HomeMy WebLinkAboutContract 45418 CITY SECRETARY
CONTRACT Mi.
TRUST FUND EVENT SUPPORT CONTRACT
This TRUST FUND EVENT SUPPORT CONTRACT ("Agreement") is made and
entered by and between the CITY OFFORT WORTH (the "City"), a horne-rule municipality
organized under the laws of the State of Texas and APPALOOSA HORSE CLUB (ApKC)
("Company").
RECITALS
The City and Company hereby agree that the following statements are true and correct
and constitute the basis upon which the City and Company have entered into this Agreement..
A. Company operates the ApHC Nationals & World Championship Youth Show (the
"Event"), which specific Event i's held not more than one time in Texas or an adjoining state in
any year.
Bi. Company conducted a highly-competitive,, multi-state, site-selection process
pursuant to an application by the City to evaluate the proper venue to conduct the Event and has
chosen the Will Rogers,Memorial Center to serve as the sole venue for the Event.
C. Company has engaged Gerald L. Grotta, Ph,.D. of Grotta Marketing Research
("Grotta") to prepare an Analysis of the Economic Impact of the Event for 'purposes, of
submitting to the Texas Comptroller of Public Accounts, (the "Comptroller") to determine
eligible Texas state tax revenues generated by the Event.
Do TEX.REv. CIV. STAT. art. 5190.14, § 5C, as amended as it may be amended from
time to time) (,the "Act") authorizes the Comptroller to establish the Event Trust Fund (the
"Fund"). Funds deposited into the Fund may be used by the City to fulfill its obligations Linder
an event support contract, as defined in the Act, governing the Event. This Agreement is
intended to serve as such event support contract.
E. The Comptroller has, pursuant to subsection (b) of the Act, analyzed the
0 .ai-1 increase in certain sales and use,0 hotel occup
incrementancy and mixed, beverage tax receipts to
be collected by or on behalf of the City and the State of Texas directly attributable to the
preparation for and presentation, of the Event and related activ ities.
F. Based on its analysis, the Comptroller, by letter to City dated February 1.31, 20,14,
has Clete fined that it will deposit $130, of State funds into the 'Fund 'if matched by
$20,874.0101 I*n remittances, by or on behalf of the City, for a total Fund amoiunt of$1511,3314.010.
As an endorsing MUnicipality under the Act, the City has or will remit $20,874.00 to the
Comptroller foir deposit into the Fund. Funds deposited into the Fund may be used by the City to
M fulfill its obligations under an event support contract, as defined in the Act, governing,the Event.
M This Agreement is intended to serve as such event support contract.
M
X
>0 RD
OFFICIAL RIECO
CITYSECRETA
t*112 Trust Fund Evient Support Contract with Appaloosa i-forse Club AM f9
C= FT.WORTH,TX
The Act provides that the money in the Fund may be used for ""...the payment of
costs relating to the preparations necessary for the conduct of-the event and the payment of costs
of con-dUCting the event, including improvements or renovations to existing facilities or other
facilities and costs of acquisition or construction of new facilities or other facilities" the
"Permissl'ble Uses").
H. The obligations of the Parties under the Agreement are set t"Orth in Section 5,,
which the Parties agree are, without limitation, necessary for the City to provide incremental
services necessary for the Event as well as other costs necessary for it to host the Event and
for Company to conduct the Event.
1. Pursuant to Resolution No. 3513-08-2007 adopted on AugLISt 14, 2007, the City
Council of the City has authorized the C'i'ty Manager to negotiate agreements that promote events,
beriefittling the City and secured, in pail, on account of the Fund and the provisions of the Act.
NOW, THEREFORE, for and in consideration of the premises, undertakings, and
mutual covenants, of the parties set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby,acknowledged, the parties agree as follows:
AGREEW,jN'T
if RECITALS.
The parties agree that the recitals set forth above in this Agreement are true and correct,
and the representations,, covenants, and recitations set forth therein are made a part hereof for all
Purposes.
