The fee for each such ticket shall be One Dollar ($1.00)
per person twelve (12) years of age or over, and shall include each
and every sponsor, and each and every member of tour groups or spe-
cial activity groups. Any person engaged in commercial photography
in the Garden shall be charged Ten Dollars ($10.00) per hour or
portion thereof for such use of the Garden.
D. Unaccompanied children under twelve (12) years of age
shall be prohibited from admission.
F. Visitors shall not be permitted to depart from the desig-
nated walkways; all photographs and pictures shall be made only from
such walkways.
F. The following shall not be permitted within the confines
of the Japanese Garden:
1. Bicycles or bicycling
2. Roller skating
3. Any pet or animal
4. The staging, playing or production of music, sound or
noise
5. Weddings or receptions for wedding
6. Picnics
7. The playing of or engaging in any sport or game
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3. Engaging in any activity harmful to the plantings or land-
scape, or detrimental to the welfare or enjoyment of the
public visiting such garden
9. Any unlawful or immoral act or omission.
Lessee further covenants and agrees that any person or persons
not conforming to such rules and regulations or to those rules,
regulations, orders or requirements of the Park and Recreation
Department or any ordinance or general law relating to the mainte-
nance of the park and recreation areas of the City shall be request-
ed to leave the garden without refund of the admission fee and shall
be subject to arrest by any person so authorized by law, to include
all police officers and park rangers.
Lessee also covenants and agrees to submit for the approval of
the Park and Recreation Director before implementation any and all
amendments, additions or changes to the fee schedule, and rules and
regulations herein enumerated.
5.
Lessee covenants and agrees to maintain complete and accurate
records of admissions to the described premises, including the num-
ber of persons assisting or visiting who are members of the Fort
Worth Garden Center, Inc. , or members of other local Garden Clubs
approved by the Fort Worth Garden Center, Inc.
6.
Lessee covenants and agrees to keep complete and accurate
records, books and accounts according to customary and accepted
business practices, and Lessor or its representative shall have the
right to examine and audit same at any reasonable time. Lessee shall
deliver to the Park and Recreation Director on or before the tenth
(10th) clay of each calendar month a written statement of the Japa-
nese Garden Special Account. Lessee shall furnish said Director a
yearly audit of its books by a certified public accountant, such
report to be furnished within ninety (90) days after the end of the
fiscal year of Lessee.
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7.
Lessor and Lessee mutually covenant and agree that the afore-
said monies shall be placed in a special trust fund maintained by
Lessee, entitled the Japanese Garden Special Account, the monies of
which shall be used solely for the operation, expansion or improve-
ment of the Japanese Garden.
8.
In connection with new construction at the Botanic Garden, the
Lessee agrees to consult with the Park and Recreation Director and
Park and Recreation Advisory Board for review and comment prior to
planning and providing for such construction and in every instance
the prior consent of the City Council for any such planning, con-
struction or improvement will be required. All such construction and
improvement will be performed in strict compliance with all of the
applicable provisions of the Constitution and laws of the State of
Texas and the Charter, ordinances, regulations, policies and direc-
tives of the City of Fort Worth. The title to any buildings or
improvements constructed in the Botanic Garden under this agreement
shall at all times be vested in Lessor; provided, however, that with
the consent of the City Council, title to newly constructed build-
ings may be retained by Lessee for the purpose of securing loans
made for such construction, but title to such buildings shall revert
to and vest in Lessor promptly upon the payment of such loan. How-
ever, no lien shall ever be placed upon any real property owned by
Lessor.
9.
Lessee covenants, agrees and understands that the terms of this
lease bestow upon Lessee no concession rights whatsoever. No conces-
sion shall be permitted without the prior written approval of the
City Council of the City of Fort Worth.
10.
It is expressly understood and agreed by and between the part-
ies hereto that Lessee shall operate as an independent contractor as
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to all rights and privileges granted herein, and not as an officer,
agent, representative, servant or employee of Lessor; that Lessee
shall have exclusive control of and the exclusive right to control
the details of its operation 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, and its members, patrons, guests, licensees and
invitees; that the doctrine of respondeat superior shall not apply
as between Lessor and Lessee, its officers, members, agents, repre-
sentatives, employees, contractors or subcontractors; and that noth-
ing herein shall be construed as creating a partnership or joint
enterprise between Lessor and Lessee.
11.
Lessee covenants and agrees that Lessor, its officers, agents,
servants and employees, shall in no way nor under any circumstances
be responsible for any property belonging to Lessee, its officers,
agents, representatives, or employees, or its members, patrons,
guests, licensees or invitees, which may be stolen, destroyed or in
any way damaged, and Lessee hereby indemnifies and holds harmless
Lessor, its officers, agents, servants and employees from and
against any and all such claims.
12.
