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HomeMy WebLinkAboutContract 51517 CITY SECRETARY CONTRACT NO.. 5I 517 TRUST FUND EVENT SUPPORT CONTRACT This TRUST FUND EVENT SUPPORT CONTRACT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a home-rule municipality organized under the laws of the State of Texas and ESPN PRODUCTIONS, INC., d/b/a ESPN Events, a Delaware corporation ("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 2018 Lockheed Martin Armed Forces Bowl ("Event"), which specific Event is held not more than one time in Texas or an adjoining state in any year. B. 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 Amon G. Carter Stadium located in Fort Worth, Texas to serve as the sole venue for the Event or the sole venue for the Event in a region composed of Texas and one or more adjoining states. C. The City of Fort Worth prepared an Analysis of the Economic Impact of the Event for purposes of submitting to the Office of the Governor Economic Development and Tourism ("EDT")to determine eligible Texas state tax revenues generated by the Event. D. TEx. REv. CIV. STAT.art. 5190.14, § 5C, as amended (as it may be amended from time to time) ("Act") authorizes the EDT to establish the Event Trust Fund (the "Fund"). Funds deposited into the Fund may be used by the City to fulfill its obligations under 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 EDT has, pursuant to subsection (b) of the Act, analyzed the incremental increase in certain sales and use, hotel occupancy 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 activities. F. Based on its analysis, the EDT, by letter to City dated August 14, 2018, has determined that the State will deposit an estimate amount of$237,532.00 of State funds into the Fund if matched by $38,006.00 in remittances by or on behalf of the City, for an estimated total Fund amount of$275,538.00. As an endorsing municipality under the Act, the City has or will remit$38,006.00 to the EDT for deposit into the Fund. G. 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 conducting the event, including improvements or renovations to existing facilities or other ^'� �'�p�� OFFICIAL RECORD I ' �` Event Support Contract with ESPN Productions,Inc._ESPN November 05,2018 CITY SE agge of T�Y , GS FT. WORTH,TX facilities and costs of acquisition or construction of new facilities or other facilities" ("Permissible Uses"). H. The obligations of the Parties under the Agreement are set forth 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 City to host the Event and for Company to conduct the Event. I. Pursuant to Resolution No. 3513-08-2007 adopted on August 14, 2007, the City Council of the City has authorized the City Manager to negotiate agreements that promote events benefitting the City and secured, in part, 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: AGREEMENT 1. 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. 2. TERM. This Agreement is effective as of August 14, 2018 and shall remain in full force and effect until the later of(i) December 31, 2019 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 terms of this Agreement. 3. APPLICATION FOR EVENT TRUST FUND DISBURSEMENT. The City has previously applied to the EDT for the creation of the Fund for the Event under the provisions of Act. 4. TRUST FUND DEPOSIT. In consideration of Company's selection of Amon G. Carter Stadium as the sole site for the Event, the City will remit a total of$38,006.00 for the Event to the EDT, as set forth in the August 14, 2018, letter that was issued by the EDT estimating 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 Fund under the terms of the Act. The City Remittance plus the contributions by the State of Texas to the Fund in accordance with the Act shall be referred to herein as the "Total Fund Amount." Trust Fund Event Support Contract with ESPN Productions,Inc.—ESPN November 05,2018 Page 2 of 10 5. GENERAL OBLIGATIONS OF THE PARTIES. a. Company. (i) Company is obligated to hold and conduct the Event at Amon G. Carter Stadium on December 22, 2018. (ii) Company also agrees that the covenants and promises made in this Agreement, including,but not limited to,the Company's expenses set forth in this Section are necessary to prepare for and conduct the Event. b. City. (i) The City is obligated to act as the host city for the Event. (ii) The parties recognize that the Company is the Event expert and has the structure and mechanisms in place to properly and adequately perform the 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, including 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) Sanction Fees (C) Rental cost of facilities for the Event; (D) Rental cost of equipment for the Event; (E) Officials and staff hired or contracted specifically for the Event; (F) Security and paramedics; (G) Food provided on-site to event participants or other personnel necessary to conduct the event; and (H) Travel expenses including lodging, automobile mileage, rental car and commercial airfare for event participants or other similar persons directly related to the conduct of the event, provided that said individual does not reside