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HomeMy WebLinkAboutContract 36003 CITY SECRETARY CONTRACT NO. , (o PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into in Fort Worth, Tarrant County, Texas effective on the —A3A� day of , 2007, by and between the CITY OF FORT WORTH, a home rule municipal corporation situated in Tarrant, Denton and Wise Counties, Texas (hereinafter referred to as the "City"), acting by and through its duly authorized City Manager, and the FORT WORTH CONVENTION AND VISITORS BUREAU (hereinafter referred to as the "Bureau"), acting by and through its duly authorized President& C.E.O. WITNESSETH: WHEREAS, V.T.C.A. Tax Code §351.002 and 351.003 authorize the City to levy by ordinance a hotel occupancy tax which may not exceed nine percent (9%) of the consideration paid by a hotel occupant; and WHEREAS, the City has levied such a tax by adopting Article II of Chapter 32 of the Fort Worth City Code (1986), as amended; and WHEREAS, V.T.C.A. Tax Code §351.101(a)(3) authorizes the City to use revenue derived from the hotel occupancy tax for "advertising and conducting promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity"; and WHEREAS, the City Council finds that the public facilities and services of the Will Rogers Memorial Center, Cowtown Coliseum, the Fort Worth Convention Center and other facilities which may be constructed benefit, and are enjoyed by visitors to, City; and WHEREAS, display, entertainment, meeting, and other public convenience facilities are provided for the special use and benefit of visitors; and WHEREAS, it is a matter of necessity that such display, entertainment, meeting, and other public convenience facilities be advertised, publicized, and promoted; and that the public thereby be informed of their availability for use; and WHEREAS, visitors, conventioneers, and tourists who utilize such public facilities make related expenditures that substantially benefit the economy of City; and WHEREAS, V.T.C.A. § 351.101 (c) authorizes a city to contract with another entity to manage and supervise programs or activities funded with revenue from the hotel occupancy tax; and WHEREAS, on June 21, 1991, City and Bureau entered into City Secretary Contract No. 18523, under the terms of which Bureau performs certain services for City, and the term of that contract expired on September 30, 1998; and WHEREAS, on March 24, 1997, City and Bureau entered into City Secretary Contract No. 22581, which amended Contract No. 18523 to allow for the use of hotel occupancy tax revenues for a historic restoration and preservation project, the Blackstone Hotel; and WHEREAS, on August 18, 1998, City and Bureau entered into City Secretary Contract No. 24178, under the terms which Bureau performs certain services for City, and the term of that contract expired on September 30, 2003; and WHEREAS, on July 15, 2004, the City and Bureau entered into City Secretary Contract No. 30213, under the terms which Bureau performs certain services for the City, which was renewed for on April 12, 2006 (City Secretary Contract No. 33415) to expire on September 30, 2007; and WHEREAS, the parties now desire to enter into a new Agreement to be effective on and after October 1, 2007; NOW THEREFORE, that for and in consideration of the performance of the mutual covenants and agreements herein contained, the parties hereto do hereby covenant and mutually agree as follows: 1. DEFINITIONS The following words, terms and phrases, when used in this Agreement, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1.01 Business/Marketing Plan shall be defined as: A comprehensive plan that includes the overall strategic objectives of the organization and direct measurable goals by which the performance of the organization may be evaluated and outlines the strategies used to accomplish the strategic objectives, goals, and performance measures as well as the targeted performance from marketing Fort Worth as a 2 visitor destination. The plan will include, but not be limited to, a mission statement, a five-year vision, an overall description of the organization, an analysis of strengths, weaknesses, opportunities and threats, a clearly defined organizational chart, a complete budget, information on major initiatives and their relationship to the strategic goals and a cost benefit analysis of the organizational objectives. The plan will include the appropriate Marketing Plans and other information that is necessary to describe a measurable performance level. 1.02 Class "A" bookings shall be defined as: Conventions and meetings that utilize both the Fort Worth Convention Center and/or Will Rogers and Fort Worth hotel rooms during their event. 1.03 Class "B" bookings shall be defined as: Conventions and meetings that utilize Fort Worth hotel rooms without the use of the Fort Worth Convention Center during their event, also referred to as "Hotel-in-House Business." 1.04 City Council shall mean the Fort Worth City Council. 1.05 Priority Status shall be defined as: The status assigned to a convention or meeting group, by the Bureau, that indicates whether that group has the first, second or third hold to the meeting space at the Fort Worth Convention Center. 1.06 Public Events Department shall be defined as: The City of Fort Worth Department that is responsible for overseeing the Fort Worth Convention Center, Will Rogers Memorial Center and other city-owned public assembly facilities. 1.07 Special Public Facilities Fund shall be defined as: A fund available for the purpose of assisting in attracting, maintaining and retaining convention related business and equestrian related business for Fort Worth at the Fort Worth Convention Center and Will Rogers Memorial Center through the provision of rental assistance or other marketing expenditures after the Public Events Department staff has negotiated in good faith the best market rate to remain competitive. 