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HomeMy WebLinkAboutContract 44552-A5 CITY SECRETARY 2 34 5 6 CONTRACT NO. ' �J Q FIFTH AMENDMENT TO CITY SECRETARY CONTRACT N0. 44552 A LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE Q RECEIVED FORT WORTH SYMPHONY ORCHESTRA ASSOCIATION N JUN 2 2 2018 !;;! r CRYOFFORTWORTTHIS FIFTH AMENDMENT TO CITY SECRETARY CONTRACT NUMBER 44552, as O� CITY SECR a, amMd and renewed, ("Fifth Amendment") is made and entered into by and between the City of Fort �l 9$ orth, a home-rule municipal corporation ("City") acting by and through its duly authorized Assistant City Manager, and the Fort Worth Symphony Orchestra Association ("FWSOA"), a Texas nonprofit acting by and through its duly authorized President. WHEREAS, on June 18, 2013, the City and FWSOA entered into a license agreement providing FWSOA with use of a certain portion of Fort Worth Botanic Garden ("Garden") for the purpose of conducting the"Concerts in the Garden"("CITG")series,consisting of performances by the FWSOA and other artists("Event'),the same being Fort Worth City Secretary Contract("CSC")number 44552; and WHEREAS, CSC No. 44552 sets forth consideration for the 2013 Event, including the license fee, reservation fee, and revenue share, with the express provision that the City and FWSOA would negotiate in good faith to modify these fees for future Events; WHEREAS, the parties agreed that any modifications would be set forth in an amendment to CSC No. 44552; WHEREAS, CSC No. 44552 also sets forth a primary term of two calendar years, which commenced on January 1, 2013 and expired on December 31, 2014, and included two consecutive two year renewal options; WHEREAS, on or about February 18, 2014, the parties amended CSC No. 44552 to address fee modifications for the 2014 Event,the same being CSC No. 44552-A1; WHEREAS, on or about April 7, 2015,the parties renewed CSC No. 44552 and further amended it to address fee modifications for the 2015 and 2016 Events,the same being CSC No. 44552-R1A2; WHEREAS, the parties amended CSC No. 44552 a third time to reflect current market conditions related to the sale of merchandise and promotional items at the Event,the same being CSC No. 44552-A3; WHEREAS, the parties amended CSC No. 44552 a fourth time to increase the revenue share paid to the FWBS from one and three quarters percent (1.75%) to two percent (2.0%) for the 2017 and 2018 Events and to exercise the second and final two-year renewal option, to be effective beginning on January 1, 2017 and expiring on December 31, 2018, the same being CSC No. 44552-R2A4 (CSC Nos. 44552, 44552-A1, 44552-R1A2, 44552-A3, and 44552-R2A4 are collectively referred to herein as the "Agreement'); WHEREAS,the parties desire to amend the Agreement to alter the fee arrangements; FIFTH AMENDMENT TO CITY SECRETARY CONTRACT NUMBER 44552 OFFICIAL RECORQ e I of 6 A LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND CITY SECRETARY THE FORT WORTH SYMPHONY ORCHESTRA ASSOCIATION �p + rte a WOR H, Il A WHEREAS,the parties have met all conditions precedent to this Fifth Amendment. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein,the City and the FWSOA do mutually covenant and agree to amend the Agreement as follows: I. Section 4, "Consideration", of the Agreement is hereby amended, in its entirety,to read as follows: 4. Consideration 4.01 License Fee. For purposes of this Agreement, the fee due under this Subsection 4.01 (for any given Event year) shall be referred to as the"License Fee." a. In addition to any other consideration due hereunder, for the 2013, 2014, 2015, 2016, and 2017 Events, the FWSOA shall pay to the FWBS a fee of $1,500.00 per concert date for the use of Tract One and Tract Two, with such funds to be allocated toward maintaining infrastructure and addressing safety concerns throughout the Garden. For the 2018 Event, the FWSOA shall pay to the City a fee of$1,500.00 per concert date for the use of Tract One and Tract Two, with such funds to be allocated toward maintaining infrastructure and addressing safety concerns throughout the Garden. 4.02 Reservation Fee. For purposes of this Agreement, the fee due under this Subsection 4.02(for any given Event year)shall be referred to as the "BGC Fee." a. In addition to any other consideration due hereunder, for the 2013 Event, the FWSOA shall pay FWBS a reservation fee of $900.00 for each date for which FWSOA reserves the entire BGC and associated parking spaces in Tract Three. b. In addition to any other consideration due hereunder, for the 2014 Event, the FWSOA shall pay FWBS a reservation fee of $1,000.00 for each date for which FWSOA reserves the entire BGC and associated parking spaces in Tract Three. C. In addition to any other consideration due hereunder, for the 2015 and 2016 Events, the FWSOA shall pay FWBS a reservation fee of $1,200.00 for each date for which FWSOA reserves the entire BGC and associated parking spaces in Tract Three. d. In addition to any other consideration due hereunder, for the 2017 Event, the FWSOA shall pay FWBS a reservation fee of $1,200.00 for each date for which FWSOA reserves the entire BGC and associated parking spaces in Tract Three. e. In addition to any other consideration due hereunder, for the 2018 Event, the FWSOA shall pay the City a reservation fee of$1,200.00 for each date for which FWSOA reserves the entire BGC and associated parking spaces in Tract Three. 