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HomeMy WebLinkAboutContract 32573 CITY SECRETARY CONTRACT NO. FUNDING AGREEMENT BETWEEN CITY OF FORT WORTH AND VAN CLIBURN FOUNDATION, INC. This FUNDING AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in Tarrant and Denton Counties, Texas, whose business address is 1000 Throckmorton, Fort Worth, Texas 76102, acting by and through Richard Zavala, its duly authorized Acting Assistant City Manager, and the VAN CLIBURN FOUNDATION, INC. (the "Foundation"), a Texas not-for-profit corporation, acting by and through Richard Rodzinski, its duly authorized President. In consideration of the mutual covenants, promises and obligations contained herein, the parties agree as follows: 1. FUNDING AND SCOPE OF SERVICES. Pursuant to V.T.C.A., Tax Code Chapter 351 and the Code of the City of Fort Worth ("City Code") § 32-17, the City agrees to pay Foundation during the term of this Agreement one installment of Sixty-two Thousand Five Hundred Dollars ($62,500) from revenue generated by the City's hotel occupancy tax. In return, Foundation will promote artistic and cultural activities to help the City promote tourism and the convention and hotel industries. Specifically, Foundation will bring international attention to the City of Fort Worth through its international piano competitions and offer additional instructional guidance and other educational and aesthetic opportunities for tourists, visitors and convention delegates in Fort Worth. Foundation agrees that expenditures of any funds received hereunder shall be for purposes that fully comply with V.T.C.A., Tax Code § 351.101. In performance of such services, Foundation commits to meet service performance criteria as set out in Exhibit A attached hereto and incorporated herein for all purposes incident to this contract. 2. TERM OF AGREEMENT AND TERMINATION. (a) This agreement shall commence on October 1, 2005, and end on September 30, 2006. The City may terminate this agreement for cause by giving Foundation written notice not less than thirty (30) days prior to the effective date of such termination. (b) If the City exercises its right to terminate this agreement prior to its expiration, Foundation's obligations to the City under this agreement shall continue until the date such termination actually takes effect. On the date of termination, Foundation shall reimburse to the FYI r, {,� City all funds it has received, but not otherwise committed or encumbered by Contract, under this Agreement. (c ) In the event that no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Foundation of such occurrence and this Contract shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 3. PERFORMANCE. (a) In accordance with V.T.C.A., Tax Code § 351.101(a), Foundation agrees that the funds received hereunder may be used for day-to-day operations, supplies, salaries, office rental, travel expenses, and other administrative costs only if those administrative expenses are incurred directly in the promotion and servicing expenditures as authorized under the aforementioned chapter of the Tax Code. Further, in accordance with Tax Code § 351.101(f) Foundation shall not use the funds received hereunder for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. (b) Foundation agrees that it will maintain all funds received hereunder in a separate account. Foundation shall not commingle such funds with any other funds or maintain such funds in any other accounts. In addition, Foundation's expenditure of such funds shall strictly be in accordance with its Budget, attached as Exhibit B and incorporated herein by reference for all purposes. Foundation understands and agrees that upon the acceptance of funds hereunder, a fiduciary duty is created with respect to the expenditure of such funds. (c) Foundation shall submit quarterly financial reports to the City that reflect all receipts and disbursements of funds received pursuant to this agreement. In addition, within thirty (30) days following the end of the City's fiscal year, Foundation shall submit to the City an annual financial report that reflects all receipts and disbursements of such funds received during the term of this Agreement and that sets forth all other material information pertaining to the financial activities and financial condition of the Foundation. (d) Foundation shall submit an annual service performance report to the City that reflect services and activities undertaken by Foundation in performance of this contract, as established in Exhibit A. This report will be signed by a duly authorized agent of Foundation. (e) At any time during the