20 'TERM.
This Agreement is effective as of February 1.3, 2014 and shall remain, in full force and
effect until the later of(i) ',December 31, 2014 or (ii) the date as of which all funds have been
disbursed in accordance with the Act and with this Agreement, unless terminated earlier pursuant
to the tennis of this Agreement.
3. APPLICATION FOR EVENTTRUSTFUND DISRURSEMENT.
The City has previously applied to the Comptroller for the creation of one or more Events
Trust Funds(each an "ETF" for the Event under the provisions of Act.
4. TRUST F DEPOSIT.
In consideration of Company's selection of Will Rogers Memorial Center as the sole site
for the Event, the City will remit a total of$20,874.00 for the Event to the Comptroller, as set
forth in the February 13, 2014, letter that was issued by the Comptroller eshmating the
incremental increase in tax revenue under the Act as a result of the Event and setting forth the
contribution to-the Fund by the City (the "City Remittance" . The City Remittance is intended to
trigger the State of Texas, contribution to the ETF(s,) under the terms of the Act. The City
Trust Fund Event Support Contract with Appaloosa Horse Club Page 2 of 9
Remittance plus the contributions by the State of Texas to the ETF(s) in accordance with the Act
shall be referred to herein as the Total.Fund Amount."
5. GENERAL OBLIGATIONS OF THE PARTIES�.
a. Company. Company is obligated to hold and conduct the Event at the Will
Rogers Memorial Center June 23 - July 5, 2014. Company also agrees that the covenants and
promises made in this Agreement, including, but not limited to, the Company's expenses set
North in this Section are necessary to prepare for and conduct the Event.
b. .
(i) The City is obligated to host the Event.
(11) The parties recognize that the Company is the Event expert and has the
structure and mechanisms in place to properly and adequately perform tile
functions necessary to prepare for and conduct the Event., In addition to
hosting the Event, the City's obligation under this Agreement shall be to
pay the Company for the necessary, reasonable, and actual expenses
required to prepare for and conduct the Event as a means to reimburse the
Company to help cover the costs of the Event in areas of which the City
lacks expertise. These expenses may include, but are not limited to,, the
following:
(A) Advertising and marketing promotions of the Event, including
printing and production costs-,
(B) Awards distributed at the Event,
(C) Cost of specialized arena footing used for competition;
114.4 cAf
(D,) Acquisition of cattle to be used in, competition and practice as sel,
forth ]in Company's,rules-,
(E) Rental cost of equipment for the Event,
(F) Officials,judges and staff, as required,-,
(G) Security and paramedics,
(H) On site veterinarian*,
1), Consultant fee to assist with the request and administration to
establish an event support fund; and
J) Other expenses required to successfully and safely conduct the
Event.
(iii) The Company shall provide invoices to the City for expenses incurred for
the Event. The Company shall provide any supporting expense documentation as
I f
required by the City or as requested by the Comptroller to the full sat'sf action o
both the City and the Comptroller for the Event. The City will make, payment(s)
to the Company within thirty (3 01) days after receipt of such payment from the
Comptroller in accordance with the terms of m
this, Agreeent. The City will be
responsible for dealing with the Comptroller with respect to disbursements from
the Fund and distributing the Total Fund Amount 'in accordance with the terms of
this Agreement.
Trust and Event Support Contract with Appaloosa Horse Club Page 3 of 9
(1v) Any payments to the Company as set forth in this Agreement are limited
to the iliaxi,nium anlount available from and approved for eventual distribution
from the EJ`F established for the Event and Must be eligible for payment by the
ETF program. Under no circumstances shall the City be obligated to Company
for more than that maximum sum when, and if, received from the 'ETF for the
Event. The Company shall not seek, and will not be entitled to, payment fi-or n the
City for any costs not distributed by the Comptroller from the ETF established for
the Event.
