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HomeMy WebLinkAboutContract 47244l l ertil ii/ TAiY CO MACT NO0 EV .-1-ANT AGREEMENT This Event Agreement ("Agreement") is made as of this day, Friday, November 13, 2015, ("Effective Date") by and between marketing manager(s) that have executed this Agreement (',Marketing Manaaer") and City of Fort Worth ("Organizer"). WHEREAS, Marketing Manager: (i) is the "Owner" of the shopping center listed on Exhibit A and manages and directs certain advertising activities at such shopping center; or (ii) has been engaged by several Owners to manage and direct such activities at the shopping centers listed on Exhibit A Each shopping center is herein called a "Shopping Center" and collectively the ' Shoppina Centers"; and WHEREAS, Organizer seeks to conduct an event in a portion of the common area of the Shopping Center(s) as more particularly described herein. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: TERMS AND CONDITIONS 1 TERM. The "Term" of this Agreement shall begin on the Effective Date and shall terminate on the "Expiration Date" specified on Exhibit A. The Event (as hereinafter defined) shall be conducted during the "Event Term" specified on Exhibit A. EVENT During the Event Term, Organizer shall conduct the event described on Exhibit A in a portion of the common area of the Shopping Center more particularly described on Exhibit A ("Premises"). Any activities conducted and/or exhibition of any displays, sets, signs, decorations, materials, advertising collateral and/or equipment of Organizer specified on Exhibit A (collectively the "Event Elements") during the Event Term shall be collectively referred to herein as the "Event". If storage of any Event Elements is included in the services and/or benefits provided by Marketing Manager as more particularly specified on Exhibit A ("Services"), the Premises is deemed to include the area(s) in which such Event Elements are stored. 3. EVENT FEE. In consideration for the rights granted by Marketing Manager under this Agreement, Organizer agrees to pay the "Event Fee" to 'Payee" at the address and pursuant to the payment schedule, all as set forth on Exhibit A. 4. ORGANIZER'S OBLIGATIONS A. Submission of Event Elements. By the "Delivery Date" specified on Exhibit A, Organizer agrees to deliver to Marketing Manager all Event Elements specified on Exhibit A, which may include without limitation camera-ready artwork, advertising collateral, display or set designs, signs, copy, electronic files, activity plans and schedules, promotional materials and/or samples to be distributed and/or such other materials, logos, trademarks and designs to be used in connection with the Event, as are necessary for Marketing Manager to approve the Event and provide the Services pursuant to this Agreement. B. Permits. Organizer shall procure and keep in full force and effect, at its sole cost and expense, from governmental authorities having jurisdiction over the Shopping Center(s), any and all licenses, permits, bonds or other authorizations necessary to conduct the Event as contemplated under this Agreement. Organizer will notify Marketing Manager immediately if Organizer fails to obtain the required permits and licenses prior to commencement of the Event. A copy of any required permits or licenses shall be provided to Marketing Manager prior to commencement of the Event and the provision of such permits or licenses to Marketing Manager is a condition precedent to any access to the Premises C Insurance. Organizer will provide Marketing Manager with documentation concerning the Organizer's self -funded insurance program. This document, attached hereto as Exhibit B, must be approved, in writing, by Marketing Manager prior to the commencement of the Event Term. D. 0 gs win 1 sin 14 4 p ;a o !n P 12 11 re 11 23 Event Set-up and Operation. Organizer shall have the sole responsibility of conducting the Event, which may include the erection and installation of any Event Elements authorized by Marketing Manager, unless erection and installation are included in the Services. Organizer shall install the Event Elements and promptly repair at its sole cost and expense any damage to the Shopping Center(s) caused by Organizer, any contractors or other providers of Organizer, exhibitors and/or participants in the Event (each a "Contractor" and collectively the "Contractors"), or their respective employees, agents, affiliates or subcontractors in connection with the set-up of the Event Organizer shall maintain the Event Elements and conduct the Event solely on the Premises in a clean and orderly manner that exemplifies a first-class shopping center. In no event shall Organizer, any Contractor or any of their employees, agents, affiliates, subcontractors or suppliers (collectively , Organizer Parties") hawk or otherwise create a nuisance in the Shopping Center(s). Removal of Event Elements. Upon the earlier of the expiration of the Event Term or termination of this Agreement, Organizer shall remove all Event Elements from the Premises, repair damage caused by such removal and peaceably yield up to Marketing Manager the Premises in good order, repair and condition. Until such time