1.08 Tax Collections shall be defined as: those taxes which are collected by the City through the adoption of an ordinance pursuant to Chapter 351, Municipal Hotel Occupancy Taxes, of the Texas Tax Code. 3 1.09 Work shall be defined as: Duties included in the Business Plan that the Bureau is expected to perform as consideration for the funding provided to the Bureau by the City of Fort Worth. 2. CITY AND BUREAU OBLIGATIONS 2.01. City agrees, pursuant to state law and city ordinance, to pay funds to the Bureau from its hotel occupancy tax revenues as set forth hereunder, in consideration of which the Bureau agrees to undertake activities for the promotion of tourism and the convention and hotel industry, through advertising and conducting promotional programs to attract tourists and convention delegates or registrants to Fort Worth. The City and the Bureau recognize the need to maintain a fund to assist in attracting, maintaining and retaining business for Fort Worth. The City agrees to primarily fund, based upon available funding, and the Bureau will maintain two "Special Public Facilities Funds" (SPFFS) for the purposes of encouraging conventions and equestrian groups and other events to book and maintain their events in the City-owned public facilities. Included in this fund will be money used to support the facility agreements and the event requirements for major conventions, horse shows and other tourist-related events. In order to book priority events that bring strong economic value and an excellent quality of life to the community, City, in cooperation with the Bureau, must from time to time adjust facility rents, offer incentives and other types of support for the event, host and attend marketing functions and make other commitments to bring and maintain priority groups to the City. The SPFFS will be maintained in a separate Bureau account and will not be included in the base budget of the Bureau. Each year, City, through its annual budget process, will determine the total level of its contribution, if any, to the SPFFS, based upon available funding and projected needs for the coming year. The Bureau will have the sole responsibility to keep and maintain an accurate accounting of all funds that are committed to the SPFFS. During each Fiscal Year and subject to funding availability and allocation by the City, the City will fund up to $460,000.00 into the SPFFS. The total amount of the City's contribution into the SPFFS for each fiscal year shall be determined by subsequent negotiation by the Bureau and the City. 4 For Fiscal Years 2007-2012, $250,000 will be allocated for the creation of a Fort Worth Convention Center SPFF. The Bureau will have sole authority over all expenditures from the Fort Worth Convention Center SPFF. The Bureau may request pricing for convention groups and from time to time may ask the City to substantially discount rent and other services to convention groups. The Bureau covenants and agrees to reimburse the City for all such rental and service discounts offered to attract a convention to the City. The Bureau agrees to honor all pre-existing discounts that have been established for convention rental and service discounts. For Fiscal Years 2007-2012, the City will allocate, and subject to funding availability and allocation by the City, up to $210,000 for the Will Rogers Memorial Center SPFF. For future planning and escrowing of funds in the SPFF, the CVB and City will work under the premise that the SPFF will be funded at a level of $460,000 per fiscal year, with $250,000 of the funds being dedicated to the Fort Worth Convention Center (FWCC) and $210,000 being dedicated to the Will Rogers Memorial Center (WRMC). If, in future years the amount increases, adjustments will be made at that time. 2.02. Bureau covenants and agrees to promote the use of the public facilities in the Will Rogers Memorial Center, Cowtown Coliseum, the Fort Worth Convention Center, other meeting and public convenience facilities, for conventions, trade shows, and meetings on dates available in such facilities. City shall be responsible for providing accurate and current sets of floor plans for the Convention Center and Will Rogers Memorial Center. 2.03. Both organizations understand that there are some historical uses of the fund to support events held at the Will Rogers Memorial Center, some by contract and some by tradition. Examples include such items as National Cutting Horse Association, Stock Show Equestrian marketing services, Miss Texas Scholarship Pageant, American Quarter Horse Association, Stock Show Rodeo tickets and other important events and client entertainment. These organizations and others have received cash support, event support and entertainment support among other types of support, funded through the SPFF. This agreement shall allow for such types of support and others as deemed necessary to continue as part of the SPFF activities. The CVB and Public Events Director will concur on the expenditures made from the Will Rogers Memorial Center SPFF fund. In the unlikely situation where the CVB and Public 5 Events do not agree on an expenditure, the City Manager's office will make the final determination. 2.04. It is the responsibility of the CVB to keep accurate records of commitments and encumbrances made to organizations booked into the Convention Center and Will Rogers Memorial Center for future years and to ensure that the fund's financial capacity is not over committed to support organizations' events. In the event that financial commitments have been made to support the activities of organizations and funds in the SPFF's are not sufficient to make the financial payments, the CVB agrees to make the City whole for such commitments. If however, the City has not funded $460,000 into the SPFF's for that particular year, and there are not sufficient funds remaining in the SPFF's from previous years to cover the financial commitments, then the CVB will not be required to make the City financially whole 2.05. Bureau covenants and agrees to conduct coordinated state, regional, national, and international advertising, research, publicity, direct sales and promotion campaigns emphasizing the attractions offered in City to meetings, groups, and visitors. Bureau recognizes the unique facility features of both the Will Rogers Memorial Center and the Fort Worth Convention Center and the target markets for each facility. Bureau will coordinate the formulation of appropriate marketing strategies and programs that will reflect the optimum use of the facilities. Bureau will coordinate this activity with the appropriate City Public Events Department staff members as stated in this document. 