(v) Notwithstanding anything to the contrary, City may withhold all
distribution of payments to Company under this section if Company has any
outstanding obligations, owed to the City pursuant to any contract with the City.
if the City withholds any funds for this reason, then the City shall provide a
written statement to Company, detailing the outstanding obligations. Company
shall have thirty (30) days from the date it receives City's written statement to
cure any such outstanding obligations, ("Cure Period"). The Cure Period can be
extended by written agreement of the 'Parties. Notice shall be as prescribed in
Section 11. If Company cures its outstanding obligations within the Cure Period,
then the City will make distributions from the Total Fund Amount in accordance
with the procedures set forth in in.this Section, which procedures will begin anew
on the date Company cures its outstanding obligations to the City. If Company
fails to cure its obligations within the Cure Period, then this Agreement shall
automatically terminate and Company hereby waives it right to receive any
reimbursement or distribution from the'total and Amount under this Agreement.
6. COMMIT NW TAI' OF COMPANY.
In consideration of the benefits set forth herein, Company will use commercially
reasonable efforts, to conduct the Event during the Term, at Will Rogers Memorial Center.
Company will also cooperate with the City in docurnenting costs incurred by Company for the
Event to evidence the Permissible Uses. Company will pay the City an amo�unt equal to the City
Remittance contemporaneously upon the City's distribution to Company fTorn the Total Fund
Amount in accordance with Section 5 above.
7. DOCUMENTATION.
Company hereby certifies and warrants, that all documentation submitted to the City fully
and accurately represents the actual costs incurred by Company in hosting the Event and is
consistent with the Permissible Uses under the Act. Company shall be liable to the City for any
damages resulting from a breach of this section. This section shall survive the expiration or
termination of this Agreement.
8. NON-EXCLUSIVE REMEDIES.
No remedy herein conferred or reserved is intended to be exclusive of any other available
remedy or remedies, and each and every such remedy shall be cumulative and shall be in
addition to every such remedy given under this Agreement or now or hereafter existing at law or
Tit Fund Event Support,Contract with Appaloosa Horse Club Page 4 of 9
-ty or by statute. It is expressly agreed that the remedy at law for breach by a party of its
in equi
obligati a ons hereunder may be inadequate in view of the complexities and uncertainties in
measuring the actual damages, that would be sustained by reason of either party's failure to
comply fully with each of such obligations. Accordingly, the obligations of each party hereunder
are expressly made enforceable by specific perforinance. If it becomes necessary for any party
to this Agreement to bring suit to enforce or interpret the provisions hereof, the prevailing party
to such suit shall be entitled to its reasonable and necessary attorney's fees and costs.
9. TERMINATION FOR CAUSE.
this A
The City may terminate tnIS Agreement if Company falls, to comply with any term,
provision, or covenant of this Agreement in any material respect. If an event of default occurs,
City shall give written notice that describes the default in reasonable detail to the Company. The
Company must cure such default within thirty (30) calendar days after receiving notice from
City, unless otherwise agreed to in writing by the parties.
10�. SEVERABILITY.
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under
present or future laws, the legality, validity, and enforceability of-the remaining provisions of
this Agreement shall not be affected thereby, and this Agreement shall be liberally construed so
as to carry out the intent of the parties,to it.
11. NOTICES.
Any notice communication I'S
,, request, or other commu i ion required or permitted to be given, under this
Agreement shall be given in writing by delivering it against receipt for it, by depositing it with an
overnight delivery service or by depositing it in a receptacle maintained by the United States
Postal Service, postage prepaid, registered, or certified mail, return receipt requested, addressed
to the respective parties at the addresses shown herein (and if so given, shall be deemed given
when mailed). Notice sent by any other manner shall be effective upon actual, receipt by the
party to be notified., Actual notice, however and from whomever given or received, shall always
be effective when received. Any party's,address for notice may be changed at any time and from.
time to time, but only after thirty (30) days" advance written notice to the other parties and shall
be the most recent address furnished in writing by one party to the other parties,. The giving of
notice by one party which is not expressly required by this Agreement will not obligate that party
to give any future notice.