as all Event Elements are removed, Organizer's obligations shall continue as set forth in this Agreement. In the event Organizer does not remove all Event Elements at the expiration of the Event Term or earlier termination of this Agreement, Marketing Manager shall provide Organizer with written notice of Organizer's failure to remove the Event Elements from the Premises Such written notice shall provide Organizer with one (1) day for the purpose of removing the Event Elements from the Premises ("Notice Period"). In the event Organizer does not remove any or all of the Event Elements within the Notice Period, Marketing Pagel of 8 Manager shall have the right, in its sole and absolute discretion, to either remove and store the Event Elements or dispose of the Event Elements at Organizer's sole cost and expense Organizer shall have no claim against Marketing Manager for such removal, storage and/or disposal. F. Compliance With Law. Organizer agrees to perform all of its obligations under this Agreement in a professional manner and shall comply with all federal, state and local laws, statutes ordinances, rules, regulations, codes and other governmental requirements. G. Acknowledgement. Organizer acknowledges and agrees that Marketing Manager's ability to provide access to the Premises and the Services is contingent upon Organizer's timely performance of Organizer's obligations under this Agreement and Organizer's failure to perform any of its obligations shall be a material breach of this Agreement. 5. MARKETING MANAGER'S OBLIGATIONS. Marketing Manager shall review and approve in writing, in its sole discretion, all Event Elements. Marketing Manager reserves the right during the Term to reject any or all Event Elements for any reason or no reason and to curtail or regulate any or all Event Elements including without limitation sound levels thereof and Organizer Parties, at Organizer's expense. Subject to Organizer's obligations set forth in Section 4 of this Agreement and Marketing Manager's approval of the Event, Marketing Manager shall provide to Organizer and each authorized Contractor access to the Premises during the Event Term in accordance with this Agreement. Organizer and each authorized Contractor shall be allowed access to, and use of, the loading dock and parking lot at reasonable times, as determined by Marketing Manager and as needed to perform Organizer's obligations under this Agreement. Marketing Manager shall also provide to Organizer the Services 6. CONTRACTORS. Organizer shall be responsible to procure any and all Contractors necessary for the Event. Organizer shall supply Marketing Manager with a list of all proposed Contractors at least five (5) business days prior to commencement of the Event. The list shall specify the names, addresses and type of each Contractor. Organizer agrees that only Contractors approved by Marketing Manager in writing will be permitted to enter the Premises. Organizer acknowledges and agrees that Marketing Manager shall not approve of, or permit any such Contractor to enter the Premises, until Marketing Manager has received from each Contractor (i) a certificate of insurance evidencing coverage satisfactory to Marketing Manager and listing Marketing Manager as an additional insured and (ii) an original of Exhibit C signed by an authorized representative of each Contractor, without any modification. Any exception or modification to the foregoing requirements shall be in Marketing Manager's sole and absolute discretion. 7. INTELLECTUAL PROPERTY RIGHTS. A. Each party owns and shall retain all right, title and interest in and to its trademarks and service marks (collectively ' Marks") Neither party shall, in any way during the Term or thereafter, directly or indirectly do or cause to be done any act or thing contesting or in any way challenging any part of the other party's nght, title and interest in such party's Marks. Without the prior written consent of Marketing Manager, Organizer shall not while this Agreement is in effect or thereafter, use or permit the use of Marketing Manager's name or the name of any affiliate of Marketing Manager, or the name address or any picture or likeness of or reference to, the Shopping Center(s) in any advertising, promotional, or other materials B. Marketing Manager may make still, digital, video and/or photographic images or recordings of the Shopping Center which may include the Event Elements, Organizer's Marks and/or other materials of Organizer s displayed at the Shopping Center during the Term. Marketing Manager shall have the right to use such images or recordings for purposes of promoting the Shopping Center(s) and marketing activities at the Shopping Center(s). 8. REPRESENTATIONS AND WARRANTIES. A. Organizer represents and warrants that (i) the production, operation, broadcasting, advertising and promotion of the Event and the use of the Event Elements as provided in this Agreement will not violate the trademark rights, copyrights, the right of privacy or publicity or constitute a libel or slander, or involve plagiarism or violate any other nghts of any person or entity; (n) it has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms and there are and shall be no agreements (oral or written) which conflict with Organizer's full performance hereof and (iii) it has inspected the Premises and acknowledges that such area is safe and suitable for the Event contemplated hereunder. B. Marketing Manager represents and warrants that it has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms and there are and shall be no agreements (oral or written) which conflict with Marketing Manager's full performance hereof. 