Lessee covenants and agrees to assume all risks of whatsoever
kind or character arising out of, incident to, or in connection
with, the use and occupancy of the premises and areas described
herein, delineated on Exhibit "A", and herein leased, and does here-
by indemnify, hold harmless and defend, at its own expense, Lessor,
its officers, agents, servants and employees from and against any
and all claims or suits for property damage or loss, and/or personal
injury, 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 terms and condi-
-7-
tions of this contract and agreement, or the maintenance, use, occu-
pancy, existence or location of said premises, whether or not caus-
ed, in whole or in part, by the alleged negligence of officers,
agents, servants, employees, contractors, subcontractors, licensees
or invitees of Lessor; and Lessee hereby assumes all liability and
responsibility of Lessor, its officers, agents, servants, or employ-
ees for any and all claims or suits for property damage or loss,
and/or personal injury, 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
term and conditions of this contract and agreement, or the mainte-
nance, use, occupancy, exixtence or location of said premises,
whether or not caused, in whole or in part, by the alleged negli-
gence of officers, agents, servants, employees, contractors, subcon-
tractors, licensees or invitees of Lessor; and Lessee likewise
covenants and agrees, and does hereby indemnify and hold harmless
Lessor from and against any and all injuries, damage or destruction
of Lessor's property arising out of, incident to, or in connection
with, directly or indirectly, all acts or omissions by Lessee, its
officers, members, agents representatives, employees, contractors,
subcontractors, or its patrons, customers, licensees, invitees or
trespassers, whether caused, in whole or in part, by the alleged
negligence of officers, agents, servants, employees, contractors,
subcontractors, licensees or invitees of Lessor.
13.
Lessee covenants and agrees to carry and keep in force during
the term of this agreement, with companies satisfactory to the Park
and Recreation Director of the City of Fort Worth, public liability
insurance in amounts not less than the following:
Property damage, per accident $ 50,000
Personal injury or death, per person $100,000
Personal injury or death, per accident $300,000
-8-
with the understanding of and agreement by Lessee that such insur-
ance amounts may be revised upward at Lessor's option and that
Lessee covenants and agrees to so revise such amounts within thirty
(30) days following notice to Lessee of such requirements; and that
certificates of insurance evidencing such coverage shall be furnish-
ed to the Park and Recreation Director upon the effective date of
this agreement and shall be issured by a company or companies doing
business in Texas.
14.
Lessee covenants and agrees that it shall not sublease or
assign any rights or interest obtainers under this agreement, or any
part thereof, without first obtaining the written consent of the
Lessor, and any attempted sublease or assignment without the prior
written consent of Lessor shall be void.
15.
Lessor and Lessee mutually covenant and agree that Lessor,
through its City Council and Park and Recreation Department,
reserves the sole and exclusive right to exercise jurisdiction and
control over all of the employees and operations of the Japanese
Garden, excepting only those volunteers and employees of Lessee.
Save and except such persons, all persons employed in the Japanese
"Garden shall be the employees of the Lessor, and the Lessee will not
in any way contribute to or supplement the salaries or compensation
received by any employee of the Lessor.
16.
Lessor and Lessee mutually covenant and agree that Lessor,
,. acting by and through its authorizes representatives, shall have at
any and all times the full and unrestricted right to enter the pre-
mises leased for the purpose of inspecting and maintaining the same
and doing any and all things with reference thereto which the Lessor
r.
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.
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17.
Lessor and Lessee mutually covenant, agree and understand that
the sole purpose of this agreement is to provide the best practica-
ble atmosphere and operation of the Japanese Garden for the benefit
of the public. If it becomes undesirable to continue the operation
described herein, same can be modified or discontinued upon the
decision of the City Council. of the City of Fort Worth.
18.
Lessee covenants and agrees that, in the event Lessee fails to
comply with any of the terms and conditions of this agreement, then
and in that event the Lessor shall have the right at once and with-
out further notice to declare this agreement terminated and to enter
into and take full possession of the premises held for the benefit
of the public, save and except such personal property and equipment
as may be owned by Lessee, In the event of such cancellation of this
agreement by the Lessor, all rights and privileges of the Lessee
hereunder shall cease and terminate, and Lessee shall immediately
vacate said premises. If Lessee fails to vacate said premises fol-
lowing termination of this lease agreement, Lessor may remove, forc-
ibly, if necessary, Lessee and all its property from said premises,
and Lessor shall incur no liability for such removal.
The parties hereto further covenant and agree that this agree-
ment may be terminated without cause by either party by giving
thirty (30) days' notice in writing to the other party.
In the event of termination, all funds held by the Lessee as a
result of collections received for the Japanese Garden shall be
transferred to the Lessor.
No waiver of default by the Lessor of any of the terms, cove-
nants or conditions hereof to be performed, kept and observed by the
Lessee shall be construed to be or act as a waiver of any subsequent
default of any of the terms, covenants or conditions herein contain-
ed to be performed, kept and observed by the Lessee.
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Lessor and Lessee mutually covenant and agree that any notice
or communication required or permitted hereunder shall be by first
class mail, postage prepaid or hand-delivered, as follows:
If to the Lessor:
City Secretary
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Or if to the Lessee:
The Fort Worth Garden Center, Inc.
3220 Botanic Garden Drive
Fort Worth, Texas 76107
or at such other address or in care of such other person as hereaf-
ter shall be designated in writing by either party of the other.
Such notice or communication shall be deemed to have been given as
of the date of receipt.
20.