C1,117Y.. APIPALOOSA HORSE CLUB*.
City of Fort Worth Appaloosa Horse Club (ApHC)
Attn: Director,Public Events Dept. Attn,-. Steve Taylor,CEO
100,0 Throckmorton 2720 W. Pullman Rd
Fort Worth, TX 76102 Moscow, I'D 83843
With copies 10:
the City Manager and
Trust Fund Event Support Contract with Appaloolsia Horse ClUb Page 5 of 9
the City Attorney
at the same address
12's, COMPLIANCE W1rfH LAWS, ORDINANCESj RULES A REGULATIONS.
This Agreement Is subject to all applicable tederal, state, and local laws, ordinances,rules
and regulations, including, but not limited to, all provisions of the City's Charter and ordinances,
as amended; provided, however, that any future Charter or ordinance amendment shall not be
deemed to modify, amend, or negate any provision of this,Agreement.
13. GOVERNMENrrAL POWERS.
It is understood that by execution of this Agreement, the City does not waive or surrender
any of its governmental powers or immunities.
14. NO WAIVER.
The fallure of"any party to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's
right to insist upon appropriate performance or to assert any such right on any future occasion.
15, VENUE AND JURISDICTION.
If any action, whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement, venue for such action shall He in state courts located in Tarrant
County, Texas or-the United States District Court for the Northern District of Texas—Fort Worth
Division. 'I"his:Agreement shall be construed in accordance with the laws of the State of Texas.
16. NO THIRD-PARTY RIGHTS,,
The provisions and conditions of this Agreement are solely for the benefit of the City and
Company and any lawful assign or success,o�r of Company, and are not intended to create any
rights, contractual or otherwise, to any other person or entity.
17. FORCE MA3EURE.
It is s expressly understood and agreed by the parties to this Agoyeement that lif the
performance of any obligations hereunder is, delayed by reason of war, civil commotion, acts of
God., inclement weather, or other circumstances that are reasonably beyond the control of the
party obligated or permitted under the terms of this Agreement to do or perform the same,
regardless, of whether any such circumstance is similar to any of those enumerated or not, the
party so obligated or permitted shall be excused from doing or performing the same during such
period of delay, so that the time period applicable to such performance shall be extended for a,
period of time equal to the period such party was delayed.
Trust Fund Event Support Contract with Appaloosa Horse Club Page 6 of 9
INTERPRETATION,,,
In the event of any dispute over the meaning or application of any provision of this
Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly
fo�r or against any party, regardless of the actual drafter of this Agreement.
19, CAPTIONS.
Captions, and headings used in thi's Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
20. ENTIRETY OF AGREEMENT.
This Agreernent, including any exhibits attached hereto and any documents incorporated
herein by reference, contains the entire, understanding and agreement between the City and
Company, and any lawful assign and successor of Company, as to the matters, contained herein.
Any prior or contemporaneous oral or written agreement is hereby declared null and void to the
extent in conflict with any provision of this Agreement. This Agreement shall not be amended
unless, executed in writing by all parties.,
21, COUNTERPARTS.
This Agreement may be executed in any number of counterparts with the same effect as
if all of the parties had signed the same docurnent. Such executions may be transmitted to the
other party by digital scan or facsimile and such scanned or facsimile execution shall have the
full force and effect of'an original signature. All fully executed counterparts, whether original
executions or scanned or facsimile executions or a combination,
shall be construed together and
shall constitute one and the same agreement.
22. AMENDMENT,
No amendment, modification, or alteration of the terms of this Agreement shall be
binding, unless, the same 'I's in writing, dated subsequent to the date hereof, and duly executed by
the Parties hereto.