9. RESERVED - Intentionally Left Blank 10. LIMITATION ON LIABILITY. Organizer hereby agrees to be solely responsible for any loss or damage to the Event Elements and any other equipment or property of Organizer or the Contractors resulting from the use of the Premises except to the extent such loss or damage is caused by the gross negligence of Marketing Manager. Marketing Manager shall not be liable to any of the Organizer Parties for any loss or damage to any property of any Organizer Parties including without limitation for any removal of such property by Marketing Manager during the Event Term or upon the earlier of the expiration of the Event Term or termination of this Agreement. Except as specifically provided in this Section 10, Organizer Page 2 of 8 11. waives any claim against Marketing Manager for any damage to any property of the Organizer Parties and will obtain a similar waiver from any Contractor. No representation, guarantee, assurance or warranty is made or given by Marketing Manager that the security procedures used by Marketing Manager, if any, will be effective to prevent (i) injury to Organizer any Contractor, guests, or any other person who is or may be in the Shopping Center(s) from time to time or (ii) damage to, or loss (by theft or otherwise) of any property of the Organizer Parties or of the property of any other person who is or may be in the Shopping Center(s) from time to time. ORGANIZER EXPRESSLY UNDERSTANDS AND AGREES THAT MARKETING MANAGER SHALL NOT BE LIABLE FOR ANY INDIRECT INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, LOSS OF DATA, LOSS OF AIR TIME, OR OTHER INTANGIBLE LOSSES (EVEN IF MARKETING MANAGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) THE AGGREGATE LIABILITY OF MARKETING MANAGER FOR ANY REASON AND UPON ANY CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONS IN CONTRACT OR TORT) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED UP TO BUT NOT TO EXCEED, THE AMOUNT ACTUALLY PAID BY ORGANIZER TO PAYEE UNDER THIS AGREEMENT RELOCATION; REMOVAL. Marketing Manager has the right in its sole discretion to relocate the Premises within the Shopping Center(s) for any reason, including but not limited to remodeling or construction, whether temporarily or permanently. In the event of such relocation Marketing Manager shall provide Organizer with notice of the relocation and shall make reasonable efforts to relocate the Premises at Marketing Manager's expense to a location within the Shopping Center(s) that offers comparable exposure to Organizer, as determined by Marketing Manager. If it is not feasible to relocate as determined by Marketing Manager, Marketing Manager shall reimburse to Organizer the unearned portion of the Event Fee paid to Marketing Manager based on the remaining portion of the Term. Such reimbursement shall be the sole and exclusive remedy available to Organizer in the event relocation of the Premises is not feasible. During the Event Term, Marketing Manager has the nght in its sole discretion to remove any or all Event Elements for any reason, including without limitation default by Organizer, or no reason. Marketing Manager shall reimburse to Organizer the unearned portion of the Event Fee paid to Marketing Manager based on the remaining portion of the Term for any removal not caused by Organizer's breach of this Agreement. Such reimbursement shall be the sole and exclusive remedy available to Organizer for such removal of any or all elements of the Event. 12. TERMINATION; FAILURE TO PERFORM. A. Termination for Cause. Unless cured within ten (10) business days of the alleged breach (but in no event later than one (1) business day prior to commencement of the Event) either party may terminate this Agreement upon notice if the other party commits a material breach of this Agreement; or at any time upon written notice if the other party ceases its business operations, becomes insolvent or unable to pay its debts as they mature, makes a general assignment for the benefit of its creditors, is the subject of an appointment of a receiver or trustee for its business at the Shopping Center(s), or files or has filed against it proceedings under any provision of the United States Bankruptcy Code, as codified at 11 U.S C Sections 101, et seq or similar law, as such may be amended from time to time. Any such notice of termination shall identify the Shopping Center(s) to which it applies and specify the alleged breach or cause in reasonable detail. In the event of termination of this Agreement by Marketing Manager pursuant to this Subsection 12A, in addition to any other remedies available to Marketing Manager at law, in equity or otherwise, Organizer shall pay to Marketing Manager the Event Fee. B. Termination without