HomeMy WebLinkAboutContract 49610 �8
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CITY SECRETARY
��O CONTRACT NO._
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SETTLEMENT AGREEMENT AND RELEASE
's Settlement Agreement and Release ("Agreement") is made and entered in o this
S of �2k 1- 2017, ("Effective Date")by and between the City of Fort Worth, a home-rule
municipab organized under the laws of the State of Texas, acting by and through its dt ly authorized
Assistant City Manager, and Phoenix Ent. Media Group, LLC, (formerly Phoenix E itertainment
Media Group, LLC) a Texas Limited Liability Company, acting by and through its diu ly authorized
representatives.
A.
Definitions
In addition to the terms defined in the body of this Agreement,the following terms hall have the
definitions ascribed to them as follows:
"City"means the City of Fort Worth,Texas.
"PEMG" means Phoenix Ent. Media Group, LLC, (formerly Phoenix Entertaitunent Media
Group, LLC) a Texas Limited Liability Company, and its partners, representatives, memb s, managing
members, officers, managers, proprietors, directors, employees, representatives, agent , subsidiary
organizations,parent organizations,successor entities,assigns,predecessors,stockholders,a nistrators,
contractors,and related companies.
"License Agreement" means collectively Convention License Agreement Numbe 18698-2, as
amended by Convention License Agreement Number 18698-2-A1, A2, and A3, a Licens Agreement
between the City and PEMG for use of the Fort Worth Convention Center.
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"License Agreement Fees"means those fees,whether explicitly stated or to be incurr' d as a result
of PEMG's of the Fort Worth Convention Center, set forth in the License Agreement that P EMG agreed
to pay to the City for the use of the Fort Worth Convention Center to host its annual event k nown as"A-
Kon 28", which includes, without limitation, all fees for facility rentals, parking fees, food ind beverage
minimums, commercial exhibitor and vendor space, convention center preparation and clew-up, and all
other fees.
"Parties"means the City and PEMG.
Recitals
WHEREAS, the City and PEMG entered into Convention License Agreement("CL ")Number
18698-2 on or about December 3,2016,for the purpose of allowing PEMG to host its annual `A-Kon 28"
event at the Fort Worth Convention Center("FWCC") from June 8, 2017 through June 12, 017 ("2017
Event");
WHEREAS, pursuant to the License Agreement, PEMG agreed to pay the C ty separate
nonrefundable payments of the facility rental fee prior to the start of the 2017 Event ($6,755.00 on or
before December 9,2016; $30,443.00 on or before March 31,2017; and the final payment o $30,442 on
or before May 7,2017);
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CII Y SECRETARY
.WORTH,TX
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WHEREAS, in paragraph 3D of the License Agreement,PEMG agreed to spend minimum of
$350,000 on food and beverage with an authorized FWCC caterer;
WHEREAS, PEMG agreed that, if they failed to spend the full $350,000.00 on food and
beverage, then PEMG would pay the City an amount equal to the difference between th $350,000.00
minimum and the actual food and beverage ordered;
WHEREAS,PEMG also agreed to pay, in full, any additional remaining balance ed after the
event which included, without limitation, charges for additional facility rentals, cony tion center
preparation and clean-up,parking,and all other fees that were due;
WHEREAS, on April 23, 2017, the Parties entered into CLA Number 18698-2- 1, whereby
PEMG agreed to pay the City for 400 additional parking spaces in the Houston Street Gar ge at $22.00
per space for each of the four days of the 2017 Event;
WHEREAS,on April 23,2017,the Parties also entered into CLA Number 18698-2 whereby
PEMG agreed to pay the city$8,000 as a concession buyout limited to four specific vendors;;
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WHEREAS, pursuant to the License Agreement, PEMG paid the separate ficility rental
installment payments of$6,765.00, $30,443.00, and $30,44200, respectively, in a timely anner, for a
total of$68,650.00;
WHEREAS, PEMG held the 2017 Event at the FWCC from June 6, 2017 thro June, 12,
2017,which includes move in and move out dates;
WHEREAS, PEMG failed to spend the full $350,000.00 minimum requirement or food and
beverage, only spending $205,543.35; therefore, PEMG owed the City $144,456.65 ( 350,000.00-
$205,543.35);
WHEREAS,an additional$68,986 was also owed by PEMG,consisting of charges i eluding the
remaining parking obligation agreed upon in CLA Number 18698-2-A1,the buyout concessi n fee(for 3
instead of 4 vendors), for a total of$6,000 agreed upon in CLA Number 18698-2-A2, re tal fees for
tables,chairs,and stages,and set up fees for the banquet and conference rooms in the FWCQ
WHEREAS,on June 28, 2017,the City sent a final invoice to PEMG, detailing the remaining
amounts owed pursuant to the terms of the License Agreement,said amount totaling$213,442 65;
WHEREAS,PEMG has failed to pay any sums owed within a timely manner after r ceiving the
final invoice and is therefore in breach of the License Agreement;
WHERE AS, on August 18, 2017, PEMG officially changed its legal name,throug the Texas
Secretary of State's office, from Phoenix Entertainment Media Group, LLC, to Phoenix I Media
Group,LLC.