2.06. Bureau covenants and agrees to maintain exhibit booths for the purpose of attracting visitors, conventions, meetings, exhibits, selected trade, sports and consumer shows, and other events to City. 2.07. Bureau covenants and agrees to cause to be printed and distributed in adequate quantities visitor literature of substantive quality and material to all Texas Department of Transportation Tourists Information Centers, as well as Visitor Information Centers presently located in local hotels, motels, restaurants, places of public accommodation, and any other 6 locations considered desirable, including the Convention and Visitors Bureau Information Center. 2.08. Bureau covenants and agrees to participate in appropriate tourism agencies and convention associations such as the appropriate state agency for economic development and tourism, the American and Texas Societies of Association Executives, and the International and Texas Association of Convention and Visitor Bureaus as well as other agencies in order to assure that favorable publicity about City may be continued and expanded. 2.09. Bureau covenants and agrees that in a systematic manner it will solicit convention and meeting holding organizations for the accommodation of appropriate facilities located in City. The Bureau will develop and submit convention bid proposals which promote the use of the City and its facilities. These bid proposals will include information on available public event space and their costs as determined by the City's Public Events Department, and the proposals will also include information on available hotel space and hotel rates as provided by the individual hotels. The Bureau will provide the City's Public Event Department and the hotels with as much background information as is available concerning potential group business and competitive cities with the desire to make Fort Worth's bids as successful as possible. However, the availability of meeting and hotel space and their costs will be determined by the hotels. The Public Events Department will determine the availability and cost of public facility space. The Bureau will identify and recommend that the City pursue convention business that has a positive economic value to the community taking into account total economic impact from hotel taxes, sales taxes, revenue opportunities to public facilities, and other relevant factors. The Bureau will inform the hotels and the Public Events Department as soon as possible about the outcome of all bids and will provide as much information on reasons for either winning or losing bids. 2.10. Bureau covenants and agrees to provide staffing and facilities for registration assistance and services, including information relative to central housing, publicity material, and attendance mailings to associations, organizations, or groups convening; or holding meetings in City pursuant to the standard operating procedures of the Bureau. Bureau further agrees to coordinate with the appropriate City departments, local hotels, restaurants, and entertainment 7 facilities, and to strive to provide an environment in which a visiting group or organization enjoys a coordinated and productive visit to the City of Fort Worth. 2.11. It is understood and agreed that Bureau currently prepares and publishes, and will continue to prepare, publish and update during the term of this Agreement and any renewals thereof, invitational materials providing specific information on hotels and motels located in City, and will also distribute, during the term hereof and any renewals, said invitational materials to association executives and planners of meetings, including therein such information as floor plans of such hotels and motels as are actively bidding for a specific meeting convention, in addition to general promotional and entertainment material on City. 2.12. Bureau covenants and agrees to make the services of Bureau available to Fort Worth groups and businesses. 2.13. In order for City to monitor the aforementioned and any criteria now or later mutually developed, Bureau shall, on or before October 30 each year, submit an annual report of activities and results of the overall Marketing/Business Plan for the preceding marketing year. This report shall include, but not be limited to: detailed breakdown of activities undertaken and summary of benefits obtained by the programs, detailed breakdown of activities related to marketing activities of the City to multi-cultural markets, and financial reports pertinent to the scope of the work as required by City in this Agreement; and submit additional reports and analysis as required by this Agreement. 2.14. Budget, Accounting and Reports (a) As used herein, "Fiscal Year" means the twelve-month period beginning October 1 and ending September 30, unless otherwise noted. The Bureau shall adopt said Fiscal Year as its fiscal year unless the City otherwise agrees to a different fiscal year. As used herein "Marketing Year"means the fiscal year. (b) No later than April 15 of each year, the Bureau shall prepare and submit to the City a proposed written budget indicating funding into the SPFFS and the Bureau's base budget and the preliminary Business/Marketing Plan, which shall have been approved by the Bureau's Executive Committee, with respect to the budget, projected available Tax Collections for the 8 ensuing Fiscal Year, any amounts available in the Bureau's reserve fund, available funding for the Special Public Facilities Fund and estimated costs of the Work. The budget and Business/Marketing Plan are to be reviewed by the City Manager or designated assistant city manager, prior to submission to the City Council