Cause. Marketing Manager may terminate this Agreement immediately upon notice to Organizer at such time as Marketing Manager may elect without cause. If Marketing Manager terminates this Agreement without cause, Marketing Manager shall refund to Organizer the unearned portion of the Event Fee paid to Marketing Manager based on the remaining portion of the Term. 13. GENERAL PROVISIONS. A. Entire Agreement. This Agreement, which includes the exhibits referenced herein and attached hereto, sets forth the entire understanding and agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, representations, warranties understandings and commitments of the parties, whether oral or written with respect thereto. B. Assignment. This Agreement may not be assigned, in whole or in part, by the Organizer without the prior written consent of Marketing Manager. Marketing Manager may freely assign this Agreement to any affiliate or to any other assignee provided that any such assignee (other than an affiliate) agrees in writing to fulfill all obligations of Marketing Manager under this Agreement. C. Notices. All notices, requests and approvals required under this Agreement must be in writing and addressed to the other party's designated contact for notice as set forth on Exhibit A or to such other address as such party designates in writing. All such notices, requests and approvals will be deemed to have been given either when personally delivered or upon delivery by either registered or certified mail, postage prepaid with return receipt requested, or by a recognized Page 3 of 8 commercial courier service providing proof of delivery or, in the absence of delivery, on the date of mailing. Every notice shall identify the Shopping Center(s) to which it applies. The provisions of this Section 13C shall survive termination of this Agreement. D. Governing Law; Disputes. This Agreement shall be governed by, construed and enforced in accordance with the laws of the state of Texas without regard to its choice of law or conflicts of laws provisions. The parties hereby waive trial by jury If either party shall institute any action or proceeding against the other relating to the provisions of this Agreement, the prevailing party in the action or proceeding shall be entitled to recover all reasonable costs and attorneys' fees from the unsuccessful party. E. Reformation and Severability. If any provision or term of this Agreement shall, to any extent, be held invalid, illegal or unenforceable by a court of competent jurisdiction, that provision shall, to the extent possible, be modified in such a manner as to be valid, legal and enforceable but so as to most nearly retain the intent of the parties as expressed herein, and if such a modification is not possible, that provision shall be severed from this Agreement, and in either case the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. F. Waivers; Modification, Amendment. No waiver, modification or amendment of any term or condition of this Agreement shall be valid or of any force or effect unless made in writing, signed by the parties hereto or their duly authorized representatives, and specifying with particularity the nature and extent of such waiver, modification or amendment and the Shopping Center(s) to which it applies. The failure of a party at any time to exercise any of its rights or options under this Agreement shall not be construed to be a waiver of such rights or options or prevent such party from subsequently asserting or exercising such rights or options, nor shall it be construed, deemed or interpreted as a waiver of, or acquiescence in, any such breach or default or of any similar breach or default occurring later. G. Independent Contractor The parties are independent contractors with respect to one another and to this Agreement and shall not be construed to be the agent of the other under any circumstances. Neither party shall make any express or implied agreements, warranties guarantees or representations or incur any debt in the name of or on behalf of, the other or be obligated by or have any liability under any agreement or representations made by the other that are not expressly authorized in writing. H. Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement, except for the obligation to pay, if such delay or failure is caused by a force beyond such party's control. Counterparts. This Agreement may be executed in any number of counterparts and by the parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original and all of which, when taken together, shall constitute one and the same Agreement. Delivery of an executed counterpart of this Agreement by electronic mail or facsimile shall be equally as effective as delivery of a manually executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement electronically or by facsimile shall also deliver a manually executed counterpart of this Agreement; provided, however, the failure to deliver a manually executed counterpart shall not affect the validity, enforceability and binding effect of this Agreement. Page 4 of 8 IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the day and year first above written. ORGANIZER: City of Fort Worth By: Fernando Costa