in the events market area (iii) The Company shall provide invoices to the City for expenses incurred for the Event. The Company shall provide any supporting expense documentation as required by the City or as requested by the EDT to the full satisfaction of both the City and the EDT for the Event. The City will make payment(s) to the Company within thirty (30) business days after receipt of such payment from the EDT in accordance with the terms of this Agreement. The City will be responsible for dealing with the EDT with respect to disbursements from the Fund and distributing the Total Fund Amount in accordance with the terms of this Agreement. Trust Fund Event Support Contract with ESPN Productions,Inc. ESPN November 05,2018 Page 3 of 10 (iv) Any payments to the Company as set forth in this Agreement are limited to the maximum amount available from and approved for eventual distribution from the Fund established for the Event and must be eligible for payment by the Events Trust Fund program. Under no circumstances shall the City be obligated to Company for more than that maximum sum when, and if, received from the Fund for the Event. The Company shall nol seek, and will not be entitled to, payment from the City for any costs not distributed by the EDT from the Fund 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) calendar 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 City and Company. 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 the City has the absolute right to offset any amount owed to the City by Company against the Total Fund Amount and take immediate possession of such funds to satisfy all outstanding obligations. The City and Company acknowledge that any such offset shall not be construed as a distribution of Funds under this Agreement, but as payment by Company of funds owed to the City for application toward any outstanding obligations owed to the City. If the City exercises its right of offset, then Company hereby waives its right to receive any reimbursement or distribution from the Total Fund Amount under this Agreement that is subject to the offset amount. To the extent that any funds remain from the Total Fund Amount after the City applies the above-stated offset, then the City will distribute such funds in accordance with the terms of this Agreement. If the offset is not sufficient to discharge all of Company's outstanding obligations to the City, Company will continue to be obligated to pay the City all amounts remaining after application of the offset, and the City will retain all legal rights and remedies available to it to collect such amounts. 6. COMMITMENT OF COMPANY. In consideration of the benefits set forth herein, Company will use commercially reasonable efforts to conduct the Event during the Term at Amon G. Carter Stadium. Company will also cooperate with the City in documenting costs incurred by Company for the Event to evidence the Permissible Uses. Company will pay the City an amount equal to the City Remittance contemporaneously upon the City's distribution to Company from the Total Fund Amount in accordance with Section 5 above. Trust Fund Event Support Contract with ESPN Productions,Inc.—ESPN November 05,2018 Page 4 of 10 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 in equity or by statute. It is expressly agreed that the remedy at law for breach by a party of its obligations 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 may be made enforceable by specific performance. 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. Each party may terminate this Agreement if the other party fails to comply with any term, provision, or covenant of this Agreement in any material respect (an "event of default"). If an alleged event of default occurs,the non-defaulting party shall give written notice that describes the alleged event of default in reasonable detail to the other party. The allegedly defaulting party must cure such default within thirty(30)calendar days after receiving notice from the other party,unless otherwise agreed to in writing by the parties. If the Event is cancelled for any reason and not rescheduled, then this Agreement will terminate immediately and neither party shall be held responsible or liable for its obligations hereunder after the date of such termination. 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, request, or other communication 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 Trust Fund Event Support Contract with ESPN Productions,Inc.—ESPN November 05,2018 Page 5 of 10 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. CITY: ESPN PRODUCTIONS,INC. City of Fort Worth Attn: Director, Public Events Dept. Attn: Clint Overby 200 Texas Street 11001 Rushmore Dr. Fort Worth, TX 76102 Charlotte, NC 28277 with copies to: with a copy not constituting notice to: the City Manager and ESPN Legal Department the City Attorney ESPN Plaza, Bristol, CT 06010 at the same address Attn: Chief Counsel 12. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. This Agreement is subject to all applicable federal, 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. GOVERNMENTAL 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 failure 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 CHOICE OF LAW. 