WHEREAS, to settle any claim for damages that the City may have thereunde up to the
Effective Date of this Agreement for unpaid License Agreement Fees for the 2017 Event, EMG has
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agreed to pay the City$50,559.00 for food and beverage,and$33,986.00 for all other char es(for a total
of$84,545.00);
WHEREAS, PEMG also commits to holding its annual "A-Kon"Convention,or s 'lar event if
"A-Kon" ceases to exist at the time, at the FWCC for the next seven (7) years and agr s to execute
separate license agreements with the City concerning the same;
WHEREAS, PEMG will have thirty (30) days from the Effective Date of this agr ement to pay
the City the total amount of$84,545.00 and to execute 7 separate license agreements to ho d its event at
the FWCC for 2018,2019,2020,2021,2022,2023,and 2024;
WHEREAS, except as may be set forth below in the terms of the Agreement,the arties hereby
agree that the following terms and conditions shall constitute full and final settlement of any"nd all issues
associated with the 2017 Event for the License Agreement;
C.
Agreement.Release,&Covenants
NOW, THEREFORE, the Parties hereto, in consideration of the mutual coven is set forth
herein and intending to be legally bound hereby,stipulate and agree as follows:
I.
Incorporation of Recitals
1. The recitals set forth above are true and correct and form the basis upon whithe Parties
have entered into this Agreement and are incorporated herein by reference.
II.
Settlement and Release of Claims
1. PEMG does hereby agree to pay the City EIGHTY-FOUR THOUS ND FIVE
HUNDRED AND FOURTY-FIVE DOLLARS AND NO CENTS ($84,545.00). This sum re resents the
combined agreed settlement amount between the City and PEMG for food and bever e costs at
$50,559.00 and other fees at$33,986.00.
2. Further, PEMG also commits to holding its annual "A-Kon' Convention or similar
event if"A-Kon" ceases to exist at the time, at the FWCC for the next 7 years, and execute separate
license agreements with the City to hold these events at the FWCC in 2018, 2019, 2020, 021, 2022,
2023,and 2024("Future License Agreements").
3. PEMG will have 30 calendar days from the Effective Date of this Agreement o fulfill its
obligations under section C(11)(1) and the execution of the Future License Agreements under C(11)(2) of
this Agreement.
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4. In the event PEMG fails to pay the entire $84,545.00 within 30 calendar 4 lays from the
Effective Date of this Agreement,PEMG shall be liable for paying the entire balance origi ially owed to
the city from the License Agreement, consisting of$213,442.65,within 30 calendar days a fter receiving
written notification by the City.
5. A breach or default by PEMG of any of the Future License Agreements constitutes a
contemporaneous breach of this Agreement. In the event that any of the Future License AgTeements are
terminated in accordance with its respective terms and conditions due to cancellation,Brea h, or default
by PEMG,then PEMG shall be liable for payment of the full$213,442.65(less any paymeni s received by
the City per the terms of this Agreement) owed pursuant to the License Agreement,which shall be due
and payable to the City within 30 calendar days after written request from the City.
6. Upon full receipt of all amounts due to the City in section C(I1)(1)of this A geement and
upon PEMG's fulfillment in adhering to its obligations under section C(I1)(2) of this Aleement, the
Parties hereby COMPROMISE, SETTLE, RELINQUISH, RELEASE, ACQUIT, anc FOREVER
DISCHARGE each other from and against any and all claims, demands, debts, liens, co , expenses,
actions,and causes of action of whatsoever nature,description of character,whether in tort in contract,
or by virtue of the common law, statute, or regulation, known or unknown, heretofore exis ing between
the City and PEMG,whether known or unknown,which may have accrued or may accrue,o i account of,
arising from, or in any manner growing out of, relating to, resulting from, or in any way onnected to
portions of the License Agreement pertaining to the payment of the License Agreement Fees for the 2017
Event and any related transactions and occurrences including, but not limited to, any and 11 claims for
exemplary damages, consequential damages, contractual damages, economic loss, attorney's fees, and
any and all damages recoverable under the laws of the State of Texas and any and all othei statutory or
common law legal damages,known or unknown.