Assistant City Manager Date: 1/1/6 Recommended:% Q8( Brandon Bennett Code Compliance Director Approved as to Form: jeri Arthur N Bashor Assistant City Attorney Mary J. Kayser City Secretary � a Imo M&c nEQuxRED r. nm * •• a - a - -• ...un ••T 1 MARKETING MANAGER: Hulen Mall, LLC By: • Authorized Signatory • a irrn1 )1/49)),,A, OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX • Page 5 of 8 EXHIBIT A SHOPPING CENTER(S); EVENT TERM. Owner Entity: Property Name. HULEN MALL, LLC Hulen Mall 4800 S. HULEN ST SUITE 250 GENERAL GROWTH MGMT OFFICE FORT WORTH, Texas 76132 Date / Time Location(s) /Event Elements Attn: Kim Hill p: (817) 953-9606 e: kimberly.hill@generalgrowth.com 11/16/2015 - 12/14/2015 Hulen Mall (4263) - LL - Center Court - Interior Seating Area / Event Up to 10'x10' (4 staff max.) 2. EXPIRATION DATE. 12/14/2015 3. EVENT. One time pet adoption in conjunction with Pet Night.; Client will bring adoptable puppies and kittens along with volunteers to walk animals on leash. EVENT FEE; PAYMENT SCHEDULE. Total Fees: $0.00 Invoice Date Pymt 1: 11/16/2015 Due Date 11/16/2015 Revenue Account Code: 42505 Events, Sampling & Tours 5. PAYEE(S); ADDRESS(ES) OF PAYEE(S). n/a Amount Sales Tax Total Amount $0.00 $0.00 $0.00 6. DELIVERY DATE. 11/09/2015 7. EVENT ELEMENTS. one table, 3 chairs. 8. SERVICES. Obligations of Marketing Manager: Provide space for event, 1 table and 3 chairs and 1-22x28 sign holder Marketing Manager will be responsible for providing the following services and/or benefits to Organizer: Marketing Manager Production/Construction of Materials Responsibilities: na Marketing Manager Installation of Materials Responsibilities* Marketing Director responsible for table, chairs and 22x28 sign holder at the end of each event. Marketing Manager Maintenance of Materials Responsibilities: Marketing Director responsible for maintenance of display Marketing Manager Removal of Materials Responsibilities: 11/1012015 Holiday Pet Adoption Hulen Mall Deal ID:S0171952 Page 1 of 2 Eileen Neighbors Marketing Director responsible for removal of all program elements. Marketing Manager Return of Materials Responsibilities: n/a N umber of Electrical Outlets Required: N umber of Tables Required: N umber of Chairs Required: N umber of Security Guards Required: N umber of Platforms/Stages Required: Table Skirting Required: Obligations of Organizer: Fort Worth Animal Care and Control (Client) will be responsible for holding a turn key pet adoption on November 9, 2015. Client will provide pets ( puppies and kittens), table cover, 22x28 sign and volunteers to walk animals on leash. Organizer will be responsible for providing the following services and/or benefits to Marketing Manager: O rganizer Production/Construction of Materials Responsibilities: Client will provide 22x28 signage for the event to be placed as advertisement. Organizer Installation of Materials Responsibilities: Client to set up their equipment prior to mall opening on days of event. O rganizer Maintenance of Materials Responsibilities: n/a Organizer Removal of Materials Responsibilities: Client to remove any personal equipment and all trash at end of events O rganizer Return of Materials Responsibilities: na 9. NOTICE ADDRESSES. (a) Marketing Manager: 0 Descriptions of Electrical Outlets Required: n/a 1 Description of Tables Required: Table to display and process paper work for pet adoptions 3 Description of Chairs Required: three 0 Description of Security Guards Required: n/a 0 Description of Platforms/Stages Required: zero n/a Hulen Mall 4800 S. Hulen St., 250 GGP Mgmt Office Fort Worth, TX 76132 With copy to: General Growth Properties 110 N. Wacker Drive Chicago IL 60606 Attn: Legal Department - Corporate Contracts and Securities (b) Organizer City of Fort Worth 1000 Throckmorton St Fort Worth TX 76102 Attn: Brandon Bennett 11/10/2015 Holiday Pet Adoption Hulen Mali Deal ID:S0171952 Page 2 of 2 Eileen Neighbors EXHIBIT B FORT WORTH March 13, 2015 RE- Request for Proof/Documentation of .Insurance City:Of Fort North's Seif-funded insurance Program Greetings Per our telephone conversation. on today, .please accept this correspondence, :pursuant. to your request for documentation ,of the City of :Fort VVorth's insurance program. The City of Fort Worth is a self -funded governmental entity, subject to statutory tort laws_ The City does not maintain a commercial policy of general liability insurance and/or auto liability insurance. The City does not offer Personal Injury Protection or Linderinsured Motorists Coverage. Iri the event there are any -questions regarding the City of Fort Worth's insurance program, or if I may be of additional assistance, please contact me at the address provided, or phone direct to (817)392-7773 or email, Iynn.downey a@fortworthgov.org. Thank you for. your tirne and attention. Both =are appreciated. On behalf of the City of Fort Worth, we took forward toa continued business relationship. Sincerely, Lynn Downey, Subrogation Analyst FINANCIAL MANAGEMENT SERVICES RISK MANAGEMENT DIVISION • THE CITY OF FORT WORTH * 1000 THROCKMORTON STREET )1r FORT. WORTH. TEXAS 76102 1(817) 392-1206 * FAX (817) .392-5874 Lyn n. p own ey©fo rhvo rthtexa s. g ov Page7of8 Page 8 of 8