for its consideration. The City Council shall have the right to annually approve the budget and Business/Marketing Plan. (c) No later than September 1 of each year, the Bureau shall prepare and submit to the City a Business/Marketing Plan that shall include Work to be performed and measurable performance goals of the Bureau, for the Marketing Year. The Business/Marketing Plan and budgets shall have provisions in accordance with the following requirements: (i) The Business/Marketing Plan and the budget shall be consistent with the required allocation of uses of Tax Collections as set forth in the Authorizing Legislation and the applicable City Ordinances, and shall identify those scheduled activities, programs or events that will directly enhance the Fort Worth Convention Center and the Will Rogers Memorial Center and promote the convention, tourism and hotel industry. The Business/Marketing Plan shall be consistent with the policy that one of the primary responsibilities of the Bureau is to promote conventions, trade shows, meetings and equestrian events in the Will Rogers Memorial Center and the Fort Worth Convention Center, beyond 18 months from the first day of use, with the intent to have a maximum impact on hotel occupancy tax revenues, sales tax revenues, facility revenues, occupancy and use of the Fort Worth Convention Center and the Will Rogers Memorial Center. Any changes to the Convention Center schedule 18 months and beyond will be the responsibility of the Bureau to initiate, however, the final determination of all businesses scheduled, booked and contracted into the Fort Worth Convention Center shall be made by the Public Events Department. Marketing of such space within 18 months of the first day of use is the primary role of the Fort Worth Convention Center. It is the Bureau's and Public Events Department's role to market and support the Will Rogers Memorial Center for long term equestrian events, with the intent to maximize facility revenues, hotel occupancy tax, sales tax, and use of the Will Rogers Memorial Center. The Public Events Staff will schedule all dates at the Fort Worth Convention Center 9 and Will Rogers Memorial Center, with the marketing support of the Bureau, within the 18-month time frame referred to above. (ii) The City Council approved the Booking Priorities (G-13359) for the Fort Worth Convention Center and Will Rogers Memorial Center on August 28, 2001, and shall retain the exclusive right to change the same. Pursuant to such policy, the Public Events Department of the City has sole responsibility and authority for booking, scheduling and contracting all events at the Fort Worth Convention Center and Will Rogers Memorial Center. The Bureau's authorized representatives shall have the ability to electronically view and identify tentative dates at the Fort Worth Convention Center. The Public Events Department shall provide a written response for space availability after receiving a written request from the Bureau for tentative space. Should the Bureau present a written request for space at the Convention Center over dates with an existing tentative or definite convention hold on space for the period beyond 18 months from the date of the first use, the Bureau shall communicate in writing to the Convention Center and indicate which group is to be given first, second or third priority status for those dates. It will be the Bureau's responsibility to communicate with the client or prospective client, the status that has been assigned to that particular group's requested dates at the Convention Center for convention space and any changes to an existing convention group's status. (iii) All proposals, whether during the initial eighteen (18) months or thereafter, provided by the Bureau on behalf of the Convention Center shall be pre-approved in writing by the Public Events Department at the Convention Center. The Bureau will provide to the Convention Center all copies of proposals that have been submitted on behalf of the Convention Center. The status of event dates at the Will Rogers Memorial Center shall be the sole responsibility of the Public Events Department. Bureau will continue to pay the costs of the additional license agreement, maintenance costs and other expenses related to allowing the Bureau to have the rights to electronically view dates at the Convention Center. (iv) 10 a. The following criteria shall be used for goal measurement purposes in order to determine the success of the adopted Marketing: 1. Convention Sales a) New and Repeat ("Repeat" shall be defined as those businesses that book annually or every other year) Class A Rooms (Includes conventions and meetings that utilize the Fort Worth Convention Center, Will Rogers Coliseum and Fort Worth hotel rooms) b) Class B Rooms (Includes conventions and meetings that utilize Fort Worth hotel rooms without use of the Fort Worth Convention Center) c) Total Room nights (Class A & B) d) Number of Citywide conventions held in the Fort Worth Convention Center e) Economic impact 2. Tourism Sales a) Tours Booked b) Inquiries Fulfilled 3. Communications a) Media Contacts- Journalist Site Tours b) Dollar Impact of Media- (Ad Equivalency) 4. Convention Services a) Meetings Serviced b) Convention Services Leads (offsite venues, attractions, transportation, etc.) 5. Visitor Information Center a) Visitor Center Assists b) Internet Activities b. The following criteria shall be used for reporting purposes based on data obtained from the Fort Worth Convention Center and Will Rogers Memorial Center: a) Exhibit Hall occupancy b) Exhibit Hall occupancy rate c) Arena occupancy d) Arena occupancy rate. All criteria listed above in Subsection (iv)a. above, shall be tracked and reported on a yearly basis to the City in written form by the Bureau. The criteria 11 listed in Subsection (iv)b., to include Exhibit Hall occupancy, Exhibit Hall occupancy rate, Arena occupancy and Arena occupancy rate shall be tracked on a yearly basis by the Bureau. During the contract period, the Bureau and the City shall agree to review all of the reporting criteria