term of this agreement, the City shall have the right to authorize an audit of Foundation's records as they pertain to its receipt and expenditure of funds hereunder. Such audits shall be prepared at the City's expense. However, if any such audit reveals material discrepancies in the Foundation's records, Foundation agrees that it shall reimburse the City for the full costs of such audit. r, 4. BOND HOLDER RIGHTS. The City's obligations and Foundation's rights under this Agreement shall be subordinate to and limited by the terms and conditions of all subsequent City ordinances which authorize the issuance of bonds whose payment is pledged upon the City's hotel occupancy tax. Foundation agrees and understands that rights of the holders of any such revenue bonds shall be superior in all respects to the rights of Foundation. However, the City, to the extent practicable, shall give Foundation as much prior notice as reasonably possible of the City's intent to issue such bonds. 5. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Foundation shall operate as an independent contractor as to all services and obligations performed hereunder, and not as an agent, representative or employee of the City. Foundation shall have the exclusive right to control the details of its operations and activities and shall be solely responsible for the acts and omissions of its boards, officers, agents, servants, employees, contractors, subcontractors and members. Foundation acknowledges that the doctrine of respondeat superior shall not apply as between the City and Foundation its boards, officers, agents, servants, employees, contractors, subcontractors and members. Foundation further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Foundation. 6. INDEMNIFICATION. FOUNDATION HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE RECEIPT OR EXPENDITURE OF CITY FUNDS OR THE PROVISION OF ANY SERVICES HEREUNDER. FOUNDATION COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE RECEIPT OR EXPENDITURE OF CITY FUNDS OR ANY OTHER PROVISION HEREUNDER. 7. ASSIGNMENT. The Foundation shall not assign, sell, convey or transfer its interest under this agreement. Any such attempted assignment of same shall be null and void. 3 CITY SEC AMII 8. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this contract, the City does not waive or surrender any of its governmental powers. 9. NO WAIVER. The failure of the City to insist upon the performance of any term or provision of this agreement or to exercise any right granted herein shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert any such right on any future occasion. 10. VENUE. Should any action, whether real or asserted, at law or in equity, arise out of the terms of this contract, venue for said action shall be in Tarrant County, Texas. 11. SEVERABILITY. If any provision of this agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provision shall not in any way be affected or impaired. 12. ENTIRETY OF AGREEMENT. This written instrument, including any documents incorporated herein by reference, contains the entire understanding and agreement between the City and the Foundation as to the matters herein contained. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties and approved by the City Council of the City. 13. RIGHT TO AUDIT. The Foundation agrees that the City shall, until the expiration of three (3) years after final payment under this Contract, have access to and the right to examine any directly pertinent books, documents, papers and records of the Foundation involving transactions relating to this Contract. The Foundation agrees that the City shall have access during normal working hours to all necessary Foundation facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give the Foundation reasonable advance notice of intended audits. The Foundation further agrees to include in all of its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor involving transactions to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable advance notice of intended audits. 14. NOTICES. Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand-delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other party shown below: City of Fort Worth Van Cliburn Foundation, Inc Richard Zavala, Acting Assistant City Manager Richard Rodzinski, President 1000 Throckmorton 2525 Ridgmar Blvd., Suite 307 Fort Worth, Texas 76102 Fort Worth, TX 76116 817-392-6222 817-738-6536 IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples to become effective for the stated term upon the filing with and assignment of a contract number by the City Secretary's Office of the City of Fort Worth, Texas, o�prnb6- ,A.D. 2005. CITY OF FORT WORTH: VAN CLIBURN FOUNDATION, INC. By: ( By: Ric and Zavala Ric and Rodzinski Acting Assistant City Manager Executive Director ATTEST: By: l 1 \ LVAN City Secretary APPROVED AS TO FORM AND LEGALITY: A 4'. ssistant City Attorn ��t;� `E, 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 Richard Rodzinski, 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 Van Cliburn Foundation, Inc., and that he executed the same as the act of the Van Cliburn Foundation, Inc., for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE thi �iLday of 2005. ?; '" P MARCIA GAROON � t1 NOTARY PUBLIC Notary P lic in and for the State of Texas STATE OF TEXAS '%cr `� MY COMM.EXP. 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 Richard Zavala, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that 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 PFFICE this 2005. 14�-ary Pu and for the tate of Texas CLINTON SPRUILL 11 NOTllll'f PI�tIC$T�1E OF 1E11A!< • COMr1EElON EXPINEI �'►OF SEPTEMBER 15,200sP 6 EXHIBIT A HOTEL/MOTEL OCCUPANCY TAX AGENCY OBJECTIVES AND MEASURES VAN CLIBURN FOUNDATION Mission: The Van Clibum Foundation identifies and promotes the finest talent in classical music worldwide. The Foundation fulfills this mission by producing the quadrennial Van Cliburn International Piano Competition, the biennial International Piano Competition for Outstanding Amateurs, annual concert series, and educational outreach programs for children and adults. Objectives: 1. To foster and encourage the importance and presence of classical music in the community and to identify the world's most promising young pianists. 2. To launch the careers of young concert pianists by providing Cliburn Competition winners with three years of management and pre-arranged performance engagements. 3. To further the promotion of competition winners, the Foundation, and Fort Worth by broadcasting Clibum Competition documentaries, television and radio series, and CD recordings to millions across the United States and around the world. 4. To offer a forum for amateur pianists to compete and perform before an audience. 5. To bring the luminaries of classical music to the Fort Worth stage by producing the annual Cliburn Concerts and Clibum at the Modern concert series. 6. To provide music education in local elementary schools through programs like Clibum Musical Awakenings and Adopt-A-Competitor. Output Measures: Agency Measures Estimated Actual Projected FY2004-05 FY2004-05 FY2005-06 Print,radio advertisements 154 115 325 Press release distribution 6,800 9,100 7,500 Newsletter distribution 15,000 18,000 18,000 3 issues Twelfth Competition Documentary/Encore! N/A N/A 10,000,000 viewers Clibum Concerts 11,000 10,538 12,000 attendance Cliburn at the Modern 800 550 600 attendance Musical Awakenings 4,000 (12,000) 3,088 (9,264) 4,667 (14,000) attendance(x 3 sessions) Please note: The documentary of the Twelfth Competition will premiere in fall of 2005 and the six-part Encore!series will premiere in January 2006,both during the Cliburn's 2005-06 fiscal year. Audience size will be measured with the on at el eseh Wsagea6l. }s9'i12 CIS C t?Ilt °' �f :'.. City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 10/4/2005 DATE: Tuesday, October 04, 2005 LOG NAME: 032005VANCLIBRN REFERENCE NO.: **C-21053 SUBJECT: Authorize the Execution of a Contract with the Van Cliburn Foundation, Inc. RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a contract with the Van Cliburn Foundation, Inc., in the amount of$62,500. DISCUSSION: The City appropriates funds for this program to the agency from a portion of the Hotel/Motel Occupancy Tax receipts. During the FY2005-2006 budget process, the City Council approved funding for the Van Cliburn Foundation, Inc. The Van Cliburn Foundation, Inc., brings both national and international attention to the City of Fort Worth through global marketing projects, television productions and its international piano competition. It is proposed that a contract be executed between the City of Fort Worth and the Van Cliburn Foundation, Inc., for the period of October 1, 2005, through September 30, 2006. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds have been budgeted in the FY2005-2006 Culture and Tourism Fund adopted budget for this expenditure. TO Fund/Account/Centers FROM Fund/Account/Centers GG04 539120 0244000 $62,500.00 Submitted for City Manager's Office by: Richard Zavala (Acting) (6222) Originating Department Head: Bridgette Garrett (8518) Additional Information Contact: Jose Moreno (8349) Logname: 032005VANCLIBRN Page 1 of 1