Lessor and Lessee mutually covenant and agree that, subject to
the limitations contained herein, the covenants and agreements made
and entered into by the parties hereto are declared to be for the
benefit of and binding upon their respective successors, representa-
tives and assigns, if any.
21.
Lessee covenants and agrees that should any action, whether
real or asserted, at law or in equity, arise out of, incident to, or
in connection with the use and occupancy of the demised premises, or
the terms and conditions of this contract and agreement, venue for
said action shall lie in Tarrant County, Texas.
22.
Lessor and Lessee mutually covenant and agree that this writing
constitutes the sole and only agreement between Lessor, the City of
Fort Worth, and Lessee, The Fort Worth Garden Center, Inc. , pertain-
ing to the operation of the Japanese Garden. Any and all previous
agreements, whether oral or in writing, between said parties
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pertaining to the operation of such garden are hereby terminated and
cancelled and declared to be of no further force and effect. No
prior or contemporaneous written or oral agreement of any nature
exists to alter or modify the term of this agreements.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on this _� day of _ 1982.
ATTEST: CITY OF FORT WORTH
c�
Ci ecretary Robert L. Herchert
City Manager
APPROVED AS TO FORM AND LEGALITY:
ity Attorney
Date:
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ATTEST: FORT WORTH GARDEN CENTER, INC.
r
By
Corporate Secre-tary Edith Tkac, President
APPROVED BY CITY COUNCIL
C-6.91l
QCity Secretary
Date
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PLAT OF
JAPANESE GA14DENS LEASE
IN THE T WHITE SURVEY
TARRANT COUNTY. TEXAS. SURVEYED JANUARY 1973 EI!E NO c•3
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City of Fort Worth, Texas
Mayor and Council Communication
DATE REFERENCE SUBJECT: Contracts With Fort Worth PAGE
NUMBER Garden Center, Incorporated
3123/82 **C-6211 lot 2
Background
The Fort Worth Garden Center, Inc. is a non-profit corporation of the State of
Texas organized for the purpose of educating the public in the conservation of
natural resources; promoting the beautification of the City of Fort Worth by
horticultural improvements, and of continuing development of the Fort Worth Bo-
tanic Garden, including the Japanese Garden.
City Secretary Contract No. 11398 provides for the Fort Worth Garden Center,
Inc. to operate a gift shop in the Botanic Garden Center Building, and to sell
merchandise elsewhere in the Botanic Garden as approved by the Park and Recrea-
tion Director. All profits from the gift shop and any other concession opera-
tions are deposited to a special fund maintained by the Garden Center Inc. ; and
are used only for the support , maintenance, expansion or improvement of the Bo-
tanic Garden. All prices, merchandise, services, fixtures, furnishings and
signs are subject to approval in advance by the Park and Recreation Director.
It is proposed that Contract No. 11398 be amended to include provisions to
allow the Garden Center, Inc. to plan and execute new construction at the
Botanic Garden with the prior approval of the City Council. Such buildings or
improvements would become the property of the City.
It is also proposed to renew City Secretary Contract No. 11399 for five consec-
utive, renewable terms of one year each, with an option to extend the agreement
for five additional renewable terms of one year each. This could give the con-
tract a possible life of ten years.
City Secretary Contract No. 10863 provides for the Fort Worth Garden Center,
Inc. to operate the Japanese Garden under a lease which provides that the Gar-
den Center furnish personnel to collect admission fees and serve as guides at
no cost to the City, and that the Japanese Garden proceeds from that lease be
placed in a special trust fund maintained by the City.
It is proposed that the Japanese Garden proceeds be deposited to a Japanese
Garden special account to be maintained by the Fort Worth Garden Center, Inc.
for use only for the operation, expansion, or improvement of the Japanese
Garden.
It is also proposed that City Secretary Contract No. 10863 be renewed for five
consecutive, renewable terms of one year each, with an option to extend the
agreement for five additional renewable erms of one year each. This could give
the contract a possible life of ten years.
Advisory Board Approval
At its meeting on March 16, 1982, the Park and Recreation Advisory Board voted
to recommend that the City of Fort Worth continue to contract with the Fort
Worth Garden Center, Inc. for the operation of the Botanic Garden Gift Shop and
concessions, and for the operation of the Japanese Garden.
DATE REFERENCE SUBJECT: Contracts With Fort Worth PAGE
NUMBER
3123182 **C-6211
Garden Center, Incorporated 2 ,r 2
--
The staff believes that both contracts ' as amended would be beneficial to the
public, to the Botanic Garden, and to the City of Fort Worth.
Recommendation
It is recommended that the City Council authorize the City Manager to execute
City Secretary Contract No. 11398 as amended and City Secretary Contract
No. 10863 as amended with the Fort Worth Garden Center, Inc.
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SUBMITTED FOR THE
CITY MANAGER'S DISPOSITION BY COUNCIL: PROCESSED BY
OFFICE BY: t /i ❑ APPROVED
ORIGINATING ❑ OTHER (DESCRIBE)
DEPARTMENT HEAD: Charles Campbell CITY SECRETARY
FOR ADDITIONAL INFORMATION
CONTACT: David Nivens, Ext. 7023 DATE