4.03 Revenue Share. a. In addition to any other consideration due hereunder, for the 2013 Event, FIFTH AMENDMENT TO CITY SECRETARY CONTRACT NUMBER 44552 Page 2 of 6 A LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH SYMPHONY ORCHESTRA ASSOCIATION the FWSOA will pay the FWBS one percent (1%) of the gross value of all revenue generated from sales of concert tickets and parking spaces on City- owned property. b. In addition to any other consideration due hereunder, for the 2014 Event, the FWSOA will pay the FWBS one and one-half percent (1.5%) of the gross value of all revenue generated from sales of concert tickets and parking spaces on City-owned property. C. In addition to any other consideration due hereunder, for the 2015 and 2016 Events, the FWSOA will pay the FWBS one and three-quarter percent (1.75%) of the gross value of all revenue generated from sales of concert tickets and parking spaces on City-owned property. d. In addition to any other consideration due hereunder, for the 2017 Event, the FWSOA will pay the FWBS two percent (2.0%) of the gross value of all revenue generated from sales of concert tickets and parking spaces on City- owned property. e. In addition to any other consideration due hereunder, for the 2018 Event, the FWSOA will pay the City two percent (2.0%) of the gross value of all revenue generated from sales of concert tickets and parking spaces on City- owned property. 4.04 Payment Dates. a. For the 2013, 2014, 2015, 2016, and 2017 Event years, FWSOA shall deliver one-half of the License Fee and BGC Fee for the entire CITG season to the FWBS on or before the date of the first concert. No later than the thirtieth(30`h)day after the date of the last CITG concert for the 2013, 2014, 2015, 2016, and 2017 Event years, FWSOA shall pay to the FWBS the balance of the License Fee and BGC Fee as well as all other consideration due under this Agreement. b. For the 2018 Event year, FWSOA shall deliver one-half of the License Fee and BGC Fee for the entire CITG season to the City on or before the date of the first concert. No later than the thirtieth (30`h) day after the date of the last CITG concert for the 2018 Event year, FWSOA shall pay to the City the balance of the License Fee and BGC Fee as well as all other consideration due under this Agreement. 4.05 For all subsequent Events under this Agreement, the City and FWSOA will negotiate, in good faith, all future fees that are the subject of Subsections 4.01 (License Fee), 4.02 (BGC Fee) and 4.03 (Revenue Share). These fees will be set forth in an amendment(s) to this Agreement. If the parties cannot negotiate and agree on such fees prior to December 31 st of each calendar year for the remaining term of this Agreement (including any renewals)then the City will have the option to terminate this Agreement. II. Section 11, "Promotion, Merchandise,and Signage",of the Agreement is hereby amended, in its entirety,to read as follows: 11.01 Unless otherwise agreed to hereunder or in subsequent written documentation between the parties, the FWBS shall have a non-exclusive concessionaire right for the FIFTH AMENDMENT TO CITY SECRETARY CONTRACT NUMBER 44552 Page 3 of 6 A LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH SYMPHONY ORCHESTRA ASSOCIATION Event to sell food from the Botanic Garden Restaurant, rent chairs, provide bug spray, and sell other items approved by the Director. 11.02 FWSOA shall maintain responsibility for, and control of, the creation and design of all graphic artwork, advertising, printed materials, signs, and imprinted souvenir merchandise associated with the CITG. Except as set forth in Section 11.02 of this Agreement, FWSOA shall provide the City with all merchandise to be sold at the Event. Specifically, and without limitation, the FWSOA, at its sole cost and expense, shall design an official CITG T-shirt and provide such T-shirts to the City to be offered for sale by the City. FWSOA shall provide the City with enough such T-shirts to last for the entirety of each yearly Event. FWSOA shall with the City conduct an initial and final inventory of all merchandise provided to the City. At the conclusion of each yearly Event, the FWSOA shall work with the City to provide a full accounting of such merchandise, including but not limited to, net revenue generated from the sale of the merchandise. The FWSOA shall retain ownership of any unsold merchandise and work with the City on the return of any such merchandise. After conducting a full accounting of the merchandise, the FWSOA shall pay to the City 20% of the net revenue from all merchandise sales. FWSOA retains the right to sell CITG branded merchandise at any time except during the annually scheduled dates for the Event. Net revenue shall mean and include the total amount of money received or to be received from all sales, whether for cash or credit, whether collected or uncollected, made as a result of the rights granted herein less expenses and any sales or other taxes imposed by local, state or federal law that are separately stated to and paid by a purchaser of any item. 11.03 The performers at the 2018 Event may sell promotional items. The FWSOA shall manage all aspects of promotional items sold by performers at the Event. 