contained in both Subsections (iv) a. and b. The review will look at reporting relationships, decision points as well as control and accountability factors to determine the applicability and appropriateness of each of the criteria. (v) The Work shall be consistent with the Bureau's mission to market and sell Fort Worth as a premier business and leisure destination, enriching Fort Worth's hospitality industry and the community's overall quality of life. As part of the Work, the Bureau shall provide, at a minimum, the following services, activities and functions: (a) Market, solicit and advertise for conventions, equestrian events, motor coach tours, tourism, and other gatherings to maximize use of the Fort Worth Convention Center, the Will Rogers Memorial Center, commercial lodging facilities and tourism facilities consistent with the adopted Marketing Plan. Whenever feasible, weekly sales meetings involving the sales teams of the Bureau and the City will be held to discuss business opportunities involving the City's Public Events facilities. (b) Provide registration, housing and information services for convention groups per standard operating procedures of the Bureau. Act as a liaison for the City in its relationships with the tourism industry. (c) Develop public awareness of the desirability, benefits and importance of the convention, equestrian, and tourism industries to the Fort Worth economy. (d) Market and distribute materials promoting Fort Worth as a preferred destination city consistent with the Marketing Plan. (e) Demonstrate the advantages that Fort Worth has to offer visitors. (f) Perform all responsibilities of tourism. 12 (g) Market and promote tourism and conventions among minority and multicultural markets in accordance with performance criteria set forth in each year's Marketing Plan. (h) Perform additional duties as agreed upon by both parties. (i) Bureau, at its sole expense, shall develop, print and publish a brochure including a set of floor plans for the Convention Center and Will Rogers Memorial Center that will be current and accurate and accepted by industry professionals. City agrees to provide accurate and up to date floor plans for the Convention Center and Will Rogers Memorial Center. The information will be coordinated with the Public Events Department to insure accuracy and consistency with the floor plans and other related information concerning the Fort Worth Convention Center and Will Rogers Memorial Center. The Bureau will publish, these plans in documents consistent with the Bureau's other marketing materials. 0) The City may, at its own expense, publish its own marketing materials. 2.15. The Bureau will provide the City Manager's office and the Public Events Department with quarterly reports containing detailed information on performance of the Work, including performance reports listing all groups and/or events added to the Fort Worth Convention Center and Will Rogers Memorial Center schedules in that period with accompanying information such as names, dates booked, estimated attendance, estimated room nights, new or repeat business, occupancy for the facility, occupancy rate for the facility, and the initial contact date and the lead source. The reports shall include year-to-date comparisons relevant to the previous time period, but at least to include the previous year. These same reports will be published and distributed at all Bureau Board Meetings. The Bureau shall also provide City with any reports or documentation required by federal or state law, as such laws may be amended from time to time during the term of this Agreement. 2.16. All requests by the Bureau to the City for funds, services or other items of value shall be directed in writing for approval to the City Manager or designated assistant city manager prior to submission to the City Council. 13 3. BOARD OF DIRECTORS 3.01. Two City Council members or appointees shall serve as voting members of the Bureau's Board of Directors, with a minimum of one City Council member or appointee serving on the Bureau's Executive Committee. The City Manager shall serve as Ex-Officio non-voting member of the Executive Committee. Additionally, the City Manager, designated assistant city manager, and the Director of Public Events shall serve as Ex-Officio, non-voting members of the Bureau's Board of Directors. The remaining members of the Bureau's Board shall be appointed as specified in the Articles of Incorporation and the Bylaws of Bureau. 4. CITY LOGO, TRADE AND SERVICE MARKS 4.01. The Bureau acknowledges that the City Council has adopted and copyrighted as its logo "Molly" the longhorn steer, as depicted in Exhibit "A" incorporated and attached as part of this Agreement, which may be used on Bureau stationery, bulletins, displays, posters and media and press releases. The Bureau is authorized to use any trade or service marks of the City in connection with its performance of the Work; provided that the Bureau shall confirm with the City of Fort Worth that it is authorized to be used and contains the approved colors and graphics. 5. ALLOCATION OF HOTEL OCCUPANCY TAX REVENUES 5.01. Each fiscal year shall begin on October 1 and end the following year on September 30. For the first fiscal year, October 1, 2007 — September 30, 2008, the amount allocated to the Bureau for the base budget by the City shall be $6,953,910.00 for the performance of the professional services to be performed by Bureau under terms of this Agreement. For the second fiscal year October 1, 2008 — September 30, 2009 the amount allocated to the Bureau by the City shall be $7,162,527.00, representing an increase of three (3%) percent over the 2007-2008 fiscal year base budget. For the each fiscal year after the 2008-2009 fiscal year, the amount allocated to the Bureau by the City shall be equal to a an increase of three (3%) percent over the previous fiscal year base budget. Other than funding to the SPFFS as provided 14 under the terms of this Agreement, this allocation shall be the minimum yearly allocation, subject to funding availability, through the term