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 lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This 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 successor of Company, and are not intended to create any Trust Fund Event Support Contract with ESPN Productions,Inc._ESPN November 05,2018 Page 6 of 10 rights, contractual or otherwise,to any other person or entity. 17. FORCE MAJEURE. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed or prevented(in whole or in part) 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 or prevention, 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 or prevented from so performing. 18. 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 for or against any party, regardless of the actual drafter of this Agreement. 19. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 20. ENTIRETY OF AGREEMENT. This Agreement, 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 document. 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 is in writing,dated subsequent to the date hereof, and duly executed by the Parties hereto. Trust Fund Event Support Contract with ESPN Productions,Inc.—ESPN November 05,2018 Page 7 of 10 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,LAWSUITS,JUDGMENTS,ACTIONS, CAUSES OF ACTION, LIENS,LOSSES, EXPENSES,COSTS, FEES (INCLUDING, BUT NOT LIMITED TO,ATTORNEY'S 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 MONETARY LOSS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED (COLLECTIVELY,"CLAIMS"),TO THE EXTENT ARISING OUT OF,IN CONNECTION WITH, OR RESULTING FROM ANY NEGLIGENT OR WILLFUL ACT, ERROR, OR OMISSION OF COMPANY AND ITS RESPECTIVE OFFICERS,AGENTS,EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT (EXCEPT TO THE EXTENT SUCH ATTEMPTED OR NON-PERFORMANCE IS EXCUSED HEREUNDER). THE FOREGOING INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO "CLAIMS" TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH, OR RESULTING FROM ANY NEGLIGENT OR WILLFUL ACT,ERROR,OR OMISSION OF THE CITY. b. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, COMPANY, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT COMPANY'S 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 VALIDITY 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 MINIMUM 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 EFFECT. d. Company agrees to and shall release City from any and all liability for any damage or loss to the extent caused by the negligent or willful acts, errors or omissions of Company in connection with or incidental to its performance under this Agreement. C. This section shall survive the expiration or termination of this Agreement. Trust Fund Event Support Contract with F,SPN Productions,Tnc._ESPN November 05,2018 Page 8 of 10 24. AUDIT. Company agrees that, upon sixty (60) days' notice delivered by City in accordance with Section 11 above, City and its internal auditor will have the right to audit (at its sole cost), 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"The Armed Forces Bowl,"the specific segment of the Company that operates the Event, including, but not limited to, all necessary books, papers, documents, records, and personnel, (collectively "Records") in order to determine compliance with this Agreement. The Company shall make all Records available to City at 200 Texas Street, Fort Worth, Texas or at another location in City acceptable to both parties within thirty(30)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 for a period of one (1) year. Subject to all applicable laws, including, without limitation, Chapter 552 of the Texas Government Code, all Records disclosed to City pursuant to this Section 24 will be considered "Confidential" and City will not disclose such Records to any other entity without Company's prior written consent in each instance. 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 without 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 permitted assigns. 26. AUTHORIZATION. By executing this Agreement, Company's agent affirms that he or she is authorized by the Company to execute this Agreement and that all representations made herein with regard to Company's identity, address, and legal status (corporation, partnership, individual, dba, etc.) are true and correct. 27. REVIEW OF COUNSEL. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation 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: ESPN PRODUCTIONS, INC. 5Qa 0 d/b/a By By: tttant Alanis in verby City anager Vice Presi t S '1;vents Date: ( l9( Date: Trust Fund Event Support Contract with ESPN Productions,Inc._ESPN November 05,2018 Page 9 of 10 APPROVED AS TO FORM A — LEGALITY: Tyler F. Wa ach Assistant ity orne OF FQR ATT Mary J. a City Secretary kAS CITY OF FORT WORTH USE ONLY 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. Brandy Arc uleta Program-aordinator Contract Authorization: City Council Resolution Number 3513-08-2007 OFFICIAL RECORD CITY SECRETARY Trust Fund Event Support Contract with ESPN Productions,Inc.—ESPN November 05,2018 FT. WdIN00% '