11.04 In the event that the FWSOA becomes aware of a sponsoring person or entity that wishes to sell or otherwise give merchandise to patrons of the Event, the FWSOA will immediately make the Director aware of such sponsor and the merchandise that it wishes to make available. The FWSOA will work with the CITG sponsors to ensure that there are no duplicate or conflicting items. If any of the items duplicate or conflict with the City's items,the FWSOA must compensate the City for any lost revenue. 11.05 The FWSOA shall mention, list and refer to the FWBS and the City as its concessionaires in all its written publications and brochures. The FWSOA shall also mention in its publications that chair rental is available at the concert site. I1.06 The FWSOA shall notify the City and the FWBS when no intermission is planned during a given concert. 11.07 FWSOA may, at its discretion and expense, provide Event banners to City staff so that City staff can hang the banners on the two sets of banner poles in Trinity Park, if those poles are available, and to be hung on the poles at the Botanic Garden Boulevard entrance. It is the responsibility of FWSOA to reserve the banner poles in Trinity Park by contacting the Park and Recreation Department reservationist at La Gran Plaza. All banners must be approved by the Park and Recreation Department prior to being hung. Banners will be hung following City approval, with a goal of having them in place two weeks prior to the first concert. Banners will remain in place until the day the last scheduled concert of the CITG season. FIFTH AMENDMENT TO CITY SECRETARY CONTRACT NUMBER 44552 Page 4 of 6 A LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH SYMPHONY ORCHESTRA ASSOCIATION 11.08 Except as provided above, no banners, advertisements, or signs may be hung from trees, fences, or buildings or be displayed on park property without the express permission of the Garden director. In addition, FWSOA covenants and agrees that no decorative or other material shall be nailed,tacked,screwed,or otherwise physically attached to any part of the City's property without the consent of the Garden director. FWSOA may, at its sole discretion and expense, hang advertisements, banners, and announcements on the stage or on props owned or leased by FWSOA, which shall include, but not be limited to booths and trailers rented from the City, the speaker platforms, and tents used in connection with the Event. 11.09 If an outside vendor is used, FWSOA and the FWBS will jointly review proposals from potential food and beverage vendors, but the FWBS shall retain the ultimate right to select the vendor and to collect any payment that may be required from such a vendor. The FWSOA will manage any outside vendors that deliver pre-ordered food to the concert site and must pay$500.00 to the FWBS for that right. III. MISCELLANEOUS a. All other terms and provisions of the Agreement between the City and FWSOA shall remain in full force and effect except as specifically amended or set forth in this Fifth Amendment. b. All terms in this Fifth Amendment that are capitalized but not defined shall have the meanings assigned to them in the Agreement. [SIGNATURES ON FOLLOWING PAGE] FIFTH AMENDMENT TO CITY SECRETARY CONTRACT NUMBER 44552 Page 5 of 6 A LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH SYMPHONY ORCHESTRA ASSOCIATION IN WITNESS 1WHEREOF, the parties have executed this Fifth Amendment in multiples, this day of l!G(Ak s ,2018. CITY OF FORT WORTH FORT WORTH SYMPHONY ORCHESTRA ASSOCIATION By: ��/�cu..d� By Fernando Costa Name: �- Assistant City Manager Title: Vp of /Am�� e�j�ims I�r Recommended by. tQ211�- OQ- R chard Zavala, Director PaV&Recreation Department APPROVED AS TO FORM AND LEGALITY: Richard A. McCracken ' Assistant City Attorney FORT�0 O: ATTEST: U ary Kays r ' ^ �XP`cJ City Secretary Contract Authorization: M&C: C-26256 (5/14/13);C-27770(6/14/16); C-28374(9/12/17) Form 1295: 2017-252759 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. EFT. RECORD Bob Byers RETARY Botanic Garden Superintendent TH,TX FIFTH AMENDMENT TO CITY SECRETARY CONTRACT NUMBER 44552 Page 6 of 6 A LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH SYMPHONY ORCHESTRA ASSOCIATION CERTIFICATE OF INTERESTED PARTIES FORM 1295 loll Complete Nos.i-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity Tiling form,and the city,state and country of the business entity's place Certificate Number: of business. 2017-252759 Fort Worth Symphony Orchestra Fort Worth,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 08/22/2017 being filed. City of Fort Worth Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or Identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. 44552 2018 Concerts in the Garden Series Nature of interest 4 Name of Interested P Y City, Count ry(place of business) {check applicable) Controlling intermediary Tobin,Becky Fort Worth,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct. ,.�.+*••;:.- MELINDA W HAYDf N >•`,.' �^ Notary Public,State of Texas My Commission Ex lies 100, June to,201 Sign df authorized age7it of contracting business entity AFFIX NOTARY STAMP!SEAL ABOVE Sworn to and subscribed before me,by the said r y /®ilJ�/� this the day of 20_1q to certify which,witness my hand and seal of office. '� ,zj / 1 ,UDS U Signature of officer administering Ath Printed name of officer admini tering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.mus Version V1.0.3337