7. Notwithstanding anything to the contrary herein, Sections 25 (Indemni cation), 26
(Insurance), and 28 (Federal Copyright Act) of the License Agreement shall not be affe ted by this
Agreement and shall remain in full force and effect in accordance with the terms of the License
Agreement.
8. The Parties warrant that no promise or inducement has been offered except as set forth
herein; that this Agreement is executed without reliance upon any statement or represent tion of any
person or Party's release, or its representatives, concerning the nature and extent of the los es, injuries,
damages,or legal liability therefore; and that the acceptance of the consideration set forth he in is in full
accord and satisfaction of all claims set forth herein.
7. It is understood that this is a compromise of a claim. The Parties desire to compromise
and settle those matters and things set forth herein to avoid the hazard, inconvenience, uncc rtainty, and
expense of litigation.
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8. The Parties represent and warrant that they are the sole owners of the claims, causes of
actions, and rights-in-action being released herein, and they have not transferred, assigned or otherwise
encumbered said claims or any part thereto.
9. The Parties hereto shall not assign or transfer their interests and oblig'tions of the
settlement set forth in this Agreement without the prior written consent of the other Party, and any
attempted assignment or transfer of all or any part hereof without such prior written consent hall be void.
IV.
Miscellaneous
1. This instrument contains the entire agreement between the Parties as t the matters
contained herein and the terms of this instrument are contractual and not merely recitals. rhere are no
other agreements, either written or oral, and this Agreement supersedes all earlier rel resentations,
negotiations,or agreements about this matter. The Parties acknowledge that the covenants,r romises,and
representations made herein are binding on,and inure to,the benefit of each of the Parties. As a matter of
clarification, nothing contained herein shall be construed to affect the enforceability or v lidity of the
License Agreement.
2. The Parties represent that they have consulted, or had the opportunity t consult, an
attorney to seek legal counsel regarding the contents and effects of this Agreement. The P rties further
represent that they have been informed of the content and effect of this instrument and that th instrument
is executed as their act and deed and of their own free will.
3. In the event that any provision of this Agreement is held void, oidable, or
unenforceable,the remaining portions shall remain in full force and effect.
4. If any action, whether real or asserted, at law or in equity, arises on the asis of any
provision of this Agreement, venue for such action shall lie in state courts located in T t County,
Texas or the United States District Court for the Northern District of Texas—Fort Worth Di ision. This
Agreement,including any exhibits,shall be construed in accordance with the laws of the State of Texas.
5. The Parties represent and warrant that they are over the age of eighteen (18) years,
competent to execute this Agreement, have carefully read the foregoing Agreement, and know the
contents thereof and have signed the same of their own free will and with the advice oft counsel, if
applicable.
6. This Agreement may be executed in several counterparts, each of which will be deemed
an original, but all of which together will constitute one and the same instrument. A signat a received
via facsimile or electronically via email shall be as legally binding for all purposes as m original
signature.
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7. It is understood that by execution of this Agreement,the City does not waivor surrender
any of its governmental powers or immunities.
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IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective on the
Effective Date,
CITY OF FORT WORTH PHOENIX ENT.MEDIA GROUP,LLC.
by: - by:
l' Su an Alanis Meri Davis
-Rssistant City Manager Member
Date: T a' 'ate I Date: 9
APPROVED AS TO FORM
AND LEGA-1 ITY:
Thomas R.Hansen
Assistant City Attorney
qATr J'.-7 OF
No M&C required 1
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STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of exas, on this
day personally appeared Susan Alanis, 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 for
the purpose and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1.1 day of 2 (�
LINDA M. HIRRLINGER
���Y•'
Notary PubIIC,State of Texas
Comm.Expires 02-02-2018 No Public in and for
Notary ID 12414474.6 The State of Texas
STATE OF §
COUNTY OF C Q(\.'O §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of , on this
day personally appeared Meri Davis, known to me to be the person whose name is subs ribed to the
foregoing instrument and acknowledged to me that the same was the act of Phoenix Ent.M is Group,
LLC., for the purpose and consideration therein expressed and in the capacity therein stated.
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GIVEN UNDER MY HAND AND SEAL OF OFFICE this day ofeS 1 2
o``a'' ,, JERED SPEARS
E,
R...Ue
_2. Notary Public,State of texas :No
tai IC lri anOr
?may Comm.Expires 02-02-2021 ate of
'a1101A, ��` Notary ID 130991097
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