23, INDEMNIFICATION AND RELEASE,
a. COMPANY COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE,, CITY
FROM AND AGAINST ANY AND ALL CLAIMS, LEA WS" JUDGMENTS,
ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES
(INCLUDING, BUT NOT LIMITED TO, ATTORNEYIS FEES AND: COSTS OF
DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS
OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY OR MO NE T LOSS,OR OTHER HARM FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARAC TE-14R, WHETHER
REAL OR ASSERTED, ARISING OUT OF, IN CONNECTION WITH OR RESULTING
FROM ANY ACT, ERROR, OR OMISSION OF COMPANY AND ITS RESPECTIVE
Trust and Event Support Contract with Appaloosa Horse Club Page 7 of 9
OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS9 PARTNERS, AND
REPRESENTATIVES INCONNECTION WITH THE EXECUTION, PERFORMANCE,
ATTEMPTED PERFORMANCE,OR NONPERFORMANCE OF THIS AGREEMII�jNT,
b. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR
AGAINST THE CITY IN CONNECTION IT14 ANY SUCH LIABILITY OR CLAIMI
COMPANY, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR
PROCEEDING, AT COMPANY9S EXPENSE, BY OR THROUGH ATTORNEYS
REASONABLY SATISFACTORY TO CITY*
C. IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW
OR HEREAFTER IN EFFECT AND AFFECTING THE VALID11TY OR
ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS
SECTION 23, SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE
INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE
INDEMNIFICATION OBLIGATION TO THE MI I NIMUM EXTENT NECESSARY TO
BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF
SUCH LIMITATIONS, AND AS SO, MODIFIED,, THE INDEMNIFICATION
OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFrKCT.
d. Company agrees to and shall release City from, any and all liability for any
damage or loss sustained or caused by Company in connection with or incidental to performance
under this Agreement.
e. This section shall survive the expiration or termination of this Agreement.
2418, AUDIT.
Company agrees that City and its internal auditor will have the right to audit, which shall
include, but not be limited to, the right to complete access to and the right to examine, the
financial and business records of Company that relate to this Agreement, including, but not
limited to, all 'necessary books, papers, docurnents, records, and personnel, (collectively
"Records") in order to determine compliance with this Agreement. The Company shall make all
Records, available to City at 1000 Throclunorton Street, Fort Worth, Texas or at another location
in City acceptable to both parties within thirty (3 0) days after notice by City and shall otherwise
cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this
section shall survive expiration or earlier termination of this, Agreement.,
25. ASSIGNMENT.
Neither party hereto shall assign or transfer its interest herein without prior written
consent of the other: party, and any attempted assignment or transfer of all or any part hereof
with ut such prior written consent shall be void. This Agreement shall be binding upon and
shall inure to the benefit of City and Company and its respective successors and perm*tted
ass,igns,.
Trust Fund Event support Contract with Appaloosa Horse Club Page 8 of 9
260 'AUTHORIZATION.
By executing this Agreement, Com any"s agent affirms that he or she is authorized by
the Company to execute this Agreeme nt and that all repIresentations made herein with regard to
Company's identity, address, and legal status (corporation, partnership, 'Individual., dha, etc.) are
true and correct.
7. REVIE W OF COUNSEL.
The Parties acknowledge that each :party and its counsel have reviewed and revised this
Agreement and that the n rnial riles of construction to the effect that any ambiguities are to he
resolved against the drafting party shall not he employed in the tnterpIretat'Ion of this Agreement
or exhibits hereto.
EXECUTED to be EFFECTIVE as of the date set forth Section 2 of this,Agreement.*
CITY OF FORT WORTH.- APPALOOSA HORSE CLUB
Ale
y. B :
Sn n lams Steve`faylor
Assistant City Manager CEO
Date: ate:
APPROVED AS TO FORM A�1,,,_
le e. allach... ORr
IS
ry
Assistant City Attorney
ATT
N 0 yI
W :
0 w
Mary J. S�T m +, r�r�
,mow � u" f 40
City Sec ta•r ry
Contract Authorization:
City,Council Resolution Number 3513-08-2007
[OFFICIAL RECORD
CITY SECRETARY
T7
WORI
H IMCI
9
Trust Fund Event SUpport Contract with Appaloosa Horse Club Re WORTHI;"9 9