of the contract unless economic conditions warrant a renegotiation by the City and Bureau of this amount. City shall pay the Bureau in equal monthly installments the Bureau's base budget, as approved by the City Council. All expenditures from funds provided to the Bureau hereunder shall be made in accordance with the annual Business Plan and budget submitted each year. The amount annually allocated to the Bureau will be derived from a portion of the 7% hotel occupancy tax. Such portion will not include city room taxes collected and appropriated for the Bureau's Work by the City of Fort Worth under its Economic Development Agreements with the Omni Fort Worth Hotel, Sheraton Grande Hotel, Renaissance Worthington Hotel, and the Courtyard by Marriott Blackstone Hotel. All amounts are subject to funding availability and approval by the City Council. Annual increases to the allocation may be appropriated to the Bureau, as approved by the City Council. 5.02. The hotel occupancy tax revenues subject to allocation to the Bureau shall not include the revenues derived from the application of the tax at a rate of more than seven percent (7%), which revenues are dedicated by statute to construction of an expansion to an existing convention center facility. 5.03. The Bureau shall maintain complete and accurate books and records of its activities and finances, which the City may audit at any time upon reasonable notice. Bureau agrees that the City will have the right to audit the financial and business records of Bureau that relate to services to be and performed under this Agreement (collectively "Records") at any time during the Term of this Agreement and for one (1) year thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for one (1) year thereafter, Bureau shall make all Records available to the City at the office of the City Manager or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Section shall survive expiration or earlier termination of this Agreement. All expenditures from funds provided to the Bureau hereunder shall be made in accordance with the annual business plan and budget submitted each year, pursuant to this Agreement. It is understood and agreed that, upon the acceptance of funds hereunder, a fiduciary duty is created in the Bureau with respect to the expenditure of such funds. 15 The Bureau shall engage an independent firm of certified public accountants to audit its annual financial statements and shall deliver to the City Manager's Office a copy of its audited annual financial statements, consisting of a balance sheet, an income statement, a statement of cash flows, and notes to the financial statements, no later than 120 days after the end of each Fiscal Year. The engagement letter from the independent firm of certified public accountants shall contain a statement that the Bureau shall receive a copy of all audit work papers produced either by the client or the firm during the annual audit of the financial statements. The notes to the audited annual financial statements shall contain a detailed breakdown of revenues by source and expenditures by category. In addition to the audited annual financial statements, the Bureau shall at the same time deliver a copy of all audit work papers that underlie the audited annual financial statements. Within 30 days after the end of each quarter in the Fiscal Year, the Bureau shall deliver to the City Manager's Office a (i) written report of its expenditures relating to the Work and (ii) un-audited financial statements for the quarter just ended, including, at a minimum, a balance sheet and an income statement. 5.04. In addition to any particular limitations and conditions that may be specifically stated herein, all obligations of the City hereunder are subject to annual appropriation by the City for this Agreement from proceeds of the hotel occupancy tax that are available to pay for the Work under this Agreement, and further subject to the ability of the City to collect such tax proceeds. This Agreement imposes no obligation upon the City to levy and collect such tax, or to use all of the Tax Collections to fund the Work. The City does agree that, subject to adequate appropriations and collections, the City will utilize a portion of the Tax Collections to pay for Work performed by the Bureau in accordance with the budget approved by the City. 5.05. The Bureau shall carry insurance in types and amounts acceptable to the City for the duration of this Agreement and, prior to the Commencement Date, shall furnish the City Manager's Office with Certificates of Insurance along with copies of policy declaration pages and all policy endorsements as evidence thereof. The Bureau shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of this Agreement or the twenty-four-month period following completion, in the case of a claims-made policy. The City reserves the right to review the insurance requirements of this section during the effective period of this Agreement and to make 16 reasonable adjustments to insurance coverage, their limits when deemed necessary, based upon changes in statutory law, court decisions or the claims history of the industry or financial condition of the insurance company, as well as that of the Bureau. The City shall be entitled, upon request, and without expense to the City, to receive copies of the requisite insurance policies and all endorsements thereto and may make any reasonable requests for deletion or revisions or modification of particular policy terms, conditions, limitations, or exclusions. (Except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter on any of such policies.) 6. TERM OF AGREEMENT 6.01. This Agreement shall be effective and binding upon the parties beginning on October 1, 2007, and shall remain in effect until September 30, 2012, subject to early termination as provided herein. 6.02. Following the initial term, the City and Bureau, by prior written mutual consent, may elect to extend this contract under the same terms for two (2) additional one-year terms. Notification of intent to extend the contract for an additional one-year term, shall be given in writing to the other party no later than sixty days prior to the expiration of the initial five-year term and each renewal term thereafter. 7. TERMINATION 7.01. Either party may terminate this Agreement without cause upon ninety days written notice to the other party. 7.02. In the event of termination or expiration of this Agreement, City shall pay Bureau for services rendered prior to such termination or expiration date, and City shall honor written commitments to provide convention support services made by Bureau to convention and meeting planners, which commitments were made pursuant to the terms of this Agreement prior to its termination. Such agreements to be honored by City will include contracts or lease agreements entered into in the normal course of operation and will also include office equipment, automobile 17 leases, office space leases, and other administrative requirements. However, Bureau may not, without the prior written consent of City (which shall not be unreasonably withheld), enter into a real estate lease, employment contract, or contract for an amount in excess of Ten Thousand Dollars ($10,000) with a term that exceeds the remainder of the renewal term of this Agreement. Payments made pursuant to the terms of this paragraph shall be made from, and shall not exceed, the total of funds appropriated for payments under this Agreement. 7.03. Upon expiration or termination hereof for any reason, the Bureau shall cooperate with the City to ensure a smooth transition and completion of the Work. Without limiting the generality of the foregoing, the Bureau shall promptly, but not more than sixty (60) days following termination, turn over to the City without charge all uncommitted Hotel Tax Revenue as well as all other City contributed revenues funds, including the balance of reserve fund, and all property purchased with Hotel Tax Revenue or City provided funds and, upon request, shall assign to the City all contracts, rights and claims relating to the Work. Termination of this Agreement shall not impair the rights of the City under state law, the articles of incorporation or bylaws of the Bureau or under any other contract between the City and the Bureau. 8. INDEPENDENT CONTRACTOR 8.01. It is expressly understood and agreed that Bureau shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Bureau shall have the exclusive right to control all details and day-to-day operations relative to this Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Bureau acknowledges that the doctrine of respondeat.superior will not apply as between the City and Bureau, its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Bureau further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and Bureau. 18 8.02. The City is not and shall not be liable for any of the Bureau's debts or obligations, including any operating deficit that may arise. The Bureau shall not hold itself out as an agent of the City, nor in any way purport to bind the City with respect to any contract or other obligation. 9. INDEMNITY 9.01 BUREAUAGREES TO DEFEND, INDEMNIFYAND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) BUREAU'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii)ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF BUREAU, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH BUREAUAND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 10. ENTIRE AGREEMENT 10.01. This Agreement, including its exhibits, attachments and applicable City- approved Business/Marketing Plan and budgets, represents the entire agreement between the parties regarding the subject matter hereof, and there are not other representations, understandings, or agreements between the parties relative to such subject matter. 11. VENUE 11.01. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 19 12. BUREAU ARTICLES OF INCORPORATION AND BYLAWS 12.01. The City shall have the right to approve any proposed changes to the Bureau's Articles of Incorporation or Bylaws. 13. NOTICES 13.01. All notices required or permitted under this Agreement may be given to a party personally, by facsimile, or by mail, addressed to such party at the address stated below or to such other address as one party may from time to time notify the other in writing. If more than one entity is named in this contract, service of any notice on any one of the entities shall be deemed service on all entities. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: CITY: Joe Paniagua, Assistant City Manager City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Facsimile Number: 817-392-6134 With copy to: City Attorney City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Facsimile Number: 817-871-8359 FORT WORTH CONVENTION&VISITORS BUREAU: David Dubois 415 Throckmorton Street Fort Worth, Texas 76102 Facsimile Number: (817) 336-3282 20 14. CONTRACT ADMINISTRATION 14.01. This Agreement shall be administered by the City through its City Manager's Office, and all communications from the Bureau to the City concerning this Agreement and the Work shall be directed to the City Manager and/or his or her designated assistant city manager, unless otherwise specified herein. The Bureau shall deliver to such City Manager or designated assistant city manager simultaneously a copy of any notice required by this Agreement or such bylaws to be delivered to another City official. 15. SUCCESSORS AND ASSIGNS 15.01. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and, except as otherwise provided in this contract, their assigns. 16. SEVERABILITY 16.01. In case any one or more of the provisions contained in this Agreement are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this contract shall be considered as if such invalid, illegal or unenforceable provisions were never contained herein. 17. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS 17.01. This Agreement will be 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. 18. GOVERNMENTAL POWERS 18.01. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 21 19. CAPTIONS. 19.01. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 20. AMENDMENT 20.01. This Agreement cannot be modified or amended without the written consent of all the parties hereto and attached and made a part of this Agreement. 21. FISCAL FUNDING OUT 21.01. If for any reason, at any time during any term of this Agreement, the City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement pursuant to Section 7 of this Agreement following (i) delivery by the City to Bureau of written notice of the City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. 22. EXECUTION 22.02. This Contract may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. IN WITNESS WHEREOF, The City of Fort Worth and the Fort Worth Convention and Visitors Bureau have caused this Agreement to be executed and delivered by their duly authorized representatives as of the dates specified below: CITY OF FORT WO --- ATTEST " Assistant C ger ' Date: 0 0 City Secretar G - Contract authorization 22 Date Approved as to Form and Legality Assistant ity Attorney FORT WORTH CONVENTION AND VISITORS BUREAU R Title: Date: O� 23 Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 9/25/2007 DATE: Tuesday, September 25, 2007 LOG NAME: 25CVB07CONTRACT REFERENCE NO.: C-22414 SUBJECT: Authorization to Execute a Professional Services Contract with the Fort Worth Convention and Visitors Bureau for the Management and Supervision of Programs or Activities Funded with Revenue from Hotel Occupancy Tax RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a professional services contract with the Fort Worth Convention and Visitors Bureau to manage and supervise programs or activities funded with revenue from the hotel occupancy tax. The term of the contract shall be effective from October 1, 2007 and remain in effect until September 30, 2012 with two one-year extension options executable by mutual consent. DISCUSSION: State law authorizes a city to contract with another entity to manage and supervise programs or activities funded with revenue from the hotel occupancy tax. Through this authority, the City and the Fort Worth Convention and Visitors Bureau entered into City Secretary Contract Number 18523 on June 21, 1991, under which the Bureau would perform certain professional services for the City related to marketing programs and activities funded with revenue from the hotel occupancy tax. This contract expired on September 30, 1998. Subsequently, the City and Bureau entered into City Secretary Contract Number 24178, for the same purpose, which was to expire on September 30, 2003. The City and the Bureau extended the term of this contract to allow additional time for the parties to reach a consensus on proposed revisions to the existing terms and conditions of the current contract. City Secretary contract 30243 was effective May 1, 2004 and expired on September 30, 2006. A contract extension was executed (City Secretary Contract No. 33415) and will expire on September 30, 2007. City staff and members of the CVB Board of Directors have been negotiating a new contract. Key provisions of a new contract will include the following: A Business/Marketing Plan shall be developed by the Convention and Visitors Bureau to market the City to multi-cultural markets and to market space in the Will Rogers Memorial Center and the Fort Worth Convention Center with the intent to have a maximum impact on hotel occupancy tax revenues, sales tax revenues, facility revenues, occupancy rates at local hotels and City facilities (Will Rogers and the Convention Center). Two Special Public Facilities Funds (SPFF) have been created for the purpose of encouraging conventions and equestrian groups and other events to book and maintain their events in city-owned facilities. For each fiscal year, $250,000 will be allocated for the Fort Worth Convention Center SPFF. Additionally, a minimum of $210,000 will be allocated for the Will Rogers Memorial Center SPFF during each fiscal year. An additional $40,000 will be paid directly to the Southwestern Exposition & Livestock Show from the Culture & http://www.cfwnet.org/council_packet/Reports/mc_print.asp 10/23/2007 Page 2 of 2 Tourism Fund for marketing of the annual event. On a yearly basis, the Bureau shall prepare and submit to the City a Business/Marketing Plan that will include the work to be performed and measurable performance goals of the Bureau for that year. These documents will provide the instruments to evaluate the work required under the contract. On a yearly basis, the Bureau will be required to submit to the City a proposed written budget plan indicating the amount of funding to the SPFF and the base budget, any amounts available in the Bureau's reserve fund and estimated costs. The contract terms allow for the City Manager to serve as an ex-officio non-voting member of the Bureau's Executive Committee; and City Manager, Assistant City Manager, and the Director of Public Events shall serve as ex-officio non-voting members of the Bureau's Board of Directors. Two councilmembers or appointees shall serve on the Bureau's Board of Directors and at least one City Councilmember shall serve on the Bureau's Executive Committee. The Board of Directors will have multi-cultural representation. Funding, which is subject to the availability of funds, will be provided by the Culture & Tourism Fund for FY2007-08 in the amount of $7,413,910. The amount represents a base funding of $6,953,910 and $460,000 to fund the Special Public Facilities Fund (SPFF). Future years' base funding will include an automatic 3% annual increase through the term of the contract. The contract will include a 90 day termination clause that can be executed through notice by either party. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are budgeted in the FY2007-08 Adopted Budget for the Culture and Tourism Fund. TO Fund/Account/Centers FROM Fund/Account/Centers GG04 530120 0241000 $7,413,910.00 Submitted for City Manager's Office by- Joe Paniagua (6575) Originating Department Head: Kirk Slaughter (2501) Additional Information Contact: Kirk Slaughter (2501) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 10/23/2007